author: Read, J.

text:
    Hayman’s Appeal.
    1. A.’s land was ordered to be sold. H. just before the sale agreed with A.’s minor children to buy it for them; he was at the sale with the minors and stated publicly he wanted to buy for them; it was struck down to him and he announced to the minors that he had bought for them. The deed was made to H. Some time previously to the sale, at the minors’ request, H. agreed to be their guardian and was afterwards appointed. He sold the land at an advance. Held, that H. was chargeable in his guardian account with.the advance.
    2. H. at and before the sale and up to his appointment, stood in a fiduciary relation to the minors.
    May 11th 1870.
    Before Thompson, C. J., Read, Asnew and Sharswood, JJ.
    Appeal from the decree of the Orphans’ Court of Somerset county: No. 72, to May Term 1870.
    Francis Hayman, guardian, &c., of Henry Alburn and William Alburn, minor children of Charles Alburn:, deceased, on the 25th March 1869, upon citation, filed his account as guardian of Henry, who had attained full age. Exceptions were filed to the account, viz., that the guardian should be charged with the increase on the sale of certain real estate of the decedent purchased by him at an Orphans’ Court sale before he became guardian, and that he should not be credited with the costs of the citation. The whole case is so fully stated in the opinion of Mr. Justice Read, that any further statement is unnecessary. The matter was referred to H. L. Baer, Esq., who sustained the exceptions, and charged the accountant with the costs of the audit. The guardian filed these exceptions:
    “ 1. The counsel for the said Francis Hayman pray the court to dismiss the proceedings in this case for the reason that they are not cognisable by this court.
    “ 2. The auditor finds as facts: first, that Francis Hayman purchased the land which in part forms the subject of controversy, from the administrator of Charles Alburn, bn the 7th January 1865, for $700, and that a deed was made to Francis Hayman for the premises. He also finds that Francis Hayman was appointed guardian of Henry and William Alburn on the 24th April 1865, months after the purchase and date of the deed.
    “ 3. The purchase not having been made whilst he was guardian, and the purchase-money having been paid out of his own pocket, the Orphans’ Court have no jurisdiction of the subject.
    “ 4. If this case comes within the class of resulting trusts known to the laws of Pennsylvania, the remedy of the said Henry and William is in the Common Pleas, and by ejectment.”
    The Orphans’ Court confirmed the report. Hayman appealed to the Supreme Court, and assigned the decree of confirmation for error.

      F. W. Kimmell (with whom were J. H. Uhl and A. J. Colborn), for appellant,
    cited Kasler v. Kisler, 2 Watts 323; Barnet v. Dougherty, 8 Casey 371; Davis’s Appeal, 10 P. F. Smith 118.

      A. H. Coffroth, for appellee.
    Mayberry’s Appeal, 9 Casey 258; Morris v. Garrison, 3 Id. 226; Bickley v. Biddle, 9 Id. 276; Chorpenning’s Appeal, 8 Id. 316.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

On the 7th January 1865, the administrator of Charles Alburn, under an order of the Orphans’ Court, sold at public sale for the payment of debts the real estate of the decedent, Francis Hayman, who had agreed, with the minor children of the decedent, William and Henry Alburn, the night before, to purchase the property for them, attended the sale with the two minors, and stated publicly he wanted to buy it for them. Upon this announcement, one certainly of the bidders ceased bidding, who would have given more, but did not think it right to bid against the children. It was knocked down to Hayman for $700, and he immediately turned around and addressed the boys, Henry' and William Alburn, and said, “ the place is yours.” In different conversations he said the farm was bought for the boys.

On the 6th February 1865 the sale was confirmed, and on the 4th April the administrator made a deed to Francis Hayman for the premises, Hayman paying $600 in cash, and giving his obligation for the remaining $100. The administrator also testified that “ on the 31st March 1865, when I came up to make my return, Hayman told me to tell J. O. Kimmel, Esq., to make the deed to the Alburn boys (William and Henry): I told J. O. Kimmel, and he said that could not be; it must be made to correspond to the return; when I delivered the deed in J. O. Kimmel’s office, Hayman said he did not buy the place for himself, but for the Alburn boys, and turned around and pointed to the boys. William and Henry were present.” “ I paid Hayman the share of the two boys, of whom he was guardian.”

On the 24th April 1865, Francis Hayman was appointed guardian of the two minors, William and Henry, and on the 12th March 1867 sold the farm to Frederick Bodie for $1200 — $800 on the 1st April 1867, and the balance in two annual payments without interest.

Upon citation, the guardian filed his account with Henry Al-burn, which was referred to an auditor, whose report was confirmed by the Orphans’ Court, from whose decree this appeal is taken.

It also appears, that in 1864, the boys wanted Hayman to be their guardian, and that in November of that year he said he had rather agreed to be so ; and Henry Alburn testified: “ I did appoint Hayman my guardian, and he was to act as my guardian before the sale.”

It is clear, therefore, that the appellant, before and at the time of the sale, and up to the time of his appointment as guardian by the court, stood in a fiduciary relation to the appellee, an infant, as quasi guardian or confidential adviser, and is bound to account for the profit made by him on the sale of the premises purchased by him for the'benefit of the two minors.

The guardianship account has been settled by the court upon this principle, and we see no error in the decree of the Orphans’ Court.

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


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    The Broad Top Coal & Iron Co. versus The Riddlesburg Coal & Iron Co.
    1. O. died seised of land intestate without issue or known collateral kindred, leaving a mother and a widow, who survived the mother. Held, that the land passed to her under the Act of April 8th 1833, § 10 (Intestates).
    2. Kerr took out a warrant in 1794, the survey was returned and accepted in 1830 and patent issued in 1831. Hamilton made an improvement in 1820, which he kept up. He took out a warrant in 1847, which was surveyed in 1853, including part of the Kerr survey, but he held no adverse possession on the Kerr survey. Held, that Hamilton had no title within the Kerr survey.
    3. Hamilton marked lines on the Kerr survey. Held, that without actual possession this gave Hamilton no title by the Statute of Limitations. .
    4. A presumption against a senior title does not exist in favor of a junior title.
    5. The possession is presumed to be in the owner of the title until he is disseised by actual ouster.

      6. A patentee is trustee only when there- is a better owner of the land from the Commonwealth.

      1. An improver can obtain no title to appropriated land or take up disconnected vacancies severed by intervening appropriated land or hold adjoining vacant land by settlement on appropriated land.
    8. Residence and cultivation are necessary ingredients of a settlement.
    9. It is not error to send a jury back to reconsider a verdict, about to be given against the charge of the court.
    10. Ament v. Wolf, 9 Casey 331, remarked on.
    May 9th. 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Bedford county: No. 20, to May Term 1870.
    This was an action of ejectment for 520 acres of land, by The Riddlesburg Coal- and Iron Company against The Broad Top Coal and-Iron Company; the writ was issued August 13th 1866.
    On the trial the plaintiff filed an amended description specifying a number of tracts amounting in the whole to about 522 acres; amongst these tracts were: “Isaac Barnett, 50 acres,” “Isaac Barnett, 52 acres 80 perches,” “ part of John Hamilton, 88 acres 120 perches.” The defendants disclaimed title to all but these three tracts. The verdict was for the plaintiffs for the 88 acres and 120 perches. The -defendants having taken out the writ of error, the only question in the case related to this tract.
    The case was tried, July 22d 1869, before King, P. J. The plaintiffs gave in evidence: warrant March 21st 1784 to John Kerr for 400 acres and survey April 26th 1794 for 431 acres; warrant March 13th 1794 for 400 acres to Barnet Mowing, and survey April 26th for 432 a. 30 p.; warrant March 14th 1794 to John Stone for 400 acres, and survey April 24th for 466 a. 71 p.; warrant March 21st 1794 to Isaac Kerr for 400 acres, survey April 27th 1794 for 465 acres; resurveyed October 24th 1830 and accepted November 6th 1830.
    Several patents February 22d 1831 to John R. Coates for the above-mentioned tracts.
    Deed March 26th 1831, John R. Coates to Elihu Chauncey for an undivided half of the above tracts; deed June 13th 1842, John R. Coates to John Savage for the other half of the same tracts. They then gave evidence, deducing the title of the lands, July 2d 1853, to William H. Irwin. Deed- August 9th 1853, William H. Irwin to William G-leim and nine others for an undivided half of. the land, being 1-20 to each; deed August 19th 1853, William Gleim to Henry Carpenter for 1-40 of the land; deed, W. H. Irwin, November 22d- 1853, to John N. Lane for the other half of the land. On the 7th June 1860, Lane’s title was vested in the Riddlesburg Improvement Company.
    On the 7th of September 1860, all the parties who claimed under the deed from Irwin of August 19th 1853, including Elizabeth

