text:
    WESTMORELAND COUNTY.
    October and November Term, 1884,
    No. 172.
    October 10, 1884.
    Brewer v. Scott et al.

    1. It cannot be declared to be negligence in an employer to put a person within two months of the age of fourteen, of ordinary intelligence and of greater than ordinary size and strength, at work in a place where machinery is used in labor adapted to his age.

      2. The act of 24th May, 1878, (P. L., p. 119,) providing that “ any person having the care, custody, or control of any minor child, under the age of fifteen, or who shall take, receive, or employ such minors for begging, or any obscene, indecent, or illegal exhibition or vocation, or any vocation injurious to the health, or dangerous to the life or limb of such child engaged therein, or for the purpose of prostitution, or any person who shall retain, harbor, or employ any minor child in or about any assignation house or brothel, shall be deemed guilty of a misdemeanor, and, upon conviction, thereof before any justice of the peace, magistrate, or court of record, shall be fined not less than fifty dollars, nor more than one hundred dollars, for each and every offense,” is not applicable to this kind of employment.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ.; Green, J., absent.
    Error to the Court of Common Pleas of Westmoreland County.

      ■ Trespass on the case by John Brewer by his mother and next frie'nd, Susan Brewer, against John Scott, D. A. Stewart, Thomas Carnegie, and Andrew Carnegie, who survived William Coleman, David McCandless, and A. J. Crossland, deceased, parties trading as the £< J. Edgar Thompson Steel Works Company,” to recover damages for an injury sustained by alleged negligence of defendants. Plea_, “not guilty.”•
    On the trial, the following facts appeared :
    The plaintiff, John Brewer, was employed in March, 1880, by the defendants, who are the owners of the Monastery Coke Works, near Latrobe, Westmoreland county, to work in their coke yards. A crushing machine was used at the works for the purpose of breaking or crushing coal. At the time of the accident, the plaintiff was thirteen years, eight months, and ten days old. His height was over six feet, his weight one hundred and forty-four pounds, and his wages eighty-five cents a day.
    The plaintiff testified, inter alia:

    “I lost this arm in the tipple. The tipple was at the mouth of the mines. It was either my third or fourth day, I cannot say which. I cannot say how wide the place I was working in was. I think, maybe, about eighteen, maybe twenty, inches, or a little more, I cannot tell exactly. I cannot say exactly how deep it was below the top of'the ground, about two and a half feet, I would suppose. I do not know exactly how long. I was sitting on my knees. I was to keep the place from clogging whenever there would be a big lump get in the place where it went down through. I had to break it with an iron poker to keep the lumps small enough, so they would go down through.. I reached over to break a lump of coal, and my coat caught over the spider wheel. You might call it the spider wheel. When I tried to throw my coat off, in trying to throw it off, it caught my hand. My arm is off just below the elbow. It most certainly was a dangerous place. I had to work with torch-light. It was dark in there ; torch-light, a large lamp, you may say.”
    Upon cross-examination, he said :
    ‘ ‘ I did not think it was dangerous as soon as I went. If I had I would not have gone in. I discovered it was dangerous after I was hurt. I could not help but see it when I was in there. Still I did not think there was much danger ; not at that time. When I went there at first I did not think there was any danger. I did not think it was a very safe place, but I did not think there was much danger. There was a log that the wheel worked on, the log that the wheel run in the inside of. I was about six or eight inches from the wheel. John Taylor and William Hartzell worked in there. That is two parties that I know worked in there. I never knew of anybody else hurt there. I cannot tell you how old this Hartzell boy was. I think he was older than me. I was to kneel on my knees right beside that log. At the time I‘ was hurt I was not sitting on the log. I did not tell young Hartzell that I was sitting upon that log. The log was between me and the wheel. The log was about six or eight inches thick. I was on the opposite side of the log from the wheel. I went to strike, and my coat flew out that way and it caught me. My position there was to break any big lump that would clog in there. I had in my hand to do it with a middling long iron rod, something like three feet long, or maybe a little more. I would punch the coal with that.” '

    John Taylor, an employé of defendants, testified for plaintiff, inter'alia:

    ‘ ‘ It was not a fit place for a boy to work. I think it would take a man to mind himself that he did not get hurt in a place of that kind. * * * It was a very narrow place, I suppose not over two feet, probably a little more than that. It was a dangerous place.”
    George Lawson, for plaintiff and also an employé, testified :
    “I do not think it was a dangerous place to work for any person who had any judgment about them. I do not think it was any more dangerous than any other place about the works. I had been in there before the boy Brewer got hurt; * * * I did not feel anyways alarmed about it. * * * I would not want a boy of mine to go in there, because a boy has not always the same judgment as a man has.”
    Casper Adams, another employé, called for the plaintiff, testified:
    “ I was acquainted with that piece of machinery before the accident occurred. I put it there. I would not think it was dangerous with proper care.

      Q. How would it be for a boy %

      A. With proper care, for a boy it would be the same as a man, to my notion.

      Q. Do you think it was safe to put a boy in there to work ?

      A. I cannot tell you for that, if the boy was put there, if he took care. I do not think there was any danger. If he was careful, I do not think there would b.e any danger.”
    William Kelley, who was also an employé, testified under plaintiff’s call:
    “I do not think it was any more dangerous than in any other places of the same kind about the works, if the boy was careful.

      Q. But for a boy of that age ?

      A. Well, I thin!?; that, of course, a boy is always thoughtless and careless. If he did not attend to his work, he might possibly be caught.”
    There was no attempt to show that defendants’ machinery was defective or out of repair, or that any negligent act, contributing to the plaintiff’s injury, had been committed by any of the defendants or their agents.
    Roll Slater, E. W. Householder, George Sander, George Stader, all employés of defendants, and called by them, testified that there was no more danger at the work in which the plaintiff was engaged than in any other about such an industry.
    ,Wm. Hartzell testified, inter alia, as follows :
    “In March, 1880, I was working where Brewer was, where Brewer got hurt. I was employed in that position. I was seventeen past, then. The day that he got hurt I told him about getting hurt. There was a place down, anyhow three feet, between this log and the outside for him to sit in. He was sitting right on the log that way, and every time he would punch back his arm, would hit the elevator. I saw him, and I told him about it. I said, “You will get hurt.” He said he did not care a damn whether he would or wouldn’t. That was, maybe, four or five minutes before he got hurt, or maybe not that long. That was not a dangerous place to work in unless you made it so. I could have worked in there for years and never got a scratch. If he wanted to make it dangerous, certainly it was dangerous, like any other machinery.”
    E. W„ Householder testified:
    “I asked the boy how he got hurt. He told me he had caught those eievators two or three times with his hand, and had stopped them, and he caught them this time and they did not stop, and he got his hand caught.”
    The plaintiff offered in evidence the act of 24th of May, 1878, section two (P. L., 119).
    The Court charged the jury that “under all the evidence, your verdict should be for the defendants.”
    Verdict accordingly for defendants and judgment thereon ; whereupon, plaintiff took this writ, assigning for error the action of the Court in directing the jury to find a verdict for the defendants, and in not submitting to the jury as a fact the question of defendants’ negligence.

      Edgar Oowan and Luden W. Doty for plaintiff in error.
    The question of defendant’s negligence ought to have been submitted to the jury. This is the general rule governing cases of this kind : Humphreys ». Reed, 6 Whart., 435 ; Hydraulic Works Company ». Orr, 83 Pa. St. Rep., 332 ; Fritsch ». Allegheny, 91 Pa. St. Rep., 226 ; McKee n. Bidwell, 74 Pa. St., 218; McCully •». Clarke, 40 Id., 399.
    The learned judge held the infant plaintiff to the same care and discretion as would have been required of an adult. It was said in effect that a child of thirteen years of age is bound to take the risks of any employment in which he may engage. This is going further than any case to be found in the books. Blackstone, Vol. I, p. 435, fixes,fourteen as the age of discretion in males. Under seven years, an infant cannot be guilty of a felony. Between seven and fourteen, the requisite discretion may be present or wanting — the standard is not fixed. His responsibility depends on circumstances, and whenever the standard of the degree of care is not fixed, wherever the duty is variable, the question is for the jury and not for the Court: Smith n. O’Connor, 48 Pa. St'., 218 ; Pennsylvania R. R. Co. •». Kelly, 31 Pa. St., 372; Oakland Ry. Co. «. Fielding, 48 Pa. St., 320; Philadelphia City Passenger R. R. Co. t>. Hassard, 75 Pa. St., 367.
    Under the conflicting evidence in this case, it was a question for the jury whether or not the employment was a dangerous one. If dangerous, the defendants in employing a minor under the age of fifteen were guilty of a misdemeanor — act of 24th May, 1878, (P. L., p. 119.) They were doing an illegal act, and if by their wrongful act they did injury to the plaintiff, they ought to be responsible in damages. The cupidity of corporations and large operators induces them, in violation of law, to employ mere children in the most hazardous and dangerous employments, and the only protection for society and the children of poor parents is to hold such employers to the strictest accountability for any injury done for such violation of law.

