text:
    Bounty Accounts, 11th Ward, Pittsburg.
    A local act authorized the appointment of auditors by the Quarter Sessions to audit the bounty accounts of the school directors of any ward, &c., in Allegheny ; a subsequent general act with no repealing clause nor reference to the other, made it the duty of all school directors, &e., who had raised money for bounties to have their accounts audited “at the time of auditing other accounts by the proper board of auditors of the -ward, &o.” Held, that the last act did not repeal the first, and that,auditors were properly appointed under the first to audit bounty accounts in a ward in Pittsburg.
    November 4th 1871.,
    Before Thompson, C. J., Read, Agnew, Siiarswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny 'county: No. 207, to October and November Term 1871.
    . This certiorari was issued to bring up the record of the Court of Quarter Sessions in the matter of auditing the bounty accounts of the 11th (late 7th) ward of the city of Pittsburg.
    On the 4th of April 1866, an Act of Assembly (Pamph. L. 510), was passed, the 1st section of which was as follows:—
    “ The Court of Quarter Sessions of the counties of Allegheny and Westmoreland are hereby authorized and empowered, upon the application of five taxable citizens of any ward, borough or township in said counties, to appoint three competent persons as auditors, to audit and examine the bounty accounts of the school directors of any ward, borough or township in said counties, with power to examine witnesses and enforce attendance of persons and papers; and the report or finding of said auditors shall be evidence in any legal proceeding, in any court in said counties.”
    The 2d section provided for paying to the treasurer of the school fund for school purposes any surplus of the bounty fund which might be found in the hands of the school directors.
    Another act was passed April 11th 1866 (Pamph. L. 778), the 1st section being as follows:—
    “ That it shall be the duty of the commissioners, supervisors, borough and city councils, school directors, board of election officers, and all other persons and officials who, under the directions and authority of an Act of the General Assembly, relating to the payment of bounties to volunteers, approved the 25th day of March, A. D. 18Í34, and the several supplements thereto, proceeded to raise money, by taxation or otherwise, as the agents, officials or representatives of any county, township, ward, city or borough, for the payment of bounties to volunteers, to have their accounts regularly and legally audited, at the time of auditing other accounts, by the proper board of auditors of the county, township, ward, city or borough, for which such moneys were so raised and expended.”
    The 2d section provides that if such accounts have not been audited, the auditors shall notify delinquent officials or parties having authority, to raise money for bounties, to appear before them at a time fixed for the purpose of auditing their accounts to the close of the last fiscal year, and thence annually thereafter, as provided in the 1st section, and in case of failure to appear, subjecting them to a penalty.
    . On the 16th of July 1870, more than five taxable citizens of the 11th (late 7th) ward, Pittsburg, petitioned the Court of Quarter Sessions to appoint three auditors to audit the bounty accounts of that ward, in conformity with the Act of April 4th 1866.
    On the 16th of July 1870, the court appointed George R. Duncan and two others auditors for the purposes mentioned in the petition.
    The school directors and A. A. Moore, treasurer of the ward, on the 26th of July 1870, filed exceptions as follows:—
    1. The court has no jurisdiction of the subject-matter of said petition.
    2. The Act of the 4th day of April 1866, mentioned in said petition, was superseded and repealed by the general law enacted April 11th 1866, and the present proceeding is illegal and void.

      3. The three persons named as auditors were appointed at the instance of the petitioners and their counsel, without notice to the exceptants or others interested in the matter in controversy, and the said auditors are incompetent to serve, because they were selected and named by the petitioners.
    4. The said petition does not state matters or facts sufficient to give the court jurisdiction.
    5. The bounty accounts of the school directors of said ward, to wit, the Seventh Ward of the city of Pittsburg (since named the Eleventh Ward) were audited according to law in 1865, pursuant to the Act of Assembly of March 25th 1864, and afterwards, in pursuance of the general law of April 11th 1866, the bounty accounts of said school directors and said Albert A. Moore, as treasurer, were duly examined and audited in 1869 in a regular and legal manner, and a regular report and a condensed statement of the condition of said finances made and published, and that a final settlement was made with the said Albert A. Moore, treasurer, according to said report, the balance in his favor being 1538.39.
    6. The said finances relating to the payment of bounties to volunteers were regularly and legally audited, as stated in the above exception, and notice thereof publicly given, and neither the said petitioners nor any other citizen or person interested therein, excepted thereto or appealed therefrom, and said result of said audit became and is in full force, unreversed and final and conclusive upon said petitioners, and all other persons interested therein.
    On the 3d of December 1870 the exceptions were dismissed, and on the 5th of same month the auditors made their report which was ordered to be filed.
    On the 7th of January 1871, on the petition of George R. Duncan, one of the auditors, the court granted a rule on the school directors to show cause why they should not pay the costs and auditors’ fees in the foregoing proceedings. On the 20th of June 1871 the rule was made absolute, and the auditors’ fees fixed at $600, to be distributed as was set out in the decree.
    On the 19th of August the court ordered the school directors to pay the fees and costs in the proceedings out of any unexpended money in their hands.
    The proceedings were removed into the Supreme Court by certiorari, at the instance of school directors and the treasurer.
    There were eight assignments of error:
    1-6. Dismissing the exceptions.
    7. Granting the rule to show cause, and making it absolute.
    8. Ordering the directors to pay the fees and costs.

      A. M. Brown (with whom was 6?. Shiras, Jr.), for certiorari.—
    The Act of April 11th 1866 provided a general system on the same subject-matter, to operate throughout the state, and by implication repeals the special Act of April 4th: Southwark Bank v. Commonwealth, 2 Casey 446; Genkinger v. The Commonwealth, 8 Id. 99; Stoever v. Immell, 1 Watts 258; Fenelon’s Petition, 7 Barr 173; Dwarris on Statutes 673-677. The directors should have notice of the appointment of the auditors: Reitenbaugh v. Chester V. Railroad, 9 Harris 100. There was no legal obligation on the directors to pay the expenses of the audit — they could not be compelled except by the verdict of jury: Tyson v. Halifax Township, 1 P. F. Smith 9; Norman v. Heist, 5 W. & S. 171; Musser v. Good, 11 S. & R. 247-250; Maus v. Maus, 10 Watts 87; Brightly on Costs 13, 14, 110.

      C. Magee (with whom was MeLeod),

    contrá: on the 7th and
    8th exceptions, cited Fitzsimmon’s Appeal, 4 Barr 248.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

The important question in this case is, whether the Court of Quarter Sessions of Allegheny county had jurisdiction of the subject-matter of the petition, or in other words, whether the particular local Act of Assembly of the 4th April 1866 (Pamph. L. 510) mentioned in the petition, was superseded and repealed by the general law enacted April 11th, in the same year (Pamph. L. 778), seven days afterwards. The general question of the effect of a general statute upon a previous particular statute has been much discussed in England within the last twenty years, and has given rise to several decisions, both in equity and common law, which we will proceed to examine.

In Gregory’s case, 6 Co. 196, “ three errors were assigned, 1, that the said branch of the act was abrogated and taken away by the Stat. of 5 Eliz. cap. 4. Sed non allocatur. For inspecto statuto they both stand together, and it was said that a later statute, in the affirmative, shall not take away a former act, and eo potius, if the former be particular and the latter general.” So in Judga Jenkin’s eight centuries of Reports, 41 Case, Third Century, p. 120. It is said “ The Statute of the 14 Ed. 3 ordains that every merchant who ships goods to be exported over sea, shall be compelled to find sureties to import two marks in bullion, upon his return to be delivered to the mint, and he shall have two marks of refined silver for it; afterwards by Acts of Parliament of 45 Ed. 3 and 10 R. 2, it was ordained that after three years no new charge should be imposed upon the subject. These last general statutes did not repeal the said statute of the 14 E. 3, for it is a special statute, and it is not a charge to the subject, for he has quid pro quo ; generalia specialibus non derogant.”

And in Lyn v. Wyn, reported in The Judgments of Sir Orlando Bridgman as Chief Justice of the Common Pleas, he says, p. 127, “ And the law will not allow the exposition to revoke or alter by construction of general words, any particular statute where the words may have their proper operation without it.”

In the Trustees of the Birkenhead Docks v. The Birkenhead Dock Company, Laird and another, 28 L. J. N. S. Ch., 457, it was held that “ a private act of Parliament, although declared to be a public act, cannot by any implication repeal a former private act; and such repeal can only operate, if there be in the subsequent act words which will operate as an express repeal of the act.” In this case Lord Justice Turner expressly approved the rule, as stated in the Third Century, p. 120, quoted above, saying, “To this rule of law I entirely assent.”

In The London & Blackwell Railway Company v. The Board of Works for the Limehouse District, 26 L. J. R. N. S. Ch., 164, Yice-Chancellor Wood held, that where the legislature- has vested special powers in a particular body for certain special purposes, a general act subsequently passed will not override those special powers, citing and approving the preceding ease, and the case of Sir Eoulk Grevil, in Jenkin’s Third Century Case, 41, p. 120. The same learned judge in Fitzgerald v. Champneys, 30 L. J. R. N. S. Ch. 787, held that a local Act of Parliament is not, in the absence of any indication of intention on the part of the legislature, repealed or superseded by a public general act subsequently passed. In the Conservators of the River Thames v. Hall and another, 37 L. J. R. N. S. C. P., 163, Montague Smith, Justice, says, p. 167, “ The rule is that a later statute which is general and affirmative, does not abrogate a former which is particular.”

