text:
    Parrish and Hazard’s Appeal.
    1. Where an iron company, for the purpose of increasing the power of their furnace, which had been completed, and in operation for many years, contracted with one firm for a new engine, with another for boilers, drum-heads and fixtures, and with a third for a boiler-stack, all of which were parts of one'design for the improvement of the furnace, and the different firms under these contracts commenced in their several shops the construction of the machinery and fixtures previous to the 16th of July 1872, and the foundation of the boiler-stack was commenced on that day, although none of the machinery or fixtures were finished or put in place until months thereafter, the mechanics’ liens filed by these several firms for the work so done and the materials furnished were properly preferred to that of a mortgage, the lien of which attached on the 17th of July 1872, in the distribution of the proceeds of a sheriff’s sale of the property.
    2. A mechanic’s lien can be supported for such machinery as was here furnished, and the fact that the work was not done on the ground, but at a distance in their shops, does not affect the rights of the claimants.
    3. Where additions made to an old building are substantial, for permanent purposes and made at heavy cost, and are so connected with the original structure as to make their connection as available, essential and direct as if they had been built beside its walls, they are “ additions of material parts” to the original structure, and where they serve in their actual use all the purposes that actual additions would have served, and their extent and value are significant enough to give ample notice to purchasers and creditors of the change in the character of the property, the additions so made, the work and the materials furnished therefor and the machinery placed therein are the subjects of mechanics’ liens, under the provisions of the Act of the 16th of June 1836.
    4. 'Apart from the Act of 1836 the claims of the mechanics’ lien creditors who had furnished the machinery in question can be sustained, under the provisions of the Act of the 21st of April 1856.
    5. It was alleged that the claim of one of the mechanics’ lien creditors was not filed in time, that the last work in pursuance of the contract was done on the 10th of October 1872, and as the lien was entered on the 25th of April 1873, that more than six months had elapsed. It appeared, however, that a charge was added in the bill of particulars on the 29th of October 1872, for fourteen days’ work in “ altering mud-drums,” and that said alteration was the result of a mistake of the company which allowed the claimant for the work: Held, that the lien was for work within the contract, and was filed in time.
    November 16th 1876.
    Before Acnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Fayette county: Of October and November Term 1875, No. 293.
    This was the appeal of Charles Parrish and Fisher Hazard, trustees, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of the Dunbar Iron Oo.
    The case as it appeared from the evidence before the auditor was as follows:—
    On the first day of June 1872, the Dunbar Iron Oo. executed a mortgage to Charles Parrish and Fisher Hazard, as trustees, on all their real estate, to secure the payment of five hundred bonds, yet to be issued — three hundred for $1000 each and two hundred for $500 each, amounting to the sum of $400,000. This mortgage was acknowledged on the 20th of June 1872, and was filed for record on the 17th of July 1872. Upon this mortgage a sci. fa. was issued, tested the 24th of April 1874, and on the 4th of May 1874, judgment was taken sec. reg., and the amount liquidated by the prothonotary at $400,000. Upon this judgment an alias lev. fa. was issued to No. 191, of June Term 1875. To this writ the sheriff made return that he had sold the premises on the 5th day of June 1875, to Charles Parrish and Fisher Hazard, for the aggregate sum of $155,000, who claimed the fund as first lien creditors of the defendant company, &c. To this Brenneman & Ward, Robinson, Rea & Co., and J. M. Riter’s administrators, objected and claimed that they, as holders of mechanics’ liens, were the first lien creditors of said company.
    The premises of the Dunbar Iron Co., sold by the sheriff, had long been known and used as furnace lands. There had been a furnace on them as early as 1794, which was run at intervals till some twenty-five or thirty years ago. In 1862 another furnace was built on the site of the present one. The stack of this was of stone, and the furnace was blown by steam-power. A company was incorporated in 1862, under the mining laws of this Commonwealth, under the name of The Youghiogheny Iron and Coal Company, which, in 1870, by a decree of court was changed to the Dunbar Iron Company. In July 1868, E. C. Pechin, Esq., became the president of the company, and took charge of its affairs. Under his management, a vast system of enlargement and general improvement was soon entered upon, and so far carried out, as to make Dunbar the most complete furnace, in all its appointments, ever erected in Western Pennsylvania.
    In the summer of 1870, the old stone furnace-stack was torn down, and an iron stack, larger and some fifty-eight feet high, was erected on the old foundation. This new furnace blew in on the 6th day of October 1870, and was blown by the old horizontal engine which had been used for the old furnace, and the present old vertical engine. In 1872, the company considering that more power was required than their engines would give, and the president of the company having in view the erection of an additional new furnace, contracted for the boilers, smoke-stack and engine, which are the subjects of the mechanics’ liens claimed. The furnace, with the necessary buildings connected, consist of the iron furnace-stack, about ten and a half feet in diameter, fifty-eight feet high, connected by an iron bridge with the hoisting-house. The hoisting-house is connected with the stock-house. The stock-house is a wooden frame, and on the side opposite from the furnace, and is not enclosed for a distance on that side of twenty-six feet; the remainder is covered with sheet iron; the roof is also of sheet iron. Immediately in the rear of the furnace, and in close proximity to it, are the hot blasts.
    On the opposite side of the furnace from the hot blasts, and at some distance from it, the two engine-houses, pump-house and boiler-house are erected, and are only connected with the furnace by the blast pipes, passing from the cylinders in the engine-houses through the hot blasts into the furnace by flues, to carry the heated gases from the trunnel head of the furnace to the boilers. These flues pass underground from the furnace to the boilers. The casting house is of brick, and is connected with the furnace, and stands on the opposite side of the furnace from the stock-house. The boiler-house is the largest structure, in extent of surface covered, belonging to the furnace. It is located ninety-three feet distant from the furnace, and is only connected with the furnace by a large underground flue leading from the furnace to the boilers to carry the caloric to heat the boilers. This house is constructed thus: there is a stone foundation, twenty feet square of solid masonry, sunk deep in the ground and raised some ten feet above the surface of the ground. On this foundation was erected an immense iron smokestack, ninety feet high and ten and a half feet in diameter. There were built for the boilers to rest upon seven walls, each sixty-seven feet long, from eighteen inches to two feet thick, and from two to three and a half feet high. The outer walls are joined to and connected with the foundation of the smoke-stack. Six boilers are placed upon these walls, and are encased by a brick wall on each side and passing behind at the end of the boilers, connecting with. the smoke-stack. This casing of brick extends to near the top or upper side of the boilers. Some three or four months after the boilers had been set up and in use, a frame building for the sole purpose of covering and protecting the boilers, walls and machinery was set up around and over the boilers. This building or covering is formed by posts set upon stones outside the boiler walls, by girders, plates, rafters, &c., and is weather-boarded from the eaves down as low as the brick wall, except in front of the boilers. In front of the boilers is a shed some eight feet in width, joined to the main frame. The whole is covered by a comb roof made of boards. The new engine-house is located immediately in rear of the old engine-house now in use, and is about the same distance from the furnace-stack as the boiler-house is from the same. It is a frame building twenty by sixteen feet, and is some thirty feet high. In it are the new vertical engine and blast cylinder.
    It was in evidence that at least a week prior to the 16th of July 1872, work had been commenced on the ground for the foundation of the smoke-stack, and that on that day the masonry for it was commenced. The time the work on the ground for the engine house was begun did not definitely appear. On the 5th of April 1872, the firm of Brenneman & Ward, doing business in the city of Pittsburgh, received an order from Mr. Peckin, president of the company, for six boilers, drum-heads and other machinery and materials therewith connected, and on the day following the firm ordered iron for the work, and commenced work on the 29th of April 1872, at their works in Pittsburgh, on the boilers, &c., and continued the work until the 30th of September following, when it was ready for delivery.
    The Dunbar Iron Co. received the work at the depot in Pittsburgh, and had it conveyed to their premises at Dunbar, when Brenneman & Ward set it up and put the boilers in place, completing the same on the 28th of October 1872.
    Eor these boilers, their work and materials furnished, Brenneman & Ward filed a mechanics’ lien, in the Common Pleas of Eayette county, on the 25th of April 1873, for a balance due them of $>2798.45 against all that certain one-story boiler-house or building and machinery and fixtures therein, as well as against the curtilege or land appurtenant, &c.
    William E. Conley and Samuel H. Stewart, administrators of James M. Riter, deceased, filed a mechanics’ lien, on the 19th day of May 1873, on the same smoke-stack, boiler-house, machinery, and curtilege, &c., for the sum of $4146.80 due their intestate, for work and labor done and materials in and about said building, &c. The work and materials furnished for which this lien is claimed was done and furnished between the 1st day of October 1872, and the 30th day of November 1872. By a letter of Mr. Pechin’s received in evidence, it appears that the contract for the stack was concluded on the 10th ,of April 1872. The evidence of Mr. Conley proves that work was commenced on the stack in June 1872; that the stack was delivered on the ground in September following, and was put in place and completed November 30th 1872. Mr. Biter died January 17th 1873.
    On the 6th day of June 1873, Bobinson, Bea & Co. filed a mechanics’ lien, for the sum of $17,562.24 against the same boiler-house, smoke-stack and machinery, and also against the engine-house and machinery. This claim is for fire fronts and other wrork used in and about the boiler-house and for the vertical engine in the engine-house. The work was done between the 24th day of August 1872 and the 21st of May 1873.
    The evidence proved that the work on some of the items in the claimant’s bill was commenced at their shops in Pittsburgh, on the 23d of April 1872, and was continued until about the 30th of October 1872, when the articles were delivered at the depot in Pittsburgh for shipment to the furnace of the company, and were then s'et up by the claimants on the company’s grounds.
    The questions that arose before the auditor were these": Was the property described in these mechanics’ liens such buildings as a mechanics’ lien may be filed against under our Acts of Assembly ? When did these liens attach ? Did th§y relate back to the commencement of the wrork in the shop, on the machinery furnished, or to the time when the work was placed upon the ground, or did they attach from the date of the first work done on the ground ?
    The auditor found that the boiler-house with the boilers and machinery in such a building would sustain the lien, and that the commencement of the masonry for the boiler-stack and the boiler-beds was the commencement of this building, and as the work done and the materials furnished were parts of one general plan and one intended improvement, the commencement of the building, which was on the 16th of July, ante-dated the recording of the mortgage, which was on the 17th of July, and the mechanics’ liens were therefore to be preferred to the lien of the mortgage, and made a distribution of the fund accordingly.
    To this report the trustees excepted, alleging that the work done and materials furnished were simply repairs to an old furnace and were not the subject of a mechanics’ lien, but the court overruled the exceptions and confirmed the report.
    From this decree this appeal was taken.