      Gleim, widow of William Gleim, for his remaining interest, conveyed the undivided half of the land to the Riddlesburg Improvement Company.
    The plaintiffs then gave evidence that William Gleim had died intestate without lineal or collateral relatives except his mother who had since died. On the 18th of June 1864 the title of the Riddlesburg Improvement Company was vested in the plaintiffs. The plaintiffs here rested.
    The defendants gave in evidence: warrant May 22d 1835 to Isaac Barnett for 50 acres and survey April 3d 1838 for 52 a. 80 p.; warrant 1837 November 7th to Isaac Barnett for 50 acres “including an improvement, interest from June 1st 1790,” and survey for 50 acres, warrant September 24th 1840; warrant to Samuel Forbes for 300 acres “ including an improvement, interest from the 1st of February 1833warrant May 8th 1846 John Hamilton and Levi Evans for 57 acres and survey August 9th for 52 acres:—
    March 9th 1847. Application of John Hamilton for a warrant for 100 acres in Broad Top township, founded on an improvement commenced in 1820. May 31st. Warrant to John Hamilton for 100 acres, giving a precise description of the land. August 19th, Survey for 90 acres. June 30th 1853. Order of resurvey; resurvey 101 a. 79 p. November 25th 1854, Patent to John Hamilton for 101 a. 79 p.
    This title was vested in the defendants, October 3d 1864.
    The annexed draft exhibits the tract in dispute, &e.
    John Hamilton testified that he had known the improvement of James Hamilton (his father) since 1825; he claimed at first about 300 acres ; the improvement was blazed without a survey; “Isaac Barnet had made an improvement on the other side of the creek, and my father and he made a consentable line, by which the claim was reduced, and they agreed that the line should be along the creek; the part thrown off is included in the Forbes survey; * * * the line on the Benjamin Penn, between the w. o. and b. o., is the line my father claimed to; father reduced his claim to about one hundred acres; he gave the land to me, and I took out a warrant, and had it executed; the improvement was occupied by my father and others; my father lived on it as long ago as I can remember; he lived there some seven or eight years that I know of, and then moved on the Benjamin Penn; shortly after he left, some one went on; the improvement was regularly kept up; there were some intervals; not more than six months or so at a time; don’t think it 1was idle for a year at one time.” ,
    1 There was other evidence as to the improvement of Hamilton •having commenced in or about 1820. There was no evidence that that portion of the land covered by the Hamilton survey, which ,was within the Kerr and Stone surveys, had been held adversely by Hamilton and those claiming under him so as to give title by the Statute of Limitations.
    The plaintiff’s sixth point was:—
    “ A patent, as between the patentee and the state or a stranger, is evidence that all the previous steps leading to it have been regularly pursued, unless the contrary is proved by the person who attempts to impeach the validity of the patent, and that the patent is full and express notice to every person that the land has been granted away.”
    The defendants asked the court to charge:—
    “1. That plaintiffs having amended their description, and defendant having disclaimed as to part of the land embraced in the amendment, there can be no recovery for the part so disclaimed, so as to carry costs.
    “ 2. That if the jury believe that Hamilton began his improvement in 1820, marked his boundaries at that time, and he and those claiming under him continued to reside there, farm, occupy and claim the land up to said boundaries; and if any part of the cleared land was upon the John Stone and Isaac Kerr surveys, and so continued for twenty-one years and upwards, then the plaintiffs can recover no part of the John Hamilton survey — eighty-eight acres, one hundred and twenty-one perches.
    “3. That plaintiffs have shown no such evidence in this case as will enable them to recover anything by virtue of the Isaac Kerr warrant; that having shown no title to said warrant, the patent of 1831 to Coates enured to the benefit of said Isaac Kerr.
    “ 4. That when the .survey on Isaac Kerr warrant was returned, such survey enured to the benefit of John Hamilton, if the jury believe that said Hamilton had before that time commenced a boná fide improvement, and included that part of the Kerr survey now claimed by plaintiffs within the lines of his improvement, and that, too, notwithstanding the fact that John Stone, Isaac Kerr, Benjamin Penn, and John Hamilton united at a common corner.”
    Judge King, after referring to the grounds of the plaintiffs’ claim to the three tracts in controversy, &c., charged:—
    [“Patents were issued for these three tracts of land to John R. Coates on the 22d of February 1831, whose title thereto has been regularly deduced by a long chain of conveyances to the plaintiffs.”] * * *
    “The defendants also claim title to the land included in the survey on the warrant to John Hamilton. This warrant was. founded on an improvement commenced by James Hamilton about the year 1820. He built a house, cleared land, and raised grain on land that, so far as we know, was vacant and unimproved. He marked boundaries, by going round the land and blazing trees, and included some three hundred acres or more. Subsequently, it was agreed between him and Isaac Barnet, who had commenced an improvement on the other side of the creek, that a line should he run along the creek as a division between them. James Hamilton kept up this improvement, by himself and tenants, till about the year 1846, when he either gave or sold his l'ight thereto to his son, John Hamilton, who obtained a warrant therefor on 31st March 1847, and had it surveyed first on 19th August 1847, embracing ninety acres, and afterwards, on 20th June 1853, had it resurveyed, taking in one hundred and one acres seventy-nine perches.
    “ It appears that 88 acres 121 perches of this survey are included in the older surveys of John Stone and Isaac Kerr, which will take and hold the land unless an adverse possession, continued and uninterrupted for twenty-one years, can be shown. There is, however, no such evidence of adverse possession of the land covered by the John Stone and Isaac Kerr surveys as ought to be submitted to a jury, and we therefore instruct you, that the defendants have shown no title to the portion of the land in dispute to overthrow that of the plaintiffs.”
    The court affirmed the plaintiffs’ 6th point, and answered the defendants’ points as follows: — ■

      “ 1. The parties -went to trial on the description contained in the writ and the plea of not guilty. The amended description, filed by both parties during the progress of the trial, places the parties in the same position as if the amended description and amended plea had been filed before going to trial, and especially when neither of them allege surprise. This is not the time to express any opinion in regard to the effect of the pleading upon the costs.
    “2. We have already stated to the jury, there is not sufficient evidence of possession to be submitted to them on the Statute of Limitations, so far as respects the Hamilton survey, and we therefore refuse to affirm this point.
    “3. We decline to affirm the proposition contained in this point. The patent, having been issued to John R. Coates before the date of the Hamilton warrant, is sufficient evidence of title in Coates, and all persons claiming under him, against these defendants, claiming under the Hamilton title.
    “ 4. Hamilton’s improvement was commenced after the date of the John Stone warrant and survey; and, therefore, no title can be acquired by him to any part of the land covered by that warrant in virtue of his settlement, and we cannot, for this reason, accept the rule contended for as the law of this case.
    The following entries appear on the record in the case:—

      “ July 23d 1869, the jury came into court with a written verdict and handed the same to the court, and the court observed that the verdict, as far as related to the Hamilton tract, was against the charge of the court, and thereupon the counsel for the plaintiff asked the court to send the jury back to tbeir room, and, several of the jurors expressing a desire to reconsider tbe verdict, tbe court did direct tbe jury to reconsider tbeir verdict, so far as concerns tbe Hamilton tract. Tbe verdict in tbe mean time was copied on tbe minutes.
    “ To this order of tbe court tbe counsel for tbe defendant except, and pray tbe court to seal a bill of exceptions, and it is now done.”
    Tbe jury returned tbe following verdict:—
    “ July 23d 1869; jury find for tbe plaintiffs all tbe land in dispute in Bedford county, excepting tbe two parts or surveys in tbe name of Isaac Barnet; one of fifty-two acres eighty perches, and tbe other of fifty acres, as on tbe draft filed July 22d 1869.”
    Tbe defendants took a writ of error and assigned for error tbe parts of tbe charge in brackets; tbe answers to tbe points and tbe order of the court in relation to tbe verdict.

      J. Cessna, for plaintiffs in error.
    As to tbe first assignment: If Gleim left collateral heirs the title was in them; if not, it was in tbe Commonwealth, tbe widow being dead before tbe trial. Tbe unqualified answer to tbe plaintiffs’ point was erroneous, because Hamilton was not a stranger. As to tbe 4th error, an owner of a junior title who interferes with a batch of surveys is not bound to clear and cultivate a part of each survey in tbe batch to acquire title by the statute. As to 5th and 6th errors, Coates’s patent was for tbe benefit of tbe true owner; this was Hamilton.

      S. L. Russell and F. M. Kimmell, for defendants in error,
    as to the second error, cited Brown v. Galloway, 1 P. C. C. R. 291; Balliot v. Bauman, 5 W. & S. 150; Whitmire v. Napier, 4 S. & R. 290.
    As to tbe 4th e.rror. It was proved and not disputed that tbe Hamilton improvement was outside of either tbe Stone or Isaac Kerr surveys. It was conceded that tbe title under tbe John Stone warrant and survey commenced in 1794. Tbe land held under that warrant and survey was, therefore, appropriated before tbe adjoining improvement of Hamilton was begun, and tbe same is true with regard to tbe title under an old warrant and survey in tbe name of Benjamin Penn. The Stone survey is on one side of tbe Hamilton improvement and tbe Penn survey on another side — a black-oak being a common corner of these two old surveys. To get upon tbe Isaac Kerr survey, Hamilton, or those claiming under him, must cross one of these old surveys, and tbe line of tbe Stone survey to be crossed is not an imaginary or plotted line, but a line run upon tbe ground in 1794.
    The Hamilton improvement was therefore cut in two, and be could not hold both: Smith v. Beck, 1 Casey 108; McLaughlin v. Maybury, 4 Yeates 587.
    As to the 7th error. If a verdict is recorded and a jury dismissed, it cannot be recalled; but until that is done it is within the discretion of the court to send the jury back to consider and correct mistakes, and unless in .a flagrant exercise of it, it is not reviewable: Reitenbaugh v. Ludwick, 7 Casey 141.
   The opinion of the court was delivered by

Agnew, J.

The 1st assignment of error is answefed by the 10th section of the Intestate Act of 8th April 1833, which vests title in the widow for such estate as the intestate had, in default of known heirs or kindred competent to inherit the real estate under that act. According to the testimony of William Carpenter, William Glenn died without known heirs or kindred except his mother, who was survived by the widow. His property did not then escheat, but went to the widow, who joined in the deed of September 7th 1860.

The 2d assignment of error is also without foundation. There is no evidence that John Hamilton had an actual possession within the lines of the Isaac Kerr survey, while his own warrant was not taken out and surveyed until the year 1847. His actual possession of 1820 was confined to a different part of his claim. He had no title or possession, therefore, before the date of the patent to John R. Coates for the Isaac Kerr tract, which was granted in 1831, and on this state of facts the patent was competent evidence of the title from the warrantee: Downing v. Gallagher, 2 S. & R. 455; Read v. Thompson, 5 Barr 328-9; Balliot v. Bauman, 5 W. & S. 150; Steiner v. Coxe, 4 Barr 28-29.

The question of costs did not belong to the jury, but must be . determined by the court after the verdict was passed. The 3d assignment of error is therefore without foundation.

