author: Mr. Justice Green

text:
    Baltimore and Ohio Railroad Co. versus Sulphur Spring Independent School District.
    1. In the construction of a culvert under a railroad, the engineer of the company declared to a bystander, in no way connected with the road, that he thought the culvert would prove insufficient in a flood. Twenty-five years thereafter suit was brought against the lessee of the company for damages for an injury resulting from an overflow of the embankment, and the party to whom these declarations of the engineer were made was permitted to testify thereto: Meld, that this was error; that said declarations were inadmissible to bind the defendant in any way whatever.
    2. The concurring negligence which, when coupled with the act of God produces an injury, must, in order to render a defendant responsible, be such as is in itself a real producing cause of the injury and not a merely fanciful or speculative negligence, which may not have been in the least degree the cause of the injury.
    » 3. A railroad company, in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practiced in such works. There is no liability on a company for not constructing a culvert so as to pass extraordinary floods.
    4. Pittsburgh, -Port Wáyne and Chicago Railroad Co. v. Gilleland, 6 P. F. Smith 445, followed.
    October 28th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1880, No. 232.
    Case by the Sulphur Spring Independent School District of Sewickley township, Westmoreland county, against the Baltimore and Ohio Railroad Company, lessee of the Pittsburgh and Connellsville Railroad Company.
    It appeared that the portion of the defendant's road which passed through Sewickley township was constructed in 1855. To procure the proper grade it was found necessary to make an embankment about twenty feet high across the mouth of Shaner’s Hollow, and construct therein boxes, or, in the technical terms used by the engineers barrels, to vent the water of the rivulet under the embankment. Three barrels were built with stone bottom, sides and top. A stone lodged in one barrel, and on account of its size and the inability of the local repairmen to move it, and of the decreased water-flow, and because the other two at all times vented the water, it was suffered to remain there, and this left but the two barrels to carry off the water. In 1876 the Pittsburgh and Oonnellsville Railroad was leased by the defendant company, which has since operated it.
    On Wednesday, July 23d 1879, a heavy rain occurred, which washed dirt and debris down this stream and filled up the culvert. This was discovered by the supervisor of the division on the evening of Thursday, July 24th 1879. On Saturday morning, July 26th 1879, he and his gang commenced cleaning out the barrels of the culverts. When the gang -had one barrel entirely clean and the second very nearly so, a rain of great violence began and continued for the space of thirty or forty minutes, and the water rose with great rapidity above the level of the track some two feet, and with such force as to wash away the superstructure of the railroad, including rails, sleepers, ballast and switch for a double track, and also from six inches to two feet of the top of the embankment. The school house of plaintiff below was on the right side of this hollow, and its foundation was from nine to eleven inches higher than the top of the rail on the track, and it was lifted bodily off of its foundation and carried over the embankment, and into or near the Youghiogheny river, where it was broken to pieces,- and for the damages thus occasioned this suit was brought.
    There was a conflict of testimony as to how far the stoppage of the culverts was the real cause of the injury. Witnesses on behalf of plaintiff testified that the culverts were not of sufficient capacity to carry off the waters from ordinarily violent storms. Others were' of opinion that if the culverts had been open the water would have been carried off and no injury done. Witnesses for the defendant on the contrary were of opinion that it would have taken one hundred and twenty similar culverts to have carried off the water; that it would have been necessary to perforate the embankment with such culverts to provide against such a flood.
    The plaintiff offered to prove by Alexander Fulton that he owned land on the line of the Pittsburgh and Connellsville Railroad Company in 1856, and notified the engineer who was then employed by-the Pittsburgh and Connellsville Railroad Company, and was engaged in the erection and construction of said barrels or culverts at Shaner’s Station for the said company, that they were insufficient to receive and discharge the volume of water, and that the engineer replied he knew that they were not sufficiently large to receive the water.
    Objected to because vague and uncertain, and not notice to any one in the employ of the Pittsburgh and Connellsville Railroad Company’s service having plenary pow'er and able to bind the same. Because while this defendant may be liable for any insufficiency that exists in fact, it is not visited with notice given to others. Because incompetent and irrelevant.
    Objections overruled and offer received. (Second assignment of error.)
    The. witness then testified: “ At the time of the construction of the Pittsburgh and Connellsville Railroad Company along by Shaner’s Station, I lived right beside the railroad, about two hundred yards from this particular point. When the engineer who had charge of the construction of these culverts came there, we attended a meeting they had and wanted them to make a culvert so large that we could get a road through down to the river. I told the engineer that these culverts were too small. at any rate. He said himself they were not sufficient in that shape from what he had seen of the floods there that summer. This was in 1856. He said the chief engineer would not change the culvert. He said that he had reported it to the chief engineer, but he thought it was sufficient and would not change it.”
    The first and second points of the plaintiff, which the court, Hunter, P. J., affirmed, were as follows;
    1. If there was negligence on the part of the defendant, concurring with the act of God at the time plaintiff’s loss was sustained, then the defendant is liable, and the jury are not bound to inquire whether the loss would have happened had they not been guilty of negligence.
    2. It is not necessary to the plaintiff’s recovery to show negligence on the part of the defendant, which contributed equally, or in a large degree, along with the act of God, to cause the loss; but if the defendant’s negligence in any degree caused the loss, it would be liable in damages for the injury sustained by the plaintiff. The affirmation of these points constituted the fourth assignment of error.
    Verdict for plaintiff for $1525.88, and after judgment thereon defendant took this writ and'alleged that the court erred, infer alia, in the admission of the above evidence and in affirming the foregoing points.

