author: Mr. Justice Sterrett

text:
    Fosselman versus Elder, Executor, etc.
    A testatrix executed a will in 1878, in due form, by which she bequeathed various legacies to a niece, Isabella Fosselman, who lived with her. She afterwards died suddenly in January, 1880. Among her papers was found a sealed envelope indorsed in her handwriting thus: “ Dear Bella, this is for you to open.” The contents of the envelope were a promissory note for $2,000 and the following paper, also in testatrix’s handwriting: “ Lewistown, Oct. 2, 1879. My wish is for you to draw this 2,000 dollars for your use, should I die sudden.- Elizabeth Fosselman.” An amicable issue having been framed between Isabella Fosselman and testatrix’s executor to determine the ownership of the promissory note, — Held, that the indorsement on the envelope and the contents thereof constituted together a valid testamentary disposition of the note to the plaintiff in the issue, operating as a codicil to testatrix’s Will, and that therefore plaintiff was entitled to judgment.
    May 24th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Error to the Court of Common Pleas of Mifflm county: Of May Term 1881, No. 154.
    This was an issue amicably framed between Isabella Fosselman, plaintiff, and G. "W. Elder, executor of Elizabeth Fosselman, defendant, to determine the ownership of a certain promissory note dated October 2d 18.79, made by T. F. McCoy, president of the board of trustees of the Presbyterian Church of Lewistown, to Elizabeth Fosselman.
    There was no dispute as to the facts of the case, which are fully set out in the opinion of this court, and of which the following is a brief resume: Elizabeth Fosselman conducted a millinery- business, in which she was assisted by her husband’s-, niece, Isabella Fosselman, who resided with her and her bus-band. Her blood relations lived at a distance. After tbe death, in January. 1880, of Elizabeth Fosselman, who had made a will in J uly 1878, her executor found among her papers a sealed envelope, inscribed “Dear Bella: This is for you to open.” When opened by Isabella, it was found to contain the note in question for $2,000 and a paper containing these words: “ Lewistown, October 2d 1879. My wish is for you to draw this 2000 dollars for your own use should I die sudden. — Elizabeth Fosselman.”
    On the trial before Junkin, P. J., the Court instructed the jury that if the paper just quoted was genuine, to find for the plaintiff, reserving the question whether the said paper, in connection with the note to which it referred and the indorsement on the envelope, constituted a testamentary disposition.
    Yerdict for the plaintiff accordingly, subject to the question reserved.
    The Court subsequently entered judgment on the reserved question in favor of the defendant, holding that although the writing inclosed in the envelope was a testamentary paper, yet it was incapable of execution and void for uncertainty, because the testatrix had not sufficiently designated the object of her bounty; and that parol evidence was not admissible to explain who was intended by the prououn “you,” contained in the said testamentary writing; and holding further that the indorsement on the envelope was no part of the will, and could not be admitted to probate with the inclosed writing.
    Junkin, P. J., filed the following opinion :
    First, as to the exhibir “ A ” being testamentary in its character. It was to take effect after death, and contains a disposition either of $2,000, or a note for that amount, found in the same envelope. In Cock v. Cooke, L. B., 1 P. & D. 241, a duly executed paper in these words, “ I wish my sister to have my bank book for her own use,” held testamentary ; also, In the goods of Coles, L. B., 2 P. & D. 862. In Doe d. Cross v. Cross, 8 Ad. and Ellis, N. S. 714,.where a person being in India executed the following instrument: “Know all men,” &c., “ that I make E. my lawful attorney for me, and in my name and to my use to ask, demand,” &c. “ And I do empower her,
    the said E., to hold and retain all proceeds of the said property for her own use until I may return to England and claim possession in person, or in the event of my death, 1 do hereby, in my mime, assign and deliver to- said E. the sole claim to the before mentioned property, &c.” He died in India, without having returned to Great Britain, and it was held that the writing operated as a devise to E. Ch. J. Denman said : “ What principle of law is there to prevent it from being a will ?” So Mars-den, In re, 1 Swab. & Trist. 542, where, one being informed that he could not recover from his present illness, expressed a wish that his wife should be in a condition to receive at his death certain sums of money in two savings banks, and signed, in the presence of two witnesses, orders for the payment of the money to her by the banks, and died the day after. The court granted administration to the widow, with the orders annexed, as containing the will of the deceased; and there are many similar cases cited by Redfield on Wills, p. 180, 181, &c. in footnotes.
    The next question is, has testatrix sufficiently designated the object of her bounty? Exhibit “A” does not name Isabella, the plaintiff, but the envelope is addressed to her, and is this address a part of her will ? It is in testatrix’s own handwriting, but it is not signed at the end thereof. Unless, then, the words written on the envelope, “ Dear Bella, this is for you to open,” can be made a part of the will, the $2,000 bond or note is not -given to any one by name or description. In Wikoff’s Appeal, 3 Harris 290, Chief Justice Gibson declares that it is a rudimental principle that a will may be made on distinct papers, as was held in the Earl of Essex’s case, cited 1 Show. 69, that it is sufficient that they are connected by their internal sense, by coherence or adaptation of parts. In Ginder v. Farnum, 10 Barr 98, several sheets of paper fastened together by a string, with the signature of the testator at the end thereof, were held sufficient under the act of assembly. But here there was inherent evidence on the face of the papers, and no proof of any fraudulent addition. The most diligent search has disclosed no case in which a mere address or indorsement on an envelope or wrapper containing a will has ever been admitted to probate as a part of the inclosed will. Whenever a letter has been shown to be testamentary it was complete in itself, requiring no aid from the envelope, as see Morrill v. Dickey, 1 Johnson Ch. 153. This case is so novel that we must reason upon elementary-principles. Now it is undoubted that had the words “Dear Bella, this is for you to opon,” been added, without the testatrix’s signature to the foot of the signed will (“ A ”) the writing would have constituted no part of the will “AHays v. Harden, 6 Barr 409. Then if the words attached to the foot of the will “ A” itself could not be probated as part of that will, because unsigned by the testatrix, there is far less reason to hold the same words a part of the will when found indorsed on a mere envelope inclosing the will. In the nature of things, the indorsement of the words on the back of the envelope was done subsequent to tbe execution of tbe will “ A,” and could not be a part of the will itself, nor intended as a paid, but were used to identify the will itself, and point out who was entitled to its custody. The truth is very manifest, namely : that Elizabeth Eosselman contemjdated a gift of the $2,000 trustee note, and had no occasion to say anything more definite than what the signed paper contained. It will be observed that exhibit/1 A ” in no manner refers to the writing on the envelope so as to make the indorsement a part of the will, and the rule is that “ a reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular. But if there is a reference to any written document described as then existing in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain:" Allen v. Maddock, 11 Moore P. C. 427; In the goods of Mary Sunderland, dec’d, 1 Courts of Probate and Divorce, L. Rep. 1865-9, p. 198, 199, 200.
    "We reach the conclusion that the indorsement on the envelope is no part of Elizabeth • Fosselman’s will, and that exhibit “ A ” alone can be probated.
    The will then reads thus :
    “Lbwtstown, October 1-2, 1879.
    “ My wish is for you to draw this 2,000 dollars for your own use should I be called off sudden.
    “ Elizabeth Fosselman.”
    The next question is, who is “ yon ”? There are millions of people in the world who could be addressed as you, and here is a patent ambiguity on the face of the will. Hero, too, this anomalous will presents what, it is safe to say, has never occurred before, namely, a bequest in the second person without naming the legatee. Sir James Wigram’s VI. proposition is: “ Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, no evidence will be admissible to prove what the testator intended, and the will (except in certain special cases — see proposition VII.) will be void for uncertainty.” Proposition VIL — “Notwithstanding the rule of law which makes a will void for uncertainty, where the words, aided by evidence of the material facts of the case, are insufficient to determine the testator’s meaning, courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended where the description of the will is insufficient for the purpose. These cases may be thus defined : Where the object of the testator’s bounty, or the subject of disposition (i. <?., the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator.” He then enumerates the instances where it- has been held that parol evidence is not admissible: (1) To fill up a total blank in a will: Baylis v. Attorney-General, 2 Atk. 239 ; Castledon v. Turner, 3 Atk. 257; Hunt v. Hort, 3 Br. C. C. 311; or (2) of inserting a devise omitted by mistake : Lady Newburgh’s case, 5 Madd. 364; or 3, of proving what was intended by an unintelligible word; ... or (31) of ascertaining an intention which upon the face of the will was indeterminate, as in case of a devise to one of the sons of A, who hath several sons: 2 Vern. 265, and see Altham’s case, 8 Pep. 155.
    It is undoubtedly settled by innumerable cases, both here and in England, that parol evidence cannot be received to explain the intention of a testator, except in two specified cases: (1) Where there is a latent ambiguity arising dehors the will, as to the person or subject-matter meant to be described ; and (2) to rebut a resulting trust: Kent in Mann v. Mann, 1 Johns. Ch. 231; Wallize v. Wallize, 5 Smith 242, where the authorities are cited.
    In Newell’s App., 12 Harris, 199, Woodward, J., says: “A W'll must be judged ex viseeriíus suis, and unless there be latent ambiguity, extrinsic evidence is not to control its construction, yet it has always been held that a defective designation of the devisee or legatee intended may be repaired by parol proof. If the person to take be not in some sort described in the devise, evidence will not be admitted to show who was intended, for that would be to make a will by parol; but where there are words of designation, though a mistake of the name, the ambiguity may be removed by evidence dehors the will.” So in Best v. Hammond, 5 Smith 412 ; 3 Watts 241; 8 Harris 55 ; 6 Casey 425. The characteristics of all the cases of latent ambiguities are that the words of the will do describe the objects or the subjects intended, and the parol evidence does not vary the instrument, but enables the court to reject one of the subjects .or objects to which the description in the will applies, and determine which of the two was signified by the description used in the will: Doe v. Morgan, 1 O. & M. 235; Redfield, 562, note. Redfield, p. 500-502, says: “Perhaps a solitary dictum may occasionally be met with ... in favor of the admission of parol evidence to explain an ambiguity or uncertainty appearing on the face of a will, through Lord Thurlow says there is no such case. If there be, we may venture to say it is no authority. If a will be uncertain or unintelligible on its face it is as if no will had been made, quod voluit non dixit”

