author: Chief Justice Agnew

text:
    Kennedy et ux. versus Lubold. Same versus Wagoner.
    1. Declarations of a deceased surveyor are strong evidence on a question of boundary, and ought to prevail, unless clearly rebutted by showing either a mistake of the witness in relating the facts or error in the surveyor in making the declaration ; and it was error to charge the jury, that such declarations are weak evidence, and by the court hardly believed to be evidence.
    2. Quantity is a circumstance of slight, often of no weight, in a question of title, but it may have a marked effect where the question is one of boundary. If there be two lines, one corresponding with the quantity of land in the deed, and the other largely in excess, the inference would have weight in • determining the true line, especially when strongly asssisted by other evidence. It was therefore error where the question was one of boundary to exclude .evidence of the number of acres contained in defendant’s claim.
    3. Where the defendant chose to rely on his possession and on a question of boundary, alleging that the plaintiff’s survey did not cover the land in dispute, and gave evidence to establish a different northwest corner and a different line, and to dispute the southwest white oak corner, it was directly rebutting to show that the defendant held under a title, which recognised the corners ¡md line claimed to by the plaintiffs, there being admissions by deed and matter oí' record; and it was error to charge such evidence was not rebutting evidence.
    November 28th 1878.
    Before Askew, C. J., Sharswood, Gordon, Paxson and Trunkey, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 287.
    Ejectment by Thomas B. Kennedy and Arianna S., his wife, against Daniel Lubold and Daniel Wagoner, for thirty acres of land in Wayne township, Crawford county.
    Number 1260 was an undrawn donation tract of 200 acres in the sixth district, Wayne township, Crawford county, Pa. This tract was settled about 1819, by Samuel Evans and Jacob Reese, who resided upon, cultivated and improved the same. About 1830, Samuel Evans conveyed his interest in the land to Charles Ferris. Jacob Reese, the other settler, has resided upon the tract ever since. About 1835 he also conveyed his interest to Charles Ferris, who employed James Herrington, then deputy-surveyor for the county, to examine the lines and survey the tract in question. The surveyor commenced at the southwest corner, a white oak, blocked it, and pronounced it the original donation corner; proceeded thence to the northwest corner, a hickory, blocked it also, and pronounced it the original numbered donation corner; and thence around the tract to the beginning, finding each of the four original corners. Mr. Ferris then applied for a warrant for an official survey of the tract. This warrant was directed to Ebenezor Eelton, then deputy-surveyor, who went to the land with Charles Ferris, the owner, on the 14th of September 1838 ; examined the several corners previously blocked by Herrington, and found them correct; made a draft and return of his survey to the office, upon which he recited the white oak the southwest, and the hickory the northwest corner of the tract, and the whole tract containing 219 acres, 111 perches and allowance of six per cent, for roads. Mr. Ferris having paid the purchase-money to the Commonwealth, a warrant of acceptance issued from the land office on the 13th day July 1841, and same day patent issued to him for the same.
    October 16th 1841, Charles Ferris and wife conveyed the north part of said tract of land, which was unseated and uncultivated, to John Stewart Riddle. About the same time he conveyed the south part of the land to Jacob Reese, the settler, and to Adam Peters. This was the part of the tract upon which the improvement had been made. The dwelling-house of Reese, where he has lived for nearly sixty years, is within twenty-five or thirty rods of the southwest corner of the tract. Mr. Riddle paid the taxes upon this land, which was unseated, until his death, in 1850. On the 10th day of November 1852, this land was sold by the treasurer of Crawford county for the taxes of 1850-1, to Darwin A. Einney, who, on the 29th day of August 1859, conveyed the same to Arianna S. Kennedy, only daughter and heir-at-law of John Stewart Riddle, and the plaintiff in this case.
    The north part of tract 121 adjoining 1260 on the west was un-' seated, and sold by the treasurer of Crawford county to the commissioners October 18th 1838, for the taxes of 1837-8. The commissioners paid the taxes on the land until May 1848, when they conveyed the same to Franklin Stratton, who died intestate about 1860. Upon a partition of his estate in the Orphans’ Court in 1866, this 100 acres, the north part of 121, was awarded to his daughter, Adelaide Stratton, and his widow, Caroline Stratton, who in April 1869, conveyed the same to Daniel Lubold, the defendant in this case. The survey and diagram under the partition in the Orphans’ Court made the eastern boundary of the same, the line as claimed by the plaintiffs in this case, from- the hickory, the northwest corner of 1260, to the white oak, the southwest corner of same tract, and the same corner and the same place upon the ground where the plaintiffs • claim the same are now and have been since 1785..
    On the trial of this case below the plaintiffs gave in evidence the certified draft of the donation surveys of the sixth district, which showed that No. 1260 was an undrawn lot. The official survey under the settlement and improvement of Samuel Evans and Jacob Reese in 1838, which survey recited the same boundaries as given in the donation survey of 1785, and found the same to contain 219' acres, 111 perches, and allowance of six per cent. Then the patent for the whole tract to Charles Ferris, dated 13th of July 1841;' this was followed by evidence of the surveyor, who proved that the land described in the writ given in evidence was contained within the boundaries of the tract, and constituted the northwest portions thereof, and that the same was unseated. The court, at the request of the defendants’ counsel, required the jury to be sworn in another action of ejectment by the same plaintiffs, against Daniel Wagoner, for the southwest part of 1231 adjoining the land in dispute in the Lubold case upon the north. Plaintiffs then gave in evidence the legal title to the whole of tract No. 1231.
    This was a donation tract drawn by Richard Wills, private, and surveyed November 25th 1785, and situated directly north of No. 1260.
    John Stewart Riddle acquired title to this tract about 1830, and continued to pay the taxes thereon until his death, and afterwards these were paid‘by his heir-at-law until about 1860, when the whole tract was sold 'by the treasurer of Crawford county for the taxes of 1858-9, and the same conveyed by the purchaser to the plaintiffs in this case in June 1866 ; since which time the taxes have been regularly paid by the plaintiffs.
    In 1871 the plaintiffs in this case brought an action of trespass against Daniel Wagoner, the defendant, for cutting timber trees upon the same land now in dispute in this action of ejectment. The defendants pleaded “Not guilty,” and the case came on for trial in December 1875. After the plaintiff’s testimony was concluded, the court directed a nonsuit, on the ground that the possession of the land being disputed, the plaintiffs must first determine their title by an action of ejectment. A writ of error was taken by the plaintiffs to No. 20, of October and November Term 1876, and heard in this court in November 1876, and the judgment affirmed.
    December 4th 1876, this action of ejectment was brought in accordance with the rulings of the court in the action of trespass.
    Plaintiffs also read in evidence the deposition of Jacob Reese, as to his settlement and residence upon tract 1260, and as to the white oak, the southwest corner, and the butternut at or near the southeast corner of the tract, and that these original corners had never been disputed.
    Plaintiffs also read in evidence the deposition of Charles Ferris, the patentee, who testified, inter alia, that lie was on the land in question in 1837-8, while the original donation marks wrere plainly to bo seen; that the deputy-surveyors, while on the ground and in his presence, blocked the corner trees, and especially the hickory, the northwest corner, and found the numbers therein and pronounced the hickory at the northwest corner and the white oak at the southwest corner to be the original donation corners.
    The plaintiffs also introduced the testimony of A. W. Mumford, Henry B. Beatty, Judge Van Horne and F. R. Young, each of them surveyors of long experience in Crawford county, and especially on donation lines, and each of them testified that in their judgment, the hickory, as claimed by the plaintiffs, was the original corner of tract 1260.
    Plaintiff also proved by a number of witnesses, that Jacob Reese, the settler on the tract, and Adam Peters, the settlor, and for many years resident of tract 1266, lying directly south of 1260, always claimed the white oak at the intersection of the roads was claimed by the plaintiffs to be the original corner of their respective tracts; also proved by ancient deeds that the northeast corner of tract 1302 was the Reese w'hite oak, and by other deeds for the southeast part of tract 121 was the Reese white oak.
    It was the theory of the artists, supported by the marks upon the donation surveys, that the donation surveyors actually ran only the east and west lines of the tracts, running the north and south only in cases where they would pass from one block to another; that upon the original survey of the land in question, the artists had commenced near the eastern boundary of the district, marking No. 1256, thence west 1257, 1258, 1259 and 1260, and stopped; tract No. 1261 not found in the district.
    Again, in surveying the tract next west of 1260, the artists had commenced near the western boundary of the district, at No. 114, thence east to 115, 116,117, 118, 119, 120 and 121, and from the numbered corner of 121 they ran north and made 122, thence west again, completing a block of thirteen 250-acre tracts. It was clear that the donation surveyors did not run the line between the northwest corner of 121 and northwest corner of 1260, but simply plotted the same.
    The defendants gave no evidence of title to the land in dispute, but gave testimony of one surveyor, that he had found marks on a tree on the north line of 1260, and fifty-six rods east of the hickory, which, upon counting the growths over these marks, they would correspond in date with the donation survey in 1785. Also evidence of some marked trees north and south from this, but of much later dates. Also proved by one witness that some forty years since, some parties had claimed a tree forty rods east of the Reese white oak as the southwest corner of 1260. The land was cleared about that time, and has been under cultivation ever since, the owner of the land on either side always maintaining that the real corner was where the stump of the numbered corner-tree now lies, at the intersection of two well-known public highways.
    During the progress of the trial before Church, P. J., George Long, a surveyor, defendants’ witness, being on the stand, and having answered a question as to the length of Lubold’s lines north and south, east and west, the plaintiffs proposed, on cross-examination, to ask witness the further question how many acres there were in the Lubold tract, to which question the defendants objected on the ground of its irrelevancy, which objection the court sustained. First assignment of error.