      Markle & McCullogh, for plaintiff in error.
    A verbal notice to an employee of the Pittsburgh and Connellsville Railroad Company, without authority.and discretion, in 1856, and his admissions, are not competent evidence to bind the Baltimore and Ohio Railroad Company simply because the latter leased the railroad of the former in 1876. The declarations of the resident engineer of another railroad are hearsay as against the defendant, and, therefore, incompetent. .This being the only testimony calling in question the sufficiency of the culvert, and being incompetent, it was error to submit to the jury the question of the sufficiency of the culvert as originally constructed. By the affirmance of plaintiff’s points the court held the defendant to absolute care and diligence. Surely it is nót a guarantor of the safety of property from extraordinary floods, and that, too, of property not abutting on its right of way: Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Gilleland, 6 P. F. Smith 445; Hey v. Philadelphia, 31 Id. 44; McCully v. Clarke & Thaw, 4 Wright 399.

      Hazlett & Williams, John F. Wentling and James S. Moorhead, for defendant in error.
    The admissions of the engineer were made at the time of the particular transaction, which is the subject of inquiry, and while acting within the scope of his authority, and are, therefore, within the rule laid down in Huntingdon Railroad Co. v. Decker, 1 Norris 119 ; Dick v. Cooper, 12 Harris 217; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339 ; Whart. on Ev., sect. 1170. The measure of the defendant’s duty was properly defined: Bell v. McClintock, 9 Watts 119; Livezey v. Philadelphia, 14 P. F. Smith 106; Knoll v. Light, 26 Id. 268.
   Mr. Justice Green

delivered the opinion of the Court, November 22d 1880.

On the trial of this cause, the plaintiff made the following offer of proof by the witness, Alexander Eulton, viz.: “ That he owned land on the line of the P. & C. Railroad Co. in 1856, and notified the engineer who was then employed by the P. & C. Railroad Co., and was engaged in the erection and construction of said barrels or culverts at Shaner’s Station for the said company, that they were insufficient to receive and discharge the volume of water. That the engineer replied he knew they were not sufficiently large to receive the water.” A similar offer, with a somewhat less precise designation of the character of the work in which the engineer was engaged, had been previously made and rejected, under objections by the defendant, but when repeated in the form last offered, the objections were overruled and the evidence was admitted. The witness then proceeded to testify that in 1856 he told the engineer who had charge of the construction of the culverts at Shaner’s Station that they were too small and that the engineer had said in reply that “ they were not sufficient in that shape from what he had seen of the floods there that summer.” We think this testimony was erroneously admitted. The witness did not name the person with whom he held this conversation, so that it could with certainty be determined whether he was correct in his supposition that he was the engineer in charge of the construction, or so that an opportunity for a possible contradiction would be afforded. Moreover, the person, whoever he was, was not an agent of the defendant, but of another corporation which twenty-four years before had built the railway and culvert. Again, the testimony itself was but the opinion of the engineer as to the sufficiency of the culvert, communicated to another, and that opinion he could give directly to the jury. Its communication to another who was an entire stranger to the defendant, nearly a quarter of a century before the trial, certainly could not suffice to bind the defendant in any manner whatever. The second assignment of error is therefore sustained. We are also of opinion that the court erred in their answers to the plaintiff’s second and third points. In affirming the first point, the court ruled that: “ If there was negligence on the part of the defendant concurring with the act of God, at the time plaintiff’s loss was sustained, then the defendant is liable, and the jury are not bound to inquire whether the loss would have happened if the defendant had not been guilty of negligence.” As we understand this point, it practically declares that although the act of God alone, without any negligence of the defendant would have caused the injury, the jury were not at liberty to consider that fact, if in reality there was negligence on the part of the defendant concurring with the act of God. In other words, no matter how terrible, extraordinary and unprecedented were the storm and flood, so that they alone caused the injury, yet if there was concurring negligence of the defendant, although-it did not produce the injury, and its absence would not have prevented it, still the defendant would be liable. The same idea is repeated in the plaintiff’s second point, that if the defendant’s negligence in any degree caused the loss, they would be liable. Now a small pebble in one of the culverts would in some small degree, impede the course of the water, yet the doctrine of this point, which the court affirmed, would make the defendant liable for the entire injury, even though a huge avalanche of water were suddenly launched upon the stream and hurled with irresistible force upon the embankment and culvert in question. Such is not the law. This is the very highest possible degree of care, greater even than is required of railroad companies in the carriage of passengers. The correct doctrine on this subject was expressed in the case of the Pittsburgh, Fort Wayne and Chicago Railway Co. v. Gilleland, 6 P. F. Smith 445, to wit: A railroad company in constructing its road and works is bound to bring to their execution the engineering knowledge and skill ordinarily known and practised in such works. There is ho liability on the part of a railroad company for not constructing a culvert so as to pass extraordinary floods. On page 452, Agnew, J., delivering the opinion of the court, says: “ In the present case, then, if the culvert was so unskilfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been-liable for the injury thereby caused. The apparent facts indicate the duty. The stream, though small, must find a vent, or overflow the adjacent land and undermine the railroad.- Its size, the character of its channel, and the declivity of the circumjacent territory which forms the watershed, indicated the probable quantity of water to be passed through. Proper engineering skill should observe these circumstances, and supply the means of avoiding the injury which would result from locking up the natural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water. Beyond this, prudent circumspection cannot be expected to look, and there is, therefore, no liability for extraordinary floods, those unexpected visitations whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.” Here is a plain, easily understood and carefully stated rule of duty and of liability. In the main, the court below adhered to this rule, but in the answers to the plaintiff’s first and second points they went beyond it, and in this there was error. We apprehend that'the concurring negligence, which, when combined with the act of God, produces the injury, must be such as is in itself a real producing cause of the injury, and not a merely fanciful or speculative or microscopic negligence which may not have been in the least degree the cause of the injury. In other words: If the act of God in this particular case was of such an overwhelming and destructive character, as by its own force, and independently of the particular negligence alleged or shown, produced the Injury, there would be no liability, though there were some negligence in the maintenance of the particular structure. To create liability it must have required the combined effect of the act of God and the concurring negligence to produce the injury. " The present case affords a fair illustration of the reason for this 'distinction. The defendant’s witnesses testified that the force and volume of the water were so very great that it would have required one hundred and twenty such culverts to pass it. off. Hence, if' the three culverts were in the most perfect condition, they would not at all have prevented the injury, and therefore the fact that they were somewhat obstructed might be quite immaterial. If the jury believed this testimony, it might have had a most important bearing upon their verdict, to the extent even of inducing them to find in favor of the defendant. But the case was not put to them in that way, and they had no opportunity-of considering it in that aspect. For these reasons we sustain the second and fourth assignments of error. The other assignments are not material'and are not considered.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Commonwealth, for use, &c., versus Gracey.

