author: Williams, J.

text:
    Godshalk versus Northampton County.
    1. County auditors filed in the prothonotary’s office a statement of indebtedness of the sheriff and other persons to the county; the sheriff appealed as from a report; an issue was framed on the appeal. He could not after-wards object that it was not an auditor’s report, or to the form of the issue.
    2. There is no prescribed form in which the auditor's report shall be made; or the accounts stated or balance shown.
    3. Including in the reports of the auditors the accounts of persons not sustaining an official relation to the county, did not vitiate the finding as to those whdse accounts they were authorized to audit.
    4. County auditors have power to audit, settle, &c., the accounts of sheriffs, &c., and ascertain the amount of public money received by them, whether they have settled or refuse to produce their accounts.
    5. The auditors in 1866 settled the accounts of the commissioners and treasurer of 1865, and allowed them credits for payments in that year to the sheriff; this was conclusive only on the accounts of the officers which were settled, and did not prevent the auditors in 1868 from ascertaining whether the sheriff had been overpaid.
    6. An Act of Assembly authorized sheriffs, &c., to collect “ 20 per cent, in addition to the fees allowed by law.” This did not authorize adding 20 per cent, to amount allowed for subsisting prisoners.
    March 22d 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton county: No. 306, to January Term 1872.
    In tbe court below this was an appeal entered May 11th 1868, by Benjamin Godshalk, late sheriff of Northampton county, from the report of the county auditors, filed March 23d 1868. On the appeal the court directed an issue in assumpsit to be framed, in which the county of Northampton should be plaintiff and Godshalk defendant.
    On the trial, January 27th 1872, before Longaker, P. J., the plaintiff gave in evidence a paper filed March 23d 1868, and claimed to be the auditor’s report; the heading was as follows:—
    “ Statement of accounts due the county of Northampton by the persons herein named, being the amounts drawn in excess of their lawful claims, viz.—
    Then followed charges against a number of persons, amongst the rest:—

      “Benjamin Godshalk, Sheriff.
    1865. Bill and Order May 5th, No. 262, To add. 20 per ct. on b’ding prisoners, $11.15
    Sept. 1st, 460, do. do. do. 17.00
    Aug. 21st, 424, do. do. do. 19.15
    Oct. 6th, 544, do. do. do. 17.40
    Nov. 3d, 649, do. do. do. 20.59
    Dec. 1st, 716, do. do. do. 17.85
    .14”
    *
    The statement concluded:—
    “ We the undersigned, Auditors of Northampton county, do certify, that we have examined the accounts in the commissioner’s office for the years 1862, 1863,1864, 1865 and 1866, and find the above-named persons indebted to the county as hereinbefore stated, and we hereby recommend the commissioners of said county to cause the said amounts or indebtedness to be collected (through their solicitor), and refunded to the county.”
    February 21st 1868.
    P. A. Fejtchman,
    J. W. Kemmerer,
    J. D. Maughan,
    ) > j
    Auditors.”
    The statement was made up from a number of distinct bills, each of which was marked “ examined and approved” by the solicitor of the commissioners.
    The evidence was that the defendant on the death of his predecessor had been appointed sheriff in March 1865, and continued until December of the same year. An Act of Assembly fixed the price for boarding prisoners at 25 cents per day per prisoner. In March 1865, a general act'was passed which provided that for one year, sheriffs, &c., should have the right to collect “ 20 per cent, in addition to the sum total of all fees now allowed by law.” The defendant complained to the commissioners that he lost money by keeping prisoners at 25 cents’ per day, and they allowed the 20 per cent, additional, which he received from the county treasurer.
    The sheriff was occasionally present whilst the auditors were sitting and his accounts were talked about.
    There was evidence also as to the auditors having made reports for the years 1866 and 1867, and that there had been no report filed by them other than the “statement” given above; that in the previous reports the auditors had allowed the commissioners and treasurer credit for the payment of the accounts charged in the statement against Godshalk. Godshalk had never been called on to file an account or for money due the commissioners.
    The following are points of the defendant: — ■
    “ 3. That the defendant as sheriff, was neither required by law to render an account to the county for money received, by him for boarding prisoners, neither had the county auditors any lawful power, for the purpose of affecting the defendant, to audit, settle, adjust and inquire into the receipts of any money by him through the county commissioners for boarding prisoners, and to report against him a statement of any balance due by him for any overpayments made to him-for boarding said prisoners, nor have the Court of Common Pleas, on the trial of the issue in this appeal, any jurisdiction to inquire into the same subject-matter, and therefore the verdict must be for the defendant.
    “ 4. If the jury believe that the 20 per cent, claimed in this case, was audited, settled and adjusted by the auditors in 1866, to the account of the detailed statement of the county commissioners for the year 1865, then neither the auditors had in 1868, nor have the court now, jurisdiction over the same subject-matter on the trial of this issue, and therefore the verdict must be for the defendant.
    “ 5. If the jury believe that no auditor’s report on the accounts of the commissioners, treasurer, sheriff and coroner, in connection with the statement charging the defendant with money due by him to the county, was filed in the Common Pleas in 1868, then the Court of Common Pleas, on the trial of this issue, has no jurisdiction of the subject-matter of plaintiff’s claim against the defendant, based on said statement, and therefore the verdict must be for the defendant.”
    The court charged the jury that the only question for their determination was how much money, if any, was received by the sheriff over and above 25 cents per day for the board of prisoners, and for that amount your verdict will be for the plaintiff, computing interest from January 1st 1866.
    The verdict was for the plaintiff for $140.38.
    The defendant took out a writ of error, and assigned for error the charge of the court and the answers to his points.

      W. W. Schuyler and O. H. Meyers, for plaintiff in error.
    By Act 15th April 1834, § 48, Pamph. L. 545,1 Br. Purd. 300, pl. 10, the county auditors are directed to “ audit, settle and adjust the accounts of the commissioners, treasurer and sheriff and coroner of the county, and make report thereof to the Court of Common Pleas of such county, together with a statement of the balance due from or to such commissioners, treasurer, sheriff or coroner.”
    The sheriffs’ accounts not being presented to the auditors, they could not pass upon them: Commonwealth v. Fitler, 12 S. & R. 277. Each board of auditors could examine only the accounts of the preceding year: Northampton county v. Yohe, 12 Harris 305; Blaekmore v. Allegheny County, 1 P. F. Smith 160.

      F. J. Fox and M. H. Jones, for defendant in error,
    cited Richter v. Penn Township, 9 Barr 79; Blackmore v. Allegheny County, 1 P. F. Smith 164.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

It is clear that the commissioners had no right to pay the defendant, and he had no right to receive twenty per cent, in excess of the amount allowed by law for boarding the jail prisoners of the county. Having no right to the money he cannot in good conscience retain it, and the county is clearly entitled to recover it back. The judgment in this case, therefore, does exact justice between the parties. But if there was such error in the trial of the issue, as calls for its reversal, it is our duty to correct it. The defendant can raise no question as to his right to appeal, for it was his own act; nor as to the form of the issue, for he did not object to it. The only questions presented by the record are those which arise on the assignment of error to the refusal of the court to charge as requested in defendant’s third, fourth and fifth points, and they will be considered in their order:—

1. The court was asked in defendant’s third point to charge the jury in substance that the county auditors had no power to audit, settle, adjust and inquire into the receipt of any money by the defendant from the county commissioners for boarding prisoners, and to report against him any balance due him for over payments made to him for boarding said prisoners; nor has the Court of Common Pleas, on the issue in this appeal, any jurisdiction to inquire into the same subject-matter.

The court was clearly right, as we think, in refusing to give the instruction prayed for. The law makes it the duty of the county auditors to audit, settle and adjust the accounts of the commissioners, treasurer, sheriff and coroner of the county, and make report thereof to the Court of Common Pleas of the county, together with a statement of the balance due from or to such commissioners, treasurer, sheriff or coroner; and for the discharge of this duty ample ppwer is given them to compel the attendance of the officers whose accounts they are required to adjust, and of any persons whom it may be necessary to examine as witnesses, and also to compel the production of the books, vouchers and papers relative to such accounts; and if any person in possession of such books, vouchers and papers shall refuse to produce them, or if any officer whose accounts are to be settled and adjusted by the auditors, shall refuse to attend or submit to examination, the auditors are required to proceed by the examination of witnesses and other evidence, to ascertain and settle as near as may be, the amount of public money received by such officer, and its application to public purposes or otherwise; and power is given them to compel answers from witnesses to any questions they may put touching the public accounts, or the official conduct of such officers. It is manifest from all the provisions of the statute, that it is the duty of the auditors to ascertain and settle the amount of public money received by any of the officers whose accounts they are required to audit, whether they have settled or refused to produce their accounts. The power of the auditors to settle and adjust the accounts of such officers is not suspended or held in abeyance by their neglect or refusal to settle or produce their accounts. The auditors 'in this case, therefore, did not exceed the power given them by the statute in ascertaining and settling the amount of the public money which the defendant received for boarding the prisoners of the county, and in charging him with the sums he had received in excess of the compensation allowed by law; and making report thereof to the Common Pleas, with a statement of the balance due from him for such overpayment. If the defendant had the right tó appeal, as he unquestionably had, if the auditor’s report was not a nullity, then the Common Pleas had jurisdiction on the trial of the issue, to inquire into the subject-matter of the appeal.