    The second assignment of error was in admitting defendants’ evidence as to survey of Samuel Evans, which evidence was as follows : “ In pursuance of Samuel Evans’ actual settlement, was surveyed June 14th 1819, the foregoing tract of land, containing 200 acres, and an allowance of six per cent, for roads, &c., it being lot No. 1260. in the Sixth District of Donation Land, situated in Wayne township, Crawford county, Pa. The plot is marked N. W., N. E., and S. E. corner, post, and the southwest corner an Elm, and containing 200 acres.” The foregoing evidence was objected to by plaintiffs, and the objection overruled by the court, who said, “We will admit the evidence for the purpose of showing what the surveyors in 1819 found on that undrawn tract, the corners and the boundaries.”
    The third assignment was in rejecting the deed of Caroline Stratton and Adelaide Stratton to Daniel H. Lubold, the defendant, for 100 acres of land adjoining plaintiffs on the west, and for the purpose of showing that the survey of 'defendant’s land was made to the line plaintiffs claim to, and that the line plaintiffs claim to was the line conveyed to defendant by them, to rebut the defendant’s evidence as to the place of the true original line of tracts in these cases.
    The court rejected this evidence on the ground that it was not in rebuttal, and that the plaintiff must maintain his right upon the strength of his own title, and not upon the weakness of the defendants.
    The fourth assignment was in rejecting for like reasons the proceedings in partition of the real estate of Franklin Stratton, deceased, at No. 33, August Term 1866, of the Orphans’ Court of Crawford county, in which one of the purparts of the estate was the north part of No. 121, adjoining plaintiffs’ land on the west, and was subsequently conveyed by the heirs of Franklin Stratton to the defendant, and under which he claims title in this case, to show the complete survey of the Daniel Lubold land, and to show that the line they surveyed, and claimed to, was the line from the white oak to the hickory, as shown by plaintiffs, and to rebut the defendants’ evidence, and show that this purpart did not reach to the east line, to which Lubold now claims, and to rebut the evidence in relation to the place of that alleged line.
    The fifth assignment was in rejecting for like reasons the deed of John Reynolds to Daniel Wagoner, defendant, for the southeast part of No. 122, to show that the southeast corner of his land, to which he claims title here, was a post, and so stated in his deed, and to prove that post is a good way west of where they have this alleged corner, and to show there has been no claim in the record title to the land reaching east of the hickory, and to rebut the defendants’ evidence as to line east of the hickory claimed by plaintiffs.
    The following portions of the charge in brackets constituted respectively the assignments of error from the sixth to the twelfth inclusive:
    “ It is for you to determine the true west line of 1260 and 1231, and the east line of 121 and 122. As has been well said, there is not enough land there upon the ground to satisfy the draft made by the surveying parties when they got through. Because 121 would have to be, and is so marked by the draft from which I am reading, one hundred and sixty-two and a half perches oast and west. According to the situation of the plaintiffs’ claims, as they are confined to the Lubold tract, 121 has not enough perches. If the theory of the plaintiffs is correct, there is not enough land in the latter tract by forty perches. Upon the other hand there is not enough in 1260 ; 1260 was surveyed one hundred and thirty-seven perches. According to the theory of this defendant, the Kennedy tract has only eighty-six perches east and westthere is not enough land to satisfy the distance made upon paper, showing that the surveyors in that early day didn’t survey with precision these tracts of land. They took something for granted, or else were very negligent in the manner in which they did their duty, in making these mistakes.
    [“ You will bear in mind, that although it is supposed in 1785 to be an undrawn tract, this plaintiff claims title, by virtue of a survey and warrant of acceptance to the tract made in 1838. Mr. Herrington made this survey in 1838. There is no doubt, if you believe the testimony, but What he did go to the northwest corner of 1260, presumably to that hickory. The northwest corner purports to be a hickory. The blazes and marks upon that hickory, by Mr. Long's count, were about thirty-nine growths upon that since the last marks were made, which would make it about 1838, or about forty years. There is no doubt but that the surveyor, Herrington, did go to that hickory. Whether he did right in going there, or whether it had not been surveyed with 122 and 1231, or it had been an encroachment upon the northeast corner of 121, is for you to determine. These are precisely the points for your investigation.]
    [■‘ Evidence has been given you of the southwest corner, the Reese ' white oak stump. Evidence has been given you that that was a white oak, well understood by parties in an early day; and since that time it was the line or corner. It has fallen away, or else because it was standing in the corner of the two roads, it has become' open to the public and worn away. The old gentleman upon the stand tells us that Reese always claimed to that as a corner. Upon that the parties in possession of 121 claimed to that other white oak, about forty perches east. The testimony, however, is for you. From all we can learn from the testimony given upon the part of both plaintiffs and defendants, one white oak is forty rods east of the other. The same contention was had in 1834 and 1840; the same contention by the then owners upon each side of those two white oaks, that there is now; Peters and Reese claiming the furthest west white oak, the one the present plaintiff claims to; and others claiming forty rods east, of whom Shafer and Evans were two. Their dec1 larations have been given in evidence. We allowed those to be given in evidence, because the declarations of a party in possession of a piece of property are always evidence to show what his claims are, where he claims or pretends to go.]
    [“ So far as that white oak is concerned, we are just as bad off at this trial as the parties to this contention were thirty-five or forty years ago. So you will have to determine as best you can. That is for the jury to determine. There has been a contention about that land, we don’t know how long. Lubold and Wagoner have been in possession there, and claim just what their predecessors claimed, Mr. Long gave evidence and Klinger also. If it was in contention such as testified to by Klinger and the other witnesses,' they have bought it out. At all events, there has been no litigation that we know of.]
    “ At the northwest corner of 121, Squire Long found marked upon a tree CXXI; that is an undisputed corner. Upon the northeast corner of 1260; that is an undisputed corner. There seems to be no doubt about the antiquity of both those corners. Then, the northwest corner of 1231, which is called interchangeably an ash, poplar and chestuut; that seems to be an original corner ; the ash being the corner, and the chestnut and poplar, being simply witnesses or indexes to it. Those corners have been admitted to be true.
    [“Now, Mr. Long testifies, and he is an old surveyor, and entitled to your consideration, so far as his manner of testifying and knowledge of what he testifies is concerned — he was upon the ground, and as such he is entitled to your consideration as much as any of the other surveyors. He says at a place where it is simply marked as a cranberry marsh he saw marks that were original. He says it was an original corner. He says it was the original northeast corner of 121, and, of course, the true northwest corner of 1260. He saw the marks there, and in 1869 they counted eighty-two years. If you find that to be true, that is certainly very strong evidence of that corner being an original donation corner of the donation surveys made in 1785. This survey was made in December 1785. Of course there would be a cut place for that year, but no growth for that year. It would be 1786 before it would have,a growth. There would be only fourteen years in the last century. In 1869 he cut that off, in May, before the growth came. That would make sixty-eight in the present and fourteen years in the last century. That would be eighty-two growths, or eighty-two years since that was cut. If you believe his evidence, if you believe he cut and counted correctly, if that be true, it is strong evidence that the white oak near the cranberry marsh, to which Lubold and Wagoner claim, was the donation corner made in 1785. Hence, Herrington, in 1838, no matter whether he did go over to the hickory, which is some forty or fifty rods west of the white oak, where defendants claim, had no right to go there, because it had already been surveyed off', and tracts 1231 and 1260 must put up with it.]
    [“ There is evidence of what Herrington or some surveyor said when he went to this tract corner. That is hearsay evidence, and we admitted that with a good deal of reluctance. We hardly believe it is evidence. We say to you in determining that evidence, it is weak evidence. It is not as strong evidence as that of witnesses who come here upon the witness stand and submit to cross-examination, in testifying to what is the true corner from the very necessity of the case. We submit it to you to take into consideration. In 1838, Herrington and Ferris, going there with just a mere contention of his own, without any one to gainsay him, what he said thirty-nine years ago, is testified to now by witnesses who say they heard him so state. We say his opinion is weaker than the testimony of Long, Mumford and Beatty, who came upon the stand and gave testimony of what they saw in later years. You will recollect Mr. Long found other marks upon the north and south line. Running on the line from the white oak, he found post and stones, the chestnut, and marks upon them, some of which he counted, and they counted fifty, forty, thirty and so on ; showing they were made by some one going through there without much authority. Whether they were made by surveyors, wood-choppers or hunters, we don’t know. At all events, we find these marks, and you have the evidence as to whether they were original marks, or bear evidence of originality.”]
    [“ We cannot assist you any further in this case than we have done. Bear in mind the northwest corner of 1231 is undisputed, the southeast corner of 1231 is undisputed, and the northwest corner of 121 is undisputed. From that to the disputed corner where this plaintiff seeks to recover is 137 perches. Instead of having 162 perches, as he would, if the line runs clear across the tract, if that be correct, he would have only 137, provided he did not encroach upon the other tracts. Bear in mind these donation surveys were made at different times. 1260 was surveyed the 6th of December 1785, and 1231 was surveyed the 4th of December 1785. If one overlapped the other, the older survey is to govern. Bear in mind what is said as to the two white oaks. That corner of 1260 was disputed thirty or forty years ago; the same dispute thirty or forty years ago as now.]
    [“Bear in mind what we said to you in the outset, the plaintiff must recover upon the strength of his own title. In other words, he must satisfy you that the west lines of 1231 and of 1260 are of the donation surveys of 1785, as he claims them. Unless he has done that he is not entitled to recover. Whether Lubold and Wagoner own it or not, they can have it for the present. They have a right to maintain their possession by showing that any one in the world except Kennedy owns the. land.”]
    The verdict was for defendants, and plaintiffs took this writ, their assignments of error being those above noted.