    1. Where a decree of the Orphans’ Court directing a guardian to pay over to his successor the money in his hands is unappealed from it is con-elusive upon both the guardian and the sureties upon his official bond, and in an action of debt upon such bond the defendants can have no defence but payment.
    2. Where in such a suit the plaintiff did not file a declaration, but filed a copy of the bond, with an affidavit distinctly setting forth the breach, it was sufficient compliance with the rule of court below which prescribes in what oases judgment ruay be taken for want of an affidavit of defence, and if the defendant’s affidavit failed to disclose a defence, the plaintiff was entitled to judgment.
    November 1st 1880.
    Before Sharswood, C. J., Mercur, Paxson and Stbrrett, JJ. Gordon, Trunkey and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 110.

      Debt by the Commonwealth for the use of Samuel ftícGaugh, guardian of Adelia, Thomas, Lafayette and William Gracey, minor children of John Gracey, deceased, against Robert Gracey and his sureties, on the bond of said Robert Gracey, as the guardian of the above children of John Gracey, deceased.
    The following is the copy of the affidavit and the bond on which suit was brought:
    “ Samuel McGaugh, guardian of Adelia, Thomas, Lafayette and William Gracey, being sworn, says, that the. defendants above named are justly and legally indebted to the Commonwealth of Pennsylvania, for his use as such guardian, in the sum of $8000, said indebtedness arising as follows : Said Robert Gracey was duly appointed guardian of said Adelia Gracey, Thomas Gracey, Lafayette Gracey and William Gracey, and gave his bond in the sum of $8000, conditioned for the faithful performance of his duties as such guardian', and that he render a just and true account of the management of the property and estate of the minors under his care, and also to deliver up said property agreeably to the order and decree of said court or the direction of law, with James Rees and C. H. Love, as sureties. A true copy of said bond is hereto attached and made part hereof; and affiant further avers that, at No. 48, December Term 1876, said Robert Gracey, guardian, filed his account, showing a balance in his hands, October 17th 1876, of one thousand one hundred and ninety-eight and eight hundredths ($1198.08) dollars, on account of personal property, which said sum he has never paid, and the whole amount thereof, with interest from said date, is yet due. Affiant further says, that the Orphans’ Court of Allegheny county made an order and decree directing said Robert Gracey to pay to affiant said sum of money ; that more than twenty days have elapsed since said decree was entered, and that no appeal has been taken therefrom, and the money has not been paid. Wherefore, affiant avers that the Commonwealth of Pennsylvania is entitled, to judgment for his use in the sum of $8000, with leave to have execution for $1198.08, with interest, from October 1st 1876, and further saith not.”
    The following was the bond:
    “Know all men by these presents, that we, Robert Gracey, James Rees and C. H. Love, are held and firmly bound unto the Commonwealth of Pennsylvania in the sum of eight thousand dollars ($8000), lawful money of the United States, to be paid to the said Commonwealth, to which payment well and truly to be made, we do bind ourselves, our heirs, executors and administrators, and every of them, jointly and severally, by these presents. Witness our hands and seals, this 16th day of December 1865. Now, the condition of- the above, obligation is such, that if the above bounden Robert Gracey, guardian of Adelia Gracey, ThomasGracey, Lafayette Gracey and William-Gracey, minor children of John Gracey, late of the city of Pittsburgh, in the county of Allegheny, Pa., deceased, shall, at least once in every three years, and at any other time when required by the Orphans’ Court of Allegheny county, render a just and true account of the management of the property and estate of the minors under his care, and shall also deliver up the said property agreeably to the order and decree of said court or the direction of law, and shall in all respects faithfully perform the duties of guardian of the said Adelia, Thomas, Lafayette and William Gracey, then this obligation to be void, otherwise to be and remain in full force and virtue.”
    Robert Gracey. James Rees. C. II. Love. 'l. s.] Ji. s.] L. S.j
    James Rees filed the following affidavit of defence :
    “ That he has a good and full defence in this case. That although he signed said bond, yet the said guardian, as appears of record, made report that the personal estate of his said wards was exhausted, and obtained an order to sell real estate for their maintenance, and made said sale, and gave a new bond with James M. Riter et al., as sureties for the application of the proceeds. That all of said children, except William Gracey, the youngest, are now of full age, and said Samuel McGaugh has power to act and sue for the interests of but one of said children. That said Robert Gracey, principal, is bound in law .to file his separate account as to his management of the estate of said minor, for each of his said wards, of his receipts and expenditures for each child, and have fixed by the Orphans’ Court, by its decree, the amount the said guardian is. liable for to each, on account of their personal estate. That this has not been done, and but one joint account has been filed, and defendants submit that until said plaintiff has such accounts and decrees filed, and the liability of said guardian to each of his said wards held by such decree, no action can be maintained on the bail bond.”
    The plaintiff took a rule to show cause why judgment should not be taken for want of a sufficient affidavit of defence, which the court discharged. This writ was then taken, and this action of the court assigned for error.