      In Still v. Hoste, 6 Madd. 192, the bequest was to Sophia1 Still, daughter of Peter Still. He had two daughters, Selina and Mary Ann. Except for the descriptive addition, “ daughter of Peter Still,” the bequest was clearly void, it appearing that there was no such person as Sophia Still. Bnt that name being rejected, the bequest stood, “to the daughter of Peter Still,” and he having two daughters, this made a clear case of latent ambiguity, and parol evidence was received to show which daughter was intended. In Price v. Page, 4 Ves. 680, the bequest was to-Price, thé son of-Price ; the plaintiff: being the only person claiming it, evidence was received to show that testator said he would provide for the plaintiff, and had left him something in his will. Careless v. Careless, 1 Mer. 384, the devise was to Robert Careless, my nephew, the son of Joseph Careless. It appeared that testator had no nephew Robert, who was the son of his brother Joseph, as he had in fact no such brother, but he had two nephews Robert, sons of his brothers John and Thomas. The description of the devisee was, therefore, irrelevant, and wholly void, and the name only remaining, with the addition of my nephew, was definite enough till it appeared there were two nephews of that name, which made it a clear case of equivocation, according to Lord Bacon’s maxim for the admissibility of extrinsic evidence.
    It will be observed that in the cases cited, and indeed in all belonging to the class of latent ambiguities, there is a name, or part of a name, or some designation as nephew or son, sometimes wholly wrong, as in Beaumont v. Fell, 2 Peere Williams 140, still a clue to the intent of the testator; while in the case before us there is neither name nor description of the legatee, simply “ my wish is for you to draw,” &c. There is not even a misdescription to show'that she meant some person. It is practically a blank, is not so strong or clear as an initial letter, for an initial letter might lead to something. But even an initial letter is insufficient, as shown by Clayton v. Son Nugent, 13 M. and W. 200, 206. Plere the testator did not name any devisees, but gave his real estate first to K., then to . . ., then to L., then to M.., &c. The testator, on a piece of paper attached to the will, at the time of the execution, stated that “the key and index to the letter, initials, &c., was in a writing case in the drawer of a writing desk, on a card.” After, or at the time of the testator’s decease, a card was found in the place designated, explaining the meaning of the initials and characters used in the will. This was dated nearly a year before the will, and a witness had seen a similar card before the testator two years before his decease. It was .held that the card was not admissible to explain the meaning of the will. Kell v. Charmer, 23 Beavan 195, may seem in conflict with the case just cited. There testator gave to his son William a legacy expressed thus : i. x. x.; and to another son, o. x. x. Testator was a jeweler, accustomed to use certain private marks to denote prices in his business. Extrinsic evidence was given to show that these letters represented the sums of £100 and £200. This case is questioned, and if conceded to be law, it must stand upon the difference between it and Clayton v. Nugent (supra) in this, that characters standing for amounts of money are found in the will itself, whereas in the other case the offer was to incorporate other writings as part of the will, not referred to in the body of the will. Clayton v. Nugent (sipra) furnishes an additional authority against admitting the indorsement on the back of the envelope to probate as a part of the will of Mrs. Fosselman.
    We have been much embarrassed with this view of the case, to wit: The testator, having given the legacy to “ you,” thus designating some one, why may we not show by parol who was intended by the pronoun ? That where the bequest is so given, all living persons are comprehended in the designation, why not, as where the description fits two or more, hear evidence of the intent to give to one of the many? We answer,that while the reasoning is plausible, still we are bound by the rule that patent ambiguities cannot be explained by evidence dehors the will. It is plain that this will does not tell you to whom the legacy is given, and this is the essence of a patent ambiguity; we would then be making a will for the testatrix, because, while she has not given the slightest clue — not even the sex — to enable us to discover the object of her bounty, we will do that for her whenever we name anybody as entitled to take.
    We conclude that although the paper “ A” is the testament of Elizabeth Fosselman, yet it is incapable of execution, and is void for uncertainty; not so amusing as David Kelley’s will, in 1 Casey 461, but quite as incomprehensible without the aid of forbidden evidence.
    As this was an issue to try the ownership of the $2,000 note given by the trustees of the Presbyterian Church to Elizabeth Fosselman on the 2d October 1879, the real purpose was to determine the character of the paper “ A,” and although found to be a will, still, being void for uncertainty, the issue must be found against the plaintiff.
    And now, to wit, 18th April 1881, we determine the question reserved in favor of the defendant. By the Court.
    The plaintiff took this writ of error, assigning for error the entry of judgment for the defendant on the question reserved, and the decision of the court that the indorsement on the envelope, being no part of the testatrix’s will, cannot be admitted to probate ; and that although the paper “A” is testamentary, yet it is incapable of execution and void for uncertainty.

      A. Heed,, for the plaintiff in error.
    The court below erred, we think, in holding-that the address on the envelope could not be admitted to probate in connection with the testamentary writing inclosed in it. It is settled that a will may be on distinct and separate papers, if they are connected by their internal sense, by coherence or adaptation of parts: Wikoif’s Appeal, 3 Harris 281: Ginder v. Farnum, 10 Barr 98. The envelope and the inclosure sealed therein were closely connected in these respects. Similar indorsements on letters of a testamentary character have been admitted to probate in connection with the letters: In re Goods of Jane Wedge, 2 Notes of Cases 14; In re Goods of Jane Taylor, 4 Ibid. 290. In both of these cases, the pronoun “ you,” occurring in the testamentary letters, was referred to the name of the person addressed on the outside of the letter. The fact that envelopes have come into use since those cases' were decided, does not change the principle, especially where, as in this case, the envelope was sealed and the address was thus physically connected with the inclosure. One of the reasons of the court below for rejecting the envelope was stated to be that “ in the nature of things the words on the back of the envelope were written subsequently to the execution of the paper inclosed.” That is a mere presumption. Many persons write the address on the envelope first and the letter afterwards. In either case, the address comes first in the natural order of things, and in reality the address and the letter are parts of the same testamentary act.' If the envelope were admitted to probate, the address would dissipate all uncertainty as to the person referred to in the letter by “ you.” There is then a certain bequest to a certain person. It is settled that where a testator refers in his will to a separate paper to be taken as part thereof, the separate paper is entitled to probate. W hile there is no direct reference in this letter to the address, yet the natural relation between a letter and its address is such as to bring this case within the principle referred to.
    But we also contend that the court erred in excluding extrinsic evidence, apart from the address, to explain who “ you” is in the letter. The true rule deducible from the authorities is that where the testator has fixed on a certain person as a legatee, but from the generality or relative character of the words, it is uncertain who the person is, extrinsic evidence is admissible to identify the person, and then the will acts in propria
      vigore-, and not from the extrinsic testimony: 2 Williams on Executors, 1238; Shores. Wilson, 9 Clark & Fin. 186. This is not like the case where the name is left in blank or the name is wholly wrong.

      Frank, R. Schell (A. B. Wanner with him), for the defendant in error.
    Our statute of wills provides that a will shall be signed “ at the end thereof,” and this must affirmatively appear. In this case, it does not appear that the envelope was written before the signature, but the presumption is the other way. The address on the envelope, not being referred to in the will as in existence, cannot be admitted to probate as an identified paper : 1 Jarman on Wills (ed. 1881) 38 ; Castledon v. Turner, 3 Atk. 257 ; Chambers v. McDaniel, 6 Ired. (N. C.) 226, 229 ; In re Goods of Hunt, 2 Rob. Eccl. Rep. 622 ; Sandford v. Raikes, 1 Mer. 646. Being unsigned, it cannot be admitted as a codicil. The address itself, “Dear Bella,” is uncertain and requires extrinsic evidence to show who was intended. In the cases of Wedge and Taylor, the entire name was superscribed. But those English cases are not in point under the terms of our statute expressly requiring a will to be signed “ at the end thereof.” To admit the envelope would open the door to fraud, as nothing would be easier than for one to substitute another envelope for the original.
    Extrinsic evidence is not admissible to explain a patent ambiguity, arising from the use of the word “you” or “her”: Castledon v. Turner, supra ; 1 Jarman on Wills 730.
    June 13th 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

The facts upon which the question of law in this case arose were either admitted or established by the verdict.

In the second item of her will, dated July 18th 1878, the defendant’s testatrix made the following provision for the plaintiff, viz.: “ I do will, devise and bequeath to Isabella Fosselman (who has lived with me many years), the house and lot wherein I now live, together with all the furniture and personal property that may be therein at the time of my decease ; by furniture and personal property I mean everything I may have at my decease, except notes and bonds, and evidences of debt, and also one thousand dollars in cash, to be paid to her as soon as practicable after my decease, provided nevertheless the legacies herein bequeathed shall be forfeited if she claims any compensation, for services rendered me, from my estate.” The testatrix having died suddenly in January, 1880, the will was duly probated a few days thereafter, and letters testamentary issued to defendant, tlie executor therein named. While he and the appraisers were engaged in making the inventory, a sealed envelope was found among the valuable papers of the deceased, on which the following words, addressed to the plaintiff, were indorsed, viz.: “ Dear Bella, this is for you to open.” The envelope was immediately handed to her, and being opened in the presence of the executor and appraisers, it was found to contain a paper, of which the following is a copy, viz.:

“Lewistown, Oct. 2d 1879.
“ My wish is for you to draw this 2,000 dollars for your own use should I die sudden. “ Elizabeth Eosselman.”