In Thorpe v. Adams, 6 Law R. C. P. 125, Lord Chief Justice Bovill (p. 135) says, “ But the general principle to be applied to the construction of Acts of Parliament is, that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together,” and in The Queen v. Champneys, Id. 394, the same learned judge says, “ It is a fundamental rule in the construction of statutes, that a subsequent statute in general terms, is not to be construed to' repeal a previous particular statute, unless there are express words to indicate that such was the intention, or unless such an intention appears by necessary implication. We had occasion to consider that matter in the recent case of Thorpe v. Adams.”

With this clear and authoritative exposition of the law, we will proceed to an examination of the two Acts of the 4th and 11th April 1866. The Bounty Acts were of a temporary character, growing out of the necessities of the rebellion, and the. sums raised under them by subscription or assessment required careful auditing and settlement of the accounts of the various agents and officials through whose hands they passed.

The Act of the 4th April 1866, is a special local particular act of Assembly, applying only to the counties of Allegheny and Westmoreland, and to the bounty accounts of school directors of any ward, borough or township in said counties. The Courts of Quarter Sessions of the said counties are authorized and empowered “ upon the application of five taxable citizens of any ward, borough or township in said counties; to appoint three competent persons as auditors, to audit and examine the bounty accounts of the school directors of any ward, borough or township in said counties, with power to examine witnesses and enforce attendance of persons and papers, and the report or finding of said auditors shall be evidence in any legal proceeding in any court of said counties.

The second section provides, “ Whenever any surplus funds, arising fi om bounty subscription or assessment, shall be found in the hands or custody of the school directors as aforesaid, the same shall be paid over to the treasurer of the school fund for said school district for school purposes.”

The Act of 11th April 1866 is a general affirmative act with no negative words, making it the duty “ of the commissioners, supervisors, borough and city councils, school directors, board of election officers, and all other persons and officials, who under the directions and authority of an Act of the General Assembly rela-' ting to the payment of bounties to volunteers, approved the 25th day of March 1864, and the several supplements thereto, proceeded to raise money by taxation, or otherwise, as the agents, officials or representatives of any county, township, ward, city or borough, for the payment of bounties to volunteers, to have their accounts regularly and legally audited, at the time of auditing other accounts hy the proper board of auditors of the county, township, ward, city or borough, for which such moneys were so raised and expended.”

The second section provides for the delinquency of the officials, or of the board of auditors, and makes them liable to a fine of $50 for such delinquency, and the third section obliges the auditors to prepare a condensed statement of the condition of these finances, and publish the same at the cost of the district, for three successive weeks in the two newspapers having the largest circulation in the city or county.

It will be perceived that there are no words repealing the Act of the 4th April, nor any express reference to it, nor is there a necessary inconsistency in the two acts standing together; on the contrary, in the case before us there would be a failure of justice if the local special act were not upheld. There is no proper board of auditors for the Eleventh (late Seventh) ward, or any other ward in the city of Pittsburg, by whom these bounty accounts of the school directors can be regularly and legally audited, under the general act, and as a necessary result the local special act applies to and governs this case.

The Court of Quarter Sessions had jurisdiction of the subject-matter of the petition, and this disposes of the first six assignments of error. Nor are we disposed to interfere with the action of the court complained of in the seventh assignment of error, it having the power to direct and enforce the payment of the expenses of the audit, and this of course negatives the ninth and last assignment of error.

All the assignments of error are in fact based upon a want of jurisdiction in the court, and no errors are specially assigned to the report or finding of the auditors.

Decision of the Court of Quarter Sessions affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Schenley’s Appeal.
    1. S. leased a lot in Pittsburg to M. for ten years, allowing M. to remove at the end of the term such improvements as he might make; the “ buildings, improvements and other property on said premises (to be) subject to distraint in like manner as personal property for said rent * * * in case of removal, whether clandestinely or openly, of said buildings, improvements or other property, * * * said buildings, improvements or the material therefrom may be followed and distrained as if still on the premises.” M. erected a building ; mechanic’s liens were filed under which the leasehold was sold, and the building, &c., removed by the sheriff’s vendee. Held, that S. was entitled to the rent due from the proceeds of the sale; and that the lien-creditor had no» claim on the fund in court.
    2. The Act of February 27th 1868, extending the Mechanic’s Lien Act of 1836 to improvements, engines, &c., for oil or other refineries, does not apply to leases for the ordinary purposes of residence, &c.
    3. Under the Act of 1836 and its supplements, a mechanic’s claim does not lie against a leasehold or the building erected on it by a tenant for years.
    4. The Act of April 28th 1840, providing that no greater estate shall be sold under a mechanic’s lien, than is vested in the person in possession, does not enlarge, but restrains the right of the mechanic’s-lien creditor.
    6. Act of February 17th 1858, relating to improvements, &c., “ on lands of others,” in Luzerne and Schuylkill counties, extended by Act of March 21st 1865 to Westmoreland and Allegheny counties, construed and applied.
    6. “ Improvements” in all these acts does not mean ordinary houses; but works on colliery, oil-leases, &c.
    7. Dame, Seymour & Co.’s Appeal, 12 P. F. Smith 417, distinguished.
    November 4th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court. of Common Pleas of Allegheny county: No. 25, to October and November Term 1871.
    The decree in this case was in the distribution of the proceeds of the sheriff’s sale of the personal property of James H. Moore. The amount of money paid into court was $131.04.
    The distribution was referred to W. Gr. Hawkins, Esq., as auditor. He reported that on the 30th of December E. W. H. Schenley and Mary E. Schenley his wife leased to Moore, the defendant in the execution, a lot in the Twelfth Ward, Pittsburg.
    The lease contained the following provisions:—
    * * * “ And further, that the premises shall not be used for any purpose causing nuisance; and in case of violating these covenants or any of them, or transferring this lease without the written sanction of said lessors, said lessee and his assigns shall forfeit said lease and improvements, and lessors may, either with or without any writ or legal process, at their option, re-enter and hold said premises and the improvements, buildings, &c., from which time all claim by defaulting lessee shall wholly cease. Improvements, by said lessee erected, may be removed from said premises at the termination of this lease: Provided, said covenants have been kept, arrearages, taxes, assessments, &c., for full term of lease as aforesaid, have been fully paid. But it is herein expressly understood and agreed that said buildings, improvements and other property on said premises are subject and held liable to distraint and sale under warrant, in like manner as personal property, for said rent, taxes, assessments and charges; and at any time, in case of failure to pay the same, taxes, assessments, charges, rent, &c., aforesaid, and at such time due, may be included in, as part of and do really make, the amount of rent due, and may, at the option of the lessors, be included in and distrained for on the premises; or in case of removal (whether clandestinely or openly) of said buildings, improvements or other property, without first satisfying all and every of arrearages as aforesaid (including such charges, taxes and assessments as by the lessors may have been paid), said buildings, improvements or the material thereof may be followed and distrained as if still on the premises; and if removed at any time before the termination of the time for payment of an instalment of rent, then that instalment to be considered as due, and may be distrained for in like manner as if that time had fully expired; and further, it is herein expressly stipulated that no receipt or distraint for simple ground-rent is to be considered or claimed as a waiver of right to distrain for or otherwise enforce payment of any balances of taxes or other arrears as aforesaid; also, that other remedies are not waived by lessors.
    “Now, in consideration of the premises, * * * the lessee agrees that if he should fail to pay the aforesaid rent, taxes, assessments, &c., at the days and times hereinbefore stipulated and appointed for the payment thereof, or of any of said charges as aforesaid, that then, and in that case, the said party of the first part may enter, levy and distrain for the rent, taxes, charges, &c., so in arrears, or pursue said improvements and other goods, &c., or if removed, distrain them wherever found, which, with all the incidents of said distrainment and sale, shall be governed by the laws of the state of Pennsylvania wdiich were in force before the passage of the Act of Assembly of the Commonwealth of Pennsylvania, entitled ‘An act to exempt property to the value of $300,’ ” &c.
    The lessee erected a building on the lot, mechanics’ liens were filed, and judgment was recovered on one in favor of the Gard Brick Machine Company, on which execution was issued, and the leasehold premises levied on and sold, and the building removed by the sheriff’s vendee. The rent in arrear due at the time of the levy to the lessors was $101.10, which they claimed out of the proceeds of the sheriff’s sale.
    The auditor decided that under the Act of February 27th 1868, Pamph. L. 212, 2 Brightly’s Purd. Dig. 1029, pi. 24, &c., the mechanics and material-rben had a lien, subject to the conditions of the lease, and that the rights of the lessors under it were unaffected by the sheriff’s sale. He therefore distributed the fund to the lien-creditors.
    The lessors filed exceptions to the report, which were dismissed and the report confirmed. The lessors appealed to the Supreme Court, and assigned the decree of confirmation for error.