      J. McF. Carpenter, for plaintiff in error.
    Plaintiff’s affidavit of claim, and copy of bond thereto attached, were a good statement of his cause of action, and he could have gone to trial without more: Graff v. Graybill, 1 Watts 428 ; Bowman v. Sharp, 6 Id. 324; Moyer v. Kirby, 14 S. & R. 161; Geary v. Cunningham, 17 Id. 424 ; Epler v. Funk, 8 Barr 468. Rule 9 of the Courts of Common Pleas of Allegheny county, only requires that plaintiff shall have filed his declaration, if one be necessary. The decree of the Orphans’ Court is conclusive upon both principal and surety. It fixes the amount of debt due by Robert Gracey to his successor, and cannot now be questioned : Moorhead v. Commonwealth, 1 Grant 214; Garber v. Commonwealth, 7 Barr 265. All the plaintiff would have to do at the trial of this cause before a jury, would be to offer in evidence the bond and the decree of the Orphans’ Court and rest. Defendants can only escape liability by showing payment or release, neither of which have been set up in the affidavit of defence, and could not, therefore, be proven. This case is analogous to that of Kase v. Greenough, 7 Norris 403.

      Barton & Sons, for defendants in error.
    The bond- sued on being the official bond of a guardian, is expressly covered by the Act of June 14th 1836, sect. 6, Purd. Dig. 162. As suggested by the affidavit of defence, before an action could be maintained the plaintiff must first have an account filed by the guardian for each ward, setting forth the amount due to him, and on what account, and the amount of each: Weyand’s Appeal, 12 P. F. Smith 198. Then the court, in the action upon the official bond, could fix the amount due to each, and thus conform to the act, and enter judgment for the Commonwealth for the penalty of the bond, and for the amount due to each child under the decree. But the plaintiff not only failed to observe the act relating to actions on official bonds, but he failed even to file a declaration. Rule 9 of the court requires that before judgment can be taken for want of an affidavit of defence, the plaintiff must file a declaration, if one be ne.cessary.
   Mr. Justice Paxson

delivered the opinion of the court, November 15th 1880.

The decree of the Orphans’ Court directing Robert Gracey, guardian, to pay over to the plaintiff, who is his successor in the trust, the money in his hands as such guardian, not having been appealed from, is conclusive both upon Gracey and the sureties upon his official bond. It is manifest, therefore, that in an action of debt upon such bond the defendants can have no defence but payment. The affidavit of defencesets up nothing of the kind. It makes some suggestions as to what ought to be done in the Orphans’ Court.in the way of distribution of the funds, but this is a question with which a defaulting guardian can have no concern. Having been removed from the trust his duty is to pay the money which the Orphans’ Court has adjudged to be in his hands.

No sufficient defence appearing in the affidavit, the plaintiff is entitled to judgment provided he has placed himself in a position to demand it. The, Act of 14th June 1836, Pamph. L. 639, prescribes the manner of proceeding upon official bonds. The plaintiff appears to have proceeded in substantial conformity to the act. It is true he did not file a declaration, but he did file a copy of the bond with an affidavit distinctly setting forth the breach. Rule 9 of the court below provides for the filing of a declaration before judgment by default only when necessary. It was not necessary here. The only benefit of a declaration would be to assign the breach and that was sufficiently done by the affidavit. The bond in question was clearly within the rule of court which prescribes in what cases judgment may be taken for want of an affidavit of defence, and as the affidavit of defendant disclosed no defence the plaintiff was entitled to judgment.

The order of the court below refusing to enter judgment for want of a sufficient affidavit of defence is reversed, • and it is now ordered that the record be remitted to the court below with directions to enter judgment against the defendants for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be so entered.'


author: Per Curiam.

text:
    Beam’s Appeal.
    While guardians should encourage habits of industry in their wards they have no right to profit by them. A ward is as much entitled to compensation for valuable services rendered his guardian as for those rendered to a stranger. What that compensation should be must, of course, .depend upon circumstances.
    November 1st 1880.
    Before Sharswood, 0. J., Mercur, Paxson and Sterrbtt, JJ. Gordon, Trunkey and Green, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 5.
    Appeal of Amanda Beanqand John W. Snee, executors of Francis Beam, guardian, from the decree of the court upon the exceptions to the account of said guardian.
    The court filed the following statement: “ W. W. Huffman is the son of Henry Huffman and grandson of Lewis Huffman, Sr., deceased. Henry Huffman died before his father, leaving a widow and two sons. Letters of administration on his estate were granted to W. J. Huffman; and Francis Beam was appointed guardian of his sons. The mother of W. W. Huffman was the sister of Francis Beam. After the death of Henry Huffman Mrs. Huffman and her children were taken by Mr. Beam to live with him, and so continued until W. W. Huffman attained his majority. During this period Mr. Beam cultivated, with the assistance of these children, a farm of about one hundred acres of land. In the only triennial statement filed by Mr. Beam, as guardian of exceptant, he claims credit for “ board of ward from April 1st 1864 to October 1869, at $2 per week, $557.” It is now claimed that this credit is excessive, and evidence was offered to show, and established the fact, that the services of exceptant were the equivalent of the board charged.”
    The court filed the following opinion : “While guardians should, it is true, encourage habits of industry in their wards, they have no right to profit by them. A ward is as much entitled to compensation for valuable services rendered his guardian as those rendered a stranger. What that compensation shall be must of course depend on circumstances. In the present case the services rendered by exceptant were certainly the equivalent of the board charged against him. . The assistance of himself and brother enabled his grandfather to dispense with the services of hired help in the cultivation of his farm, and this must have been an important saving. The proper cultivation of a hundred acres of land necessarily involves a large amount of labor.
    “ The relation which this exceptant bore to his guardian, as nephew and as a member of his family, is another reason for the disallowance-of the charge for board in the absence of proof of a special arrangement made under the supervision of the Orphans’ Court.” . ’
    The court made a decree in accordance with the foregoing opinion, when the appellants took this appeal.