It also contained a note for $2,000, made by the trustees of the Presbyterian Church of Lewistown, dated October 2d, 1879, and payable to the order of testatrix one year after date, with interest at the rate of live per cent.

After a memorandum of these papers was made by the appraisers the executor took possession of them; and the right of the plaintiff to collect the note-or receive the proceeds thereof having been denied by the residuary legatees, an amicable issue was framed between her and the executor, to test her right thereto. On the trial, there was no dispute as to any of the material facts. It was conclusively proved by two witnesses that the indorsement on the envelope, and the paper of which the foregoing is a copy, were both in the handwriting of Mrs. Eosselman, and there was not the slightest evidence to cast any suspicion on the integrity of the transaction. The learned judge submitted the case to the jury, with instructions to render a verdict in favor of the plaintiff, unless they found that the said indorsement and paper Were not genuine, or had been fraudulently altered ; subject to the opinion of the court on the question, whether the paper of October 2d, 1879, in connection with the accompanying note of same date, and the indorsement on the envelope is a testamentary disposition of the note or the proceeds thereof.

In his opinion on the reserved question, the learned judge has conclusively shown that the paper referred to is testamentary in its character, intended to take effect upon the death of Mrs. Fosselman, and clearly designated the accompanying note as the subject of the bequest. These conclusions are so fully sustained by both reason and authority that it is. unnecessary to add anything to what has been, so well said,-in the opinion of the court below, on that subject.

The only remaining question is whether the testatrix has sufficiently designated the plaintiff as the object of her bounty in the paper that is claimed to operate as a codicil to her will. The court below held that she had not, and accordingly entered judgment in favor of the defendant non obstcmte veredicto. In this we think there was error. It is true the testamentary paper of October 2d 1879, does not designate the plaintiff by name, and if we had no written evidence to show who was meant by the pronoun “ you,” the bequest of the note would be void for uncertainty ; but it is a settled fact that the envelope is addressed to the plaintiff, and why should not that indorsement in the handwriting of the testatrix be taken as part of the testamentary disposition ? It is well settled that a will may be written on several separate pieces of paper. It is not even essential to its validity that the different parts should be physically united : it is sufficient if they are connected by their internal sense, or by a coherence and adaptation of parts; Wikoff's appeal, 3 Harris 281. It was held in Grinder v. Farnum, 10 Barr 98, that where a will is written on several sheets of paper, fastened together by a string, proof by two witnesses of the signature of the testator at the end thereof is sufficient; and that the question whether there has been a subsequent fraudulent addition to or alteration of the instrument is for the jury, as in other cases. In the Goods of Wedge, 2 Notes of Glases, a portion of a letter was admitted to probate as the will of Jane Wedge, who, on the third page of the letter wrote, and, in the presence of two witnessess, as required by the English statute, subscribed her name to the following, viz.: “ When I dey I would like you to bury me and take all I got for your treatment to me, and by somethin for your little girl.” The subscribing witness testified that after the paper was signed and attested the deceased folded up the letter, and in their presence wrote the superscription it bore. In holding that the paper was clearly entitled to probate, the court said: “ The letter is addressed to Mr. Henry Frost, and by ‘you5 the testatrix could mean no, other person to be legatee than the person she addressed. I am of opinion, therefore, that the person is executor according to the tenor, and that probate should pass to him.” That case is cited with approval in the Goods of Taylor, 4 Notes of Cases 290; in which Mrs. Taylor made her wiíl in the form of a letter, addressed on the outside to Sir George Simpson, and, after bequeathing her personal effects to her daughter, added the following: “I hereby appoint you my executor to carry this my will into effect.” Administration with the paper annexed was claimed by the daughter on the ground that no executor wras designated in the will; but the address on the letter was admitted to show that by “ you” the testatrix meant Sir George Simpson, the person to whom the letter was addressed, and probate was accordingly decreed to him as executor. In both these cases no envelope was used. The letters were in the form generally in nse before the introduction of envelopes; but that fact cannot affect the principle. A separate paper enclosed and sealed up in an envelope is just as much a part of the letter as if the name of the person to'whom it is addressed was indorsed on the paper itself. There is no room in either ease to doubt that the writing inside is addressed to the person whose name is written outside ; and so far as security against fraudulent alteration or substitution of one paper for another is concerned, the one is just as safe as the other before the seal is broken. Either of them is more secure than separate papers attached merely by a string, as in Ginder v. Farnum, supra.

It is also urged as-an objection to considering the address on the envelope as a part of the testamentary paper, that the former was written after the other was signed, and therefore the letter should not be considered as having been signed at the end thereof, as the statute requires; but the objection is without merit. It assumes what may or what may not have been the fact. It is not an uncommon thing for persons to indorse the address before writing the letter; but if it were shown affirmatively tliat the address on the envelope was written last in order of time, it would be unimportaut. The natural order of reading ought to control, and that is the name of the party addressed first, and then what is written to or concerning him. If the signature of the writer is appended to what is written it fully meets the requirements of the statute.

Without pursuing the subject further we are of opinion that the inscription on tlie envelope should be read as tbe preface to and in connection with the paper enclosed therein, and that they together constitute a valid* testamentary disposition of the accompanying note, operating as a codicil to the will of the testatrix.

Judgment reversed, and judgment is now entered in favor of the plaintiff on the question of law reserved.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Root versus The Commonwealth.
    1. The mere user of a way by tbe public for the space of twenty-one years will not vest a title in them thereto by prescription, unless the user be adverse and under claim of right.
    2. Where such user is with the knowledge and acquiescence of the owner of the land traversed, and is under his leave and favor, by his permission, and at his will, no title by prescription can arise.

      S. Tlie owner of land on the bank of a river established a ferry from shore to shore, and in order to afford an approach to and from said ferry opened a lane through his land which he constantly kept in repair. The public used said lane in order to approach to and from said ferry for more than twenty-one years. Afterwards the owner ceased to run the ferry and barred up the lane. Upon his being indicted in consequence for obstructing a highway, Held, that the lane had been used by the public by invitation or permission of the defendant only, that this was not such a user as vested a right by prescription thereto in them, and that, therefore, the defendant was not guilty of the offense charged against him.
    4. It is not error on the part of the court to answer points presented by the commonwealth in criminal cases where no writ of error lies on the part of the commonwealth. The court is not bound to answer such points, but may, if it- pleases, do so. If it does, the points and answers become a part of the charge.
    May 25th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, oJ. Sharswood, C. J., absent.
    Error to tbe Court of Quarter Sessions of Warren county: Of May Term 1881, No. 67.
    This was an indictment against Perry and Daniel Root for obstructing a highway. On the trial before Wetmore, P. J., the following facts appeared in evidence : In 1812 one Benjamin Tome was tlie owner of a tract of land on tbe eastern shore of the Allegheny river. A public road ran through this tract along the bank of tbe river. The tract on tlie opposite or western shore of tbe river was owned by one Webb. A public road ran also through Webb’s tract along the river bank. At one point there was a ford which travelers who wished to pass from one side of the river to the other were in the habit of using.
    Sometime in 1812 the public road on the eastern bank of the river was shifted inland and eastwardly some forty or fifty rods and then ran parallel with the river. William Brown at this time occupied the portion of Tome’s tract lying between the old and new roads, but whether with or without tbe owner’s permission did not appear. Shortly after tlie shifting of the location of tbe road, Brown laid out the land or highway in dispute through tlie land occupied by him westwardly from the new road to the old ford in order to accommodate travelers wishing to use the ford. This lane ran past a barn which stood near tlie river bank. In 1813 Brown vacated the land occupied by him and the same was taken possession of by Benjamin Tome. In the course of that or the following year, said Tome, wishing to establish a ferry across the river at or near the old ford, contracted with Webb for a right to land on Webb’s tract on tbe western shore of the river. Webb granted the right, and the ferry was accordingly opened, Tome providing the boat and keeping open the lane laid out by Brown, so as to furnish access from the new road to the ferry. In 1845 Benjamin Tome conveyed his tract of land to George Tome, who, in 1849, laid out that portion of the lane between the barn and the river anew, locating it a few rods south of the former place of travel. Afterwards George Tome’s title became, through divers mesne conveyances, vested in the defendants. From the time of the starting of the ferry in 1843 or 1844, up to the early part of the year 1880, it was regularly maintained by the owners of the Tome tract, including the defendants, except for a few months in 1866. During those few months the lane in question was barred up ; at all other times it was kept in order by .defendant’s and their predecessors in title, and loft open so as to afford a free approach to and from the ferry. In the early part of 1880 defendants ceased to run the ferry and barred up the lane, whereupon the present proceedings were instituted.
    The Commonwealth presented, inter alÁa, the following points :
    2d. If the public have so used a roadway across the land now occupied by the defendants, to pass between the river ferry and the public road for twenty-one years, without protest or hindrance, they have acquired such a right as cannot be disturbed or questioned by the owner of the land. Affirmed. (First assignment of error.)
    3d. To acquire such a right the user need not be claimed or exercised as exclusive; it is enough that the owner permits it without objection or the assertion of his exclusive dominion over the locus in quo, for other uses or purposes. Affirmed, (Second assignment of error.)
    6th. If the jury believed the road across the land of the defendants, between the ferry and the public road, substantially as now claimed, was used by the public as a highway for twenty-one years, by the invitation of the owners, or with their knowledge and approval, the law will presume a grant by said owners not afterwards revocable. Affi/rmed. (Fourth assignment of error.)
    Yerdict, guilty. Sentence, that the defendants each pay a fine of one dollar, and the costs of prosecution. Defendants thereupon took this writ, assigning for error, i/nt&r alia; the action of the court in affirming the Commonwealth’s points as above.