      J. A. Marchand and John F. Wentling for defendants in error.
    The rule laid down by the plaintiff in error as to when the question of negligence should be submitted to the jury, is entirely too general, and not within the scope of the evidence and circumstances in this case: Reading R. R. Co. v. Heil, 5 W. N. C., 93; Honer v. Albrighton, 8 W.N. C., 295.
    Before the jury can be allowed to determine the case, the plaintiff must show culpable negligence on the part of the defendants, just as in the cases cited by the plaintiff in error, and so much relied on, namely: 48 and 75 Pennsylvania State Reports, pages 320-367; and in cases of injury to children unless this is first shown, the incapacity of the child cannot be considered by the jury: Kay «. Pennsylvania R. R. Co., 65 Pa. St., 276 ; Reading R. R. Co. v. Hummell, 44 Pa. St., 377; Nagle v. Allegheny Valley R. R. Co., 88 Pa. St., 39.
    The act of 24th May, 1878, cited by plaintiff, only applies to masters of apprentices, guardians, fathers, and such “ having the care, custody, and control of children,” 'and not the employers thereof, such as the defendants, for a time to be agreed upon by the parties. And still further, this act cannot be intended to fix the age at which children can be employed in dangerous legitimate pursuits of life, unless it repeals the tenth section of the act of the 3d of March, 1870, which we think it does not do, found in Purd. Dig., page 1070, where the age of a boy is fixed at twelve years, when he can. ‘ ‘ work or enter a coal mine.” Therefore, under all the evidence and circumstances in the case, we think the Court was clearly right in directing a verdict for the defendants.
    October 20th, 1884.
   Per Curiam:

The act of 24th May, 1878, P. L., 119, is not applicable to the kind of employment in which the plaintiff was engaged. It cannot be declared-to be negligence in an employer to put a person of the age and size of the plaintiff, at work in a place where machinery is used. The labor which he was performing was adapted to one of his age. Other boys had done the same kind of work without being injured. The use of all kinds of machinery may result in possible injury to one at work near by. It is not, however, within such reasonable probability as to hold the employer guilty of negligence by reason of the age of the plaintiff. The machinery was not defective nor out of repair. There was no negligent act of the defendants or their superintendents which contributed to the injury. There was some evidence of negligence on the part of the plaintiff-.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    October and November Term, 1884,
    No. 1.
    October 6, 1884.
    Craig et al. v. Harbison et al.

    1. In an action of ejectment, it was left to the jury to find, whether defendant’s ancestor held possession under a gift by parol to him, and therefore adversely so as to give title under the Statute of Limitations, or whether his possession was that of his wife under whom the plaintiffs claimed.
    The defendants asked the Court to charge: “ The real question for the jury is not what the donor, Moorhead, intended, but what Craig’s understanding was, what he claimed and did. Did Craig (the ancestor) consider the gift absolute, and under that idea did he hold adversely to Moorhead for the period of twenty-one years ? If he did, that is an end of this'question of title, and you must find for the defendants.”
    The Court charged: “This point is affirmed if the jury is satisfied, from the evidence, that Craig had a right to understand, from the ■language and acts of Moorhead at the time, that the gift was to him. If lie so understood and claimed it accordingly as his own, and not as his wife’s, his possession would be adverse, and if continued for the requisite period, the Statute of Limitations would create and protect a title in him.” Held, not to be error.
    2. The alleged donee should not be permitted without evidence or reason to understand the gift was made to him.
    3. The language and acts should be such as to satisfy the jury that the conclusion claimed by him was a reasonable one.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Westmoreland County.

      Ejectment brought February 5, 1878, by Nancy Graham, David Harbison, and Rebecca Jane, his wife, in her right, against Sybilla Craig and others, to recover a tract of land in Derry township, Westmoreland county.
    At the trial before Blair, P. J., the following facts appeared :
    In 1828, and prior thereto, Samuel Moorhead was the owner of the land in dispute. He had a daughter, Rebecca, the wife of Alexander Craig. In 1838, Rebecca died, leaving a husband and four children : Nancy, who, in 1850, married James Graham, Elizabeth, John, who died in his minority without issue, and Rebecca Jane, married to David Harbison. Plaintiffs’ counsel offered in evidence the will of Samuel Moorhead, dated August 14, 1845, and probated March 10, 1853, by which he devised the land in dispute, as follows: “ To my daughter, Rebecca, I will the Trimble farm, and as much of the Ca-hill farm as will give water in Magee's run.”
    The plaintiffs then rested.
    Defendants’ counsel offered in evidence a letter from Samuel Moorhead to Alexander Craig, dated March 20, 1828, and recorded, which was as follows:
    “Sir: I understand that you were lately at my house, wishing to see me. I also understand that you have some thoughts of changing your place of residence. I have, for some time past, thought of giving you a mill-seat it is said I have on Magee’s run, if it would suit you to improve it. It might be worth your while to come over when a convenient time offers, and I will show it to you, and we can then have more conference on the subject than it would be convenient for me to commit to writing.
    Yours, &c.,
    Samuel Moorhead.”
    The defendants also offered evidence showing that Craig took possession of the land shortly after the letter was Avritten, and continued in possession until September 10, 1869, when he died, leaving children by a second wife, who are, inter alia, the defendants in this action.
    Andrew Carney, for the defendants, testified, inter alia:

    “I rented from Alexander Craig, and lived on his farm three or four years. It was from the years 1830 and 1834.
    One day I Avas working at the stable fixing up the fence; Mr. Moorhead came past the stable and Avent to the house; he was but a little bit in when he, Moorhead, Mr. Craig- and Mr. Shields came out; Mr. Craig requested me to fetch the axe and go with them, which I did ; went right up the race to the head, or near the head, of the dam ; Mr. Moorhead and Mr. Craig were ahead, and I followed; Mr. Moorhead and Mr. Craig were down in the hollow and I was on the hill about two rods above them; Mr. Moorhead then pointed to a hickory ; he said that would answer for a corner without going to mark it; the hickory was at the fence on Hill’s line; Mr. Moorhead then told me to mark a w’hite oak that I was standing at; I marked the white oak by blazing it; he then came up out of the hollow, walked on the course he wanted the line, and when he came to a tree he got me to mark it; I must have marked a dozen of trees; Mr. Moorhead told me to notch the tree. I saw a stump last Sunday that I thought was the stump of that tree; I am not certain. ‘From this line to the ridge what I own I give to Aleck,’ he always called Mr. Craig ‘Aleck.’ I was about turning to go to my work; no one called me back, but just as I was about starting, he spoke these words; I then went to my work and they went to the house. I think it was in ’33 that we blazed these trees and marked the corners. I stayed with Mr. Craig about six months after this as a tenant; Mr. Craig continued to live on there.”
    After Craig took possession of the land and made improvements on it, he exercised acts of ownership by building houses on the land and renting them, cutting timber, and by selling portions of it in the lifetime of Moorhead.
    The land was assessed in the name of Alexander Craig, and he paid the taxes and cleared about 100 acres. He built a house, stable, woolen-mill, saw-mill, tenant house, and shop on the land. •
    S. L. Gforgas, for the plaintiffs, testified, inter alia:

    “Craig called this Rebecca’s farm.”
    Peter Hamill, for plaintiffs, testified that he bought a certain portion of the tract, taking a deed from Moor-head.
    “I got this tract with Mrs. Craig’s consent. She was anxious I should buy it. I went to her. Mr. Craig was along when I was talking to her about it. Mrs. Craig claimed this land as her patrimony from her father, when he (Craig) was present.” There was other testimony of like import.-
    The plaintiff presented, inter alia, the following point:

      Third. The gift to Rebecca in this case, though not such an one, perhaps, as a chancellor would decree specific performance upon’ as against her father, Samuel Moorhead, is, as to all the world beside, a valid gift, and, confirmed and perfected by his last will and testament, is gQod to give to her husband an estate for life by the courtesy at her death, and to her children an estate of in •' heritance.

      Answer. It is for the jury to say to whom Mr. Moor-head made the gift. The plaintiffs would have a title under the will, upon which they might recover, unless Alexander Craig and those claiming under him have acquired a title under the Statute of Limitations.
    Exception. (First assignment of error.)
    The defendants presented, inter alia, the following points:

      Third. The real question for the jury is, not what the donor, Moorheaj, intended, but what Craig’s understanding was, what he claimed and did. Did Craig consider the gift absolute, and under that idea did he hold adversely to Moorhead for the period of twenty-one years % If he did, that is an end of this question of title, and you must find for the defendants.

      Answer. This point is affirmed, if the jury is satisfied from the evidence that Craig had a right to understand, from the language and acts of Moorhead, at the time, that the gift was to him. If he so understood and claimed it accordingly as his own and not as his wife’s, his possession would be adverse, and if continued for the requisite-period, the Statue of Limitations would create and pro-tect a title in him.
    (Second assignment of error.)

      Fourth. The devise to Rebecca Craig, if she had been living at the death of the testator, would have created an estate tail in her. She being dead, the devise was void and inoperative.

      Answer. This point is refused.
    (Third assignment of error.)
    The Court charged the jury, inter alia, as follows:
    [“The only paper title that has been shown here is the one vested by virtue of the will of Samuel Moorhead in his daughter Rebecca. This would give Rebecca, and her heirs after her death, the right to the land.]
    (Fourth assignment.) - '