      Duff & Alcorn and Malcolm Hay, for appellants.

      Robert B. Petty and Kennedy T. Friend, for appellee.
   The judgment of the Supreme Court'was entered November 18th 1880,

Per Curiam.

We affirm this decree upon the statement and opinion of the learned judge of the court below.

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


author: Mr. Justice Sterrett

text:
    Appeal of the School District of Aleppo.
    1. Where an action is brought by an old school district against a new district created therefrom, to determine how much the new district should pay the old for its proportionate share of the .real estate and school houses, another school district subsequently erected out of said old district cannot intervene in said suit and claim its proportionate share, but must wait the settlement between the old and the first new district and then make its claim against the old district.
    2. While the law provides that the new shall compensate the old district for any undue proportion of real estate and schools within the bounds of the former, it is otherwise as to the net assets of a personal nature, such as cash, &c., on hand at the time of separation.
    November 1st 1880.
    Before Sharswood, C. J., Mercur, Paxson and Sterrett, JJ. Gordon, Trunkey and Green, JJ., absent.
    Appeal from the Court of Quarter Sessions of Allegheny county: Of October and November Term 1880, No. 280.
    Appeal of the School District of Aleppo from, the decree of the court in the matter of the division of the school property of Kilbuck township.
    The material facts as set forth in the report of the master, L. P. Stone, Esq., will be found stated in the opinion of this court.
    M. McIntosh, for appellant.
    The proceeding was under the 11th section of the Act of April 11th 1862, Parnph. L. 474, Purd. Dig. 287. When Glenfield was formed, $600 were due to the old district, and if it had then been paid, the school territory, which afterwards became Aleppo district, would have received the benefit of 45 per cent, of $600. The delay of Glenfield in paying should not strip the territory which became Aleppo of its rights. The formation of a new district deprives no territory of its real estate, nor should it lose its claim in suit by a change of name. The award' of $600 was made up by including Aleppo’s territory, its real estate and school property, as part of Kilbuek. Her interests were discussed through the whole case, and only when awarding the money was she left out. The $600 were found due to the territory which Glen-field left, but awarded to 55 per cent, of that territory. But. Aleppo is told to sue Kilbuek. Our intervening petition is a suit against Kilbuek. Must Aleppo, be driven to another suit when she has intervened and proved her rights in this $600?

      S. M. Raymond, for appellee.
    Aleppo cannot sue Kilbuek.
   Mr. Justice Sterrett

delivered the opinion of the court, November 15th .1880.

The facts of this case are clearly presented in the carefully prepared report of the commissioner appointed by the court below. It appears tnat the borough of Glenfield, by virtue of its incorporation out of a portion of Kilbuck township, became a new school district, and went into operation as such on June 1st 1876. Subsequently the township of Aleppo was erected out of the remaining portion of what was originally Kilbuck township, and became a new school district on June 1st 1877. When the school district of Glenfield was created the old district of Kilbuck claimed that the new district had within its bounds an undue proportion of the real estate and school-houses belonging to the parent district, and presented its petition, praying the court to determine how much the new should pay therefor to the old district. While this proceeding was pending,.in March 1880, the school district of Aleppo presented a petition claiming a share of the money that might be found due and payable by Glenfield to Kilbuck, and asking to be made a party to the proceeding. -This was granted and the case proceeded. The commissioner found that the Glenfield district had within its bounds, at the time of its separation from the parent district, an undue proportion of real estate, school-houses, &c., amounting to $600.50 ; that the district of Aleppo, if entitled to claim in this proceeding, should receive $284.14 as its share thereof, but he suggested, in his report to the court, that the claim of Aleppo, if any it had, was against the district of Kilbuck, as it existed on the 1st day of June 1877, for a proportionate share of the uncollected assets and cash on hand at that time after the settlement of all accounts of the district to that date. The court adopted this as the correct view and decreed that the school district of Glenfield should pay to the school district of Kilbuck the sum of $600 found by the commissioner, and that each of the two districts should pay one-half of the costs ; thus excluding the district of Aleppo from any participation in the fund, on the ground that it had no right to claim in this proceeding. In this we think the court was clearly right; and the only error that appears in the case was in permitting the district of Aleppo to intervene; but that was cured by the final decree. The claim of the old district, of which the territory now composing the district of Aleppo was then a constituent part, arose on the 1st of June 1876, when Glen-field became a separate district, and it' was the exclusive right of Kilbuck to collect it as it would collect any other claim, without the interference of any new district that might thereafter be created out of its territory. If there was any cash on hand, outstanding taxes or other claims uncollected on the 1st of June 1877, when Aleppo became a new district, it was entitled to its proportionate share thereof, after the settlement of all accounts, of the district out of which it was created, up to that date ; but it had no claim whatever on the district of Glenfield for any part of the money due by it to the parent district. The money thus due, if not otherwise applied, would, however, enter as an asset into the settlement between that district and Aleppo; but, first in order, is the settlement between Kilbuck and Glenfield, to be made as of June 1st 1876, and then a settlement between Aleppo and Kilbuck, as of June 1st 1877. Perhaps it would not be impossible to arrive at a fair settlement, between the respective districts, in the manner contemplated by appellant, but it is not the orderly way of accomplishing that result, and for that reason, if no other, it should not be sanctioned. The claims, moreover, are of a different character. While the law provides that the new shall compensate the old district for any undue -proportion of real estate and school houses that may be within the bounds of such new district, it does not require the old district to make compensation to the new or outgoing district for an undue proportion of real estate and school houses within the bounds of the 'former; but, as already ¡remarked, it is otherwise as to the net assets of a personal nature, such as cash, &c., on hand at the time of the separation. If the appellant has any claim against the district of Kilbuck for a proportionate share of such assets, it is a proper subject of settlement between themselves, and, if they cannot settle amicably, the remedy provided by law must be pursued.

