author: Read, C. J.

text:
    Mayer’s Appeal.
    1. A party-wall erected by Simpson projected unintentionally in several places slightly beyond the proper line, over land of Mayer who was erecting a building at the same time, by contract with a builder who was to pay for the party-wall. He knew the wall was projecting, but went on and paid for it; Simpson completed his building without correcting the projection. The court under the circumstances refused a decree to take down the wall.
    2. This occupation of part of plaintiff’s lot did not give defendant any title to it nor affect plaintiff’s right to damages.
    3. Yollmer’s Appeal, 11 P. F. Smith 118, recognised.
    February 4th 1878.
    Before Read, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius: In Equity: No. 5, to January Term 1871.
    The proceedings in this case were commenced by bill filed on the 22d of September 1870, by John Mayer against Robert F. Simpson.
    The bill averred that the plaintiff, on the 25th of February 1870, became the owner of a lot of ground on the west side of Ninth street, 126 feet north of Arch street, Philadelphia, with old buildings on it, and shortly afterwards removed the buildings preparatory to the erection of a large store on the lot; that the defendant was the owner of a lot at the north-west corner of Ninth and Arch streets, which extended northward on Ninth street to the line of the complainant’s lot; that he was erecting a large building of great height, for a museum and theatre, to cover his entire lot, and had nearly completed the northern wall of the building on the plaintiff’s southern line, but instead of building a straight wall extending six and one-half inches on plaintiff’s ground — the distance allowed for party-walls — he had extended it beyond that distance over plaintiff’s ground from a quarter of an inch at one point to four inches and an eighth at another point.
    The bill then set out the several points of overlapping, with the different distances at each point.
    The bill further averred that after defendant had commenced his building, the plaintiff contracted with Jacob Rush to erect, under the supervision of an architect, on his lot above mentioned a store-house; that the builder and architect had had the entire charge of the plaintiff’s property, had erected the front and rear walls of the building, put the roof on, using the adjoining party-walls for his joists; the plaintiff had no knowledge that the defendant had encroached on his property with the party-wall until in August 1870, or he would have taken earlier steps to have prevented this infringement of his rights.
    The prayers were:—

      1. For an injunction restraining the defendant from completing the party-wall on the plaintiff’s property.
    2. That the defendant be restrained from maintaining the party-wall on the plaintiff’s land, and that defendant be required to place the wall on a straight line in a perpendicular manner within the limits prescribed by law.
    3. For a decree compelling defendant to pay plaintiff damages' for the injury done him by erecting the wall beyond the line, and for the delay to plaintiff in the erection of his building caused by the defendant’s action; and for general relief.
    A preliminary injunction was awarded, which was dissolved September 29th 1870.
    Defendant answered, — that he was ignorant of most of the allegations in the bill, and averred that he had made preparation in April 1870 to erect his theatre; that the building was entirely erected and roofed; since filing the bill, a survey of the building inspectors showed an overhanging of but from one-quarter to three-quarters of an inch; that whilst the wall was being constructed and before its completion, the builder of plaintiff’s building told the builder of defendant’s building that the wall was over the line; defendant’s builder immediately offered to correct it, but was informed that it was unnecessary as when plaintiff’s joists should be put in it would be all right; the overhanging could then have been corrected with little trouble and expense, and would have been corrected had it not been assented to by the builder; that the plaintiff had made payments on the party-wall, the last after the wall had been entirely erected and the overhanging discovered. Defendant denied the plaintiff’s measurements of the overhanging were correct; averred that plaintiff’s architect and builder had had entire control of his building, and that the overhanging had been known to them in July 1870, long before the wall was completed; that plaintiff had used the wall for his building.
    A replication was filed and an examiner appointed. On his report being filed, George S. Selden, Esq., was appointed master, who reported that the plaintiff was entitled to the relief asked for in his first and second prayers.
    The facts, not differing materially from the respective allegations in the bill and answer, are found in sufficient detail in the opinion of Chief Justice Read.
    . Exceptions were filed by the defendant to the master’s report, and after argument at Nisi Prius the bill was dismissed, Judge Sharswood delivering the following opinion, December 30th 1871
    .“I am not inclined to make a decree in this cause, which can be enforced only by compelling the defendant to pull down the party-wall between his house and the house of the plaintiff. Both buildings rest for their support on this wall. The plaintiff’s builder accepted this party-wall and paid for it. He has used it to insert his own joists in. The foundation wall was right, but owing to want of skill, it has encroached several inches in different parts. Had this bill been filed immediately when the plaintiff knew or 'ought to have known the encroachment, and the defendant had gone on pending the bill, there would be both reason and authority for saying that he could be decreed to pull it down: Clark v. Martin, 13 Wright 289. But here the wall was nearly finished before the bill was filed. No doubt a mandatory injunction may be granted on final hearing. But it certainly is not a matter of right. I may refer to Senior v. Pawson, L. R. 3 Eq. 330, where Y. Ch. Sir W. Page Wood considered it a circumstance entitled to great weight £ that damage to a much larger amount would be done by granting the mandatory injunction,’ and he adds: £ I do not think I ought to make a decree which would enable an extortionate price to be obtained for the injury sustained by the plaintiff. Seeing the time which has elapsed before any complaint was made, seeing also that the reasonable mode of doing justice between the parties is by a money compensation, I think that in fairness and in principle the power of the court should be so exercised as to give relief by damages instead of by injunction.’ In England this relief in damages is given by the Court of Chancery ‘ in addition to or in substitution for’ the specific relief to which the plaintiff may be entitled by virtue of the statute: 21 & 22 Yict. e. 27, commonly called Sir H. Cairns’s Act. The intention of that act £ was to give the court power to grant complete relief whenever it had a well-founded jurisdiction to entertain the case, and not to compel a plaintiff to ask partial relief in one court and then turn him over to another in order to obtain supplemental relief:’ Headley v. Emery, L. R. 1 Eq. 54. I have not the statute at hand to examine, but if it goes no further than is here represented, it seems to me that it does not extend the recognised power of the court: Denton v. Stewart, cited 1 Ves. p. 329; Greenway v. Adams, 12 Ves. 395; Phillips v. Thompson, 1 Johns. Ch. 131; Woodcock v. Bennett, 1 Cowen 711. Although these are cases on bills for the specific performance of contracts of sale, I see no reason why the same principle should not apply to other cases, and that whenever a court of equity originally has jurisdiction of the cause of complaint, and for any reason it becomes impracticable to give the relief specifically cited, it may not substitute compensation in damages. I have felt much inclined to refer this case back to the master to ascertain the damages. To decree that the wall should be removed, would be to enable the plaintiff to demand an extortionate sum. The plaintiff’s builder, who, as to this matter, must be regarded as his agent duly authorized, having accepted, paid for, and used the wall, it seems to me he has no equity to ask a decree that it should be pulled down. I have hesitated as to whether after the wall had been finished or nearly so, the case is not one in which the party should be remitted to his legal remedies. A reference would delay the final decision. On the whole, then, I have come to the conclusion to dismiss the bill.”
    The defendant appealed to the court in banc and assigned the decree' at Nisi Prius for error.

      J. S. Price, (with whom was E. K. Price:) for appellant. —
    The regulation of a lot by the city surveyor is conclusive: Godshall v. Mariam, 1 Binn. 352; Evans & Watson v. Jayne, 11 Harris 34. Plaintiff having made his contract to build with his contractor, both as to the building and the payment of the party-walls, was under no obligation to look further after the building until it was finished: Allen v. Willard, 7 P. F. Smith 374.
    Simpson had but a statutory right to cross the line which he was bound strictly to pursue: Tilford v. Wallace, 3 Watts 141; Bolton v. Johns, 5 Barr 149. The authority from Mayer to Rush was to build the building and to pay for legal party-walls on each side, and for nothing more: Co. Lit. 258, a ; Story on Agency 157, sec. 166: Frailey v. Waters, 7 Barr 221.
    There is no proof that Mayer had any knowledge of .the payments, or in any way acquiesced in the position of the party-walls. He might have looked on in silence, and have remained unprejudiced in his rights : Hepburn v. McDowell, 17 S. & R. 383; Alexander v. Kerr, 2 Rawle 83; Crest v. Jack, 3 Watts 238: Goundie v. Northampton Water Co., 7 Barr 233; Knouff v. Thompson, 4 Harris 357. Silence will estop only when it is a fraud : Lawrence v. Luhr, 15 P. F. Smith 236; Kerr on Injunctions 202.

      Gr. W. Earicins, for appellee. —
    An action at law would give the plaintiff ample compensation, whilst a decree ordering the removal of the wall, would enable him to extort any sum that he might conceive. Where there exists an adequate remedy at law, a court of equity will not interfere by injunction: Kerr on Injunctions 200. The mere diminution of the value of property without irreparable mischief, will not furnish sufficient ground for equitable relief: Atty. General v. Nichol, 16 Vesey 342; Winstanley v. Lee, 2 Swanston, p. 352.
   The opinion of the court was delivered, February 13th 1873, by

Read, C. J.

Robert F. Simpson owns a lot of ground at the north-west corner of Arch and Ninth streets, extending in front on Arch street forty-eight feet, and in length or depth on Ninth street one hundred and twenty-six feet, and John Mayer owns a lot adjoining it on the north, eighteen feet on Ninth street by forty-eight feet in depth. The defendant erected in 1870 a building, intended for a museum and theatre, covering the whole of his lot, the north wall of which was an eighteen-inch brick party-wall, which by law should be six and a half inches on the plaintiff’s lot. Mr. Shedaker gave to the defendant, or his agent, the true line between the two properties, in his capacity as Surveyor and Regulator of the Third District, and the stone foundation of the party-wall was correctly laid. The brick wall was carried up, beginning at stone foundation, as would appear by Mr. Shedaker’s measurement of the 30th and 31st of August, 1870, three-eighths of an inch over on the plaintiff’s lot beyond the limit allowed by law. In extending the wall back on the stone cellar wall, in different parts it overlapped three-quarters of an inch and seven-eighths of an inch, and in the middle of building the wall overhung the lot No. 110 top of first story 2f- inches, at top of second story 3J inches, and four feet above the floor on the third floor 4J inches. A subsequent measurement by John E. Wolf, Surveyor and Regulator of the Fifth District, was more unfavorable to the defendant.