      J. C. Dickens (with whom was N. B. Hatch), for appellants.

      Lazear & Hopkins, for appellees.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

The opinion of the auditor in this case appears to be founded on the effect of the Act of 27th February 1868, Pamph. L. 212, which extends the Mechanics’ Lien Law of 16th June 1836, and its supplements “ to all improvements, engines, pumps, tanks, machinery and fixtures in or about, or in any way connected with, or appertenant to, oil or other refineries; and to all tanks for the storage of petroleum, coal or carbon oil, or the products thereof; whether said tanks be connected with a refinery or otherwise; and on all pumps, machinery and fixtures connected therewith, and to all mechanics, machinists, material-men and contractors doing work, or furnishing materials or articles therefor.” The second section of this act makes it applicable to tenants of leased premises as well as to the owners of the freehold, and confines the provisions of the act to certain counties, including Allegheny. But this act, which extends to improvements, &c., for oil refineries and tanks for stowal of oil, has no possible bearing upon this case, which was that of a lease for the ordinary purpose of residence, &c. The auditor also refers to the opinion in the case of Dame, Seymour & Co.’s Appeal, 12 P. F. Smith 417, from Venango county; involving the interpretation of the Act of 8th April 1868, Pamph. L. 752; which by its terms is confined to the county of Venango. I can find no extension of this act t-o Allegheny county. Neither the Act of 27th February nor that of 8th April 1868 seems to have any bearing on the question before us. The mechanics’ claim here is therefore thrown back upon the general Mechanics’ Lien Law of 1836 and its supplements. But under that act it is settled by a long train of decisions that a mechanic’s claim does not .lie against a leasehold interest or the building erected thereon by a mere tenant for years: Church v. Griffith, 9 Barr 117; White’s Appeal, 10 Id. 252; Haworth v. Wallace, 2 Harris 118; Gaule v. Bilyeau, 1 Casey 521; Woodward v. Leiby, 12 Id. 441. It is equally well settled by the same cases that the Act of 28th April 1840, providing that no greater estate shall be sold under a mechanics’ lien than was vested in the person in possession at the time of the erection of the building, does not enlarge the right of the mechanies’-lien creditor, but curtails it. As a consequence of these principles, the mechanies’-lien creditor here had no claim whatever upon the fund in court; for he had no lien under any act which has been brought to our notice, or which has been discovered by our own examination. It is the misfortune of this case that we have but one paper-book before us, to wit, that of the appellant. This is a fault on the part of the appellee, for it is the duty of parties to assist the court by their own research, especially in such a case as this depending on alleged local legislation. If we have failed tó discover any act applicable to the case, the blame must fall upon the party so negligent of his own interests.

It is unnecessary, therefore, to pursue the case into any extended examination of the provisions of the lease, for it is sufficient to say that it is clear as between Moore, the tenant, and Mr. and Mrs. Schenley, his landlords, the building, sold by the sheriff, was made liable by express covenant, to the right of distress for the rent, taxes, &c., whether on or off the premises.

Since writing the foregoing, I have been informed by the auditor in this case that the reference to the Act of 27th February 1868, in the paper-book, is an error, and that the act intended to be referred to is that of March 21st 1865, Pamph. L. 433 (Purd. 1401), extending the Act of February 17th 1858 to the counties of Westmoreland and Allegheny. The latter act will be found in Purdon by Brightly, p. 710; pi. 17 (2' Bright; Purd. 1029, pi. 23), &nd extends the General Mechanics’ Lien Law of 1836 “ to all improvements, engines, pumps, machinery, screens and fixtures, erected or put by tenants of leased estates on lands of others in the counties of Luzerne and Schuylkill; and to all mechanics, machinists and material-men, doing work or furnishing the'articles or materials therefor, “ provided that the lien hereby created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures erected, repaired or put in by mechanics, machinists, persons or material-men entering liens thereon.” Though the word “improvement” is large enough, under ordinary circumstances, to include a house or private dwelling, it is manifest, by its connection in this act with the words engines, pumps, machinery, screens and fixtures, and by the two counties to which it was originally made applicable, that this word was not intended to authorize the creation of liens upon ordinary houses or dwellings of tenants independently of the works indicated by the other expressions used in connection with the word improvements. These words have clear reference to the works erected on colliery leases, which are quite numerous, and are of great value and importance in the counties of Luzerne and Schuylkill. The counties of Westmoreland and Allegheny are also coal territories, and hence the propriety of extending the law to the leased collieries there. Had the legislature meant to extend the General Mechanics’ Lien Law of 1886 to houses or buildings of any sort, put up by tenants or lessees generally, it would have done so without the specification of improvements, engines, pumps, machinery, &c., for then the term “ buildings,” the only one used in the Act o'f 1836, would have carried its operation at once to the kind of building put up by Moore, the tenant in this case. The Act of 17th February 1858 does not therefore include this building.

The decree of the court below is reversed; and it is' now ordered and decreed that the rent and taxes of the landlords in this case be paid to them out of the fund in court, and that the remainder of the fund not applicable to the costs and expenses of auditing be paid according to the report of the auditor, and the* record is ordered to be remitted for this purpose.


text:
    Huckenstine’s Appeal.
    1. Brick-making being a useful and necessary business, and necessarily exercised near towns, the burning of bricks, an essential part of the business, is not a nuisance per se.

    2. Although an useful employment may produce discomfort or injury to those near to it, it does not follow that it should be restrained.
    3. The aid of a court of equity is not of right but of grace; to be extended only where its exercise is certainly just, wise and proper.
    4. In a question of restraining a lawful business, a court of equity will consider the customs of the people, the characteristics of their business, the common uses of property and the peculiar circumstances of the place.
    5. In this case an injunction against a brick-kiln as injuring a vineyard and residence, was refused.
    6. Rhodes v. Dunbar, 7 P. F. Smith 274; Richards’s Appeal, Id. 105, adopted.
    November 6th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Allegheny county: In Equity: No. 14, to October and November Term 1871.
    On the 15th of September 1866, a bill was filed by James Andrews against John Huckenstine: William Hamilton and James Wetherspoon having become interested after the filing of the bill, the court allowed the bill to be amended by adding their names as complainants.
    The bill charged as follows :—
    1 and 2. Andrews the plaintiff, about 1862, became owner of a piece of land in Reserve township, Allegheny county, a.nd had since erected buildings and other improvements; planted a vineyard and orchards, which had begun to bear and become of great value, and he resided on the land.
    3 and 4. The defendant in 1866 bought a piece of land adjoining, and made preparations for erecting brick-kilns and burning bricks; upon ascertaining which the plaintiff gave the defendant notice that by doing so he would injure and destroy the value of the plaintiff’s property above mentioned.
    5. The defendant since the notice had continued to manufacture brick, had erected a kiln within 15 feet of plaintiff’s land, and commenced burning brick; had commenced erecting a winter-house on his land to manufacture brick through the winter, and intended to carry on the business throughout the year for an indefinite time.
    6 and 7. The winds prevailing almost the whole time over the land wrere from the west, and blew the smoke, vapor and gases from the kiln and winter-house over the plaintiff’s land, the smoke, &c., were injurious to vegetation, would destroy the plaintiff’s vineyard and orchard, plants, trees and shrubbery ; would render the land unhealthy and unfit for plaintiff’s residence; would depreciate the value of his land; and he would thereby lose all the improvements he had made.
    8. The defendant had been requested to desist, but he had refused, and declared that he would continue making and burning brick on his premises. The prayer was that the defendant might be restrained from burning brick on his land, and decreed to make compensation for the injury already done to the plaintiff, and for general relief.
    The defendant’s answer admitted the allegations of the 1st, 2d, 5th and 8th paragraphs of the bill, and denied the allegations of the 6th and 7th paragraphs.
    As to the 3d, the defendant averred that he had léased the premises in 1862, and purchased the fee in 1865; he admitted the other allegations in this paragraph.
    As to the 4th, he averred that “ the plaintiff, instead of giving notice at once to defendant, at one time agreed with a full knowledge that respondent was going to erect a winter-house in which to make bricks, to furnish respondent with bricks to build the winter-house, and that afterwards, when respondent was ready to take the bricks, and his work had so far progressed that he needed them, then, and not till then, the plaintiff refused to give the bricks in accordance with-his contract.”
    A replication was filed, and the case was referred to John Mc-Claren, Esq., as examiner and master.
    A large amount of testimony was taken by each party.
    The plaintiff’s was that the winds usually prevailed from the west so as to carry the smoke, gas, &c., from the brick-works over the plaintiff’s lands, and injure the foliage of the vines and their fruit, and would entirely destroy the young shoots in the spring of the year; all the vines, &c., would eventually be destroyed by its continuance; that the plaintiff’s vines had been radically injured; that the land of the plaintiff was good, and very suitable for raising grapes and other fruit. There was evidence also that the smoke, &c., from the kilns rendered the plaintiff’s land and the houses on it very inconvenient and uncomfortable as a residence.
    The defendant’s evidence was in conflict with the plaintiff’s as to the injury to the plaintiff’s vineyard, &c., by reason of the kilns. Many of the defendant’s witnesses testified that the injury arose from thé “wet, spouty and swampy” character of the plaintiff’s land, and that the injury might be remedied by proper drainage.
    The plaintiff in rebuttal gave evidence to show that his land was not damp and swampy. The master found that plaintiff gave the defendant notice as alleged in the bill; that the soil and exposure of the vineyard, &c., rvere good and well adapted to the culture of vines, fruit-trees, shrubbery, &c., and that the ground had been properly planted and cultivated; that winds during nearly the whole year carry the smoke, gas, &c., from defendant’s kilns across plaintiff’s land, and had injured his vineyard, orchard, &c., and if continued wo'uld destroy them and would injure and depreciate the premises of the plaintiff for a residence and a home.
    The defendant excepted to the finding of the master.
    The court (Sterrett, P.J.) overruled the exceptions, confirmed the report, and decreed that the defendant be enjoined from making bricks on his land mentioned in the bill, “ in such manner as harmfully or injuriously to affect the vineyard,” &c., of the plaintiff, or render his premises unsuitable or unfit for a residence or home, and from allowing or permitting “ the smoke, gas or vapor arising from the brick-kilns and winter-house on said lands of defendant to be blown over the lands of the plaintiff,” so as to injure his vineyards, &c., or render his premises unsuitable for a home.
    Tbe defendant appealed to the Supreme Court, and assigned this decree for error.