      Daniel Kaine (with whom were Samuel Dickson and John O.

      Bullitt), for appellants.
    The Act of 16th June 1836, provides that “ every building erected * * * shall be subject to a lien,” &c. All the provisions of the act and its supplements show that by “ building” was meant a substantial, independent structure. The lien covered the ground only as accessory to the building, and after its destruction by fire the lien on the land ceased : The Presbyterian Church v. Stettler, 2 Casey 246; Wigton & Brooks’s Appeal, 4 Id. 161. It may be difficult to decide whether the new structure is a “ building” within the meaning of the act, or only an alteration of an old building, and where the facts are disputed it may be a question for the jury; but the principles by which the question is to be decided are well settled, though the application may be difficult. In Norris’s Appeal, 6 Casey. 122, Sharswood, J., reviews the previous authorities, criticising Armstrong v. Ware, 8 Harris 519, and approves of Judge Kennedy’s phrase, “ the design of its character,” as a test of the character of the alterations.
    In Miller v. Hershey, 9 P. F. Smith 64, Agnew, C. J., says: “ The idea which runs throughout all the cases is newness of structure in the main mass of the building,” and this is reaffirmed in Diller v. Burger, 18 Id. 432.
    Now the work for which these liens were filed was in no sense independent or original. Everything was simply tributary to the furnace as it stood before the work was begun. What was done had no reference to the building by virtue of which these liens have been upheld, but would have been done just as it was, if no such building had been erected. It was not then planned or designed, and was not begun till months afterwards. The character of their work, “the design of its character,” would not have been different in any sense if the new boilers had been put in under an old roof or left without any' cover at all. No independent structure or erection was contemplated, because, except as tributary to the furnace, the repairs and additions were of no value. It is the furnace, as originally constructed, which is “the building,” within the meaning of the law, and the adjacent structures are but incidental to its working. This was the view taken by this court in the precisely parallel ease of Summerville v. Wann, 1 Wright 182. See also Thoma & Blandy’s Estate, 26 P. F. Smith 30 ; and Miller v. Hershey, supra.

    That this was understood by the legislature to be the state of the law is s.hown by the amendment of 1st May 1861, and of 1st August 1868, Purd. 1028, pl. 20, 21, providing for the filing of liens for alterations, additions and repairs, and also by the acts giving liens for fixtures, engines, and other improvements about iron works and mines. These acts would have been, except as to leasehold interests, entirely superfluous if the liens in this case are good.
    It is submitted, therefore, that upon a proper construction of the law, and under the authorities, the improvements made in this case were not the subject of a mechanics’ lien, and even if this boiler-shed could be treated as “ a building,” it was not begun in time to save them. Nelson v. Campbell, 4 Casey 156, relied upon by the auditor, has been pointedly disapprovedi n Diller v. Burger, 18 P. F. Smith 432.
    But if these are valid mechanics’ liens, where do the liens date from ? If the boiler-house, with the boilers and machinery, “ is such a building of itself,” as found by the auditor, or is the subject of a mechanics’ lien, then it is a separate building and is bound by the lien of Brenneman & Ward, who furnished the boilers and fixtures connected therewith. This lien is filed April 25th 1873, “against all that certain one-story boiler-house or building, and machinery and fixtures therein,” &c. The items of the bill of particulars commenced on the 30th day of September 1872, and follow each other consecutively up to and including the 11th day of October 1872. There the bill of particulars properly ends, for the item under date of October 29th, altering inud-drums, fourteen days at $3.50,— $49.00 — was for work done after the work was completed and the articles in place, and was for an alteration made afterwards, and formed no part of the work done or materials furnished.
    The claim of James M. Riter is filed against the same building and machinery as that of Brenneman & Ward, with the addition of including the smoke-stack put up by him. For this it is claimed that the foundation was commenced the day before the mortgage was recorded. Robinson, Rea & Co. claim a balance due them of $17,562.24 for furnishing and putting up the steam-engine and blowing cylinder, and have not only filed this claim against the said engine and blowing cylinder, and engine-house, but against the boilers, &c., covered by the claim of Brenneman & Ward and J. M. Riter, as follows: “ Against all that certain one-story boiler-house or building and the machinery and fixtures thereof, from said boiler house by an alley or passage way.” Now, if this engine-house, with the engine and machinery therein, “is such a building of itself,” as found by the auditor as is the subject of a mechanics’ lien, then it is a separate building and the claim of Robinson, Rea & Co. must be confined to it. They cannot extend their lien over other buildings with Avhich they had nothing to do, separated from theirs forty-two feet.

      Alfred Howell and C. E. Boyle, for appellees.
    If previous to the Act of 1836, a copper kettle or boiler fixed (after its erection) in an additional building used as a brew-house, ivas part of the freehold and subject to the Mechanics’ Lien Law (Gray v. Holdship, 17 S. & R. 413); if the castings used in erecting the steam-engine by which a saw-mill was propelled, were part of the building, and though ordered by the contractor, payment could be enforced against the building, against the engine, and through them against the owners of the land (Morgan v. Arthurs, 3 Watts 140); and if burr mill-stones, like any parts of machinery, were part of the building, and subjects of a mechanics’ lien upon the mill (Wademan v. Thorp, 5 Watts 115); and if by subsequent Acts of Assembly, wharves, curbstones for pavements, gas-fixtures, grates and furnaces were made subjects for its operation, surely it cannot now be denied that boilers, a stack and blowing engine and cylinder, capable of making a furnace turn out forty tons of pig-iron a day, are subject to that law, and entitled to its protection.
    But it is insisted by appellants that there must be a “building” in every case for the lien to attach to, and a new one at that. It cannot be pretended that the word “ building” in the act is to be strictly defined or limited as to size, finish, use, material or cost. A kitchen, a ten-pin alley, a bar-room, a stable, a barn, a saw-mill, rolling-mill, machine-shop, factory, a plank-house, ice-house, a log cabin without cellars, as ay ell as a broAvn stone mansion, and a church can be, and most of them have been made subject to such a lien. Why, then, cannot a boiler-house and engine-house, made as these were, so permanent and durable as to have remained in use ever since, and so permanent and complete for the uses and purposes of their erection, that none others have been required, be also subject to such lien ?
    The case of this furnace is not the case of a factory, mill or shop Avhere there is but one covering over the machinery by which it is to be operated, and Summerville v. Wann, 1 Wright 182; Miller v. Hershey, 9 P. F. Smith 64, and Thoma and Blandy’s Estate, 26 Id. 20, are therefore to be distinguished from this case.
    Our new work and materials ay ere1 not put in or upon any buildings then on the ground, but went into the erection and construction of new buildings — new additions to other AYorks — were parts of a new system of Avorks, all external, for the purpose of blowing the present furnace and another to be erected. That they are subject to the lien is abundantly sustained by the folloAving authorities: Driesbach v. Keller, 2 Barr 77 ; Armstrong v. Ware, 8 Harris 519 ; Gaule v. Bilyeau, 1 Casey 521; Nelson v. Campbell, 4 Casey 156 ; Lightfoot v. Krug, 11 Id. 348 ; Pretz & Gausler’s Appeal, 11 Id. 349; Harman v. Cummings, 7 Wright 322; Hershey v. Shenk, 8 P. F. Smith 382.
    We contend also that the Act of the 21st of April 1856, Pamph. L. 496, applies to this case, and extends the Act of 1836 to certain accessions to buildings, including machinery in and about mills, of any kind, &c. It is contended, therefore, that, in any vieAY of the case, we were entitled to a lien on the real estate to Avhich accessions had been made by our work and materials, which became part and parcel of it, under Avhatever name or description, and whether there was a building or not. The liens AYere filed in time, the machinery was in process of construction in the shops of the different contractors, in the spring of 1872; and the fact that they were commenced there and not on the ground cannot affect the liens: Singerly v. Doerr, 12 P. F. Smith 9; Hinchman v. Graham, 2 S. & R. 170.
    But if what constitutes the commencement of the building, as fixing the dates and priority of our liens, is similar in all cases of erections, viz., “the first labor done on the ground,” we have satisfied its requirements. The excavations for the foundations of the boiler-stack and boilers were commenced at least one week before the mortgage to the appellants was recorded, and the building of the foundations was commenced on the 16th of July 1872, one day before said mortgage was recorded.
    It is objected that' the claim of Brenneman & Ward was not filed in time, because the last item proper in their bill of particulars is on the 11th of October 1872. This is clearly a mistake. For fourteen days after that date, and up to October 29th 1872, they were at work on the ground altering the new mud-drums, which were too long at one end. They took, the heads out and cut them off, and then fixed the heads in. This was owing to a mistake by. the company in the drawing they gave to make them by, and they were not fit for use nor finished till this work was done and materials were furnished.
   Mr. Justice Woodward

delivered the opinion of the court, May 7th 1877.