    [“These two plaintiffs, Nancy Graham and Rebecca jane Harbison, being children of Rebecca Craig, who was the devisee of Samuel Moorhead, have, prima facie, a right to recover in this action, unless the defendants have shown some good reason to prevent such a recovery.]
    (Sixth assignment.)
    “That brings you to the consideration of the important point in this case. The defendants claim that they are the owners of this land under the Statute of Limitations. Whether they have acquired a title under the Statute of Limitations is a question for you to determine under the evidence ; and this may depend largely upon what you find to have been the nature of the entry by Alexander Craig upon the land in controversy here. It is claimed by defendants that he- entered under a gift of Samuel Moorhead’s, as evidenced, in part, at least, by a letter written by Samuel Moorhead to him, and dated in 1828. They claim that he went upon this land in pursuance of the letter and under acts and conduct of Sam uel Moor-head, evincive of a gift on his part to Mr. Craig ; and that since that time he has been in possession of the land, paying the taxes and making improvements, and continuing possession from 1828 down to 1869, the time of his death. The plaintiffs, on the other hand, contend that he and his wife went into possession upon a gift of Samuel Moor-head to his daughter Rebecca ; and they contend that Alexander Craig did not claim to own the land in his own right, but held it in subserviency to the title of Samuel Moorhead, or in recognition of the gift that had been made by Moorhead to his daughter Rebecca. A person may acquire a valid title to land under the Statute of Limitations — a title, not only upon which such person could defend successfully in an action of ejectment brought against him, but a title upon which he may recover possession. The object of the statute was repose and quietness of title; to prevent litigation after the lapse of a period of twenty-one years, and to make people feel secure in their title and possession, and thus encourage improvements. When a person, however, sets up a title under the Statute of Limitations, it is his duty to establish all the elements necessary to constitute such a title. It must appear that he has been in the actual, visible, distinct, continuous, and adverse possession of the land for a period of twenty-one years — when the circumstances of the case are such that a period of twenty-one years is the time necessary to confer a title. The quality in the possession of Alexander Craig, which is assailed here, is its want of hostility, as alleged, to the title of Samuel Moorhead, and those claiming under his will. We have already said to you that a claim, in order to become a valid claim, or right, under the statute, must be adverse. That is to say, the party claiming title under the Statute of Limitations must be claiming the land as his own, and not for, or on account of, any other person. He must claim for himself. If he does that, and maintains his possession for the period of twenty- one years, and especially where he makes improvements and pays the taxes, the law would vest a title in him. But when the possession is not adverse, but in allegiance to the title of a superior, or in recognition of the title of somebody else as the owner, then his possession will not operate to confer title upon him as against the true owner of the land. The law deems it the duty of the owner of land' to make an entry upon it, or to bring an action for its recovery within the period of twenty-one years when in the adverse possession of another, and upon his neglect or failure to do so, his right to recovery will be determined or at an end. He cannot recover after the lapse of that time; and there is no hardship in that, where he knows, or has reason to know, that another person is claiming his land adversely ; but, if holding it under or subject to him, it is otherwise, because he would then have no reason to believe that his title was assailed. But when he sees another in the occupancy of his land, appearing to claim the ownership of it, and continuing to exercise acts of ownership over it for the period o.f twenty-one years, then, unless he moves and asserts his rights within that period, either by making an entry upon the land or by bringing an action of ejectment and recovering it before the statute has closed upon his title, the neglect is his, and his right is lost. What was the nature of the claim that Alexander Craig set up to this land ? Was it adverse to the rights of Samuel Moorhead? Or, in other words, [was Alexander Craig claiming this land for himself ? If so, and he continued his possession — his adverse possession — for the period of twenty-one years, from 1828 up to 1853, the time of the death of Samuel Moorhead, he would have a good title under the Statute of Limitations. If, however, his claim was not adverse, but in recognition of the title of Moorhead, or in recognition of the fact that the gift was to his wife, then his possession would not be adverse, and he could not obtain a title under the Statute of Limitations.]”
    (Fifth assignment.)
    February 21, 1882, verdict for the plaintiffs for the undivided two thirds of the premises, with six cents damages and costs, upon which judgment was subsequently entered. The defendants thereupon took this writ, assigning errors a*s above.

      II. P. Laird and W. H. Klingensmifh for plaintiffs in error.

      The defendants’ third point should have been affirmed, but the court below parried its effects by saying: “If the jury is satisfied from the evidence that Craig had a right to understand from the language and acts of Moorhead, at the time, that the gift was to him.” The question was one of adverse holding against Moorhead. The Supreme Court said, in Campbell ®. Braden, that the real question was not so much what was intended by the donor, as what the donee’s understanding was, what he claimed and did. Did he consider the gift absolute, and under that idea did he hold adversely % This was the law as laid down by th¿ Supreme Court, but the court below diverted the attention of the jury from this vital question to. another and different question, namely: Whether Craig had a right to understand that the gift was to him. This was in effect to say to the jury: “ Craig may have claimed this land adversely for more than twenty-one years, under the belief that Moorhead had made to him an absolute gift, but such claim and adverse holding would not avail him unless you find from the evidence that he had a right to come to such a conclusion.” The vital question was whether Craig, in point of fact, held adversely to Moor-head’s title from the time of the donation. The court below say that is not the question for the jury, but that the question was whether he had the right to understand that the gift was to him : Campbell ®. Braden, 15 Norris, 390.

      Edgar Cowan, J. A. Marchand, and Hazlett & William's for defendants in error.
    The jury have found as a fact that the land was given to Mrs. Craig.
    What was Craig’s position if the gift was intended for his wife \ While she lived, he was tenant by the courtesy initiate. At her death, he was tenant by the courtesy of the freehold, and a trustee of the inheritance for the children of his deceased wife. As he had been before that a trustee for her in her lifetime, and as such trustee in possession, he could not in any event acquire in any way a title in himself'to the inheritance of his children, either by the Statute of Limitations or otherwise, without first restoring to them the possession of the land and disclaiming his title as tenant by the courtesy.
    The law forbade him to violate his trust by setting up an adverse possession, and if he had purchased an outstanding and better title, even that would have inured .to the benefit of the children of Rebecca: Hall®. Mathias, 4 W. & S., 331; Weaver ®. Wible, 25 Pa.. 270.

      October 20th, 1884.
   Per Curiam:

An examination of this record fails to sustain any assignment of error. The Court correctly held the evidence sufficient to establish a parol gift of the land to Rebecca V. Craig. The question of claim under the Statute of Limitations was properly presented to the jury. When carefully examined, there is no error in the answer to the third point submitted by the plaintiff in error. Craig should not be permitted, without evidence or reason, to understand the gift was made to him. The language and acts should be such as to satisfy the jury that the conclusion claimed by him was a reasonable one. That is the substance of the answer affirming the point. The jury could not have been misled thereby.

Judgment affirmed.


author: Sterkett, J.:

text:
    October and November Term, 1884,
    No. 13.
    October 6, 1884.
    Greenawalt v. Hamilton.
    1. After a submission to arbitrators, hearing and award by them, it is too late for one of the parties to withdraw the submission, though the award has not yet been filed.
    2. A special plea of a submission to arbitrators, whose decision should be final, and an award by them in favor of defendant, is good upon demurrer, though after the filing of the award, the case had been put on the trial list by consent, and there had been a verdict for the plaintiff, and a new trial granted by the Court.
    Before Merour, C. J.; Gordon, Paxson, Trtjnkey, Sterrett, Green, and Clark, JJ.
    Error.to the Court of Common Pleas of Westmoreland County.

      Assumpsit by A. C. Hamilton against Abraham Greenawalt.
    The facts, as they appeared from the record of the court below, were as follows :
    The case was on the trial list in February term, 1879. On February 17, 1879, by consent in open court, all matters at variance between the parties were referred to the arbitrament of John Armstrong, whose award was to bé final, without exception or appeal. On July 30, 1880, H. B. Kuhns, on motion, and by agreement of counsel, was appointed arbitrator with Armstrong. On August 21, 1880, the arbitrators met, and, after hearing evidence and argument, filed their award in favor of the defendant with costs of suit. Previous to the filing of the award, the following notice was served upon the arbitrators:
    “And now, to wit: August 21, 1880, the plaintiff by his attorneys, McAfee & Atkinson, withdraw the submission in the above case before the filing of the award.
    McAfee & Atkinson, AWys Plff.

    To Joi-in Armstrong, Esq., and H. B. Kuhns, Esq., Arbitrators.”
    The arbitrators appended this notice to their report with the following'note:
    ‘ ‘ The above paper was handed to us before filing our award on 21st August, 1880.”
    On March 22, 1881, the Court granted a rule to show cause why the case should not be placed upon the issue docket.
    On August 2, 1881, this rule was made absolute by consent. The case was continued from term to term, until June 10, 1882, wdien it was tried, and a verdict given in favor of the plantiff for $324 86. This verdict was set aside on July 22, 1882, and a new trial granted. When the case was again reached for trial on May 30, 1883, the defendant moved to amend the pleadings by fifing the following special plea:
    “And now, to wit: 30th May, 1883, comes the defendant, and for further plea in this behalf saith the plaintiff ought not further to have and maintain this action against him. For that whereas heretofore, to wit: February 17, 1879, it was agreed by the parties in open court and entered of record in the cause as follows :
    “February 17, 1879, by consent in open court all matters at variance between the parties in this cause referred to the arbitrament of John Armstrong, Esq., whose award shall be final and conclusive, without exception or appeal, arbitrator to fix his own fees, and to sit on ten days’ notice by either party. Exit.
    “And now, to wit: 30th July, 1880, on motion and by agreement, H. B. Kuhns, Esq., appointed an arbitrator with John Armstrong, Esq., heretofore appointed to meet on ten days’ notice. Exit. Per Curiam.
    “And whereas, afterwards the said arbitrators, having given due notice of their meeting in pursuance of the aforesaid submission, and having heard the parties, their proofs and allegations, did award and find for the defendant, all of which the said defendant is ready to verify.”

      To this plea the plaintiff demurred as follows :
    “And now, to wit: June 1, 1883, the plaintiff demurs to the plea of defendant filed June 1, A. D. 1883, for the reason that said plea was filed too late.”
    The Court, Hunter, P. J., sustained the demurrer, and ordered the case to proceed to trial, filing the following opinion:
    “We infer from the note of the arbitrators, made on the plaintiff’s paper, withdrawing the submission that it came to their hands after the case had been acted on and their award was ready to file. If so, it was too late: Johnson v. Andress, 5 Phil., 8; Wood v. Finn, 1 Clark, 396 ; Shisler «. Keavy, 75 Penn. St., 79. Other authorities might be cited. But the difficulty is that all along since the filing of the award with the withdrawal of the submission attached, the defendant has treated the award as not binding up until this special plea was filed, on the 22d of March, 1881. Seven months afterthe award was filed, the plaintiff took a rule to show cause why the case should not be placed on the issue docket, and on August 2, 1881, by consent, the rule was made absolute, thus treating the case at issue, for no case can go upon that docket unless at issue. Furthermore, the case came up for trial regularly at May term, 1882, and was tried on its merits and a verdict for the plaintiff for a certain sum. Defendants’ counsel thereupon moved for a new trial, which was granted, for reasons set forth in the opinion of the Court. During this time, costs have accumulated. For these reasons we think the plea now unavailable, and that the case should be tried on its merits before a jury. This we do with some hesitation, as the law does not favor, nor, indeed, suffer, the withdrawal of a submission by a party after an award has been made up against him, but the defendant, as we have seen, has treated the award as a nullity, and the parties are still in court by his own consent.”
    May 28, 1884, verdict for plaintiff for $500, and interest from April 24, 1884.
    The defendant thereupon took this writ, assigning for error the action of the Court in sustaining the demurrer of the plaintiff as above.