Jacob Rush entered into a contract with the plaintiff to erect on his lot, No. 110, a three-story building with a mansard roof, eighteen feet front by forty-six feet deep. It was for a certain price; Rush contracting to pay for all party-walls. Defendant’s cellar wall was up before the contract was signed, and the excavation for the building on No. 110 was commenced on the 23d of June 1870. Defendant’s wall was carried up ahead of the plaintiff, and Mr. Rush saw the wall was coming over, and notified Mr. John Bingham, who had charge of the work at the time, that the wall was coming over, and that he had better shore it. He did so, but put the shore in the wrong place. Mr. Rush put in the joists in the party-wall, and paid for the party-wall, according to his contract. The plaintiff having heard of its overhanging, employed Mr. Shedaker to make the measurement already stated, and immediately took measures to have this error corrected, which ended in filing this bill in equity on September 22d 1870. The wall is up and both buildings are under roof. The usual five days’ injunction was issued and dissolved on the 29th of September. The case was then heard on bill, answer and proofs, and the bill dismissed with costs.

From this decree this appeal is taken. The occupation unlawfully of a portion of the plaintiff’s lot does not convey any title to it to the defendant; nor does it affect the plaintiff’s title or his right to recover damages for the trespass, but as an injunction is a matter of discretion with a court of equity, we do not feel bound-to grant a mandatory injunction to tear down this wall, which is the practical meaning of the second prayer of the bill.

This case shows the necessity of great care and attention on the part of owners and contractors in the erection of party-walls from the time they are commenced until they are finished. The party erecting, as in this case, will take care it is plumb as it is smooth on his side, and it is his interest to get the full use of his lot, but as was the fact here, more careless as to the encroachment on his neighbor’s property. The Building Inspectors should be particularly careful in inspecting party-walls, for their powers are large in correcting all errors in such walls not built in accordance with law.

A full history and discussion of this subject is to be found in Vollmer’s Appeal, 11 P. F. Smith 118.

We affirm the degree of the court below with a modification. This bill is dismissed with costs without predjudice.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Haines’s Appeal.
    1. The legislature cannot give a tribunal, acting without a jury, power to determine legal rights unless there be some equitable ground of relief.
    2. To sustain the chancery power to order deeds, &e., to be delivered up to be cancelled, there must be some danger of future litigation, when the facts will not be capable of proof, or have been become obscured by time.
    3. The Act of April 28th 1868, authorizing the court upon petition on “due proof” that aground-rent has “been extinguished by payment or presumption of law,” &c., to decree that such ground-rent is extinguished, is unconstitutional; it violates the right of trial by jury.
    4. A party is not concluded by the decision of a court not having jurisdiction to decide the controversy.
    5. Norris’s Appeal, 14 P. F. Smith 275 ; North Pennsylvania Coal Co. v. Snowden, 6 Wright 488; Tillmes v. Marsh, 17 P. F. Smith 507, considered.
    February — 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Philadelphia : No. 276, to January Term 1871.
    This was a proceeding under the Act of April 28th 1868 (Pamph. L. 1147, 1 Br. Purd. 750, pi. 6), as follows, viz.: “ In all cases in which ground-rents have been or may be extinguished, by payment, or by presumption of law, but no deed of extinguishment or release thereof shall have been executed, it shall and may be lawful for the owner or owners of the land out of which the rent issues, or any person interested, to apply by petition to the Court of Common Pleas, * * * whereupon such court shall make such order for giving notice, &c., * * * and on due proof being made of the truth of said petition, the said court are authorized and required to make a decree declaring that the said ground-rent is released, merged and extinguished,” &c.
    On the 12th of March 1870, George D. Parrish, William Hunt and Stephen S. Price, executors, &c., of Joshua Longstreth, deceased, presented a petition to the Court of Common Pleas of Philadelphia, setting forth that the decedent had died, seised of two lots of giound on North street, between Fifth and Sixth streets, Philadelphia, on each of which there was a ground-rent of $80 per annum, payable to Reuben Haines; that no acknowledgment of the existence of the ground-rents had been made by the decedent or by any one on his behalf for twenty-one years, and the ground-rents were presumed to be released and extinguished, &c.; that Haines was deceased, and his residuary devisees were owners of the ground-rents. After setting out other facts, they prayed, that upon the notice required by the Act of Assembly to the parties interested, “a decree be made declaring said ground-rents extinguished,” &c.
    John S. Haines, executor, &c., of Reube*n Haines, deceased, by his answer admitting the existence of the ground-rents and other allegations of the petition, averred facts in answer to it for the purpose of rebutting the presumption of a release of the ground-rent. He further said: “ That he is advised, and believes that the Act of 1868 is contrary to the Constitution of the state of Pennsylvania, in that it deprives the respondent, and others, of their right to trial by jury, and usurps the judicial power vested in the courts; and further, that it is in violation of the Constitution of the United States, in that it impairs the obligation of contracts.”
    The matter was referred to W. B. Robbins, Esq., as examiner and master.
    He took testimony and reported: “Upon the question of-fact the master has no difficulty in arriving at a decision that, in the words of the Act of Assembly, no payment, claim or demand has been made on account of or for said ground-rents, and no acknowledgment or declaration of the existence thereof has been made within a period of twenty-one years past.” * * *
    “ Being satisfied, therefore, that it has been sufficiently proven that no payment or demand for these ground-rents, or acknowledgment of their existence, has been made for more than twenty-one years past, and deciding the Act of 1868 to be constitutional, the master is of opinion that in this case the prayer of the petition ought to be.granted.”
    The executor filed exceptions to the report of the master. It was confirmed by the court (Ludlow, J.), and it was decreed that the ground-rents “ be and hereby are released, merged and for ever extinguished.”
    The executor appealed to the Supreme Court and assigned the decree for error.

      H. Wharton, for appellant.
    The question of extinguishment was one of fact, and to be decided by a jury: 1 Greenl. sect. 39; Foulk v. Brown, 2 Watts 215; Taylor v. Megargee, 2 Barr 225; Fladong v. Winter, 19 Vesey 196.
    The act takes away the trial by jury and is therefore unconstitutional: N. Penna’a. Coal Co. v. Snowden, 6 Wright 488; Rhines v. Clark, 1 P. F. Smith 96; Norris’s Appeal, 14 Id. 275; Tillmes v. Marsh, 17 Id. 510. The act did not design an equity proceeding. There is nothing in the case to bring it under any head of equity; neither mistake, fraud, accident or trust, and cannot therefore be withdrawn from a court of law: Hamilton v. Cummings, 1 Johns. Ch. 523; Kerr on Injunctions 13; Bromley v. Holland, 5 Vesey 618. The act operates on the contract itself, impairing its obligation, and is in violation of the Federal Constitution : Webster v. Cooper, 14 Howard 488.

      J. Parrish and J. P. Gfowen, for appellees.
    If the court would be bound to instruct a jury that the defence was unavailable, a decree without a jury would be valid: Hoffman v. Locke, 7 Harris 59; Taggart v. Fox, 1 Grant 190. The proceeding is an equitable one: 1 Story’s, Eq. Jur. sect. 698, 709, and cases cited in notes: Eckman v. Eckman, 5 P. F. Smith 269; Craft v. Lathrop, 2 Wallace, Jr., 103; Kenton v. Vandegrift, 6 Wright 339; Bromley v. Holland, 7 Vesey 3.
   The opinion of the court was delivered, March 6th 1873, by

Sharswood, J.

The only ground upon which’the constitutionality of the Act of April 28th 1868, Pamph. L. 1147, can be supported under the decisions of this court in North Pennsylvania Coal Co. v. Snowden, 6 Wright 488, Norris’s Appeal, 14 P. F. Smith 275, and Tillmes v. Marsh, 17 Id. 507, is that it is a proceeding within the jurisdiction of a court of equity. It must . certainly be considered as settled by those cases, that an Act of Assembly cannot vest in a tribunal like a court of chancery, acting without a jury, the power to determine upon the legal rights of parties, unless there exists some equitable ground of relief. We may look in vain for any principle or authority to sustain a bill praying for a decree under the facts and circumstances, as disclosed in the petition filed in the court below. As to the power which has been principally relied on, to order deeds or instruments to be delivered up and cancelled, there is always some ground of equity upon which the chancellor has interposed, besides the mere fact that the instrument cannot be enforced at law. There must be some danger of future litigation, when the facts will be no longer capable of complete proof, or have become involved in the obscurities of time : 2 Story’s Eq. Jur. sec. 705. This is the reason upon which a bill quia timet may be sustained. No case has been produced, and we think none can be, which goes the length which must be maintained here, that wherever there is an outstanding claim or encumbrance upon an estate which is barred by reason of lapse of time, and therefore cannot be enforced at law, but which nevertheless, is a cloud upon the title, and prevents it from being marketable, the possessor can invoke the aid of a court of equity to remove the cloud, and for ever bar such claim or encumbrance by a perpetual injunction. If this could be done, there is not an ejectment in the common-law courts which by an inversion of parties could not be brought into a court of equity, and the question finally determined by one decree without a jury, instead of. two verdicts and judgments. No doubt it is highly important to the parties, and, indeed, of public interest, that some mode should exist by law by which all such clouds may be removed, and thus valuable estates be brought into the market. We are very far from holding that the legislature cannot do this. But then trial by jury must be “ as heretofore, and the right thereof remain inviolate.” By the thirty-third section of the Act of June 16th 1836, Pamph. L. 701, entitled “ An Act relating to the lien of mechanics and others upon buildings,” whenever a mechanic’s claim is filed against a building, it is made lawful for the owner, or any person interested, to call the claimant into court, which is thereupon authorized to proceed in like manner as if a scire facias had been issued, and duly served and returned. No one has ever thought of questioning the constitutionality of that section, which has been frequently acted upon and found very beneficial. Had there been a provision in the Act of 1868, giving the respondent the right to demand an issue, as by the eighty-seventh section of the Act of June 16th 1836, Pamph. L. 777, in questions arising upon the distribution of the proceeds of sheriffs’ sales, all objections to the act on this score would have been obviated. The learned judge who delivered the opinion of the court below, appears to have thought that because “ there is- nothing in the law which would prevent the court from sending every such case as this by a general rule to a jury,” it may therefore “ very well be questioned whether this act does in fact absolutely deprive the parties of a jury trial.” But as such a general rule, or the award of an issue in any particular case, would be entirely in the discretion of the court, it is clear that the parties have not secured to them their constitutional right of trial by jury. They would in effect hold it at the mere pleasure of the court.

