text:
    Muncy Borough School District versus Commonwealth ex rel. Witter et al.

    1. What is a reasonable time within which to present a draft or bill for paynfent is a question of law to be determined by the court under the circumstances of the case.
    2. To purchase school bonds, W., on September 10th, sent a draft on J. O. & Co., making it payable to the order of “ School Board, Muncy.”_ The board at a special meeting on September 13th received the draft and in the absence of the treasurer ordered the bonds to be issued on payment of the draft. Upon his return, on the 16th, the draft was delivered to the treasurer after bank hours, and on the 17th was sent by him, properly endorsed, for collection, to his bank at W., eleven miles distant on the road to Philadelphia. On account of a delay in the mail the bank did not receive the draft until the evening of the 18th. On September 20th the draft was presented to J. O. & Co., in Philadelphia, for payment and protested, they having failed on the 18th of September. In a proceeding by mandamus to compel the issue of the bonds, Held, that the respondents were guilty of no laches in the presentation of the draft, and that the delay under these circumstances was not unreasonable.
    3. It is not free from doubt whether mandamus was the proper remedy, and it may well be questioned whether the board were authorized to purchase drafts or commercial ’paper and issue the bonds of the school district in payment therefor.
    June 6th 1877.
    Before Agnew, O. J., Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.

      Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 45.
    This was a petition for a mandamus by A. C. Witter, H. F. Witter, his wife, by the said A. C. Witter, and George L. Peck, which, in substance, set forth, that on the 5th of April 1870 an Act of Assembly (Pamph. L. 880) was approve’d, authorizing the directors of Muncy borough school district to borrow money, issue bonds and to sell real estate, and that on the 1st of March 1873 (Pamph. L. 349) a supplement to said act was approved, by which said directors were authorized to borrow money and to issue bonds therefor, and to pay interest on such bonds, not exceeding 8 per cent, per annum, payable semi-annually; that on or about the 1st of September 1873 the board of directors of said school district, being desirous to borrow money, as authorized by said act, a negotiation was entered into between J. H. Hooker, one of the board of school directors, and the relators, which resulted in an agreement to loan to said school district the sum of $1000, or thereabouts, for which the relators were to receive bonds of said school district to the amount thereof, payable in five or six years, with interest at the rate of 8 per cent, per annum; that the relators, in pursuance of said arrangement, purchased, on the 10th of September 1873, a draft for $1100 from Pomeroy & Brothers, bankers, of Troy, Bradford county, Pa., on Jay Cooke & Co., bankers, of Philadelphia, and payable to the order of “ School Board, Muncy, Pa.that on the same day, to wit, September 10th 1873, said draft was forwarded by mail to said school board, and that by due course of mail the same would have reached Muncy borough the same evening or the next morning; that said school board did receive the same prior to the 13th of September 1873; that there was a meeting of said board on the said 13th of September 1873, at which meeting it was voted, inter alia, that bonds be issued to George L. Peck for $500, to A. C. Witter for $500, and to Mrs. A. O. Witter for $100, and that they furnished the money in the aforesaid proportions for said draft; that said draft was duly endorsed by the board and sent by said board, or by the officers thereof, to Philadelphia, at some time between the 13th and 20th of September; that it was not presented for payment to the banking house of Jay Cooke & Co. till the 20th of September; that said Jay Cooke & Co. suspended payment on the 18th day of September 1873, at noon; that there are, and were at the said time, through daily mails from Muncy borough to Philadelphia; that the said draft was perfectly good when received by the said board of directors, and had the same been presented for payment within a reasonable time it would have been paid; that in consequence of the laches of said school board in not presenting said draft for payment till the 20th September 1873, the same was protested for non-payment, and was returned to the said board of directors, and by the said J. H. Rooker to the relators at Troy aforesaid; that they refused to receive the same, and again returned it to said Rooker, demanding the bonds; that it was then returned by mail to the relators, and that the same is held by them for the use of said school board, and whenever they will take the same it will be delivered to them; that said board of directors have neglected and refused, and still do neglect and refuse, to execute and deliver to the relators the bonds to which they are entitled for the money loaned as aforesaid; that under the authority and the facts stated it was incumbent upon said board of directors to issue said bonds, and a refusal to do so was a breach of ministerial duty, for which they were answerable to the court, and by which breach of duty the relators were greatly injured and had no specific legal remedy therefor; and they prayed, therefore, that a mandamus might issue to compel the issue of said bonds.
    An alternative mandamus was granted, to which defendants made return, by demurring to the petition on the grounds that, there was no loss or injury sustained by the relators for which there was not an adequate remedy at law, nor any act or omission on the part of defendants for which mandamus was the proper remedy; that the treasurer of the school district, one of defendants, had no authority by virtue of his office to contract for the sale of bonds, nor to sign nor issue them, and that said directors could issue bonds only in consideration of money actually received.
    The return then set forth that said defendants on the 13th day of September 1873, during a session of the board of directors of said school district of the borough of Muncy, which, was not a stated meeting thereof but a special meeting, not called for the purpose of considering any application for bonds to be issued to the plaintiffs, or for any purpose of negotiation with them for a loan to be made by them, or any of them, to said defendants; and no such object having been stated by the president -of said board at the opening of the session and put on the minutes of said session, a check was laid before the said board by John H. Rooker, acting for the plaintiffs ; that it being represented to the board at the said special meeting, that plaintiffs desired bonds to be issued to them for the amount of the check aforesaid; and the said check not being drawn payable to the treasurer of the said board of school directors of Muncy borough, or to the board itself by its corporate name, but as well to the board of the directors of Muncy township as of Muncy borough, it was ordered by the board that bonds be issued to the plaintiffs, at and upon the payment to their treasurer of the money named in the said check, and to date only from the date of such payment of said check; and said bonds were not otherwise authorized or directed by said board to be issued and delivered to the said plaintiffs, as will appear in the copy of said minutes hereto annexed :—
    “ Mr. Rooker stated that three of his friends at Troy, Pa., desired to invest in our school bonds, and that he had received from them for that purpose a draft on Jay Cooke & Co., of Philadelphia, for $1100, drawn by Pomeroy & Pro. of Troy. After remarks by several members, secretary was instructed to issue a bond of $500 in favor of George L. Peck, another of $500 in favor of Amos C. Witter, and one of $100 in favor of H. F. Witter, 4all of Troy, Bradford county, Pa., as desired by Mr. Rooker, to date from payment of said draft. Board adjourned to 17th instant.”
    That the treasurer was not present at this meeting on the 13th, was away from home and did not return until the evening of the 16th of September, when the draft was delivered to him, and that he endorsed it and forwarded it by the next morning’s mail, which was the first mail, for collection, to a bank at Watson town, eleven miles from Muncy on the way to Philadelphia, where said treasurer did his banking business, and the said bank, in the usual course of business, and without delay, forwarded the same to .their correspondents in Philadelphia; that said draft in its transmission by mail was in some manner delayed and did not reach the bank at Watsontown until 6 o’clock of the evening of the 18th of September 1873, upon which day Jay Cooke & Co. failed. That the draft ivas presented to Jay Cooke & Co., on the 20th for payment and was protested for non-payment.
    The relators demurred to this return and the respondents joined therein.
    The court, Gamble, P. J., in an opinion said:—
    “ The draft was accepted by the respondents, in form payable to their order, was endorsed by them, payable to their treasurer, presented for payment and protested at their instance; they are therefore, the proper legal parties to a suit against the drawers. The drawers are bankers, and understood to be abundantly responsible. The only known question touching their liability, is this identical question of laches, not on the part of the relators, but on the part of the respondents. To that issue the respondents must be the legal, and are the appropriate parties in interest, rather than the relators, who had neither the right, the duty, nor the responsibility of the presentation. Under such circumstances, should the respondents be allowed to refuse to issue the bonds, and also refuse to collect the draft? We cannot think so, and propose, so far as we have the power, to require them to do one or the other.
    “We have already shown, that in the absence of express proof to the contrary, the legal presumption is, that the draft rvas delivered and received in payment and satisfaction for the bonds, and that there is no such proof in this case. The relators have therefore at least a prima facie right to demand and receive the bonds, and there is a corresponding duty resting on the respondents to issue and deliver them. This not only warrants, but makes it the duty of the court, we think, to award a mandamus, especially as we can restrain and control its execution, so as to afford time and opportunity to the respondents to bring suit for the collection of the draft, and thus determine the controversy by the result, be it what it may.
    “ If the money is collected, that ends the controversy, or if they fail to recover judgment on account of their own laches, the result would be equally conclusive. Thus by one trial between the appropriate parties, we finally settle the main and probably the only issue necessary to settle in this case.
    “Judgment must, therefore, be entered upon the demurrer to the respondents’ answer against the respondents and a peremptory mandamus awarded.”
    The entry óf this judgment was the error assigned by respondents, who took this writ.