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


text:
    McCord versus Williams.
    1. The sale of the “ good will” of a school involves no personal effort on the part of the vendor to influence the attendance of pupils.
    ■2. In an action to recover the balance of the purchase-money under such a sale, it was error to admit circulars of rival schools which showed that the vendor was a principal therein without 'having first showed that said circulars were issued with his knowledge.
    3. In an action upon a note for a balance of unpaid purchase-money on a property, it was error to admit evidence of an agreement to sell the same property for a less sum.
    November 1st 1880.
    Before Sharswood, C. J., Mercur, Paxson and Sterrett, JJ. Gordon, Trunkey and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny eaunty: Of October and November Term 1880, No. 221.
    . This was an action upon a promissory note by George T. McCord against D. P. Williams, to recover the amount of said note which was given by defendant in part payment for Curry Institute, a normal school in the city of Pittsburgh.
    In bis affidavit of defence, Williams admitted the execution of the note, but alleged, inter alia, that as an inducement to the purchase of the school McCord agreed to sell the “ good will” thereof, and “ to use his personal influence to bring and procure the attendance of pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute,” and further alleged that plaintiff had failed to do so, whereby defendant had suffered damage, &c. Previous to the sale to D. P. Williams, McCord had sold the school to T. M. Williams and J. D. Kelley for $1200. Before possession was delivered Kelley sold his interest to one Fee. Williams refused to enter into a partnership with Fee, and the contract was then cancelled. McCord then.sold the school to defendant for $1800, in part payment for which the note in suit for $600 was given, and said note not being paid this suit was bi’ought thereon.
    At the trial, before Collier, P. J., the defendant offered in evidence a copy of Educational Voice, containing an advertisement of the Riverview Institute, an institution at that time under the charge of Messrs. Kelley & Fleck, and owned by them, wherein it appeared that McCord was advertised as one of the faculty. Plaintiff objected thereto for the reason that it does not appear that McCord ever knew that he was advertised as one of the faculty of said institute, and the advertisement was made at the time when he was actually engaged in the Curry Institute, and that the evidence is incompetent and irrelevant.
    “ Objections overruled.” (Third assignment of error.)
    Also, another circular of Riverview Institute. Plaintiff objected because the name of McOord does not appear in it, or in any way connected with it; and even if it did, it does not appear from any evidence in the case that McCord had anything'to do with getting up said circular.
    “ Objections overruled.” (Fourth assignment.)
    Also, the articles of agreement between McCord and T. M. Williams and Kelley, which the court admitted under objection. (Fifth assignment.)
    Also, a circular of the McCord Institute, which the court admitted under objection. (Sixth assignment.)
    In the general charge the court, inter alia, said:
    [“ Williams defends on the ground that he made a written agreement with McCord, which has been given in evidence to you, wherein the latter agreed ‘ to use his personal influence to bring and procure the attendance of. pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute,’ which he failed to do, but on the contrary allowed his name to be used in connection with another institute, thereby damaging him (the defendant) in a sum equal to the amount of the note.] This agreement you of course understand is a separate one from the agreement for the sale of the Curry Normal Institute by McCord to Williams. The two agreements should have been embodied in one, but it is not absolutely necessary that they should have been, and if Mr. Williams has satisfied you, because the burden of proof is on him, that McCord made that agreement and then-allowed his name to be published in connection with another institute, went to his father’s institute to teach, and that that injured or damaged him (Williams), whatever you find that damage was you may set off against the note. [The testimony on behalf of Williams, if believed, would make out a defence.] On the other hand, if the testimony of McCord and his witnesses is believed, the defence would not amount to anything, because it is perfectly consistent with the bargain.
    “ Remember, as I said before, that the burden of proof is on the •defendant. He must satisfy you of his defence by the weight of the evidence, and if he has failed to do that your verdict should be for the plaintiff.”
    The portions of the above charge in brackets constituted the first and second assignments of error respectively.
    Verdict for defendant, and after judgment plaintiff took this writ and alleged that the court erred as set forth in the above assignments of error.