      It. Brown, for plaintiffs in error.
    The public have derived no right to the highway in dispute by prescription. The evidence showed that it had been used by the public for no other purpose than an approach to defendant’s private ferry. This was a mere matter of favor and courtesy by defendants and their predecessors in title, and was not such an adverse user as to vest rights in the public : Esling v. Williams, 10 Barr 126; Worrall v. Rhoads, 2 Whart. 427 ; Co. of Susquehanna v. Deans, 9 Cas. 131 ; Gowen v. Phila. Exchange Co., 5 W. & S. 141 ; Irwin v. Dixion, 9 Howard 10 ; Washburn on Easements and Servitudes 183 ; 3 Kent’s Comm. 444.
    The Commonwealth has no right to a bill of exceptions in such cases as the present. Hence it was error on the part of the court to answer the Commonwealth’s points at all.
    Johnson, Lindsey and Parmlee, for the Commonwealth.
    There was no evidence that the public used the highway in question by the invitation, contract or consent of defendants, or their predecessors in title. There was evidence that the use was adverse, which would give a right to the public by prescription : Esling v. Williams; 10 Barr 126 ; Cooper v. Smith, 9 S. & R. 27; Worrall v. Rhoads, 2 Wh. 426; Garrett v. Jackson, 8 Harris 331; Okeson v. Patterson, 5 Cas. 22; Pierce v. Cloud, 6 Wr. 102; Plitt v. Fox, 7 Wr. 486; Demuth v. Amweg, 9 Norris 181; Newman v. Rutter, 8 Watts 51.
    June 20th 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

Prior to 1842 a public road bad been opened on each bank of the river near its margin, and for about ten years a ford had been used by people who chose to cross from one road to the other, at or near the place of the ferry between the land of the defendants to the land of Webb. The road on the east bank of the river was vacated and another opened running in the same direction, about forty rods farther east. • Brown, who then occupied the land now owned by defendants, opened a lane from his barn out to this road, and the public passed over it and through an open field to the ford without hindrance. In 1843 or 1844, Tome, who succeeded Brown in occupancy, desiring to establish a ferry, contracted with Webb for a landing on the west side of the river; Webb gave the right of way for a landing and made and kept up the road from the landing to the public road, thirteen and one-half rods, for which he and his family were to be ferried across free of charge. This arrangement was carried out by Tome and his successors till the ferry was stopped shortly before the prosecution of the defendants. Tome put on the first ferry-boat at that place. In 1849 Tome made the part of the lane from the barn to the river, locating it a few rods south of the former place of travel. The lane varied in width from sixteen feet to thirty. Eor a time in I860 the ferry was stopped and the lane barred — the bars were taken away when the ferry was again started. Ten or twelve years ago the way near the landing was injured by a flood and the defendants moved the fence so as to make a passage. The fencing of the lane and keeping it in repair were by the occupants of the land. Neither time nor money was ever expended in its opening or improvement by the public. The foregoing facts are proved by the witnesses called by the Commonwealth.

At the date of the arrangement between Webb' and Tome respecting the ferry, the public had not acquired any right of way. None of the parties had chartered or prescriptive rights to a ferry there. It may be, as alleged by the learned counsel for the Commonwealth, that every other man had just as much right to ferry himself or his squaw across the river at that place as the occupant had, provided he paddled his own canoe but lie had no right to go ashore without permission of the owner or occupant of the land. The right to the bed of a navigable river is presumed to belong to the Commonwealth; but she has no right in the adjoining lands which have been vested in citizens, other than by eminent domain. The owner of the soil has the right of landing on the banks of all navigable rivers. No person can of right land his ferry-boat on another’s gronud, without permission. Nor can the Commonwealth grant such right, except upon compensation being made to the land-owner. Cooper v. Smith, 9 S. & R. 26.

This was a private ferry, the landings and ways made, owned and kept in repair by the occupants of the land. The presumption is that the tenants acted by the consent or procurement of the landlord. No man had a right to go to that ferry except on the implied invitation of its owner. The owner wanted customers — he proposed to carry them across the river for a consideration, and those who went accepted his terms.

It is not claimed by the Commonwealth that the owner of the land dedicated an easement to the public, but she claims that the lane became a highway because of user, on the principle that “ twenty-one years’ adverse use of a way under claim of right is sufficient to authorize the presumption of a grant, and if the use was open and notorious in the ordinary manner, the owner would be presumed to know and acquiesce therein.” This principle has been often repeated in cases where one man claims a way, that is, the right of going over another man’s ground. A user will not give title unless it be adverse and under claim of right, nor when it appears it was not done with the knowledge and acquiescence of the owner, or when the way is used under leave or favor and by permission and at the will of the owner. The presumption may be repelled by evidence which accounts for the possession or user without resorting to a title by grant or otherwise: Esling v. Williams, 10 Barr 126. If the use of the way by an individual is merely a ¡permissive use, no presumption of grant will arise from lapse of time. In order to establish a way by user, the user must be adverse, not permissive : Domuth v. Amweg, 9 Nor. 181. Like principles generally apply when the easement is claimed as public : Gowen v. Phil. Exchange Co., 5 W. & S. 141. The use of ground in front of a warehouse, extending to the river, by the public and by the owner for such purposes as he desired, for more than thirty years continuously, gave the public no right against the will of the owner, for the use was not adverse to him, but by his consent. And it was not exclusive by the public, but in common with him for travel and entirely in him for several purposes of a private character: Irwin v. Dixion, 9 How. 10. From the nature of wharf property the access must be kept open for the convenience of the owner and his customers; but the property continues private. No length of time during which the property is so used, can deprive an owner of his title, nor give the community a right to abate the owner’s fences over it as a nuisance on the ground that they have acquired a legal easement in it.

In this case the tenants could have used the lane just as they did for travel and teaming, whether it was a private or public road. It was the interest of the owner of the ferry to invite travelers by keeping an open way from the public road to the river and procuring the way from W ebb from the river to the road on the west side. Without such convenience his ferry would have been worthless. The business of the ferry and its receipts were increased by leaving the way open when the river was frozen and when fordable. To have closed the way at such times would have driven the customers to ferries above or below when a ferry would be necessary. Hence, the invitation was held out and permission given. No one was a trespasser, no one was liable to an' action for use of the lane or landings at any season of the year. Had the lane or landings got out of repair and the road commissioners been indicted for neglect of duty in suffering them to become impassable, it is probable that they would have discovered that the lane and landings were private property, and that neither the road commissioners, nor any other person, had ever done an act recognizing them as a public or township road.

The court was not bound to answrer the points presented by counsel for the Commonwealth, but the mere fact of doing so was not error. When affirmed, they became a part of the charge. As abstract propositions, those which were affirmed were substantially correct, yet without explanation some of them, we think, were well calculated to lead to an erroneous verdict. The jury were instructed that if the public have used a way as a highway “ across the land now occupied by defendants, to pass between the river ferry and the public road for twenty-one years, without protest or hindrance, they have acquired such a right as cannot be disturbed or questioned by the owner of the land;” that “ to acquire such a right the user need not be claimed or exercised as exclusive, it is enough that the owner permits it without objection or the assertion of his exclusive dominion over the locus in qxio, for other uses or purposesand that “ if the jury believed the roadway across the land of defendants, between the ferry and the public road, substantially as now claimed, was used by the public as a highway for twenty-one years, by the invitation of the owners, or with their knowledge and approval; the law will presume a grant by said owners not afterwards revocable.” Had the ferry been one in which the owner or tenant of the land had no interest, these propositions would have been fitting, but applied to the facts proved by the Commonwealth, to say nothing of the defendant’s evidence, they were misleading. By affirmance of the defendants’ second point the jury were rightly instructed that the public would not acquire a right by user for twenty-one years unless under such circumstances of acquiescence as clearly indicated the owner’s design to surrender control and donate the way to the exclusive use of the public. This availed nothing against the positive instruction that a user by the public as a highway of the road between the ferry and public road, for twenty-one years, by invitation of the owners, was an irrevocable legal presumption of a grant by the owners. If the owner invited the public to use the way he was not likely to protest against and hinder the use ; if he permitted the usé he did not object; yet the jury were told that its use as a highway without hindrance or objection vested a right in the public which cannot be disturbed. The propositions set forth in the first, second and fourth assignments of error either should have been refused or accompanied by remarks to the effect, that if the public for more than twenty-one years used the lane between the public road and a private ferry owned by the occupant of the land, under circumstances which showed it was permitted for the purpose of reaching the ferry, the public acquired no right of way; that to vest such right the user should have been adverse to the owner, and not by his consent; and if the jury believed the occupier or owner of the land opened a passage from tlie road to the river to his ferry and had obtained from the owner of the opposite shore, for a valuable consideration, the right of landing and other necessary privileges, and that said passage was used by the public by invitation or permission of the owner of the ferry and the land, there was no such user as vested an easement, that such facts would repel the presumption of a grant arising from user for more than twenty-one years.