There was no evid.ence to justify the call for the instruction requested in the defendants’ 2d point. Without an actual possession within the lines of the Isaac Kerr survey, the marking of lines could give no title by the Statute of Limitations. A presumptive possession does not exist in favor of a junior against a senior title. The contrary is the presumption of law which gives the possession to the owner of the title until he is disseised by an actual ouster. This 'has been settled by the two cases of Hole v. Rittenhouse, 1 Casey 491, and 1 Wright 116; and O’Hara v. Richardson, 10 Wright 390. The case of Ament’s Ex’rs. v. Wolf, 9 Casey 331, on its facts, is in accord with these cases. There are some expressions in the opinion in defining what is actual possession by user of the woodland, which might seem to convert acts of mere trespass into an actual possession; but which when applied to the facts in the mind of the judge do not justify this conclusion. In that case the junior warrant holder .cleared a field of about five acres within the interference, and had had possession of that and an uninterrupted-use of the rest of the interference, as woodland adjacent tovfarms is commonly enjoyed, for twenty-one years before suit brought.

The radical error of the 3d and 4th points of the defendant is, that John Hamilton had no title whatever to the land within the Isaac Kerr warrant and survey, and therefore had nothing to which the patent to Coates could attach for his benefit. The patentee is a trustee only when there is a better owner of the land from the Commonwealth. Hamilton’s improvement was cut off from the Isaac Kerr tract by the lines of the warrants and surveys of Benjamin Penn and John Stone, which cornered together. A settler or improver can obtain no title to appropriated land, or take up disconnected vacancies severed by intervening appropriated land, or hold adjoining vacant land by settlement on appropriated land: Overton v. Gibson, 2 Watts 384; Adams v. Jackson, 4 W. & S. 55; Smith v. Beck, 1 Casey 106; Lineweaver v. Crawford, 2 Id. 417. This grows out of the definition of a settlement of which residence is the chief and essential element. Cultivation also is a necessary ingredient: Act 30th December 1786, § 2; 2 Smith’s Laws 395; Act 22d September 1794, 3 Smith’s Laws 393; Gardinier v. Marcy, 5 Watts 337; Goodman v. Losey, 3 W. & S. 530. Having neither a residence of his own nor that of a tenant on the Isaac Kerr survey, there was nothing by which Hamilton could acquire title for himself, by his settlement on the land cut off by the Penn and Stone tracts, or by which he could claim the benefit of the Coates patent.

There seems to be nothing on the record that will sustain the 7th assignment of error. By the bill of exceptions it appears that the first verdict was not recorded when the judge arrested the proceeding and sent the jury back to reconsider their verdict as to the Hamilton tract, on the ground that the verdict they were about to render was contrary to the charge of the court. In the absence of any improper influence to compel the giving of a verdict in a certain way, it is not error to send a jury back to reconsider a verdict about to be rendered against the charge of-the court. Indeed it is more judicious to call the attention of the jury to the error they are about to commit in finding contrary to express instruction, than to receive a verdict which must be set aside, and cause the parties the delay and expense of another trial. Finding no error in the record; the judgment is ailirmed.


author: Sharswood, J.

text:
    Fleming’s Appeal.
    1. Rankin in 1785 granted to Allison, his heirs and assigns for ever, the partial use of a stream running between them. The borough of Greencastle was afterwards laid out by Allison on his land, and-he sold lots; the grantees of Allison were entitled to the grant of the water.
    2. The stream crossing streets and alleys, the borough is to be considered a grantee of Allison entitled to the benefit of the grant of water.
    3. This being an artificial stream of water, each proprietor of land over which it passes, including the borough in respect to the streets, &c., has a right to the enjoyment of it, in the course marked out for it.
    4. Every such proprietor is bound to keep his portion of the stream in such condition of repair that the usual amount shall be transmitted to those below in its usual state of purity.
    5. If he fails he is liable to an action by the proprietors below, including the borough.
    6. An Act of Assembly of April 28th 1857, authorized the borough “ to take upon themselves the supervision” of the watercourse, see that the proper quantity -was at all times delivered, &c., to enter upon the streets, lots, &c., to remove obstructions, repair, &c., the expenses as related to the streets to be paid out of the borough funds, those on the lots to be assessed on them according to the amount expended on each and be collected as taxes are; and to pass ordinances providing penalties upon persons doing wilful injury to or obstructing the watercourse, &e. Held, that so far as the act intended to vest in the borough the right to recover all the damages suffered by Allison’s other grantees, it was unconstitutional.
    May 11th 1870.
    Before Thompson, C. J., Bead, Agnew and Sharswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Franklin county: In equity: No. 101, to May Term 1870.
    A bill was filed on the 7th of August 1869, by C. W. Bhodes and others against Jacob B. Fleming, burgess, B. F. Winger and others, town council, and Daniel Hanbecker, constable of the borough of Greencastle. The plaintiffs were residents of Green-castle.
    The facts in the case were, that one John Allison was the proprietor and founder of Greencastle, and that on March 8th 1785 one William Eankin delivered his bond to Allison in the penalty of 500?., with condition that Eankin would allow and grant unto Allison “ his heirs, executors, administrators or assigns * * * such quantity or proportion of his stream of water, at the line between said Eankin and Allison, where the watercourse now is of the breadth of two feet, and such a sufficient quantity as will run through one two-inch augur bore, with two inches and a-half head above the upper part of said bore, this quantity of water to be allowed to run from the 1st of March until the 1st of September, yearly and every year for ever, and then from the 1st day of September until the 1st day of March yearly and every year as much as will run through one four-inch augur bore, with the aforesaid quantity of head.” In pursuance of this obligation the stream was allowed to flow through the streets of Greencastle and over the lots of the plaintiffs and others in Greencastle. The complainants were assignees of Allison of lots along the watercourse.
    On the 28th of April 1857 a supplement (Pamph. L. 829) to the Act incorporating Greencastle was passed, providing:—
    Sect. 1. “ That the burgess and town council of the borough of Greencastle be authorized and empowered to take upon themselves the supervision of the water and watercourse in the borough aforesaid, to see that the proper quantity of water is at all times delivered by the heirs or assigns of William Rankin, deceased, and to enforce the delivery of the same by such suit or suits in their corporate name as may be necessary, and whenever they shall deem the same necessary, may by themselves, their agents, engineers, &e., and with their tools, carts, &c., enter upon any of the lands, lots and enclosures, streets, lanes, alleys and highways along the original or present course of the said stream for the purpose of examining the condition thereof, removing obstructions therefrom, repairing the bed or channel of the same or preventing the wasting of the water therefrom or its appropriation to uses not designed originally.”
    Sect. 2. “ The expenses incurred in repairing the said watercourse and keeping the same in good order shall be paid as follows, to wit: those incurred in the streets, lanes and alleys of the said borough shall be paid out of the borough funds, and those incurred on private property shall be taxed by the said borough and town council against the property through which the said stream passes, according to the amount expended upon each property, and shall be a lien thereon and collected as other borough taxes are by law collected.”
    Sect. 3. “ The burgess, &c., may by ordinance provide what fines and penalties shall be enforced against any person who shall wilfully or maliciously do any damage to said water-course, or who shall obstruct, or divert, or use the water unlawfully, waste it or render it unfit for use.”
    The borough authorities entered on the lots of the plaintiffs without their consent, made repairs, &c., and issued- their warrant to collect the costs and expenses incurred upon their lots.
    The bill set out these facts, and further set out, that the stream was for the common benefit of all the residents of Greencastle, is used by all in common, that the plaintiffs had “no special or greater interest in the water of said stream than is common to all the said citizens and residents of said borough, and your orators use said water in no other or different manner than it is used by said other citizens and residents;” that until recently the stream had been kept clear of obstructions, &c., at the expense of the borough, and the expenses were paid from the general taxation.
    The prayers were:

      1. Eor an injunction to restrain the defendants from collecting the expenses above mentioned.
    2. That the court would decree assessments for that purpose to be void.
    3. That the Act of 1857 might be declared unconstitutional.
    4. General relief.
    The court awarded a preliminary injunction.
    The defendants filed an answer, admitting that the water was for the common benefit of all the residents of Greencastle, but denying that the plaintiffs had no special nor greater interest in the water beyond other residents ; they denied that the stream theretofore had been kept free from obstructions at the expense of the borough, and aver that it had been done at the expense of the lot-holders along the course of the stream.
    The matter was referred to Theodore McGowan, Esq., as examiner, who reported the facts as above stated. He also reported that there were two public cisterns in the streets of Greencastle, on the line of the stream, placed there by the borough authorities. The stream, with some alterations made at the request of the lot-holders, passes through the borough from north to south, as when Rankin’s obligation was executed, passing over streets and alleys, lots and enclosures; it ran for many years over the ground, but in 1857 was trunked for the first time, and dipping-boxes placed in the streets for the convenience of the residents and their cattle; the expenses of this work were paid by the borough for the portion in the streets, &c., and by the lot-holders for the portion within the limits of their lots. In 1867 the repairs which gave rise to this complaint were made. He reported also that water was “ used by all, whether lot-holders or not, for the purposes of washing, scrubbing, watering stock and for building purposes by those near enough to the stream. The water is unfit for drinking or cooking, and is not used by any for those purposes, save perhaps the first lot-holders on the northern side, where the stream enters the town.* * * The uses by the public not lot-holders near the stream are the watering of stock, hauling away for building purposes, &c., and in case of fires.”
    He also found:—
    1. “ That the plaintiffs the lot-holders have no special or greater interest, as a class, in the water of the stream than is common to all the citizens or residents of Greencastle.
    2. “ It does not appear at all how the expenses, if any, incurred prior to 1857, were met, nor that any, in fact, were incurred.”
    The defendants excepted to the report of the examiner, that he had “ found as a fact that the owners of the lots through which the stream of water passes have no special or greater interest in said stream of water than the citizens of said borough generally.”
    After the hearing the court decreed: “ that the said Act of Assembly passed the 28th day of April, A. D., 1857 is unconstitutional and void so far as the same provides for the taxing of the lots through which said stream passes, for the improvement and repair of said stream; and therefore the assessment of taxes under and by order thereof upon the properties of the complainants is illegal and invalid. The preliminary injunction is hereby decreed perpetual.”
    The defendants appealed to the Supreme Court, and assigned for error:
    1. Overruling the exceptions to the examiner’s report.
    2. Deciding the assessment of taxes for the repairing of said stream of 'water to be illegal and invalid.
    8. Deciding that “ the Act of Assembly, passed on the 28fch day of April 1857, is unconstitutional and void, so far as the same provides for the taxing of the lots through which said stream passes.”