The contention which has the most plausibility, is that upon the evidence in this case there was no question of fact for the decision of a jury, and that assuming all the facts to be true, the court before whom the trial might be had, would be bound to instruct the jury that the ground-rents in question must be presumed in law to- be extinguished. Conceding this to be so, there is a fallacy which lurks in this argument. The respondent in his answer demurred to the jurisdiction of the court, and if in law he was right, he could not be affected by any failure in the evidence, which he was not at all bound to produce. No party can be concluded by the decision of a court which has no jurisdiction to decide the controversy. We cannot strike from the act the words “ on due proof being made of the truth of the said petition,” and insert other words which would confine the jurisdiction to the case, where no evidence should be produced which would save the act from its unconstitutional operation. That would be judicial legislation. We assume in this judgment that the evidence brought the ease in law entirely within the purview of the Act of 1855. Upon that, however, we give no opinion.

Order reversed at the costs of the appellee.


author: Williams, J.

text:
    Leaming et al. versus Wise et al.

    1. Plaintiffs sued defendants for the price of oil-stock, alleging that it had been bought on false representations as to the cost of the land ; there was evidence that plaintiffs knew the cost in November and afterwards paid an assessment; subsequently the project failed; in March plaintiffs tendered the stock and offered to rescind. The court charged that if the jury found these facts and any unfavorable circumstance occurred between plaintiffs’ knowledge and tender which left defendants in a worse condition than if the tender and rescission had been at the time of the knowledge, the verdict should be for defendant. Held, to be correct.
    2. If there had been fraud, the plaintiffs could rescind and recover hack] the price; hut the tender should be in a reasonable time after discovery of L the fraud.
    3. By an uudue delay in tender and rescission the contract would be affirmed.
    4. When the facts are undisputed, what is reasonable time or undue delay f is for the court. ~
    5. Negley v. Lindsay, 17 P. F. Smith 217; Pearsoll v. Chapin, 8 Wright; 9, recognised. \

    February 18th 1873.
    Before Read, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    This was an action of assumpsit brought October 30th 1869, by I. Fisher Learning and another, trading as Waln, Learning & Co., against Charles Wise and Ellwood T. Pusey, to recover back money paid by plaintiffs to defendants for oil-stocks, alleged to have been sold under false representations.
    The case was tried January 5th 1871, before Lynd, J.
    The plaintiffs’ evidence was that in March or April 1864 they bought from the defendants 3000 shares of stock in the Watson Petroleum Company and Great Western Oil Company at $3 per share for the one and $2.50 per share for the other; that the defendants represented to them that if they bought the stock they would get it at the same price at which the defendants themselves took it, being only the actual cost of the land and 50 cents per share for working capital; that defendants also .represented that other persons, whom they named, and whose judgment as to oil-stock ranked high in the community, had purchased stocks at the same price; that some time afterwards they learned that the statements in regard to the cost of the land, &c., were inaccurate, and March 2d 1866 they tendered the certificates of stock to the defendants, and gave them notice that they rescinded thé contract.
    The plaintiffs gave other evidence in support of their case and closed.
    The defendants gave evidence in contradiction of the plaintiffs’ as to the representations; amongst other things, that when the plaintiffs purchased the stock nothing had been said about the price of the land or the cost of the stock.
    They gave evidence also that in October or November 1865, they had informed the plaintiffs what the land cost, which was less than the amount the plaintiffs said they had put it at when they bought the stock; that the plaintiffs had afterwards paid an assessment on the stock ; that there was no tender of the stock till after the wells had been finished and the working capital exhausted; that the companies had put down two wells, but had not got any oil, &c.
    The defendants submitted six points. The fourth with its answer was:—
    44 If the plaintiffs were informed by Charles Wise, in October 1865, of the original cost of the land, and did not then repudiate the contract, but waited until March 1866, taking their chances of oil being obtained in the meantime, and only made offer to return when the working capital was exhausted and the wells a failure, they are not entitled to recover.”
    Answer: “ This I have pretty well covered in my general charge, and I say further, in specific answer, that if you find the facts as put in this point, then the conclusion of law that the plaintiffs are not entitled to recover is correct.”
    In the general charge, the court said on this point:—
    44 In the fall of 1865 it was that Mr. Wise told Mr. Learning, Sr., the actual cost; it was after that that the assessment was paid. 41 think I went to his counting-house in October 1865. It was not more than three or four weeks later in October 1865. There was no tender of the stock until after the working capital was exhausted.’
    44 Now, gentlemen, upon this subject I simply instruct you:— 1. If you find that the plaintiffs were informed of the price of the land by Mr. Wise in October, or early in November 1865; 2. That the plaintiffs did not offer to return to the defendants the stock in question for one or more months after suph information was given; (the date is given; the evidence is March the 2d 1866 ;) that the price of the stock had fallen between the time of the receipt of the information and the time of the tender, or that any other unfavorable circumstances appearing from the evidence occurred in the interval, so that the defendants would be in a worse condition by taking back the stock at the time of the tender than they would have been if the stock had been previously tendered, or tendered at the time the information was given; then your verdict must be for the defendants.”
    The verdict was for the defendants.
    The plaintiffs took out a writ of error. They assigned fourteen errors. The eleventh was the answer to the defendants’ fourth point; the fourteenth was the portion of the charge given above.

      S. S. Hollingsworth (with whom was Gr. W. JBiddle), for plaintiffs in error.
    The seller having by his fraud put the buyer in possession of the stock cannot complain of the delay of tender of the goods before suing for the purchase-money: Blake v. Mowatt, 21 Beavan 603. Where the rights of third parties have not intervened, che right to rescind can be lost only by confirmation: Kerr on Frauds 235 et seq., and notes; Negley v. Lindsay, 17 P. F. Smith 217. The delay might be explained by other facts ; and the question was therefore for the jury: Rowe v. Osborne, 1 Starkie 112 ; Lawrence v. Knowles, 5 Bingh. N. C. 399 ; Charnley v. Dulles, 8 W. & S. 353.

      JR. P. White, for defendants in error.
    The question of reasonable time was one of law: Atwood v. Clark, 2 Greenleaf 249. The rescission must be in a reasonable time: Downs v. Smith, 32 Vermont 6; such time is the earliest moment after discovering the fraud: Weed v. Page, 7 Wisc. 513; Kingsley v. Wallis, 14 Maine 57 ; Mason v. Bovet, 1 Denio 74; Howe v. Huntingdon, 15 Maine 350; Hill v. Hobart, 16 Id. 168; Campbell v. Fleming, 1 A. & E. 40 ; Ayers v. Mitchell, 3 Shaw & McLean 683; Hoolbrook v. Bart, 22 Pick. 546; Clark v. Ascham, 1 Ellis, B. & Ellis 148.
   The opinion of the court was delivered, May 17th 1873, by

Williams, J.

The only question worthy of consideration in this case is presented by the 14th assignment. The action was brought to recover the price paid for certain oil-stocks which the plaintiffs alleged that they had been induced to purchase upon the fraudulent representations of the defendants as to the cost of the land; and a recovery was sought to be had on the footing of the plaintiffs’ rescission of the contract and a tender of the stocks to the defendants before bringing the action. The evidence shows that the plaintiffs bought the stocks in April 1864; that they were informed by the defendants, in October or November 1865, of the price paid for the lands; and that, on the 2d of March 1866, they tendered the stocks to the defendants and demanded back the money they had paid for them. Between the discovery of the alleged fraud and the tender of the stocks the assets of the company had been exhausted in boring unsuccessfully for oil, and the stocks had consequently depreciated in price. The court charged the jury that if they found that the plaintiffs were informed of the price of the lands by Mr. Wise in October, or early in November 1865; that the plaintiffs did not offer to return to the defendants the stocks in question for one or more months after such information was given; (the date is given, the evidence is March 2d 1866;) that the price of the stocks had fallen between the time of the receipt of the information and the time of the tender, or that any other unfavorable circumstances appearing from the evidence occurred in the interval, so that the defendants would be in a worse condition by taking back the stocks at the time of the tender, than they would have been if the stocks had been previously tendered at the time the information was given, then their verdict must be for the defendants. The objection made to the charge is, that mere delay in making the tender, after discovery of the fraud, is not in itself a defence to the action ; and whether it is such, as to amount to a confirmation of the sale, or a loss of the right to rescind it, is a question of fact for the jury.

If the defendants were guilty of the alleged fraud, the plaintiffs, on discovering it, had the undoubted right to rescind the contract, and, upon a tender of the stocks, to demand back the price paid for them. But it was their duty to do it within a reasonable time. They were not at liberty to await the result of the experiments the companies were making to obtain oil, and to rescind the contract after their efforts had proved to be fruitless. If they intended to rescind the contract it was their duty to act promptly and to return or tender the stocks at the earliest convenient moment after discovering the fraud. If they unduly delayed to return them and demand back the price they affirmed the validity of the contract: Pearsoll v. Chapin, 8 Wright 9 ; Negley v. Lindsay, 17 P. F. Smith 217. What is reasonable time or undue delay, when the facts are not disputed, is, as is well settled, a question of law to be determined by the court. Quam longum esse debet non definitur in jure sed pendet ex discretions justiciariorum: 1 Tho. Co. Litt. 644, (52 b.)

Here the delay was for four months, and no evidence was given to explain or excuse it. Under the circumstances we have no hesitation in saying that it was unreasonable. The inference is pregnant that if, in the meantime, oil had been found in large quantities, there would have been no rescission of the contract, or offer to return the stocks. The plaintiffs could not take the chance of the speculation, and at the same time repudiate the contract if it turned out to be a losing bargain. Besides, the instruction complained of was not predicated of the mere fact of the plaintiffs’ delay in offering to return the stocks, but of the delay coupled with the fact that the price of the stocks had fallen in the interval between the discovery of the alleged fraud and the date of the tender. The verdict of the jury establishes both of these facts, and we are clearly of the opinion that they are sufficient to bar the plaintiffs’ right to rescind the contract. There was then no error in the instructions of the court, and they were as favorable to the plaintiffs as they had any right to ask or expect.