Judgment reversed, and it is ordered that the record, together with the opinion of this court setting forth the causes of reversal, be remitted to the court of Quarter Sessions of Warren county, for further proceeding.


author: Mr. Justice Paxson

text:
    Vanormer versus Ford.
    1. A plaintiff is not entitled to judgment for want of an appearance under the provisions of the Act of June 13th ^836, § S3 (P. L. 578), unless he has filed his declaration prior to the return day of the writ.
    2. A rule of court providing that the plaintiff may enter such a judgment upon filing a declaration, whether the declaration be filed at the return day or not, is in contravention of the Act of Assembly, and is therefore of no force or effect.
    May 25th 1881. Before Mercub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Error to the Court of Common Pleas of Juniata county : Of May Term 1881, No. 33.
    Replevin, by W. P. Ford, et al. against William O. Yanormer for one bay liorse, etc. The writ issued July 20th 1878, “ returnable next term, first Monday in September next,” viz., Sepl ember 8th 1878. The summons was served July 22d 1878. A claim property bond was entered by the defendant, and the horse was retained by him. On September 9th 1878, the plaintiff filed his declaration in replevin, and on the same day, by order of plaintiff’s attorney, judgment was entered sec. reg. against tbe defendant for want of appearance, damages to be liquidated by writ of inquiry.
    The rule of the court of Common Pleas of Juniata county, No. 28, § 130, under which judgment was signed, is as follows:
    “ In actions personal or real, except ejectment, the plaintiff, having filed a declaration, may have judgment, of course, against the defendant, in default of appearance at any time after the return day and ten days service of the writ, without reference to tha quarto die post, and irrespective of the fact as to whether the declaration be filed at the return day or not.”
    A rule to show cause why the judgment should not be opened was discharged by the court, and under a writ of inquiry the damages wore liquidated at $35. The defendant thereupon took this writ of error, assigning for error the entry of judgment as above.

      E. S. Doty, Jr. (with him Ezra B. Parker), for the plaintiff in error.
    Perhaps under a literal reading of the rule of court the judgment might be sustained; but we submit that the rule is iir direct conflict with the act of June 13th, 1836, § 33, Pampli. L. 578, which is as follows :
    “If the defendant in any writ of summons as aforesaid, shall not appear at the return day thereof, and the officer to whom such writ was directed, shall make return that it was served upon the defendant ten days before the return day aforesaid, it shall be lawful for the plaintiff, having filed his declaration, to take judgment thereon for default of appearance, according to the rules established by the court to regulate the practice in this respect.”
    A rule of court, pi-escribing a practice in contravention to an Act of Assembly, is invalid : Boas v. Nagle, 3 S. & R. 250.
    It is even doubtful whether the Act of 1836 applies to the action of replevin. The Common Pleas of Bucks county, following by analogy Morton v. Hoodless, 1 Miles 46, have held that it does not. See also Crofut v. Chichester, 3 Philada. Rep. 457; Lynd v. Benjamin, 2 Miles 172. The defendant having claimed the property and given a bond, that should have been treated as iu effect an appearance. But it is well settled that a defendant is not bound to appear unless a narr. had been filed before the return day: Foreman v. Schricon, 8 W. & S. 43 ; Dennison v. Leech, 9 Barr 164.

      Louis E. Atkinson, for the defendant in error,
    presented no paper book. He argued that section 33 of the Act of 1836, supra, expressly provides that judgment for default of appearance may be taken “ according to the rules established by the court to regulate the practice in this respect;” that the rule in question had been in force and unquestioned for over ten years, and could properly be sustained.
    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the court

The defendant did not appear upon the return day. On the day following the plaintiff filed his declaration, and at the same time signed judgment against the defendant by default for want of an appearance.

This was error. To entitle the plaintiff to a judgment by default under the Act of 1836, he must file his declaration before the return, day. Dennison v. Leech, 9 Barr 164; Foreman v. Schricon, 8 W. & S. 43 ; Black v. Johns, 18 P. F. S. 83. In. the case last cited it was held the defendant is not bound to appear until a declaration has been filed, and when none had been filed at the appointed time he had reason to think he would not be required to appear.

It is said, however, the judgment can be sustained under the rule of court. We do not think so. It is true the rule does provide that the plaintiff may have judgment by default without reference to the quarto die post, and irrespective of the fact as to whether the declaration be filed at the return day or not.” This rule is in contravention of the Act of 1836. Buies of court are intended to facilitate the dispatch of business, but they cannot repeal an Act of Assembly. It is expressly declared by the 21 st section of the Act of 16th June 1836, P. L., 787, “ That such rules shall not be inconsistent with the constitution and laws of this commonwealth.” And see Boas v. Nagle, 3 S. & R. 250. While the Act authorizes the' taking of judgments by default according to the rule? established by the court to regulate the practice in this respect,” it does not empower the court to dispense with the filing of a declaration before the return day. On the contrary, it makes such filing a prerequisite to the signing of judgment.

The judgment is reversed and a procedendo awarded.


text:
    Sykes versus Gerber.
    1. Where a person receives a promissory note drawn to his own order for a debt due him and gives a receipt wherein he states that he has settled and received payment in full by taking thp note, together with an order and a certain sum in cash, it is for the jury to say whether the note was given in payment of the original debt or merely as an additional or cumulative security.
    2. A., having received a note from B., as additional security for a debt, brought suit thereon at maturity, filiug á narr. which contained a special count on the note and also the ordinary common counts. Judgment having been entered in this suit for defendant, A. afterwards brought a new action against B. to recover the amount of the original debt. Held, that the subject matter of this suit was the same as that of the suit .formerly brought upon the note, and that hence the judgment then entered for defendant constituted a bar to plaintiff's right of action.
    .3. Where, in such a case, the record of the suit on the note disclosed the fact that there liad been a material alteration in said note after its delivery to plaintiff, and that for that, cause judgment was entered for the defendant, — Held, that this did not render said judgment, as respects its legal effect, any less conclusive against the plaintiff’s right of action on the original debt. By vitiating the note the plaintiff caused it to operate as a satisfaction of the debt.
    May 30th 1881. Before Sitarswood, C. J., Gordon, Trunkey and Sterrett, JJ. Mercur, Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of JElh county: Of May Term 1881, No. 84.
    This was an appeal from a judgment of. a justice of the peace entered in favor of Frank X. Gerber to the use of Joseph Gerber against Joshua Sykes, in an action brought by Gerber against Sykes to recover compensation for work and labor done. Pleas, non assumpsit, set off, payment with leave, etc.
    On the trial, before Wetmore, P. J., the facts of the case appeared to be as follows : #

    Plaintiff had, prior to Juue 5th 1874, worked for defendant, and on that day settled with defendant for the wages due him, receiving in cash $5, an order drawn by defendant for $17, and a promissory note made by defendant payable to plaintiff’s order nine months after date for $200. The following was the receipt given by the plaintiff to the defendant:
    “ Settled and received payment in full for all claims for labor, &c., by taking note and order of $17.00 and cash $5.00, the 5th day of June, 1874. F. X. Gerber.”
    Defendant failed to pay the note on maturity, whereupon plaintiff instituted an action of assumpsit against him to No. 108, Sept. Term 1875, declaring specially upon the note and adding the usual common counts, for work and labor done, etc. On the trial of that cause it appeared that the note had been altered by the addition of the words “ with interest ” after it had been delivered to the plaintiff. Verdict and judgment were accordingly rendered for the defendant.
    Afterwards plaintiff brought this suit, in which he sought to recover the wages due him by defendant for which the note had been given.
    The court "instructed the jury, inter alia, as follows ;■

      “ If the jury find from the evidence that there was a settlement between the parties June 5th 1874, and an order given for seventeen dollars, and a cash payment of five dollars, and a note for two hundred dollars, due nine months after date, was given and received in full payment and discharge of the balance claimed as due, then the original claim was satisfied and there can be no recovery on it in this suit.
    “ If the note was not received in payment and discharge of the claim, then it is a subsisting legal obligation.
    “The record given in evidence,No. 108, Sept. Term 1875, is not a bar to this suit.”
    Verdict and judgment for the plaintiff in the sum of $261.00, whereupon defendant took this writ, assigning for error that portion of the charge of the court above cited.

      Geo. A. Rathbun (with whom was W. W. Ames), for plaintiff in error.
    The legal effect of the receipt was wholly for the court and not for the jury: Welsh v. Dusar, 3 Binn. 337; Moore v. Miller, 4 S. & R. 279 ; Denison v. Wertz, 7 S. & R. 372; Bryant v. Hagerty, 6 Norris 256. Its effect, taken in connection with the attendant circumstances, was to show that the note was received as payment: Chambers v. Davis, 3 Whart. 46.
    Plaintiff could in his suit on the note have given in evidence his cause of action in the present suit under the common counts. Having failed to do so, the verdict and judgment for defendant in that suit is a complete bar to the present one: Alexander v. Stokely, 7 S. & R. 299 ; Wilson v. Hamilton, 9 S. & R. 429; Kilheffer v. Herr, 17 S. & R. 319 ; Logan v. Caffrey, 6 Cas. 196 ; Marsh v. Pier, 4 Rawle 287; Buffington v. Buhrman, 3 Clark, 73. The note was the evidence of the contract between the parties, and having been altered through the fault of plaintiff, he lost wholly liis cause of action.