      W. U. Brewer and Kennedy Stewart, for appellants,
    cited Hammett v. Philadelphia, antea, p. 146.

      J. McD. Sharpe and F. M. Kimmell, for appellees,
    also cited Hammett v. Philadelphia.
   The opinion of the Court was delivered, July 7th 1870, by

Sharswood, J.

The appellants complain that the court below overruled their exception to the report of the examiner (who wras invested by his appointment also with the functions of a master), which was that he had found as a fact that the owners of the lots through which the stream of water passes have no special or greater interest in said stream of water than the citizens of said borough generally;” and yet we have not been furnished with any of the evidence before him, from which he drew that conclusion. It can hardly be expected that we can reverse the decree on this ground in the dark. The other errors assigned all depend necessarily upon this first one. Had a map or plan been attached to the paper-book showing the course of the stream, it would have materially assisted us in arriving at a just and satisfactory decision.

From the master’s report, however, it may be inferred that John Allison being the owner of the land upon which the borough of Greencastle is now built, laid it out in streets and lots, and, with a view to secure a supply of water to the grantees of the lots from him, purchased from William Rankin, who was the owner of a stream in the neighborhood, the right to draw therefrom a certain quantity for that purpose. On the 8th of March 1786, he took from him an obligation to that effect. A copy of this bond is not given in the paper-books. It would seem that an artificial watercourse must have been intended. The stream, with some alterations made many years ago in its channel at the request of residents near its line to suit their convenience, still flows through the corporate limits, passing over streets and' alleys, lots and enclosures. It ran over the ground originally, but in 1857 in pursuance it would seem of the Act of Assembly of that year, to be presently adverted to, it was trunked and dipping boxes placed at different points on the line in the streets, for the convenience of the residents and their cattle. The expenses of the work were paid by the borough for that portion of the trunk which crossed streets and alleys, and by the lot-holders for the portion included within their limits. What title or interest the borough had to any part of this stream does not appear. From the terms of Rankin’s grant as recited, he was to deliver the water to John Allison and his assignees for ever — which undoubtedly meant the grantees of lots from him. If it crossed streets and alleys laid out by him for public use, as is perhaps to be inferred, then undoubtedly the borough, rightfully invested with the care and oversight of the public highways, may be considered as one of his assignees to whom the benefit of this gr'ant extended. If then this is an artificial stream of water, each proprietor of land over which it passes, and the borough so far as the highway is concerned, has a right to the enjoyment of it in the course marked out for it, either by its original designation or by subsequent agreement, and is under the obligation to keep his portion of it in such a condition of repair that the usual amount shall be transmitted to the other proprietors below and in its usual state of purity. If he fails in this duty he is liable to an action by any or all of the proprietors below, including the borough, for damages: Washburn on Easements 293. Had the entire stream been granted or dedicated by John Allison to public use before making any grants, so that his grantees would have derived title, subject to such grant or dedication, then indeed a question like that so much debated in Hammett v. The City of Philadelphia might have arisen. But upon the meagre facts reported, the case seems to stand entirely clear of that question.

The Act of Assembly of April 8th 1857, Pamph. L. 329, authorized the borough authorities of Greencastle to take upon themselves the supervision of the water and watercourse in question, to see that the proper quantity of water is at all times delivered by the heirs or assignees of William Rankin, deceased, according to the terms of the contract between him and John Allison, and to enforce the delivery of the same by 'Such suit or suits in their corporate name as may be necessary. If the borough was in law or fact an assignee of John Allison this provision was unnecessary; to the extent of the damage suffered by the streets it had such a right and such a remedy. But if it was intended to vest in the borough the right to recover all the damages suffered by all Allison’s other assignees — grantees of lots — it surely needs no argument to prove that it was entirely beyond legislative power. They could not take away the rights of the grantees derived under the contract between Rankin and Allison, nor could they assign their rights to the borough without their assent. But the act went further, and authorized the authorities, or a majority of them, “ whenever they may deem the same necessary by themselves, their agents, engineers, officers and workmen, and with their tools, carts, wagons and horses, to enter upon any of the lands, lots, enclosures, streets, lanes, alleys or highways, along the original or present course of the said stream, for the purpose of examining the condition thereof, removing obstructions therefrom, repairing the bed or channel of the same, or preventing the wasting of the water therefrom or its appropriation to uses not designed originally.” Be it remembered, that these provisions relate not to a public easement, but to a private watercourse, secured by grant and contract to private lotholders, and in which, if the borough had any pretence of right, it could only be as assignee and custodian of the streets over which it passed. The borough is invested not with the power to take the stream for public use upon making compensation to the owners, the only constitutional and legitimate mode of accomplishing the object, which may have been useful and laudable, but with all the powers incident to such taking with no provision for compensation. Nay, proceeding a Step further, the act provides “that the expenses incurred in repairing the said watercourse and keeping the same in good order shall be paid as follows, to wit: those incurred in the streets, lanes and alleys of the said borough, shall he paid out of the borough funds, and those incurred on private property shall be taxed by the said burgess and town council against the property through which the said stream passes, according to the amount expended upon each property, and shall be a lien thereon, and collected as other borough taxes are by law collected.” Now this power would have been well enough, if it had been preceded by the necessary preliminary step of taking and appropriating this private watercourse to public use, and if it had appeared that the private owners of property through which the stream flows were specially benefited by such repairs and improvements. The last section of the act is conceived in the same spirit, for it declares “ that the burgess and town council aforesaid may by ordinance provide what fines and penalties shall be enforced against any person who shall wilfully or maliciously do any injury or damage to the said watercourse, or who shall obstruct the same, divert or use the water unlawfully, waste it or render it impure or unfit for use.” It is very evident that the legislature must have been informed or believed that this watercourse had been dedicated by John Allison for the public use of the inhabitants of the borough. On this supposition only can such legislation be accounted for. All that we can Say is, that if such was the fact, it has not been made to appear to us by anything upon this record. This invasion of private rights and property seems to have been submitted to in 1857, but that is no reason why it should continue to be, or why this or any other court should countenance its enforcement.

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


author: Thompson, C. J.

text:
    McCune’s Appeal.
    1. Land of a decedent was adjudged to an heir, the share in it of another, a minor, was paid to her guardian; this came to her as land.
    2. She died in her minority and the fund was paid to her administrator. Held, that it passed as money; and went to her next of kin of the half blood in preference to more distant heirs of the whole blood.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Appeal from the decree of the Orphans’ Court of Cumberland county: No. 108, to'May Term 1870. In the estate of Anna M. McCullough, deceased.
    John McCune died intestate in May 1855, owning real and personal estate, leaving a widow, Sarah A. McCune, seven children and a minor granddaughter, Anna M. McCullough, the child of Bathsheba McCullough, a daughter of the decedent who had died before him. W. Gr. Duncan was appointed guardian of the minor; her father died in 1856. Under proceedings in partition the real estate of John McCune was adjudged to his son William D. McCune on the 20th of April 1857, and in 1857 and 1858 he paid to Anna’s guardian $1083.99, her share of the valuation-money due before the death of the widow. Anna died in May 1867 in her minority and unmarried. She left to survive her, her grandmother, Sarah A. McCune and uncles and aunts of the whole blood and brothers .and a child of a deceased sister of the half-blood. Administration .of Anna’s estate was granted to William A. McCullough. The guardian of Anna settled his account after her death and paid the balance, $795.07, to her administrator; this sum appeared to be part of her share of the valuation-money of her grandfather’s real estate paid by William McCune. In addition to this sum her administrator received $212 of personal estate. His account, which was confirmed March 17th 1868, showed in his hands a balance of $547.55, which was referred toan auditor for distribution.
    The contest was between the heirs of Arina of the whole blood and the next of kin of the half-blood. The one claiming that the proceeds of the real estate received by the guardian retained its character as realty; the other that it had been converted.

      Tbe auditor reported that the fund should be distributed as personal estate to the next of kin. t

    After exceptions the Orphans’ Court (Graham, P. J.) confirmed th*e report.
    Sarah A. McCune, the grandmother, appealed to the Supreme Court and assigned the decree of confirmation for error.

      J. A. McCune and W. M. Penrose, for appellants,
    cited Act of April 8th 1833, § 6, Pamph. L. 316, Purd. 563, pl. 23; Pennell’s Appeal, 8 Harris 517; Carter v. Trueman, 7 Barr 315; Clepper v. Livergood, 5 Watts 113; Lloyd v. Hart, 2 Barr 473; Oberle v. Lerch, Am. L. Reg. Oct. 1868, 765; Leigh & Dalzell on Conversion 150, 151 (3 Law Lib.); Grider v. McClay, 11 S. & R. 224.

      A. B. Sharpe, for appellees,
    was stopped; he cited in his paperbook, Grider v. McClay, 11 S. & R. 224; Large’s Appeal, 4 P. F. Smith 383; Dyer v. Cornell, 4 Barr 359; Walker v. Dehaven, 14 Wright 101; Hay’s Appeal, 2 P. F. Smith 449; Biggert v. Biggert, 7 Watts 563; Pauley v. Pauley, Id. 159; Pennell’s Appeal, 8 Harris 518.
   The opinion of the court was delivered, May 26th 1870, by

Thompson, C. J.