      Joshua Pouglass, for plaintiffs in error.
    The evidence in rebuttal should have been admitted: Sidle v. Walters, 5 Watts 389; Cutbush v. Gilbert, 4 S. & R. 551; Richardson v. Stewart, 4 Binn. 198.
    The proceeding and survey of the land under the authority of the Orphans’ Court, and in presence of the parties in interest, and the deed of the heirs in pursuance and ratification of the proceedings in partition, and the boundaries therein established, and the deed of John Reynolds to defendant, Wagoner, for the southeast part of tract No. 122, showing the eastern boundary thereof, were the solemn declarations of the parties under whom the defendants each held, and such declarations are clearly evidence, and should have been admitted by the court: Grubb v. Grubb et al., 24 P. F. Smith 25; Whart. Law Ev. 1156; Dawson v. Mills, 8 Casey 302; Allen v. Allen et al., 9 Wright 468; Gratz v. Beates et al., 9 Id. 495.
    The declarations of deceased persons made on the ground are competent evidence, and should be received: Caufman v. Cedar Springs, 6 Binn. 59; Hamilton v. Menor, 2 S. & R. 70; Buchanan v. Moore, 10 Id. 275; Commonwealth v. Philadelphia, 4 Harris 79; Bender v. Pitzer, 3 Casey 334; McCausland v. Fleming, 13 P. F. Smith 36; 1 Whart. Law Ev. 191 and notes; Nieman v. Ward, 1 W. & S. 68.

      Wm. It. Bole and I). M. 'Farretty, for defendants in error.
   Chief Justice Agnew

delivered the opinion of the court, January 6th 1879.

These two cases were argued together. They seem to have been tried upon the doctrine of leaving first principles and going on to perfection. But old surveys are not to bo so tested. Most perfect in the beginning they are constantly undergoing change and decay, until by wind, fire, rottenness, and the acts and frauds of men, their evidences lie only in memory and hearsay. Hence when the learned judge said of the acts of the surveyors, who forty years before wont upon the ground, ran the lines, blocked the trees, counted the growths, found original marks, and pronounced the hickory the numbered corner of donation lot No. 1260, it was mere hearsay, he hardly believed it evidence, admitted it with reluctance, and it was weak evidence in determining, he clearly misled the jury. The reverse is true — the evidence was strong, and ought to prevail unless clearly rebutted, by showing either a mistake of the witness relating the facts, or error in the surveyors making the declaration that the hickory was the numbered corner and the white oak opposite an original corner. Herrington in 1837, and Fenton in 1888, were engaged in professional acts, the latter locating the warrant officially, and under his oath of office. The declarations as to the corners when found, blocked and counted, were a part of the res gesta, and so far from being doubtful evidence were competent and always admitted when the transaction is old and the surveyor dead: Nieman v. Ward, 1 W. & S. 68; Caufman v. Congregation, 6 Binn. 59; Hamilton v. Meanor, 2 S. & R. 70; Buchanan v. Moore, 10 Id. 275; Dawson v. Mills, 8 Casey 302 ; Gratz v. Beates, 9 Wright 495. The case of Bender v. Pitzer, 3 Casey 333, was one of different character, and the language of Judge Knox inapplicable to this.

There was also an inaccuracy in the judge’s reference to Long’s testimony. He remarked, “ Long says it was an original corner. He says it was the original northeast corner of 121, and of course the true northwest corner of 1260.” There were two inaccuracies in this statement liable to mislead. And first, Long found no hickory, either marked or not marked, not even the remains of one, .but he found a white oak blazed on the north and south sides, with one mark each. He said he would call it an index tree (that which surveyors usually call a pointer). But he found what would be only the evidence of a line running north and south, and .not a marked corner or its pointer. He might think the hickory or northwest or numbered corner of No. 1260 once stood near, but this would be opinion only, and he did not say, as the learned judge inferred and told the jury, to wit: “ He says it was an original corner.” A second and more hurtful inaccuracy was the statement that being the original northeast corner of No. 121, it was, of course, the true northwest corner of No. 1260. This might be so if the corners were identical, but it-was not necessarily, and the statement conveyed the impression that the numbered corner (the northwest) was subordinate to the northeast corner of its adjoiner.

The settled doctrine of the donation moneys is that the numbered corner is the ear-mark of the tract to which it belongs, and controls all the other marks on the ground: Smith v. Moore, 5 Rawle 348; Dunn v. Ralyea, 6 W. & S. 475; Greely v. Thomas, 6 P. F. Smith 35. This docti'ine follows the direction of the Act of 24th March 1785, 3 Sm. Laws 292, that “ on the northwestern corner thereof each lot shall be marked in Roman figures the number of the lot, and if the said corner should be a post, then the said number to be marked on a tree in said lot most contiguous thereto.” The act also directed that the lots should succeed each other in numerical order, and a draft of the whole be made, noting the numbers on each, and that the draft should stand in lieu of recording the patents which were directed to be noted on the drawn number thereon. Hence Chief Justice Gibson said, in Smith v. Moore, supra, “ the lot having received a name of baptism to distinguish it from all the rest, its individuality could not be destroyed or its name changed by a blunder in the return, and when there is a discrepance between the numbered corner and the boundaries returned, the former must govern.” For the same reason it was held, in Dunn v. Ralyea, supra, that No. 1031, found marked on the ground out of order, and where No. 1029 was called for on the general draft, must prevail over No. 1028. If, therefore, the numbered hickory seen by Herrington and Fenton in 1837 and 1838, was the true numbered northwest corner of 1260, the judge erred in saying .that the white oak proved by Long as the northeast corner of No. 121, was the true northwest corner of No. 1260.

The learned judge also fell into error in refusing evidence of the number of acres containéd in defendant’s claim. He claimed a corner as the northeast corner of his tract, fifty-six perches east of the hickory. This would make a very large difference in the area or quantity of his land. Quantity is a circumstance of slight, often of no weight in a question of title, but it may have a marked effect where the question is one of boundary. If there be two lines, one corresponding with the quantity of land in the deed, and the other largely in excess, the inference would have weight in determining the true line, especially when strongly assisted by other evidence.