There is nothing in the other assignments requiring special notice. The evidence complained of had more or less bearing upon the question in issue, and there was no error in its admission that calls for a reversal of the judgment.

Judgment affirmed.


author: Per Curiam.

text:
    Dillin versus Wright.
    1. A devise was, “ I leave my bouse in Q-. in charge of S. A. and E. W., for the benefit of my brother, to be used principal and interest if needed, and if any remains after his death, it. is to become the property of E. and S. Meld, that the brother had not an absolute power of disposition ; the land being unchanged at his death passed to E. and S. in fee.
    2. The discretion as to its disposition was in S. A. and E. W. as trustees; not in the brother.
    February 18th 1873.
    Before Read, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 341, to January Term 1873.
    This was an action of assumpsit, brought September 2d 1870, by Emma Wright and Samuel Wright, minors, by their guardian, Isaac M. Post, against Eli Dillin.
    Elizabeth A. Hamersley, by her will, dated August 6th 1864, amongst other things, devised as follows:—

      “ I leave the house at Germantown in charge of my uncle Samuel Albright and my aunt Elizabeth Wright, for the benefit of my brother Robert, to be used, principal and interest, if needed; and if any remains after his death, it is to become the property of my cousins Emma and Samuel Wright.”
    The testatrix died shortly afterwards. Her brother Robert sub-1 sequently died, the real estate remaining in the condition in which it was at her death.
    The defendant collected the rents of the real estate, which had accrued since the death of Robert, and paid the charges and taxes on the same, and held the balance for such persons as were entitled to it.
    It was agreed that if the plaintiffs were entitled under the will to the real estate, the verdict should be for them for $656.65.
    The court below instructed the jury to find for the plaintiff, reserving the question whether the devisee Robert took an estate in fee of for life only, with remainder over to the plaintiffs; and afterwards entered judgment for the plaintiffs upon the verdict on the point reserved, on the following opinion by Hare, P. J.:—

      “ It is well settled that a ‘ devise of an estate generally or indefinitely, with a power of disposition over it, carries a fee: ’ Church v. Disbrow, 2 P. F. Smith 219, 222. The result may be the same when the devise is for life, and the power implied from a gift over of the ‘ residue.’ The reason is that the right to dispose of or alienate implies absolute control and ownership; in other words, the existence of a fee. The intention of the testator under these circumstances is to limit the interest of the first taker, and that what he does not use or assign shall go over at his death. But he has another- purpose which is inconsistent with the first, and as both cannot stand, the effect will be given to that which favors the first object of his bounty. To say that a man may deal with property as he thinks fit during his' life, but that he shall not have power to leave what he does not use to those who are dear to him, is an incongruity which the law will not tolerate. A great motive for economy would be withdrawn, and the donee might be led to squander that which he was not permitted to bequeath.
    “ The material words in the devise before us are as follows: ‘ I leave the house in Germantown in charge of my uncle, Samuel Albright, and my aunt, Elizabeth Wright, for the benefit of my brother Robert, to be used, principal and interest, if needed; and if .any remains after his death, it is to become the property of my cousins, Emma and Samuel Wright.’ Did this clause confer an absolute power of disposition on the devisee, Robert Rowand? The whole was to be applied to his use if needed, and the surplus only £ to become the property ’ of the plaintiffs. So far the case is with the defendant. But the question remains — Who was to judge of the extent of Robert’s needs ? and whether they could be satisfied from the interest, or required an absolute appropriation of the principal. It would seem very clear that this discretion was vested in the trustees, and not in the beneficiary. Otherwise the creation of the trust served no good purpose, and the introduction of the names of Samuel Albright and Elizabeth Wright was a mere form. Such an inference would be contrary to the rule that in construing a will, effect shall be given to every clause. It is significant that Elizabeth Wright, the mother of the devisees in remainder, was chosen by the testatrix to administer the trust. A discretionary power in the trustees to dispose of the property by sale and apply the proceeds to Robert’s use £ if needed,’ is obviously not consistent with the existence of a limited estate in him. In this aspect the several parts of the clause become harmonious; the gift to Robert, the gift over, and the power of disposition. It should therefore be preferred to the opposite construction, which defeats tbe remainder, contrary to tbe express will of tbe testator. Judgment is entered for tbe plaintiffs on tbe point reserved.”
    Tbe defendant took a writ of error, and assigned for error tbe entering of judgment for tbe plaintiffs on tbe reserved point.

      JE. Hopper, for plaintiff in error.
    Robert, having a right to dispose of tbe property at pleasure, took a fee : 2 Washburn Real Property 752; 6 Cruise’s Dig. (Greenleaf) 367, note; 4 Kent’s Com. 297 ; Ide v. Ide, 5 Mass. R. 500; Hambright’s Appeal, 2 Grant 320; Green’s Appeal, 6 Wright 25; Presbyterian Church v. Disbrow, 2 P. F. Smith 219. Tbe trust was not an active one: Dodson v. Ball, 10 P. F. Smith 492; Yarnall’s Appeal, 20 Id. 335.

      A. Thompson, for defendants in error.
    Tbe implication of absolute ownership may be rebutted by tbe express gift of a less estate: Hess v. Hess, 5 Watts 191; Flintham’s Appeal, 11 S. & R. 16; Pennock’s Est., 8 Harris 268; Upwell v. Halsey, 1 P. Wms. 651; Jauretche v. Proctor, 12 Wright 466; Barnett v. Deturk, 7 Wright 92.
   Judgment was entered in the Supreme Court, February 24th 1873

Per Curiam.

Judgment affirmed on tbe opinion of Judge Hare.


text:
    Cannon versus Boyd.
    1. Where a continuous and apparent servitude is imposed by an owner on one part of his land for the benefit of another, a purchaser at private or judicial sale takes subject to the servitude.
    2. An owner of land, subject to a mortgage laid it out in lots, and built on two adjoining lots, on one was an alley which was used by the other; the land was sold in the distinct lots under the mortgage, the use of the alley being apparent. Held, that the first lot was sold subject to the use of the alley, although no reference to it was made in the sheriff’s deed.
    3. Whether the agent who purchased the dominant lot at the sheriff’s sale expected when he purchased to get the alley — was not evidence to affect his principal’s title.
    4. Overdeer v. Updegraff, 19 P. F. Smith 110; Seibert v. Levan, 8 Barr 383, recognised.
    February 19tb 1873.
    Before Reed, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Error to tbe District Court of Philadelphia: No. 49, to July-Term 1871.
    This was an action on tbe case brought October 28tb 1870, by John Boyd against Patrick Cannon, for closing an alley oyer which tbe plaintiff claimed he bad a right of passage.
    On tbe 17th of November 1845, Francis McCabe bought an unimproved lot on Cotton street, Philadelphia, and gave a mortgage for part of the purchase-money. He divided it into three lots, and shortly afterwards built a house on No. 2. In 1856, he built on No. 3, adjoining the house on No. 2, leaving an alley on it —over which his house extended — opening into Cotton street. Mc-Cabe died about 1860. The entire lot was sold by the sheriff at the same time under the mortgage in the three separate lots, described as No. 1, No. 2, and No. 3. No mention was made in any of the proceedings of the alley, or an opening from No. 2 to No. 3. Lot No. 3 was sold to Cannon, and the deed made to him September 16th 1867. No. 2 to the plaintiff, and the deed made November 23d 1867.
    The case was tried March 3d 1871, before Lynd, J.
    The plaintiff testified that he had lived in the house on No. 2 and at the sheriff’s sale, for. three years before; there was a gate leading from the back porch of his house to the alley; he had never been interrupted in the use of thé alley. He testified also that the defendant had closed the alley.
    Another witness testified that McCabe had put up a gate from No. 2 into the alley for the use of those in the house.
    Other witnesses testified that for seven or eight years before the sheriff’s sale, the alley had been used by both parties; that lot No. 2 had a passage over lot No. 3, before the house on No. 3 was built; there was a gate into the alloy from each lot at the sheriff’s sale; that the tenants of lot No. 2 uninterruptedly used the alley.
    The defendant’s witnesses testified that the alley had been put there by McCabe, specially for his own use; that plaintiff had used it without license; “ merely was not interfered with nor forbidden to use it.”
    A witness for defendant testified that he had bought No. 2 at sheriff’s sale for the plaintiff.
    The defendant then proposed to ask the witness:—
    “ Did you purchase that property expecting or believing that you got a title to that alley ?”
    The question was objected to by plaintiff, overruled by the court, and a bill of exceptions sealed.
    The defendant gave other evidence in answer to the plaintiff’s case.
    The defendant submitted two points which were declined by the court, viz:—
    1. “ The sheriff’s sale and deed to defendant under the mortgage, describing the land, vested the soil of the alleged alley in the defendant, clear of the easement claimed by plaintiff.
    2. “ If the jury believed that the alley was merely used by Mc-Cabe, the then owner, for his own accommodation, and not as an easement, nor as a right annexed to the plaintiffs lot, the verdict should be for defendant.”
    The court also charged, that “ the only question in this case is, what was the condition of these two properties at the time of the sheriffs sale; if the condition of the properties at the sheriff s sale was such as to indicate that the occupants of property now owned by plaintiff, used the alley in question, and had a right to do so, their verdict should be for plaintiff.”
    The verdict was for the plaintiff.
    The defendant removed the record to the Supreme Court and assigned for error:
    I, 2. Declining his points.
    3. The charge.
    4. Rejecting his offer of evidence.

      W. L. Sirst, for plaintiff in error.
    On 1st point, cited King v. McCully, 2 Wright 76. On 2d, Price on Limitation 189, 324, 326; Washburn on Real Estate 114, 116, 121; Reimer v. Stuber, 8 Harris 458.