2. The next question arises on the refusal of the court to charge as required in defendant’s fourth point, that if the jury believe that the twenty per cent, claimed in this case was audited, settled and adjusted by the auditors in 1866, in the account of the detailed statement of. the county commissioners for the year 1865, then neither had the auditors in 1868, nor has the court jurisdiction over the same' subject-matter on the trial of this issue. The report of the auditors in 1866, if not appealed from, was conclusive, and binding on the county and the commissioners whose accounts were audited, settled and adjusted by the auditors, and the auditors in 1868 had no power to re-examine and re-settle them even if there were errors in them. But why should the settlement of the commissioners’ accounts be conclusive as to the question of the defendant’s accountability for' the overpayments made him, even if the auditors in 1866 allowed the commissioners credit for them ? The defendant was not a party to the audit, and therefore he was not bound or concluded by it, and it is clear that the county was not, and if so, there was no error in declining to charge the jury as requested.

3. The only remaining question is, whether the court erred in not charging, as requested in the defendant’s 5th point, that if the jury believe that no auditor’s report on the accounts of the commissioners, treasurer, sheriff and coroner, in connection with the statement charging the defendant with money due by him to the county, was filed in the Common Pleas in 1868, then the Court of Common Pleas on the trial of this issue has no jurisdiction of the subject-matter of plaintiff’s claim againsl the defendants, based on such statement.

The record shows that a paper purporting to be the auditor’s report, was filed in the prothonotary’s office, among the records of the Common Pleas, on the 23d of March 1868, and that the defendant appealed from it on the 11th of May 1868. But it is contended that the paper from which the defendant appealed not only does not purport to be an auditor’s report, but that it has not a single ear-mark of such report except that it is signed by the county auditors. If it was not a report of the auditors, why did the defendant appeal from it ? The appeal is an admission that the paper filed by the auditors was their report, otherwise the defendant not being affected by it had no right to appeal. The law prescribes no particular form in which the report shall be made, nor the precise mode in which the accounts shall be stated, and the balance shown. The paper filed by the auditors as their report in this ease is entitled Statement of the amounts due the county of Northampton by the persons therein named, being the amounts drawn in excess of their lawful claims, viz.and then follows among others the account against the defendant as stated by the auditors, setting out specifically and. in detail the sums with which he is charged, and showing the balance due from him, with a certificate of the auditors appended, certifying that they have examined the accounts in the commissioners’ office for the years 1863, 1864, 1865 and 1866, and find the above-named persons indebted to the county as herein stated. It may be that the auditors exceeded their jurisdiction in auditing and settling the accounts of persons who never sustained any official relation to the county, and that their report in this respect is a nullity. But they had jurisdiction of the accounts of the defendant as sheriff of the county, and their settlement of other accounts not authorized by the statute did not vitiate their report as against him; “ Utile per inutile non vitiatur.” Whether the report as made by the auditors has the effect of a judgment is not the question arising here, but whether the auditors had the right to inquire into the accounts and official conduct of the defendant, and ascertain and settle the amounts overdrawn and received by him for boarding the prisoners of the county during the time he was sheriff; and we think they clearly had, and that their report thereof, though in some respects defective, Wilson v. Clarion County, 2 Barr 17, was sufficient to warrant the appeal, and give the Common Pleas jurisdiction of it.

The law and justice of the case are clearly with the county. Public officers should be held to a strict and rigid accountability, and in no case should charges for services exceeding the compensation allowed by law be sanctioned or tolerated.

Judgment affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Metzgar and Gernert’s Appeal.
    1. "Where land is sold subject to purchase-money and interest due a third person, it is a covenant by the vendee to pay such purchase-money: it need not appear affirmatively that such encumbrance was payable out of the purchase-money.
    2. A father conveyed land to a son, subject to a widow’s dower, and by his will directed that the annual interest should be paid to the widow out of his estate. This did not relieve the land from the payment of the principal.
    March 22d 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Lehigh county: No. 323, to January Term 1872.
    In the matter of the account of George Steininger, Jr., one of the executors of George Steininger, Sr., deceased.
    The only question in this case was whether the estate of the decedent or George Steininger, Jr. individually, was liable for the dower of Elizabeth Meitzler, widow of Conrad Meitzler, deceased, charged on land which had belonged to the decedent, and which in his lifetime he had conveyed to his son, George Steininger, Jr.
    The land had belonged to Conrad Meitzler, and under proceedings in partition, on his estate, became the property of George Meitzler, one of his sons. On the 3d of April 1844, George Meitzler conveyed the land to George Steininger, Sr., “ for and in consideration of the sum of $9325 in hand paid by the said George Steininger. Subject, nevertheless, to a dower of $1410.85, and the yearly interest thereof to be paid to Elizabeth Meitzler, widow and relict of Conrad Meitzler, deceased, remaining on the above tract of land, a lien, and payable after the decease of the said widow, to the legal heirs and representatives of the said deceased.”
    On the 15th of August 1848, the decedent entered into articles of agreement with George Steininger, Jr., to sell him the above-mentioned land, “for which said'George Steininger must pay $73 for each and every acre, or in the whole $9145.53. Further, said George Steininger must render to his father yearly and every year, so long as he lives, 30 bushels of shelled Indian corn, 25 bushels of oats, and 6 bushels of buckwheat; also, said George Steininger must in every alternate year chop his father’s firewood in the woods, and haul it home to him, so long as he lives, beginning in the year fifty. Further, my son, George Steininger, shall have $2000 of the said sum as an inheritance, and $550 he has already paid as his down money, and the remaining sum he must pay in gales of $300 yearly, the first payable on the 1st of April 1849 ; for said gales the purchaser must give bonds. Further, it is decided that the said George Steininger dare not sell his farm so long as his father lives, except with his consent.”

      , On the 22d of August 1848, the decedent conveyed the same land to the accountant, “ for and in consideration of the sum of $9145 well and truly paid by the said George Steininger. Subject, nevertheless, to a dower of $1410.85, and the yearly interest thereof to be paid to Elizabeth Meitzler, widow and relict of Conrad Meitzler, deceased, remaining on the above-described tract of land as a lien, and payable after the decease of the said widow to the legal heirs and representatives of the said deceased.”
    George Steininger made his will, dated August 15th 1848, which contains amongst others the following clauses:—
    “ Item: It is my will that my hereinafter named executors shall pay the interest to Elizabeth Meitzler for the dower which lies upon my son George’s land, out of my estate.
    “ Item: It is my will, that my son Solomon, after my decease shall take possession of my land which I yet have, and which I have not-bequeathed to my wife, and, one year after my wife’s death, he shall also have the other buildings and the land; he must, however, pay $50 for each and every acre one year after my wife’s death to the heirs.”
    Elizabeth Meitzler, the widow, having died, George Steininger, Jr., paid the heirs of Conrad Meitzler the amount secured on his land for dower, with interest, and claimed credit for it in his administration account. The legatees under the will excepted to this credit; it was allowed by an auditor and the Orphans’ Court (Longaker, P. J.), on exceptions to the auditor’s report.
    Anna Metzer and Salome Metzgar, two of the legatees, with their husbands, appealed to the Supreme Court, and assigned the decree of the Orphans’ Court for error.

      J. B. Metzgar and B. Albright, for appellant.
    A conveyance subject to the payment of purchase-money and interest to a third person is a covenant by the vendee to pay that money: Campbell v. Shrum, 3 Watts 60; Blank v. German, 5 W. & S. 42; Keim v. Taylor, 1 Jones 163; Burke v. Gummey, 13 Wright 518.

      O. M. BimJc and J. J). Stiles, for appellant.
    By the purchase George Steininger, Sr., assumed payment of the $1410.85 after the death of the widow Meitzler: Hoff’s Appeal, 12 Harris 200; Blank v. German, 5 W. & S. 36; Lennig’s Estate, 2 P. F. Smith 138.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It was decided in Campbell v. Shrum, 3 Watts 60, that the purchase of a tract of land by agreement under seal, “ subject to the payment of the purchase-money and interest” due to a third person, is a covenant by the vendee to pay such-purchase-money and interest. It is a mistake to suppose that it must appear affirmatively that the amount of the encumbrance was retained out of the purchase-money. As remarked by Mr. Justice Strong in Woodward’s Appeal, 2 Wright 322, in Campbell v. Shrum, the consideration named for the stipulated conveyance did not include the purchase-money, subject to which it was sold. In Woodward’s Appeal, a guardian was authorized by the Orphans’ Court to invest the sum of $8750 in the purchase of a house for his ward, subject to the payment of a mortgage, which he did, by deed, in which the mortgage was not recited as a part of the consideration ; it was held, that the guardian had made himself personally responsible. In Burke v. Gummey, 13 Wright 518, the deed was in consideration of $1000, subject to amortgage of $1000. “We have no cases,” says Mr. Justice Strong, “that are not reconcilable with the doctrine that one who purchases expressly subject to an encumbrance as between the vendor and himself, makes the debt his own and assumes to protect the vendor.” Blank v. German, 5 W. & S. 36, was not the case of a purchase but of an assignment to trustees for distribution among creditors. Had it been a purchase the opinion concedes that the case would have been within the principle of Campbell v. Shrum.

That George Steininger, Sr., was personally liable for the Meitzler dower, is undisputed. His deed to his son George Steininger, Jr., for the land upon which it was an encumbrance, subject to that dower, as between him and his vendee, made it the debt of the lattér. Undoubtedly it might be shown that such was not the agreement of the parties; in other words, that the insertion of those words in the conveyance was a mistake of the scrivener. We may conjecture that it was so, from the fact that the articles of agreement for the sale do not contain those words. It is merely conjecture. The existence of the dower as an encumbrance on the land was certainly known to the parties, and the presumption of law is wherever the title is taken expressly subject to it, that it is estimated and allowed for in the consideration. When the question now presented was incidentally before this court in a former appeal of March Term 1865, No. 94, it is said by Lowrie, C. J., in the opinion which has not been reported: “ If there is any mistake in the deed to the son George, we have not the means of correcting it. By that deed the money due to the Meitzlers is charged upon George’s title, and he can claim no relief against it, except that provided in the will, which seems to require that the interest during the widow’s lifetime shall be paid out of the testator’s estate.”