He erred also in rejecting the rebutting evidence contained in the third, fourth and fifth specifications. These offers of the deed from the Strattons to Lubold, the proceedings in partition of J. Stratton’s real estate, and the deed from Reynolds to Wagoner, were for the purpose of showing that the defendants in their own title recognised the boundary claimed by the plaintiffs to be theirs. This was both rebutting and strong evidence. It was rebutting, for when the plaintiffs had exhibited their survey, warrant of acceptance and patent, and proved that the survey applied to the land in controversy l)y the metes and marks on the ground, they had shown a good title to recover. What defence ■would be made to this was not to be anticipated as a matter of law. Whether the defendant would rely oil an adverse title, or on possession alone, or on a question of boundary, the defence he would set up alone could show'. He chose to rely on his possession and on a question of boundary, alleging that the plaintiffs’ survey did not cover the land in dispute. Hence when the defendants gave evidence to establish a different northwest corner and a different line, and to dispute the southwest white oak corner, it was directly rebutting to show that the defendants held under a title which recognised the corners and line claimed to by the plaintiffs, these being admissions by deed and matter of record, which the late Chief Justice Thompson thus characterized: “ It is always proper in controversies involving lines, corners and boundaries of land, to receive in evidence what, the owner may have said about them while owner. So, on the same principle, are deeds and articles of agreement, executed by such owner, recognising particular lines, corners or monuments as boundaries, evidence. Sometimes such acts are admissions only, and at others they may arise to the consequence of estoppels in pais; but as either they are evidence.” Now, in the present case, the proceedings in partition and the deeds not only recognised the western boundary of Riddle’s land — No. 1260 — as a common boundary, but the public road as the western boundary of No. 121. The distance eastward was also stated, and the lands of Wentworth and Risinger on the south, and of Demmington and Wagoner on the north, were called for as ad-joiners. Clearly this was competent evidence to go to the jury to show, if it did so, that the defendants had recognised and bounded themselves by the line of 1260, as claimed by the plaintiffs.

These are the only assignments of error we deem it necessary to notice; but for these the judgment must be reversed.

"udgment reversed, and a venire facias de novo awarded in each case.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Commonwealth ex rel. Fertig et al. versus Patton et al.
    1. The Act of April 18th 1878, ‘ to provide for the holding of eourts in certain cities of this Commonwealth, is in conflict with art. 3, sect. 7, of the Constitution and void.
    2. There can he no proper classification of cities or counties except hy population. Geographical distinctions cannot he resorted to without entering the domain of special legislation.
    3. The Act of May 23d 1874, and Wheeler v. City, 22 P. P. Smith 338, distinguished.
    November 29th 1878.
    Before Agnew, C J., Sharswood, Gordon, Paxson and Trunkey, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common. Pleas of Crawford county : Of October and November Term 1878, No. 332.
    ■ This was an application by the Commonwealth ex relatione Samuel S. Eertig, and others, for a writ of mandamus, to compel the commissioners of Crawford county to provide suitable buildings for the holding of courts in the city of Titusville, in accordance with the Act of April 18th 1878, Pamph. L. 29. The material portions of the act and the proceedings in the court below will be found sufficiently stated in the opinion of this court. The case was heard and determined by Church, P. J., the parties having waived a trial by jury.

      Wm. S. Morris, Samuel Minor, D. I). Fassett, F. B. Guthrie, Julius Byles, L. W. Wilcox, Geo. A. Chase, Samuel Grumbine, Charles B. Guthrie, M. J. Heywang, S. T. Neill, and Roger Sherman, for relators.
    The Act of 1878 is general, and the classification therein made is proper: Wheeler v. Philadelphia, 27 P. F. Smith 348 : Kilgore v. Magee, 4 Norris 401; Walker v. Cincinnati, 21 Ohio St. 42; Van Riper v. Parsons, 40 N. J. 123.

      1). M. Farrelly, Thomas Rody, F. P. Ray and Wm. R. Bole, contra.

    The act was manifestly intended only to apply to Titus-ville, as there is no other city in the state which comes within its provisions, and it is, therefore, special legislation and void: art. 3, sect. 7 of Constitution; Wheeler v. Philadelphia, supra; City of Columbus v. Mitchell, 31 Ohio St. 607.
   Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879

The plaintiffs filed their petition in the court below praying for a writ of mandamus to compel the commissioners of Crawford county to provide suitable buildings for the courts of said county, in the city of Titusville. The relators set forth, in said petition, that they are citizens and taxpayers of Crawford county, resident inhabitants of the city of Titusville, and suitors in the Court of Common Pleas of said county; that by the Act of Assembly of 18th of April 1828 (Pamph. L. 29), it was provided, inter alia, “ that in all counties of this Commonwealth where there is a population of more than sixty thousand inhabitants, and in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually travelled public road, it shall be the duty of the president judge or of the additional law judge, or of either, to make an order providing for the holding of one week of court, after each regular term of court for said county, for the trial of civil or criminal cases in said city.” The petition further avers that at the time of the passage of said act the county of Crawford had a population exceeding sixty thousand ; that the city of Titusville was, a,t that time, and is now an incorporated city with a population exceeding eight thousand, and situate more than twenty-seven miles from the county seat of said county by the usually travelled public road; that by reason of the premises the said act applies to Crawford county, and that the city of Titusville is within the provisions thereof; that by the fifth section of said act it is made the duty of the commissioners of the county to provide and furnish suitable rooms for the accommodation of the court and its officers; that the said commissioners had neglected and refused to perform this duty, &c. Upon the filing of this petition, the court awarded an alternative mandamus, and at the same time granted a rule on the commissioners to show cause why a writ of peremptory mandamus should not issue as prayed for. The respondents appeared and filed a return to the alternative writ, denying some of the material allegations of fact in said petition, and averring, in the fifth paragraph of said answer, that the said Act of Assembly is unconstitutional and void, for the reason that it is repugnant to that portion of the Constitution (art. 8, sect. 7), which declares that the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs and school districts; changing the venue in civil and criminal cases ; locating or changing county seats, &c. The relators filed a traverse to this return, and upon the cause being placed at issue, the parties waived trial by jury, and the court below proceeded to dispose of the case both upon the law and the facts. The learned judge among other facts found the, following : 1. That the county of Crawford had a population exceeding sixty thousand at the time of the passage of the act. 2. That the city of Titusville had at that time a population exceeding eight thousand; that it was then and is now incorporated, and is situate more than twenty-seven miles from the county seat by the usually travelled road; and 3, that Crawford is the only county in the state to which the said act would apply.

The court upon hearing denied the writ.

The vital and controlling point in the case is whether the said act is obnoxious to the Constitution as being special legislation within the terms of the constitutional prohibition. It was contended for the relators that the case came within the ruling in Wheeler v. The City, 27 P. F. Smith 338, and that the act was general inasmuch as it applies to certain counties in the state as a class. A comparison of the act in question with the Act of 23d May 1874, under which the case of Wheeler v. The City arose, will show some marked features of dissimilarity. The Act of 1874 provided for the classification of the cities of the Commonwealth. Eor the exercise of certain corporate powers, and having respect to the numbers, character, powers and duties of certain officers thereof, the cities then in existence or thereafter to he created in this Commonwealth, were divided into three classes. It is true that in that classification the city of Philadelphia was the only city of the first class. But as was said in Wheeler v. The City, legislation is not intended for the present merely; it provides for and anticipates the wants of the future. The Act of 1874 classifies cities by their population. The Act of 18th April 1878, can hardly be said to be a classification of counties. It is true it speaks of all counties ol more than sixty thousand inhabitants. But it goes on to say, “ And in which there shall be any city incorporated at the time of the passage of this act with a population exceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually travelled public road.” This is classification run mad. Why not say all counties named Crawford, with a population exceeding sixty thousand, that contain a city called Titusville, with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand watered by a certain river or bounded by a certain mountain ? There can be no proper classification of cities or counties except by population. The moment-we resort to geographical distinctions we enter the domain of special legislation, for the reason that such classification operates upon certain cities or counties to the perpetual exclusion of all others. The learned judge finds the fact that Crawford county is the only county in the state to which the Act of 18th April 1878 can apply at the present time. Said act makes no provision for the future, in which respect it differs from the Act of 1874, which, in express terms, provides for future cities and the expanding growth of those now in existence. That is not classification which merely designates one county in the Commonwealth, and contains no provision by which any other county may by reason of its increase of population in the future, come within the class.

Wo need not pursue the subject further. We are of opinion that the legislation referred to is special and within the prohibition of the constitution. This is decisive of the case, and renders a discussion of the other points involved unnecessary.