      R. & S. Woods and John Miller, for appellant. —
    Unless the plaintiff can establish by a verdict that the defendant’s trade is a nuisance, equity will not restrain them: Fishmongers’ Co. v. E. I. Co., 1 Dick 163; Squire v. Campbell, 1 M. & Cr. 459; Crowder v. Tinkler, 19 Vesey 617. The burning of brick near the habitation of men is not a nuisance: Duke of Grafton v. Hilliard, cit. in 18 Vesey 219; Richards’s Appeal, 7 P. F. Smith 105; Rhodes v. Dunbar, Id. 274; Clark’s Appeal, 12 Id. 447.

      W. W. Thomson and T. M. Marshall, for appellees.
    Whatever worketh hurt, inconvenience, or damage, is a nuisance: Lancaster Turnpike Company v. Rogers, 7 Barr 115; Bacon’s Abridgment, title Nuisance A; 2 Stephens Nisi Prius 2361, 2362. Injury to shrubs and plants by noxious vapors from a smelting establishment a nuisance: St. Helen’s Smelting Co. v. Tipping, 5 Am. Law Reg. 107; S. c. 116 E. C. L. Rep. 608. Carrying on a lawful business at unseasonable hours to the annoyance and discomfort of the neighbors, is a nuisance: Dennis v. Eckhart, 3 Grant C. 390; Barnes v. Hathorne, 7 Am. Law Reg. 81. Brickburning is a nuisance: Notes to Barnes v. Hathorne, 7 Am. Law Reg. 87; Rhodes v. Dunbar, 7 P. F. Smith 274; Walter v. Selfe, 4 Eng. Law & Eq. R. 15. Carrying on works which fill the air with smoke and cinders, and render it offensive or injurious to health, and shake the buildings and render its occupation uncomfortable, is a nuisance: Wesson v. Washburne Iron Co., 7 Am. Law Reg. 125; Hayden v. Tucker, 6 Id. 72. Any trade or business, lawful in itself, which materially injures the property of others, or affects their health or renders tbe enjoyment of life uncomfortable, is a nuisance: Att’y Gen. v. Stewart, 9 Am. Law Reg. 387; Cleveland v. Gas Light Co., Id. 388; Ross et al. v. Butler, 8 Id. 252. Injury to property with reference to its reasonable and ordinary use, by continuous and hurtful acts, constitutes a nuisance : Sparhawk v. Passenger R. R. Co., 4 P. F. Smith 401; Whitney v. Bartholomew, 21 Conn. 213; Barclay v. Com’th, 1 Casey 503; Bridge Co. v. Bridge Co., 7 Pickering R. 344.
    A failure to remonstrate against the erection of a nuisance will not amount to an equitable estoppel: Burt v. Smith, 3 Phila. 303. A court of equity will interfere, and by injunction protect the clear rights of a suitor against a nuisance : Biddle v. Ash, 2 Ash 211.
    Courts of equity may not only restrain the erection of a nuisance, but direct its abatement and give compensation for damages; Morris v. Remington, 1 Parsons 387; Smith v. Cummings, 2 Id. 92. Where the nuisance is of such a character as to occasion personal inconvenience or annoyance, equity will interfere by injunction to abate the nuisance: McCord v. Iker, 12 Ohio 387; Hilliard 269, 270; Story’s Eq., §§ 925, 930; Ross v. Butler, 8 Am. Law Reg. 252; Att’y Gen. v. Steward, 9 Id. 387; Cleveland v. Gas Co., 9 Id. 388; Hayden v. Tucker, 6 Id. 62; Rhodes v. Dunbar, 7 P. F. Smith 274; Dennis v. Eckhart, 3 Grant 392; Scheetz’s Appeal, 11 Casey 88; Vollmer’s Appeal, 11 P. F. Smith 118.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

Brickmaking is a useful and necessary employment, and must be pursued near to towns and cities where bricks are chiefly used. Brickburning, an essential part of the business, is not a nuisance per se: Attorney-General v. Cleaver, 18 Vesey, Jr. 219, 220. It, as many other useful employments do, may produce some discomfort, and even some injury to those near by. But it does not follow that a chancellor would enjoin therefor. The heat, smoke and vapor of a brick-kiln cannot compare 'witlx those of many manufactories carried on in the very heart of such busy cities as Pittsburg and Allegheny. A court exercising the power of a chancellor, whose arm may fall with crushing force upon the every-day business of men, destroying lawful means of support, and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its- aid is not of right but of grace, and it must be sure that the exercise of this kingly power is just, wise and proper, before it takes from a citizen his means of livelihood, and destroys the value of his property for legitimate uses. And more than this, it must look at the customs of the people, the characteristics of their business, the common uses of property and the peculiar circumstances of the place4-wherein it is called upon to exercise the power. In no other way can its justice, wisdom and propriety be exhibited in adjudicating upon the rights, interests and employment of the people subjected to its power. It requires no great or extraordinary skill to inform ms of the nature and effect of a brick-kiln, within whose walls dried clay is baked into bricks by means of wood and coal combined together as a fuel. It is a subject of common observation, and its effects are not so mysterious as to require the skill of the chemist to unfold their occult properties. In the present case the kiln of the defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose every-day cloud of smoke'from thousands of chimneys and stacks hangs like a pall over it, obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there. A chancellor cannot disregard all this. “You must look at it,” said Lord Cranworth, “not with a .view to the question whether abstractly that quantity of smoke was a nuisance, but whether it was a nuisance to the persons living, in the town.” And, as remarked by Lord Chancellor Westbury in the same case: “If a man lives in town of necessity he must submit himself to the consequences of the obligations of trades which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of property, and for the benefit of the inhabitants of the town. If a man live in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop.” Cited from Tipping v. St. Helena Smelting Co., 116 E. C. L. R. 608, by Thompson, C. J., in Rhodes v. Dunbar, 7 P. F. Smith 287-8. With these views in mind, an examination of the evidence in this case discloses no ground to move a chancellor to enjoin against the use of the defendant’s kiln, and thus to destroy his business and divert his property from a legitimate use. The gravamen of the plaintiff’s bill is that the smoke and gases from the defendant’s kiln injured and partially destroyed his grape-vines and fruit-trees, and make his dwelling uncomfortable. In regard to the injury to the vines and trees which is the chief ground of complaint, the plaintiff’s case is doubtful on two grounds. In the first place, his testimony as to the injury from the causes stated is counterpoised if not outweighed by the testimony of the defendant both in the number and skilfulness of the witnesses. And in the second place it is rendered more than doubtful by the testimony of the defence that the true cause of the blight in the vines is the nature, and cold and wet condition of the soil. The force of the rebutting evidence that the hillside is dry, and for the reason that water will not lie on a slope; is broken by the consideration known to every common observer that water following the lines of stratification will exude from hillsides, oftentimes in large quantities and the whole year round. To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. “ If the injury be dqubtful, eventual or contingent, equity will not interfere by injunction Rhodes v. Dunbar, 7 P. F. Smith 287; and a “chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury Richard’s Appeal, 7 P. F. Smith 113, 114. In regard to the alleged annoyance to the dwelling-house by the smoke from the kiln, nothing needs to be said except that this case is clearly within the principles ruled in Richard’s Appeal, supra.

After a full and careful consideration of the case, we are compelled to reverse the decree of the Court of Common Pleas and dismiss the bill of the plaintiffs at their costs and without prejudice to any right they may have to recover in an action at law.