      J. Dolman, for defendant in error.
    Each purchaser at sheriff’s sale took all the benefits and burdens which were continuous and apparent: Nicholas v. Chamberlaine, Cro. Jac. 121; McCarty v. Kitchenman, 11 Wright 243; U. S. v. Appleton, 3 Sumner 502; Seibert v. Levan, 8 Barr 383; Dunklee v. R. R. Co., 4 N. H. 489; Seymour v. Lewis, 13 N. J. 439; Lampman v. Milks, 21 N. H. 505; New Ipswich Factory v. Bachelder, 3 N. H. 190.
   The opinion of the court was delivered, May 17th 1873, by

Williams, J.

Where a continuous and apparent easement or servitude is imposed by the owner on one portion of his real estate for the benefit of another, the law is well settled that a purchaser at private or judicial sale, in the absence of an express reservation or agreement on the subject, takes the property subject to the easement or servitude: Seibert v. Levan, 8 Barr 383 ; Overdeer v. Updegraff, 19 P. F. Smith 110, and cases there cited. The sheriff sold and conveyed the lots to the parties in this case without reference to the existence of the alley on the lot purchased by the defendant; but the evidence shows that the alley was open and apparent at the time of the sale, and that there was a gate leading into it from the lot purchased by the plaintiff, clearly indicating that it was used in common by the tenants of both lots. It also appears from the evidence that the alley was laid out and opened by McCabe, the former owner of the lots, and that it was used in common by the occupants thereof for a period of more than ten years prior to the sheriff’s sale¡ The court below was, therefore, clearly right in declining to charge that the sheriffs sale and deed vested the soil of the alleged alley in the defendant, clear of the easement claimed by the plaintiff; and in charging that the only question in the case is, What was the condition of these two properties at the time of the sheriff’s sale ? If the condition of the properties at the sheriff’s sale was such as to indicate that the occupants of the property, now owned by the plaintiff, used the alley in question and had a right to do so, the verdict should be for the plaintiff.

There was no error in refusing leave to ask the plaintiff’s agent whether he purchased the property expecting or believing that he got a title to the alley. The expectation or belief of the agent could not affect the plaintiff’s title.

Judgment affirmed.


text:
    Zane versus Kennedy et al.

    1. Husband and wife conveyed land in trust, amongst other things empowering the trustee to sell such parts as the wife by writing might request, and pay the purchase-money to the wife. Held, that the trustee had power on request in writing of the wife to mortgage the land.
    2. At the request of the wife, the trustee sold the property to A., in order that he might mortgage it as collateral security for money to set up her son in business. Held to be a valid execution of the power in the trust-deed.
    3. The wife having the entire control of the money raised by the mortgage, might give it to her son.
    4. An absolute and unrestricted power to sell included a power to mortgage.
    5. The mortgage was given to secure the payment of notes of the son; their times of payment were extended by the holders. There being no evidence of a consideration for such extension, Held, that this did not discharge the wife if she were surety.
    6. An agreement without consideration to give time to a debtor is not binding on the creditor and would not prevent the surety from paying the debt and seeking reimbursement from the principal.
    7. The trust provided first for the payment of debts of the husband ; the land having been sold under the mortgage; in ejectment against the purchaser by the wife as cestui que trust to recover her equitable estate, she could not set up these debts; that could be done only by the husband’s creditors or the trustee for their use.
    8. Lancaster v. Dolan, 1 Rawle 231, affirmed.
    February 20th 1873.
    Before Read, C. J., Sharswood, Williams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. —, to January Term 1873.
    This was an action of ejectment, brought April 26th 1856, by John Zane and Maria Antoinette Zane against Sybella S. Kennedy, Herbert M. Kennedy and Amelia T. Kennedy, for a lot of land in Moyamensing township, Philadelphia, marked in the plan as “ Grarlick Hall,” containing 3 acres 136 perches.