George Steininger, Sr., had an undoubted right by his will to exonerate his son George from personal responsibility for the Meitzler dower. Has he done so ? The will is dated after the articles, and before the conveyance to George. It contains this clause: “ It is my will that my hereinafter named executors shall pay the interest to Elizabeth Meitzler for the dower which lies upon my son George’s land out of my estate.” The contention is that this implies that the principal should be also paid put of his estate. The contrary would rather be the more natural inference. If as now maintained he had sold-by the articles to George clear of this encumbrance, his estate would have been liable both for the interest and principal, and this provision of the will would have been unnecessary. But if George was responsible for-it, then his father intended so far to relieve him as to provide that so long as the widow lived his estate should pay the interest, but no more. If he had intended both principal and interest, he certainly would have said so. It is urged also and seems to have had considerable weight with the auditor in the court below, that while this land was sold to George at $78 an acre, other land was-sold by his father to his brother Solomon at the same price which was entirely clear of encumbrances. We are not furnished with the articles with Solomon. The articles with George introduce other elements into the price of the land besides the $73 per acre. Whether similar stipulations are contained in the agreement with Solomon, we do not know. But even if the value of the two pieces of land was the same and the consideration the same, how can it be a legal inference that George Steininger intended both his sons to have the same advantages from their respective purchases ? We must think this argument entirely inconclusive. There was error, therefore, in the decree. Credit should not have been allowed to the accountant for the principal sum of the Meitzler dower.

Decree reversed, and record remitted that a decree may be entered conformably to this opinion. The costs of this appeal to be paid by the estate.


author: Agnew, J.

text:
    Knecht’s Appeal.
    1. A devise unto my son * * * under and subject to the payment of §7000 in ten equal instalments, without interest until due ; the first instalment in one year after the docease of my wife,” and thereafter yearly. The residue of his estate the testator directed to be divided amongst his other children: the devisee to have no share of the residue, “ he is made equal with my other children in the devise — that is to say in the consideration he pays for the same.” By a codicil “ for more equalizing my children’s shares,” he directed the devisee to pay §2000 when the first instalment was due, and §500 for every year his widow should survive the testator. Held, that the §7000 was a demonstrative legacy payable out of the land, and that it was a charge on the devise.
    2. That its division was under the residuary clause, did not alter its specific character.
    3. The place where the distribution is made will not fix the intent, if the main intent can be gathered elsewhere in the will.