      Henry Johnson, for plaintiff in error.
    Mandamus is not the proper remedy. The respondents had authority to issue bonds for money loaned, but this did not authorize them to receive a draft in the stead of money.
    Upon the question of laches what is reasonable delay depends upon circumstances and upon time, mode and place of receiving the draft: Story on Prom. Notes, § 491, n. 3; Schofield v. Bayard, 3 Wend. 488; Newark Banking Co. v. Second National Bank of Erie, 13 P. F. Smith 404.

      B. S. Bentley, R. P. Allen and J. M. Gamble, for defendants in error.
    To be deprived of the remedy by mandamus the remedy at law must be full and complete: Hamilton v. Councils of Pittsburgh, 10 Casey 496 ; Bank of Kentucky v. Schuylkill Bank, 1 Parsons 191, 220; Bank v. Adams, Id. 541; Kirkpatrick v. McDonald, 1 Jones 393.
    Laches is the only question of controversy in the case.
    [Mercur, J. — Do you think the question of laches can be determined in this proceeding for a mandamus ?
    Agnew, C. J. — Is there any rule that fixes the time in which to demand payment, or is not the rule that the holder shall demand payment or make presentment in reasonable time ?]
    Laches are to be determined by the particular circumstances of each case, and we contend that due diligence was not used here. Schofield v. Bayard, 3 Wend. 488, is a case in point. In that case the bill was payable in London and the holders sent it to Liverpool. As is alleged in the case at bar, by a mistake in the mails the bill was not received in London in time. Savage, C. J., in delivering the opinion of the court, says: “ This presents no impossibility if due diligence had been used. The plaintiffs should not have sent the bill to Liverpool at all. It is true that after the letter containing it had been left at Liverpool it could not have reached London in season; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool, they should have sent it to London, and then it would have been in season and probably paid.”
    [Agnew, C. J. — Schofield v. Bayard would be a parallel case if the draft had been sent to New York instead of by direct route to Philadelphia.]
    The case of the Newark Bank v. The Second National Bank of Erie, 13 P. F. Smith 404, cited by the plaintiff, was a case in whiph a travelling agent purchased a draft for the purpose of taking it with him as a matter of security instead of bank notes, as is very often done. The bank understood this when they sold him the draft. He made short delays on his return home, which was in accordance with his business, and all which was well understood by the bank, and the very gist of the case is that the bank had no reason to suppose that the draft would be sent by any other means than by the agent himself, as he should return to his home in his ordinary mode of travel and business. But that is not our case. Neither Pomeroy Brothers nor the relators could have imagined any such delay as there was, nor were they bound to. Draft was drawn on the 10th, received by the respondents on the 13th, and did not reach Philadelphia till the evening of the 19th — an unreasonable 'delay which prevented its presentment before the failure of the drawees.,
    June 11th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The plaintiffs having demurred to the return made by the defendants to the writ of alternative mandamus we must regard all the facts properly pleaded in said return as admitted. It appears that at a special meeting of the board of directors of the school district of the borough of Muncy, held at about six o’clock on the afternoon of Saturday, September 13th 1873, the draft of Pomeroy Bros., of Troy, Pa., dated September 10th 1873, on Messrs. Jay Cooke & Co., of Philadelphia, for $1100 was presented. The draft was to the order of “ School Board, Muncy, Pa.,” and it was represented to the board that the plaintiffs desired bonds of the school district issued to them for the amount of said draft, in proportion to the amounts respectively contributed by them to the purchase of said draft; whereupon it was ordered that bonds be issued to the plaintiffs upon the payment of said draft; and to date from said payment. This is the averment of the return, and it is corroborated by the minutes of the board, which state that the bonds were “to date from payment of said draft.” We cannot infer in the face of this return, and the minutes referred to, that the board accepted the draft as cash; their power to do so may well be questioned. The Act of Assembly authorizing them to borrow money and issue bonds therefor on the credit of the district would hardly authorize them to purchase drafts or commercial paper and issue the bonds of the school district in payment therefor. It would be an extremely dangerous doctrine-to hold that municipal officers authorized by an Act of Assembly to borrow money upon the credit of the municipality, could issue the bonds of such municipality for anything but money.