The guardian of the intestate in this case, Anna McCullough, recovered the share of his ward in her grandfather’s estate through proceedings in partition of that estate. The first descent to her was in the character in which the share existed, viz.: as land, although converted into money. After a time she died, and the question now is, to whom does the unexpended balance of Anna’s share pass? This is easily-answered. It being the second descent, the money undoubtedly passed as money and not land: Hay’s Appeal, 2 P. F. Smith 449. It consequently goes to the brothers of the half-blood and the issue of a sister of the half-blood. The authorities cited by the learned judge and the counsel for the defendant in error pyove this beyond a doubt. The ruling of the court below sustaining this result was right, and the decree, is affirmed, and the appeal dismissed at the costs of the appellant. Appeal dismissed.


text:
    Kennedy, Committee of Mahon, versus Johnston.
    1. The committee of a lunatic widow cannot without the sanction of the court elect for her not to take under her husband’s will.
    2. The leaning of the law in absence of election of dower, is to the will.
    3. The choice presented is one for judicious consideration- to he exercised in view of the circumstances.

      ' 4. The right is personal, or if the widow be incompetent, it is to be exercised by the court which has charge of her estate.
    5. The committee of a lunatic exercises all his powers under the Act of June 13th 1836, which gives him no authority to elect for a widow ward.
    6. A committee has power to apply the income only of a lunatic’s estate to the payment of his debts and the support of him and his family.
    7. If the income be insufficient, the principal cannot be used or the real estate converted without the direction of the court.
    8. The committee must apply to the Court of Common Pleas for leave to elect, and then record the election in the Orphans’ Court.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Shahswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 83, to May Term 1870.
    Max Kennedy, committee, &c., of Sally Mahon, a lunatic, on the 15th of February 1868, instituted an action of dower against George Johnston, and claimed dower for his ward as the widow of Robert Mahon’of a tract of 240 acres of land, &c.
    Johnston pleaded, 1. To the jurisdiction of the court, and that the jurisdiction was in the Orphans’ Court; 2. That Sally Mahon was never seised of dower in said tract; 4. That Robert Mahon, by his will proved May 13th 1845, devised to her one-third of the income of his farm to be paid by his son David out of the lands devised him, and that she elected to take under the will; 5. That in lieu of her dower and as a compromise of the amount to be paid her annually by David, she agreed with him before the 1st of November 1850, when he conveyed the land to the defendant, to release her dower and her rights under the will in consideration of the annual payment of $198, which had been regularly paid by David whilst he owned the farm and by the defendant since; 6. The Statute of Limitations.
    The plaintiff gave in evidence the will of Robert Mahon, proved May 13th 1845, containing the following clauses :—
    “ First. X give and devise to my wife Sally the one-third of the income of my farm, that is to say, the one-third of the interest of my farm during her lifetime. * * * Sixthly. I give and devise to my son David Mahon my farm that I now reside on, with the exceptions hereafter mentioned. * * * Seventhly. I give and devise to my son Arch. Mahon one hundred acres of land off the north corner of my farm. * * * And my son Arch, has to pay or give to my wife Sally her lifetime the third of the income of the same hundred acres. * * * My son David has to give the third of the income of his land, or lands, that he is bequeathed, he has to pay it to my wife Sally during her lifetime.”
    Also deed from David to the defendant dated November 1st 1850, for the land devised: also proceedings in lunacy on Sally Mahon, confirmed August 12th 1867. The finding was that she had been a lunatic for twenty years before August 2d 1867: also tbe value of tbe land. The defendant gave evidence that about May 28th 1850, Mrs. Mahon gave Jacob Heck a power of attorney, to settle with David the amount which should be paid to her annually in lieu of her interest under her husband’s will, and on that day Heek as her attorney in fact and David by articles of \that date agreed that David should pay her $264 per annum in r lieu of her dower in the land devised to David.
    \The plaintiffs in rebuttal gave evidence of Mrs. Mahon’s incapacity at and about .the time she made the power of attorney.
    The plaintiff submitted these points, which were denied by Rowe, J.:—
    1. Inasmuch as it is admitted by the defendant, that Sally Mahon was the lawful wife of Robert Mahon, at the death of the latter; that he died in May 1845; that he died seised of the premises described in the narr., the plaintiff is entitled to recover dower in the said premises. Also one-third of the annual profits of the land from the death of her husband in May 1845 to the present. And also damages for the detention of her dower during said period and costs.
    3. If the said Sally Mahon was destitute of such memory and judgment as to render her incapable of understanding and acting in the ordinary affairs of life, from the death of her husband hitherto, then she could not make an election, as to how she would take the estate, whether by will or otherwise. And the law, therefore, takes that view of the case that will be the most advantageous to her, and plaintiff must have the verdict.
    The defendant’s 1st point was:—
    I. If Sally Mahon was a lunatic and of unsound mind in May 1845, when her husband died, and by reason of such mental unsoundness incapable of making an election between the provision made for her by her husband in his will, and her dower at common law, her committee has no right in law to make an election for her, by bringing this action of dower, on the 5th day of February, A. D. 1868. And in this aspect of the case, the verdict must be for the defendant.
    This was aflirmed. These three points raise the question decided by the Supreme Court.
    The verdict was for the defendant.
    The plaintiff took a writ of error, assigning the answers to the points for error.

      F. W. Kimmell (with whom were J. R. Orr and Kennedy & Stewart), for plaintiff in error.

      J. McD. Sharpe (with whom were Stumbaugh & Gehr), for defendant in error.
    A committee of a widow cannot elect that his ward shall not take under her husband’s will. His powers are limited by the statute: Act of June 13th 1836, § 15 et seq., Paraph. L. 596, Purd. 682, pl. 22, &c.; Hehn v. Hehn, 11 Harris 415; Guthrie’s Appeal, 4 Id. 321. The right of election is personal: Boone v. Boone, 3 Har. & McH. 93; Collins v. Carman, 5 Md. 503; Lewis v. Lewis, 7 Ired. 72; Merrill v. Emery, 10 Pick. 507. If the widow is under disability the court will elect for her: Pulteney v. Darlington, 2 Ves. Jr. 560; Roper on Husband and Wife 571 note; Noys v. Mordaunt, 2 Vernon 581; Streatfield v. Streatfield, Cas. temp. Talbot 176; 1 Leading Cases in Equity (White & Tudor), Hare & Wallace’s Notes 271, &c.; Boughton v. Boughton, 2 Ves. 12; Bar v. Bar, 3 Bro. P. C. 173; Chetwynd v. Fleetwood, 1 Id.; Vane v. Lord Dungannon, 2 S. & L. 133; Davis v. Page, 9 Ves. 350; Ebington v. Ebington, 5 Madd. 117; Wilson v. Lord John Townshend, 2 Ves. Jun. 693; Goodwyn v. Goodwyn, 1 Ves. Sen. 228; Bigland v. Huddleston, 3 Bro. C. C. 285, note; Gretton v. Howard, 1 Swanst. 413; Ashburnham v. Ashburnham, 13 Jur. 1111; Robertson v. Stephens, 1 Iredell’s Equity 247; McQueen v. McQueen, 2 Jones Eq. 16; Tiernan v. Roland, 3 Harris 430; Addison v. Bowie, 2 Bland 606.
   The opinion-of the court was delivered, July 7th 1870, by

Agnew, J.

Robert Mahon, the husband of Sally Mahon, died in May 1845, and she was not declared a lunatic until August 1867. During all this interval she took under the will of her husband the provisions made for her. Had she been sane there could be no doubt-that the acts of acceptance under the will, as given in evidence, would have been deemed an election in pais and barred her dower: Cauffman v. Cauffman, 17 S. & R. 16; Light v. Light, 9 Harris 407; Bradford v. Kents, 7 Wright 474. But if she were insane from the period of her husband’s death, of which there was some evidence, she was without capacity to elect, and this raises the only question we need discuss — the power of Dr. Kennedy, as her committee, to elect for her without the sanction of the Court of Common Pleas. In view of the doctrine of election as administered in equity, and of the powers conferred on the committee of a lunatic, which are entirely statutory, he had not the power without application to the court. Under the 11th section of the Act of April 1833, relating to wills, a devise or bequest by a husband to his wife, of any portion of his estate or property, is deemed and taken to be in lieu of her dower in his real estate, saving her right to elect her dower, which means at common law: Shaffer v. Shaffer, 14 Wright 394. She is therefore put to her election between the provisions of the will and her dower, while her default to appear and elect under the Act of 29th March 1832, § 35, Pamph. L. 200, after citation served, is deemed to be an acceptance of the provision of the will, and bars dower. The evident leaning of the law, in the absence of an election of dower, is toward the will. The choice thus presented by the law is one for a. judicious consideration — one of judgment to be exercised upon a view of the circumstances. The right is also personal, to be exercised by the widow herself, or if she be incompetent because of unsoundness of mind, by the court which has the care of her estate, unless there be a statutory power committed to the committee. In Maryland and North Carolina, it has been held that her right of election is personal and can be exercised only by herself: 1 Washb.on Real Prop. 272*, citing Boone v. Boone, 8 Harris and McHenry 93; Collins v. Carman, 5 Md. 503; Lewis v. Lewis, 7 Iredell 72. In England, in eases of election generally, the jurisdiction is exercised by the Court of Chancery, which has also the care of the persons and estates of persons non compotes mentis: 2 Maddock’s Ch. 48 to 60; 2 Story’s Eq., §§ 1075, 1077, 1080, 1097; Cauffman v. Cauffman, 17 S. & R. 24, 25, 26. In the case of infants and married women, the Court of Chancery, when necessary, will refer the matter to a master to inquire as to what would be most beneficial to the infant or feme covert, in order to make the proper decree. See authorities collected in note, White & Tudor’s Leading Cases in Equity, p. 272. Also note to Lady Cavan v. Pulteney, 2 Ves. Jr. 563, Sumner’s Ed.