      The land, with other tracts, having been the property of Mrs. Zane, had been conveyed by herself and husband, the other plaintiff, to William L. Hirst, Esq., in trust; it had been subsequently mortgaged, and sold by the sheriff under the mortgage to James M. Kennedy; he devised to the defendants, who were his widow and children.
    The question was — whether the mortgage was a valid exercise of the powers of the trustee under the deed of trust.
    John Zane having died, his death was suggested on the record.
    The ease was tried February 1st 1867, before Sharswood, P. J.
    The plaintiff gave in evidence deed dated February 28th 1832, between John Zane and Maria Antoinette (late Morris) his wife of the one part, and William L. Hirst of the other part, as follows:—
    “ Whereas, by the recent death of Mary Pancoast (late Morris), mother of the said Maria Antoinette Zane, they, the said John Zane and Maria Antoinette Zane, his wife, in her right, have inherited and become entitled to * * * certain real and personal estate situate in the city and county of Philadelphia which they desire and design to convey in manner following: Now this indenture witnesseth that they, the said John Zane and Maria Antoinette his wife, as well for and in consideration of the premises as of the sum of five dollars to them in hand well and truly paid by the said William L. Hirst, * * * have granted * * * unto the said William L. Hirst, * * * all and every the right * * * of them the said John Zane and Maria Antoinette, his wife, or either and both of them, of, in and to all and singular the estate real and personal * * * of the said Mary Pancoast, and which descended to and became vested in the said John Zane and Maria Antoinette, his wife, or either or both of them, upon the death of her the said Mary Pancoast, * * * to have and to hold the premises * * * unto the said William L. Hirst, his heirs and assigns, to and for his and their only proper use, benefit and be-hoof for ever. Upon this special trust and confidence, nevertheless, that he, the said William L. Hirst, * * * will, with due diligence and prudence, sell either at public or private sale, or retain and receive the rents, issues, profits, dividends and interest arising out of so much of the estate hereby granted as hath by the laws of this Commonwealth passed to, or vested' in the said John Zane upon the death of the said Mary Pancoast, in his own right and not in right of said Maria Antoinette, his wife, and out of the fund created by the sale of the said interest of John Zane in the premises aforesaid, or by receiving the rents, * * * either of which modes the said trustee may choose or elect according to his best discretion, then upon the further special trust and confidence that he the said William L. Hirst * * * will pay to (several persons named, creditors of John Zane, sums specified); and after they shall all and each be paid, * * * then the surplus, if any, is to be paid to tbe said John Zane; '* * * and upon this further special trust and confidence that the said William L. Hirst * * * will faithfully apply the entire balance, remainder and residue of the said estate * * * and the full, entire and complete right, title and interest, property, claim and demand whatsoever of her the said Maria Antoinette, of, in and to the said estate * * * to and for the following uses, trusts, intents and purposes, and none other, that is to say : — that the said William L. Hirst * * * will collect all the rents, * * * then in case the said Maria Antoinette should survive the said John Zane, to pay over the same faithfully to her the said Maria Antoinette, regularly and as the same shall be received. And from and after the death of them the said John Zane and Maria Antoinette Zane, * * * that he the said William L. Hirst * * * shall hold all the said estate which shall then be unsold, by the said trustee according to the hereinafter recited authority to sell, to and for such uses, trusts, intents and purposes as she the said Maria Antoinette shall by writing, or last will, * * * appoint, * * * and on default of such appointment, * * * that he the said William L. Hirst * * * .will hold the said estate * * * to and for the use of all the children of them the said John Zane and Maria Antoinette Zane. * * * And upon the further special trust and confidence, that the said William L. Hirst * * * shall be and he and they are hereby and by force and virtue of these presents authorized and fully empowered to sell and convey * * * all or such parts of the said hereby, granted estate as the said Maria Antoinette shall by writing, under her hand, from time to time request and require, and for and as respects the purchase-money thereof, upon the special trust and confidence that he, the said William L. Hirst * * * will pay the same to the said Maria Antoinette, and her receipt for the same shall he his full voucher and protection for so doing, * * * but if she, the said Maria Antoinette, should not request or require the moneys aforesaid, then * * * to invest the same in productive stocks or safe mortgages or real estate, at the discretion of the said trustee, and all such stocks * * * shall become part of the estate which shall pass according to the herein-before recited trusts and provisions, * * * and upon the special trust that he, the said William L. Hirst * * * will when expedient make partition or compel to make partition at law among the several heirs of the said Mary Pancoast, * * * and shall have full power to collect and take any part of the said estate when thereto requested in writing by the said Maria Antoinette during her life, or after her death at his own discretion, in any proceeding in partition * * * and hold and consider the same as part of the estate hereby granted, and subject to all the rules, trusts, * * * hereinbefore set forth with reference thereto, and to the descending of the same, and if in any such proceeding the said estate should he sold, then * * * the said William L. Hirst * * * will-pay over the proceeds of such sale or any part thereof to the said Maria Antoinette.” * * *
    The plaintiff gave evidence also, that by virtue of proceedings in partition the premises were vested in Mr. Hirst under the trusts of the above-mentioned deed; and that on his own application Mr. Hirst was discharged from his trust in November 1842.
    The plaintiff having rested, the defendants offered in evidence deed dated January 30th 1841; Maria A. Zane, wife of John Zane, of the first part; William L. Hirst, trustee, of the second part, and Anthony M. Zane of the third part. This deed recited the deed of February 28th, 1832 and the proceedings in partition, &c., and proceeded:—
    “ Now, this indenture witnesseth that the said Maria A. Zane, in consideration of the sum of $1, lawful money to her paid by the said Anthony M. Zane, at * * * and the said William L. Hirst, as aforesaid in consideration of $12,000, to her paid by the said Anthony M. Zane, at * * * they the said Maria A. Zane and William L. Hirst, trustee, have granted * * * (he, the said trustee, acting by the request of the said Maria A. Zane, testified by her becoming a party hereto,) * * * unto the said Anthony M. Zane, his heirs and assigns, all the estate, * * * which was of her the said Maria A. Zane, at the time of the execution of the above recited indenture, of, in and to all that lot or piece of land in Moyamensing township, in the county of Philadelphia, marked in the plan of ‘ Garlick Hall,’ annexed to the aforesaid partition, * * * and all the estate of the said Maria A. Zane either at law or in equity, in and of the same, to have and to hold the said lot, &c., unto the said Anthony M. Zane, his heirs and assigns.” * *
    This deed is signed:
    “ Maria A. Zane, [seal.]
    W. L. Hirst. [seal.]”
    Appended to it are the following receipt and acknowledgment:—
    “ Received the day of the date of the above-written indenture of the above-named Anthony M. Zane, the sum of $12,000, being the full consideration-money above mentioned.
    Maria A. Zane.”
    And the following acknowledgment:—
    “Before me, the subscriber, an alderman, &c., personally appeared the above-named Maria A. Zane and William L. Hirst, and acknowledged the above-written indenture to be their and each of their act and deed,” &c.
    The defendants objected to the admission of the deed:—
    1. That it was not a valid execution of the power in the deed of February 28th 1832.
    2. That it was without consideration and void, no purchase-money being shown to have been paid to the trustee or Mrs. Zane.
    The court admitted the deed and sealed a bill of exceptions.
    The defendants then, under similar objection and exception, gave the following evidence :—
    Bond, Anthony M. Zane to Isaac M. Zane, dated February 1st 1841, conditioned for the payment of $4000 in one year with interest; mortgage, same to same (in the ordinary form), of the land conveyed by deed of January 30th 1841, to secure the payment of the above-mentioned bond. Deed, dated February 3d 1841, between “ Isaac M. Zane, of the firm of Zane, Taylor & Co., of the one part, and James M. Kennedy, Alexander H. Julian, John S. Boyd and Elias W. Davidson, merchants, trading under the firm of Kennedy, Julian & Co., and James R. Dickson, merchant, of the other partreciting that Zane, Taylor & Co. had given their note dated February 1st 1841, to Kennedy, Julian & Co. for $2766.23, and to James R. Dickson their note of same date for $1233.77; and assigning the bond and mortgage to Kennedy, Julian & Co. and James R. Dickson, as and for a collateral security for the payment of the aforesaid two several debts or sums of money amounting together to the sum of $4000, in discharge of the said two several promissory notes, * * * provided always nevertheless, and it is hereby mutually covenanted and agreed by and between the said parties hereto that, if the said Isaac M. Zane * * * shall well and truly pay unto the said James M. Kennedy, Alexander H. Julian, John S. Boyd, Elias W. Davidson and James R. Dickson, * * * the aforesaid two several debts or sums of money amounting together to the sum of $4000 such as abovesaid (according to their respective interest therein) that, then and immediately thereupon the said James M. Kennedy, Alexander H. Julian, John S. Boyd, Elias W. Davidson and James R. Dickson * * * will reconvey and reassign the whole of the hereby granted and assigned premises * * * unto him the said Isaac M. Zane, his heirs, executors, administrators and assigns, as of his estate, title and interest in the same immediately prior the execution hereof.”
    Deed, dated March 30th 1841, between Anthony M. Zane of the one part, and William L. Hirst, “ trustee of Maria Antoinette Zane, wife of John Zane, of the other part,” by which Anthony Zane “in consideration of the sum of $12,000 unto him paid by the said William L. Hirst trustee as aforesaid, out of the proper moneys of the said Maria Antoinette * * * the receipt whereof is hereby acknowledged, hath granted * * * unto the said William L. Hirst, trustee as aforesaid, his heirs and assigns, all that lot or piece of land in Moyamensing township, in the county of Philadelphia, marked in a certain plan of ‘ Garlick Hall.’ * * * To have and to hold the said lot * * * unto the said William L. Hirst, his heirs and assigns, * * * in trust, nevertheless, to be held by the said William L. Hirst, his heirs and assigns, under and subject (and in trust for the said Maria Antoinette Zane) to all the uses and privileges and all the restrictions, reservations, trusts, limitations, conditions and appointments which are contained in and by a certain deed of trust from John Zane and the said Maria Antoinette Zane to the said William L. Hirst, dated the twenty-eighth day of February, Anno Domini one thousand eight hundred and thirty-two.” * * *
    Record of scire facias on the above-mentioned mortgage: — Isaac M. Zane to the use of James M. Kennedy et al. against Anthony M. Zane, judgment September 12th 1843; levari facias February 28th 1844; sale March 18th 1844, by sheriff to James M. Kennedy for $5. March 23d 1844, “rule on defendant to pay amount of interest due on mortgage or to show cause why the sheriff should not execute a deed for the property described in the levari facias to James M. Kennedy;” rule made absolute, April 6th 1844; deed, Morton MeMichael, sheriff, to James M. Kennedy for the premises, acknowledged April 27th 1844.
    Defendants gave evidence that on the 19th of November 1842, Thomas D. Smith was appointed trustee under the deed of February 28th 1832, in place of Mr. Hirst. They then offered in evidence deed dated May 7th, 1844, between Maria A. Zane, wife of John Zane, of the first part, Thomas D. Smith, trustee, of the second part, and James A. Kennedy of the third part. This deed recited the deed of trust to William L. Hirst; the proceedings in partition allotting the premises in dispute to William L. Hirst under the trusts in that deed; the conveyance of the same premises to Anthony M. Zane; and his reconveyance to Mr. Hirst of the same premises, and under the trusts, &c., of the original deed of trust to him; the appointment of Mr. Smith on the 19th of November 1842, as trustee in the place of Mr. Hirst. The deed offered in evidence is then as follows: “Now this indenture witnesseth that the said Maria A. Zane, in consideration of the sum of one dollar, lawful money, to her paid by the said James M. Kennedy, the receipt whereof is hereby acknowledged, and the said Thomas D. Smith, trustee of Maria A. Zane, aforesaid, in consideration of the sum of one dollar paid him by the said James M. Kennedy, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, released and confirmed, and by these presents the said trustee, acting by the request of the said Maria A. Zane, testified by her becoming a party hereto, do grant * * * and confirm unto the said James M. Kennedy, his heirs and assigns, all that lot or piece of land in Moyamensing township, in the county of Philadelphia, marked in the plan of 1 Garlick Hall,’ * * * and all the estate, right, title, property, claim and demand whatsoever, of her the said Maria A. Zane, and of him the said Thomas D. Smith, trustee as aforesaid, * * * to have and to hold the said lot * * * unto the said James M. Kennedy, his heirs and assigns for ever. * * *
    This deed was executed:
    “Thomas D. Smith, . [seal.]
    “ Trustee for Maria A. Zane.
    “ Maria A. Zane.”
    After which were the following receipt and acknowledgment:—
    “ Received the day of the date of the written indenture, of the above-named James M. Kennedy, the sum of two dollars, being the full consideration-money aboye mentioned.
    “ Thomas D. Smith,
    “ Trustee for Maria A. Zane.
    “Maria A. Zane.”
    “Before me, the subscriber, an alderman, &c., personally appeared the above-named Maria A. Zane and Thomas D. Smith, trustee, and severally acknowledged the above-written indenture to be their and each of their act and deed,” &c.
    . The admission of this deed was objected to for the reasons given on the former objections.
    The deed was admitted and a bill of exceptions sealed.
    The plaintiffs called Anthony M. Zane, who testified: That Julian, one of the firm of Kennedy, Julian & Co., told witness that they had done all they could for Isaac, that they had extended the notes for which the assignment of the mortgage was made as collateral, several times. On cross-examination, witness said nothing was said about any consideration having been given by Isaac, for the extension of the notes; witness did not know that there- was any consideration, or that the old notes were given up.
    The plaintiffs then offered to prove by John Zane and other witnesses, that the witness, John Zane, was present at Congress Hall, early in 1841, when'Isaac Zane was negotiating with James M. Kennedy, one of the firm of Kennedy, Julian & Co., for the purchase of goods for Zane, Taylor & Co.; that Isaac Zane proposed to Kennedy to give, through Maria Antoinette Zane, a mortgage on Grarlick Hall (the premises in dispute), as security for the goods ; that James M. Kennedy said that he would submit the matter to his conveyancer, and if the mortgage was good, would make the arrangement; that subsequently he (the witness) accompanied James M. Kennedy and Isaac Zane to the office of Samuel L. Clement, a conveyancer, who informed them that Mrs. Zane could not create a mortgage, and suggested that the premises should be conveyed to a third person, who should mortgage them, and that the mortgage should be assigned to Kennedy and others; that Sarah Zane was named as the third person, but on suggestion of Clement that it should be a male Anthony M. Zane, another child of Mrs. Zane, was selected; that it was then arranged that papers should be prepared and executed at different times conveying the premises to Anthony M. Zane; that Anthony M. Zane was to execute a mortgage to Isaac Zane, and to reconvey the premises encumbered, to the trustee; and that Isaac Zane was to assign said mortgage as collateral security to Kennedy and others for the goods; that no money was to be, or was in fact paid to Mrs. Zane or to her trustee, or to any other person; that Anthony M. Zane was not indebted to Isaac Zane to the amount of the mortgage or in any other amount; that Isaac Zane obtained a mortgage for $4000, whilst Maria Antoinette Zane was willing to be security for $2000 only; that the deeds and papers given in evidence by the defendants are the papers which were referred to by Mr. Clement, Mr. Kennedy and Isaac Zane; and further, that the consideration mentioned in the deed from Hirst, trustee, and Mrs. Zane, to Anthony M. Zane, and also the consideration in deed from Smith, trustee, and Mrs. Zane to James M. Kennedy are grossly inadequate; and further, that at the time of the execution of the deed — Hirst, trustee, and Mrs. Zane to Anthony M. Zane — the said trustee declined to sign the receipt for the alleged purchase-money, and caused the body of the deed to be altered, so as to make it appear that the alleged purchase-money had been paid to Mrs. Zane, and not to him as trustee.
    The offer was objected to and rejected, and a bill of exceptions sealed.
    The plaintiff requested the court to charge the jury:—
    1. That the deed of January 30th 1841, being a deed of bargain and sale, and no consideration having been paid, neither Anthony M. Zane nor any person claiming under him having notice, acquired any title to the premises mentioned in the writ.
    2. That the deed of January 30th 1841 is an invalid execution of the power contained in deed of trust John Zane and wife to William L. Hirst, dated February 28th 1832, and transferred no title to Anthony M. Zane nor to any person claiming under him.
    3. That if any effect can be given to the deed of January 30th 1841, then it, and the mortgage from Anthony M. Zane to Isaac Zane, the assignment of said mortgage by Isaac Zane to James M. Kennedy and others, and the reconveyance of the premises by Anthony M. Zane to William L. Hirst, in trust, are to be construed as one paper, to wit, a mortgage of the premises by the trustee, William L. Hirst, to James M. Kennedy and others.
    4. That the mortgagor not having been made a party to the proceedings in the Supreme Court, nor warned by the sci. fa., the judgment thereon and the sale thereunder confer no title on James M. Kennedy.
    5. That the deed of January 30th 1841, the mortgage from Anthony M. Zane to Isaac Zane, and the transfer of said mortgage to James M. Kennedy and others, are fraudulent and void, conferred no title on those claiming thereunder, and were not capable of confirmation.
    6. That the deed dated May 7th 1844, from Maria Antoinette Zane and Thomas D. Smith to James M. Kennedy, is an invalid execution of the power contained in the deed of trust, and being without consideration is void.
    7. That if Anthony M. Zane was not indebted to Isaac Zane at the date of the mortgage, February 1st 1841, or no money or other value was given for said mortgage, and James M. Kennedy and those claiming under him had notice thereof, then no title passed to said James M. Kennedy or others claiming under him by virtue of the proceedings under the mortgage.
    The court refused the points and instructed the jury to find for the defendants, and the jury so found.
    Judgment was entered on the verdict May 1st 1867. The plaintiffs took out a writ of error May 1st 1867.
    They assigned for error:—
    1, 2, 3. The admission of defendants’ offers of evidence.
    4. Rejecting plaintiffs’ offer of evidence.
    5. Declining the plaintiffs’ points.
    6. The instructions to find for the defendants.
    , 6r. W. Biddle and W. L. Hirst, for plaintiffs in error.
    A confirmation must be with a full knowledge of all the circumstances and deliberate examination by the parties interested: Campbell v. McLain, 1 P. F. Smith 203; Anderson’s Appeal, 12 Casey 496 ; Owings v. Hull, 9 Peters 629.
    The rule that a power to sell involves a power to mortgage does not apply to such a mortgage as in this case, where it was intended as collateral security, which was not for the purposes declared in the trust-deed: Pullen v. Rianhard, 1 Wharton 522. A married woman has no power under, a deed except that clearly given to her by it: Thomas v. Fowell, 2 Wharton 16 ; Hoover v. Samaritan Soc., 4 Id. 452; Wallace v. Costen, 9 Watts 138; Dodson v. Ball, 10 P. F. Smith 496 ; Wright v. Brown, 8 Wright 224; Fisher v. Taylor, 2 Rawle 33; Holdship v. Patterson, 7 Watts 547; Ashhurst v. Given, 5 W. & S. 323; Brown v. Williamson, 12 Casey 338; Barnet’s Appeal, 10 Wright 392; Rife v. Geyer, 9 P. F. Smith 393; Mansell v. Mansell, 2 P. Wms. 681; Cochran v. O’Hern, 4 W. & S. 100; Lancaster v. Dolan, 1 Rawle 247; Pennsylvania Company v. Austin, 6 Wright 263.
    Equity will always defeat those who deal with trust property, or acquire it, with knowledge that it is diverted from the legitimate purposes of the trust: Story, §§ 1257,1258; Pray’s Appeal, 10 Casey 113.