The return then goes on to aver that the treasurer of said board was not present at the meeting referred to, but was absent from his residence until the latter part of Tuesday, the- 16th of September, and had no deputy or clerk to whom said draft could be delivered on Monday or Tuesday; that the draft was delivered to the treasurer on Tuesday evening, September 16th ; that the said treasurer endorsed it the-same evening, and by the mail of next morning, September 17th, forwarded it to the Watsontown Bank, in which he kept his account, for collection; that the said bank forwarded the draft in the usual manner and without delay to its correspondents in Philadelphia. There appears to have been some delay in the mail between Muncy and the Watsontown Bank, as the draft reached the latter by the evening mail going north, about six o’clock P. M., of the 18th. Oñ the 20th of September, the draft was presented at the banking house of Jay Cooke & Co., at Phil-. adelphia and protested for non-payment. That firm failed on the 18th of September. Troy, Bradford county, where the draft was dated, is sixty-five miles north of Muncy; Watsontown is eleven miles by rail from Muncy, and one hundred and eighty miles by rail from Philadelphia, while Muncy is one hundred and ninety-one miles by rail from Philadelphia. These are substantially the facts, briefly stated, upon which the defendants resist the right of the plaintiffs to call upon them to' issue the bonds of the school district for the amount of the draft. The court below held them insufficient and entered judgment for the plaintiffs upon the demurrer. We regard this ruling as error.

It could only be sustained on the ground of laches on the part of the defendants in presenting the draft for payment. But was there such laches as to charge them with the loss of the draft ? The holder of a draft or bill is entitled to a reasonable time to present it. “ What is reasonable time will depend upon circumstances, and in many cases, upon the time, the mode, and the place of receiving the check, and upon the relations of the parties between whom the question arises Story on Prom. Notes, § 493. A delay caused solely by the neglect of a post-office official will be excused: Schofield v. Bayard, 3 Wend. 488 ; Allen v. Suydam, 20 Id. 321. In the National Newark Banking Company v. The Second National Bank of Erie, 13 P. F. Smith 404, a draft on New York was purchased by Judson at Erie, Pa., on the 17th of March. On the 19th he left Erie for home, stopping at a number of places to attend to his business as a travelling agent, and arriving at his residence at Newark, N. J., on the 26th of the same month. On the 27th he sold the draft to the Newark Bank, by whom it was presented on the 28th; payment was refused, and it was protested. It was held that under the circumstances the draft was presented within a reasonable time. In the present case the draft was drawn on the 10th and presented on the 20th. It did not come into the hands of the defendants until the 13th. It was payable to the order of the School Board of Muncy.” It must have been known to the drawers and the plaintiffs that such a draft was liable to be delayed. The fact that it required the endorsement of a board of school directors, which had to be convened, and then take action upon the draft, was suggestive of delay. Then there was further delay between Muncy and Watsontown by reason of the mails. This is ground of excuse as we have seen. In point of fact the draft did not reach Watsontown until the evening of the day upon which the drawees failed. The treasurer had a right to send it forward for collection through his bank. It is the usual and proper mode of transacting such business. Then the absence of the treasurer on Monday and Tuesday was an unavoidable accident, and necessarily delayed the transmission of the draft. As treasurer, he was the proper person to receive and forward it. The board had nothing to do with receiving or handling the money. We are unable to see any laches on the part of the defendants, or any delay that was unreasonable in the case of a draft received under the circumstances and for the purposes shown to exist in this case. The facts being ascertained it is for the court to decide what is reasonable time, as a question of law: Story, §§ 155-6. We think the defendants were entitled to judgment upon the demurrer.

We have decided this case upon the merits. We are not free from doubt as to whether the writ of mandamus was the proper remedy. We do not propose to discuss this question, and refer to it to avoid misapprehension hereafter.