Decree accordingly.


text:
    Wilkins Township School District.
    1. The policy of the school laws is that the school districts should correspond with the division of counties into townships.
    2. The notice required by 2d section of Act of May 8th 1855 for the continuance of independent districts, is to be given to the school directors upon proceedings to create a new district.
    3. In reporting a new district, the commissioners should annex a draft showing both the lines of the independent district and those of the districts from which it is taken.
    4. Sewickley Township, 9 Casey 299, adopted.
    November 7th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county: No. 17, to October and November Term 1871.
    In the matter of the Independent School District of Wilkins township.
    On the 20th of May 1872, a number of taxable inhabitants of Wilkins Township School District, petitioned the Court of Quarter Sessions, of Allegheny county, representing that they desired “the formation of the territory upon which they reside into a separate and independent school district,” and set out the bounds which they proposed for the new district; they prayed the court to appoint commissioners to view the premises and report, &c., on the expediency of establishing an independent school district, in pursuance of the Acts of May 8th 1855, and April 11th 1862.
    Commissioners were appointed. They gave notice of the time and place at which they would m'eet for the purposes of their appointment, “by handbills posted at least ten days before said meeting, in several of the most public places in said Wilkins township,” and having met, “heard expression from the inhabitants of said proposed district of their views,” &c.: “ That thereupon * * * they viewed the premises and report to the court the lines of the proposed new district as follows, viz.they then set out the lines by courses and distances, and concluded, “ the commissioners return herewith a plot or draft showing the lines of the proposed new district,” &c.
    A large number of the inhabitants of the Wilkins School District presented a remonstrance against confirming the report. Amongst others, for the following reasons:—
    2. The said territory proposed to be formed into an independent school district embraces the whole of the village of Wilkins-burg and the station of Edgewood, and what is embraced in Rice and Curling’s plan or village, thereby carving out from the poorer portion of said township the most valuable territory therein embraced for school purposes, to the great injury and prejudice of the rights and interests of the said poorer portion of said township.
    3. By the formation of said independent school district two school-houses will be so situated, the one on the north boundary by the line of Penn township, and the new district, of about one hundred and twenty rods between the two lines, by about three hundred and sixty rods in length, with four families there on the eastern side of the new proposed territory, will run about one hundred rods of the other school-house.
    They also filed exceptions containihg substantially the same objections as those in their remonstrance.
    The exceptions were overruled, and a decree made erecting an independent school district in conformity with the report óf the commissioners.
    James Kelly, a remonstrant, and the school directors of Wilkins Township School District, removed the proceedings to the Supreme Court by certiorari.
    They assigned, amongst other errors, the following :—
    1. The court erred in confirming the commissioners’ report, when it does not affirmatively appear that due legal notice, on part of the commissioners, of the time and place they would view the premises, was given to the inhabitants of the whole township; and more especially of those parts of the township outside of the proposed independent school district.
    ■ 2. The court erred in confirming report of commissioners, when
    the draft returned by commissioners therewith does not exhibit, in addition to the lines of the new district, the lines of the township from which it was created.

      T. B. Patterson [with whom was T. M. Marshall), for certiorari,
    referred to the Acts of May 8th 1855, § 2, Pamph. L. 509, 1 Bright. Purd. 237, pl. 11, &c., May 20th 1857, Pamph. L. 587, 1 Bright. Purd. 238, pl. 17, &c. As to notice: Bethel Township, 1 Barr 97; Sewickley Township, 9 Casey 297; Norwegian Township, 8 Harris 324. As to deficiency in draft: Harrison Township, 5 Barr 447; Henderson Township, 2 Watts 270.

      J. Dalzell (with whom was J. H. Hampton), contra,
    cited as to draft, Catharine and Frankstown Townships, 7 Casey 304; Warwick Township, 6 Harris 372.
   The opinion of the court was delivered, November 13th 1871, by

Agnew, J.

In considering a question involving any of the important institutions of the state, as for example, the system of common schools, it is essential that the court enter into the very spirit of the legislation regulating it. Unless we do, it is liable to be impaired by a misconception of its uses and purposes. After twenty years’ experience under the common school system, the legislature, with a view to correct defects and perfect its operations, entered into a thorough revision of the laws regulating it, which resulted in the passage of the Act of 8th May 1854. One evil shown by the past experience was the existence of numerous independent districts, marring the system, and often created to gratify the wealthy or more populous parts of a township to the disadvantage of the poorer and more sparsely settled. Therefore, by the 52d section of the revised act, all laws relating to or creating independent districts, were repealed. But the legislature, finding that this sweeping repeal did injustice in some exceptional cases, in the next year, by the Act of 8th May 1865, extended the time when the repeal should take effect, provided for a just distribution of the property acquired, and also for a continuance of such independent districts as were required by the necessity of the case. But this was to be done only on the application of the directors, and after a careful consideration by the court. In order to guard against an improper continuance, the 2d section also required that the board of school directors of the township, out of which any such applying independent district may be formed, shall have received‘ten days’ notice of the proposed application, and of th'e time and place of hearing. Here, then, is a legislative declaration of the proper kind of notice, when it is attempted to perpetuate an independent district against the general intent and spirit of the common school system. Much greater is the necessity of such a notice, when a new independent district is to be created. The policy of the law is to make the school districts correspond with the municipal divisions of the county into townships. When a township has been thoroughly organized for school purposes, its school-houses adjusted to suit its topography, and the wants and necessities of the people, to cut out of it an independent district to suit the wishes or even the local interests of certain wealthy or influential persons, may do great injury by the derangement it produces, and the inconvenience and burthens it casts on the poorer or less populous portions. The topographical characteristics of a township often must control the location of schools. Young and tender feet are not to be made to climb steep and rugged hills, cross dangerous ravines, or ford deep streams, or indeed to travel long distances to school. The poorer and more sparsely populated portions are not to be made to bear undue burthens, or suffer inconveniences in carrying out a great popular system, whose purpose is to spread the rays of education and diffuse the light of intelligence most broadly among the people. None know so well as do the directors who represent the whole township, the wants and the interests of their district, and the effect an independent district will have upon the welfare of those parts which remain outside of it. Then why should not the legislative rule for notice for the continuance of an independent district apply to the far more important proceeding to create a new one, which may bring after it consequences disastrous to the township ? We know not that such consequences will follow in this case, but we know that we must lay down a rule that will bear upon all cases, and affect one of the most important institutions of the state. Nor will it do to recognise the necessity only for notice to the people at large, as in the division of townships. In such case there is no special institution to be cautiously guarded, but it is a matter merely of general popular convenience. Here, however, we are dealing with a special institution, whose interests are committed to special guardians, who of all others should have specific notice, and an opportunity to explain and defend the interests of their district against derangement and dismemberment. The remarks of Justice Strong, in Independent District No. 8, Sewickley Township, 9 Casey 299, are quite apposite. Though the act does not in express terms require the notice, the public interests and natural justice demand it, and, he says, it is quite as necessary that this should appear affirmatively as that it should appear that a party has had his day in court, referring to Bethel Township, 1 Barr 97, and Norwegian Township, 8 Harris 324. We are of opinion, therefore, that in addition to the general public notice given by the commissioners, by handbills or otherwise, at least ten days’ special notice should be given to the school directors of the district out of which it is sought to lay off an independent district.

We think, also, it was incumbent upon the commissioners to annex a draft to their report, exhibiting both the lines of the independent district reported, and those of the district or districts from which it is taken, in order to display the relation which the new district sustains to the old. The 5th section of the Act of 8th May 1855, does not stop with the provision that the commissioners shall report the lines adopted for the new district, but adds that “ the proceedings upon which petition, commission and, report, and the final disposition thereof shall, in all other respects, he according to the Act of Assembly, now in force, relative to the erection of new townships.” That act, to wit, of 15th April 1834, § 14, requires the commissioners “ to make a plot or drafts of the townships proposed to be divided, and the division line proposed to be made therein, or of the township proposed to be laid off.” The same duty lies, therefore, upon the commissioners to lay off an independent school district. Indeed, without the proper relation of the new to the old district, laid before the eye of the court by means of a draft of both, it would be difficult for the court to act understandingly. The remaining parts of the old district may be so separated or narrowed, or ill-shapen, that the interests of the schools therein might be seriously impaired, without a proper apprehension of the question on part of the court. The court is not to be sent out in search of the information, but it is the duty of those alleging the necessity of an independent district to furnish the means of determining the question with facility. This point is also a decided one. In the case already cited of the Independent District, No. 8, of Sewickley Township, the 4th exception was in these words : “ There was no draft returned by the commissioners of the lines of the 'new district, nor of the lines of the township from which it was created.” Justice Strong quotes the language of this exception, and says, “ This is a fatal defect.” That these views are justified by the legislative intent we are authorized to believe, by the interpretation of the Act of 1855, summed up in the 1st section of the Act of 20th May 1857. “ The true intent and meaning (it says) of the provisions of the supplement to the General School Law, approved the 8th of May, A. d. 1855, for the creation of independent school districts, was and is to provide in a guarded manner for exceptions to the general rule, and to protect and promote the educational welfare of occasional localities that from natural or other adequate obstacles, could not he properly provided for under the organization of township districts; and further, it was not the intention to cut up townships into single school districts, nor to carve out the wealthier from the poorer portions of a township or townships, to the prejudice of the rights and interests of the latter.” The construction we have placed on the provisions of the Act of 1855 as to notice and the draft are essential^ as we have seen, to guard well the interests of the people, to prevent the creation of independent districts, contrary to the spirit of the legislative intent, and to protect and promote the welfare of the common-school system. The policy of the state does not, indeed, forbid high-schools when the circumstances of a community will justify their existence; but the great purpose of the common-school system is to spread most widely the benefits of education among the masses of her people, thus, by the general diffusion of intelligence, making sure the foundations of free government.