      J. McF. Carpenter, for plaintiff in error.

      A. M. Brown, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of. the court, November 15th 1880.

The learned judge of the court below was certainly inaccurate in that portion of his charge embraced in the first assignment, of error. The written agreement between the parties contains no clause by which the plaintiff “ agreed to use his personal influence to bring and procure the attendance of pupils to said institute, and to lend the influence of his name for the benefit and advantage of said institute.” The most the agreement provided for was a sale of the “good will.” -But this involved no personal effort on the part of the plaintiff to influence the attendance of pupils. Nor was this error cured by the subsequent sentence of the charge in which reference was made to a separate agreement. The jury were still left under the impression that the plaintiff had entered into a written contract to lend his personal influence in favor of defendant’s school. We cannot say this error was immaterial. Juries give great weight to written agreements, and very properly. Such agreements usually embody the real contract between the parties; and the law presumes that all previous propositions and negotiations are merged in what they have reduced to writing. The evidence in regard to the agreement referred to by the court was altogether in parol, and consisted of alleged declarations of the plaintiff prior to the execution of the writing. Upon this point the evidence of the defendant was flatly contradicted by the plaintiff. Under these circumstances the jury might very possibly have found for the plaintiff but for this misleading portion of the charge.

The exhibits referred to in the third, fourth, fifth and sixth assignments were improperly received. They were not connected with the plaintiff: were not shown to have been issued at his instigation or as to most of them even with his knowledge. They were at the least irrelevant, and may have confused the jury. We cannot say how much harm they were calculated to do as the exhibits are not given in the paper-book. This is in violation of our rules of court, but as the counsel for plaintiff was not able to procure them for insertion in his paper-book, we will accept his excuse as sufficient.

The remaining assignments do not need remark.

Julgment reversed, and a venire facias de novo awarded.


text:
    Girard Fire Insurance Company versus Braden.
    In an action on a policy of insurance to recover for a loss by fire, the-plaintiff testified to the value of his stock of goods which had been burned and that his books and papery had been destroyed in the fire. Witnesses were then called who had experience in selling and estimating the value of goods such as plaintiff sold, who gave their opinion as to the value of the'stock shortly before the fire : Held, that as the testimony of these witnesses as to-the value of the stock of goods was in corroboration of the account of the-plaintiff it was a case in which their evidence as experts was properly admitted to go to the jury under the discretion which the court necessarily exercises on that subject.
    November 1st 1880.
    Before Sharswood, C. J., Mercur, Paxson and Sterrett, JJ. Gordon, Trunkey and Green, JJ., absent.
    , Error to Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 171.
    Assumpsit by William H. Braden against the Girard Fire and Marine Insurance Company on a policy of fire insurance. The insurance was for $2500, upon a stock of goods consisting principally of dry goods and such other articles as are usually sold in country stores. '
    The plaintiff alleged that the value of the stock at the time of the fire was $14,500, and that the loss was $11,650.23, which amount defendant contended was grossly in excess of the value.
    The plaintiff further alleged that his bills of purchase had been destroyed by the fire, and that he could not, therefore, give an itemized statement of what was on hand at that time, and his-mode of arriving at the value on the witness stand and in his-proofs of loss, was to take the value of his stock according to an inventory, which he said he had made on the 7th. of March 1878>. and add to the amount of that inventory what he estimated he had afterwards bought down to the time of the fire, and deduct what he claimed to have sold in the meantime. The balance he claimed was the value of the stock. The amount of purchases made between the date of the inventory and the date of the fire, he said he arrived at by referring to some unpaid bills in his possession, and to his bank account. The checks which had been drawn upon his bank account were not produced on the trial, but were also alleged to have been destroyed by the fire.
    At the trial, before Bailey, A. L. J., the plaintiff produced witnesses in order to show the value of his stock of goods at the time of the fire. One of these witnesses was a wholesale dealer in notions, with an experience of sixteen years,' who had sold goods to Braden and had been in his store a number of times. Another kept a similar country store. A third was a travelling salesman for a large wholesale firm in Philadelphia, and a fourth a prominent auctioneer whose business had principally consisted in the sales of the goods of stores. These witnesses had all seen the stock shortly before the fire. They were permitted under objection to give their opinion of the gross valué of the stock prior to the fire, from the appearance of the store as they had seen it, and from their experience in selling and estimating the value of goods. They all estimated the value at about $12,000. •
    The verdict was for the whole of the plaintiff’s claim, when the company took this writ and alleged that the court erred in admitting the testimony of the above witnesses.

      Thomas C. Lazear and John Dickson, for plaintiff in error.—
    Not one of the witnesses was conversant with the value of all the articles in the store, nor did one of them know what quantity, quality or description of goods were there, in respect to wdiich they claimed to have some knowledge of value. Iiow could their knowledge of the value of a part enable them to judge of the value of the whole, and how could they judge even of the value of a part without knowing of what that part consisted ?

      George Shiras, Jr., Knox & Reed and J. L. Judson, for defendant in error.
    The counsel for plaintiff in error have confounded the competency of the witnesses with the sufficiency of their testimony. Whether they were competent to form an opinion and testify to an estimate of the stock was one thing, and was for the court; whether that estimate when made was of any value and entitled to any weight was another thing, and wrns for the jury. It will appear from the history of the case that the plaintiff had already testified in detail to the value of the stock, giving items, both as to quality and value. These witnesses were' called to corroborate the plaintiff, not as to the items embraced in his loss, but as to the general appearance and value of the stock. But the admission of the testimony of these witnesses falls within the rule laid down in Ardesco Oil Co. v. Gibson, 13 P. F. Smith 146, and Sorg v. First German Congregation, 13 Id. 156, that “ whether a witness is an expert, qualified to pronounce an opinion, must, in a great measure, be confided to the discretion of the court below trying the cause, and we will not reverse either on account of the admission or rejection of such evidence, unless in a clear and strong case.”
   The judgment of the Supreme Court was entered, November 15th 1880,

Per Curiam.