      4. Thfe personal estate being insufficient to pay the debts, the devise had to abate proportionally with the legacies.
    5. The devisee was also executor and paid debts beyond the personal estate shortly after testator’s death; the widow died eighteen years after-wards : when distribution was to be made, having had the land as devisee he was not entitled to interest on the over-payments.
    6. In ascertaining the proportions of abatement, the value of the devise was to be estimated as at the testator’s death, not at the time of distribution.
    7. There were two executors; the legatees, one of whom was an executor, petitioned, without making such executor defendant, for a decree against devisee for the payment of the legacies; under the 59th sect, of Act of February 24th 1834, both executors being in court as parties, the defect might be amended.
    March — 1872.
    Before Thompson, C. J., Askew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of Northampton county: No. 336, to January Term 1872.
    In the estate of Christian Knecht, deceased. Christian Knecht died on the 26th day of December 1849, leaving a will dated July 27th 1849, with a codicil dated December 21st in the same year.
    After directing the payment of his debts he gave to his wife such household furniture as she might choose and other chattels; one-half of his dwelling, and out of his real estate in Fork township, grain, &c., yearly during her life.
    He further provided as follows :—
    “ Thirdly. I give and devise unto my son, Christian Knecht, Jr., all that certain messuage, &c., in Forks township aforesaid, &c., containing about 122 acres of land, &c., under and subject, nevertheless, to the payment of $7000 in ten equal instalments, without interest until due; the first instalment thereof to be paid one year after the decease of my wife, and the second, two years after her decease, and so on yearly and every year until the full amount of $7000 is paid, and under and subject, nevertheless, to the bequest hereinbefore given to my said wife, out of the said real estate during her natural life.
    “Fourthly. I give and devise unto my son, Reuben Knecht, all that certain timber lot, &c., in Bushkill township, &c., containing about six acres of land, &c., this I give to my said son Reuben Knecht, without any other consideration than the parental love for the youngest son, and who is in need for a home.
    “ Fifthly. And as to all the rest and residue of my estate, I give and bequeath in six shares; that is to say, in five equal shares and one-half share.”
    He gave one full share each to his children, Abraham, Jacob, Reuben, Polly Adams, Rebecca Whitesell, and the half share to his grandson, Josiah Brown.
    “ My son Christian Knecht, Jr., is not to have a share out of the residuary part of my estate; he is made equal with my other children in the devise of my plantation to him, that is to say, in the consideration he pays for the same.”
    He appointed his two sons, Christian Knecht, Jr., and Reuben Knecht, executors.
    By the codicil he provided:—
    “ Whereas I have in my said will devised all my real estate in Forks township to my son Christian Knecht, Jr., and the consideration-money for the same is made in yearly instalments of $700 each; and whereas it will be necessary that some of the said consideration-money should be paid down cash at the time when the first instalment becomes due, and for the more equalizing my said children and grandchild’s shares. Therefore I order and direct that my said son Christian Knecht, Jr., shall pay at the time when the first instalment is due, in addition of the same, the sum of $2000, and for every year my dear wife Polly may live longer than myself, the further sum of $500, in addition of the said $2000, and the whole sum thereof shall be deducted out of the latter instalments, and the former or first instalments shall be paid as directed in my said last will and testament hereunto annexed, — mentioned. ’ ’
    The will was proved January 14th 1850, and letters testamentary granted to Christian and Reuben, the executors named in it. Christian also accepted the devise of the farm. Reuben took no part in the settlement of the estate.
    On the 18th of February 1851, Christian filed an account, charging himself with $851 personal estate; his credits were $2954.13, showing in his favor a balance of $2103.13. This account was confirmed absolutely, August 1851. He filed a final account November 19th 1861; in that his debits were $126.37, and his credits $135.38, showing in his favor a balance of $9.01.
    The widow died March 15th 1868.
    On the 14th of May 1869 the residuary legatees presented a petition to the Orphans’ Court, setting out the devise to Christian, &c., averring that the legacy of $7000 had become due, and praying for a decree against him for its payment.
    Christian, by his answer, denied the jurisdiction of the Orphans’ Court in this form of proceeding; denied that the petitioners were the proper parties; averred the $7000 constituted part of the residue “which had been bequeathed to the claimants, and had been-expended by him as executor, in the payment of the just debts of the decedent, and costs and expenses in settling said estate; and' that for such expenditures in excess of his receipts, derived from sources other than the said consideration-money, together with interest from the time of payment, he further claimed that the several legatees and devisees abate proportionally accdrding t©> the value of said devises, on the 26th of December, 1849, tlm day of the death of the testator, or on some other basis of value in conformity with law and equity, or'that the said residuary legatees alone should abate for the same.”
    The matter was referred to,,W. W. Schuyler, Esq., as auditor, to report the facts and state an account.
    ' He reported the foregoing facts, and also found that at the time of the testator’s death this farm was worth about $10,000 ; at the death of the widow, owing to the general increase in value, it was worth about $20,000.
    He further said that the respondent interposed two objections:—
    1. That the money claimed was not a “ legacy charged upon or payable out of real estate,” under the Act of February 24th 1834, sect. 59, Pamph. L. 84, 1 Br. Purd. 450, pi. 222.
    2. If it were such a legacy, there can be no recovery in the present proceeding, because of the nonjoinder of the executors as defendants.
    “The first of these propositions was that the $7000 is not a legacy at all, no person being designated to whom the money should be paid. * * *
    “ It cannot be denied that the bequest to the petitioners is in form''residuary, and that the terms in which it is expressed are broad enough to include an infinite variety of objects; but in the interpretation of wills the language of the testator is always to be read in the light of extrinsic circumstances.
    “ One of these circumstances in the present case is the important fact, that after the payment of debts, and after deducting the bequests to the widow, and the devises of his two sons, there was nothing of the estate left but this consideration-money, and only a portion of that. It is to be presumed that the testator knew .this fact, and that his personal property, not bequeathed to the widow, would be more than exhausted in the payment of his debts. Knowing this, he knew more, to wit: that whatever the form of ¡the bequest to the petitioners, they could take only the consideration-money, as that was all he had left to give, and knowing this, it is a necessary inference that he so intended it. * * *
    “ Another reason for holding that the testator, in bequeathing the rest and residue of hrs estate to the petitioners, had especial reference to the consideration-money, will be found in the fact that in the codicil he refers to this money by name, and directs it to be paid in a different manner from that provided in the will ‘ for the more equalizing his said children and grandchild’s shares.’ This purpose could be effectuated only by -paying the money to the petitioners, and the inference is a fair and reasonable one, that the testator so intended it.
    “ The second proposition of the respondent is, that the consideration-money, though it should be held to be a legacy to the petitioners, is not expressly made a charge upon or payable out of the real estate. It is true that the testator does not in so many words charge this money upon the land, or say that it should be paid out of the land. But this is not necessary. All the authorities agree that it is sufficient, if the intention to charge the land appear under any form of expression; and such being the law, it is difficult to conceive of language more evincive of such an intention, than that used in connection with this devise. The testator devises the farm to Christian, ‘under and subject to the payment of $7000.’ * * * It follows from the above, in the auditor’s opinion, that the testator intended to charge the $7000 on the farm devised to Christian, and that he further intended to give this money to the petitioners as a legacy.
    “ The second objection of the respondents to the form of the present proceeding, even if well founded, would present a proper case for amendment by the court, and the auditor would be justified in treating the amendment as already made. But is the objection well founded ? The act does not direct that the executors should be made parties to the proceeding. It only requires that they should have notice given them, which may be done without making them parties; and such seems to be the interpretation of the Supreme Court. * * *
    “ The requirement respecting notice to the executors has substantially been complied with. One of the executors is a complainant in the bill, apd the other is the defendant. It is true they do not appear as parties in their capacity as executors, but this is not at all necessary to affect them with knowledge of the proceeding. All the act requires is that the court should cause due notice to be given to them, without being nice as to the capacity in which it is received, or the manner in which the information is communicated.
    “ Both parties agree that the whole of the $7000 consideration-money became due and payable after one year from the death of the widow, to wit, March 15th 1869 ; but the respondent claims to offset against this sum the balance in his favor as executor, as exhibited in the accounts filed by him. He also claims interest on these balances, as follows: on $2103.14, the balance of the first account, from February 18th 1851; and on $9.01, the balance of the second account, from November 19th 1868. The petitioners deny that he is entitled to any offset on account of these balances. After deducting devises and bequests, including the $7000 consideration-money, the petitioners admit there was a deficiency of assets for the payment of debts of $1855.90; add to this a reasonable sum for the expenses of administration, and we have in round numbers $2000 of claims against the estate, for which no provision whatever is made in the will. * * *
    “ That the testator, having made his will, should subsequently reflect over its provisions is most natural, and it would not be strange, if at such a time, the thought should present itself, or a passing creditor might suggest it, that the margin he had left for the payment of his debts was entirely too small. As a further warrant for assuming this to be the true state of the present case, we have the fact that this assumption furnishes a key to the interpretation of a portion of the codicil, which cannot be satisfactorily explained upon any other theory. * * *
    “ Holding, therefore, that the testator in his codicil appropriates $2000 of the consideration-money to the payment of debts, which had been overlooked by him when he made his will, it follows that the respondent should have charged himself with these $2000 in his first account, which would have reduced the balance of that account in his favor to $103.14. It also follows that he' has no legal right to interest on the $2000, .and indeed no legal right to offset the principal sum even. The truth is, that this entire controversy respecting the balances of the two accounts, will have to be determined, not upon legal, but upon equitable principles. It is not a question of set-off, but a question of contribution or abatement.
    “ Under the will, as between the respondent and each of the petitioners, the respondent takes the lion’s share. Had the codicil taken from the petitioners $2000 out of their legacy, with which to pay debts, without more, it would probably have worked a revocation of the legacy pro tanto to their increased relative disadvantage. But one of the avowed purposes of the testator in making the codicil is ‘ the more equalizing of his children and grandchild’s shares,” and to this end he quickens the times for paying the instalments of the consideration-money. This, however, would be as a feather in the scale, when weighed against the loss of the $2000 ; so that the reasonable inference is, that the testator did not intend to cast the entire burden of paying the $2000 on the petitioners.
    “ There is nothing in the codicil to indicate how much the petitioners, or how much the respondent should contribute towards the deficiency of assets, and therefore, recourse must be had to the general rule in equity on the subject of marshalling assets. Armstrong’s Appeal, 13 P. E. Smith 312, furnishes the rule, which is, that ‘in marshalling assets for the payment of the debts of a testator, specific devises of land abate proportionably with specific and demonstrative legacies.” There is no difficulty in the rule itself, but in the application of it there is frequently great difficulty, for in that process the authorities furnish no guide, except that the amount of abatement or contribution is to be determined upon equitable principles.
    “ A proper regard for these principles would dictate one year from the death of the widow, the time when the legacy to the petitioners became due and payable, as a fit time for the abatement to take place. At this time the respondent’s devise was worth $20,000. It cost him $7000, leaving as the net worth of the devise to him $13,000. In answer to the respondent’s claim of interest on the balances of his accounts, wre have the fact that he enjoyed uninterruptedly the possession and yield of this valuable farm, subject only to the rights of the widow, for a period of nearly twenty years, without rent, upon a comparatively trifling investment of a little over $2000, whilst all this time the petitioners derived no benefit whatever from the estate of the testator. Eejecting the claim of interest for this reason, it will leave as the deficiency to be made up, the balances of the executors’ two accounts, to wit: the sum of $2112.15. To make up this deficiency, the devise to the respondent and the legacy to the petitioners, under the rule above stated, must abate proportionably. Taking the net value of the farm to be $13,000, and the value of the legacy at its face, the ratio in which they must abate, will be as thirteen to seven. * * *
    “ The total deficiency, including expenses, is $2335.40.
    “ The entire fund which must contribute to make up this deficiency, consists of the valuation-money of the devise to the respondent, and the bequest to the petitioners, and amounts to $20,000, as follows: Devise, $13,000; Bequest, $7000. The proportion of the deficiency, therefore, under the rule above stated, to be paid by the petitioners, is seven-twentieths of the whole amount, or $817.39, and their legacy will have to abate by that amount, leaving a balance due them of $6182-61. This balance became due and payable one year from the death of the widow, March 15th 1868; interest is therefore to be from March 15th 1869 to November 24th 1871, the filing of the report.”
    Christian Knecht filed exceptions to the report of the auditor.
    The court allowed the record to be amended by permitting “the executors to become parties.”
    In deciding on the exceptions, the court (Longaker, P. J.) said, in his opinion : — •
    “ The exceptant contends that the legacies to the petitioners are residuary and general, and that the devise to him is specific; and therefore the residuary fund is liable for the payment of the testator’s debts. * * *
    “ On the one hand, the devisee contends that the debts are to be paid out of the valuation-money, and on the other, the legatees contend that their legacies are at least demonstrative, and perhaps specific, so far as the valuation-fund is concerned, and payable only directly to them; and as the creditors could have enforced the payment of their claims against the real estate, the devisee would be compelled to pay, in order to enjoy and hold the estate devised. The construction contended for by the devisee, therefore, cannot be adopted, because it is so at variance with the expressed intent of the testator (to make an equal distribution of his estate amongst his six children, and a half share to his grandchild), that it cannot prevail. * * *
    “ It is the plain duty of the court so to construe a will that the intent of the testator shall take effect, and where the beneficiaries are his children, in such manner as each shall receive an equal share; and especially is this so when the manifest, intent is an equal disposition. * * * To carry out, therefore, the manifest intent of the testator, so as to make an equal distribution amongst his children, the legacies must be construed to be demonstrative, that is, to be paid specifically out of the valuation-money of the $7000, and being demonstrative, the rule of law is, that they and the devisee must abate pro rata in accordance with the ascertained valuation of each. It is contended by the legatees, that in the event the fund of $7000 is held to be a specific sum for the payment of the legacies, then the only way in which the creditors could secure payment is by obtaining a lien upon the realty; and that the devisee having paid the debts, can acquire no rights superior to those possessed by the creditors, and as no lien has been secured, the respondent can have no claim for payment in this distribution. This undoubtedly is the rule of law; where the executors are not to collect the proceeds of the real estate, and the right of the respondent to payment, if tenable at all, must stand upon some other ground than that the land devised could have been made chargeable for the testator’s debts. * * * The valuation-money being in the hands of the executors for distribution in the Orphans’ Court, the Statute of Limitations does not operate to bar the claim. As all the parties are now in the Orphans’ Court, I take it that in this proceeding there may be a distribution of the fund, with like force and effect, as if an account had been filed with the register, and certified to the Orphans’ Court.
    “ The respondent’s claim for debts paid should not carry interest until interest is chargeable upon the fund, because the devisee has had full enjoyment of the land, subject to the life-estate of the widow. The land, or a sufficient portion thereof, could have been sold for the payment of the debts, and that portion of it which it would have been necessary to sell remaining unsold, and having been actually enjoyed by the respondent, he cannot, by any principle of law or equity, claim interest.
    “ The auditor’s marshalling of the assets is adopted.” * * *
    The report of the auditor was confirmed, except so far as to require an abatement on Reuben’s devise, which was computed at $280.
    The exceptant appealed, and assigned the decree of the Orphans’ Court for error.

      B. F. Fachenthall and O. II. Meyers, for appellant.
    A residuary legacy is a bequest of a testator’s estate not otherwise effectually disposed of by will: 2 Bouvier’s Law Dict. 17; 2 Williams on Executors 1310; Witman v. Norton, 6 Binney 396; Hassanclever v. Tucker, 2 Id. 531. The real estate devised to Christian Knecht, Jr., at a fixed price, and the acceptance by him, operated as a conversion of the same, into personalty to the extent of said price: Chew v. Nicklin, 9 Wright 84; Patterson v. Swallow, 8 Id. 491; Anewalt’s Appeal, 6 Id. 416; Boshart v. Evans, 5 Wharton 561.
    In the present case there was an absolute devise to Christian Knecht, Jr., at a valuation and acceptance, depending on no contingency, and the devisee having actually accepted it, such acceptance, eo instante, operated as a conversion.
    A residuary legatee can demand contribution for nothing : McGlaughlin v. McGlaughlin, 12 Harris 20; McCracken’s Est., 5 Casey 426; 2 Williams on Ex’rs 1224. The executors had the right to demand and receive tfie consideration-money of real estate devised, which falls in the residuum of the estate: Hart v. Homiller, 8 Harris 249.
    There are legacies of quantity in the nature of specific legacies, as of so much money with reference to a- particular fund of payment. These are demonstrative legacies: 2 Williams on Ex’rs 1042,1048,1051 ; Armstrong’s Appeal, 13 P. F. Smith 316. The statute does not run in the Orphans’ Court for distribution: McCandless’s Est., 11 P. F. Smith 9; Micheltree v. Veach, 7 Casey 455; Alexander v. McMurry, 8 Watts 504.