When the contracts were made under which the claims of the mechanics’ lien creditors are asserted in this proceeding, the furnace of the Dunbar Iron Company had been completed and in operation for many years. No work in the way of erection or construction had been done subsequently to 1870, when a furnace stack of stone had been torn down, and one of iron put up in its place. In the spring of 1872, the company requiring more power than the engines they had in use afforded, determined to introduce new machinery. Contracts were accordingly made with Robinson, Rea & Co. for a vertical engine ; with Brenneman & Ward for six boilers and their connected materials and fixtures; and with James M. Riter for a boiler-stack. For the balances remaining unpaid for the work done under their contracts the liens of these creditors were filed.

On the 5th of June 1875, the real estate of the Dunbar Iron Company was sold by the sheriff of Fayette county, by virtue of a levari facias in a judgment on a mortgage executed to Charles Parrish and Fisher Hazard as trustees, to secure bonds to be issued by the company to the amount of $400,000. The mortgage was dated the 1st day of June 1872, was acknowledged on the 20th of that month, and was recorded and became a lien on the 17th of July 1872. The trustees purchased the property at the sheriff’s sale for $155,000. As bonds amounting to about $300,000 had been negotiated and were outstanding, the whole fund was claimed on distribution to be applicable to the mortgage-debt. The auditor to whom the claims of the parties were referred, appropriated the money to the extent of the balances due on the mechanics’ lien to their payment, and his report was confirmed by the Common Pleas. At the argument here, the right of the appellants to the amount thus appropriated was asserted on various grounds, and their views were pressed by their counsel with great vigor and great ability. The principal point urged was that the work done añd materials furnished by the appellees were not, by any fair construction of the statutes, subjects of mechanics’ liens.

It is very clear that the value of the furnace property was largely enhanced by the machinery and fixtures which the Dunbar Company obtained under their contracts with the lien creditors. The account . of Robinson, Rea & Co. amounted to $24,745.95 ; that of Brenneman & Ward to $9148.45 ;• and that of Riter to $473’6.80. It is very clear also that the structures supporting, enclosing and covering the machinery Avere put up substantially, for permanent purposes, and at heavy cost. The enclosing buildings were not erected for some months after the work of the appellees was completed, but they were necessary to the perfection of the general plan of the improvements and for the protection of the engine and boilers and their fixtures. The extent and importance of the structures may be shown by a condensation of the description of them in the audit- or’s report. The foundation of the new engine was solid masonry, ten feet square and six feet in depth. The house enclosing it, which Avas erected at the distance of about ninety-three feet from the furnace, was framed, weather-boarded, Avith windows in it, covered by a comb roof and thirty-five feet high. The boiler-house Avas built at about the same distance from the furnace as the engine-house. The two buildings Avere about forty-tAvo feet apart. The foundations of the boilers Avere seven Avails, each sixty-seven feet long, from eighteen inches to two feet thick, and from two to three and a half feet high. Brick walls were built on the stone foundations to the height of six feet, extending nearly to the tops of the boilers and enclosing them. Some three or four months after the boilers were set up, a frame building to cover and protect them Avas erected. It Avas supported by posts set on stones outside the boiler Avails', Avas strengthened by girders, plates and rafters, was weather-boarded from the eaves down to the brick wall, except in front of the boilers, and had a comb roof of boards. The iron boiler-stack, ninety feet high and ten and a half feet in diameter, Avas built on a stone foundation twenty feet square, deeply sunk in the ground, and raised ten feet above the surface. Extended and expensive as these improvements- were, it becomes an interesting as Avell as an important inquiry Avhether these creditors, Avhose contributions to the value of the Dunbar Company’s property have been so material, are within or Avithout the protection of laAvs which secure compensation to mechanics for their labor and property employed in the erection of buildings under all ordinary contracts.

Under the facts found by the auditor there is no room for doubt that all the improvements made were contemplated from the outset, and were all parts of one settled original design. Robinson, Rea & Co. began work on the engine at their shops in Pittsburgh on the 23d of April 1872, under a contract entered into previously. The order for the boilers, drum-heads and fixtures was received by Brenneman & Ward on the 5th of April, and they commenced their work on the 29th. Riter’s contract was entered into on the 10th of April, and the stack was begun sometime in the following June. "At the date of the record of the mortgage, therefore, all these parties were employed in the execution of their contracts.

As has been stated, the mortgage became a lien on the 17th of July 1872. When the first work was done on the ground did not precisely appear before the auditor, but the masonry for- the foundation of the boiler-stack was begun on the 16th of July. There was evidence that at least a week earlier excavations for the foundation had been commenced. The location for the boiler-stack and boilers had been fixed as early as the 6th of July, for the written contract with E. Gr. Lincoln for the masonry ivas made that day. It was decided in Pennock v. Hoover, 5 Rawle 291, under the Act of the 17th of March 1806, that the commencement of a building was the first work done on the ground for the foundation, as part of the work suitable and necessary for. its construction. By this rule, the erection of these structures was begun at least as early as the 16th of July 1872, one day before the mortgage ivas recorded. It is true that excavations for the engine were delayed until September,-but that work was merely a continuation of the work begun in July, and was part of the entire scheme of improvements that had been planned and matured in April. The notice given by breaking the ground for the boiler-stack was notice of all that ivas intended to be done in carrying into effect the details of a single enterprise definitely projected and arranged. All the structures were upon the furnace property ; all were to serve the purposes of the furnace ; all the c.ontracts had been made ; and the machinery had been in the course of construction nearly three months when the first masonry was laid. Inquiry by the trustees or by bondholders would have led to the disclosure of the whole scope of the improvements the company had in contemplation. And the duty of such inquiry was created by the work visibly done for the commencement of the buildings. If the claimants had a right to liens at all for machinery furnished for such detached and subsidiary use as theirs was applied to, they were entitled to them from the 16th of July 1872 ; they had precedence of the trust-mortgage not then recorded; and the claim for the engine was recoverable equally AYith the claims for the boilers and the boiler-stack.

That such machinery as was furnished here was of a kind for which, in the ordinary case of .an erection, a lien could be supported, is well established. A lien was sustained for a copper boiler in a brew-house in Gray v. Holdship, 17 S. & R. 413; an engine by which a saw-mill was propelled in Morgan v. Arthurs, 3 Watts 140; and for burr mill-stones in Wademan v. Thorp, 5 Watts 115. The fact that the work was done mainly in Pittsburgh shops, does not affect the rights of the claimants. It was said by Agnew, J., in Singerly v. Doerr, 12 P. F. Smith 9, that “steam and machinery have revolutionized the manner of building houses. Much of the work formerly done by hand at or near the building is now done at the mill.” It was held that if work is done for and on the credit of the building, it makes no difference where it is done.

. But it was strongly urged on the argument that these liens were filed against machinery and fixtures only ; that the buildings were mere appurtenances to the furnace, in which admittedly no change was made ; and that under both the letter and the spirit of the Acts of Assembly the liens cannot be maintained. In expressing the opinion that these were such structures as would support the claims, • the auditor said that, detached and separated from the' furnace, they would be comparatively valueless; but he added that “ the liens must attach incidentally in such cases to so much of the land and other structures as is necessary for the use and enjoyment of the same for the purposes for which these buildings were intended.” This statement of the law is in accordance with rules settled by this court where structures have been added ato or rebuilt. Do those rules apply to detached buildings such as these ? In Nelson v. Campbell, 4 Casey 156, the facts as stated in the opinion of the judge who decided it were, that “ Nelson had a tavern-house on one corner of his lot, and a stable on the corner diagonally opposite ; and he enlarged the house by adding new buildings on the other two corners, which enclose two sides of the original house, and are united together.' Now if this lien is to be enforced against the ground occupied by the new buildings and the yard belonging to them, the defendant’s lot is cut into three pieces, and his house and stable are totally separate, and both left without a yard. Besides this, the new buildings include his dining-room and kitchen, and both pairs of stairs of his house.” The points ruled were, that it is not necessary that a new building erected should be distinct from and independent of older buildings in order to sustain a lien for work done and materials furnished towards its erection and construction ; that the lien in such cases attaches oo the whole building and so much of the ground of the owner adjoining as is necessary for the use and enjoyment of the building for the purposes for which it was designed; and that the amount of land claimed need not be designated, as the parties are not bound, nor the extent of the land that will pass by a sale affected, by that set forth in the lien filed, and the parties may have that designated by commissioners appointed by the court before sale. .Nelson v. Campbell has been repeatedly quoted as authority in later cases, and the remark of Agnew, J., in Diller v. Burger, 18 P. F. Smith 432, that it was a “very peculiar case,” and that “it can scarcely become a precedent,” did not express, and was not intended to imply disapprobation of the conclusions it reached. In Lightfoot v. Krug, 11 Casey 348, a kitchen one story high attached to a main building of two stories, was declared to be an erection to authorize a mechanics’ lien. In Pretz & Gausler’s Appeal, 11 Casey 349, a three-story- brick hotel had been erected in 1853. A three-story brick kitchen, adjoining to and communicating in each story with the main building, was erected in 1857. A mechanics’ lien against the kitchen AYas sustained. The same rule was applied in Harman v. Cummings, 7 Wright 322, where a wing of seventeen feet front had been added to a dwelling of tAventy-five feet front. The exceptional case of Landis’s Appeal, 10 Barr 379, AYould probably have been differently decided as to the neAY back building that had been erected there, if Judge Coulter’s opinion could have been written in the light of the later cases. That a substantial addition of material parts, or re-building on another and larger scale, although parts of the old are preserved and incorporated in the new, is a rule recognised by Sharswood, J., in Hershey v. Shenk, 8 P. F. Smith 382, as having been settled by Driesbach v. Keller, 2 Barr 77 ; Nelson v. Campbell, supra, and the authorities that have followed them.