In this state the 5th Article of the Constitution, § 6' confers on the Court of Common Pleas the power of a court of chancery, so far as relates (inter alia) to the persons and estates of those who are non compotes mentis. The Act of 13th June, 1836, relating to lunatics and habitual drunkards, Pamph. L. 592, was passed to carry out this provision of the Constitution. It is under this act the committee derives all his powers, and unless the power to elect can be found in the law or be fairly inferred from its general terms, it does not exist. It is obvious, there is no such power conferred in words general or special, and there appears to be nothing in the character and nature of the duties enjoined from which the power can be drawn. When properly qualified the law confers on the committee the management of the real and per-. sonal estate of the lunatic with power to apply the income only to the payment of his debts, and the support of himself and his family. But beyond this the committee cannot go in disposing of the estate without the aid or sanction of the court. If the income be insufficient the principal cannot be used, or the real estate converted without the direction of the court. To the court belongs the power of making orders touching the care and custody of the person, and the management and safekeeping of the estate of the lunatic, necessary and proper for the purpose. The election of one of two things when only one can be chosen for the lunatic, is undoubtedly a judicial not a ministerial act, and belongs to the pourt and not to the committee. The act of election settles the title, and makes that absolute which was before uncertain and optional. Where the title may attach to either of two subjects of property by election, it requires a comparison of benefits, and a choice to settle the title upon one of them absolutely. This the committee undoubtedly cannot do from the provision of a mere power of management, for that implies a title already to the thing to be managed, and for the same reason the power to elect does not flow from a power to sue for and recover the property of a lunatic. It also implies a pre-existing title in the lunatic; while the election is required to be made before title absolutely accrues. It was therefore not in the power of the committee of his own motion to relinquish the provision made for the wife in the will of the husband, and cast himself upon the dower. It was his duty to apply to the Court of Common Pleas having jurisdiction over the person and estate of the lunatic for leave to elect the dower, which the court would grant only on due consideration of the advantages and disadvantages of the choice. After such a decree be could then proceed to have a record of his election made in the Orphans’ Court, under the provisions of the Act of 29th of March 1882, and be in a position to recover the dower if denied to him.

This substantially disposes of all of the errors assigned, and the judgment is affirmed.


text:
    Craver et al. versus Miller et al.

    1. J. being insolvent sold all his personal property to P. for $7000, of which $3000 was J.’s indebtedness to P., the remainder payable in annual instalments of $1000. The price was not greatly inadequate. Held, that the terms of payment did not make the transaction fraudulent per se.

    2. There being evidence of a change of possession, the bona tides of the transaction was for the jury.
    3. Creditors of J. levied on the goods and also attached the notes given for their purchase-money. Held, that the creditors in an interpleader issue were not estopped by reason of the attachments.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Shaeswood, JJ.
    Error to the Court of Common Pleas of Somerset county: No. 65, to May Term 1870.
    In the court below this was a feigned issue under the Sheriff’s Interpleader Act, entered October 2d 1869, between Charles P. Craver and Philip Craver, plaintiffs and claimants, and D. J. Miller & Co., H. & J. Meyers and J. H. Shaffer, defendants, who had issued executions against Jacob Craver. Jacob Craver was the brother of the plaintiffs. He had been carrying on a store, and was also extensively engaged in manufacture of staves and shooks at five different places. On the 29th of March 1869, by an agreement under seal, he sold to the plaintiffs for $7000 all his staves and shooks, and the interest he had in the several shops, with all the tools, &c., all his personal property whatever, including household furniture, farming implements, horses and carriages and store goods, &e. Part of the consideration was an indebtedness of $2948 from Jacob to the plaintiffs, and for the balance they gave four notes, the first of $1052, payable on the 1st of April 1870, and the remainder in annual payments of $1000 each, the last being due on the 1st of April 1873. The defendants issued executions against Jacob Craver; — Miller & Co. on the 8th of May 1869, H. & J. Meyers on the 14th of May, and Shaffer on the 11th of August. On these executions levies were made on the property sold to the plaintiffs by Jacob as his property. On the 11th of August each of the defendants issued an attachment execution, and attached the notes given by the plaintiffs to Jacob for the balance of the purchase-money of the goods.
    On the trial, November 23d 1869, before King, P. J., the plaintiffs gave in evidence the agreement of sale; they gave evidence of the indebtedness of Jacob to them; the removal of Jacob from the possession of the goods after the sale and of their value; of their belief at the time of the sale that Jacob was not insolvent.
    The defendants gave evidence of the insolvency of Jacob at the time of the sale, and evidence for the purpose of showing that there was no change of possession.;
    The defendants’ 5th point was:—
    The attachment executions issued by the defendants on their claims, attaching all debts, &c., of Jacob Craver in the hands of the plaintiffs, is such a recognition of the contract between Jacob Craver and the plaintiffs as estops defendants from now denying the validity of said contract.
    Judge King denied this point and charged:— * * *
    “ The defendants allege that the sale by Jacob Craver to the plaintiffs is void as to creditors, and that the facts in the case show that it is both a fraud in law and a fraud in fact.

      ■“ They contend that it is a fraud in law, because there was no change of the possession of the property sold, that the business was carried on after the alleged sale precisely as it had been conducted theretofore, and that the sale was clandestine and private, and unknown to any person except the parties to the transaction, until after the executions were ordered and issued,
    p: “ If the sale was secret and clandestine, and the business of the store and shook shops, and other operations in which Jacob Craver had been engaged, continued to be managed and carried on after the 29th of March, in the same manner as before, it would be strong evidence there was no change of possession at the time of the sale, or within a reasonable time afterwards, and if you find there was no change of the possession of the property, we are required by the authorities to say that it is a fraud in law, and void as to the creditors of Jacob Craver.
    “ [Again, the defendants say that even if a formal possession of the property had been taken by the plaintiffs under the contract of purchase, yet inasmuch as they paid thereon, or had credited only the amount of Jacob Craver’s indebtedness to them and gave their note for $4052 in payments, deferred for one, two, three and four years, the transaction is a case of legal fraud under the statute of 13 Eliz., as by that means the creditors of Jacob Craver were postponed, hindered and delayed. "We believe this position to be supported by the case of Kepner v. Burkhart, 5 Barr 478, recognised as good law in The York County Bank v. Carter, 2 Wright 455. We can conceive of no more effectual mode of delaying a man’s creditors than that adopted by Jacob Craver. It is not a sufficient answer to this to say that the defendants have attached the money due from the plaintiffs to their brother Jacob. We instruct you, therefore, that the defendants are entitled to your verdict on this ground alone, if there was nothing else in the ease.] * * * When actual fraud is alleged it must be proved, and to justify a verdict adverse to the plaintiffs it must be made to appear that the plaintiffs combined with their brother to protect his property from the grasp of his creditors, knowing his insolvency. There may be and doubtless are some circumstances in the case to excite the suspicion of unfair dealing and a purpose to defraud, but that is not enough— the demands of the plaintiffs against their brother appear to be honest, and if they were only actuated by a desire to secure their claims they had a right, for the purpose of accomplishing that object, to purchase the property of their brother, and he had a right, so far as the laws of Pennsylvania are concerned, to prefer them. [If it were a question of any importance we would submit to you to say whether the transaction was fraudulent or not. But having already ruled that the transfer from Jacob Craver to his brothers, in view of the fact that the property was sold on long payments, is a fraud in law, the jury need not trouble themselves about the fraud in fact.”] * * *
    . The verdict was for the defendants, excepting some articles of furniture specified in it.
    The plaintiffs took a writ of error, and assigned for error the parts of the charge in brackets and the answer to their point.

      A. H. Coffroth and S. Gaither, for plaintiffs in error,
    cited Deakers v. Temple, 5 Wright 234.

      A. J. Colborn and F. Kimmell, for defendants in error,
    cited Kepner v. Burkhart, 5 Barr 478; York County Bank v. Carter, 2 Wright 455.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

It may possibly be that the sale of his property by Jacob Craver to his brothers was intended to hinder .and delay creditors, and for that reason void, but we see nothing in the ease which justified the court in declaring it so as a matter of law. It was not a sale with retained possession; no such great inadequacy of price as to make it a presumptio juris et de jure that it was fraudulent, nor were the terms of payment so conclusive as to justify the presumption. We think the learned judge greatly erred in pronouncing that the transaction was fraudulent per se.' It was altogether a question of fact for the jury. If the plaintiff’s evidence were true, and that was for the jury, there was no fraud in fact, but it was for them to say. It is said that it is essential in order to a valid sale of property, that it must be removed from the premises of the vendor, or he from the possession of the goods. The last was this case.

The transfer was in law completed, and the question of the bona tides of the transaction was one of fact for a jury and not the court to determine. It is generally only when the transaction is of such a character that, irrespective of an intent to defraud, the court can declare it void. That was not the nature of the transaction here. It was a question of fact, and should have gone to the jury. I do not regard Kepner v. Burkhart, 5 Barr 478, nor York County Bank v. Carter, 2 Wright 455, as authority for the ruling in this case.

The question of estoppel arising out of the seeming unwarranted process issued in the case did not arise by reason of the charge that the sale was void as a matter of law, — nor do we regard these writs of attachment as an estoppel, but on the trial of the issue of fact they will undoubtedly have a bearing evincive of the views of the transaction by the parties who issued them.

Judgment reversed, and venire de novo awarded.


text:
    Wolf versus Studebaker.
    1. S. leased her farm to W. and refused him possession. In an action by j W. for damages, S. was permitted to prove that W. engaged in hauling, j which was more profitable to him than farming. Held, to be error. _ ■
    _ 2. The defendant might prove that W. declared that he was glad he did not get the farm, hd made more money by hauling. _
    _ 3. What a party declares against his interest in a litigated matter is always evidence.