      JE. Allis and YT. Green, for appellees.
    The will nowhere declares that the $7000, or any of it, shall be applied to the payment of debts. The first clause of the will directs “ that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease.” By this clause the testator establishes an event, to wit: His own death, for the computation of the time within which his debts are to be paid; not after his widow’s death, nor their joint deaths, but after his own death alone. But the $7000 are not to be paid until the death of the widow. It not only cannot be inferred, therefore, that the testator intended the $7000 as assets for the payment of debts, but it must necessarily be inferred that he could not have had such a thought.
    The source from which the $7000 are to come is to be held intact so far as the testator’s contemplation is concerned during all this time. It must be inferred that this testator supposed that his personal estate would suffice to pay his debts, and leave a surplus besides, and to have made his testamentary provisions in accordance with that idea: Miller’s Appeal, 10 P. F. Smith 404.
    It was the testator’s intention to make his other children as nearly equal with Christian as possible considering the valuable devise made to the latter. To make them exactly equal would of course be impossible, for at any rate of valuation, even the lowest, of $10,000, Christian would get $3000 and the other six would get but the $7000 between them, less than $1300 to a share. Rut to hold that the $7000 must pay the debts exclusively, would of course very greatly increase the inequality in Christian’s favor, and against the other legatees. The general idea of equality among all the children is the leading sentiment. Christian is declared to be made equal with the rest. Rut how are they to be equalized ? In the testator’s contemplation, it is “ in the consideration he pays for the same,” i. e. in the money that Christian was to pay for the land. Rut if the land was to be the equalizing feature as against the consideration-money, it would of course be necessary that if Christian got the land, his brothers and sisters should have the considerat'ión-money. It is payment of the consideration-money by Christian that the testator considered would equalize him with the others. Rut that could only be possible by the payment to them. The payment by Christian to himself as executor, would not have that effect, and certainly this would be so, if being paid to himself it was to be applied to the payment of debts to which Christian was to make no contribution.
    . Was the intent of the testator that the legatees other than Christian should take this particular fund? if he did, the legacy is either demonstrative or specific according as we view the character of the fund itself. Whether as being a portion of the whole valuation of the farm and a sum payable therefrom, or as a gross sum of money specifically payable by itself as a condition, or in consideration of the devise. Rut in neither nor in any event can the codicil be regarded as disposing of the residue, distinctively such: 2 Redfield on Wills 472; Hoover v. Hoover, 5 Rarr 351. The law so interprets wills, in cases of doubt, as that equality of distribution shall take place: Amelia Smith’s Appeal, 11 Harris 9; Weber’s Appeal, 5 Id. 474; Weaver’s Appeal, 13 P. F. Smith 311; Green v. Moore, 1 Stewart and Porter 212; Horwitz v. Norris, 10 P. F. Smith 287; Marshall’s Appeal, 2 Rarr 388; Hennershotz’s Est., 4 Harris 435; Hallowell’s Est., Teas’s Appeal, 11 Id. 223 Loomis’s Appeal, 10 Rarr 387.
    Christian Knecht’s position is that of one of several beneficiaries of a testator’s bounty. He is a specific devisee of land. His brothers and sisters are residuary legatees it is true, but they are also by the manifest intent of the testator specific or demonstrative legatees of'a sum of money to be paid by him. When, after old Christian Knecht’s death, claims were presented to an amount greater than the personal estate, he had a right, and it was his duty, to sell under the order of the Orphans’ Court so much of the farm as was necessary to pay the claims. Having done this he could assert to us that he had been deprived of a portion of his devise, and as the devise was by that much diminished in value, he could ask an abatement in the amount of the money charge, which by the will he was required to pay to us.
    ' General and specific legatees abate between themselves according to the value of their legacies, at the end of the year from the testator’s death, this being the time at which legacies are payable, unless any other time of payment be mentioned ; and if a different time be appointed for payment, then the value of their respective legacies must be calculated from such time of payment: Preston on Legacies 360. The farm was not devised to Christian at a fixed value at all, but only subject to a charge. When the testator excluded Christian from the residue he assigned as a reason that Christian was already made equal with the others in the devise of the land, in the consideration-money he was to pay for it.
    May 13th 1872,
   The opinion of the court was delivered, by

Agnew, J.

We agree with the Orphans’ Court in the opinion that the sum of $7000 directed by Christian Knecht, the testator, to be paid by his son Christian Knecht, the appellant, was charged upon the farm devised to the son. He was to take it under and subject to the payment of this sum, and the codicil declares it to be the consideration-money of his land. The intent to charge is plain. The proceeding to recover the legacy was properly under the 59th section of the Act of 24th February 1834. The objection that the executors of the will were not made parties is unfounded in fact. The petition sets forth expressly that letters testamentary were issued to Christian Knecht and Reuben Knecht, one of whom was a plaintiff and the other the defendant. The parties were therefore in court, and the petition was merely informal in its mode of statement, and not substantially defective. The informality was properly permitted to be amended. No objection can be urged against the jurisdiction of the court. And even if the proceedings were not under the 59th section, the Orphans’ Court has jurisdiction generally to enforce the payment of legacies under the 47th section of the Act of 1834. The intent of the testator in this will was to make the sum of $7000 payable out of the land devised to Christian, and hence this sum is, in its nature, plainly demonstrative. The fact that the division of it takes place under the residuary clause does not alter its specific character, or the intent of the testator in regard to it. The place alone, where the distribution is made, will not fi^ the intent, if the purpose of the testator can be gathered elsewhere in the will; but we must be governed by his main intent. The reasons leading to the conclusion that the sum of $7000 charged on the land, is demonstrative, are so fully given in the opinion of the court, and the argument of the counsel of the appellees, that we need not refer to them. This being the character of the fund and the source of its payment, the question whether there is other estate to pass under the residuary clause becomes immaterial. It turns out that the personal estate was insufficient to pay the debts, and the real estate was therefore liable for the deficiency. The sum payable out of the farm being demonstrative, it follows that the owners of the realty must suffer a ratable abatement to the extent of the debts, which were liens, on the real estate. This deficiency was made up by Christian Knecht, who was both devisee of the farm and executor of the will. It amounted to little over $2000, and was paid by him within a year after the testator’s death and settled in his account as executor. The sum charged on his land was not payable, however, until after the death of his mother, which occurred nearly twenty years after the settlement of the account. He therefore claims interest on the balance of his account as executor.

But under the circumstances he is not entitled to interest. When he paid the money he stood in the double capacity of a devisee and executor. As executor it was in his power and it was his duty to have procured an order to sell the land for the payment of the debts. As executor he could not pay the debts out of his own pocket, and wait until after the lien of the debts thus paid had expired. In this respect the executor or administrator is bound to the same diligence as the creditors: Clauser’s Estate, 1 W. & S. 208; McCurdy’s Appeal, 5 W. & S. 397; Loomis’s Appeal, 5 Casey 237. When then as devisee and owner of the land he chose to retain it, and waive the sale he might have made as executor, he elected to take so much of the land as was equivalent to the amount of the debts, and thus assumed the deficiency. The possession and usufruct of .the land thus retained were in law the equivalent of the interest on the debts, while the principal only would be a credit in the payment of the $7000, he himself contributing his ratable proportion on account of the devise to him. So far the decree of the court was right, and this leads us to examine the manner of adjusting the abatement between Christian, as devisee of the land, and his brothers and sisters, as the owners of the legacies charged upon it. The Orphans’ Court adjusted it by the proportion which the sum of $7000 bore to the value of the real estate. This was correct. Abatement in such case is the act of the law, taking into view the whole scope of the will and the actual intent of the testator, and arriving at what, it is believed, would be the intention of the testator, had he known of the deficiency and undertaken to make the abatement himself. The intention of the testator as gathered from his will is, therefore, still the polar star of the interpretation, and of the adaptation of the abatement to the new situation, which then must be reached on principles of justice and equity. At this point, we think, the Orphans’ Court made a slight departure, requiring a modification of the decree. The Orphans’ Court took the value of the land at the time of adjustment, instead of the time of the testator’s death, as the measure of proportional abatement of the devisee of the land. This was an error. When the testator made his will, he formed his plan of the distribution of his estate, as the facts then appeared before his mind. In looking at what it would be just to give Christian in land, and what to the others in money, he had in his view the value of his property as he then knew it, and not a state of things to happen twenty years afterwards, when his land might appreciate or depreciate. The value of his land then, and the sums to be paid out of it, he fixed in his mind then, as the proportions proper for his children. He certainly did not look forward to the existence of adventitious, or it may be fortuitous circumstances, as the means of regulating his bounty. If within a year after Christian took his devise, the house and barn were destroyed by wind or fire, the loss would be his, and not that of those to whom the $7000 were bequeathed. So an adventitious rise in price in the land would certainly be his and not theirs. Had the testator then known that he was in debt $2000, which must be paid out of his land, debts which must be paid at his death, he certainly would not have adjusted the abatement between Christian’s land and their money, on an unknown and prospective value, but he would have done it on the valuation he would then make in his mind. He knew that his will would take effect at his death, and that the rights of creditors would then attach, and would not wait on distribution under his will. Had an executor sold the land, or the devisee then paid the debt, it is evident the loss would have been according to the then value of his land. The postponement of the time of settlement, by the sufferance of a devisee who had paid the debt, clearly would not add to the right of those who were to receive their share in money, at sums then fixed in amount, and in just proportion, as the testator willed it, to the value of his property. It seems to us, therefore, that the only fair adjustment of the abatement should be upon the basis of the value of the estate as it was at the death of the testator, and when the debts were paid by the devisee. The decree of the Orphans’ Court is therefore affirmed, subject to a modification as to the value of the land devised to the appellant, which is to be ascertained as of the time of the testator’s death; and the record is ordered to be remitted to the Orphans’ Court with instructions to carry this modification into effect. The costs of the appeal to be paid out of the estate.


text:
    Weiler, Assignee of Smith, versus Coleman et al.