Judgment affirmed.


author: Mr. Justice Siiarswood

text:
    Bolton versus Pennsylvania Company.
    1. Wages of labor earned and duo to a citizen of this state may be attached for a debt in another state where no law exists prohibiting the attachment of wages. Morgan ». Neville, 24 P. F. Smith 52, followed.
    2. Where wages have been so attached in another state, in a suit in this state by the defendant in the attachment against the garnishee, it is not necessary that the affidavit of defence should allege notice by the garnishee to the defendant in the attachment.
    November 29th 1878.
    Before Agnew, C. J., Siiarswood, Gordon, Paxson and Trunkey, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term'1878, No. 161.
    This was an appeal by the Pennsylvania Company, operating the Erie and Pittsburgh Railroad, from a judgment of a justice of the peace, in favor of John Bolton.
    John Bolton, the plaintiff below, was in the employ of the Pennsylvania Company in September 1876, as brakeman. There was due him, for services or wages as brakeman, the sum of $4fi for the month of September. Prior to pay-day the wages due Bolton were attached at the suit of I). Patton v. John Bolton, in Ashtabula county, Ohi.o, and the Pennsylvania Company, also a corporation in the state of Ohio, were summoned as garnishees in the said attachment. Judgment was duly obtained, under the laws of Ohio, against Bolton, defendant, and the Pennsylvania Company garnishees, and the amount due Bolton paid by the company in pursuance of said judgment. After the judgment obtained in Ohio, Bolton brought suit before a justice of the peace, in Mercer county, to recover the amount due for wages for the month of September 1876, which had been attached and paid as before stated, and obtained a judgment for the full amount due him for said month. The company took an appeal from said judgment to the Common Pleas of Mercer county. The plaintiff filed his copy of claim, and entered a rule on defendant to file an affidavit of defence, to which rule the defendant answered by affidavit, wherein it was averred “that judgment was entered against the garnishees, a corporation under the laws of Ohio, duly incorporated therein, as well as of Pennsylvania, on the 1st day of December 1876. That after due notice by publication, and agreeably to the laws of Ohio, the amount of money in the hands of the Pennsylvania Company, due and owing to the said Bolton, was paid into court on the 8d day of January 1877, as this deponent is informed and believes. That a copy of the transcript of proceedings before the justice of the peace, in Ashtabula, is hereunto attached as part of the affidavit of defence. ”
    The court, in an opinion, said :
    “ The plaintiff brought suit for wages before a justice of the peace in Pennsylvania. That his services were rendered in this state is not denied. That the wages of a laborer cannot be attached, even by a creditor of the laborer in this state cannot be controverted; if so, much less by a creditor in a sister state. Judgment granted for want of a sufficient affidavit of defence.”
    This entry of judgment was assigned for error by defendants, who took this writ.

      J. Ross Thompson, for plaintiff in error.
    An attachment was issued from the proper courts, agreeable to the laws in force in Ohio, and the debtor was summoned to answer as garnishee. The debt follows the debtor, consequently the court had jurisdiction. Having jurisdiction, therefore, of the subject-matter, would not the laws of Ohio control ?
    The affidavit of defence sets forth fully the proceedings in the attachment, showing notice to the defendant in the attachment and the proceedings as to the garnishees up 'to the judgment against the company. There was no allegation that the records were defective, but claimed that the affidavit was insufficient, simply because wages could not be attached in this state. The act of Pennsylvania exempting wages from attachment is not part of the contract, and the act was not carried with the debt into the Ohio forum. The remedy there was by the laws of Ohio: Morgan v. Neville, 24 P. F. Smith 52.
    The plaintiff in the attachment, as a citizen of Pennsylvania, had a right to all the privileges of a citizen of Ohio and could sue in that state: Morgan v. Neville, supra. Wages due in Pennsylvania can be attached in Ohio: Morgan v. Neville, supra; Jones v. New York & Erie Railroad, 1 Grant 457; Mineral Point Railroad Co. v. Barron, 83 Ills. 365. The payment of a judgment by garnishee in foreign attachment in another state is a good defence in a suit against him in Pennsylvania: Noble v. Thompson Oil Co., 19 P. F. Smith 415.

      S. IT. Miller, for defendant in error.
    The affidavit of defence does not set forth that the defendant, Bolton, had any legal or actual notice of suit from the plaintiff, Patton, or the garnishee, the plaintiff in error. It does not even claim' that the garnishee made any effort to give give him notice, nor that he could not be found to be notified

      A garnishee who pays an attached debt without notice to his own creditor is not protected from its repayment: Morgan v. Neville, 24 P. F. Smith 52; Steele v. Steele, 7 W. & S. 447; Campbell v. Steele, 1 Jones 394. If for the reasons already given the judgment of the court below is not sustainable, this court is deferentially requested to reconsider and reverse the case of Morgan v. Neville, supra, in so far as it rules that a debtor’s choses in action are the subject of foreign attachment in a state into the jurisdiction of which he has not voluntarily carried or sent them.' Gibson, C. J., in Steele v. Smith, supra, in an opinion which never has and never can, on sound principles of international law, be answered, lays down the impregnable rule that, to make a debtor’s property so subject, he must have voluntarily sent it into the state where it is claimed to have been attached.
   Mr. Justice Siiarswood

delivered the opinion of the court, January 6th 1879.

The main question in this case was solemnly decided by this court in Morgan v. Neville, 24 P. F. Smith 52, that wages of labor earned and due to a citizen of this state may be attached for a debt in another state where no law exists prohibiting the attachment of'wages of labor. We are now asked by the counsel of the defendant in error to review and overrule that case. We see no reason for doing so. The non-attachability of wages of labor for debt no more enters into the contract than does the exemption from execution of certain articles or a certain amount. The laws for process of attachment and execution are part of the remedy, governed entirely by the lex fori. It is said, however, that the affidavit of defence did not allege notice by the garnishee to the defendant in the attachment. But the sole object of such notice is to enable the defendant to take defence against the plaintiff in the attachment. When, therefore, the defendant comes to sue the garnishee, if the attachment is pleaded in bar, he may reply that he was not indebted to the plaintiff, to which the garnishee may answer that he gave notice. The only effect of not giving notice is that the garnishee takes upon himself the risk of its appearing that his creditor had a just defence to the claim. It was not necessary that the affidavit of defence should anticipate such defence by averring notice.

Judgment reversed, and procedendo awarded.


author: Mr. Justice Stekeett

text:
    Philadelphia and Reading Railroad Company versus Wireman,
    1. Where goods are left with a common carrier to be delivered to the consignee without any qualification or restriction, the consignor parts with the goods and all control over them, and cannot, by a subsequent direction to the carrier, prevent their delivery to the consignee, unless such facts are shown as .will justify the stoppage of the goods in transitu.

      2. Where, having given such subsequent direction, the carrier, notwithstanding, delivered the goods to the consignee, and in consequence thereof the consignor sues and obtains a judgment against the carrier in another state for a misdelivery of the goods, this will not avail in a suit by the carrier against the consignee.
    January 6th 1879.
    Before Sharswood, C. J., Merour, Gordon; Paxson, Woodward, Trunicey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 121.
    Case by the Philadelphia and Reading Railroad Company against Jacob Wireman, to recover the value of a car-load of doors and shutters, which were misdelivered by plaintiff to defendant.
    The facts, in substance, were these: In November 1871, J. G. Fislér purchased of Spaulding & Son, of Elmira, the merchandise in question, which was to be paid for in Wireman’s paper, endorsed by Fisler. The price of the car-load was to be $1427. The goods were to be delivered in Elmira, the freight to be paid by the consignee. On November 21st 1871, Spaulding & Son delivered the goods to the Lehigh Valley Railroad Company at Elmira. Their order was simply to forward them to Wireman, at the Philadelphia and Reading Railroad station, at Philadelphia. At the same time they wrote to Fisler, sending him a bill for the goods, the receipt of the Lehigh Valley Railroad Company, and a draft for Wireman’s acceptance and Fisler’s endorsement. On the day the goods were shipped Spaulding telegraphed to Philadelphia to know whether Wireman or Fisler were good for $2000, at sixty days, and received an answer that both were “dead beat.” Spaulding & Son then had another receipt made out by the railroad company, which made the goods deliverable to their own order. The same night the elder member of the firm went to Philadelphia, and the next morning called on Fisler and Wireman and asked for additional security, which they refused to give. Spaulding then left orders at the Reading Railroad office to deliver the goods to Hough & Parmenter, and returned to his home in Elmira. On the 22d of November the Lehigh Valley Railroad Company delivered the goods to the Reading Railroad Company at East Penn Junction, where the two roads connect. The invoice was marked “J. Wireman, Kensington Avenue and Reading Railroad, Philadelphia. Deliver only on the order of II. C. Spaulding & Son, Elmira.” The car was forwarded to Philadelphia with this restriction noted in the way-bill. Fisler having received notice of the arrival of the goods, resold them to Wire-man, receiving $500 on account, and gave Wireman the memorandum of shipment, the invoice of Spaulding & Son, and the Lehigh Valley Railroad’s receipt, which he had received. Wireman taking them, presented them to the agent of the Reading Railroad Company, at Richmond, paid the freight, and received the goods. Spaulding & Co., having returned the note of Wireman, then brought suit, in Elmira, against the Reading Railroad Company for the value of the goods, and recovered a judgment therefor, which the company paid, and then brought this suit against Wireman. There was nothing to show that Fisler was insolvent at the time of the purchase.
    At the trial, before Pierce, J., the defendant made the following offer: “ To show that one J. Gr. Fisler purchased these goods from Spaulding & Son, of Elmira, with directions to consign them, to Jacob Wireman, of Philadelphia; that they were so consigned; that the point of delivery was on the cars at Elmira; that Wireman has paid about $500 on account of the goods ; that Spaulding & Son were to take Wireman’s paper, and that it was sent to Spaulding by Fisler for $1427 ; that Fisler received from Spaulding & Son a receipt or bill of lading for these goods, given by the Lehigh Valley Railroad Company — such receipt, however, not containing any order of II. C. Spaulding & Son — and delivered it to Wireman, and that the goods were delivered by the railroad company plaintiff on production of that receipt.”