The judgment is reversed, and judgment is now entered for the defendants below iipon the demurrer.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Cummings versus The City of Williamsport.
    1. In opening Packer street, in the city of Williamsport, viewers were appointed. to assess damages and contributions to owners of land along said street. The street was opened upon the petition of the city. 0., through whose land it was opened, was the only party who appealed from the award. By the provisions of the Act of 22d of April 1856, under which the proceedings were had, all the other parties having acquiesced in the award, were concluded. After confirmation of the report of viewers by the Quarter Sessions, C. appealed, under the Act of 13th of June 1874, to the Common Pleas, who directed an issue to be framed, with C. as plaintiff and the city and the other owners along said street as defendants. Held, that the rights of these individual defendants had been adjusted by the report of the viewers, and the decree of the Quarter Sessions thereon, and their joinder as parties with the city, was a ground for reversal, had the question been properly raised.
    2. Where the direct tendency of evidence is to lead the minds of the jury into an irrelevant inquiry, it should be rejected.
    3. Under this issue one of the individual defendants was offered to prove a conversation with plaintiff in reference to the opening of said street, wherein plaintiff agreed that if defendant would not press the opening of another street to run east and west through the same land, the plaintiff would open Packer street at his own expense, and that in consequence defendant made certain improvements on his property and desisted from urging the opening of the street to run east and west. Held, that while this agreement would have been binding in a controversy between plaintiff and witness, it did not work an estoppel in favor of the city, unaccompanied as it was with any proof that the municipal authorities had done any work in pursuance of it, and that the offer, therefore, was clearly inapplicable to the actual issue.
    4. In estimating the damages sustained by the opening of a street the proper measure is the difference between what the property would bring in the market before the improvement, and what after the improvement was made, without reference to the purpose for which it may be used.
    June 6th 1877.
    Before Agnew, C. J., Mercur,, Gordon, Paxson, Woodward and Sterrett, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 156.
    This was an issue framed for the purpose of ascertaining the amount of damages to which A. B. Cummings, the plaintiff, was entitled, for the appropriation of about one acre and a quarter of his land for the purpose of opening a public street through it.
    Cummings owned a tract of about forty acres of land lying immediately north of the old borough of Williamsport, which by the enlargement of the borough ivas afterwards included within its limits, as was also a tract of land adjoining it on the north belonging to Joseph Gilmore and others, who had divided up their land into building lots. Mr. Cummings had used and cultivated his tract as a farm. At the time Gilmore and the others purchased the farm of Cummings laid between their purchase and the borough and being desirous of extending Packer street, which ran north and south and terminated at Mr. Cummings’s southern line, they applied to the Quarter Sessions for a view for the extension of said street through the tract of Cummings, in which effort they failed for want of jurisdiction in the court. Meantime the city of Williamsport had been incorporated and they then applied to the city council, and on the 28th of August 1875 a petition of the mayor and a majority of the city council was presented to the Court of Quarter Sessions, under the provisions of the Act of the 22d of April 1856, Pamph. L. 525, praying for the appointment of viewers for the extension of said street, who were duly appointed and who reported that none of the parties along said street had sustained any damages by reason of the opening thereof.
    To this report exceptions were filed by Cummings, which were overruled pro forma and the report confirmed. Cummings then appealed to the Court of Common Pleas, which court on motion of Gilmore and others ordered a feigned issue to be framed, in which Cummings was made plaintiff and the city of Williamsport, Gilmore and others, defendants.
    Cummings contended that the issue between him and the city was a real issue between the parties — not & feigned issue — the right to which was secured to him by article 16, section 8, of the Constitution of Pennsylvania, and by the Act of 13th June 1874, Pamph. L. 283, which regulates the mode by which a party whose property has been taken for public use by a municipal corporation can avail himself of his right to a trial by jury, and he therefore asked for a rule to strike off this feigned issue, which rule after argument was made absolute and the case put down for trial.
    At the trial, before Gamble, P. J., the plaintiff proved the value of the land, the cost of paving and fencing, and the damages sustained.
    The defendants made the following offer:—
    To prove by Joseph Gilmore, that after the plaintiff had plotted his land and located on said plot the extension of Packer street, at the point where the same is now located, and before witness had plotted his on the north side of and adjoining plaintiff’s land, witness had a conversation with plaintiff at his room in reference to the opening of this street, and in such conversation plaintiff agreed that if witness would not press the opening of the street running east and west, plaintiff would open this street at his own expense, and that witness should make his plot to correspond with plaintiff, so that they would have no difficulty about the streets; that witness accepted said proposition and plotted his land accordingly, and caused certain buildings to be erected on the line of this street, and desisted from urging the opening of the street running east and west.
    Plaintiff objected: 1. Because conversations between plaintiff and the witness cannot be received in evidence to affect the claim of plaintiff against the city of Williamsport; 2. Because the conversation, if proven, cannot affect the plaintiff in this stage of the proceedings, the issue to ascertain damages having been formed ■without objection by defendants, and that the issue as joined does not raise any question of estoppel or release, and the defendants, if they sought to take advantage of the alleged contract, should have objected to the formation of the issue, or at least had it so framed as to raise the question and give notice to plaintiff of such a defence; 3. The evidence is irrelevant.
    The objections were overruled and the evidence admitted, limited to the extent to which it might affect the question of contribution by the defendants, other than the city of Williamsport. Exception and bill sealed.
    The court, in their general charge, said:—
    “ The first question that will be submitted to you, and the first in importance is : What amount of damages, if any, is Mr. Cummings entitled to from either of these defendants ? The measure of damages in such cases is ascertained by the difference between the value of the land immediately before the opening of the public improvement and its market value immediately after, and the purpose for vdiich it may be used is not material. It is true that witnesses may speak of the purposes for which it may be used. They may give that as a reason for estimating the value that they attach to it, but the standard measure of damages is its market value — what it would bring in the market; and the difference between what it would bring in the market before the improvement and what after the improvement was made, is the proper measure of damages to guide a jury-”
    And also:—
    “ While it may be true that for agricultural and farming purposes it would bring less with the street across than without it, yet it may also be true that for other purposes it would bring more. Well, the question is — and you will bear that constantly in mind — would it bring more in the public market ? In the estimate of the public, would it bring more or less ? That is the test. Not whether it would bring more for one purpose or another purpose, but would it bring more in the public market for any purpose to which the owner or purchaser should see proper to put it ? If you are satisfied from all the evidence that this land would bring more in the public market with that street than it would have brought without the street, then we think the plaintiff is not entitled to any damages at all.”
    And also:—

      “ If you should come to the conclusion that Mr. Cummings is entitled to damages, then we think you have the right to assess them upon these co-defendants. And when you come to consider them there is an item of evidence here that is perhaps worthy of consideration.
    “ Mr. Gilmore, you will recollect, testified that about the time they were contemplating laying out their lands into lots and opening up streets, lie had an interview with Mr. Cummings, and that in that interview Mr. Cummings agreed to open this street at his own expense, and that he enjoined upon Mr. Gilmore the duty of laying out his lots so that the streets would correspond, so that when his land was laid out it might correspond with the streets and lots laid out by Mr. Gilmore, that there1 might be no confusion or jogging in the streets. Now, if you believe, from all this testimony, that Mr. Gilmore was induced to lay out his .lots in consequence of that arrangement, we think it is a proper subject of consideration as between Mr. Cummings and these defendants when you come to fix the amount, the proportion of these damages that they should pay.”
    The verdict was for the defendants, and the plaintiff took this writ, assigning for error, 1. That the court erred in directing the feigned issue; 2. In making absolute the rule to strike it off; 3. In admitting the evidence under the above offer; 4, 5, 6. The portions of the charge noted in their order; 7. The court erred in instructing the jury that Mr. Gilmore had testified that Mr. Cummings had agreed to open the street at his own expense, as set forth in the quotation from the charge in the last preceding error, and refusing to grant a new trial upon the ground of this misdirection, Mr. Gilmore not having testified to any such fact, as the following extract from his testimony will show : “ Well, in this conversation there Mr. Cummings said, £If you do not press the opening of Adams street I will open Packer street;’ and we said we would not at that time; that is about the conversation we had in regard to the street.”