      John G. Hall and C. H. McCauley, for the defendant in error.
    Where a note ifc taken for an antecedent debt, it is presumed to be an additional security, and not payment. If the note is on time, it is held its effect is only to postpone the demand for immediate payment, so that if the note is not paid at maturity, the creditor may sue for his demand independently of the note, as if it had never been given. And it is no answer that the debtor has been sued upon the note, and that judgment has been obtained against him, if the judgment is unsatisfied: Addison on Contracts, § 333; Hart v.
      Boller, 15 S. & R. 163 ; Kinsley v. Buchanan, 5 Watts 119; Jones v. Shawhan, 4 W. & S. 263.
    But the presumption of law that the note given is merely cumulative and not satisfaction may be rebutted "by other evidence. There was here some evidence which tended to show that the note was intended as payment. The question whether it was or not was rightly submitted to the jury: Jones v. Shawhan, 4 W. & S. 263; Hart v. Boller, 15 S. & R. 163. The verdict settles that the note was not intended as payment. A former judgment is a bar only where there has been a trial of the same subject matter between the same parties on the merits. Sterner v. Gower, 3 W. & S. 143 ; Carmony v. Hoober, 5 Barr 305 ; Follansbee v. Walker, 24 P. F. S. 310. And parol evidence is admissible to show that the trial of the first cause was not on tire merits of the controversy sought to be litigated in the second: Aiken v. Stewart, 4 W. N. C. 180; Carmony v. Hoober, 5 Barr 305. And this may be shown by the charge of the court in the first case: Follansbee v. Walker, supra.

    The judge’s charge in the suit on the note shows. that the sole question there raised was the validity of the note.
    The doctrine that a material alteration of a note altogether destroys the right of action on the debt for which the note was given, has long ago been exploded. Besides, in the present case the alteration was made without plaintiff’s knowledge or consent.
    June 20th 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

On June 5th 1874, Sykes gave Gerber an order for $17, cash $5, and his note at nine months for $200, in settlement and payment in full. After the note became due suit was brought thereon and trial had upon the merits, resulting in a verdict and judgment for the defendant. Then this action was commenced to recover for the same claim for which the note was given. The court charged that if the order, cash and note were received in payment of the original claim the plaintiff could not recover, but if not so received, said claim was a subsisting lqgal obligation ; and that the former judgment is not a bar to this suit. This instruction is assigned for error.

For present purposes the verdict settles that the note was not given in payment of the original debt. It evidenced the amount of that debt and when payable, and was itself an additional or cumulative security. The original claim and the note were between the same parties, for the same consideration, and payment of either would have satisfied both. A judgment in favor of the creditor upon either would be a bar to a recovery on the other. And a judgment for the debtor in an action which finally disposed of the note, for equally good reason, is a complete defense against a suit upon the account or claim which the note represented.

The law does not tolerate a second judgment for the same thing, between the same parties, whether the claim is upon a contract or tort. In the former action the declaration contained the common counts and a special count on the note. The general rule is that it is against the policy of the law to permit a plaintiff to prosecute in a second action for what was included in and might have been recovered in the first, because it would harass the defendant and expose him to double costs. This is so far modified that when claims are distinct, though all might have been recovered in the first action, it will not bar a second for one which was not demanded or proved in the first. But where the contract is entire and there is a recovery upon such contract, the party cannot maintain a second suit even on clear proof that no evidence was given in the first as to part of the demand in controversy: Logan v. Caffrey, 6 Casey 196. The plaintiff might have offered evidence under the common counts, of his claim for labor, as well as the note under the special count, and as they represent one debt this case is within the general rule. The subject matter was the same, whichever kind of proof was offered to establish it, and if sustained by both the judgment would be the same as if by one alone.

Thus far the 'case is considered as if the note were valid at the time of the former trial. The record of that ease-shows that the note was vitiated by a fraudulent alteration, and that it was for that canse the judgment was for defendant. It is claimed by the plaintiff that the alteration was without fault in him, and that the trial was not on (die merits. The judgment, as respects its legal effect, was upon the merits, and settles that there was fault in the plaintiff, else he would have recovered. An accidental alteration of a written contract, or its alteration by a stranger without the party’s knowledge-or connivance, and he being blameless, will not defeat his action. The judgment ended forever the right of action on that note, and now the plaintiff cannot go back and maintain a suit for the original debt, for no man shall be permitted to take the chance of committing a fraud, without running any risk of losing when it is detected.” The vendee of goods paid for them by a bill of exchange drawn by him on a third person, and after its acceptance, the vendor vitiated it by an alteration: Held, that by so doing he made the bill his own, and caused it to operate as a satisfaction of the original debt, and consequently that he could not recover for the goods sold: Alderson v. Langsdale, 3 B. & Ad. 660 (23 E. C. L. R. 155). By vitiating the note given for his labor claim, the plaintiff caused it to operate as a satisfaction of the debt, and he cannot recover in a second action against the defendant. If, for the reason stated by his counsel, he is innocent, he must look for redress to the party who wrongfully altered the note.

.Judgment reversed, and veovire facias de novo ‘ awarded.


author: Mr. Justice Gordon

text:
    Hays, Indorsee, etc., versus Lycoming Fire Insurance Company.
    1. Where a mutual fire-insurance company is authorized by statute to issue policies of insurance on the cash principle to others than members of the company, all persons who are insured upon that principle are entitled to look to the premium notes of the members as representing the capital stock of the company.
    2. Wherever, therefore, a person so insured has suffered a loss under his policy, and the company, in order to meet that loss, inter alia, makes an assessment upon the premium notes of its members, the insured, upon failing to receive the amouut due him, may, after reducing his claim to judgment, and provided that the company still remains solvent, issue an attachment execution against the amount of unpaid assessments still in the hands of the members of tbe company, and against the amount of assessments collected by an agent of tñe company, but not paid over by him.
    3. Semble, that probably a mandamus would not be granted at the suit of the creditor of a corporation against the officers thereof, to compel them to collect the notes, stock, subscriptions and other assets due it in order to meet his demand; and even if a member of the company should be entitled to a writ of this kind, a stranger certainly would not.
    May 30th 1881. Before Sharswood, O. J., Gordon, Trunkey and SterrettJ JJ. Mercur, Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of I/ycomvng coimty: Of May Term 1881, No. 40.
    Attachment execution, by William IT. Hays, indorsee of the Eighth Avenue Railroad Company, against The Lycoming Fire Insurance Company, defendant, and S. N. Williams and others, garnishees.
    The judgment under which this attachment execution issued was obtained by the said plaintiff against the said defendant in an action of assumpsit on an order drawn by tbe president of tbe defendant corporation, by order of tbe board of directors, on the treasurer of the company, dated June 9th 1880, for $3505.14:. to the order of the Eighth Avenue Railroad Company, payable September 9th 1880, accepted in writing by said treasurer, and indorsed by the payee to the order of the plaintiff Hays, and by him indorsed. The order was protested for nonpayment at maturity. This order had been given for the amount of adjusted loss found due by the defendant to the Eighth Avenue Railroad Company, for the destruction by fire of certain premises, insured by the company defendant under a policy issued on the “ all cash plan.”
    To the attachment execution the defendant filed a special plea that “ under its charter and the supplements thereto and by reason of the facts and legal conclusions connected therewith, specifically set out in the affidavit of William A. Krouse, assistant secretary, and filed herewith, the company is not subject to the writ of execution attachment.”
    The affidavit of Krouse, referred to in the plea, was as follows :
    “ 1. That said corporation is a mutual insurance company, incorporated by act of Assembly approved March 20, 1840, and that said charter has been altered and amended by several subsequent acts of the General Assembly of the State of Pennsylvania, viz.: An act approved July 26, 1842; also, an act approved May 29, 1854; also, an act approved May 1, 1861.
    2. That prior to the passage of the act of May 1, 1861, said company had no authority to issue policies or effect insurances on the cash or stock plan, but by the terms of said supplement it was authorized “ to make insurances on property of every class or description already included in this act of incorporation, according to their discretion, for which cash premiums only shall be received,” &c.
    u 3. That the order of acceptance on which the original suit is brought and judgment obtained, was issued by said company or its officers in settlement of a claim for loss by fire of the Eighth Avenue Railroad Company under a policy heid by them, which policy was issued on the cash plan in pursuance of the supplement of May 1,1861, and that the face of said order or acceptance indicates that it was given in settlement of a claim for loss by fire.
    “ 4. That said company have no authority, under its charter or the several supplements thereto, to execute negotiable paper of any kind in payment of any loss or for any purpose whatever; but orders or acceptances have been issued for losses and expenses for the convenience of the insured and the company upon the ascertaining of the amount the company is liable to pay in case of loss or losses by fire. '
    ' “ 5. That section of nine of the charter of the company provides as follows: ‘ The directors shall, after receiving notice of any loss or damage by fire sustained on property insured by said corporation, and ascertaining the same, or after the rendition of any judgment as aforesaid against said company for loss or damage, settle and determine the sums to be paid by the several members thereof as their respective proportion of such loss, &c.’
    “ 6. That in accordance with the terms of the charter the directors of said company, on the 28th day of May, A. D. 1880, levied an assessment on all notes in force on the 15th day of-April, 1880, intending to provide for the payment o'f all losses and expenses up to that date; and the claim on which the original suit was brought in this case was included- in said assessment.
    “ 7. That on the same day, viz.: May 28th 1830, the directors of said company levied another assesment on all notes in force on the 14th day of May, A. 1). 1880, to pay losses and expenses between April 15th and May 14th 1880, inclusive, the losses between said last mentioned dates having been very large the aggregate losses in the Milton fire alone being about $100,000.
    “ 8. That said assessments have been placed in the hands of receivers or cohectors, and collections have been made thereon as fast as possible, and applied to the payment of the liabilities of' the company, but owing to the large amount of liabilities it has been found impossible to pay them off as they come due, consequently the company have paid to those entitled to receive the same a proportionate part of their claims from time to time, and have paid up to this time thirty per cent., and have distributed that amount on the claim of the plaintiff, which he has refused to receive under the plan of distribution adopted by the company.
    “ 9. Said deponent is informed by counsel learned in the law that claims against said company cannot be enforced by execution attachment for the following reasons: Because the corporation under its charter is not subject to the writ. Because mutual members of said company cannot be made garnishees or have assessments on their notes, levied to pay particular* losses, attached. Because when an assessment is made by a mutual company to pay losses up to the date of the assessment, persons or corporations whose claims or losses are included in said assessment have a vested interest therein, and prior assessments cannot be attached to pay subsequent losses, nor can subsequent assessments,, made for the purpose of paying subsequent losses, be attached. Because moneys in the hands of receivers or collectors are virtually in the hands of the company itself. Because the proceeds of any assessment virtually belong to those creditors of the cpmpany for whose benefit said assessment was levied according to the terms of the charter. Because a special method is set forth in the charter of the company for the payment of losses, and creditors of the company cannot collect their claims by execution attachment.”