      The plaintiff objected, but the court admitted the evidence, and noted an exception.
    In the general charge, the court, inter alia, said:
    “ There was no qualification put upon this receipt. If the transaction rested there, the minute the goods were put on the cars and the receipt issued and transmitted to Wireman, Spaulding & Son had so far parted with the goods as to lose control of them or a right' of recaption, except by what is known as the right of stoppage in transitu: that is the right to stop them before reaching the consignee, if he should become insolvent. Suppose the goods had been shipped by Spaulding to Eisler, and were on their way to Philadelphia, and Spaulding & Son learned that Fisler was insolvent. Spaulding would have a right to stop them. This is an established rule of mercantile law. That brings up the question whether there was any evidence of insolvency of either Eisler or Wireman which would give them a right to stop the goods. If you should not find evidence of insolvency, they had no right of stoppage in transitu, ■ and could not qualify the shipment by directing the same to their order after the goods passed from their control.
    “ If you should find on this point that there was no right in Spaulding to stop in transitu, in consequence of Eisler’s insolvency, the next point will be — was there a qualified delivery at Elmira ? If you find there was an unqualified shipment at Elmira, and Spaulding had no right of stoppage in transitu, then Mr. Wire-man had a right to receive the goods from the railroad company, and there was nothing to prevent his receiving them from the company. If that be the state of the facts Mr. Wireman had a right to receive the goods, and was not liable to anybody but Fisler.
    “If, however, Spaulding had a right of stoppage in transitu, or if the goods were shipped in the first instance in this qualified manner, the defendant had no right to them, and would be liable to the Philadelphia and Reading Railroad Company, but not otherwise. This covers the whole case.”
    Yerdict for defendánt, and after judgment thereon, plaintiff took this writ, assigning for error the admission of the evidence above mentioned, and the portions of the charge noted.

      Thomas Bart, Jr., for plaintiff in error.
    The case should have been decided, not upon what was done at Elmira, but upon what Spaulding had the right to do. What took place between Eisler and Spauldings had nothing to do with the case, because the liability of the Reading Railroad Company depended not upon the contract made at Elmira, but upon the contract between the first and second carriers at East Penn Junction. The question was simply as to the contract between Spaulding and the railroad company. The court was wrong, therefore, in submitting the question whether the shipment was qualified or unqualified.

      It, cannot bo doubted that the Lehigh Valley Railroad Company delivering the goods at East Pennsylvania Junction, the end of its railroad, to the plaintiff, acted as Spauldings’ agent to direct the next carrier what to do with them, and that the Philadelphia and Reading Railroad Company did then and there contract with Spauldings to do a particular thing — to deliver only upon their order. The first carrier is the agent of the shipper, and the receipt of the* second company is the only contract between the shipper and the second carrier: Camden and Amboy Railroad Company v. Forsyth, 11 P. F. Smith 81.
    The papers delivered at East Pennsylvania Junction all contained the direction, “Deliver only on order of II. C. Spaulding & Son, of Elmira.” These fixed the engagement of the plaintiff to Spauldings, whatever was the contract between the latter and Fisler. Such a shipment is, in itself, a proper one, and must be observed by a carrier who receives such a direction.
    The evidence shows that the Spauldings had no intention to deliver unqualifiedly, and without that intention the delivery was incomplete : Susquehanna Boom Co. v. Finney, 8 P. F. Smith 200. The question of the completeness of the delivery is for the jury: Wenger v. Barnhart, 5 P. F. Smith 300.

      Rufus E. Shapley, for defendant in error.
   Mr. Justice Stekeett

delivered the opinion of the court, January 20th 1879.

The plaintiff’s claim, as appears by the bill of particulars, was based on the unauthorized delivery of the goods consigned to the defendant Wireman. Hence, the main question was, whether the latter had a right to receive them at the time they were delivered to him by the plaintiff’s agent. To show that he had not, the plaintiff mainly relied on the qualification and direction contained in its way-bill, to “ deliver only on the order of H. C. Spaulding & Son, of Elmira.” Resting upon this alone, the delivery to Wireman, without the order of Spaulding & Son, wmuld have been unauthorized; but the testimony adduced by the defendant tended strongly to prove that Fisler had purchased the goods from Spaulding & Son, to be delivered at Elmira, consigned to Wireman, and to be paid for in the negotiable paper of the consignee, endorsed by Fisler; that, pursuant to agreement, the goods were delivered at Elmira to the Lehigh Valley Railroad Company, whose receipt, for their delivery to Wireman at Philadelphia, without any qualification or restriction, was taken by Spaulding & Son, and immediately sent by them to Fisler in a letter, advising him of the shipment and enclosing draft for the amount to be accepted by Wireman, endorsed by Fisler and remitted to the consignors; and that on the arrival of the goods in Philadelphia, Wireman, who had agreed to purchase them from

Fisler, presented the receipt of the Lehigh Yalley Railroad Company, paid the freight and received the goods. If these facts were found by the jury, as they doubtless were, from the testimony submitted to them, they constituted a complete answer to the alleged want of authority in Wireman to demand and receive the consignment. The learned judge was therefore clearly right in receiving the testimony and'submitting it, as he did, to the jury.

The testimony fairly justified the inference that after Spaulding & Son had taken the receipt of the Lehigh Yalley Railroad Company, and mailed it to Fisler, they doubted the solvency of Wire-man and Fisler, and induced the company to restrict the delivery to the consignee, by adding to the bill of lading the words above quoted, and when the goods were transferred to the plaintiff company, at Allentown Junction, the same direction was inserted in its way-bill. But neither Fisler nor Wireman was a party to this change in the terms of shipment, and were not bound by it. If the goods Were purchased and delivered at Elmira, as contended by the defendant, the title had passed from Spaulding & Son and vested in the purchaser. After an unqualified delivery to the carrier at Elmira they were no longer at the risk or under the control of Spaulding & Son, and they had no right to say that, on reaching their destination, they should not be delivered to the consignee without their order. If the plaintiff company had refused to deliver the goods on presentation of the receipt and tender of the freight by the consignee, he could have sustained replevin by proving the facts which the jury must have found under the instructions of the court in this case.

There may be apparent hardship in the failure of the plaintiff to recover, after having been sued by the consignors, in the state of New York, for misdelivery of the goods, and compelled to pay the value thereof; but with this we have nothing to do. It may be that the right of the consignee to receive the goods, was not urged or sustained in that case as it was in this. In the present case, as we have seen, the action was based exclusively on the ground that the consignee had no right to receive the goods without the order of the consignors, a position which the plaintiff failed to maintain. Perhaps the result might have been different if the action had been in the name of the consignors to the use of the railroad company. As it was, however, the case hinged on the question of Wireman’s authority to receive the goods. The facts were for the jury, and the testimony, submitted to them with appropriate instructions, fully justified the verdict.