      Allen Gamble and Armstrong & Linn, for plaintiff in error.
    The constitution provides compensation for private property taken for public use, and prohibits the General Assembly from depriving any person of an appeal from any 'preliminary assessment of damages, which appeal, on demand from either party, must be determined by a jury, according to the course of the common law, and to meet this constitutional requirement the Act of 13th of June 1874, Pamph. L. 283, was passed. The issue ordered by the court was a real one, touching a real injury and a substantial right, and when the appeal was entered there was nothing to prevent the joinder of a real issue, alleging the grievance on the part of the plaintiff, and his claim of damages against the city, the party committing the injury, and the plaintiff would thus have been accorded his constitutional right. The order was likewise erroneous, Cummings being the only appellant, the other property holders being content with the report of the viewers, he and the city were the only proper parties to the appeal, and Cummings had a right to have the amount of damages determined between him and the city, without encumbering the record with the names of other parties, who had not joined in the appeal.
    It was erroneous to admit the evidence of Gilmore. It could not possibly affect the right of recovery against the city. There was no dedication to public use,'and the promise, even in the broad form of the offer, could not operate as an estoppel. It is clear the city cannot avail herself of such a promise as against Cummings, and it is just as clear that it cannot affect her claim for contribution, because she was not a party to the alleged arrangement.
    The court misdirected the jury in stating what was the measure of damages.

      John J. Metzger and O. Bartles, Jr., for defendants in error.
    In admitting the testimony of Gilmore the court limited it to the extent to which it might affect the question of contribution by the defendants other than the city. The jury were bound to consider the advantage of the opening of the street to Cummings, as well as its benefits to defendants, and when Gilmore was asked to contribute to the damages sustained by Cummings, was he not to be permitted to give evidence to affect the plaintiff’s claim, so far as his contributive share was concerned ?
    The instruction as to the measure of damages was clearly within the rulings of this court: Shenango and Allegheny Railroad Co. v. Braham, 29 P. F. Smith 447; Harvey v. Lackawanna and Bloomsburg Railroad Co., 11 Wright 436; Hornstein v. Atlantic and Great Western Railroad Co., 1 P. F. Smith 87, and cases cited.
    Octo 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

Erom the report of the viewers appointed to adjust the damages and contributions payable and chargeable to the owners of land along the extension of Packer street, in the city of Williamsport, A. Boyd Cummings, the plaintiff below and here, was the only appellant. When the issue was directed by the Court of Common Pleas, there was no other controversy than that between the plaintiff and the city. The second section of the supplementary borough Act of the 22d of April 1856, made every report of viewers to assess damages and contributions final and conclusive on all parties after approval and confirmation by the proper Court of Quarter Sessions. The only control over the action- of the viewers consisted in the power of the court to modify the report “ on the hearing of such parties as should choose to contest the same.” The Act of the 15th of January 1866, incorporating the city of Williamsport, made no change in the law regulating the opening and extension of the highways of the municipality. The tenth section preserved all unsupplied statutes, ordinances, by laws, rules and regulations of the borough in full force. And the eleventh section transferred all the powers which had been exercised by the burgess of the old borough to the mayor of the new city. The Act of the 13th of June 1874, gave to any party to a proceeding to assess damages against any corporation or individual invested with the privilege of taking private property for public use, the right to appeal to the Court of Common Pleas of the proper county. Under the Act of 1856, the record made up in the Quarter Sessions was conclusive on all the parties interested in the Packer street extension, who acquiesced in the report of the viewers and the judgment of confirmation. No question remained open between the individual defendants and the city, and the plaintiff had no controversy with them. There was but a single issue — that in which the title of the plaintiff to damages was involved. The rights of the individual defendants had been adjusted by the report of the viewers and the decree of the Quarter Sessions, and their joinder as parties to the issue made a confused and incongruous record, and necessarily produced on the trial embarrassing and awkward consequences. The question submitted in terms to the jury was : “ What amount of damages, if any, is Mr. Cummings entitled to from either of these defendants ?” The plaintiff’s right to appeal under the Act of 1874, was against the city of Williamsport as “a corporation invested with the privilege of taking private property for public use.” The other parties possessed no such privilege. They were mere owners of property affected by the opening of the street. Between them and the plaintiff there was no privity, and against them he could assert no common law, statutory or contract claim. In essential results, the circumstances of this case are identical with those developed in the Matter of the Opening of Park Avenue, in 2 Norris 167, and the principles settled there are directly applicable here. The joinder of the individual defendants with the city would be ground for reversal if it could be gathered from the paper-books that the question had been duly raised. The order for a feigned issue was stricken off on the plaintiff’s application, and he apparently acquiesced in the order for the real issue. At least, although that order is made the subject of the first assignment of error, there is no record of any objection made to it when it was filed, and no complaint was made on behalf of the defendants themselves. The irregularity is beyond present reach.

But while the form of the issue embraced unnecessary parties, the actual question remained unchanged. The plaintiff’s land had been appropriated for the highway, and he claimed damages for the injury alleged to have been sustained. In the course of the trial, the defendants offered to prove by Joseph Gilmore that “ after the plaintiff had plotted his land and located on said plot the extension of Packer street at the point where the same is now located, and before the witness had plotted his on the north side of and adjoining plaintiff’s land, he, the witness, had a conversation with the plaintiff in reference to the opening of the street, and the plaintiff agreed that if he, Gilmore, would not press the opening of the street running east and west, he, the plaintiff, would open this street at his own expense; and that he, Gilmore, accepted the proposition, plotted his land accordingly, caused certain buildings to be erected on the line of this street, and desisted from urging the opening of the street running east and west.” The third error has been assigned to the admission of this offer. Was it relevant? The agreement would have been undoubtedly binding in a controversy between the plaintiff and the witness. But it does not follow that the evidence, standing alone, would work an estoppel in favor of the city. It was not proposed to couple it with any proof that any act had been done by the municipal authorities in pursuance of the arrangement, or that it had even been known to them. Indeed, -the inapplicability of the offer to the real issue pending was distinctly ruled by the court below. The jury were charged on this point in these terms: “ If you believe from all this testimony that Mr. Gilmore was induced to lay out his lots in consequence of that arrangement, we think it a proper subject of consideration as between Mr. Cummings and these defendants when you come to fix the amount, the proportion of these damages that they should pay. I do not myself attach much importance to this evidence, and think it only applicable to that question. I do not think it is at all applicable to the question of damages to be paid by the city, because I do not see that Mr. Cummings waived any right that he might have to claim damages from the city by that interview with Gilmore.” If the settlement of the equities between the city and the individual defendants could have been projected into the contest in such a way as to make them liable to the plaintiff for any damages he might recover, the fact that Gilmore was one of the defendants would perhaps have made the evidence competent. But it had no bearing on the question between the parties actually litigant. Mr. Justice Burnside said in Bratton v.- Mitchell, 3 Barr 44, that “ In Pennsylvania it has become a great evil in the administration of justice, the-offering and frequently giving irrelevant evidence. The object is often to raise a false issue before the jury. The evidence should be confined to the question trying; then the court and jury would not be perplexed and embarrassed with irrelevant matter.” Facts which of themselves can have no legitimate operation cannot be received in evidence, because the jury might possibly infer other facts which, in connection with them, would support the issue: Weidler v. The Farmers’ Bank of Lancaster, 11 S. & R. 134. Evidence is not admissible to excite prejudices in the minds of a jury, or merely to allay those which it is supposed they may possibly entertain: Hill v. Meyers, 7 Wright 170. Here the direct tendency of the evidence was to lead the minds of the jury into an irrelevant inquiry, and the offer should have been rejected.