      O. (ribbons and P. MeOall, for defendants in error.
    The deed itself imports consideration. If a consideration of money be expressed in a deed of bargain and sale, no averment lies to the contrary: Wilt v. Franklin, 1 Binney 502; Allison v. Kurtz, 2 Watts 185; McMullin v. Glass, 3 Casey 151. Mrs. Zane had an absolute dominion over the property by virtue of her right to control the purchase-money, and therefore her deed of confirmation was valid: Coryell v. Dunton, 7 Barr 530.
    The intention of the trust-deed was to withdraw the estate from the dominion of the husband, and at the same time, to remove by the instrumentality of a trust the disability annexed to coverture by the common law, and to give Mrs. Z. the power of a feme sole. The grantors had a right to do this: Thomas v. Folwell, 2 Wh. 16 ; Towers v. Hagner, 3 Id. 48; Hoover v. Samaritan Soc. 4 Id. 445.
    A power to sell includes a power to mortgage, a mortgage being a conditional sale: Lancaster v. Dolan, 1 Rawle 248; Gordon v. Preston, 1 Watts 385; Cochrane v. O’Hern, 4 W. & S. 100; Pennsylvania Life Insurance Co. v. Austin, 6 Wright 263; Ball v. Harris, 4 Mylne & Cr. 267; Hill on Trustees 475.
   The opinion of the court was delivered, March 6th 1873, by

Sharswood, J.

The only question which appears to have been raised on the trial of this case in the court below was, whether the power of sale which by the deed of trust of February 28th 1832, John Zane and wife to William L. Hirst, was vested in the trustee, was duly exercised by the conveyance of January 30th 1841, by William L. Hirst and Maria Antoinette Zane to Anthony M. Zane. It may be conceded, that if the evidence offered — the rejection of which forms the fourth error assigned — had been admitted, it would have proved that the deed was without consideration as between the parties, and was executed solely in order that the grant#, Anthony M. Zane, might mortgage the property to Isaac M. Zane, as was done accordingly, February 1st 1841; whieh mortgage was to be, and was assigned to Kennedy and others, as collateral security for certain notes of Isaac M. Zane, given to the assignee for goods purchased by him, the object of the whole transaction being to set Isaac M. Zane up in business. Isaac M. Zane was a son of Maria Antoinette Zane, who was the cestui que trust in the deed of trust of February 28th 1832, and who was a party to the deed to Anthony M. Zane. The power contained in the deed of 1832, is in these words: “ And upon the further special trust and confidence that the said William L. Hirst, his heirs, executors, successors and assigns, shall be, and he and they are hereby, and by force and virtue of these presents, authoi’ized and fully empowered to sell and convey, by all lawful assurances and conveyances, all or such parts of the said hereby granted estate, as the said Maria Antoinette shall, by writing under her hand, from time to time request and require, and for and as respects the purchase-money thereof, upon the special trust and confidence, that he the said William L. Hirst, his heirs, executors, successors and assigns, shall and will pay the same to the said Maria Antoinette, and her receipt for the same shall be his full voucher and protection for so doing, notwithstanding her present or any future coverture.” The question then is, whether the trustee, at the request, and with the consent in writing, of the cestui que trust, had power to mortgage the premises. It is perfectly clear that if he had, Mrs. Zane was entire mistress of the money raised by the mortgage, and could give it to her son, Isaac M. Zane, if she so pleased. In a case in which a married woman had power to mortgage for her separate use and disposal, it was held by this court that she could execute the power for the benefit, of her husband: Hoover v. The Samaritan Beneficial Society, 3 Wharton 445. The whole case, then, is resolved into the question whether in this state an absolute and unrestricted power to sell includes a power to mortgage. We cannot regard this as an open question. It was expressly decided in Lancaster v. Dolan, 1 Rawle 231, that a power to sell does include a power- to mortgage, which is a conditional sale. It was not a mere obiter dictum, but the very point upon which the judgment hinged as to the remainder of the estate, over which there was a general power of appointment. It has since been recognised as the settled law in several cases: Presbyterian Corporation, v. Wallace, 3 Rawle 109; Gordon v. Preston, 1 Watts 386 ; Duval’s Appeal, 2 Wright 118 ; Pennsylvania Life Insurance Company v. Austin, 6 Id. 263. It is of no consequence whether the case of Mills v. Banks, 3 P. Williams 9, cited in support of the ruling in Lancaster v. Dolan, has or has not been subsequently disapproved of in England. Wo are bound to adhere to a determination of this court settling a rule of property, which has been so often recognised and affirmed. There would be no security for titles, nor could counsel advise with confidence if we were ready to listen to suggestions for the reconsideration of points solemnly determined by our predecessors whenever the courts of some other state or country have adopted a different rule.

There are two other objections to the judgment which were not made below, nor are they contained in the printed paper-book of the plaintiff in error; but we will, nevertheless, briefly dispose of them. The first is, that as there was evidence that the promissory notes of Isaac M. Zane, to secure which the mortgage was intended, had been extended without the consent of Mrs. Zane, who was known to all parties to he the real mortgagor, and should, therefore, to the extent of the mortgaged premises, be viewed as a surety, the mortgage was discharged by such extension. There was no evidence to submit to the jury, upon which such a defence could be based. A witness for the plaintiff, indeed, testified that in a general conversation with Mr. Julian, one of the assignees of the mortgage, he said, “ that they had done all they could for Isaac; that they had extended the notes for which the assignment of the mortgage was made as collateral, several timesbut on cross-examination he added: “ Nothing was said about any consideration having been given by Isaac for the extension of the notes; does not know that there was any consideration, or that the old notes were given up.” A mere agreement to extend the time without consideration, and without a surrender of the old notes, and the taking of new ones, would not be binding on the creditor, and would not prevent the surety from paying the debt and immediately seeking reimbursement from his principal, which is the reason of the rule that when time is given by a binding agreement, the surety is discharged: The United States v. Simpson, 3 P. R. 437; Clippinger v. Creps, 2 Watts 45; Rhoads v. Frederick, 8 Watts 448; Miller v. Stem, 2 Barr 286; 2 Jones 383; Brubaker v. Okeson, 12 Casey 519. There is nothing, therefore, in this objection.