    1. Under the Act of April 10th 1862, for the protection of logs on the Susquehanna, evidence that the stamps were those of a plaintiff in replevin, regularly registered, is not essential to prove that the logs were his property.
    2. That the plaintiff was engaged in lumbering on a tributary of the West Branch of the Susquehanna, that the logs were stamped with his mark, that no other logs had been known to be so stamped, and no other person had ever claimed from the boom company logs so stamped, was presumptive evidence that the logs were his. '
    March 26th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 288, to January Term 1871.
    This was an action of replevin issued, September 19th 1868, by David A. Smith against Fletcher Coleman and others for 80,000 feet of pine lumber. The plaintiff having afterwards made an assignment to James Weiler for the benefit of creditors, the assignee was substituted as plaintiff.
    On the trial, October 25th 1870, before Gamble, P. J.,the plaintiff gave evidence that he was engaged in lumbering in Potter. county on Slate run, a tributary of Pine creek, which empties into the West Branch of the Susquehanna. In 1863, D. Rader was doing business for him, but was not his agent.
    The plaintiff then made the following offers of evidence, all of which were rejected by the court, and several bills of exception sealed:—
    1. The record of the Court of Common Pleas of Lycoming county, Pa., to show the registry of the log marks of D. A. Smith, under the provisions of the Act of April 10th 1862, said statement and certificate having been filed and registry made April 25th 1863.
    The certificate was as follows:—
    “ To 0. D. Eldred, Esq.,
    Prothonotary, &c.

      “ Agreeably to the provisions of the Act of Assembly of the 10th day of April, A. D. 1862, the undersigned has adopted and now states to you as his mark of designation, to be placed upon his logs, &c., to be floated upon the Susquehanna river to the boom at Williamsport, the letters ‘ U T’ and also the figure (a brace and bit).
    “ I do further certify that such marks have been adopted and will be used by me., April 17th 1863.
    “ S. D. Rader, for D. A. Smith.”
    2. Plaintiff renewed the offer, to be followed by evidence that ■the lumber in dispute was replevined at Coleman’s mill, along the bank of the West Branch of the Susquehanna river, and sawed from logs floated down said stream into the Susquehanna boom at Williamsport, and from thence taken to said mill; and said logs being marked UT and “brace and bit.”
    3. Certified copy and exemplification of record of Court of Common Pleas of Lycoming county of the log-marks of David A. Smith, under provisions of the Act of 10th April 1862, entitled “An act for the more effectual protection of the owners of logs and lumber on the Susquehanna river;” — and this to show that U T and “ brace and bit” were the registered marks of said Smith, and as evidence that he was the owner of logs so marked, and to be followed by evidence that said logs were not registered in the name of any other person or persons whatever, and by other evidence that defendants caused their own marks to be stamped over the marks of said Smith, and that the logs so restamped were taken by defendants’ agents from the Susquehanna boom to Coleman’s mill and converted into lumber, which lumber was replevined at said mill upon the writ issued in this case.
    »4. To prove that David A. Smith was engaged in lumbering upon the West Branch of the Susquehanna river and its tributaries from 1862 to 1870, inclusive; that during all that time he used the marks U T and “ brace and bit” upon all of his logs, and that no other person or persons ever used said marks; — and this as evidence to show property in David A. Smith in the logs from which this lumber was manufactured.
    5. To prove by John Davis that he has constantly worked upon the Susquehanna hoom for the past ten years and upwards; that during all that time the marks U T and “brace and bit” were recognised by the officers of the boom company as the property of D. A. Smith, and that no other person ever claimed ownership in logs so marked; and this as evidence to show property in logs so marked in D. A. Smith.
    The jury, under the direction of the court, found a verdict for the defendants.
    The plaintiff took a writ of error, and assigned for error the rejection of his offers of evidence and the instruction of the court.
    The Act of April 10th 1862, Pamph. L. 383, 2 Br. Purd. 960, pi. 19, &c., provides:—
    “ Sect. 1. That it shall and may be lawful for any person or persons, party or company, engaged in lumbering, in any manner, upon the West Branch of the river Susquehanna, or any of its' tributaries, to adopt one mark of designation, which mark may be either in letters, figures, words, names or other devices, at the discretion of such person, party or company, wherewith to stamp or mark all logs, &c., or other lumber, put, or intended to be put, in said stream or its tributaries, to be run, &c., to any mill, booms or markets anywhere, at or above the Susquehanna boom at Williamsport, and to furnish to the prothonotary of the Court of Common Pleas at Williamsport, in the county of Lycoming, or other county where the said kinds of lumber shall be put into said stream or tributary, a statement, in writing, of the mark so adopted, as aforesaid, with a certificate appended, that the same has been so adopted as a mark of designation, as aforesaid, signed by the person, party or some officer of the company adopting the same, as aforesaid; and no person, party or company shall be entitled to adopt more than one of any of the kinds of marks aforesaid as a mark of designation, but any such person, party or company shall not be prohibited from using any other mark or marks, in addition to the mark of designation, for distinguishing different kinds or lots of lumber, or lumber obtained from different localities, so always as that it interferes not with the mark of designation of any other person, party or company; and it shall be the duty of the prothonotary aforesaid to receive and file of record, in his office, any mark stated and certified as aforesaid, and to give a certificate thereof to the person filing the same, and certificates thereof, from time to time, to any person demanding the same, under his hand and seal of the court; * * * and the said certificates shall be prim& facie evidence of the right of the person, party or company filing the same, to the use of the mark mentioned therein, and that all logs, &c., in and along said streams, or in and along the main river Susquehanna, are the property of the person, party or company whose mark of designation, duly registered, as aforesaid, shall be thereon, the right to the use of any mark of designation, as aforesaid, and no mark of designation, as aforesaid, shall be received or filed, or certificate given therefor, by the prothonotaries aforesaid, if the same shall have been previously registered — it being the true intent and meaning of this act to prevent the use of the same mark of designation by more than one person, party or company.”

      O. D. Emery, for plaintiff in error.

      W. E. Armstrong and S. Linn, for defendants in error.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

If it be conceded that the record of the log-mark adopted by the plaintiff’s assignor was not admissible in evidence under the Act of 10th April 1862, because the certificate required by the act was not signed by him, but by his agent, it does not follow that the other evidence offered in support of his title to the lumber, ought not to have been received as primfi facie evidence of ownership.

The replevin was for four piles of white pine lumber at defendant’s saw-mill, containing about eighty thousand feet, which the plaintiff alleged had been sawed out of logs belonging to his assignor, David A. Smith. In order to show his ownership of the logs, the plaintiff offered to prove that Smith was engaged in lumbering upon the West Branch of the Susquehanna river, and its tributaries, from 1862 to 1870; that during all that time he used the mark U T and brace and bit upon all his logs, and that no other person or persons ever used said mark; that it was recognised by the officers of the Susquehanna Boom Company as the property of said Smith, and that no other person ever claimed ownership of logs so marked; that the lumber'in dispute was replevined at the defendants’ saw-mill, along the West Branch of the Susquehanna river, and sawed from logs floated down said stream into the Susquehanna boom at Williamsport, and from thence taken to said mill — said logs beings marked U T and brace and bit; that they, were not registered in the name* of any other person or persons whatsoever, and that defendants caused their own mark to be stamped over the mark of said Smith, and that the logs so re-stamped were taken by defendants’ agents from the Susquehanna boom to the defendants’ mill, and converted into the lumber replevied at said mill upon the writ issued in this case. This is the substance of the evidence offered by the plaintiff, and we think that it should have been allowed to go to the jury. If the assignor was engaged in lumbering, as stated in the offers, and if he stamped all the logs which he cut in the forest and prepared for market, with his mark, how could he show title to them, after they were floated down the river, and caught with other logs in the boom at Williamsport, except by showing that they had his mark on them, and the mark of no other person, denoting their ownership ? If they were not his logs, why were they stamped with his mark ? The presumption is always in favor of honesty; and if so, the reasonable inference would be, that the logs were rightfully in his possession, when he stamped them, and that he stamped them with his mark because he owned them. The evidence offered was, therefore, sufficient to make out a prima; facie case of ownership without showing that he purchased the logs, or that he was the owner of the land on which they were cut. If it had been received, it would have been incumbent on the defendants, if they stamped their mark over the plaintiff’s when the logs were in the boom, and afterwards took them to their mill and sawed them into lumber, to show a better title than that shown by the plaintiff, otherwise he would have been entitled to recover.