      Edgar Qowan and Alexander EieTier for plaintiff in error.
    The court below was in error—

      First. Because a party has a right to amend his pleas at any time before the trial, and as the first trial was a mis-trial, the plea was good before the second and final trial.- It is impossible to believe that the Court sustained the demurrer for the special cause assigned, and they, of course, as was right, looked into the whole record, in order to render such judgment as would be consistent with the rights of the parties.

      Second. In reviewing the record, the Court admits that the revocation was too late, and that the award was valid-And his Honor seems to think that the true difficulty resulted from both parties treating the award as a nullity. If so, then both parties were at fault. The plaintiff was at fault in seeking to get rid of the award by indirection instead of filing his exceptions, and moving to strike it from the record with the judgment upon it. He took a rule to show cause why it should not be placed on the issue docket, and it appears that rule was made absolute by consent without argument. It could have no other effect than to carry out the purpose of the rule, that was to “put the cause on the issue docket.” In all other respects, it left the rights of tlie_ parties unaffected. It is certainly clear that the Court did not mean to decide on this rule that the award was a nullity. If they did, they should have corrected their mistake when they were considering the demurrer to the plea. And, as they were then exploring the whole record, it was perfectly competent for them to decide as justice and right demanded. They might have allowed the plaintiff to atone for his laches by going back and showing, if such were the fact, that the award was fraudulent and void. Of this we could not have complained on account of oversight in not discovering the award sooner, and it would have been perfectly fair and just to put both parties exactly where they were when the blundering began. And, if at that point the award was void and a nullity, they might well sustain the demurrer, but if the award were good and valid, then it was a good plea, and judgment should have been entered for the defendant.
    McAfee, Atkinson & Peoples for defendant in error.
    The effect of the rule re-instating the case upon the issue docket was to treat the submission and award as an absolute nullity, and the defendant, having consented to the rule being,made absolute, must be considered as agreeing to renounce and waive any and all rights which he might have had under such award. If he intended to stand upon the award, the proper time was to have resisted the re-instatement of the case upon the issue docket while said rule was pending.
    Again, the defendant cannot claim ignorance of this matter, because he participated in all these proceedings, and every move is and was a matter of record, and he pursued them step by step. They were acts of notoriety, and upon which costs accumulated, and which puts the equity of the case against him.
    October 20, 1884,
   the opinion of the Court was delivered by

Sterkett, J.:

The single question presented by this record is whether the learned judge erred in sustaining the demurrer to defendant’s special plea, wherein it is averred that “by consent in open court, all matters at variance between the parties in this case,” were referred to the arbitrament of John Armstrong and II. B. Kuhns, esquires, “whose award shall be final and conclusive, without exception or appeal; and that afterwards the said arbitrators, having given clue notice of their meeting in pursuance of the aforesaid submission, and having heard the parties, their proofs, and allegations, did award and find for the' defendant,” &c.

The matters of fact thus pleaded are not only admitted by the special demurrer, which assigns as the sole cause thereof “ that the plea was too late,” but they are fully substantiated by the record itself. It also appears that the award was filed and judgment entered thereon August 21, 1880. Before the award, was filed, but after it was made and ready for delivery, the plaintiff below attempted to revoke the submission by serving notice to that effect on the referees ; but in this he was clearly too late. The submission had been executed, and hence it was beyond the power of either party to revoke it: Shisler v. Keavy, 25 P. F. Smith, 79. The judgment on the award, as appears by the record, was regular and valid, and so remains, notwithstanding the irregular proceeding which followed its entry. If the plaintiff below was aggrieved by the award, he’should have applied to the court to set it aside, but, instead of doing so, he appears to have acted on the mistaken belief that his revocation was in time, and therefore the award was inoperative. The learned judge, in his opinion overruling the demurrer, concedes that the attempted revocation was ineffectual, but he holds that defendant below, by acquiescing in the subse: quent proceedings, treated the award itself as a nullity, and on that ground chiefly he sustained the demurrer: In this we think there was error. The award, and judgment entered thereon, could not be thus set aside or expunged from the record. If any valid reason existed, dehors the record, for setting either or both of them aside, the plaintiff below should have proceeded in the regular and orderly way: and, in view of the long acquiescence of the defendant, it is, perhaps, not too late for him to do so yet. In passing on the demurrer, it was unnecessary for the court to go outside of the facts averred in' the special plea. As we have already seen, they were admitted by the demurrer and fully substantiated also by the record; and, upon them, the judgment on the demurrer should have been for defendant below.

If we -were to affirm this judgment, the record would present the anomaly of two separate and distinct judgments in the same case: one for defendant, on the award of the referees, and the other for plaintiff, on the verdict of the jury.

Judgment reversed, and all proceedings subsequent . to the entry of judgment on the award set aside, and record remitted.


author: Per Curiam :

text:
    October and November Term, 1884,
    No. 114.
    October 10, 1884.
    Mechling to use v. Hartzell.
    1. Alterations, in a judgment note of the year, month, and day of the month, are material alterations, and require explanation before the note should be received in evidence.
    2. The alterations are material, though they post-date the note.
    Before Mebcub, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ.; Green, J., absent.
    Error to the Court of Common Pleas of Westmoreland County.

    Judgment entered December 2, 1880, by Jacob Mechling, to the use of L. B. Gongaware, against John M. Hartzell and John L. Hartzell, upon a judgment note dated April 3,1876, for $105, (including five per cent, commission.)
    On June 22, 1881, this judgment was opened?
    Upon the trial, as to defendant John L. Hartzell, in the court below, before Hunter, J., the plaintiff offered in evidence note dated April 3, 1876, for $100, payable on April 1, 1877, to Jacob Mechling, and signed by John M. Hartzell and John L. Hartzell.
    Defendant’s counsel objected, because the note as offered showed upon its face that alterations had been made in the year, month, and day of the¡ month, and the year when it became due, and because no consent had been shown to have been given by defendant.
    Objection sustained. Exception by plaintiff.
    L. B. Gongaware testified that he was the owner of the note; that he had paid full value for it to the payee, and that it was in the same condition exactly when he received it.
    Defendant’s counsel thereupon moved for a compulsory non-suit, which was granted by the court.
    Plaintiff then took out a writ of error, assigning as error the entry of, and the refusal to take off, the compulsory non-suit.

      John F. Wentling for plaintiff in error.
    The erasures and changes are immaterial, and not made with a fraudulent and illegal intent. No person is injured by the changes except the plaintiff, one-year’s interest less being due by defendant. The awkward and clumsy execution shows that there was no fraud or illegal intent: Kountz ®. Kennedy, 13 P. F. Sm., 190; Latshaw ®. Hiltebeitel, 12 W. N. 0., 335.
    If defendant objected because he was bail, he had his relief during the entire year from the date of the change in tlie act of 14 May, 1874, Purd. Dig., p. 1881, by giving notice in writing to the payee to proceed to collect, &c.
    There is no evidence to show that the erasures and changes were made after the note w'as executed and delivered ; and there are no presumptions as to whether the changes were made prior or subsequent to the execution. That question must be decided by the jury: Ely ». Ely, 72 Mass., 442.

      W. H. Klingensmith for defendant in error.
    While the change would lessen the amount of interest, it would take away defendant’s right under act of 14 May, 1874, for one year longer.
    The alterations were in material parts. The date is a material part: Stephens ®. Graham, 7 S. & K.., 505; Hocker ®. Jamison, 2 W. & S., 438; Getty®. Shearer, 8 Har., 12 ; Miller ®. Gill eland, 7 Id., 119.
    Before the note could be admitted in evidence, the plaintiff was bound to show' that the alterations w'ere lawfúlly made : Marshall v. Gougler, 10 S. & R., 168 ; Simpson v. Stackhouse, 9 Barr, 186 ; Kennedy v. Bank, 6 Harris, 347; Paine ■». Edsell, 7 Id., 178; Clark v. Eckstein, 10 Id., 507 ; Heffner v. Wenrich, 8 Casey, 423 ; Hill v. Cooley, 10 Wr., 259 ; Burgwin v. Bishop, 10 Nor., 336 ; Craighead v. McLoney, 3 Outer., 211; Ely v. Ely, 72 Mass., 439.
    In the narr the date of the note is laid as April 3, 1876. Proof that it was executed on May 14, 1875, is not admissible : Stephens v. Graham, 7 S. & R., 505.
    It is not on the supposition of fraud that the rule is founded with respect to deeds; the policy of the law makes them void without any relation to motive in the particular transaction: Marshall v. Gougler, 10 S. & R., 168: Bensinger AVren, 4 Out., 500.
    October 20th, 1884.
   Per Curiam :

— An inspection of the note proves unquestionably that it had been altered. The alteration is with ink of a color different from that with which it was originally written. There is a change of its date in the year, month, and day of the month. These are material alterations. They require explanation before the note should be received. The plaintiff gave no evidence showing how the note came to be altered, nor when or by whom the alteration was made. The fact that it was post-dated by the alteration does not destroy its-materiality. It may have been to affect a question of settlement or payment after the original date. Until explained by evidence, the maker may well say it is not the note he executed.

Judgment affirmed.


text:
    October and November Term, 1883,
    No. 17.
    October 6, 1884.
    Mehaffey’s Appeal.
    1. Where a lease was executed for the sole purpose of mining for petroleum, with the agreement that diligent search should be made by the lessee, and if no oil should be found, and the land should be abandoned, the lease should be null and void, and after search the land was abandoned, but the machinery and fixtures remained, a court of equity has jurisdiction to require the lease to be delivered up for cancellation.'
    2. The outstanding lease casts a clo-ud upon the title, which a court of equity may justly remove.