It was argued on the part of the appellants, hoAvever, that the cases quoted applied only to instances in which the principal building had been added to or rebuilt. As mere appurtenances to the furnace, these structures AYere said to bear the same relation to it that ordinary out-houses bear to an ordinary dwelling, and under that relation to be not subject to mechanics’ liens. If the premises AYere true, the conclusion Avas perhaps Avell draAvn. In the decisions on this point there has been some uncertainty and confusion. In Werth v. Werth, 2 Rawle 152, a claim Avas filed against a barn for work done on it alone, and this court held that the lien was to be confined to the building and the land covered by it, with the necessary means of enjoying it in the usual way. In Burt v. Kurtz, 5 Rawle 246, a claim was filed against a dwelling-house, rope-house, rope-Avalk and stable, and Avas allowed. In Hoatz v. Patterson, 5 W. & S. 537, a lien AYas claimed for erecting a furnace, casting-house, stables and houses necessarily appurtenant thereto, and no objection on that ground was made. In Lauman’s Appeal, 8 Barr 473, the claim was against a two-storied dwelling, Sayíss barn, wagon-shed, wood-house, Avash-house, smoke-house and ice-house on a farm. The right to the lien was not contested. The only question was whether it was a case for apportionment. It was held that it was not, as the buildings were to be “ considered as a whole, incapable of separation without injury.” On the other hand, in Barclay’s Appeal, 1 Harris 496, where a claim was filed for work in the erection of a building “ and appurtenances,” the court held the claim bad, and said: “ An appurtenance may be a yard, an alley, a cistern, a conduit-pipe, an ice-house, a smoke-house, a privy, a stable or other out-house, distinct from the principal building mentioned in the Avritten claim, and consequently not Avithin the purvieAV of the lien laAvs.” But whatever may be the rule of larv as to ordinary out-houses, it is believed to be inapplicable to the buildings against Avhich these liens AArere filed. The engine-house and boiler-house became parts of the furnace the moment they were completed. They were connected with it by blast pipes and flues, and'the connection Avas as available, essential and direct as if they had been built beside the furnace walls. In the language of the decisions, they were “additions of material parts” to the original structure. They served in their actual use all the purposes that actual additions would have served, and their extent and value were significant enough to give ample notice to purchasers and creditors of the change in the character of the property. The decision of the auditor and the decree of the court beloAV in support of these liens under the provisions of the Act of the 16th of June 1836, Avere not only in accordance with the general principles dedueible from the cases that have been collected, but vindicated by the very rules which those cases have established.

Apart even from the statute under Avhich those rules have been settled, they are still capable of such an application as to sustain these claims. The Act of the 21st of April 1856 extended the provisions of the Act of 1836 and its supplements as fully as the same were applicable to buildings, to every steam-engine, coal-breaker or parts thereof, pump-gearing, hoisting-gearing, and fixtures and machinery in or about mills of any kind, iron or coal Avorks, coal mines and iron mines. In Summerville v. Wann, 1 Wright 182, it Avas held that the neAV act did not introduce any neAV principle into the lien laAv; that it specified the objects for which, and not on Avhich, a lion might be had; and that it did not authorize liens for Avork and materials done and furnished in the alteration and repair of an old building, but only extended the provisions of the Act of 1836 to certain things or accessions for which claims might be filed. The particular point ruled was, that a lien could not be supported against a mill, which Avas itself left unaltered, for neAV machinery put in to replace old machinery taken out. Of the propriety of the ruling there can be no doubt. The obvious reasons for it were clearly stated by the present Chief Justice, in Miller v. Hershey, 9 P. F. Smith 64. After referring to Driesbach v. Keller, 2 Barr 79; Landis’s Appeal, 10 Barr 379; Armstrong v. Ware, 8 Harris 520, and Norris’s Appeal, 6 Casey 127, he said: “ The idea which runs through all the eases is newness of structure in the main mass of the building — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new building some of the old pai’ts may have entered. This newness of construction must be in the exterior, in the main plan of the building, and not in its interior arrangements. This was decided in Summerville v. Wann. There appears to be a good reason for this not only in the fact that the external walls constitute the strongest mark of its identity, but also in the notice that the external change furnishes to purchasers and lien-creditors.” No such reason as this can possibly require the ^application of the rule of Summerville v. Wann to the new structures of the Dunbar Iron Company. There was “newness of construction” throughout. They were large, massive, and of course visible. No purchaser and no creditor could possibly be deceived. It was said by Mr. Justice Strong, that the Act of 1856, as a supplement to the Act of 1836, should be construed in reference to it. There is equal necessity that the general tendency of the cases that have illustrated the elder act should be kept in sight in the construction of the supplement. Even regarding the buildings as ordinary outhouses, the same process of reasoning that supported the lien against the additions to Nelson’s tavern in Nelson v. Campbell, the liens against the kitchens in Lightfoot v. Krug, and in Pretz & Glausler’s Appeal, and the lien against the new wing in Harman v. Cummings, requires that the liens against the engine-house and boiler-house of the Dunbar Company should be supported. The new structures were accessions to the existing property largely increasing its productiveness as well as its intrinsic value. The rights of the claimants were clearly defined, and were capable of enforcement in forms and on principles established by this court. The claims were filed for the machinery against the machinery and the buildings by which it was enclosed. They should be allowed by a construction of the law that is within its very letter, that is believed to be within the very view of the legislature in enacting it, and is in direct accordance with rules by which the provisions of the Act of 1836 have been construed and applied.

To the authorities principally relied on by the appellants brief reference on]y is required. In Norris’s Appeal, 6 Casey 122, the plan of a building was changed and enlarged during its erection. It was held that liens for work done after the change was made related to the date of the alteration on the ground. Miller v. Hershey, supra, decided that repairs and alterations which did not fairly change its exterior into a new structure, did not confer a lien. In Diller v. Burger, 18 P. F. Smith 432, after a brewery had been erected, an addition to it was built. Liens for machinery for the brewery were filed more than six months after its completion, but less tban six months from the completion of the addition. The court below submitted to the jury the question whether both buildings were originally intended to be one, directing a verdict for the plaintiff if they found it had been so intended, and for the defendant if they found otherwise. The judgment was affirmed. In Thoma & Blandy’s Estate, 26 P. F. Smith 30, after a furnace had been completed and put in blast, it was blown out on account of defects in its plan and construction. Money was raised on mortgage, and the existing mechanics’ liens, except one, were paid. Other work was done in changing the construction and building new kilns. The building was held to have been finished at the date of the mortgage, and liens for work after that daté were postponed. It is not apparent how anything contained in these .authorities ought to control the decision of this controversy.

The claim of Brenneman & Ward was especially objected to at the argument on the ground that it was not filed in time. The last work in pursuance of the contract was alleged to have been done on the 11th of October 1872,.and as the lien was entered on the 25th of April 1873, it was insisted that an interval of more than six months had gone by. A charge was added, however, in the bill of particulars on the 29th of October 1872, of $49 for fourteen days’ work in altering a mud-drum.” The auditor made no report on this subject, but Levi Brenneman, in his testimony, said: “ The item charged October 29th occurred in this way — we had a drawing to make the drums by, and the draughtsman had made a mistake in the draft; they were too long at one end; we took the heads out and cut them off, and then fixed the heads in again. This being the company’s mistake, they allowed us for the work.” It would seem that the item was for work within the contract, and the objection that the lien was not filed in time was without foundation.

Decree affirmed at costs of appellants, and appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Vandergrift & Forman’s Appeal.
    1. Leaseholds of land ahd buildings on leaseholds are not “ goods and effects,” within the meaning of the Act of the 13th of June 1836, Pamph. L. 585, relating to the service of foreign attachments, and therefore where the sheriff treated such property as personal property, and returned that he had taken it into his actual custody, and in serving subsequent foreign attachments, did not go again to the property, but simply endorsed the writs, and served a summons on the garnishees, such service did not comply with the requisites of the act.
    2. The court below ruled that the leaseholds having been seized on a preceding attachment, the sheriff was not required to go again to the property itself to serve the subsequent attachments; that he had it in his custody already, and as in case of levy it was only necessary to endorse the writs, and that service on the tenants and garnishees completed the attachments: Held (reversing the court below), that this was not such service as was contemplated by the act.

      3. One who contracts to drill an oil well, and to furnish tne tools, ropes, fuel, &c., to he used in the drilling, can file a mechanics’ lien against the well for the work so done and the materials furnished, under the provisions of the second section of the Act of the 7th of March 1873.
    November 17th 1876.
    Before Agnew, 0. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 205.
    This was an appeal from the decree of the court confirming the report of the auditor appointed to distribute the fund arising from the sale of the interest of W. W. Perkins in certain oil leases, oil wells, fixtures, machinery, &c., connected therewith, under two writs of fieri facias issued by Yandergrift & Forman.
    The facts, in the main controversy before the auditor, are fully set forth in the opinion of this court.
    The only other question passed upon by this court was as to the right of D. C. Boyle to file a lien under the Act of March 7th 1873 (Pamph.'L. 219). The claim of Boyle was for a balance on a-contract for drilling the U. P. Well. The contract was made in the month of March 1873, wherein Boyle was required to drill said well to the oil-bearing rock, furnishing tools, ropes, and fuel for the drilling of the same, for the sum of $3400. He commenced work on the 24th of March 1873, and completed the well on the 14th of June following, and received.on said contract $2462.91, leaving a balance of $937.09 unpaid, for which he filed his lien. The other claimants to the fund objected to the allowance of this claim, because Boyle was a contractor and therefore could not file a lien under the Act of 1873.
    The auditor allowed the claim, and the court below (Bredin, A. J.,) sustained the allowance.