Judgment reversed, and a venire facias de novo awarded.


text:
    The Pennsylvania Railroad Company versus The Titusville and Pithole Plank Road Company.
    1. Whatever an agent does or says in making a contract is evidence against the principal, being part of the contract.
    2. The admissions of an agent not made at the time of the transaction but subsequently, are not evidence.
    3. Plank to construct a plank road was delivered at a station of a railroad, to be transported to another station ; the company did not transport it; if liable in damages, the measure would be the difference of value of the plank at the first station and the station to which it was to be carried, deducting cost of transportation ; provided such lumber could be obtained at the latter station and that the carrier should compensate for the delay from his failure.
    4. The increased expenses of putting down the plank in consequence of the delay is too remote.
    5. The measure is compensation : such damage as might reasonably have been anticipated and been within view of the parties.
    6. Plaintiffs contracted for the purchase of plank and employed defendants to deliver it at a certain point; in an action for failure to deliver, evidence was admissible for the defence that portable mills could have been erected, plank manufactured and. delivered at the point within the time and at the price plaintiffs were to pay under their contract.
    7. It was the duty of the plaintiffs, when they were notified of the inability of the defendants to deliver the lumber, to adopt every feasible means to supply themselves.
    8. Hough v. Doyle, 4 Rawle 291, adopted.
    March 26th 1872.
    Before Thompson, C. j., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: No. 373, to January Term 1871.
    This action was brought, November 9th 1869, by “ The Titus-ville and Pithole Plank Road Company against The Pennsylvania Railroad Company, lessees of the Philadelphia and Erie Railroad Company.”
    The cause' of action was the non-delivery by the defendants of plank for the construction of the plaintiffs’ plank road.
    The declaration was, that the plaintiffs had 912,812 feet of plank at Columbus and Lovell stations, on the Philadelphia and Erie Railroad, and delivered the plank to the defendants to be carried to the city of Corry for a reasonable reward, &c., that the defendants agreed to carry it to Corry, but afterwards refused to do so ; whereby the plaintiffs suffered damage “ by extra cost of transportation, loss on plank at Columbus, extra cost and labor in building said Titusville and Pithole Plank Road, for which said plank was specially intended; and by the non-transportation of plank the plaintiffs have suffered great loss in the delay in the completion of their road, and the loss of tolls and travel thereon, and the extra cost of regrading the same, and the cost of passage through adjoining land during the said extra grading,” &c.
    Additional counts were afterwards filed, charging the defendants, as common carriers, with having as such received a large quantity of lumber at Wilder’s station and Lovell’s station, to be conveyed from that place to Corry, and therefore being bound by law to carry the lumber to Corry. Also that the defendants, as common carriers, “ by the custom of the country,” were bound to receive and transport goods on their railroad, and received the defendants’ lumber from Wilder’s and Lovell’s station, to be transported to Corry to be delivered according to the tariff of prices of the defendants, but the defendants refused to transport the lumber, &c., and the plaintiffs sustained damage by reason of having to hire teams at an advanced rate, on account of not having plank to construct their road; plaintiffs’ hands continuing out of employ; having to regrade the road; loss of profits; additional cost of constructing the road in an inclement season; purchase of new plank by which the other lumber became of little value. The other counts did not differ materially from this.
    The ease was tried, September 6th 1870, before Johnson, P. J.
    Corry, at which place the plank was to have been delivered by the defendants, was on the Oil Creek Railroad, twenty-six miles distant from Titusville.
    J. J. Holden testified that on behalf of the plaintiff he saw W. A. Baldwin, the superintendent of the defendants, on the 26th of July, and in August 1865, to ascertain why the plank had not been shipped; Baldwin said arrangements had been made to ship it; to be shipped at the rate of six car-loads per day. Witness said they talked about the purpose of the plank.
    Oliver Keys, superintendent of the plaintiffs, testified: That the plaintiffs, about the 25th of July, had contracted with Packard & Co. for 3,600,000 feet of plank to be delivered on the 1st of August at Wilder’s station, on the Philadelphia and Erie Railroad, about two-and-a-half miles from Corry; Packard & Co., according to their agreement, commenced delivering at Wilder’s on the 1st of August, and always had there not less than 200,000 feet; the plaintiff always had men to load the plank. Witness saw Baldwin about the delay in delivering the plank; he said he would remedy it; that one cause of delay was that the Oil Creek Railroad had been blocked up with freight, and he could not get a transfer. Witness said that the plank were to be transported at the rate of six cars per day; the plaintiffs were to pay regular tariff prices. Witness talked to Baldwin strongly about haste, and the importance of having the road done before frost, and the building of a pipe line to divert the oil from the road; “ Baldwin said he understood the condition of things.” Defendants transported at different times 435,052 feet in all. Witness testified as to the extra cost of hauling the plank, &c. by teaming, beyond that which they were to pay to the defendants. They also gave evidence that they had sold some of the plank which they expected defendants to transport, and that 400,000 feet were unsold and were burned ; that the plank was not merchantable except for plank-road purposes. The only arrangement witness made with Baldwin was on September 4th.
    Gr. H. Coney testified that he saw Baldwin on the 19th of September 1865; Baldwin said he would give instructions for cars to be put at Wilder’s station; the lumber not being delivered witness saw Baldwin again on 26th September and asked for cars; he said he would send some the next day; there was no specific number of cars agreed on between witness and Baldwin.
    The plaintiffs gave evidence that after failing to get the lumber delivered by the defendants they had advertised extensively for teams to draw the lumber; that they had paid high prices for the hauling; that the roads had become so bad they had' to repair them; that the delay put them into the inclement weather of the fall and winter; that they had to purchase other plank at an increased price, and had sold the plank delivered by Packard & Co. at Wilder’s station, which the defendants should have transported at a reduced price, &c., with other evidence, for the purpose of showing the loss they had sustained by the failure by the defendants to deliver the plank.
    Baldwin testified for the defendants that the siding at Wilder’s was a private siding at which the defendants kept no agent; there was no special contract between witness and plaintiffs’ agents; witness had said he would endeavor to move the plank, and gave instructions for the purpose.
    During the trial the plaintiffs proposed to prove that on account of the delay caused by defendant in forwarding plank the plaintiffs were obliged to incur additional expense in regrading their roadbed several times.
    Also they had to pay more for hauling the plank to the points of destination than if the plank had been transported by defendants, and also to pay more for labor in constructing the road, also loss on the lumber not transported.
    Defendants objected to the offers for the reason they are not the proper measures of damages. They were admitted and a bill of exceptions sealed.
    The defendants gave evidence also of a great accumulation of cars on the Oil Creek road, so that they could not transfer their lumber, and that this was the cause of delay in transporting lumber.
    They proposed to prove by E. H. Wilder and others, that mills could have been erected and the lumber manufactured to the amount contracted by plaintiffs from Packard, Abel & Co., and delivered on the line of the Oil Creek road within the time and at the price specified in said contract.

      This offer was rejected by the court and a bill of exceptions sealed.
    The following are points of the defendants with the answers:—
    2. The defendants as common carriers were not bound to receive freight on the line of their road except at the regular stations, and unless there was an agreement on their part to receive at Wilder’s private siding a certain specified amount of freight, they could not be held for refusing so to do.
    Answer. “ To the 2d point we have given a sufficient answer in our general charge. It is true, except when some obligation arising from a contract, express or implied, to do so imposed on it the duty so to do.”
    4. The measure of damages is the difference between the price of lumber at Wilder’s siding, the point on defendants’ road from which it was to be transported and at Corry, at which place it was to be transferred to the Oil Creek road for Titusville, after deducting the cost of transportation.
    Answer. “If the 4th point intends to assert that the difference in the value of lumber not moved at Wilder’s siding and Corry is the only measure of damage in the case, we dissent from it. This is undoubtedly one element in estimating the damages. Other matters may he taken into the computation as explained in our general charge.”
    6. There is no evidence in the case of a special contract making the defendants liable beyond their ordinary obligations as common carriers.
    Answer. “ The 6th point is referred to the jury.”
    8. The evidence of the price of lumber at Titusville, the additional expense of hauling and delivering the plank on and along the plank road, and in laying the plank, and the additional cost of labor on the road, are not competent evidence to go to the jury in finding the amount of damages.
    “ This 8th point is answered in the negative.”
    The court in the charge, after giving a synopsis of the evidence of J. Holden, Hays and Coney, said:—
    * * * “This is the direct evidence from which the plaintiffs ask you to say by your verdict that there was a contract by which the defendants, through their authorized agent, Mr. Baldwin, undertook and promised to furnish cars and transport their lumber in proper season from Wilder’s siding and Lovell’s station to Corry.
    “ To this they add the circumstantial evidence surrounding the case, namely, the fact that after each promise, there was a partial fulfilment. Cars came spasmodically, and then, without any notice or reason given, would cease. Cars to the number of seventy-seven were sent, and lumber to the amount of 435,000 feet was moved as desired.

      “ Does this evidence satisfy you that a specific contract was made as claimed by the plaintiffs? All that was necessary to constitute it was a promise on the part of Baldwin to do what the plaintiffs requested. Such a promise as, if performed, would have been beneficial to 'the plaintiffs, and made in such a way as to justify the plaintiffs’ agent in relying upon it as absolute and unconditional, except in the matter of inducing the Oil Creek Railroad to take the cars transferred without delay. If so, one principal difficulty in the case is disposed of. * * *
    “It is the law, as claimed by the defendants, that the duty resting on it as a common carrier did not bind it to surmount every obstacle, and transport freight against existing impossibilities.
    “ Sudden emergencies and extraordinary disasters would excuse from a prompt execution of that duty.
    “But as against a special contract to do a particular thing, these excuses would not be available. No blockade of its road, or crowd of other freight, would justify the breach of a special contract to forward and deliver freight at a specified time and place. Against such contingencies the party might have guarded in its contract. If that is not done, it must comply with' its contract, or pay the damages for non-compliance. If then you believe there was such a contract as the plaintiffs allege — to run six carloads per day, — the defendants were bound to do it, and the question of blockade, &c., does not arise, and may be left out of view, unless you believe the obstacle or hindrance was one provided against in the contract, or which the plaintiffs were bound to remove.”
    The verdict was for the plaintiffs for $17,582.08. Their 3d and 6th assignments of error were the portions of the charge of the court above given, and the answer to the defendants’ 6th point; the 5th assignment of error was the answer to the defendants’ 4th point; the 10 th assignment was to the rejection of the defendants’ offer of evidence.

      J. R. OlarJc and J. Ross Thompson, for plaintiffs
    in error, as to measure of damages, cited O’Conner v. Forster, 10 Watts 418; McGovern v. Lewis, 6 P. F. Smith 231; Fessler v. Love, 12 Wright 407; Adams’s Express Co. v. Egbert, 12 Casey 360.