As the whole evidence of Mr. Gilmore was incompetent, discussion of the point raised by the sixth and seventh assignments of error would be superfluous. But it may be said, that anjnadvertent statement to the jury, that an agreement on the part of Mr. Cummings to open the street at his own expense, had been testified to, when no testimony as to such an agreement had been given, would be capable of affecting the interests of the plaintiff in a most damaging and disastrous way.

In The Shenango and Allegheny Railroad Co. v. Braham, 29 P. F. Smith 447, the judgment was reversed because the jury had been instructed to regard only such advantages and disadvantages from the road of the defendants as resulted to the plaintiff as a farmer, and to his land as a farm. In entering the judgment of this court, it was held that everything that gives intrinsic value to land is a proper consideration in estimating its market value. The rule by which the jury in this case were instructed to ascertain the plaintiffs’ damages, was entirely accurate, and the fourth and fifth assignments of error, in which that instruction is complained of, are unsustained.

Judgment reversed, and venire facias de novo awarded.


author: Per Curiam.

text:
    Sands, Herdic & Co. versus Arthur.
    A. was employed-by S. to do certain work. S. agreed by parol to sell a lot of ground to A., the one-third of the price of the lot to be .applied in payment of the work to be done by A. No possession was taken of the lot, and no actual application of the one-third of the price was made upon the work done. When the work was completed S. tendered a deed and demanded a bond and mortgage for the two-thirds of the purchase-money, leaving the other third to stand as a credit. A. refused the deed or to allow the credit, on the ground that the lot was not of the width bargained for, and brought suit for work and labor done. Held, that to enforce this parol contract would be a violation of the Statute of Frauds.
    June 7th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Lycoming county: Of May Term 1877, No. 162.
    Assumpsit by John Arthur against Sands, Herdic & Co., for work and labor done.
    Defendants pleaded non-assumpsit, payment, payment with leave, &c.
    The material facts are stated in the opinion of this court.
    The following point was presented by the plaintiff:—
    That even if the jury should believe that a parol contract was made between Peter Herdic and John Arthur for the sale of a lot of land to Arthur, upon the terms as testified to by Herdic, said contract would be absolutely void; and as no action could be maintained by Iierdic against Arthur upon said contract, neither the court nor the jury can regard the evidence in relation to it, and the verdict must be rendered without any regard to the agreement in relation to the land.
    The answer of the court to this point was, that under the evidence in this case the verdict should be rendered without any regard to the agreement in relation to the land.
    The verdict was for the plaintiff for the amount of his claim, and after judgment defendants took this writ, assigning for error the answer of the court to the foregoing point.

      J. Eutermarks and Armstrong Linn, for plaintiffs in
    Actions for damages on parol contracts for land are sustainable in Pennsylvania: Moore v. Small, 7 Harris 467, and cases cited.
    True, it has been held that under our statute an action cannot be maintained upon a verbal contract by the vendor for the recovery of the purchase-money, and this for a very manifest reason— that such an action is but one form of compelling specific performance. But there is nothing in the Statute of Frauds, nor in any decision made thereon, that furnishes authority for saying that a vendee of land under a parol contract can repudiate his bargain and recover back money paid by him on account thereof, if the vendor stands willing to render performance on his part. Hence, it results that if the work was done by Arthur, in pursuance of the parol contract, there can be no recovery of the $1000, applicable to the purchase-money for the lot, if Herdic has stood ready to perform. It is in fact so much paid to Herdic, and a recovery by plaintiff is a recovery back of so much that he has paid. The instant the work was done the application was made. This was payment. Had the contract been in writing, it would have been in vain for Herdic to attempt to recover the $1000, after the work was done, for, by the terms of the contract, it would be then paid. If, as to Herdic, it would' be payment, it would be equally so as to Arthur.
    No recovery should have been had unless Sands, Herdic & Co. were guilty of a breach of the agreement, and this question the jury were not permitted to pass upon.

      Henry C. Parsons and C. L. Munson, for defendant in error.
    The plaintiffs in error really seek to enforce the specific performance of a parol contract in a common law action, and thus evade the Statute of Frauds: Irvine v. Bull, 4 Watts 289; Meason v. Kaine, 13 P. F. Smith 340.
    Whether the evidence is sufficient to take a case out of the operation of the statute, is a question of law for the court. Paxson, J.; in Overmyer v. Koerner, 2 W. N. C. 6; Irwin v. Irwin, 10 Casey 525.
    Although it is true that actions for damages on parol contracts have been sustained in Pennsylvania, yet in the case cited by the counsel for the plaintiff in error, Moore v. Small, 7 Harris 461, the court says on page 467 : “ The measure of damages in such actions is not the value of the land, for that would work an evasion of the statute, but is the price paid for services rendered.”
    June 18th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