    The garnishees made no defense, but in response to interrogatories certain of them answered that as members of the company defendant, insured therein on the mutual plan, they had given premium notes on which certain assessments had been levied which remained unpaid, due and owing by them to the defendant company. H. Yv. Watson, one of the garnishees, answered that as agent of the company, appointed to collect assessments levied on the premium notes of members, he held certain funds. The total liability acknowledged by the garnishees was $1435.87. It -was admitted that the assets of the company, consisting largely of premium notes, were more than sufficient to pay its debts due for losses by fire.
    The parties having agreed to dispense with a jury trial, the case was tried before Cummin, P. J., whose opinion, after stating the facts, was as follows:
    “ The only question for solution in this case is, whether or not unpaid assessments duo on the premium notes of policyholders and members of the Lycoming Fire Insurance Company are liable to execution attachment on a judgment recovered on a claim against the, company for a loss by fire covered by a cash policy.
    “ The charter gives no preference to cash policies in payment of losses, and provides no different method of paying them than that prescribed for all its policies. That the cash policies and premium note policies stand on the same basis is no longer an open question in this state: Hummel’s Appeal, 28 P. F. S. 320 ;• Schimpf & Son v. Lehigh Valley Mutual Insurance Company, 5 Norris 373.
    " I am of opinion that the plea of the defendant in this case is good. First, because the debt sought to be attached is not such a debt due to the defendant as is contemplated by the Act of Assembly authorizing the writ of execution attachment to issue. The charter of the Lycoming Fire Insurance Company is a part of every contract of insurance it enters into. By its charter this company cannot levy and collect assessments from its members for the purpose of increasing its cash balance, nor for any other purpose than that therein prescribed, viz.: to pay losses and incidental expenses. The company, as a corporation, cannot do as they please with the fruits of such assessments ; they are mere trustees, whose duties it is to ascertain from time to time the amounts of money to be raised, to ratably assess the same on its members, and, when collected, appropriate the money to the persons and purposes for which it was raised. They can only make such assessments for certain purposes, and, when collected, they cannot use the money for any other purpose. The assessments due from these garnishees are, therefore, not due to the defendant in its own right, although, collectible in its name, but belong to those policy-holders who have suffered the losses for which it was laid. As has been said by our Supreme Court, they have an immediate vested interest in them: Rhinehart v. Allegheny County Mutual Insurance Company, 1 Barr 359 ; Coston v. Same, Id. 322.
    “But another reason why this writ will not lie in this case is, because a remedy for the payment of this debt is provided by the charter of the company and it must be pursued. The charter provides that debts of this kind shall be paid by assessments to be levied on the premium notes of those persons who are members of the company at the time of the happening of such loss. In all cases where a remedy is provided or duty enjoined or anything directed to be done by any act or acts of Assembly of this Commonwealth the said act shall be strictly pursued,” &c.: Act of March 21st 1806, Purdon’s Digest, p. 58, pi. 5. That such remedy is exclusive is held in Koch v. Williams-port Water Company, 15 P. F. S. 288, and many other eases.
    “ If this company should neglect or refuse to make and collect assessments to meet its losses, it could be compelled by mandamus to do its duty in this regard. If it should attempt to use such funds when collected for any other than the purposes for which they were raised, it could be enjoined from so doing at the suit of any one interested. Thus we find the remedy provided is ample; and that it is appropriate and should be strictly pursued becomes apparent when we consider the rights of all the parties in the premises. In the People’s Fire Insurance Company v. Iiartsliorne & Co., 9 Norris 470, Mr. Justice Sterrett, in delivering the opinion of the court, says: “ The essential principle on which mutual insurance companies are oi’ganized, is that each member will pay his proportionate share of expenses incurred and losses which happen during the period of his membership.” From this it follows that members of such companies are not liable for losses which occurred before they became members, nor after they ceased to be such. They ought not to be compelled by any process of law to pay any portion of a loss for which they are not liable as a member.

      “If an execution attachment be issued as in this case, members may be compelled to pay for losses which otherwise they ought not to pay. If these assessments can be appropriated to the payment of the debt of any one who may attach them, they may be so reduced that they will not pay the debts for which they were assessed. These assessments are laid for a sufficient sum to pay the debts for which certain members are liable; if they are diverted to the payment of other debts for which those members are not liable, how is this deficiency to be made up ? What authority of law is there to compel these members to pay more than their proportionate share of losses and expenses incurred during their membership ?
    “ Unless the remedy provided by the charter is pursued in the payment of such debts as the one now before us, some members of the company will be compelled to pay claims they ought not to pay, whilst others will be released from the payment of such as they should pay.
    “ What I have said as to those garnishees who are members of the company, applies with equal force to the garnishee Henry ■ W. Watson, Esq.; and besides, as to him it may well be said that the funds in his hands are in the hands of the company. If these assessments are not subject to the writ of execution attachment in this case for either of the reasons assigned, it is of no importance that one of them was laid to cover losses including the one on which the plaintiffs judgment is founded.
    “ 1 am of opinion that the plea of the defendant is sustained by the law and facts in this case, and it is now ordered that judgment be entered thereon in favor of the defendant.”
    The plaintiff took this writ of error, assigning for error the sustaining of the defendant’s plea, and the entering of judgment thereon in favor of the defendant.

      C. La Rue Munson (with him Addison Candor and Samuel Wagner), for the plaintiff in error.
    — The act of June 16th 1836, Pamph. L. 767, provides that, “ debts due to defendant .... may be attached and levied in satisfaction of the judgment.” The unpaid assessments levied on premium notes given by the garnishees to the defendant were debts. The premium notes of a mutual insurance company constitute its capital stock, and assessments levied thereon are the same as unpaid subscriptions to capital stock, which are attachable as are other debts: Rhinehart v. Allegheny Co. Mut. Ins. Co., 1 Barr 359; Osgood v. Strauss 65 Barb. (N. Y.) 383; Paterson v. Sinclair, 2 Norris 250 ; King v. Elliott, 13 Miss. 428.
    The loss in this case was upon a cash policy, under which, by the terms of the amended charter, the insured did not become a member of the company, and he was not therefore bound to pursue the remedy prescribed in the original charter to be followed by members of the company insured on the mutual plan. There was no appropriation of the assessments to particular losses; neither the creditor members nor the garnishees had been notified of any such appropriation, and even if intended to have been made by the company, they cannot set it up against a judgment creditor under a cash policy. The court below confused the position of the plaintiff with that of a member of a mutual company who also holds a cash policy, as was the case in Schimpf v. Lehigh Valley Ins. Co., 5 Norris 377. But the distinction was clearly recognized in that case. The funds in the hands of the agent, Watson, were attachable, in the same manner as money of a client in the hands of an attorney, or held by an assignee for benefit of creditors under a void assignment, or in the hands of a messenger: Riley v. Hirst, 2 Barr 346 ; Stewart v. McMinn, 5 W. & S. 100 ; Driesbach v. Becker, 10 Cas. 152; Silverwood v. Bellas, 8 Watts 420 ; Reed v. Penrose, 12 Casey 214. The case is not like that of Foweer v. R. R. Co., 11 Casey 22, where it was held that the proceeds of railroad tickets in the hands of the ticket agent are in the possession of the company itself, and therefore not attachable. In State Fire & Marine Ins. Co. v. Oglesby, 1 Pearson’s Decisions, 152, Judge Pearson held that funds in the hands of the agent of an insurance company were attachable.

      Henry W. Watson (Henry Johnson with him), for the defendant in error.
    The judgment was obtained' on a negotiable instrument which the corporation defendant had no power, under. their charter to issue. The indorsee took with notice, and the judgment will not support an attachment execution. But the assessments attached are not “ debts due the defendant ” within the meaning of the Act. They were levied for the purpose'of paying particular prior losses, and were appropriated thereto. They belong not to the company but todhose policyholders who suffered the losses for which the assessments were laid: Watson v. Bagaley, 2 Jones 167; United States v. Vaughan, 3 Binn. 400 ; Sharpless v. Welsh, 4 Dallas 279. A creditor under a policy, whether on the cash or mutual plan, is bound by the provisions of the charter relating to losses, and must pursue the remedy there given: Koch v. Williamsport Water Company, 15 P. F. Smith 288.
    June 13th 1881.
   Mr. Justice Gordon

delivered the opinion of the court,

By the act of Assembly, approved May 1st 1861, the company defendant was empowered to insure the property of others than members of the company* and it was, by this act. provided, that the insurance thus effected should not entitle the assured to the rights of membership nor subject them to the payment of assessments.

There was, as to this class of assured persons, a departure from the mutual, and an adoption of the stock plan of insurance, and for this purpose the premium notes held by the company represented its capital stock: Rhinehart v. The Insurance Co., 1 Barr 359. If, however, such be the case, then, whenever, by assessment regularly made, the whole or any part of such notes becomes due, there is such an indebtedness in favor of the company as may be attached by any of its creditors other than those of its own members, who must, perhaps, be confined, in the collection of their debts, to the method pointed out by the charter and by-laws of the corporation.