      Dodd Lee, Ash Sterrett, McJunhin Campbell, for appellants.

      Charles M Candless and John M. Thompson, for appellees, except D. C. Boyle, for whom John M. Miller appeared.
   Mr. Justice Woodward

delivered the opinion of the court, January 2d 1877.

Yandergrift & Forman, execution creditors of William Wallace Perkins, on the 13th and 15th of October 1873, procured levies to be made on the defendant’s property, which was sold by the sheriff on the 2-lst day of the same month. Except a lot of household goods in Fairview borough, which produced at the sale $108.50, the property consisted of undivided interests in five leaseholds in the township of Fairview, and two leaseholds in the township of Concorcl, with one or more producing oil wells and the usual engines, engine-houses, machinery and fixtures upon each. The aggregate sum of $9951.50 was realized by the sale. Before the auditor appointed to distribute the fund, the main controversy arose between the execution creditors and the plaintiffs in numerous foreign attachments against Perkins, issued and alleged to have been served on the 3d and 6th of October 1873. The sheriff returned in each case that he had taken into his actual custody the leasehold estates with the oil wells upon them and the appurtenant buildings and fixtures. In the case of John M. Thompson the return set forth: “ I have also summoned T. B. Clark, H. W. Timblin, Allen Wilson and Vanorman as garnishees.” In the cases of Brooks & Co., W. II. McPherson, W. II. Timblin, Alexander McPherson, H. F. Westerman and Timblin and Clark, the only garnishee summoned was W. H. Timblin. In Allen Wilson’s case, the garnishees were Allen Wilson, Greorge V. Forman, J. J. Vandergrift and the Eairview Pipe Line and Vandergrift & For-man Pipe Line consolidated. It was not shown in any one of the cases that the garnishees held under the defendant. The record shows that no actual service was made. But the court below held that as the leaseholds had been seized and placed in the custody of Allen Wilson under foreign attachments against A. W. Russell on the 10th of September 1873, “the sheriff was not required to go again to the property itself; he had it already, and as in case of levy, required only endorsement on writs, the service of summons on tenants and garnishees completed the attachment.” It Avas alleged at the argument by the counsel for the appellants that the facts Avere misconceived by the court so far as they related to the “ U. P. Well,” Avhich produced at the sale $3550, and the “ Toronto tract” which produced $2550, neither of them having been-seized under the attachments against Russell. In one of the suits — that of John M. Thompson — -judgment Avas taken for want of an affidavit of defence on the 30th of October 1873. In all the others Mr. Thompson appeared as the attorney of the defendant on the 16th of December 1873, and' with the consent of the attorneys for the plaintiffs, confessed judgments to the plaintiffs in sums due to be liquidated by the prothonotary. $290.94 were distributed to the judgment of II. T. Westerman, which is shown by the record to be' still unliquidated; $162.57 Avere distributed to Allen Wilson’s judgment, in Avhich a feigned issue has been awarded and is still pending. On these facts the court beloAV decreed the fund to the plaintiffs in the attachments to the exclusion of the execution creditors.

Objection was made by the appellants to the distribution to the attaching creditors on the ground that the Avrits had not been legally served, and no lien, therefore, had been acquired. Upon the assumption that the property seized, being chattels real, were such personal property as the legislature contemplated in enacting the 48th section of the Act of 13th of June 1836, the service of the writs was sustained by the court below as a substantial compliance with the statutory requirements.

The provision made by the 48th section for the service of a foreign attachment is as follows : “ The officer to whom such writ shall be directed shall go to the person in whose hands or possession the defendant’s goods or effects are supposed to be, and then and there declare, in the presence of one or more credible persons of the neighborhood, that he attaches the said goods and effects.” By the 49th section of the same act, it is directed that the execution of the attachment shall be as follows: “ If the attachment be levied on houses, other buildings or lands, it shall be the duty of the sheriff to leave a copy of the writ with the tenant, or other person in actual possession, holding under the defendant, and summon him as garnishee. ’ ’ Provision is made subsequently in the section for the attachment of a rent charge as a second class of real estate, and of other incorporeal hereditaments as a third class. For present purposes, the real estate subj ect to the operation of a foreign attachment are ‘ ‘ houses, other buildings or lands.” The personal property liable to seizure must consist of goods or effects.” The terms employed by the legislature in these two sections are exceptional and peculiar. The omission of the word “ chattels” in the 48th section is significant. Throughout the act relating to executions, passed the same year with the act relating to the commencement of actions, which includes- the provisions for foreign attachments, the words “ goods and chattels” are used in describing and referring to personal property. More than that, the form of the writ prescribed by the 43d section of the Act of the 13th of June 1836, provides for the attaching of the defendant “by all and singular his goods and chattels, lands and tenements.” The change in the phraseology could not have been undesigned. The 50th section directs that the officer shall proceed to secure “ the goods and effects” of the defendant “ if susceptible of seizure or manual occupation.” To bring leaseholds of land and buildings on leaseholds within a description implied in the words “goods and effects,” wrould require a construction that would be forced and strained. Their meaning is free from all ambiguity or doubt, whether used in a popular, a lexicographical, or a legal sense. The word “goods” is always used to designate wares, commodities and personal chattels. The word “ effects” is the equivalent of the word movables. With the same obvious purpose in view, the 49th section defines the real estate which shall be subject to the operation of the statute to be “ houses, other buildings or lands.” In the case of a house or other building upon either a leasehold or a freehold, if a tenant or other person is in possession, holding under the defendant, the writ must be served on him. If no person is in possession, the writ must be advertised. There were buildings on all the leaseholds against which these attachments were issued, and persons were in possession who were returned by the sheriff as having been summoned. But the record does not show that they were tenants, or held under the defendant. Indeed, the returns were avowedly made upon the assumption that it was personal property that had been seized, for a taking by the sheriff into his actual custody was alleged. Such a return to a fieri facias would be unsustainable. It was held in the Novelty Iron Works’ Appeal, 27 P. F. Smith 103, that a leasehold, being a chattel real, can be seized and sold only as real estate, not as personal goods capable of transportation; and that the levy upon it can be only by description of the realty out of which it is carved. In delivering the opinion of this court, Gordon, J., said that “ a lease of land, during the term, is as fixed as the iand itself, for it can only be used upon the land out of which it arises. It is nothing more or less than a right to use the freehold for the term mentioned in the lease. It is therefore an estate in land.”

That property of the character of that which was here attached could not safely be held liable to actual seizure and manual occupation, is a proposition that demands no elaboration. The defendant had an undivided interest in these leaseholds. Their management required the employment of clerks and laborers, contracts for machinery and supplies, the transportation of the products of the wells, and the keeping of complicated accounts with producers, carriers and partners. Such disputes respecting ownership as are alleged to be existing here could readily arise. The effect of the establishment of a rule by which the decree of the court below Avould be sustained, could readily be conceived upon large manufacturing establishments erected upon leased lands, such as sugar refineries, distilleries, iron furnaces and rolling-mills. If the sheriff, under a writ against the owner of an undivided interest, could take such structures into his “actual custody,” and provide for and control their business during the pendency of a protracted litigation, the Foreign Attachment Act would become the surest and swiftest possible means of insuring the ruin of the proprietors and the destruction of the business. And in no case that could be supposed would disaster be more certain and more utter than in the case of such property as that out of the sale of which this fund was raised.

Nothing Avould be gained by an inquiry into the validity of the service of these attachments, if the property against which they were issued had been personal Avithin the meaning of the statute. It is enough to say that they were not legally served against “houses, other buildings or lands.” The consequence of the defect is obvious. The lien provided by the 51st section of the act was not created for the benefit of the plaintiffs. In a per curiam opinion in Hays v. Gillespie, 11 P. F. Smith 155, it was said that, “in so severe a proceeding as a foreign attachment, Ave cannot doubt that the prescribed form of serving the writ must be strictly pursued.” And in a note to that case, the opinion of Sharswood, P. J., in Lambert v. Challis, in the District Court of Philadelphia, was reported, where it was decided that the property attached could not be held when the service was defective.

The conclusion thus reached upon the main question in issue between the appellants and the attaching creditors, obviates the necessity for an examination of the merits of the subsidiary points presented by the record.

A fair construction of the second section of the Act of the 7th of March 1873, would seem to justify the appropriation that was made to D. C. Boyle’s mechanics’ lien. The text of the section is, “All persons doing work for, on or about the erection, construction or repair of any engine, engine-house, tanks, derrick, building, machinery, wood or iron improvement, erected, constructed or repaired upon any leasehold estate, or for boring, drilling or mining on said lease or lot for the development or improvement of the same, whether such labor is or may be done by the day, month or year, or by contract for the tenant or tenants, lessee or lessees of such iot or lease of parcel of land, or for their use and benefit, shall have a lien upon the personal property and-fixtures on said lot or lease of ground, and upon such lot or leasehold itself for the price and value of such work and labor.” Boyle’s work was done under a contract. Partial payments had been made, and the auditor gave him the residue. The statute directs that “ the price and value” of the work shall be the measure of the laborer’s right of lien, and here this price and value were fixed by the contract which the act in terms protects.