      Before Mercttr, O. J.; Gordon, Paxson, Tktjnkey, Sterrett, Green, and Clark, JJ.
    Appeal of James A. Mehaffey, W. S. Patteson, and others from a decree of the Court of Common Pleas of Westmoreland County ordering a lease given by James L. Thompson and wife to James A. Mehaffey and others to be given up for the purposes of cancellation.
    After bill and answer filed, the case was referred to L. W. Doty as master, who reported, inter alia, the following facts:
    “That, on 15th August, 1877, James L. Thompsou and wife executed a lease to James A. Mehaffey, H. T. Metzgar, and Michael Hugh for about eight acres of land in Washington township, Westmoreland county, for the sole and only purpose of mining and excavating for petroleum, rock or carbon oil, and for the laying of pipe, either under or on top of said surface, for transportation of oil from said premises.
    That the words ‘or other valuable mineral or volatile substances,’ in the body of the lease, were erased before the execution of the instrument, and that the words ‘ oi-gas,’ by the consent of both parties, were incorporated into the lease, after its execution and delivery, and-after actual operations had been commenced at the well. The gas so discovered was to be used simply for the purpose of drilling other wells, and was not to be otherwise appropriated. by the lessees.
    That the Westmoreland Oil Company was organized for the purpose of testing the ‘Beaver Bun territory’ for oil; it was an unincorporated association ; James A. Mehaffey was president and S. G. Thompson was secretary ; the respondents were the principal stockholders ; ninety-six shares of stock were sold, and of these, James A. Mehaffey held fifty-four.
    That James A. Mehaffey, TI. T. Metzgar, and Michael Bugh were appointed a committee to secure oil leases ; that about one hundred leases were obtained by this committee from parties owning property in Washington, Bell, Loyalhanna, and Salem townships, Westmoreland county, in what is known as Beaver Bun territory; that these leases embraced about five hundred acres of land.
    That H. T. Metzgar and Michael Bugh, on 15th August, 1877, assigned the lease obtained from James L. Thompson to James A. Mehaffey, president of and for use of Westmoreland Oil Company with all the property, rights of property, and interests therein conveyed.

      That tlie Westmoreland Oil Company went into possession at or about the same time ; that drilling for oil was commenced in the fall of 1877, and that the well was sunk to a depth of 1,301 feet; that the work was prosecuted at intervals until the fall of 1878, and was then stopped for want of means to prosecute it further.
    The gas and salt water were struck and still flow from the well; that’no oil was found or produced, and that the territory was abandoned in the fall of 1878, and there was no attempt to take possession of the same, nor to resume operations until after the bill had been filed by complainant.”
    The master further reported:
    “A bill in equity was filed in this case for the purpose of removing a cloud upon complainant’s title, and to secure the cancellation of a lease, which was executed by the complainant to the respondents ; the complainant alleging that the lease is null and void, and that the outstanding lease hinders the sale of his lands, and does him great wrong and damage.
    The respondents, in the first place, deny that equity has any jurisdiction in this case, alleging that there is an adequate remedy'at law, either in covenant or in ejectment. To oust the jurisdiction of equity, the plaintiffs remedy must be full, complete, and adequate: Skilton «. Webster, Bright, 203. Covenant lies for the recovery of damages for the breach of a specialty : Shaeffer v. Gfeisenberg, 47 Pa. St., 500. Though an equitable defense is admissible in an action of covenant, yet, as to the plaintiff, it is strictly a legal action: Lehigh Coal and Navigation Company ». Harlan, 27 Pa. St.., 429. The plaintiff here does not see the recovery of damages, nor would the recovery of damages afford him full, complete, and adequate relief. He"apprehends danger in the future, as well as inconvenience and wrong in the present, and he seeks to remove an alleged cloud upon his title, which hinders the sale of his land. The action of covenant, therefore, would not afford such a full, complete, and adequate remedy as would oust the jurisdiction of a court of equity.
    The action of ejectment could not be maintained for two reasons ; First, because the plaintiff, at the institution of the suit, was in possession of the premises, and a party in possession cannot maintain ejectment: Corley v. Pentz, 76 Pa. St., 57. And, second,' because ejectment will not lie for an incorporeal hereditament: Black v. ITepburne, 2 Teates, 331. The right which vested in the respondents by the lease was a right to experiment for oil; it was a right to work the land for minerals, and vested in them an incorporeal hereditament: Funk •». Haldeman, 3 Smith, 229.
    But even if equity have jurisdiction, it is alleged that the license which was granted is irrevocable until the expiration.of the full term of twenty years, because the respondents, by virtue of the license, have expended large sums of money in experimenting'for oil. It is true that even a parol license, without consideration, on the faith of which the grantee expends money, cannot be revoked at the pleasure of the grantor. This is on the principle of estoppel, because the parlies cannot be placed in statu quo. Equity treats the contract thus executed as a contract giving absolute rights: Huff v. McCauley, 3 Smith, 206. But here it was expressly provided that, upon failure to find oil, and on an abandonment of the territory, the‘lease should be null and void. It has been found, as a fact, that no oil was produced, and that the respondents abandoned the territory.. What hardship, therefore, in holding the respondents to the terms of their contract? What principle of equity can they invoke to protect them against their express covenants? The covenants must be construed so as to carry into effect the true intent and meaning, of the parties, as gathered from their own words. It was agreed that diligent search should be made for oil; that if no oil should be found, and they abandon the territory, that the lease should be null and void, and the land should revert to the lessor. The facts have been found against the respondents. The license is not revoked at the pleasure of the grantor, but in pursuance of the express agreement of the parties. The question of abandonment is one of fact: 2 Washburn, Real Prop., 82. Abandonment is such a relinquishment of the premises as justifies an immediate resumption of it: McKinney v. Reader, 7 Watts, 123. The premises were relinquished and the work suspended in the fall of 1878. More than three years elapsed before complainant’s bill was filed, and there had been no attempt to resume the work or to re-oceupy the premises. The machinery and fixtures which had been placed on the premises still remained, but all bore evidence of decay. The dferrick was out of repair; the ropes were rotten; the smoke-stack had fallen over; the bull-wheels were without cover; the boiler was rusted, and the tubing twisted and bent up. The suspension of work for three years and upwards, and the permitting of the machinery and fixtures to go to decay, are circumstances which indicate an intention on the part of the respondents to abandon the said territory. The plain meaning of the .contract was that diligent search should be made for oil, and, upon such search being made,, if no oil was found, the land should revert to the lessor. If there had been an abandonment without a search, the lease would have been null and void ; and, if an abandonment after search without finding oil, the lease would also be null and void. Gas was struck, but gas was not the object of the search. After striking gas, it was agreed that it should be used for the purpose of drilling other wells. No attempt has been made to apply it to this purpose. No oil has been produced, and the only excuse for not prosecuting the work was an alleged want of means. Such an excuse will not avail in law. The respondents could have protected themselves in the contract against such a contingency. Not having done so, they will be held to a performance of their covenants. The act of God would excuse performance: Lovering v. Coal Co., 54 Pa. St. 291; or prevention by the other party would have relieved them from the conditions of the license. Nothing else would excuse: Myers v. Drake, 10 W., 110; Miller v. Phillips, 31 Pa. St., 218.
    It is further urged that no decree can be made here, as all parties are not joined in the bill. There was evidence tending to show that James A. Mehaffey, on or about the 27th December, 1881, had sold his individual interest in the lease to A. Murray and others. The answer of James A. Mehaffey, which was sworn to on 16th June, 1882, expressly states, that he and his co-defendants are “the legal owners of said lease of land.” There was no intimation given, at that time, that he had sold his interests to any person. The co-defendants do not pretend that any sale of their interests was made, and they do not eveii appear here to urge their defense. A. Murray was examined before the master on the assignment of the lease; he had notice of its conditions. This, perhaps, would be sufficient to put him on inquiry. However, it is not necessary to decide this now, in the opinion of the master. If Murray is a bona fide purchaser without notice, his rights would not be affected by this proceeding or by any decree that may be made. Courts can adjudicate upon questions arising between parties, without making other persons, who are interested in the property in question, parties to the suit: Daniel’s Chancery, § 191.
    The- only question remaining is whether or not the prayer of the complainant should be granted, and a decree be entered that the said lease be delivered up and cancelled as null and void, and.functus officio. Sncli an application to a court of equity is not a matter of absolute right on the part of the complainant, but a matter of sound discretion ip the court: Story’s Equity, § 698. There is no allegation of fraud, accident, or mistake, and if complainant is entitled to any relief in this proceeding, it is on the principle of quia timet. The principle upon which these bills are based is simply that it is inequitable that the party in possession should be embarrassed by a hostile claim hanging over him, which, although not actively asserted and not of any validity, is calculated to affect the marketability of his title: Bispham Equity, § 575. Whenever a deed or other instrument may be vexatiously or injuriously used, when the evidence to impeach it may be íost, or that may throw a cloud or suspicion over a title or interest, the party likely to be injured is entitled to relief quia timet: Story’s Equity, § 694; Bispham, 474.
    If an instrument ought not to be used or enforced, it is against conscience for the party holding to retain it, and the other party is entitled to relief quia timet: Story’s Equity, 700; Eckman v. Eckman, 5 Sm., 269. Equity will retain jurisdiction to remove a cloud on title where complainant is in possession, or from other cause, without adequate legal remedy : Sullivan v. Finnegan, 101 Mass., 447'.
    Where a deed, originally valid, »has, by subsequent events, become functus officio, and yet its existence may" be a cloud upon the title, a court of equity will interfere to prevent injustice, and will decree delivery and cancellation of the instrument: Story’s Equity, 705. And the-doctrine is applied where the instrument has become functus officio according- to the original intent and understanding of both parties: Story’s Equity, 705. Unless the complainant has brought himself within these well-settled principles of the law, his prayer ought to be refused. Here is a lease outstanding, the conditions of which have been violated, and it is, therefore, of no validity. But is it not calculated to affect the marketability of complainant’s title? May not the instrument'be vexatiously or injuriously used against the lessor ? Does it not throw a cloud or suspicion over his title or interest ? Is it not clear that it ought not to be used or enforced, and that it is against conscience for the party holding to retain it? Has not this instrument, although valid, originally become,functus officio by subsequent events, and according to the original intent and understanding of the. parties ? If any or all of these questions are answered in the affirmative, the complainant presents a case which appeals strongly to the discretion of the court to grant the relief prayed for. In the opinion of the master, after a careful consideration of the whole case, a decree should be entered that the lease be given up and cancelled as null and void, and functus officio.”
    Exceptions filed to the report of the master were dismissed by the Court, (Hunter, P. J.,) and a decree was entered directing the lease to be delivered up for cancellation.
    The defendants thereupon took this appeal, assigning for error the decree of the court.