      F. B. Q-uthrie and J. Douglass (with whom was R. Brown), for defendants in error.
    Whether there was a special contract was for the jury: 2 Redfield on Railways 178; Angell on Carriers 269, pl. 294; Story on Bailments 545; Hand v. Baynes, 4 Whart. 204. As to the measure of damages: Collins v. Baumgardner, 2 P. F. Smith 461; Masterton v. Brooklyn, 7 Hill 61; Hoy v. Gronoble, 10 Casey 9.

      May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

We think there was no evidence of a special contract which ought to have been submitted to the jury. The evidence consisted entirely of alleged admissions by Baldwin, the superintendent of the Pennsylvania Railroad, from which the jury were left to draw the inference that there had been a prior special contract. Nothing is better settled than that it could not be so found. The general rule on this subject is very clearly and succinctly stated by Mr. Justice Rogers in Hough v. Doyle, 4 Rawle 294. “ When it is proved that one is the agent of another, whatever the agent does, or says or writes in the making of a contract, as agent, is admissible in evidence against the principal, because it is part of the contract which he made for his principal, and which therefore binds him, but it is not admissible as to the agent’s account of what passes. For example, the declaration of a servant employed to sell a horse, is evidence to charge the master with warranty, if made at the time of the sale; if made at any other time the facts must be proved by the servant himself. The admissions of an agent, not made at the time of the transaction, but subsequently, are not evidence. Thus, the letters of an agent to his principal, containing a narrative of the transaction in which he had been employed, are not admissible in evidence against the principal.” It would be a mere affectation of learning to cite the long array of cases from Hannay v. Stewart, 6 Watts 487, to Fawcett v. Bigley, 9 P. F. Smith 411, in which this rule has been reiterated and applied. The declarations in question were certainly admissible as those of an agent of a common carrier in the course of his employment as such, but not to prove a prior special contract. And indeed admitting that these declarations could be used for such purpose, the inference attempted to be drawn from them was a very strained one. This sustains the 1st, 3d and 6th assignments.

The next important question is, whether the ruling of the judge below as to the measure of damages was accurate. We need not consider how it would have been had there been a special contract. The undertaking of the railroad company and their duty as common carriers was to furnish cars and transport the lumber of the Plank Road Company from Wilder’s siding and Lovell station to Corry. From there it was to be transported over the Oil Creek Railroad to Titusville. The-duty of the Pennsylvania Railroad ended at Corry. What then ought to be the measure of damages on the failure of duty of the railroad company to transport to Corry ? The rule is compensation; such damage as might reasonably have been anticipated, and within the view of the' parties. The measure then would be as the court would seem in part to have admitted, “ the difference between the price of lumber a.t Wilder’s siding, the point on the railroad from which it was to be transported, and at Corry, at which place it was to be transported to the Oil Creek road for Titusville, after deducting the cost of transportation.” It is true, this rule must be received with the necessary qualification, that lumber of the kind required in sufficient quantities could be obtained at Corry, and that the common carrier must compensate for whatever delay might arise from his failure; but to say that the increased expense of labor in putting down the planks in consequence of such delay, would be such an immediate and proximate effect as ought to be charged to the common carriers, seems to be entirely too indefinite. It would include a rise of wages — stormy weather — bad roads in consequence— which would be entirely beyond what would naturally have been within the view of the parties, and might well have happened even had the railroad company punctually performed their duty. The natural consequences of delay and stoppage of work and payment of wages, and expenses arising therefrom, and the loss from not having the work finished at the time it otherwise would have been, form the rule.

We think that there was error in rejecting the offer to prove that portable mills could have been erected, and the lumber manufactured to the amount contracted by plaintiff from Packard, Abel & Co., and delivered on the line of the Oil Creek road within the time and at the price specified in said contract. It was certainly the duty of the plank road, when notified of the inability or refusal of the railroad to transport their lumber, to adopt every proper and feasible means of supplying themselves, and if they neglected to avail themselves of any such means, it certainly would form an element for the consideration of the jury in estimating the damages.

The other errors assigned are not sustained.

Judgment reversed, and venire facias de novo awarded.


text:
    Keller versus Stoltz.
    1. Keller declared in case against Stoltz for backing water on him by erection of a dam on Keller’s land, and asked the court to charge that Stoltz had no right to change the location of the dam on the plaintiff’s land; the court answered: that the mere change of the dam was not an abandonment of the right to use the location for the purposes of his right: the important inquiry was did the change increase the flow of water on plaintiff’s land or cause new injury. Held, not to be a correct answer.
    2. If changing the location was wrongful, it was a direct injury, and Keller’s remedy was in trespass.
    3. In case, the only question was whether the dam had produced the consequential damage declared on.
    March 26th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.

      Error to the Court of Common Pleas of Lycoming county: Of January Term 1871, No. 388.
    On the 6th of February 1862, George D. Keller brought a,n action on the ease against George Stoltz, and declared that he was possessed of a tract of land, &c., and that the defendant within plaintiff’s close erected a mill-dam across Muncy creek and raised the water above its usual height so as to cause back-water on plaintiff’s land, overflowed and destroyed a fording, &c. The defendant pleaded “ not guilty.” There had been erected on the defendant’s property at a very early day, a mill, the dam of which was across Muncy creek on the plaintiff’s property. The plaintiff alleged that the right of defendant to have the dam there was by prescription and that the defendant in 1861 against the remonstrance of the plaintiff moved the dam further up the stream on the plaintiff’s land, overflowed it, destroyed a fording, &e. The defendant denied the allegations of the defendant, alleging that the new erection was on the ground where the dam originally stood.
    The cause was tried February 4th 1869, before Gamble, P. J.
    The parties having closed their case, the plaintiff submitted this point, which raised the only question discussed in the Supreme Court:—
    “ It appears from all the evidence that the two bulk-heads spoken of by the witnesses, constituted a part of the dam, and were real estate fixtures, and that after the quiet enjoyment by the plaintiff of the right, use and easement of his farm and islaud for a period of 21 years, while the bulk-head was located where it was immediately preceding the building of the new dam by the defendant in 1861, the defendant had no legal right to change the location of the bulk-head to the injury of the plaintiff, and that he had no right to locate the same on the plaintiff’s land, and if he did so change the location the plaintiff is entitled to their verdict.”
    The court answered:—
    “We decline to give you all the instruction asked for in this point. We cannot instruct you that the defendant had no right to locate the bulk-head on the plaintiff’s land, and that if he did so change the location the plaintiff is entitled to recover; but say to you as we have done in our general charge, that if the jury believe from the evidence that the defendant and the persons under whom he claims continued to enjoy the water privilege, and occupy the land of the plaintiff, and the persons under whom he claims, upon which the bulk-head is now located, for the purpose of the dam or a race, the mere change of location of the bulk-head was not an abandonment of his right to use that location for the necessary purposes of the full enjoyment of his right. That such change neither increased nor diminished the rights of the defendant to use or occupy the lands of the plaintiff. The importance of the change, therefore, depends wholly upon the inquiry — did it increase the flow of the water upon the lands of the plaintiff, or in any manner produce new injury to the enjoyment of his rights ? If it did, the plaintiff is entitled to recover.”
    The verdict was for the defendant, and on the removal of the case to the Supreme Court, the plaintiff assigned the answer to this point for error.

      Maynard, PutermarTes and Porter, for plaintiff in error.

      Armstrong Linn, for defendant in error.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The record before us raises but a single question: the correctness of the answer of the learned judge to the fourth point of the plaintiff below. That point he might have declined to answer altogether, for it asked among other things an instruction to the jury upon a question of fact. Waiving that, however, the judge did answer. Assuming that there had been a quiet enjoyment by' the plaintiff for a period of twenty-one years of his farm and island in a particular manner, it requested that the. jury should be charged that the defendant had no legal right to change the location of the bulk-head of his dam to the injury of the plaintiff, and that he had no right to locate the same on the plaintiff’s land, and if he did so change the location the plaintiff' was entitled to their verdict. The form of the action was case, and the damages laid in the declaration were exclusively for backing the water up the creek upon and flooding the plaintiff’s land, thereby causing the overflow and entire destruction of a fording of the plaintiff, and washing away the banks of the creek whereby he had lost a large portion of his land. Now in answer to the point the learned judge said: The importance of the change, if such be the evidence (namely, the change of the location of the bulkhead), depends wholly upon the inquiry: did it increase the flow of water upon the lands of the plaintiff, or in any manner produce new injury to the enjoyment of his rights ? If it did, the plaintiff is entitled to recover.” This answer was certainly accurate. Admitting the change of the bulk-head to have been a wrongful act, it was a direct injury, remediable by an action of trespass quare clausum fregit. In this action on the case the only question was whether it had been instrumental in producing the consequential damage complained of in the declaration. If it had, it mattered not whether the act was rightful or wrongful in itself. If it had been erected on the defendant’s own land, yet if it had so obstructed the water of the creek as to cause the plaintiff’s land to be overflowed beyond that which had been the case before, it would have been ground to recover damages in an action on the case. The entry on the land, the removal of earth, &c., however wrongful, could not have been the ground of recovery in this action. So far as the defendant had a right to a certain easement of water by means of his dam, the mere change of the location of the bulk-head (though if it was a trespass on the plaintiff’s land it might have subjected him to an action) was not an abandonment of his right to use that location for the necessary purposes of the full enjoyment of his right (namely, his right to the water-power created by the dam). Such change neither increased nor diminished the rights of the defendant to use or occupy the lands of the plaintiff. This is the part of the answer of which the plaintiff in error has particularly complained, but we think without reason. As applied to the form of the action we discover no error in it.

Judgment affirmed.