Decree reversed at the costs of the plaintiffs in the foreign attachments, and record remitted for re-distribution in ' accordance with the conclusions of this opinion.


author: Chief Justice Agnew Paxson, J.

text:
    Meyers versus The Commonwealth.
    1. In an indictment for murder, where the defence was insanity, it was error in the court to instruct the jury that they must be satisfied beyond a reasonable doubt that the prisoner was insane at the time the act was committed.
    2. This instruction was too stringent and threw the prisoner upon a degree of proof beyond the legal measure of his defence, which measure is simply proof that is satisfactory; such as flows fairly from a preponderance of the evidence.
    3. Query, as to how far a doubt in the mind of the Supreme Court of the existence of an intention to kill will, under the Act of 15th of Februarv 1870 (Pamph. L. 15), known as the Schoeppe Act, be a ground of reversal.

      4. Per Agnew, C. J.: Where a jury, who hear the witnesses and observe their conduct, take the darker view and believe the intent to kill existed, and in this view are sustained by the court below, it is a nice question how far the views of the Supreme Court of the evidence should prevail to grant a new trial.

      5. Per Paxson, J., concurring: It is the duty of a judge trying a man for his life to charge fuliy upon the law as applicable to the facts, without regard to points presented by counsel. The rule that a judge is not to be convicted of error for what he omits to say, ought not to be applied to a capital case. The prisoner has a right to have the jury properly instructed upon every question of law legitimately raised by the evidence, and this right he cannot waive, nor can his counsel do so for him.
    November 20th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1876, No 257.
    Indictment of Frederick Meyers, for the murder of Augustus Dorn, alias “ United States Baker.”
    On the evening of the 29th of February 1876, as alleged by the Commonwealth, at a saloon on the corner of Third Avenue and Market street, in the city of Pittsburgh, kept by the prisoner, the latter thrust a poker, heated to “white heat,” into the groin of Dorn, and thence upwards into his abdominal cavity, from the effects of which he died about two weeks thereafter.
    The defence was, 1st. That, on account of the excessive and protracted use of intoxicating liquors and the taking of poison, the defendant was insane at the time of the commission of the act; and, 2d. That, having in view the circumstances of the case, the relations existing between the parties, the mental condition of the defendant, and the absence of motive, the crime had not the ingre- ■ dients of murder in the first degree.
    At the trial the following facts were disclosed:—
    That Meyers, at the time of this fatal occurrence, was the keeper of a drinking saloon on Third Avenue, in Pittsburgh, and living with him were two women, a bar-tender and Dorn, who, in the language of one of the witnesses, “ did chores about the house for what he got to eat and drink.” Both Dorn and Meyers had been in the habit of drinking to excess; and during the whole of the day on which he received the injury, Dorn was in a sort of stupor, induced by drinking; while Meyers was suffering from the combined effects of a recent attack of mania potu, the contents of a bottle of rat poison which he had taken with the evident intent to destroy his life, and from repeated indulgence in whiskey throughout the day.
    About 9 o’clock in the morning of the day the injury was inflicted, Meyers came out of his room into the saloon, and charged Dorn with having stolen his watch and chain, and said something about sending Dorn “to hell or across the river,” (meaning the penitentiary), if he did not return them;' to which it appeared Dorn, who was very drunk, said little in reply, but shortly after-wards gave the watch to the bartender. Neither party seemed to have been in anger, and the matter appeared to have been dropped finally, when Meyers ceased talking about it.

      When the trouble about the watch was over, Dorn laid down on a bench in the saloon and went to sleep, while Meyers returned to his room. Dorn, it appeared, went out several times through the day, evidently, as his condition indicated, for the purpose of getting more liquor; but Meyers remained in his room, coming out once to get a drink, until about 3 o’clock in the afternoon, when he .came into the saloon, and sat down at a table to play “ casino,” for the drinks, with one of the women, Meyers winning the game, and taking whiskey for his drink. While engaged in the game, Dorn sat down by the table and took up the woman’s cards, when Meyers told him to lay them down, and upon his refusal to comply, threw the water in his glass, but seemingly not in anger, in Dorn’s face, who in turn betrayed no anger, said nothing, and quietly remained sitting in his chair.
    At the conclusion of the game Meyers returned to his bed, and stayed there until about 7 o’clock in the evening, when he came into the saloon again, and approaching Dorn, who was lying on the bench, told him to “get up,” which Dorn did by sitting upright on the bench. Meyers then yent to the stove, and picking up the fireqDoker, stuck it in a hole in the lower part of the stove, where he let it remain until the point was heated to a white heat, when, drawing it forth and flourishing it around, and, in the words of one witness, “ fooling around and laughing,” he advanced towards Dorn and made a thrust at him, with the fatal effects above mentioned. Dorn made no resistance nor outcry, and sat still on the bench, no one apparently thinking he was seriously hurt, until a few minutes afterwards, when one of the women hearing something, as she told it, “ like a hydrant running;” upon examination it was discovered to .be the blood of Dorn dripping through his pantaloons upon the floor. Meyers, after the thrust at Dorn, laid the poker down in the. coal-box, took another drink, and went back to bed. Shortly thereafter he returned to the saloon, when one of the women said, “Fred, we had better go for a doctor,” and he replied, “It is of no use,” but afterwards gave her money to buy a plaster to staunch the blood. He then helped to carry Dorn into an adjoining room, and laid him on the floor, and once more returned to his bed. Dorn was removed to the homeopathic hospital, where he died on the 16th of March 1876. The physician of the hospital testified that the poker had penetrated about two inches, and had it not been bent it would have “gone more downward and not upward,” and not have penetrated the abdominal cavity, and the injury inflicted would have been less severe.
    In support of the theory that defendant was insane, it was shown that he had had a recent attack of mania a potu; that only two days before he injured Dorn he had purchased two bottles of rat poison, and drank the contents of one bottle; that he continued to drink immoderately even after he had taken the poison from which he was suffering — one witness testifying that he took seven or eight drinks on the day of the homicide.
    A number of witnesses testified that they believed Meyers was insane previous to and on the day of the homicide, in consequence of this excessive indulgence in strong drink and the taking of the poison, and as confirmatory of this belief gave evidence of his acts and declarations.
    There was evidence also that, just before his death, Dorn had said to two witnesses, “ Ered has done awful bad; but I don’t think he would have done it if he had been in his right senses; had it not been for the poison and drinking; that Ered was only fooling with him; that he was crazy after he took that poison.”
    In rebuttal, the Commonwealth proved a number of the acts and declarations of the defendant at the time of the homicide, and the arrest of the defendant, to show that Meyers was of sound mind, and had sufficient intelligence to comprehend his situation and endeavor to evade the officers of the law; among other things declaring, “You have no right to arrest me except you show me a warrant.”
    The court, Kirkpatrick, P. J., in his charge to the jury, said:—
    “ Murder at the common law is defined and described to be, when a person of sound memory and discretion, unlawfully kills any reasonable creature in being, and under the peace of the ■ Commonwealth, with malice aforethought, express or implied. The distinguishing feature and criterion of murder so enumerated and defined is malice aforethought. Murder, therefore, at common law, embraces cases where no intent to kill existed, but where the state or frame of mind termed malice in its legal sense prevailed.
    “ By the Act of 31st March 1860 of our legislature, however, it is declared that ‘ all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committéd in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder of the second degree.’
    “ The intention to hill, in all of the very many cases which have been decided under this clause of the statute, has been universally held to be the very gist and essence of the offence. If that intention is wanting, therefore, there can be no conviction of murder of the first degree. All murder, therefore, which is not of the first degree, as suggested and defined by the statute, is necessarily of the second degree, and includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty, and fatally bent on mischief; but where no intention to hill exists, or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to hill can be inferred or collected from all the evidence in, and circumstances surrounding the case, the verdict must be murder of the second— or it may be even of a lower degree. Manslaughter is defined to be the unlawful killing of another without malice, express or implied; which may be voluntarily, in a sudden heat, or involuntarily, but in the commission of an unlawful act. Yoluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this: manslaughter is never attended by legal malice or' depravity of heart — that condition or frame of mind before spoken of, exhibiting wickedness of disposition and recklessness of consequence or ‘ cruelty. Being sometimes a wilful act (as the term voluntary denotes) it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore, to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting — if there be provocation without passion, or passion without a sufficient, provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.

      “ Insulting or scandalous words are not sufficient cause of provocation, nor are actual indignities to the person of a light and trivial kind. Whenever the act evidences a deadly revenge, and not the mere heat of blood; whenever it is the result of a devilish disposition, and not merely the phrenzy of rage, it is not manslaughter, but murder.