This case is easily stated in a few words. Arthur was employed by Sands,- Herdic & Co., to do certain work in a saw-, mill. Herdic agreed by parol to sell a lot of ground to Arthur; and Arthur agreed, Herdic and the other members of the firm consenting thereto, that one-third of the price of the lot should be applied in payment of the work done at the saw-mill.. No possession -was taken of the lot, no actual application of the one-third of the price was made upon the work done. When the work was completed Herdic tendered a deed, and demanded a bond and mortgage for the two-thirds of the purchase-money, leaving the one-third to stand as a credit on the work. Arthur refused to accept the deed, on the ground that the bargain was for a lot of one hundred and twenty-five feet in width, while the deed was for one of but seventy-five feet in width. The question is, can this parol contract be enforced in the face of the Statute of Frauds and Perjuries ? Clearly it cannot unless we overturn the authorities which declare that a vendor though ready and willing to perform his contract cannot recover the purchase-money, on the ground that equity will not decree specific performance where the remedy is not mutual; and it is clear the vendee cannot compel specific performance because of the Statute of Frauds : Wilson v. Clarke, 1 W. & S. 554; Ellet v. Parson, 2 Id. 418 ; Meason v. Kaine, 13 P. F. Smith 335; Same v. Same, 17 Id. 126. This principle was fully settled when this court overruled the doctrine of Jack v. McKee, 9 Barr 240, and kindred cases ; in Hertzog v. Hertzog, 10 Casey 418 ; Dumars v. Miller, 10 Casey 319; and Graham v. Graham, 10 Casey 475; and there held that the measure of damages for the breach of a parol contract is not the value of the land, but compensation only for the damages caused by the breach of the contract. In the last case of Meason v. Kaine, 13 P. F. Smith 335, it was said that actions to enforce a parol trust forbidden by the Act of 1836, rest on the same grounds as actions to enforce a parol sale of land, the mischief being the same, to wit: the encouragement given to fraud and peijury. Hence it was said to sustain the recovery of the purchase-money is to enforce the trust itself; for the payment of it draws the title to the cestui que trust, on the ground that equity will not permit him to hold the title and the money. Nor would the remedy be mutual, for if the holder of the title deny the trust resting on the statute, the eestui que trust could not by a tender enforce the trust. Now the case before us presents the very danger which the statute is intended to avoid. Arthur claims title by the parol bargain to a lot of one hundred and twenty-five feet in width, while Herdic denies any such bargain. The consequence is the true bargain must be established by the testimony, and here comes in the danger of fraud or perjury.

It is argued the bargain is not void. This is true, and so the cases referred to hold ; but it is the measure of damages which is the subject of decision, and this is held to be only compensation for expenses and other incidental damages, and not the price or purchase-money; and as the vendee cannot enforce the contract for the land, mutuality, which is the rule of the remedy in equity, forbids the recovery of the price. Hence the $1000 cannot be set up as a payment in this action. Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Appeal of Geddes and Wife
    1. Where lands are owned by two persons on the face of the deed of conveyance to them as tenants in common it is incompetent, whenever the rights of third persons are involved, to show by parol that they were held as partnership property.
    2. W. & S., who were partners, by agreement, sold certain lands in their individual names, without any reference to their acting as a partnership or to show that they held their interest in the lands as partners. Held, that the surviving partner cannot be allowed to change that condition by parol evidence so as to affect the right of any creditor who on the faith of it obtained a lien either upon that interest itself or the proceeds of. it in money.
    June 7th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Court of Common Pleas of fflk county: Of May Term 1877, No. 143.
    Appeal of Charles K. Geddes and Sarah S., his wife, in right of the said Sarah S. Geddes, executrix, from the decree of the court in the distribution of money paid into court upon a special verdict.
    The facts were these:—
    On the 27th of April 1868 a judgment was entered in the court of Common Pleas of Elk county, in favor of John B. Coryell, against E. C. Schultze and William Schultze, for $3000. On April 15th 1872 Coryell assigned the judgment to Henry Sproul. Before the entry of the judgment, E. C. Schultze, one of the defendants, and George Weis, became the owners of certain tracts of land in Elk county, which they had purchased by articles of agreement, and which he and Weis afterwards sold, at different times, to the St. Mary’s Coal Company. The last of these sales was made by a written agreement under seal, dated January 20th 1873, when Weis and E. C. Schultze bargained and sold the fee in one hundred acres of land, and the coal, iron and other minerals in certain other tracts of land to the St. Mary’s Coal Company for $10,915, of which $6300 was to be paid to their vendors, and the balance, to wit, $4615, was to be paid to Weis and Schultze, as follows, to wit, $300 in hand at the date of the agreement, $1415 on July 1st 1874, $1450 on January 1st 1875, and $1450 on July 1st 1875, with interest on the deferred payments from January 4th 1873. The hand-money, $300, was paid to Weis and Schultze together on January 20th 1873, and receipted for by both.
    A scire facias to revive the judgment of Coryell, for use of Sproul v. E. C. Schultze et al., was issued August 16th 1873, on which judgment was obtained January 15th 1874 for $3994.58 and costs. On October 12th 1874 an attachment in execution was issued upon this judgment against E. C. Schultze et al., defendants, and the St. Mary’s Coal Co., garnishee, which was duly served upon the garnishee on December 27th 1874. In the meantime, on August 4th 1874, Weis received of the St. Mary’s Coal Company, and receipted for, $774.20, being one-half of the instalment due July 1st 1874, and its interest.
    On January 16th 1875, Henry Sproul, the plaintiff in the attachment, died, having made his last will and testament, dated October 21st 1871, whereof he appointed his daughter, Sarah G. Sproul, executrix. Some months after the death of Henry Sproul, E. C. Schultze, the defendant in the attachment, also died.
    On August 10th 1875 George Weis, as survivor of himself and E. C. Schultze, brought an action of debt, in the Court of Common Pleas of Elk county, against The St. Mary’s Coal Company, for the balance of the purchase-money and interest due upon the agreement of January 20th 1873. The defendant pleaded nil debet, set off, and payment with leave, &c. At the trial, on May 26th 1876, the defendant, by leave of court, filed an additional plea, setting out the attachment in execution; whereupon the jury, by direction of the court, rendered a special verdict, which was entered as follows, to wit: “ May 26th 1876,. verdict for the plaintiff in the sum of four thousand, three hundred fifty and 9-100 dollars; and whereas it appears in evidence that an attachment execution issued at the suit of Henry Sproul v. E. C. Schultze et al., in which defendant was summoned as garnishee; we therefore find that when the money is paid on this judgment, the sum of two thousand six hundred a,nd four dollars and fifty-two cents ($2604.52), with interest from date, should be brought into court to be distributed under the order and direction of the said court, and that the balance of said money, with interest and costs, can be taken by George Weis, being $1745.57 and interest thereon.” Judgment was entered upon this verdict June 3d 187 6.