The decree and order of the Court of Quarter Sessions is therefore reversed, and the proceedings quashed.


author: Sharswood, J.

text:
    Neeld’s Appeal.
    1. In partition, there being an executor the court appointed a stranger, trustee to make sale of the premises. It being within the discretion of the court to determine whether the executor had neglected or refused to execute the order of sale, it was to be presumed that he had, notwithstanding his subsequent allegation that he had not.
    2. The Supreme Court will not review the exercise of such discretion unless it appear on the face of the record that there was a palpable and gross abuse of the discretion.
    3. A widow refused to take under her husband’s will, and in 1867 petitioned for proceedings in partition to set out her dower; an inquest was awarded, 6ut the proceedings were stayed on the application of the executor, so that he might sell for the payment of debts. Orders were granted to him for that purpose, but he failed to sell. In 1870, the widow presented a petition reciting all the former proceedings, and praying the court to revoke the stay of the proceedings in partition, &c. Held, that the Act of April 20th 1869 gave the court jurisdiction to proceed, notwithstanding there was no assent of the parties interested; her petition of 1870 being treated as a new petition.
    November 6th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Count of Allegheny county: No. 73, to October and November Term 1871.
    In the partition of the real estate of James S. Neeld, deceased.
    On the 28th of September 1867, Sarah Jane Lyda, wife of Francis Lyda, but theretofore the widow of James S. Neeld, petitioned the Orphans’ Court, representing that Neeld had died in May 1864, seised in fee of a tract of about 70 acres of land in Allegheny county, and leaving a will disposing of his real estate ; leaving three children, John, Eli and Blanche, all minors; by his will he appointed his own father, Eli Neeld, guardian of his children, and George Neeld executor of his will. She averred that she had never received anything under the will, nor elected to take under it, but “ has refused and does refuse to take under said will, and claims her dower in said estate, as the widow of said James S. Neeld,-under the common law and the Acts of Assembly of this Commonwealth, granting her this right.” And thereupon prayed the “ court to award an inquest of partition, so that your petitioner may have her dower in the said described real estate set apart to her, and secured to her in the manner authorized and prescribed by the statutes of this Commonwealth.”

      An inquest was accordingly awarded on the same day.
    On the 9th of November 1867, George Neeld, the executor, presented a petition to the court, setting out, that he had settled a final administration account, which had been confirmed on the 2d of October 1865, and on which there appeared to be no balance due to or from the executor; that testator died seised of the real estate above mentioned, on which there was due of the purchase money about the sum of $8000, and praying for an order for the sale of the real estate for the payment of debts. j

    The order was granted on the same day.
    On the 19th of November, on the application of the executor, the court granted a rule “on petitioner in partition to show cause why the proceedings in partition for dower should not be dismissed, and in the mean time proceedings in partition be stayed until final disposition of proceedings for sale of said real estate.”
    On the 20th of March 1869, the executor returned that the real estate had been exposed to public sale on the 9th of January 1868, and had been struck down to Sarah J. Lyda (the widow), but she having failed to comply with the conditions of sale, he returned the land unsold for want of buyers, and asked for an alias order of sale, which was awarded. To this order he made return on the 4th of December 1869, that he had exposed the premises to sale on the 3d of June, and that they remained unsold for want of buyers.
    On the 8th of January 1870, on the petition and affidavit of Mrs. Lyda, the court revoked their order of November 19th 1869, staying the proceedings in partition, and the sheriff was directed to proceed with the inquisition.
    On the 12th of February 1870, Mrs. Lyda presented a petition to the Orphans’ Court, setting out: That on the 28th day of September 1867, she “presented her petition to your honorable court, setting forth that she was the widow of said James S. Neeld, and as such entitled to her dower interest in the real estate of the said James S. Neeld. * * * That the real estate consisted of about 96 acres of land in St. Clair township, of said county, that she had refused to take under will, and praying the court to award an inquest of partition, &c. That shortly after the presentation of said petition, on the application of the executor of said James S. Neeld, an order was issued by your honorable court for the sale of said real estate, and the proceedings in said partition stayed.
    “ Nothing further has been done in said partition, except the revocation of the order staying proceedings, and the executor has returned the property unsold, on the order of sale issued, and <does not ask for its renewal.
    “ Your petitioner claims her one-third interest in the said real estate, the same as if the said James S. Neeld had died intestate, under the Act of Assembly, giving her this right.
    “And now she prays your honorable court to award an inquest of partition, to set apart to your petitioner the one-third of the said real estate to her during life, if that can be done without prejudice to or spoiling the whole, and if not then that the jury value and appraise the same, and make return thereof as the law directs, and she will ever pray,” &e.
    This petition was endorsed :—
    “ Estate of James S. Neeld. Supplemental petition of widow for partition.”
    On the same day: “ Inquest of partition awarded as prayed for.”
    The inquest returned that the land could not be parted, &c., and that they had valued it at $250 per acre.
    The inquisition was confirmed nisi May 14th 1870.
    On the 11th of June 1870, after a rule upon heirs, and none appearing to accept or refuse, the court ordered a sale, and on the 25th, on the application of Mrs. Lyda, appointed C. Hasbrouck, Esq., trustee to make the sale on the 17th of August, upon conditions stated in the order.
    On the 18th of August 1870, George Neeld, the executor, presented a petition setting out:—
    “ That at the date of making of the order by your honorable court, in above case, authorizing the sale of the real estate, belonging to the estate of the said decedent, and appointing a trustee to make such sale; your petitioner was and still is acting executor of said decedent, and that as such he has never neglected or refused to execute the order of this court, directing the sale of said real estate, but on the contrary has heretofore endeavored to make sale of the same, by the direction of this court, for the payment of the debts of said decedent, and stands ready now to execute the order of said court, directing the sale as aforesaid;” and prayed the court “ to rescind the said order of sale, so far as respects the appointment of C. Hasbrouck, as trustee, to make the said sale, and to order and direct that your petitioner, as executor of said decedent, execute said order of sale.”
    On the 31st of August the trustee “returned property sold to J. W. F. White for $20,364.75, being at the rate of $210 per acre for 96 acres 156 perches.” On the same day the sale was confirmed nisi.

    On the 14th of January 1871 the executor and guardian filed exceptions to the sale, and all the proceedings in partition.
    The exceptions were as follows:—
    1. There is a guardian of the minor children of said decedent, legally appointed, who is still acting as such guardian, but who has never refused to sell the real estate of said decedent upon a fair price being offered for it.

      2. There is an executor of the estate of said decedent who.has never been removed or discharged, but who has always been ready and willing to sell the real estate of said decedent whenever a fair marketable price can be obtained for it.
    3. There being both an executor of the estate and a guardian of the minor children still acting in their respective offices, there cannot be a trustee legally appointed to sell the real estate.
    4. The court had no jurisdiction in the appointment of a trustee as long as there was an executor and guardian still in office, and who had not refused to sell the real estate on a fair price being offered for the same.
    5. The attorney for the widow forced the property to a sale, after a notice had been read warning persons -not to bid on the same, as the sale would be contested, and purchased the property himself at a price far below its fair marketable value, and when, by reason of the above-mentioned notice being read, he had no competition.
    6. Mr. White purchased the land for $40 per acre less than he would consent that the executor should sell the same at, or an effort made by the executor to sell, a few months prior to this sale.
    7. The Orphans’ Court has no jurisdiction in the premises.
    The court overruled all the exceptions, and confirmed the sale absolutely.
    The executor and guardian appealed to the Supreme Court, and assigned seven errors, being respectively the overruling of the several exceptions filed in the Orphans’ Court.
    The Act of April 20th 1869 (relating to dower), Pamph. L. 77, 1 Brightly’s Purd. 530, pi. 10, &c., is as follows:—
    Sect. 1. That in case any person has died, or shall hereafter die, leaving a widow and last will and testament, and such widow shall elect not to take under the will, in lieu of dower at the common law as heretofore, she shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under existing laws of this Commonwealth.
    Sect. 2. The Orphans’ Courts of the several counties of this Commonwealth, in which the real estate of such decedent is situated, shall have power, on application of the widow or any one interested, to award an inquest to make partition of the same, and .to decree the allotments thereof made, or in case of refusal to accept, to order a sale thereof, and secure the interest of the widow and all others interested, in the same manner and with like force and effect as is now provided by law in the partition of the real estate of persons dying intestate.
    Sect. 3. That if any decedent who shall have died prior to the passage of this act shall leave a widow and issue, and a last wdll and testament, and the widow of such decedent shall refuse, or shall have refused, to take under the said will, such widow, upon filing her petition for partition in the Orphans’ Court of the proper county, or upon filing her written assent to such petition whem proceedings are commenced by any other interested party, shall be entitled to the provisions of this act, and the said court shall have jurisdiction to make such partition : Provided, That whenever proceedings in partition have been commenced, and are now pending in any Orphans’ Court of this Commonwealth, in cases of testacy, wherein the widow has refused to accept under the last will and testament of her deceased husband, such court shall have jurisdiction in the premises, and may proceed therein under the provisions of this act upon the parties interested filing their written assent, and in case any of the parties are minors, then such written assent shall be by the guardian or guardians of such minor or minors.