      “ Having thus stated the law of the crime, and noted the distinction between the different grades of felonious homicide, let us very briefly and as clearly as we can, suggest the law of the evidence having application in cases such as you are here and now called upon to determine.
    “ And first it may be stated as a general rule, that all homicide is presumed to be malicious, that is, murder of some, degree, until the contrary appears in evidence. Therefore, the burden of reducing the crime' from murder to manslaughter, where it is proved that the prisoner committed the deed, lies upon him. He must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to the milder degrees and kinds of homicide, unless, indeed, where the facts already in evidence show it. So, too, as in this case, where the prisoner claims not a lower degree of homicide only, but an absolute acquittal, he must show all the circumstances by way of excuse upon which he relies to bring about such a verdict, and the burthen of satisfying you that he is entitled to such a verdict, rests upon him; where, as in this case, the killing, and the killing by the prisoner, are equally and both alike admitted.
    “ Let us, however, not be misunderstood. Although the homicide, without the circumstances of alleviation or excuse, is presumed to be murder, it is not presumed to be murder of the first degree. The presumption against him rises no higher than murder of the second degree, until it is shown by the Commonwealth to be murder in the first degree.
    “ When death ensues, as in this case, from the use of a deadly weapon, the jury must scan closely the conduct of both parties, their former relations and behavior, and the current of events as they transpired; the character of the weapon, the manner of its use, and all of the cii’cumstances attending it; and by a careful survey of all the evidence, and a conscientious judgment and appreciation of all the facts and circumstances disclosed by the testimony, endeavor to arrive at the true motive and cause which prompted the fatal blow. In coming to a conclusion in this regard, you will take into consideration each and every of the circumstances connected with, surrounding and having bearing upon the homicide, and in any way tending to shed light upon its perpetration.
    “ But it is claimed that the prisoner at the bar should be acquitted by reason of inscmity at the time of the perpetration of the act; that, by reason of previous habits of dissipation long indulged in, and further, in consequence of poison taken by him some days before, and from the effects of Avhich he had not fully recovered, his reason was dethroned, his judgment gone; that he had no control of his will and of his actions at the time, and so was wholly unconscious of this or any other act done by him; in a word, to put it in plainer phrase, he was not accountable for anything done by him at the time the homicide was committed.
    “ What then is ‘ insanity,’ and more especially that which in the judgment of the law is a sufficient defence to shield this prisoner from the effects and consequences of his crime ? Let us inquire; and to this inquiry, so vital to the prisoner and so pregnant with results, I beg your especial attention and most careful and conscientious observation and judgment.
    “ Insanity — in, not — and sound — sound or sane — is the lack of, or the opposite of, sanity; or, as technically and philologically defined, ‘the state of being unsound in mind, derangement of intellect, madness. Insanity is chiefly used, and the word is applicable to any degree of mental derangement, from slight delirium or wandering, to distraction.’ One so conditioned mentally at the time of the commission of a crime, is held in law, as he is in morals, irresponsible, and can no more be convicted and punished for his offence than the child of ténderest years, or the lunatic confined by the walls of an asylum. The justice and humanity of this proposition are obvious. Applied practically to the case upon trial — if the prisoner at the bar, at the time of the perpetration of this admitted homicide, Avas insane, or so deficient in mental capacity as to be unable to form an intent to take life, he cannot be found guilty of murder of the first degree, or indeed of any offence under this indictment, and is entitled to an acquittal at your hands, by reason of such insanity or mental weakness.
    “ At the threshold of these instructions, upon this branch of the case, it is proper that I should say, as I do, and then to call your especial attention to the remark, that though the laAV in its charity very properly always presumes men innocent until they are proved guilty; yet it is also a presumption, essential to the safety of society as well as founded in experience, that every person is of sound mind until the contrary appears from the evidence; and the unsoundness of mind must be established by the defendant satisfactorily to the jury. The burden is upon him to establish this fact.

      “ The laAY of this state is that, Avhere the killing is admitted, as in this case, and insanity or Avant of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify the jury in acquitting upon that ground.
    “ The laAV presumes sanity Avhen an act is done, if no insanity is shoAvn by the evidence; and Avhen it appears a man Avas sane shortly preceding the act and shortly after, the presumption of sanity exists at the time of the act, and no jury have a right to assume otherwise„.unless the evidence in the cause and the evidence in connection Avith the act fairly convinces them that the defendant Avas actually insane at the moment the act Avas committed.
    “ And here let me enumerate briefly, as I do, the circumstances upon Avhich the CommonAvealth relied to convict. It is claimed by the Commonwealth that this man, from the time that he got out of the workhouse until the evening of the perpetration of this terrible act, was sane; that his every conduct evidenced entire sanity ; that he transacted his daily business. It is claimed further, as I gathered it as I listened to the argument of the learned district attorney, as I Avas preparing these instructions, that upon the Saturday previous the defendant was attending to his business as usual; he had mind to send for a barber to come and shave him by the man he aftenvards killed; that the barber came on the Tuesday following and shaved him; that he directed the barber to shave his barkeeper ; that upon the afternoon of that day he sat down with the girl ‘ Jennie’ to play a game of casino ; that he was sufficiently himself — sufficiently up in his game to play his cards successfully, and to accomplish her defeat; and to join her in taking a drink ; and this, too, a short time previous to the killing; that he had sense enough, in order to perpetrate this offence, to put the poker into the hole of the stove, to heat it by the fire to a ‘ Avhite heat,’ and to thrust it into the groin or person of the deceased; that he • was sane enough when called upon by the officers, in the first place, to demand a warrant, and then to declare that he would not go unless he was taken and carried, and then to declare that he would not go at all; and to declare that he would shoot the ‘ son of a bitch’ that would arrest him ; and then when brought to his notice that he must go — previously being in his stocking feet — he had sense enough to put on his slippers and go, &c. From all these circumstances it is insisted that the defendant Avas sane at the time of the perpetration of the act. To this the defendant ansAvers, through the mouth of his witnesses, and it is urged upon you Avith great zeal and ability by his accomplished counsel, that he had, prior to this thing, been drinking to excess : that for months before that, from the time that he separated from his wife, he had given himself up to bad habits ; that from the time he came out of the workhouse he was drinking to excess ; that some íayo or three days previously he had taken poison, and from the effects of this and the drinks he had taken afterAvards, he had not recovered; and that he Avas not in a condition to know Avhat he was doing at the time. And as further evidence in that regard, they put these girls upon the stand, not as experts, but as giving their views of his mental condition. They call men who Avere in the cell with him, and they call other men to testify to his conduct and his- manner; from all of Avhich they ask you to infer that at the time of the perpetration of the act this man Avas insane. As to his conduct in the cell, it will be for you to say whether it Avas simulated or whether it was real. It will be remembered by you that Leigh detailed his conduct in the cell to you, how he sat down and told him about his troubles; the story about how he Avas committed, and cried about it. [These things Avill all enter into your deliberations in making up your minds as to his sanity, bearing in mind that the killing by the prisoner being admitted, the duty devolves Upon him to clear himself of the killing, to satisfy you beyond a reasonable doubt that he was insane at the time the act was committed,.] And in deciding upon this case, or upon any material pai't of it, such as the alleged insanity of the prisoner — which is the most material part of it — it is your duty to give the prisoner the benefit of any reasonable doubt arising out of the evidence which might prevent you from coming to a satisfactory conclusion. But this doubt — I call your attention to this — must fairly arise out of the evidence, and not be merely conjured up as a figment of the imagination. Jurors greatly mistake their duty Avhen they go in search of a doubt outside of the evidence in the case. They have no right to raise a mere fanciful or ingenious doubt, to escape the consequences of an unpleasant or painful verdict. It must be an honest, it must be a conscientious doubt; such a doubt as Avould cause an ordinary, prudent man to hesitate ; such a doubt as would fairly strike a conscientious mind and cloud the judgment. When the law supposes a reasonable doubt, it does not mean that you are to speculate as to whether a matter is established by the evidence to your satisfaction, and might not have been otherwise; it means that you are to take nothing for granted upon mere assertion; and it means further, that when you honestly hesitate' upon a question whether certain evidence establishes certain propositions when at the truth, and cannot come to a satisfactory conclusion as to the existence of a certain fact or not, as to its effect, then the doubt belongs to the prisoner at the bar. The difficulty, the reasonable doubt, as we have said, must be suggested by the cause itself, by the evidence incident to it, and not by the imagination of the jury. If the beam waver, then the doubt is thrown into ,the defendant’s scale; but the jury must not so hold the beam as to cause it to tremble either in favor of the Commonwealth or of the defendant.
    “ [Returning again to this defendant’s insanity, I again, and in one word, remind you, and impress upon you what I have already said, that where, as in this case, the killing by the prisoner is admitted, and insanity is alleged by way of defence, it is his duty to satisfy you, and the labor is upon him to convince you, that insanity, madness, actually existed at the time of the commission of the crime; and a doubt as to such insanity will not justify you in acquitting the prisoner upon that ground. If he has so satisfied you, if he has so convinced you beyond a reasonable doubt, such doubt being of the kind and of the character we have already discussed and defined to you, then the prisoner is not responsible for anything that he might have done] and is entitled to a verdict of acquittal at youv hands; but if, upon the other hand, he has not so convinced you and satisfied you, he should be convicted in such form, and in such degree as you, in the exercise of your best judgment and most conscientious deliberation, think just and right under all the evidence which has been submitted to you. With the consequences of your verdict you have nothing to do. Those who take up the sword, as we have it upon high authority, must perish by the sword, and he who sows the wind need not be surprised if he should reap the whirlwind. The defendant, and not the Commonwealth, has made the bed upon which he lies to-day; and if the bed is so short that he cannot stretch himself, or if it is so long he cannot cover it, it is the fault of the prisoner, and not of the Commonwealth. Should you be of the opinion that the man is not insane, that he was sane at the time of the perpetration of the act; but if you should be of opinion that he had no intent to kill, which is the essence, which is the very heart of murder, if he was not guilty of wilful, deliberate, and premeditated killing, and still sane, then you can find him guily of murder in the second degree, if you think it right under the evidence. Or still lower — if you think the evidence does not warrant that you can find him guilty ■ of voluntary manslaughter, giving to the prisoner, as I have already said, the benefit of every reasonable doubt. As, for example, if you have a reasonable doubt that he had an intention to kill; that his conduct did not evidence wilfulness, deliberation, and premeditation, then you should find him guilty of murder in the second degree. If, coming still further down, you find his conduct did not indicate such a degree of crime, and you have a reasonable doubt about it, then you should find him guilty of voluntary manslaughter ; and [if, as I have already stated, you find him wholly irresponsible, if he has satisfied you beyond a reasonable doubt, a conscientious doubt arising out of the case, that he had no moral sense, that he was, in plain phrase, a madman at the time of the perpetration of the offence, then he should be acquitted of all crime, and you should so note the fact, and acquit him upon the ground of insanity].”
    The jury, after they had retired, asked for further instructions as to what constituted a reasonable doubt, and the court repeated that portion of the foregoing charge in relation thereto.
    The jury found the prisoner guilty of murder in the first degree.
    The defendant moved for a new trial, which was overruled and sentence of death was pronounced upon the prisoner.
    The defendant then took this writ, and among the errors assigned were: 1. The whole charge of the court as above. 2. Especially the particular portions of the charge included in brackets. 3. That under the evidence in the case the defendant was not guilty of murder in the first degree.