      On September 22d 1876, the petition of Charles K. Geddes and Sarah S., his wife, in right of the said Sarah S. Geddes, executrix of the last will and testament of Henry Sproul, deceased, was presented to the court, praying the court to award to them the said $2604.52, upon their attachment in execution against E. C. Schultze et al., defendants, and The St. Mai-y’s Coal Company, garnishee. On the same day a rule to show cause was granted, and an auditor was appointed to distribute the money.
    At the hearing before the auditor, the executrix of Henry Sproul, deceased, claimed the money in court by virtue of the attachment, and gave evidence showing that E. C. Schultze had been the owner of an undivided half interest in the lands as tenant in common. Weis, on the other hand, claimed it as surviving partner of E. C. Schultze, and to substantiate his claim, offered in evidence an agreement of co-partnership, in the business of buying and selling lands in Elk county, between himself and E. C. Schultze, dated July 16th 1863, which had never been recorded, followed by his own testimony as to the state of the accounts between himself and his late co-partner. To this evidence the executrix objected, because the agreement of co-partnership having never been recorded, and there being no evidence to show that the plaintiff in the attachment or any other person than the parties themselves, had ever been aware of its existence, it was inadmissible to affect rights which had already attached; and because, the plaintiff and the defendant in the attachment being both'dead, George Weis, the opposing party in interest, was incompetent to testify in his own behalf. She also showed that Weis and Schultze, in all their dealings in regard to these lands which were open to the public, had acted as tenants in common.
    Under these objections, the auditor received the evidence offered by Weis, but subsequently reported it as incompetent, and awarded the money in court, to Sarah S. Geddes, executrix, &c.
    To this report Weis excepted, and, after argument, the court sustained the exceptions, set aside the report of the auditor as to the award to Sarah S. Geddes, executrix, &e., and directed the fund in court to be paid to-Weis, as surviving partner.
    From this decree the executrix has taken this appeal.

      Hall & McCauley and Charles K. Geddes, for appellants.
    That there may be a partnership to deal in lands is well settled, but it imposes certain duties, and is subject to certain restrictions, which do not exist in ordinary partnerships. Land is not a mere chattel that can be passed from hand to hand by simple delivery ; but, on the contrary, the Statute of Frauds forbids any interest or estate in lands to be held or transferred without deed or writing.
    Where partners intend to bring real estate into partnership stock, that intention must be manifested by deed or writing, placed on record, that purchasers and creditors may not be deceived: Hale v.
      Henrie, 2 Watts 146 ; Ridgway, Budd & Co.’s Appeal, 3 Harris 181. To the same effect are McDermot v. Laurence, 7 S. & R. 438; Lefevre’s Appeal, 19 P. F. Smith 122; Ebbert’s Appeal, 20 Id. 79.

      Henry Souther and Greorge A. Rathbun, for appellees.
    What was the condition of Weis and Schultze in relation to these lands immediately after the delivery of the agreement to the company ? They were partners; as such, partners they had a mere equity in these lands, a right to the title upon payment of the purchase-money ; they were not in possession, nor, from anything that appears, had they any rights of possession until payment; such rights as they had, these mere equities, they sold and absolutely conveyed to the purchaser. No interest in the land in any shape remained in them.
    If the appellants have any rights at all under their attachment execution, their rights are only those which Schultze had; they stand in his shoes, but only as sheriff’s vendees of his interest, or his personal representative might. With Shultze dead, or his interest sold by the sheriff, to Weis as remaining partner belongs the right of marshaling the firm assets and adjusting the firm liabilities before anything would be due to those representing Schultze.
    June 25th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

It is settled in this state as well as anything can be settled, that where lands are owned by two persons on the face of the deed of conveyance to them as tenants in common, it is incompetent whenever the fights of third persons are involved to show by parol that they were held as partnership property. It is enough for the purposes of this case to refer to Lefevre’s Appeal, 19 P. F. Smith 122 and Ebbert’s Appeal, 20 Id. 79, in which the former decisions of this court are fully considered and discussed. It is certainly not enough that the articles of co-partnership are in writing, nor that they are expressly for buying and selling real estate. Parol evidence must still be resorted to, to show that the particular land in question was a part of the partnership transactions. The principle of these cases cannot now be controverted, and indeed it has not been in this case. But the contention is that as the land has been converted into money and the fund in court is personal estate, the execution creditor by his attachment of the fund treats it as such and is not within the protection of the principle. On the 15th January 1874 the judgment of Coryell v. Schultze was revived and became a lien on whatever interest Schultze had in the land. He had in conjunction with Weis, his co-partner, sold it on the 20th day of January 1873 to the St. Mary’s Coal Company, and a large part of the purchase-money was unpaid. Schultze and Weis had an interest in the land to the extent of the unpaid purchase-money. It is true, as' it appears, that the legal title was still outstanding in former owners. But that circumstance does not vary the case. The revived judgment was a lien on their interest in the land as security for the purchase-money whether that interest was legal or equitable. As to the judgment creditor, the interest of Schultze upon the face of the contract of sale to the St. Mary’s Coal Company was that of a tenant in common. He had a right to consider and treat it as such. He attached the purchase-money and summoned the St. Mary’s Coal Company as garnishee. As to him, Schultze owned half the interest in the land and was entitled to half the purchase-money. How then did the attachment of it as a debt compromise his rights ? It is said that he has merely stepped into the shoes of Schultze and has no other rights than he. We will not stop to inquire whether as against Schultze the legal effect of the writing could be changed by parol evidence without evidence of fraud or of what would raise a resulting trust for the partnership. An attaching creditor has often higher rights than his debtor, as in the instance of the attachment of funds in the hands of a fraudulent assignee. The assignor cannot controvert the assignment on that' ground, but the attaching creditor may. “ It is very clear,” says the present chief justice, in Ebbert’s Appeal, supra, “ that honest creditors, who are led to give credit to the individual partners on the apparent state of the title in them individually, ought not to be met afterwards by a change of face in the deed by which it takes a partnership aspect contrary to its terms.” He had previously observed that “ to alter a deed so as to make it of different import offends against the spirit of all those laws made to protect the public against fraud and secret titles and prevent a change of right to the prejudice of those who deal upon the apparent legal operation of the instrument. The covinous character of the change in the title in such case is of a kind with that forbidden by the statutes of 15 and 27 Elizabeth, and the statute against frauds and perjuries.” Now the agreement of 20th January 1873, by Weis and Schultze for the sale of the land in question to the St. Mary’s Coal Company, was in their individual names, without any reference to their acting as a partnership or anything to show that they held their interest in the-lands as partners, and the surviving partner cannot be allowed to change that condition by parol evidence so as to affect the rights of any creditors who on the faith of it have obtained a lien either upon that interest itself or upon the proceeds of it in money.

Decree reversed, and it is now ordered and decreed that the fund in court, less the costs in the court below and this court, be paid to Sarah S. Geddes, executrix of the last will and testament of Henry Sproul, deceased.