      4. The measure of damages was what W. could have made on the tarm.
    5. In a hiring for personal service, where a party is dismissed before the end of his term, he is not obliged to seek employment nor perform services offered him of a different nature, in order to recover full damages.
    6. Where a disappointed contractor for performance of a specified thing finds something to do of a different nature from his contract, his doing it will not mitigate the damages for the breach of the contract by the other party.,
    7. Results disconnected with the cause of action or the party sued cannot operate to his advantage.
    8. Whatever shall have 'the effect to mitigate damages must have a proximate relation to the contract.
    9. Damages for a breach of contract should be such as may be fairly and reasonably considered, either arising naturally from such breach or such as may be supposed to have been in contemplation of both parties when the contract was made.
    10. The damages are fixed by the law of the contract when broken, and cannot be altered by collateral circumstances disconnected with it and from the party occasioning it.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1870, No. 45.
    This was an action of assumpsit, brought April 22d 1867, by William Wolf against Nancy Studebaker. The cause of action was the breach of a contract of leasing of the farm of the defendant to the plaintiff. The case was tried November 20th 1867, before Graham, P. J. The plaintiff proved a verbal contract, by which the defendant agreed, about the 1st of September 1866, to/ lease her farm to him on the shares, with some minor stipulations, for one year, commencing on the succeeding 1st of April: that he went with his goods on that day to take possession, and the defendant refused to allow him to enter. He gave evidence of the damage sustained by him in consequence of the breach of the contract.
    The defendant offered to prove by Abraham May that plaintiff engaged in hauling for the bridge company, at the river, after the 1st of April 1867, and continued so engaged until late in the fall, and afterwards; and that such employment was more profitable to him than the lease of the farm, and that he made out of such employment $1000 and upwards: to be followed by proof that plaintiff declared during this time that he was glad that he did not get the farm; he made more money by hauling; this for the purpose of showing that he suffered no damage from the loss of the lease.
    The offer was objected to, but admitted and a bill of exceptions sealed.
    The witness testified: “ Wolf was engaged in hauling for the bridge in the summer of 1867; he commenced hauling in June, and continued up to the cold weather; before this he was working lots around; after this he marketed some; Wolf and I looked over his books at one time, and his earnings amounted to about $1000; he hauled after this ; he hauled hay to his own stable, and some to Bowman’s, in the latter part of March.”
    The verdict was for the plaintiff for $125.
    The plaintiff took a writ of error, and assigned for error the admission of the testimony contained in the bill of exceptions.

      S. Hepburn, Jr. and W. M. Penrose, for plaintiff in error.
    The measure of damages is what the plaintiff would have immediately made out of the contract: Hoy v. Gronoble, 10 Casey 10. The proximate, not the remote or possible consequences are the measure of damages: Pittsburg Coal Company v. Foster, 9 P. F. Smith 365; Adams Express Company v. Egbert, 12 Casey 360; Fassler v. Love, 12 Wright 410; Fleming v. Beck, Id. 312.

      I. Ritner and L. Todd, for defendant in error,
    cited King v. Steiren, 8 Wright 99.
   The opinion of the court was delivered, July 7th 1870, by

Thompson, C. J.

We have no question before us involving the fact of an agreement between the plaintiff and defendant, by which the latter agreed to let to the former, on the shares, her farm for one year, from the 1st of April 1867. The verdict has settled that fact in favor of the plaintiff. The only question before us, therefore, is that relating to damages for the breach of the contract to give possession by the defendant.

The plaintiff claimed to recover the value of his contract, that is to say, what he might reasonably have made out of it, for his damages. In Hoy v. Gronoble, 10 Casey 10, which, like the case in hand, was to recover damages for a failure, on part of the defendant, to deliver possession of the farm which he had agreed to let to the plaintiff to farm on the shares, the rule as to damages is thus stated in the opinion of the court by Strong, J.: “We cannot say, therefore, that the jury were misled in this case by being told that the damages of the plaintiff should be measured by what he could have made on the farm. This was but another mode of saying that he was entitled to the value of his bargain.” This, as a rule, does not seem to have been controverted by the defendant. But she was permitted to prove, under objection, in mitigation of damages, by one Abraham May, as follows:—

“Wolf was engaged in hauling for the bridge in the summer of 1867; he commenced hauling in June, and continued up to the cold weather; before-this he was working lots around; after this he marketed some. Wolf and I looked over his books at one time, and his earnings amounted to about $1000; he hauled after this; he hauled hay to his own stable, and some to Bowman’s in the latter part of March; his property consists of a house and stable, and about a quarter of an acre of land; I was at Wolf’s sale,” &c.

The earnings of this man in this way, it was thought by the learned judge, should to the extent of them mitigate the damages .arising from the defendant’s broken contract; in other words, the logic seemed to be that because he was an industrious man, he was not within the same rule of compensation that one not so would be. There are undoubtedly cases in which such facts do mitigate damages. Such commonly occur in cases of the employment of clerks, agents, laborers or domestic servants, for a year or a shorter determinate period. But I have found no case where a disappointed party to a contract for a specific thing or work, who, taking the risk from necessity, of a different business from that which his contract if complied with would have furnished, and shifting for himself and family for employment for them and his teams, is to be regarded as doing it for the benefit of a faithless contractor. It seems to me, therefore, that the rule upon which the testimony quoted was admitted was wrested from its legitimate purpose, and applied to an illegitimate one. In 2 Greenlf. Ev., § 261 a, the distinction is marked between “contracts for specific work and contracts for the hire of clerks, agents, laborers and domestic servants for a year or shorter determinate periods.” In that case the learned author shows that the defendant may prove, on a breach of the contract, “ either that the plaintiff was actually engaged in other profitable service during the term, or that such employment was offered to him, and he rejected it.”

There is an evident distinction between such a hiring and a contract for the performance of some specific undertaking. In the one case, the party can earn and expect to earn no more than single wages, and if he gets that, his loss will generally be but nominal. King v. Steiren, 8 Wright 99, was of this nature. Whereas, in the other case the loss of the party is the loss of the benefits of the contract he is prepared to perform. In Oostigan v. The Railroad Company, 2 Denio 609, in a case of hiring for personal service, where the party was dismissed before his term had expired, it was held he was not obliged to seek employment, nor perform services offered him of a different nature from that he had engaged to perform, in order to recover full damages for disappointment. In analogy to this principle, I would say, that where a disappointed contractor for the performance of a specified thing finds something of a different nature from his contract to do, his doing it ought not to mitigate the damages for the breach of his contract by the other party. Indeed there is enough in the difiiculty of applying such a rule to discard it. It would necessarily involve proof of everything, great and small, no matter how various the items, done by the plaintiff during the period of the contract, might be, and how much he made in the meantime. It happened in this case, that a witness saw the plaintiff’s book, and testifies from it that he had earned $1000. The expense incurred in earning it, he did not see, or if he did, did not disclose. But this single case ought not to furnish a rule in other cases. It cannot be, that results utterly unconnected with the cause of action, and the party sued can be made to tell to his advantage.

It is laid down in every case of damages for a breach of contract, that the loss or .injury for which damages are allowable, must be the proximate consequence of the injury. A remote or possible injury is not a sufficient ground for compensation. For a principle so familiar, we need only cite Adams Express Company v. Egbert, 12 Casey 360. Is it not, therefore, equally just and logical, that whatever shall have the effect to mitigate damages shall have some proximate relation to the contract ?

The rule of damages for a breach of contract laid down by Baron Alderson in Hadley v. Baxendale, 26 Eng. L. & Eq. 398, cited in the opinion of my brother Agnew, in Fleming v. Beck, 12 Wright 309, namely, that “ where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract, should be such as may fairly and reasonably be considered, either arising naturally, according to the usual course of things, from such breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it,” we regard as entirely sound; and we think that that which should mitigate damages in a contract like that we are considering, should be something resulting from the acts of the party occasioning the injury, or from the contract itself. The damages may be said to be fixed by the law of the contract the moment it is broken, and I cannot see how that is to be altered by collateral circumstances, independent of, and totally disconnected from it, and from the party occasioning it.

That part of the offer to show the plaintiff’s declarations was properly admitted. What a party declares against his interest in a litigated matter is always evidence. It may serve to show, if it be not regarded as a mere idle declaration, how he estimated his own cause of action, and the jury may give them such weight as they may think they deserve, under all the circumstances of the case. For the reasons given,

This judgment is reversed, and a venire de novo is awarded.


text:
    Greenawalt versus McDowell.
    1. G. was surety for B. in a note to M. which was due. M. desiring to obtain money endorsed a note for B. for $2500, and endorsed on the first note: “ Received September 12th 1867, of B., per W. S. F., $2420.42 on a note of $2500, given for ninety days for which I went security.” Held, that it was proper to show that the proceeds were to be in payment of the first note only when B. should pay the second note.
    2. The receipt of the proceeds of the second note and endorsing them on the first note, although without the knowledge of the surety, was not payment.
    3. M. brought suit against G. on the first note before paying the second note, which had been dishonored and was unpaid by B. Held, that he could maintain the action.
    4. The fact that the money raised on the second note and endorsed on the other was for the mutual accommodation of M. and B., did not discharge G. as surety.
    May 11th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 71, to May Term 1870.
    This was an action of assumpsit brought, December 23d 1868, by Alexander McDowell against Peter Brough, Samuel F. Greenawalt and John A. Brough. The cause of action was this note:— “$6000. On demand, we, or either of us, promise to pay Alexander E. McDowell, or order, six thousand dollars, W’ithout defalcation, for value received, with interest from date, November 28th 1864. Peter Brough,
    As security, Samuel F. Greenawalt,
    As security, John A. Brough.”
    A payment of $1399.27 and payments of two years’ interest were endorsed on the note. This endorsement also was on the note: — ■
    “ Received, September 12th 1867, of Peter Brough, per William S. Fletcher, $2420.42 on a note of $2500, given for ninety days, for which I went security. Alex. McDowell.”
    The cause was tried between McDowell and Greenawalt, February 4th 1870, before Rowe, J. The plaintiff gave the note in evidence, and being on the stand as a witness, the note mentioned in the receipt was shown to him, and it was proposed to ask him, “ whether the proceeds of the discounted note, receipted for on the back of the note in suit, were received in payment of so much of the original debt, or as a conditional payment thereof, that is to be in payment when the discounted note should be paid by Peter Brough.”
    The defendant objected to the offer; it was admitted and a bill of exceptions sealed. He testified that the following note was that mentioned in the receipt:—