Judgment affirmed.


author: Per Curiam.

text:
    Hass versus The Philadelphia and Southern Mail Steamship Company.
    1. A steamship company made a special contract with a stevedore to unload and load its vessels at New Orleans. Neither the master of the vessel nor his crew had anything to do with the work, which was in the exclusive charge of the stevedore, who employed his own men and used his own machinery and cargo planks. A seaman on one of the company’s steamers, while on duty as a night watchman, having stepped on one of these planks, which tilted, he was thrown overboard and seriously injured. He brought suit against the company for damages, which he alleged was occasioned by the negligence of the company’s servants. Held, that the questions whether the stevedore was an agent of tho company or an independent contractor, and whether the plaintiff was a fellow-servant in a common employment, were properly submitted to the jury.
    2. Mullan v. Steamship Co., 28 P. F. Smith 25, followed.
    January 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkhy and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia comity: Of July Term 1876, No. 1.21.
    Case by August Hass against the Philadelphia and Southern Mail Steamship Company to recover damages for injuries which plaintiff alleged were sustained by him through the negligence of the servants of defendant.
    At the trial, before Thayer, P. J., it appeared that the plaintiff was a seaman on the steamship Tonawanda, owned by defendants. On September 8th 1874, the night of the accident, the vessel was lying at the levee in the river at New Orleans, partly unloaded, and partly loaded with the return cargo, her deck being about five feet lower than the level of the levee. Running from the deck to tho levee were two gangways, one forward and the other aft, used for loading and unloading. These gangways were composed of six or seven heavy planks, about a foot wide by thirty feet long, resting on the levee, their ends projecting out and over the deck of the vessel to her hatches, some four or five feet, and resting upon a bench or support erected on the deck of tho vessel for that purpose. Blocks were used to steady tho planks and to overcome the rise and fall' of the vessel caused by the rise and fall of the river. In order to keep the planks on a level with the levee, some of the blocks were taken out as the vessel rose, and additional ones were put in as she fell. When the vessel fell, there would be a space between the blocks and the ends of the planks, rendering them unsteady and liable to sink down if a weight came upon them. The vessel was being unloaded and loaded by a general stevedore, one Manning, whom the company employed under a special contract to pay him so much per day on the outward cargo, and by the package or barrel on the inward. The stevedore employed his own men, and he and they arranged the planks, gangways and blocks. None of the crew had anything to do with the arrangement of the planks, or with adjusting them to the rise and fall of the river. The chief officer saw that the cargo was properly stored and the ship properly trimmed, but he had no other duty connected with the loading and discharging of the cargo. Neither the stevedore nor his men were in any way connected with the vessel or her employment. The stevedore employed and paid his own men, and he was paid by the agent of the company at New Orleans. The loading and unloading was entirely in his charge.
    On the vessel’s arrival at New Orleans, plaintiff was asked by the master to act as night watchman on board, in consideration of having all day off to himself — to which he consented. It appeared that this was the customary way of watching steamers while in port, and the position of watchman was considered a desirable one by the seamen, on account of being thereby relieved from duty in the daytime, as otherwise they would be obliged to take their turn in watching at night, in addition to their regular duties during the day. As night-watchman, it was his duty to take general charge of the ship, keep her fasts from chafing, admit no one on board except the ship’s company, and see that nothing was stolen. On the night of the accident, the plaintiff, while thus acting as nightwatchman, heard a noise, and starting forward to learn the cause, stepped upon the second plank of the gangway, near the pilot-house, which, giving way by reason of the vessel having sunk during the night, the plaintiff tripped and fell over the planks into the water, breaking his leg and bruising himself in the fall. It was in evidence that when the stevedore and his-gang would leave the vessel after the performance of their day’s work, these cargo planks were in the charge of the officer of the deck at night; that plaintiff knew of the condition of the planks, and that it was his duty to have blocked them himself, or to have notified the officer of the deck.
    The following points were submitted by plaintiff, to which are subjoined the answers of the court:
    1. That it was the duty of defendants, as the employers of plaintiff, to exercise reasonable care and diligence in supplying him with safe machinery, and keeping the ways, passages and approaches, in and about his work and labor, in a safe and secure condition.
    Ans. “ I decline to affirm this point. It was not the duty of the employers to keep and maintain these planks in safe condition as regards the plaintiff. It is, of course, their duty to employ proper fixtures and machinery, and they are liable, if they have been guilty of any neglect or want of care in this respect.”
    2. That when an employer places the entire charge of his business, or a distinct branch of it, in the hands of a middleman, agent, or representative exercising no discretion and no oversight of his own, then the neglect by such agent or reprepresentative of ordinary care in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master becomes responsible, and should be held answerable.
    Ans. “ If this point is intended to mean that when a person employs another in an independent employment, he is responsible, under all circumstances, to one of his employees for an injury caused by that person’s negligence, I decline to so charge. He is responsible if he employs an agent, but not if he employs a person in an independent employment. That is the general rule.”
    8. That if the jury find that the defendants had left the entire charge of the business and management of the vessel, and of the keeping of the ways, passages, approaches and appliances thereto in a safe and secure condition in the hands of the master of the vessel, Captain 'Wiltbank, as their agent and representative, exercising no discretion and no oversight of their own, that in that case, neglect by the master, of ordinary care in supplying and maintaining suitable machinery and instrumentalities for the work required of plaintiff, and in keeping the ways, passages, approaches and appliances in and about the same, in a safe and secure condition, is a breach of duty for which the defendants would be responsible to plaintiff if he received injury through such neglect.
    Ans. “ I do not understand what is meant in this point by suitable machinery, or how it is applicable to this case. The question is as to the displacement of a gangway. If it means that the owners are responsible to the plaintiff for an injury happening through the negligence of the captain and crew, I negative it.”
    4. That if the jury find that the defendants had placed the entire charge of the business of loading or unloading the vessel in the hands of Mr. Manning, the chief stevedore, as their agent or representative, exercising no discretion or oversight of their own, that in that case neglect by such agent or representative of ordinary care in supplying and maintaining suitable instrumentalities for the work required, and in keeping the ways, passages, approaches and appliances in and about the same in a safe and secure condition, is a breach of duty for which the defendants would be responsible in case plaintiff were injured thereby.
    Ans. “ When I employ a man to do a particular thing under my control, I am responsible for an injury caused by his negligence; but if I employ one whose trade it is to do that particular thing, and submit the whole to him, I am not responsible. That is the general rule. If it was the duty of the master and sailors to keep the decks clear of such obstruction, the owners would not bo responsible to the plaintiff for the neglect of .that duty, although they would be to a stranger.”
    6. That if they found that notwithstanding the position of Manning, the chief stevedore, he was merely a fellow-workman of plaintiff, and that the injury was caused by his negligence, that then it will be for them to say whether his negligence was one of the risks which the plaintiff should be held to have assumed when he consented to act as watchman of the vessel by night.
    ■ Ans. “Manning was not a fellow-workman. He was not engaged in the same line of business. If the company is exempt from the consequences of his neglect, it is on the ground that Manning was in an independent employment.”
    7. That if they found that plaintiff’s injury was caused by the negligence of the chief stevedore, and that as watchman of the vessel he was not a fellow-servant of the chief stevedore, but was working for the defendants in an entirely different employment, that then the plaintiff is entitled to recover.
    Ans. “ I decline to affirm this point in the form in which it is put, because you must also inquire, if you find that the negligence was originally that of the stevedore, whether leaving the planks in that condition was negligence on the part of the master and sailors, and if it was, plaintiff cannot'recover.”
    In the general charge the court said:—
    “ There are certain fundamental principles of law which it is necessary to consider in all cases of this character. This is an action against the steamship company for alleged negligence on the part of their agents. Undoubtedly the general rule is, that a principal is responsible for an injury happening by the negligence of his agents. But this rule is subject to certain qualifications and limitations. In the first place, the plaintiff, in an action of this kind, must prove negligence on the part of the employer or his agents, and he must also prove that, the accident was occasioned by it. Again, it is a rule of law, that in a case of this kind, if the plaintiff has himself been negligent, then he cannot recover, although there may have been negligence on the part of the master also. Where the person injured is partially to blame himself, he cannot recover damages, although his employer also has been negligent. If there was contributory negligence, if his own acts assisted in producing the accident, he cannot recover.
    “A man, when he enters upon any employment, assumes all the risks which ordinarily and naturally belong to that business. . For example, if an employer has taken proper care in the selection of his engineer, and the engine or boiler explodes, and the engineer is hurt, he cannot recover. It is a risk which he took. So it is with a sailor. He takes the risk which is ordinarily incident to his occupation.
    “ From the evidence, it seems to me that the plaintiff was acting as a sailor. He was a watchman, it is true, but he was watching as a sailor. It is his duty to go on watch when directed by the master, whether in port or on sea. The master is a sort of tyrant on board of his vessel. He has the right to give such orders as he pleases. If commanded so to do by the master, the plaintiff would have been obliged to watch the ship just as much in the port of New Orleans as at sea. It seems by the testimony that the sailors regard the duty of watchman while in port as rather desirable. They enjoy certain privileges and exemptions from duty in consequence of it.
    “ Put a man does not assume risks which are not such as naturally belong to his employment, and are occasioned by the negligence of his employer. He does assume all risks arising from the negligence of persons employed in the same common employment with himself. It is one of the risks which he undertakes when he enters upon the employment. If this accident was caused by the negligence of any person engaged in a common employment with himself, such as the captain and sailors, plaintiff cannot recover.
    “Again, where a man employs another, who is engaged in a separate or independent employment, he is not responsible for the negligence of that person, whereby another person is damaged. A bricklayer, building your chimney, lets a brick fall upon another person’s head — you had no control over him — it would bo unjust to hold you responsible. If I am in my carriage, and my driver negligently drives over another, whereby he is injured, I am responsible, for he is my servant. If I am in an omnibus, I am not responsible for the negligent driving of the driver. This is the case where the employer exercises no control over the employed.
    “ The plaintiff must prove that the accident occurred through the negligence of the company or its agents. If it arose from the negligence of a person employed by the company in an independent employment, then the defendants are not liable.
    “ If this accident resulted from the negligence of any of the sailors, or persons employed in a common employment with the plaintiff’, then he cannot recover.
    “ Of course, if it was the paintiff’s duty to have looked out after these gang-planks himself (and Captain Young says it was; you will judge from the evidence), then undoubtedly he cannot recover, for that wTould he to permit a man to recover for the consequences of his own negligence. Even if the stevedore was negligent, if the negligence of the plaintiff was the immediate cause, your verdict must bo for the defendants. * * * * * *
    “ The defendants say that the arrangement of the planks was a thing which was committed by them to the stevedore, who wras in an independent employment; that he was employed to do that very thing, and that defendants had no control over him. He did it in his own way, and with his own men. The plaintiff on the other hand, says that he was an agent of the company. If he was merely an agent, that is, if he wras a simple agent, the defendants are responsible; but if he was a person engaged in an independent employment, then the defendants would not be responsible for his negligence in the course of that employment.
    “ The defendants would, in my judgment, have been responsible to a stranger if the planks were improperly left by the stevedore in a dangerous condition, and an accident had happened to him from that cause, because if so left the defendants would be responsible to a stranger for the negligence of the master or crew in not removing them. But I cannot say that as regards a^sailor employed on board.
    “ If it ’ was the duty of the master, or of the ship’s crew, to remove these boards, then the defendants are not responsible in this suit. The owner’s responsibility is limited to the duty of employing competent persons. If he does that, he is not liable. The defendants are not responsible for the negligence of the captain or crew, if it caused this injury, and if the accident happened through the failure of the captain or crew to attend to their duty, defendants are not liable. If a sailor, or even the captain’ leaves anything wrong on deck, and an accident happens, the employer is not liable to one of the sailors for that. That is the negligence of a person in the same employment. It -would otherwise amount to this, that owners of a vessel guarantee to sailors, safety from the negligence of the officers or sailors.
    “ 1st. You are to find whether the defendants were negligent.
    “2d. Was there any negligence on the part of plaintiff? He' says he had walked over the planks once that night and they tilted with him. Was he warned, and was it 'negligence in him to walk over them again ? I say again, that if the negligence was originally the stevedore’s, and the stevedore was in an independent employment, then the defendants are not responsible if the accident happened in consequence of a neglect on the part of the captain or crew to remove the planks. If it was the duty of the plaintiff to have removed this obstruction himself, then of course he cannot recover. Nor can he, if it was the business_ of the captain or crew to do so. If, on the other hand, the accident is exclusively attributable to the negligence of the defendants, then the plaintiff ought to recover.”
    Verdict and judgment for defendants. A rule for a new trial being subsequently discharged, the plaintiff took this writ, and assigned for error the answers to the above points and the charge of the court.