      C. S. Fetterman, for the appellants.
    On the first four specifications he cited Acts of March 29th 1832, § 42, Pamph. L. 203, February 24th 1854, § 44, Pamph L. 81, 1 Brightly’s Purd. 440, pl. 170, 171.
    The jurisdiction in the assignment of widow’s dower, is exclusively in the common-law courts: Bradfords v. Kents, 7 Wright 474; Shaffer v. Shaffer, 14 Id. 394; Hinnershits v. Bernhard, 1 Harris 518; Paul v. Paul, 12 Casey 270. Proceedings in dower in the Orphans’ Court instituted before the Act of 1869 (supra), require the assent in writing of all parties in interest.

      J. W. F. White, for appellee.
    As to jurisdiction referred to Act of 1869, supra: Act of March 29 th 1832, § 36, Pamph. L. 201; April 13th 1840, §4, Pamph. L. 320, 1 Brightly’s Purd. 433, pl. 136, 138; April 8th 1833, § 11, Pamph. L. 249; April 11th 1848, § 11, Pamph. L. 537, 2 Brightly’s Purd. 1476, pl. 12, 13.
   The opinion of the court was delivered, November 13th 1871, by

Sharswood, J.

The first six specifications of error relate to matters of fact in regard to which much must necessarily be intrusted to the sound discretion of the court below. Whether the executor or administrator of the estate of a decedent has neglected or refused to execute the order of sale in partition, so as to authorize the court, under the 44th section of the Act of February 24th 1834 (Pamph. L. 81), to appoint some suitable person as trustee for the purpose of making such sale, evidently falls within this category. It is to be presumed that he has refused, and his subsequent allegation to the contrary will not avail. Omnia prcesumuntur rite esse acta is a maxim which properly applies. This court ought not to reverse on such a ground, unless it manifestly appears on the face of the record that there was a palpable and gross abuse of the discretion of the court, which is not the case on this record. The same remarks apply to the exceptions which have been made to the manner in which the sale was conducted, and the price obtained for the property.

The only question which remains is that which arises on the seventh assignment of error, namely, as to the jurisdiction of the Orphans’ Court to entertain the petition of the widow praying for the award of an' inquest of partition to set apart to her one-third of the real estate of the decedent during her life, if that can be done without prejudice to or spoiling the whole; and if not, that the said real estate may be valued and appraised as the law directs. It is undoubtedly true, that before the passage of the Act of Assembly of April 20th 1869 (Pamph. L. 77), the Orphans’ Court did not possess that jurisdiction. In the case of a will, where the widow elected to take her dower at common law, her remedy was exclusively in the Court of Common Pleas: Bradfords v. Kents, 7 Wright 474; Shaffer v. Shaffer, 14 Id. 394. The Act of 1869, however, gave jurisdiction to the Orphans’ Court in such case “ on the application of the widow or any one interested ” to award an inquest to make partition, and to decree the allotments made, or, in case of refusal to accept, to order a sale, and secure the interest of the wTidow and all others interested in the same manner and with like force and effect as is now provided by law in the partition of the real estate of persons dying intestate.” The petition of the widow, filed September 28th 1867, and the inquest awarded thereon — upon which, however, no further proceedings were had, as the writ was returned “stayed” — were, therefore, coram non judiee, and, according to the established doctrine upon that subject, to be regarded as mere nullities. It is true that the 3d section of the Act of 1869 confers jurisdiction in such a proceeding pending before the passage of that act, upon the parties interested filing their written assent thereto. But where no such assent is filed it is clear that there is no jurisdiction. There was certainly nothing, then, as is indeed conceded, to prevent the widow from presenting a new petition on the 12th of February 1870, under the Act of 1869, nor can it affect the regularity of the proceedings, much less the jurisdiction of the court, that she endorses it as a “supplemental petition,” and recites in it the former petition, and the order of the court thereon. Names are nothing provided the substance be maintained. The former petition was a paper on file, which she might well incorporate by reference as a part of the new petition. It is enough that the order of the court awarding the inquest was made at a time when they possessed full jurisdiction over the subject-matter.

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


author: Thompson, C. J.

text:
    Pittsburg, Allegheny and Manchester Passenger Railway Company versus Donahue.
    1. A boy riding on a oar was wilfully and wantonly struck by the driver, and thereby thrown off the car; the ear-wheel passed over him. Held, in a suit against the car-owners: 1. That they were not liable for the act of the driver in striking the boy. 2. They were liable for negligently driving over him.
    2. A master is liable for the results of the wilful conduct of his servant. if within the scope of his authority.
    3. A blow may be given by a conductor or driver when by resistance to proper authority it becomes necessary.
    4. The court charged that the jury “ would’be justified in giving the plaintiff compensation, not only for such damages as he had already sustained, also such as will reasonably sustain in the future arising from the injury complained of, but also allow him for any pain and suffering he has sustained by the injury.” Held, to be correct.
    5. That damages for negligence are to be measured by the same rule to artificial persons as to natural persons, should be held by courts and juries, and care should be taken by judges trying the causes that it be so administered.
    November 7th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 18, to October and November Term 1871.
    This was an action on the case brought December 2d 1868, by John Donahue against The Pittsburg, Allegheny and Manchester Passenger Railway Company, for injuries to his son Michael Donahue, by the negligence of the defendants’ servants.
    The evidence was not printed in the paper-book, but it appeared from the statement of the case, that Michael Donahue, a small lad, got upon one of the defendants’ cars; at the time he got on, the-driver, who was also the conductor, was inside the car collecting fare.
    When he saw the boy he went out to the platform where the boy was standing, struck him or pushed him from the car with an iron switch-turner, throwing him from the platform and the wheels passed over his feet, so seriously injuring him as to require the amputation of several of his toes and unfitting him for future service to the plaintiff. Considerable expense was incurred for, nursing, medical attendance, &c.
    The cause was tried November 14th 1870, before Kirkpatrick, J.
    The following are points of the defendants with their answers:
    1. The plaintiff is not entitled to recover, upon the pleadings and evidence in this case.
    2. Taking the testimony on the part of the plaintiff tobe true; namely, that the driver of the car “ struck plaintiff’s son with an iron poker, and knocked him off, and the wheel of the car ran over his (the son’s) toes or foot, causing the injury complained of,” the defendant is not liable in this form of action, and the verdict of the jury should be in favor of the defendant.

      Both these points were refused.
    3. If the plaintiff’s son was assaulted by the driver of the car, and knocked off the car, and in consequence thereof he (the son) fell, and was immediately passed over by the car, and injured in the toes or foot, the corporation defendant is not liable for the injury or damage resulting from such violence.
    Answer: “Refused, unless the jury find, from all the evidence in the case, that the act of the conductor in putting the boy off the car, was a wanton and malicious act, committed out of the course of his agency, and without the scope and course of his employment. If they so find, it is affirmed.”
    4. If the facts be as stated in the third point, and the plaintiff having given no testimony tending to show express authority from defendant to the driver of the car to commit said trespass, no such authority can be implied from the nature of the driver’s employment, and defendant is not liable to plaintiff for the trespass and violence committed upon his son.
    Answer: “ Refused, as presented. Beyond question, no authority has been shown, neither can any be implied, from the defendant to the conductor, to perpetrate an act, such as that is, to push him off, by knocking him off the car with the iron bar, or poker, as has been detailed by the boy, Michael Donahue; and if, as is stated in our answer to the third point, the jury find that the conductor, in putting the boy off the car, (if they find he did so,) acted in view of his agency, and within the scope of his general authority as a conductor, the defendants are answerable for the result of putting him off, even if the putting off was done in a wanton and malicious manner, if he did not exercise care and caution in putting the boy off, but acted maliciously and wantonly, this company is liable.”
    The verdict was for the plaintiff for $525.
    The defendants took a writ of error, and assigned for error, the answers to their points.

      D. W. & A. S. Bell and A. M. Brown, for plaintiffs in error. —The act of the driver was a wanton trespass, not done in the course of his employment, nor under the express or implied authority of the defendants; they are therefore not responsible: Shearman and Redfield on Negligence, §§ 55, 59, 62; Poulton v. London and S. W. Railway, 2 Queen’s Bench 535; Little Miami Railroad v. Wetmore, 9 Am. Law Reg. 621; Fox v. N. Liberties, 3 W. & S. 103; Croft v. Allison, 4 B. & Ald. 590; Phila. G. and N. Railroad v. Wilt, 4 Whart. 143; Yerger v. Warren, 7 Casey 319; Morley v. Gaisford, 2 H. Black. 442.