      “ Ninety days after date we or either of ns promise to pay to the order of W. S. Fletcher $2500.00 without defalcation, value received, payable at the banking-house of Austin, Elder & Fletcher, dated 12th September 1867. Peter Brough and Alexander E. McDowell.”
    He further testified that on the 12th of September 1867, he asked Peter Brough for $5000 which he would need on the 23d. Brough said he could pay $2500 himself, and could raise the balance if plaintiff would endorse for him. On the 23d the money was obtained at Fletcher’s bank on the discount of the above note. “ The money received was to be a credit on the note in suit when the $2500 note was paid by Brough. When we came out of the hank, Mr. Brough said he ought to have credit for that money. I said I didn’t think he had a right to a credit on that note until this other note was lifted; that it did look as if he should have something, but that I was equally bound in the $2500 note with himself. That was all. That was September 12th 1867. I put the receipt for the money on the note in suit the day before I went away, which was 23d September 1867.” * * *
    “ The credit was not put on the note in pursuance of any agreement with Brough; we never spoke of it after we came out of bank that day. I put the credit on because I was about to start West, and was going to leave the note behind, with my son, and I thought something might happen, or that the note might be renewed and kept alive, and there was not much risk.”
    No part of the $2500 note had been paid when the suit was brought, but it had all been paid since. Peter Brough made an assignment for the benefit of his creditors on the 8th of December 1868.
    On the part of the defendant, Greenawalt and J. A. Brough testified that on the 12th of September, Peter had $10,000 or $12,000 worth of property and that neither of them ever had any conversation with the plaintiffs about putting the credit on the note or anything connected with it.
    The defendant’s points were:—
    1. If the jury believe from the evidence, that the plaintiff was in need of money, and for the mutual accommodation of Peter Brough and himself, they procured Wm. S. Fletcher to discount their note for $2500, and the plaintiff without consultation with thé sureties on the note in suit, placed thereon an absolute and unconditional receipt for $2400.42 the proceeds of the $2500 note, this was an extinguishment and satisfaction pro tanto of the note in suit as between the plaintiff and the sureties therein.
    3. If the jury believe the facts as testified to by the plaintiff himself, they constituted in law a suspension of his right of action on the note in suit, to the extent of the credit placed thereon, at least during the period the $2500 note had to run, and to that amount the sureties have a good legal defence in this action.
    4. If the jury believe that the $2500 note was discounted by Wm. S. Eletcher for the accommodation both of Brough and the plaintiff, and the latter received the proceeds thereof and that at the time the present suit was brought, such note was still in the possession of Wm. S. Eletcher, a boná fide holder for value, and was then wholly unpaid, the plaintiff had no right to sue on the original note, until he had lifted the $2500 note.
    5. This case must be decided upon, and governed by what appears on the note in suit, and the legal aspect presented by the paper itself, cannot be explained away by parol proof, and the note showing a receipt to the extent of $2420.42 of its face, is extinguished and satisfied pro tanto, and the verdict can be only for the balance due thereon.
    Judge Rowe charged :— * * *
    “I am unable to instruct you as requested by the defendant, upon any one of his points.
    “ Having disposed of the questions of law as I have done, there remain two questions of fact to be submitted to you.
    “1. Was there an agreement of the plaintiff founded on a sufficient consideration, to give time to the defendant, Brough, the principal in the note in suit? We have already said as matter of law that the acceptance by plaintiff of the proceeds of the discounted note, was not a suspension of his right to sue on the original note so as to release the sureties, and there is no other evidence in the case of an agreement to give time. Such an agreement is to be shown by the defendant affirmatively. He has produced no evidence to that effect.
    “ 2. Was the payment of the $2420.42 by Brough to McDowell, a conditional or an absolute payment ? * * *

      “ If the testimony of Mr. McDowell is believed, the receipt by him of the discounted note was not to be a credit or absolute payment on the $6000 notes unless and until Brough paid the discounted note. It is admitted that Brough did not pay that note at all, but that Mr. McDowell paid it himself. If Mr. McDowell therefore is believed, the payment was only conditional; and never became absolute so as to become a credit upon the note, which is simply saying that a note taken as conditional payment, ceases to be payment as soon as it is dishonored, and the plaintiff being believed, is entitled to your verdict for the whole amount of his claim.”
    The verdict was for the plaintiff for $5442.38.
    On the removal of the case to the Supreme Court by the defendant, he assigned for error the admission of the evidence objected to and the answers to his points.

      J. McD. Sharpe and F. Kimmell, for plaintiff in error.
    The evidence was inadmissible, being to prove an intention not an act— it was not to prove fraud, accident or mistake: Stine v. Sherk, 1 W. & S. 195; Cozens v. Stevenson, 5 S. & R. 421; Sennett v. Johnson, 9 Barr 335; Miller v. Fitchthorn, 7 Casey 252; Miller v. Smith, 9 Id. 386; Hill v. Gaw, 4 Barr 493; Monongahela Navigation Company v. Fenlon, 4 W. & S. 209; McDermott v. United States Insurance Company, 3 S. & R. 604; Iddings v. Iddings, 7 Id. 110; Bollinger v. Eckert, 16 Id. 422. The plaintiff having gone security for Peter, to raise money for his own accommodation and having endorsed it on the note, must he taken to have intended it in satisfaction: Musgrove v. Gibbs, 1 Dallas 216; Richabaugh v. Dugan, 7 Barr 394; Covely v. Fox, 1 Jones 171; Dougherty v. Hunter, 4 P. F. Smith 380; Watts v. Willing, 2 Dallas 100; Heath v. Page, 12 Wright 130. The facts show that the plaintiff gave time to the principal and thus discharged the surety: Clippinger v. Creps, 2 Watts 45; Manuf. & Mech. Bank v. Bank of Pennsylvania, 7 W. & S. 335; Talmage v. Burlingame, 9 Barr 21; Miller v. Stem, 2 Jones 383; Brubaker v. Okeson, 12 Casey 519; Myres v. Wells, 5 Hill 463. The action was suspended until the other note should be paid: Kendrick v. Lomax, 2 Cromp. & Jer. 405; Walton v. Mascall, 13 M. & W. 452; Baker v. Walker, 14 Id. 465; Price v. Price, 16 Id. 232; Fellows v. Prentiss, 3 Denio 518; Putnam v. Lewis, 8 Johns. 389; Gould v. Robson, 8 East 576; Chitty on Bills 442, 100, note A; Bayley on Bills 345, note 1; Hulme v. Coles, 2 Sim. 12; Price v. Edmunds, 10 B. & C. 578; Michigan Bank v. Leavenworth, 28 Vt. 208; Hart v. Hudson, 6 Duer 294; Okie v. Spencer, 2 Wharton 253; Mercer v. Lancaster, 5 Barr 160; Small v. Jones, 8 Watts 265; Burden v. Halton, 4 Bing. 454; Parker v. United States, 1 P. C. C. 267.

      Kennedy & Stewart, for defendant in error.
    The evidence was admissible: Batdorf v. Albert, 9 P. F. Smith 61. The presumption is that the note was taken as collateral security and not in satisfaction: Kean v. Dufresne, 3 S. & R. 233; Weakly v. Bell, 9 Watts 278; Bank of Pennsylvania v. Potius, 10 Id. 150; Oliphant v. Church, 7 Harris 319; Kirkpatricks. Muirhead, 4 Id. 117; Shaw & Leigh v. The Church, 3 Wright 226; Heath v. Page, 12 Id. 130. A bill taken as conditional payment ceases to be payment as soon as dishonored. Price v. Price, 16 M. & W. 231; Dayton v. Trull, 23 Wendell 345.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

This is a suit on a joint and several promissory note, payable to the plaintiff or order, on demand, for $6000, with interest from date, November 28th 1864, and signed by Peter Brough, Samuel E. Grreenawalt, tbe defendants, and John A. Brough, the two latter as security.

Upon this note payments were made of a year’s interest on the 11th December 1865, of another on the 14th January 1867, and of $1399.27 on the 23d September 1867.

Mr. McDowell, intending to go West, wanted some money from Peter Brough, who raised it on the 12th September 1867, by getting their joint and several note for $2500, payable ninety days after date, discounted at the banking house of Austin, Elder & Eletcher, the proceeds being paid over to the plaintiff, amounting to $2420.42.

When Brough paid this note, he was to have credits for the amount on the $6000. This he never did, but the note for $2500 was taken up and paid by the plaintiff, leaving the $6000 unpaid, except so far as the before-mentioned payments reached.

Mr. McDowell said, I put the receipt for the money on the note in suit the day before I went away, which was 23d September 1867.” The receipt was in these words: “ Received, September 12th 1867, of Peter Brough, per William S. Eletcher, $2420.42, on a note of $2500 for ninety days, for which I went security. Alex. E. McDowell.”

Speaking of this, Mr. McDowell said: The credit was not put on the note in pursuance of any agreement with Brough; we never spoke of it after we came out of the bank that day. I put the credit on because I was about to start West, and was going to leave the note behind with my son, and I thought something might happen, or that the note might be renewed and kept alive, and there was not much risk.”

There was nothing in the objection to the admission of the par-ol testimony of the plaintiff to explain the receipt and the attending circumstances, and we think the court were perfectly right in refusing to affirm the defendants’ points, for there was nothing showing any suspension of the right of action on the original note, much less any extinguishment or satisfaction of any part of it. The judge’s charge is clear and satisfactory.

Judgment affirmed.