      John Coyle and William Reardon, for plaintiff in error.
    The main question raised by the specifications of error is what amount of evidence is required to establish the defence of insanity in Pennsylvania. We respectfully submit that this question is well settled in this state.
    In the case of the Commonwealth v. Ortwein, 26 P. F. Smith 420, Stowe, J., affirmed by this court, says, a The law presumes sanity, but this presumption may be shaken or absolutely destroyed in some cases by the acts connected with and accompanying the commission of a crime. But before you acquit upon such ground, the evidence, whether arising out of such circumstances or from independent circumstances, must be sufficient to do more than merely raise a doubt as to the prisoner’s insanity. It must be sufficient fairly and reasonably to satisfy you of the fact of such insanity. The law does not require proof to an extent to preclude a reasonable doubt of such insanity, but it should be such as to satisfy you from the preponderance of testimony that the prisoner was insane at the time of the killing. See also, Lynch v. The Commonwealth, 27 P. F. Smith 205; Brown v. The Commonwealth, 28 Id. 122.
    If then the doctrine in Pennsylvania be, as we insist it is, that a defendant who relies upon the defence of insanity must prove it by the preponderance of testimony, the court below, in this case was certainly in error when they instructed the jury substantially, that where the defendant relies upon the defence of insanity, he must produce evidence to satisfy and convince the jury to an extent to preclude or shut out a reasonable doubt of his sanity; in other words, he must satisfy a jury beyond a reasonable doubt that he is insane.
    The following cases also sustain the same doctrine laid down in the ease of Ortwein v. Commonwealth, supra; Commonwealth v. Eddy, 7 Gray 583 ; Loeffner v. The State, 10 Ohio St. 598 ; People v. McCann, 16 New York 58 ; Commonwealth v. Mosler, 4 Barr 264.
    And we contend that under all the evidence in the case (even admitting that there was not sufficient proof of the defendant’s insanity), that the defendant was not guilty of murder in the first degree, as there was an entire absence of motive or intent to take life.
    N. A. Montooth, District Attorney, for the Commonwealth,
    contended that the prisoner was of sound mind, and elaborately presented the views referred to by the court below in their charge when narrating the circumstances upon which the Commonwealth relied for conviction.
   Chief Justice Agnew

delivered the opinion of the court, January 2d 1877.

There is one error for which the sentence in this case must be reversed. It appears in several parts of the charge, leaving no doubt as to the meaning of the learned judge who presided at the trial. It must, therefore, have impressed the minds of the jurors. Without specifying each instance, it may be summed up in a single statement, that the judge instructed the jury, that they must be satisfied beyond a reasonable doubt, that the' prisoner was insane at the time the act was committed. This statement is too stringent and throws the prisoner upon a degree of proof beyond the legal measure of his defence. That measure is simply proof which is satisfactory — such as flows fairly from a preponderance of the evidence. It need not be beyond doubt. A reasonable doubt of the fact of insanity, on the other hand, is not sufficient to acquit upon a defence of insanity. This has been held in several cases : Ortwein v. Commonwealth, 26 P. F. Smith 414; Lynch v. Commonwealth, 27 Id. 205 ; Brown v. Commonwealth, 28 Id. 122. Sanity being the normal condition of men, and insanity a defence set up to an act which otherwise would be a crime, the burthen rests upon the prisoner of proving his abnormal condition. But the evidence of this need be only satisfactory — and the conclusion such as fairly results from the evidence. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner; and this proof should be considered satisfactory. In cases of conflicting evidence the preponderance must govern, there being no other rational means of decision. But if we say in such a case it must be satisfactory beyond a reasonable doubt, it is evident the expression implies more than a mere preponderance. It is difficult to define the precise difference between the two measures, yet we are conscious in our own minds that to be convinced beyond a reasonable doubt is a severer test of belief than to be satisfied that the preponderance falls on that side. Probably the true reason of the difficulty in defining the difference lies in the inability to define a reasonable doubt. A reasonable doubt must be an honest and conscientious difficulty in believing, one not merely subtle or ingenious — it must arise out of the evidence, and not be fanciful, or be conjured up to escape consequences. It must strike the mind with such force as to compel it to pause in yielding belief. These are characteristics, but do not define the measure of belief, which is beyond a reasonable doubt. The judge stated well all these characteristics, and yet in conclusion said, by way of illustration of his meaning, If the beam Ayaver, then the doubt is throAvn into the defendant’s scale; but the jury must not so hold the beam as to cause it to tremble either in ’favor of the Commonwealth or the defendant.” Now, if we apply this illustration of the reasonable doubt which operates to acquit a prisoner, to the evidence of his insanity, and say that his proof of the fact shall be beyond a reasonable doubt, and if the beam wavers, it is to be found against his defence, we discover that it implies a -higher degree of proof to establish the defence of insanity than the laAv warrants. It must be not only satisfactory, but be satisfactory beyond a rear sonable doubt. The beam must not waver when preponderating to the defendant’s scale, but it must go down quickly. It seems to us, therefore, that this expression, so often repeated to the jury, must have impressed them with a belief that a high measure of proof of the insanity of the prisoner Avas required. The distinction may appear nice, yet we must not overlook the effect of language upon common minds, Avhen the stake is life. Justice cannot suffer it to be imperilled beyond a just measure of belief in those Avho are the triers. Common minds do not analyze accurately the degrees of belief, or the nature of the doubts which affect it. We think, therefore, there was error in stating the degree of belief in regard to the defence of insanity too strongly. .

This conclusion renders it unnecessary to decide the question Avhether “ the ingredients necessary to constitute murder in the first degree were proved to exist.” We would avoid the inquiry in this case, because it raises a new and difficult question under the Act of 1870, commonly called the Schoeppe Act; that is to say, how far a doubt in the mind of this court of the existence of an intention to kill will be a ground.of reversal. We have held, in the case of Grant v. Commonwealth, 21 P. F. Smith 495, that when the ingredients of murder in the first degree are proved to exist, the power of this court to grant a new trial ceases. But there may be cases — and perhaps this is one of them — where the facts, from which the intention to kill (the principal ingredient in murcler of the first degree) may be inferred, are so doubtful that different views of their operation may be taken. Where a jury, who hear the witnesses and observe their conduct, take the darker view, and believe the intent to kill existed, and in this view are sustained by the court below, it is a nice question how far our views of the evidence should prevail to grant a new trial.

We abstain from indicating any opinion on this question ; yet it is not amiss to suggest, as there must be a new trial, that a careful inquiry should be made how far the facts disclose any intent to take life. The intent to do grievous bodily harm was clear, and the prisoner’s frame of mind was undoubtedly malicious, and hence the case was one of murder. But whether the prisoner intended to take the life of the deceased is not so clear. The place at which he aimed the heated poker, viz., the groin, and not at a vital organ, and the direction the poker would have taken, to wit, downwards, instead of into the abdomen, had not the end of the poker been bent, and the entire conduct and demeanor of the prisoner before and after the occurrence, altogether are circumstances which may not convince the mind of an actual intention to take life, while they lead to a conclusive belief of an intent to do great bodily harm.

But, for the error heretofore stated, the sentence is reversed, and a venire facias de novo awarded.

Paxson, J.

I would reverse this judgment upon the ground of the inadequacy of the charge. I hold it to be the duty of a judge trying a man for his life to charge fully upon the law as applicable to the facts. And this without regard to the points presented by counsel. The rule that a judge is not to be convicted of error for what he omits to say, unless his attention is called to the subject by a point or request to charge, is well enough in civil cases, but ought not, in my judgment, to be applied to a capital case. The prisoner has a right to have the jury properly instructed upon every question of law legitimately raised by the evidence. This right he cannot waive, nor can his counsel do so for him. In this case the charge was wholly inadequate. This was probably owing to the fact that the prisoner’s counsel mistook their line of defence. They relied to a great extent upon the ground of insanity. Upon this point there was no evidence worth submitting to the jury. There was nothing to show that general insanity which dethrones reason and relieves from legal and moral responsibility. But there was abundant evidence of that condition of partial insanity produced by excessive drinking, which, Avhile it is no excuse for crime, is nevertheless sufficient to prevent the formation in the mind of that deliberate intent to kill, which is of the essence of murder of the first degree. In other words, the defence Avas insanity instead of intoxication. Of the former there was no evidence: of the latter there was abundant. The points put by the prisoner’s counsel referred to insanity, and the learned judge charged elaborately upon this branch of the case. His rulings, Avhether correct or otherwise, had-no application to the facts. The defence set up having utterly failed, I am not surprised that the jury convicted of the capital offence. Had the laAV, as applicable to intoxication, been properly submitted to them, it is possible they Avould have comdcted the prisoner only of murder of the second degree. It is not necessary to elaborate. I concur cheerfully in the judgment.