      A. G. Cochran and R. J. Powers, for defendant in error.— The master is liable for the tortious acts of his servant when done in the course of his employment: Penna. Railroad v. Vandiver, 6 Wright 365; Goddard v. Gr. Trunk Railway, 10 Am. Law Reg. N. S. 17; Moore v. Railroad, 4 Gray 465; Railroad v. Finnay, 10 Wis. 385; Weed v. Railroad, 17 N. Y. 362; Flint v. Transportation Co., 34 Conn. 554; Landreaux v. Bell, 5 Louisiana, O. S. 275; Railroad v. Blocher, 27 Md. 277; Railroad v. Derby, 14 How. 468; Seymour v. Greenwood, 30 Law J. Rep. Exch. 189, 327.
    The judgment below was affirmed November 13th 1871.
    Per Curiam. — We agree with the counsel for the plaintiff in
    error, that for a wilful and wanton trespass committed by a car-driver the company is not responsible; but here, in addition to the trespass, the driver inflicted the principal injury by negligently and recklessly driving the car over the limb of the plaintiff’s son, thus injuring him. For this the company was clearly answerable. We perceive no error in the record, and the judgment is affirmed.
    On the 15th of January 1870, Michael Donahue (the boy men-mentioned in the foregoing case), by his next friend, Patrick Donahue, brought an action on the case against the same defendants for the same injury, and the case was tried, September 28th 1871, before Kirkpatrick, J., on the same evidence.
    The defendants’ points and their answers were:—
    1. The defendants are not liable for the wilful and unauthorized trespass of a driver or conductor of their cars.
    Answer: “Refused as presented. These defendants are responsible for the results of their driver’s conduct, if this conduct was exercised within the scope of his authority, and within the course of his ordinary employment as such. If therefore you find his conduct was so exercised by the driver, and in consequence thereof the boy fell under the wheels of defendants’ car, they are responsible to this plaintiff for any and all injuries resulting to him therefrom. The amount is wholly for you, upon a careful consideration of all the testimony in the cause.”
    2. If the plaintiff was assaulted by the driver or conductor of defendants’ car, and knocked off the car and injured in consequence thereof, the defendants are not liable for said alleged trespass, in the absence of express authority from defendants to the driver to commit such trespass.
    3. Taking the testimony on the part of the plaintiff to be true, viz., that the driver of the car struck plaintiff with an iron bar or poker and knocked him off, and he fell under a wheel of the car and was thereby injured, the defendants are not liable for said trespass.
    Both the 2d and 3d points were refused.

      4. If the injury complained of was occasioned by the wilful act of the driver or conductor, and not shown to have been authorized or assented to by the officers_of the corporation, defendants, the plaintiff cannot recover.
    Answer: “ Refused for reasons given in answer to defendants’ 1st point, and for the further reason that to enable the plaintiff to recover, there is no necessity to show that the driver was authorized to do this particular act, or any other act of like kind or character. ‘ The criterion is not whether the master has given the authority to do the particular act, but whether the servant Was in the ordinary course of his employment.’ This is the rule laid down by the Supreme Court of this state. It is a rule to us, and we submit it to you as binding in this case. We might go further possibly and, as a court, tell you whether this act did or did not come within such scope and compass as a driver and conductor, and we think in so doing we would only be doing what the Supreme Court said and did in the case we have just cited, but prefer leaving it as a matter of fact to be found by you, as any other fact in the case, instructing you further, that if you find that the act was done in the ordinary course and scope of his employment, as such driver and conductor, then the defendants are responsible to the plaintiff for the damages resulting from his being knocked off and being run over by the car-wheel.”
    The court further charged:—

      * * * “ That it was not necessary that authority should have been given to the driver and conductor to do this particular act, or any other like act; that the criterion was not whether they would have given the servant authority to do a particular act, but whether the servant in doing the act was in the ordinary course of his employment; that authority to do this particular act of the driver and conductor from defendants was not claimed nor was it proven; that it was clear no such authority ever was or would have been given; that this, however, was not necessary to the plaintiff’s right to recover under the instruction and for the various reasons already given; * * * that the rule of damages was, if the jury find him entitled to recover at all under all the1" evidence in the case, they- would be justified in giving him damages not only for such as he has already sustained, also such as he will reasonably sustain in the future, arising from the injury complained of, but also allow him for any pain and suffering he has sustained by reason of the injury.”
    The jury returned the following verdict:—
    “We find a verdict for the plaintiff in amount as follows—
    “Eor pain suffered, seven hundred and fifty dollars $750.00
    ( For compensation, four thousand four hundred and sixty-six dollars and sixty-six cents . . 4,466.66
    Total verdict $5,216.66”

      The defendants removed the case to the Supreme Court, and assigned for error the answers to their points and the portions of the charge given above.
    The writ of error was heard November 12th 1872, before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    It was argued by

      A. M. Brown and B. W. and A. S. Bell, for plaintiffs in error.
    The charge on the question of damages was too indefinite: Penna. Railroad v. Vandiver, 12 Casey 298: Penna. Railroad v. Zebe, 9 Id. 318; Penna. Railroad v. Kelly, 7 Id. 372.
    On the question of the liability of the defendants for the acts of the driver, besides the authorities cited in the foregoing cases, they cited Smith’s Master and Servant 151.

      A. G. Cochran and R. J. Powers, for defendant in error.
    On the question of damages cited: Klein v. Franklin Ins. Co., 1 Harris 247; Huber v. Wilson, 11 Id. 178; Hoopes v. Garver, 3 Id. 517. On the question of the liability of the defendants for the conduct of the driver they made the same references as in the former case.
   The opinion of the court was delivered, January 6th 1873, by

Thompson, C. J.

On the argument at bar, it seemed to me, that there was a want of definiteness in the instructions of the learned judge in answer to the points of the defendant, in order to exclude as an element of damages the manifest trespass of the driver of the car; but on further reflection this impression has yielded to a different conclusion. It is true the learned judge refused to charge as requested by defendant’s counsel, that the railway company was not liable for the wilful trespass of the driver of the car, hut he charged that it was responsible for the results of his conduct, if within the scope of his authority. It might have been more satisfactory if he had explained to the jury what was not within the scope of this authority, as disclosed by the testimony ; but in regard to the blow with the iron bar, by which the plaintiff was knocked from the platform of the car and fell under its wheels, he instructed the jury that the driver had no authority to do such an act. This, of course, withdrew it as an element of damages.

We do not say that in no case a blow may not be given by a conductor or a driver and be within the scope of his authority. It certainly may, when by resistance to proper authority it becomes necessary to execute that authority. No company would ever confer the authority to beat even trespassers, on their cars. But with the authority to remove them it is implied, if necessary, and the facts must show the necessity; if not, and injury occurs that would be entitled to be compensated, a company might be answerable to the injured party. In this case the blow knocked the plaintiff off the car, and then by culpable negligence the car was driven over his feet, and he was badly injured. The driving of the car was within the scope of the driver’s employment, and for this the company was answerable. It was for this that damages were given.

This subject has received some consideration in the case of Bagley v. The Manchester, Sheffield and Lincolnshire Railway Co., Eng. L. Rep. vol. 6, 415, Com. Bench. The substance of the decision is, that a person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances which arise when an act of that class is to be done, and trusts him for the manner in which it is done; consequently he is answerable for the wrong of the person so intrusted, either in the manner of doing such an act, under circumstances in which it ought not to have been done, provided that what is done is not done from any caprice in the servant, but in the course of the employment.” In that case the company was held answerable in damages to the extent of £200, for injury done a passenger by a porter who attempted to remove him from a train which he was rightfully on, but which the porter thought was the wrong train. It was held that as it was within the scope of the porter’s duty to remove persons not entitled to passage on the train, the company was liable to damages for the injury to the plaintiff in endeavoring to put him off, although the effort made was under a mistake. All this was because the porter supposed he was acting under legitimate authority, and so he was, but was mistaken in the exercise of it.

Our case was well decided, however, in holding the company, as between it and the plaintiff, answerable for what it did by its agent in the course of his employment, viz.: negligently driving over and maiming the plaintiff, it is said, for life.

We do not see any errors in the manner in which the learned judge submitted the question of damages to the jury. It was proper to allow the jury to assess damages for pain and suffering sustained as the result of the injury, as well as for any permanent injury proved.

We have nothing to say about the amount of damages allowed by the jury. They may be all right in this particular instance, but this court is often told, and we cannot shut our eyes to the fact, that juries are prone to be more liberal, or perhaps, rather, more unreasonable, in allowing damages against corporations than they are, as against individuals under like circumstances, without reflecting that they are punishing stockholders whose money has built up these useful lines of convenient and speedy transit, and ■who have no active connection with the management of the business whatever, and who are entirely innocent of any wrong occurring in their management. The rule of right is the same whether the party be artificial or natural, and^ should he so held by courts and juries. It may be so administered, if care be taken by judges on the trial of causes where such parties are involved. Had the precise injury here been inflicted by the trespass and negligence of a private hack-driver, such a verdict would hardly have been sustained, as it would probably have ruined and beggared the owner of the vehicle, and yet the rule of right ought to be the same. I have no sympathy with guilty agents, but a reasonable rule of responsibility should apply to his employers if they are guilty of no negligence in>niploying him, be that employer a railroad company or a private person; the only difference being in the requirement of greater vigilance necessary in the one case than the other, owing to the difference in power to injure between public and private vehicles.

Judgment affirmed.