      William, Blalceley and II. W. Walfcinshaw for appellants.
    The appellants should not be deprived of their constitutional right of trial by jury unless the appellee has brought himself clearly within the equity jurisdiction of the court. If the appellants may possibly have any rights under this lease, the appellee will be left to his remedy at law : Stewart’s Appeal, 28 Smith, 88 ; Hagner v. Heyberger, 7 W. & S., 104; Karns v. Tanner, 16 Smith, 297; Rhea v. Forsyth, 1 Wright, 503; North Pennsylvania Coal Co. v. Snowden, 6 Wright, 488; Barclay’s Appeal, 12 Norris, 54; Meek’s Appeal, 1 Outerbridge, 313.

      W. E. Young for appellee.
    The lease being for a part of the farm upon which the appellee resided, he being thus left in possession by the long abandonment of his lessors, very clearly could not bring ejectment: Corley v. Pentz, 76 Pa. St., 57 ; Kribbs v. Downing, 25 Pa. St., 399 ; Narehood v. Wilhelm, 69 Pa. St., 64.
    . He had no action of covenant on the lease, for this would not have reached the cloud upon his title. There being thus no adequate remedy at law, there is no doubt of the power of the court to afford relief in this form of action: Kennedy v. Kennedy, 7 Wright, 417; O’Neil ■». Hamilton, 8 Wr., 18; Eckman v. Eckman, 5 Smith, 269 ; Wilson v. Getty, 7 Smith, 266.
    October 20th, 1884.
   Per Curiam:

As the appellee was in possession when he filed this bill, he could not maintain ejectment. Oil was not found or produced in quantities sufficient to require the appellants to retain possession of the premises, and in fact they had abandoned the same. .The finding of gas was not’ a principal purpose or object of the lease. After gas was struck, it was agreed that it should be used for the purpose of drilling other wells. It was, however, not so used, and the whole project of developing the territory was abandoned. Nevertheless, the outstanding lease cast a cloud on the title, which a court of equity'may justly remove.

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


author: Mercur, C. J.:

text:
    October and November Term, 1884,
    No. 46.
    October 7, 1884.
    Moss v. Commonwealth.
    1. During the trial upon an indictment for murder, one of the jurors requested, and was granted, permission to attend the funeral of his brother-in-law. He was placed in the custody of a court officer, to whom full instructions were given by the Court as to the care to be observed. The jury afterwards found the prisoner guilty of manslaughter. Held, that in view of the verdict, the same rule should be applied as if the prisoner had been indicted and tried for manslaughter only; and that this was therefore not such an act as calls for a reversal of the judgment.
    2. Where the prisoner is indicted and tried for manslaughter, jurors may, in the discretion of the Court, be permitted to separate, after being duly cautioned, without the creation of any legal presumption that undue influence thereby operated on their minds.
    3. In case of a conviction for a capital offense, the fact of separation further than is necessarily required to enable the jurors to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence, which the Commonwealth must rebut by clear and satisfactory evidence.
    4. Semble, that it would have been, well, on the return of the juror, to have inquired of him and of the officer in charge whether anything was said Q£ done in the presence of the juror tending to influence his action in this case.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error and certiorari to the Court of Oyer and Terminer of Westmoreland County.

    Indictment for the murder of James McGugan by the Commonwealth against John T. Moss.
    The trial in the court below, before Hunter, P. J., began on November 22, 1883, when the jurors were sworn, and continued until December 1, 1883, when the jury rendered a verdict of guilty of manslaughter. During the, continuance of the trial, on Saturday, November 24, one of the jurors presented the following communication to the court:
    “I have a brother-in-law that has had the consumption for almost two years, and is now very low, if alive. He has given me instructions with regard to his burial, which I would like to carry out, but, under the circumstances, would like to see him once more if alive, and if he is dead, to give instructions with regard to his burial. Can I get permission from the. Court to go home in charge of an officer? My family know nothing at all about this trial; besides, I know the oath I took. If I am allowed to go, please state how close I shall be bound down, if I am allowed to speak to my family on subjects outside of this trial or not.
    Respectfully submitted.
    James H. Byerly.”
    The Court granted the permission, as follows:
    “The foregoing communication having been addressed to the Court, and it having been made to appear to the Court that the person referred to is now dead, and that .the juror is desirous to attend the funeral, the Court thereupon granted permission to the said juror, James H. Byerly, and placed him in the custody of Officer James White, who was duly appointed for that purpose, and sworn according to law, and to whom (the officer as well as the juror) full instructions were given by the Court as to the care to be observed, and the clerk was directed to make a full, minute hereof.
    • The remaining jurors were then given in charge of Daniel McCartney and Tipstave Henry K. W elty, aforesaid duly appointed for that purpose and sworn according to law. Court of oyer and terminer adjourned.”
    The trial was resumed on Monday, November 26, with all the jurors present.
    After the verdict, defendant’s counsel filed motions in arrest of judgment and for a new trial, which were overruled, and the defendant sentenced.
    Defendant then took out writs of error and certiorari, and assigned as error the action of the Court in granting the juror’s request to allow him to separate himself from the other jurors for a period of two days, and in overruling the motion in arrest of judgment made upon the same ground.

      H. W. Wier and Ilazlett & Wilkiams for plaintiff in error.
    The separation of the jury, permitted in this case by the Court, was error, and the judgment should be reversed: Peiffer v. Commonwealth, 3 Harris, 468; McLain v. State, 10 Yerger, 241; Commonwealth ¶. McCawl, 1 Ya. Cas., 271; 1 Chitty, Crim. Law, 634; 11 Humph.. 502, (Tenn.;) 8 Id., 597; 4 Id., 38; 1 Swan., 256; 7 N. H., 287; 43 Miss., 369 ; 26 Miss., 83 ; 3 Parker Crim. R., 25 ; 2 Pick., 496; 1 Robinson, 756; 9 Smede & Marsh, (Miss.,) 465; 13 Id., 398; 2 Humph.,:592; 7 R. L, 337; 19 Grat., 486; 11 Ired, 514; 20 Ga., 752; 39 Miss., 721; 21 111., 373 ; 30 111., 256; 24 Ind., 151 ; 3 Minn., 444 ; 30 Wis., 132; 37 Id., 396.
    There was no affirmative evidence on the part of the prosecution that the juror was in charge of the officer accompanying him during the whole period of the two days he was absent, and that he did not converse with any one on the subject of the trial.

      8. A. Kline, Jac. Turney, and McAfee, AtJdnson & Peoples for defendant in error.
    In all the cases referred to, the separation was a willful and voluntary act of the juror, or an improper license by the Court, without proper restrictions. Where the Court' permits the separation and places the juror under the care of the proper officer, it is not cause for new trial. In Peiffer v. "Commonwealth, 3 Harris, 468, all rules were grossly violated.
    Under the proper restrictions, the officer in charge of the juror is presumed to have faithfully discharged his duty, and to have excluded the juror from all improper intercourse. The question was fully examined and discussed in U. S. v. Guiteau.
    October 20, 1884,
   the opinion of the Court was delivered by

Mercur, C. J.:

The verdict of the jury has removed the higher grade of crime, and reduced the case to one of manslaughter. If the conviction had been of a capital offense, the observance of a more stringent rule would be required. The case of Goersen v. Commonwealth, decided at the present term, was a conviction of murder in the first degree. The sickness of a juror had caused his separation for medical treatment. The Commonwealth there assumed, and we held correctly, the obligation of showing affirmatively that no improper influence operated on the mind of the juror during his separation. In case of a conviction of a capital offense, the fact of separation further than is necessarily required to enable the jurors to perform their duties as such, and under the care of a sworn officer, creates a presumption of improper influence, which the Commonwealth must rebut or remove by clear and satisfactory evidence. In the present case, we think it would have been well, on the return of the juror, to have inquired of him and of the officer in charge, whether anything was said or done in the presence of the juror tending to influence his action in the case. As, however, there is no evidence nor averment of any such- influence, we cannot hold the mere separation of the juror in the custody of a sworn officer, and by the permission of the Court, is such an act as to call for a‘ reversal of the judgment. The strictness of the early English rule in excluding jurors from all outside intercourse, in cases not capital, is very much relaxed in this country. In view of the verdict, and for the purpose we are now considering, we think the same rule should be applied as if the prisoner had been indicted and tried for manslaughter only. In such a case, jurors may, in the discretion of the Court, be permitted to separate, after being duly cautioned, without the creation of any legal presumption that undue influence thereby operated on their minds. Whatever is necessary to preserve the purity'of a trial by jury must be adhered to and strictly observed. Whatever is not necessary to secure a fair and impartial trial must not be so magnified as to defeat the ends of justice. As we do not consider this to be a capital case, but one of the grade for which the prisoner was convicted, we deem it unnecessary to refer to the authorities cited. We merely say they are not applicable to this case, which is for a lesser crime.

Judgment affirmed.


text:
    WYOMING COUNTY.
    January Term, 1883,
    No. 179.
    March 17, 1884.
    Appeal of Shiffer, Assignee, &c.
    1. A writ of error lies to a feigned issue directed by the orphans’ court after final decree has been entered in that court.
    2. When the definitive decree of distribution is made, the party aggrieved may bring up his appeal therefrom, and, at the same time, his writ of error, and have the alleged errors in the trial of the issue reviewed.
    3. Such errors cannot be reviewed on the appeal alone.

      Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of J. B. Shifter, assignee of H. W. Lee, Permelia Pestaña, Elizabeth Brunges, and William Sickler, administrator of Cora Sickler, deceased, from the decree of the Orphans’ Court of Wyoming County, distributing the funds in the hands of John Lee, administrator of the estate of Daniel Lee, deceased.
    ■ The court below appointed B. W. Lewis, auditor to make distribution, who found, inter alia, the following-facts :
    That Daniel Lee died December 24 1874, leaving to survive him children as follows : John Lee, Wellington Lee, Henry W. Lee, Elizabeth Brunges, wife of William N. Brunges, and Permelia Pestaña.
    Minerva Layton, a daughter -of the decedent, died before decedent, leaving to survive her two sons, viz : Daniel Lee Layton and Peter L. Layton.
    Nancy Sickler, a daughter of-the decedent, died before decedent, leaving to survive;her two daughters, viz : Dora Sickler, who died some time after Daniel Lee, and Cora Sickler, who died since her gister-’s death. William Sickler is the administrator of Cora Sickler’s estate.
    Wellington Lee died since his father’s death, leaving to survive him Martha Lee, his widow ; James D. Lee, Inez Lee, and Florence Vandermark, wife of Edson Vandermark.
    Charles Armstrong and James D. Lee are the administrators of Wellington Lee’s estate.
    The auditor further finds that John Lee and Wellington Lee received their share- or ■interest, in their father’s estate during his lifetime, and are, therefore, not entitled to share in this distribution.
    He also finds that H. W. ,Lee has assigned his interest in the estate to J. B. Shifter. -.
    He further finds that tlie fund for distribution is $3,825 23. -■■
    The auditor reported, inter: alia, as follows :
    “A claim was made by John Lee for the share coming to Mrs. Permelia Pestaña,, by -virtue of assignment by her to him of her interest in her father’s estate. The same question came up on the former audit, and was, to a certain extent, passed upon.--It was then held that, as no consideration was shown for the assignment, it was not sufficient to cause her to be regarded as a competent witness, on the ground of having no interest in the distribution of her father’s estate. As John Lee, the administrator, sought in the former audit to make this use of it, he is now-, in the opinion of the auditor, estopped from claiming for it an opposite purpose in this proceeding.
    “Mrs. Martha E. Lee claimed the share of Dora Sickler in this distribution, by reason of a direction given by Dora Sickler, a short time before her death, that her share in her grandfather Daniel Lee’s estate, be paid to her for her care during her last sickness. It was shown that Dora Sickler was at the house of Mrs. Martha E. Lee for some time previous to her death, and that she died there ; and also that she was well cared for while there, and that the services were valuable. But, in the opinion of the auditor, however meritorious the claim, the auditor would be exceeding his jurisdiction to make this distribution of Dora Sickler’s estate. He, therefore, awards the amount coming to the heirs of Nancy Sickler to William Sickler, the administrator of Cora Sickler, deceased.”
    Exceptions were filed to this report by John Lee, Martha E. Lee, and Inez Lee.
    August 17, 1882, Charles Armstrong and James D. Lee, administrators of Wellington Lee, deceased, presented a petition to the orphans’ court praying for an issue to the common pleas to determine whether or not the said Wellington Lee had received his interest in the estate of his father in his lifetime.
    Objections were filed that no demand for an issue was made before the auditor, and that it was then too late. .
    The Court granted an issue “to determine whether it belongs to Wellington Lee’s estate to have one seventh part of the estate of Daniel Lee, deceased, after paying all legal costs and expenses, and whether Wellington Lee did receive his interest in his father’s estate in his, Daniel Lee’s, lifetime,” to which exceptions were taken.
    Upon the trial of the issue in the common pleas, before Ingham, P. J., exceptions were taken by appellants to rulings upon evidence, and to the charge of the Court.
    November 24, 1882, verdict for plaintiffs, viz: Charles Armstrong and J. D. Lee, administrators of Wellington Lee. The record of the trial was certified back to the orphans’ court and approved.
    The orphans’ court set aside so much of the auditor’s report as found that “Wellington Lee received his share of his father’s estate during his lifetime, and is, therefore, not entitled to share in the distribution,” and ordered that the administrators of Wellington Lee, deceased, should receive one seventh part of the fund for distribution. The Court also overruled the finding of the auditor against the claim of John Lee, and so much of the report as distributed to William Sickler, administrator of Cora Sickler, deceased, the share of Dora Sickler, and awarded said share to Martha E. Lee.
    J. B. Shiffer, assignee, et al., then appealed, and assigned as error the action of the orphans’ court in granting the issue to the common pleas; the admission of certain testimony, and portions of the judge’s charge, in the trial of said issue ; the decree of the court approving the finding of the jury and awarding the administrators of Wellington Lee, deceased, a one-seventh interest in the distribution, and in awarding the share of Dora Sickler, deceased, to Martha E. Lee. ■■ .

      W. E. & O. A. Little for appellants.
    We concede that the granting of an issue rests in the sound discretion of the court below, but this discretion should be judicially exercised. The Court granted a double issue, part of it, at least, being a question of law, dependent upon the question of fact, and granted it 134 days after the closing of the audit; after the publication of the report; without the requisite statement of facts in dispute ; without the demand being first presented to the auditor, and without evidence in the support of the demand: Barnes’ Appeal, 3 Grant, 315; Sharp’s Appeal, Id., 260; Bradford’s Appeal, 5 Casey, 513; Seip’s Appeal, 2 Casey, 176; White’s Estate, 32 Leg. Int., 430; 3 Phila., 254; 9 Id., 355 ; 32 Leg.-Int., 117 ; 2 Luz. L. Beg., 83 ; 33 Leg. Int., 45 ; 1 Tr. & H. Practice, 656, N. 3; 7 Harris, 493 ; 4 Casey, 165 ; 12 Id.. 418 ; 3 P. & W., 185 ; 11 P. F. Sm., 278; 13 Id., 379. -
    The exceptions were taken in the common pleas, and went with its record when it was certified to the orphans’ court: Act 16 June, 1836, section 2; Purd. Dig., 1110, section 52 ; Hallo well’s Appeal, 8 Harris, 215; Wills ». Hannen, 10 Id., 334 ; Finney’s Appeal, lWr., 323; Bierly’s Est., 32 P. F. Sm., 419. ' The charge of the Court was calculated to mislead the jury.
    The findings of the auditor. are entitled to the same weight as the verdict of the jury: Gilbert’s Appeal, 28 P. F. Sm., 266 ; Wills’ Appeal, 10 Harris, 325. An appeal from the final decree of the orphans’ court brings up the whole subject for review: Hállowell’s Appeal, 8 Harris, 215.

      There was no consideration for the transfer of Dora’s share to Martha E. Lee.

      Henry Harding, John A. Sittser, William M. Piatt & Sons for appellees.
    The appeal has been improperly taken by including in the appeal parties not affected by it.
    No writ of error or appeal lies to the action of the court in directing the issue to" the common pleas : Act of 29 March, 1832, section 55, P. L., 208 ; Act 20 April, 1846, section 2, P. L., 411. The acts of Assembly expressly limit the right of review to the applicant for the issue, and nowhere gives the right to the opposing party: Moth-land v. Wireman, 3 P. & W., 185; Wallace v. Elder, 5 S. & R., 146; Finney v. Moore, 8 S. & R., 345. The cases cited by appellants are those in which a demand was made for an issue as matter of right. Court can grant issue after audit: Daddow Est., 1 Schuylkill Leg. Reg., 90. The orphans’ court should have reserved the finding of the auditor if no issue had been granted. To give an instrument the affect of a release of all future interest in an estate to which one is an heir, it should be clear and unambiguous: Powers’ Appeal, 13 P. F. Sm., 445.
    March 31st, 1884.
   Per Curiam:

A writ of error lies to a feigned issue directed by the orphans’ court after final decree has been entered in that court: Reed’s Appeal, 21 P. F. Smith, 378; Green v. Mills, 13 W. N. C., 108.

When the definitive decree of distribution is made, then the party aggrieved may bring up his appeal therefrom, and at the same time his writ of error, and have the alleged errors in the trial of the issue reviewed. We cannot, on the appeal alone, review them. This view disposes of most of the errors assigned.

We discover no error in the conclusion at which the court arrived, and in the decree of distribution made.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Irvin, J.

text:
    Ward et al. vs. Price.
    1. Writ ov Error. —A writ of error should, in the absence of any statu. tory provision to the contrary, be directed to the judge of the court below, and not to the clerk.
    2. RECOOUizAsrcB. — Where the statute provides that security by a recognizance shall be given before a supersedeas shall issue, security in the form of a bond is not a compliance with the statute.
    ERROR to the District Court for Grant County. The case is stated in the opinion of the court,
    id J. Munger, for plaintiff in error,
    id J. Dunn, for defendant in error.
   Irvin, J.

In this case the defendant in error filed a motion to quash the writ of error and dismiss the proceedings, for the following reasons: 1st. Eor insufficiency and informality of the writ. 2d. Insufficiency of the bond. 3d. Eor want of compliance with the statute and the rules of this court on the part of the plaintiff in error.

From an examination of the proceedings it appears that the writ of error sued out of this court was directed to the cleric of the district court for the county of Grant. In a proceeding by writ of error the intention is to revise the decisions of the court below, and not the proceedings of the clerk; and in contemplation of the law the judge presiding in such court, being supposed to have control of all proceedings therein, the writ should be directed, in the absence of any particular statutory provision to the contrary, to him; and none such appearing to have been made, the writ must be quashed.

Although the decision upon the first point would dispose of the case, yet it may not be unimportant to notice the second, which is insufficiency of bond, the security attempted to be given for the purpose of obtaining a supersedeas, in pursuance of the provisions of the eighth section of “An act concerning appeals and writs of error, certiorari and habeas corpus,” passed by the legislative council of the territory of Michigan. Mich. Stat. 402, 403.