The other ground upon which a reversal of the judgment is asked, is, that the execution of the power was subject to the prior charge of the debts of John Zane, specially secured by the deed of trust. But there are several conclusive answers to this. These debts were charged upon and made payable only out of John Zane’s interest in the property, which was for his life, probably his estate by the curtesy, and that interest had expired at the time of the trial. Moreover, more than twenty years had elapsed since the execution of the deed of trust, and the presumption was that the debts were paid. Besides all this, the claims of these creditors could only be set up by themselves, or the trustees suing for their use. The plaintiff below was not the holder of the legal title, nor a trustee for them, but a cestui que trust, under the deed of trust, prosecuting this ejectment to recover the equitable estate, if it had not been legally divested by the mortgage, and the proceedings upon it, by which, however, both the legal and equitable *• title were vested in James M. Kennedy, the purchaser at sheriff’s sale, a title which the plaintiff had herself solemnly confirmed, by joining the new trustee, Thomas D. Smith, in the deed dated May 7th 1844. Judgment affirmed.


text:
    Collins versus The Society for Relief of Distressed and Decayed Pilots, &c.
    1. The Act of March 24th 1851, provides that a vessel licensed to coast not taking a pilot shall pay half pilotage and one not licensed full pilotage:— “ and all half pilotage, forfeitures and penalties in nature thereof, accruing by virtue of this act * * * shall be recovered in the name and for the use of the society,” for relief of pilots, &c. Held, that a forfeiture oí full pilotage was for the use of the society.
    2. The appropriation of the penalty is not part of the penal provision and is to be construed reasonably to ascertain the intent of the legislature.
    3. The penalty not being a tax, its appropriation to a private corporation is not unconstitutional.
    4. Imposing full pilotage on vessels in foreign commerce and half pilotage on coasting vessels is not in conflict with sect. 10 of art. 1 of United States Constitution.
    5. Association v. Wood, 3 Wright 73, distinguished; Cooley v. Wardens, 12 Howard 299, followed.
    February 21st 1873.
    Before Read, C. J., Sharswood, Wil- • liams and Mercur, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 78, to July Term 1871.
    This was an action of debt, commenced November 30th 1870, by “ The Society for the relief of distressed and decayed Pilots, their widows and children,” against Walter Collins.
    It was brought under the 5th and 6th sections of the Act of March 24th 1851, Pamph. L. 229, 2 Br. Purd. 1316, 1317, pi. 28, 29. The sections are as follqws:—
    “ Sect. 5. That every vessel arriving from or bound to any foreign port or place, and every other vessel of the burthen of one hundred tons or upwards, sailing from or bound to any port not within the river Delaware (except licensed coasting-vessels sailing from this port), shall be obliged to take a pilot; * * * And if the master of any such vessel, being licensed as a coasting-vessel, and of the burthen of one hundred tons or more, shall refuse or neglect to take a pilot, the-master, owner or consignee of such vessel shall forfeit and pay the sum equal to half pilotage of such vessel; and if such vessel be not licensed as aforesaid, then and in such case the master, owner or consignee thereof shall forfeit and pay the full pilotage thereof: Provided always, That whenever it shall appear to the wardens that in the case of an inward-bound vessel, should a pilot not offer before such vessel reached the Brandywine light-house, bearing east, * * * the penalty aforesaid for not having a pilot shall not be incurred.

      “ Sect. 6. That all sums due for pilotage, half pilotage, and all other claims and penalties, in the nature or in lieu thereof, shall, as they accrue, become and remain a lien upon the vessel chargeable ¡therewith, her tackle, apparel and furniture, until they are paid; and for the recovery thereof, in addition to the remedies now provided (and which shall remain as heretofore), such process and proceedings shall issue and be had in the Court of Common Pleas of Philadelphia county, or in any court possessing admiralty jurisdiction, as are usually had in courts of admiralty for the recovery of seamen’s wages; and all half pilotage, forfeitures, and penalties in the nature thereof, accruing by virtue of this act, and all other debts, claims and demands, to which the society for the relief of distressed and decayed pilots, their widows and children, are legally or equitably entitled to under any law whatever, shall be recovered in the name and for the use of the said society, to whom, or to whose agent duly constituted, the same shall be paid.”
    The declaration was :—
    That the defendant was the master of a certain brig or vessel 'then named the “ Henry Virden,” not then licensed as a coasting-vessel, and being of more than one hundred tons burthen; and the said brig, while the defendant was the master thereof, as aforesaid, arrived at the port of Philadelpia, sailing from a port not within the river Delaware, the said brig thus drawing eight feet of water, and the plaintiffs aver that although a duly qualified and licensed pilot offered before the said vessel reached the Brandywine lighthouse, bearing east, yet the said defendant, as master aforesaid, neglected to take a pilot for the said brig, contrary to the Act of the G-eneral Assembly in such case made and provided; whereby, and by force of the said statute, an action hath accrued to the plaintiffs to demand and have of and from the said defendant, as master aforesaid, the sum of $29.92, being the full pilotage of the said brig.
    The defendant -pleaded “nil debet,” and also a special plea, viz.:—
    That after the said duly qualified and licensed pilot offered before the said defendant’s vessel reached the Brandywine lighthouse, bearing east, and the defendant neglected to take a pilot for the said vessel as in said declaration mentioned, and before the commencement of this suit, to wit, on the 4th day of August, A. D. 1870, the said defendant paid the said full pilotage of $29.92 to. Henry F. Virden, a duly qualified and licensed pilot.
    The plaintiffs demurred to the special plea: the court sustained the demurrer and entered judgment for the plaintiffs.
    The defendant removed the record to the Supreme Court and there assigned for error the entering of judgment for the plaintiffs.

      H. JET. Weil (with whom was' J. W. Ooulston), for plaintiffs in error.
    It is only where the penalty is of half pilotage that it is for the benefit of the plaintiffs. This being a statute regulating trade, and penal, must be construed strictly: Dwarris on Stat. 736; Mayor v. Davis, 6 W. & S. 276; Aechternacht v. Watmough, 8 Id. 165; and cannot be extended by construction: Fletcher v. Sondes, 3 Bingham 580; it is in derogation of common right: McMullin v. McCreary, 4 P. F. Smith 230; Esterly’s Appeal, Id. 195; Smith v. Spooner, 3 Pick. 229; Hubbard v. Johnstone, 3 Taunton 177; Sewall v. Jones, 9 Pick. 412. The act is against the Constitution of Pennsylvania, imposing a duty on an individual for the benefit of a private corporation : Philadelphia Association v. Wood, 3 Wright 73.
    ' It is in conflict with the Constitution of the United States, Art. I., sect. 10, which prohibits states from laying imposts or duties- on imports or exports: Brown v. Maryland, 12 Wheaton 419; Almy v. California, 24 Howard 169.

      A. D. Campbell, for defendants in error.
    In construing a statute, its intent is to be regarded : Dwarris on Statutes 246, 247.
    Compulsory pilotage laws are necessary in all commercial nations: New York v. Miln, 11 Peters 102; Cooley v. Board of Wardens, 12 Howard 299, and cases there cited in argument for defendants in error. The law does not conflict with the Constitution of the United States: Cooley v. Board of Wardens, supra. Ex parte McNiel, 13 Wallace 236; Gibbons v. Ogden, 9 Wheaton 1; Passenger Cases, 7 Howard 283; License Cases, 5 Id. 504 ; Flanigen v. Insurance Co., 7 Barr 306; Craig v. Kline, 15 P. F. Smith 399; Crandall v. Nevada, 6 Wallace 35; The China, 7 Id. 53.
   The opinion of the court was delivered, March 6th 1873, by

Sharswood, J.

Three contentions have been made in this case, which it will be necessary to consider, but they can be disposed ,of briefly.

The first is that the plaintiffs below were not entitled, upon the true construction of the sixth section of the Act of March 24th 1851, Pamph. L. 229, to recover the penalty of full pilotage demanded in their declaration. The established canon of interpre-. tation, that penal statutes must receive a strict construction, has .been invoked in support of the argument. It is not pretended, however, that the penalty was not incurred, applying to the act the most rigid rule. “ If such vessel be not licensed as aforesaid, then and in such case the master, owner or consignee thereof shall forfeit and pay the full pilotage thereof.” The subsequent clause appropriating the amount of the penalty to the pilot society is no part of the penal provision, and is to be construed fairly and reasonably to ascertain the intention of the lawmakers just like any other statute. It mattered not to the offender — formed no part of what it was necessary for him to read and understand, in order to avoid the infraction of the law — to whom the legislature might choose to give it. We have no doubt whatever, that all the forfeiture accruing by virtue of the act, including the full pilotage in question, were intended to be granted to the plaintiffs below.

The second position of the plaintiffs in error is that this grant is contrary to the Constitution of this Commonwealth, and for this he relies upon the case of the Philadelphia Association v. Wood, 3 Wright 73. But the principle of that decision is entirely inapplicable here. It was there held that a tax upon a class of persons, such as two per cent, of their gross receipts, upon all agencies of foreign insurance companies in the city of Philadelphia, could not be appropriated by law before it reached the treasury of the state, to a corporation or an individual. But this penalty is in no sense a tax, and has no similitude to one. To say that the legislature could not appropriate it as they pleased, to the person grieved, the pilot whose services were refused, to an informer or to a charity, would be to contradict the uniform legislation of the state. The statute book is filled with such grants of penalties — one great object of it undoubtedly being to secure better the enforcement of the law, by making it the interest of private persons or corporations to prosecute offenders.

The third contention is, that the act inasmuch as it imposes full pilotage upon registered vessels which are mostly engaged in foreign commerce, and only half pilotage upon licensed or coasting vessels, is an infringement of sect. 10, par. 2 of art. 1 of the Constitution of the United States, which declares that “ no state shall, without the consent of Congress, lay any imposts, or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.”

There might be devised, no' doubt, a system of pilotage fees and penalties, which would be obviously intended to evade this inhibition, and would, therefore, be invalid, but that can no more be said of the Act of 1851 than it could of the Act of March 29th 1803, Pamph. L. 560. It is decided by the Supreme Court of the United States in Cooley v. The Board of Wardens, 12 How. 299, in affirming the constitutionality of the Act of 1803, that the states have power to pass pilotage laws, to license pilots to regulate their compensation, and to enforce their laws by appropriate penalties. They may discriminate between the different kinds of vessels, according to their size and character, requiring heavier fees and putting severer penalties upon some than others. If the fees are not an impost or duty, certainly the penalty is not. It is a substitute for the fees which ought to have been paid. In the case of small vessels there is less at risk, and they can be more easily navigated by an ordinary seaman. But it matters not what the reason for the discrimination was, it was in the discretion of the legislature. “The purpose of the law,” said Mr. Justice Curtis in delivering the opinion of the court in the case cited, “ being to cause master's of such vessels as generally need a pilot, to employ one, and to secure to the pilot a fair remuneration for cruising in search of vessels or waiting for employment in port, there is an obvious propriety in having reference to the number, size and nature of employment of vessels frequenting the port; and it will be found by an examination of the different systems of these regulations which have from time to time been made in this and other countries, that the legislative discretion has been constantly exercised in making discriminations, founded on differences both in the character of the trade and the tonnage of vessels engaged therein.”

Judgment affirmed.