      Edward E. Pugh and Gfeorge P. Rich, for plaintiff in error.—
    When plaintiff entered upon his duties, he had the right to expect from his employers, the defendants, that the deck on which he was to walk for the purposes of his employment, and the planks which he was to watch in that employment, should be in a safe and secure condition; that there should be, through negligence, no trap exposing him to the risk of injury. They were bound to the exercise of reasonable care and ¡proper diligence that it should not be in an unsafe and dangerous condition, either through their own negligence or through the negligence of any deputy master, agent or representative put by them in their place in charge of their business, and clothed with their powers and duties : Weger v. Pennsylvania Railroad Co., 5 P. F. Smith 460 ; O’Donnell v. Allegheny Valley Railroad Co., 9 Id. 239; Johnson et ux. v. Bruner, 11 Id. 58; Ardesco Oil Co. v. Gilson, 13 Id. 146 ; Mullan v. Philadelphia & Southern Mail Steamship Co., 28 Id. 25; Patterson v. Pittsburgh & Connellsville Railroad Co., 26 Id. 393; Walker v. Bolling, 22 Ala. 294; Grizzle v. Frost, 3 Fos. & Fin. 622; Shearman & Redfield on Negligence, § 102; Whart. Law of Negligence, § 229. When the law imposes a specific duty upon an individual, that duty cannot be evaded, or the exclusive responsibility for its non-performance or imperfect performance be thrown upon a contractor: Storrs v. City of Utica, 17 N. Y. 104; Hole v. Sittingbourne, &c., Railroad Co., 6 H. & N. 488; Blake v. Thirst, 2 H. & C. 20; Allen v. Willard, 7 P. F. Smith 383; Homan v. Stanley, 16 Id. 464. There was not hero the clear and satisfactory proof of a contract between the company and Manning, as an independent contractor, by which he assumed the entire charge and control of the work, without any interference by them or their officers, held to bo necessary in Allen v. Willard, 7 P. F. Smith 383, to enable them to shift its responsibility upon the stevedore : Blake v. Thirst, 2 H. & C. 20; Storrs v. City of Utica, supra; Lowell v. Boston & Lowell Railroad Co., 23 Pick. 24. The master is not a fellow-servant in a common employment with his seamen: Shearman k Redfield on Negligence, § 102. He is the agent of the owner, and his negligence is the owner’s. The court should have left it to the jury to say whether the person whose negligence caused the accident was an agent for whose acts the employees were responsible, or a fellow-servant: Mullan v. Philadelphia & Southern Mail Steamship Co., supra. And it was for the jury to say whether the performance of the duties of watchman was not a separate employment, and did not impose new obligations on the employees.

      Morton P. Henry, for defendant in error.
    To be a watchman at times is an ordinary part of the sailor’s duty. The attempt to describe that employment as a new engagement, independent of his employment as a sailor, is fallacious.
    The vessel was loaded and unloaded, not by the ship’s crew, but by an independent contractor — Manning—who was not a servant or employee of the company, but undertook the job by contract, in the same way that a coal dealer supplies coal to a house, and an ashman contracts to take away the ashes. This is the usual and customary way in that port.
    The gangways were furnished by the stevedore and arranged by him and did not belong to the ship. Defendants had no control over the stevedore in the manner of the working. There was no evidence to charge the master with negligence in any respect. He did not furnish the planks, arrange them, control those who did, or engage its structure.
    Manning was in an independent employment, and not the servant of the company: Allen v. Willard, 7 P. F. Smith 347 ; Painter v. City of Pittsburgh, 10 Wright 213. The plaintiff knew the planks were loose, and he was guilty of contributory negligence in stepping upon them.

       See Harrison et al. v. Collins, 5 Norris 153, and Lehigh Valley Coal Co. v. Jones, Id. 432, for a further discussion of the questions involved in this case. — Rep.

   The judgment of the Supreme Court was entered January 20th 1879,

Per Curiam.

A careful examination of the charge of the learned judge below, and of his answers to the plaintiff’s points, has satisfied us that none of the assignments of error in this case ought to be sustained. The decision of this court in Mullan v. The Steamship Company, 28 P. F. Smith 25, was closely followed. It was left to the jury to find whether the chief stevedore, Manning, was a simple agent — with the instruction that if he was, the company was liable; but not if he was in an independent employment. If, however, the accident resulted from the negligence of the master or crew, then the company was not liable to another of the crew. There was no evidence in the cause that the company had placed the entire charge of its business in the hands of either the master or chief stevedore, so as to make the negligence of either their negligence. The entire case was properly submitted to the jury as presenting questions of fact for their decision. We must take the whole charge and answers together, and not separate parts by themselves.

Judgment affirmed.