The provisions of that section require that, before the execution “ shall be stayed by any writ of error or supersedeas thereon,” the party prosecuting such writ shall, with one or more sufficient sureties, or, in case of the absence of such party, two or more sufficient sureties, to be approved by the court in which such judgment shall be given, or, in vacation, by one of the justices thereof, become bound unto the party in whose favor such judgment may be given by recognizance, to be acknowledged in such court, if in term time, and, if in vacation, before the clerk in double the sum, etc.

In this case a bond, and not a recognizance, has been taken, between which two instruments there is too great a distinction to suffer the one to be taken and substituted for the other, and as the statute requires the latter, while the former has been given, the supersedeas, even though the writ were good, would have to be discharged. The writ is therefore quashed and the proceedings dismissed.


author: Miller, J.

text:
    Rountree vs. The United States.

      Indictment.

    An indictment for knowingly and willfully assaulting, heating and wounding any sheriff, etc., or other officer or person duly authorized, in serving or executing any writ, etc., in a case where a private person was specially deputed to execute such writ, etc., which alleges that such person “was then and there a peace officer, to wit, a deputy sheriff of said county,” is too vague and uncertain, and not sufficiently descriptive of the special character and authority under which such person acted. His authority, and the capacity in which he was acting at the time, should have heen set forth with reasonable certainty.
    ERROR to the District Court for Grant County. The case is stated in the opinion of the court.

      T. P. Biornett, for plaintiff in error.

      F. J. Hunger, for defendant in error.
   Miller, J.

The defendant below, who is plaintiff in error, was indicted for assault and battery in the following words: “The jurors of the grand jury, good and lawful men of the county aforesaid, duly chosen, tried, sworn and charged to inquire in and for the body of the county of Grant, do, upon their oaths, present that Samuel B. Rountree, late of said county, on the eighth day of March, eighteen hundred and thirty-eight, with force and arms, at Lancaster, in said county, in and upon one Stephen Mahood, who was then and there a peace officer, to wit, a deputy sheriff of the county of Grant, and then and there being in the due execution of his duty as such peace officer, did make an assault with a certain deadly weapon, commonly called a carving-knife, and him, the said Stephen Mahood, so being in the execution of his duty as aforesaid, then and there did beat, wound and ill-treat,” etc. A second count was added for a common assault, but was quashed by the court below before trial, for want of jurisdiction in the court, which is confined, in such cases, to justices of the peace, by the act passed in January, 1838. The defendant is not indicted under this act. The indictment in this case is founded on the 40th section of the statute of Michigan, entitled “An act for the punishment of crimes.” This section provides that, “if any person shall knowingly and wilfully obstruct, resist or oppose any sheriff, coroner, constable or other officer of this Territory, or other person duly authorized, in serving or attempting to serve or execute any mesne process, writ, warrant, rule or order issued by virtue of the laws of this Territory, or any other legal or judicial writ, warrant or process whatever; or shall assault, beat or wound any sheriff, coroner, constable or other officer or person duly authorized, in serving or executing any writ, rule, order, process or 'warrant aforesaid, or for having served or executed the same, every person so knowingly and wilfully offending in the premises shall, on conviction, be punished by fine, not exceeding eight hundred dollars, or by imprisonment at hard labor, not exceeding two years, or both, at the discretion of the court.” Stephen Mahood was not, at the time of the alleged trespass, a public officer of the county of Grant, but a private citizen, deputed by the sheriff, on the back of a warrant against Samuel B. Itountree, to execute the same. As he was not a public officer of the county, the indictment must show with certainty that he was a person duly authorized to sene the process. He is not a peace officer of the county, entitled to general protection as such, but a private citizen, specially deputed by the sheriff to perform a particular act, and nothing more. He had no authority beyond this special deputation. He was not known or recognized as a peace officer of the county; hence, it became necessary to set forth in the indictment, with sufficient certainty, the authority and capacity under which he was acting at the time. It is the opinion of a majority of the court, that the words in the indictment, 11 a peace officer, to wit, a deputy sheriff of the county of Grant,” are too vague and uncertain in this particular case, and not sufficiently descriptive of Ma-hood’s peculiar character and authority. If he had been a general deputy of the sheriff for all purposes, the indictment might be sustained; but the court is bound, very reluctantly, to reverse this judgment.

Dunn, Ch. J., dissented.


text:
    Hagedon vs. The Bank of Wisconsin.
    Receiver — Attachment. — Tlie property and effects of a bank, after the appointment and qualification of a receiver, are in tlie custody of tlie law, and are not subject to attachment, although he may not have reduced them to actual possession.
    EEEOE to the District Court for Brown County.
    This action was commenced by an attachment issued out of the clerk’s office of the district court for the county of Brown, returnable at the May term, 1840, at the suit of said plaintiff against said defendant. At the May term of said district court the sheriff returned that he had attached certain lands and tenements, goods and chattels, as the property of the Bank of Wisconsin, and that he had summoned Jacob W. Couve, William H. Bruce and Eandal Wilcox, as garnishees, etc.
    During the said term the cause was called, and the plaintiff, by his attorney, appeared and moved the court that the default of the defendant be entered according to the statute, etc.; whereupon the attorney-general moved the court to quash the attachment, for the reason that it appeared from the return of the sheriff that he attached the effects of the Bank of Wisconsin, all which were under an injunction and in the custody of the law, and therefore not liable to be attached. Upon which said motion the court ruled and adjudged “that, as it appeared a receiver had been appointed to take charge of the effects of the said Bank of Wisconsin for the benefit of the creditors of the said bank, which said receiver had given bond, which was approved on the’ 16th November, 1839, and that as this attachment was not issued until November 27, 1839, that therefore the attachment and proceedings be quashed.”

      If. L. Martin, for plaintiff in error, urged the following points:
    1. That the property of the Bank of Wisconsin, being in the possession and keeping of the officers and servants of said bank, was liable to be taken in attachment or execution at the suit of any creditor of said bank. 2 Mad. Ch. 188.
    2. That the attachment in this case, having issued in conformity to the laws of the Territory, created a prior lien in favor of the plaintiff as against the receiver or any other person who had not made an actual levy or taken the property in custody. Preston v. Farmers’ Bank of Delaware, 12 Pet. 102; 9 Yes. Jr. 335.'
    3. That the appointment and qualification of a receiver did not, per se, change the right of property or possession of the property of the Bank of Wisconsin.

      PI. Pf. Wells, attorney-general, contended in reply:
    1. If the attachment could be sustained under the circumstances, the effects of the bank might be diverted from their proper disposition. They might not only be misapplied, but greatly sacrificed, and the object of appointing a receiver wholly defeated.
    2. The effects of the bank at the time of the attachment were already in the custody of the law for the general benefit of all the creditors of the institution.
   Miller, J.

This case was brought up by writ of error to reverse the order of the district court of Brown county, rHs-missing an attachment that had been sued out of said court b j Luther Hagedon, this plaintiff, against the Bank of Wisconsin. The facts in the case were these. In May, 1839, an injunction had been issued out of the court of chancery of Brown county, and served on said bank. On the sixteenth day of November, of the same year, the judge of the said court at chambers, appointed Rufus Parks, Esq., to be the receiver of the effects of said bank, for the benefit of the creditors of said bank, and on the same day his bond, with security, conditioned to discharge the duties of his appointment, was approved by the said judge. On the twenty-seventh day of November, in the same year, this writ of attachment was issued, and, by virtue thereof, the sheriff seized and took-into possession personal property of the said bank. At this date the receiver had not reduced any of the funds or effects of said bank into actual possession.

In addition to the general powers of the court of chancery to appoint a receiver in cases of this kind, the court was empowered to do so by an act of assembly of this Territory, authorizing proceedings to be instituted against the bank by injunction, approved March 11, 1839. In 1 Smith’s Ch. Pr. 628, it is laid down that “a receiver appointed by the court is appointed for all parties, and the possession of a receiver appointed in an adversary suit is the possession of him who has the right.” This proceeding seems to have been instituted against the bank for the benefit of its creditors, and the receiver is said, in the opinion of the court below, to have been appointed for their benefit. He was appointed to take possession of the assets and keep them safe for those legally entitled to them, and he is bound by his bond to account for all the assets of the bank at the date of its execution and approval. It is clear, then, that the receiver is a mere recipient or trustee of the property, without power to assign it or exercise acts of ownership in respect of it, but those of a bailee, and has but a qualified property in it. It is no argument in favor of the plaintiff in error that the ownership of the property attached was not divested, if the property were in gremio legis, and that it was so, cannot admit of a doubt. If the charter of the bank should be declared forfeited, it will become necessary to distribute the assets of the bank among its creditors—to accomplish which, it is absolutely necessary that the law should take possession of the funds. An insolvent law in the State of Maryland provided for the appointment of a provisional trustee, to take possession, for the benefit of the creditors of an insolvent debtor, of all his property, estate, effects, books, papers, accounts, bonds, notes and evidences of debts, pending the application of the insolvent debtor for his discharge. Under this law, the supreme court of Pennsylvania, decided in the case of Mullikin v. Aughenbaugh, 1 Penn. 117, that a debt due to one who was an applicant in Maryland for the insolvent laws, and for whom a provisional trustee had been there appointed, is not subject to a foreign attachment in Pennsylvania, it being in gremio legis. This case is precisely similar to the one under consideration. The case of Preston v. The Farmers’ Bank of Delaware, that was cited on the argument, from 12 Pet. 102, does not apply. There the property had been levied on by execution before the attachment was issued or the receiver appointed; and the cause turned on the construction of the act of congress of the 3d of March, 1797, giving the United States the preference in cases of insolvency or voluntary assignments of their debtors.

The court is unanimously of opinion that the order of the district court dismissing the attachment in this case was correct, and do order and adjudge that the same be affirmed with costs.