In Peterson v. Sinclair, 2 Nor. 250, as in several cases therein cited, it was held that a balance due on a subscription to the stock of a corporation was attachable, as other debts. In the present case, when the assessments on the premium notes were levied, a certain percentage of the stock of the .company became due and payable; and we cannot see why such a debt-could not be attached by an outside creditor, as: well as the balance due on an ordinary stock subscription.

The mistake made in the court below was in treating the case as though the plaintiff was a member of the company, whereas it had nothing more to do with the company than has one, who is insured in a joint stock association, to do with the affairs of such association. He is therein interested to the amount of his assurance, and no further. If he meets with a loss ho requires payment, but he can require nothing more, and it is none of his concern how the money is raised by'which he is paid. If payment is refused he must' pursue his ordinary legal remedies, arid to him attaches none of either the rights or disabilities of membership. It is true, that the charter of this company provides that assessments on premium notes may be made to pay its losses ; but what has the plaintiff to do with that ? It is said he might compel the officers of the corporation by mandamus to assess its premium notes. This might, indeed, be so, if any creditors of a corporation could compel the officers thereof by mandamus to collect the notes, stock subscriptions and other assets due it, in order to meet his demand, but not otherwise. But this is a process for the collection of corporate debts which is as yet novel and untried, and when tried, if ever such an attempt is made, will, in all probability, prove a failure. A member of the company might be entitled to a writ of this kind, but certainly a stranger can avail himself of no such process. What then remains? Here is a certain amount of money in the hands of one of the garnishees, and the others are debtors of the company by reason of assessments on their premium notes; therefore, as to those assured on the stock side of the company, the money thus in hand, and the money thus due, has been made from, or is due on, stock subscriptions, and, bence, tbe case falls within the rule of Peterson v. Sinclair..

Put it is said this assessment was made for a special purpose ; certainly, and that purpose was the payment of the debts of the company then outstanding, among which was that of the plaintiff, but for some reason or other it was not so appropriated. The loss of the railroad company was regularly adjusted and the usual certificate given, but this, when due, was not cashed, and tbe plaintiff was compelled to proceed to judgment and execution by attachment. Now, it is admitted' that the company is, or was, at the time of the trial of this case, solvent, hence, this contention is not complicated by the question of insolvency; neither is it denied that the premium notes held by the company were assessable for the payment of this debt, or that the assessment was lawfully made and partially paid into the hands of Mr. Watson, one of the garnishees. Here then, are found in the hands of these garnishees, money of, and debts due, the defendant, and why these are not attachable on an honest and regular judgment against this solvent corporation, is something which we cannot understand. Prima facie, the presumption is that the plaintiff is entitled to the ordinary legal process in order to make its money, and we do not think that either the reasoning of the court below, nor of the counsel for the defendant, has satisfactorily rebutted that presumption.

The judgment is reversed a procedendo is awarded.


text:
    Hill versus The Commonwealth.

      A. bam constituting part of the necessary buildings of a farm, and although not adjoining nor connected with the dwelling-house thereon, yet so situate that its destruction by fire would endanger the said dwelling-house, is a bam “belonging” to the dwelling-house within the meaning of section 137 of the Penal Code, and the setting fire thereto consequently constitutes the offense of felonious arson under said section.
    May 31st 1881. Before Siiarswood, C. J\, Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Oyer and Terminer of Lyeonvmg county: Of May Term 1881, No. 96.
    Charles Hill was arraigned at March sessions 1879, of the said Court of Oyer and Terminer upon a charge of arson. Plea, not guilty.
    The indictment contained three counts. The first charged him with feloniously, maliciously and voluntarily burning a barn belonging to the dwelling-house; the second count with feloniously, maliciously and voluntarily burning a barn, pa/reel of a dwelling-house; the third with feloniously, willfully and maliciously burning a barn containing hay and grain.
    Verdict, guilty in manner and form as indicted. The prisoner was sentenced to pay a fine of $500 and the costs of prosecution, and to imprisonment in the state penitentiary for the Eastern District of Pennsylvania for the period of ten years.
    Owing to the poverty of the prisoner, the testimony, charge of the court, &c., were not printed. The only specification of error was as follows:
    The court erred in their answer as aforesaid to the defendant’s point, which point was as follows :
    “ The defendant’s counsel requests the court to charge the jury that if they believe from the evidence that the barn mentioned in the indictment was located at some distance from the dwelling-house, not adjoining nor parcel thereof, nor connected therewith by any intervening structure, and that the dwelling-house was not burned by the burning of the barn, the defendant cannot be convicted under this indictment.”
    And which the court answered as follows:
    “ We decline to charge you as requested in this point. We say to you that if you find that the barn which was destroyed was a part of the necessary buildings used on the Barclay farm, and was so situated that its destruction by fire would endanger the dwelling-house on the same premises, then the barn ‘belonged to’ the dwelling-house, as contemplated by the 137th section of our penal code, and as set forth in this indictment.”

      Olinton Lloyds, for the plaintiff in error.
    There is a clear' distinction between the offenses set forth in the 137th and 138th sections of the penal code (Purd. Dig. 353, pi. 196, 197), which' the learned judge failed to observe. If the defendant was guilty at all, it was of the offense set forth in the 138th section, which makes the act therein mentioned a misdemeanor and not a felony; yet he was charged in "all three of the counts with having committed a felony, and was found guilty generally. On conviction for felony, the defendant is debarred from being a witness in his own behalf; not so, on conviction for a misd<> meanor. The fact must be assumed, as stated in the point, that the barn burned was located at some distance from the dwelling-house, and was not parcel thereof. This brings, the offense clearly within the 138th section. It is argued that the offense was a felony at the common law; but the prosecuting attorney did not proceed according to the common law, but under the statute. There is no punishment at common law of “ imprisonment in the state penitentiary for the Eastern District of Pennsylvania for the period of ten years.” I contend that the statute supplanted the old common law offense altogether.

      John J. Reardon and J. J. Metzger, for the defendant in error.
    The barn “ belonged to ” a dwelling-house, and thus came within the second category mentioned in the 137th section of the penal code. The fact that the dwelling-house was not burned does not take the offence out of that category ; for the words “ by means whereof a dwelling-house may be burned ” apply only to “ any other building,” mentioned in the third classification.
    But if the contention on the other side is right, that the defendant was not properly indicted under the 137th section, then he was properly convicted under the third count of the indictment, because the offense there charged is one at common law, and his sentence did not exceed the maximum for which that offence was punishable: Wharton’s Criminal Law 107, section 825 (8th edition); Sampson v. Commonwealth, 5 W. & S. 385. If either of the counts was valid, the presumption is that the sentence was founded upon that one.
    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

The single assignment of errror in this case involves the proper construction of the 137th section of the penal code. The plaintiff in error was convicted of arson in setting fire to a barn. Upon the trial below his counsel asked'the court to instruct the jury “ that if they believe from the evidence that the barn mentioned in the indictment was located at some distance from the dwelling-house, not adjoining nor parcel thereof, nor connected therewith by any intervening structure, and that the dwelling-house was not burned by the burning of the barn, the defendant cannot be convicted under this indictment.” The court answered the point as follows: “We decline to charge you as requested in this point. We say to you that if you find that the barn which was destroyed was a part of the necessary buildings used on the Barclay farm, and was so situated that its destruction by fire would endanger the dwelling-house on the same premises, then the barn belonged ’ to the dwelling-house as contemplated by the 137th section of our penal code.”

The dwelling-house was not burned, and it was contended that for this reason the plaintiff could not be properly convicted under the 137th section, which refers to felonious arson, but should have been indicted under the 138th section, which defines a lower grade of burning and punishes it as a misdemeanor only.

A careful consideration of the 137th section leads us to the conclusion that the learned judge of the court below was correct in his ruling. The section referred to defines and punishes three classes of felonious arson, viz.: 1. The burning of or setting-fire to any factory, mill or dwelling-house of another; 2. The burning of or setting fire to any kitchen, shop, barn, stable or other outhouse that is parcel of such dwelling, or belonging, or adjoining thereto; and, 3. The setting fire to or burning of any other building by means whereof a dwelling-house shall' be burned. In the cases mentioned in the last class, viz.: “ any other building,” that is to say, other than those enumerated-in the first and second classes, it would be necessary, in order to convict, to aver and prove that a dwelling-house had been burned by means of the particular act charged against the defendant. It is manifest the words “ by means whereof a dwelling-house shall be burned,” have no application to the first class, as dwelling houses are included in that' class. We think it equally clear that they do not apply to the second class. This class comprises only such buildings the burning of which by reason of their proximity to a dwelling-house would endanger the safety of the latter. They must be “parcel of such dwelling or belonging or adjoining thereto.” This language is explicit. The legislature have employed apt words to express their meaning. It was intended to reach just such a case as this. As farm buildings are constructed in this state it is seldom the barn adjoins the house; it may not even be parcel of it; but the word “ belonging ” is comprehensive, and includes all barns so near a dwelling-house on the same premises as to endanger the safety of such house in case of fire. The burning of any building so situated as to endanger a dwelling-house was felonious arson at common law: Wharton’s Criminal Law (8th ed.) § 825. This was always a serious offense, and we are not to presume, in the absence of such clearly expressed intent, that the legislature intended to reduce it to the grade of a misdemeanor.

This view is not in conflict with the 138th section, which makes the burning of barns, stables and other buildings not parcel of a dwelling house, a misdemeanor. This section was manifestly intended to provide for the burning of a barn that is not parcel of a dwelling-house, nor belonging, nor adjoining thereto, and which is so situated as not to endanger a dwelling-house. Thus considered the two sections are harmonious.

Judgment affirmed.