The plaintiff below had been examined as to the amount and value of his stock consumed by fire. His books and papers had all been burnt. The testimony of the witnesses as to their opinion of the value was in corroboration of his account, and we think it was a case in which their evidence as experts was properly admitted to go to the jury under the discretion which the court necessarily exercised upon that subject. We never reverse either for the admission or rejection of such evidence unless in a clear and strong case.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Federal Street and Pleasant Valley Railway Co. versus Gibson.
    1. While in many oases the mere fact of injury to a passenger on a railway car raises the presumption of a want of care, as where the injury results from defective track, cars, machinery or motive power, yet where a passenger in a railway car is injured by the act of a third party, over whom the railway company has no control, the burden of 'proof is upon the passenger to show not only that he was not guilty-of contributory negligence but that the company was guilty of negligence and that thereby the injury was caused.
    2. A passenger on the street car of a railway company was struck and injured by a passing load of hay i Held, that to make the company liable the passenger must prove not only that he was without fault but 'that the company was negligent.
    3. AVhere a point is certified by the record and it appears thereby that it was offered and a bill sealed, although it was afterwards withdrawn, it may be reviewed by the Supreme Court.
    November 1st 1880.
    Before Sharswood, C. J., Mercur, Paxson, and Sterrett,- JJ. Gordon, Trunkey and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 211.
    Case by A. J. Gibson against the Federal Street and Pleasant Valley Passenger Railway Company, to recover damages for an injury alleged to have been caused by the negligence of one of defendant’s drivers.
    At the trial it appeared that on the morning of July 8th 1879, plaintiff while riding down Federal street, in the city of Allegheny, in one of the ears of the defendant, was sitting in the car by the open window, his left arm resting on the window ledge, but, whether it projected beyond the ledge was not shown. A load of hay passing along the street dragged the plaintiff’s arm out of the window,' and it was so crushed between the hay and the car that it was broken and otherwise injured. The car driver testified that he saw the load of hay coming, but thought he had plenty of room to pass,- and that he therefore did not check the speed of the car, but continued at a trot, the gait at which he was going when he first saw the load of hay approaching.
    The first point of the plaintiff which the court affirmed was as follows:
    If the jury believe from the evidence that the plaintiff, while a passenger on the defendant’s street car, was injured, without his own fault, the plaintiff is entitled to recover, unless the defendant satisfies the jury by the weight of the evidence that the injury arose from an accident which could not be prevented by the utmost skill, foresight and diligence on the part of defendant’s driver. (First assignment of error.)
    The first point of defendant, which the court refused, was as follows:
    The court is requested to charge the jury that there is no evidence in the case sufficient to show negligence on the part of the defendant, and the jury should find for the defendant. (Third assignment.)
    In the general charge the court, Collier, A. L. J., inter alia, said :
    “If the plaintiff was injured without any fault on his part, then the burden is upon the .company to show that the driver exercised the utmost degree of care and skill. (Fourth assignment.)
    “ If you find that the plaintiff was injured without fault on his part, the defendant company must satisfy you that the driver was not negligent, that he took the utmost care he could under the circumstances, otherwise your verdict must be for the plaintiff.” (Fifth assignment.)
    After th.e plaintiff’s points were read to the jury his counsel withdrew them.
    Verdict for plaintiff for $500, and after judgment thereon defendant took this writ, and alleged that the court erred as set forth in the above assignments of error.

      A. M. Brown and C. C. Dickey, for plaintiff in error.
    A carrier is not liable for injuries resulting either from the negligence of the passenger or from the misconduct of third parties when there is no such privity between them and the carrier as to make the latter liable on the principle of respondeat superior: Pittsburgh, Fort Wayne & Chicago Railroad Co. v. Hinds, 3 P. F. Smith 512. But whether or not plaintiff was chargeable with contributory negligence, we submit that the court not only failed to state correctly the principle of law applicable to the case, but positively erred in casting the burden of proof upon the defendant: McCully v. Clarke, 4 Wright 399; Philadelphia & Reading Railroad Co. v. Hummell, 8 Id. 375; Allen v. Willard, 7 P. F. Smith 374; Pennsylvania Railroad Co. v. Goodman, 12 Id. 329. If the injury had been occasioned by a defective car or defective machinery employed by the company in its business, the burden of disproving negligence would have rested upon the defendant, but here the alleged injury was caused by the act of an outside party driving a wagon along a public street.

      J. W. Over, for defendant in error.
    The first assignment of error is improperly made as the points of plaintiff were withdrawn. The case was submitted to the jury on the charge of the court and the answers to defendants’ points. The onus of proving negligence is upon the carrier when the injury is caused by a want of diligence or care in those employed: Miller v. Pennsylvania Railroad Co., 14 P. F. Smith 230.
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

This action was by a passenger to recover damages which he sustained while in a car of a street railway company, in being struck by a passing load of hay. He sat hear an open window,with his arm so exposed that it was struck and injured by the hay on a passing wagon. Thus the proximate cause of injury, at least in part, was caused by the act of a third party, over which the railroad company had no control. If the injury was caused by contributory negligence of the passenger, or by the sole negligence of the driver of the wagon, there should be no recovery against the company. _ The jury has found the passenger was without fault on his part. To enable him to recover he must also prove that the company was guilty of negligence and its negligence was a cause of the injury. It is just here that the errors covered by the first, fourth and fifth assignments appear. The learned judge substantially charged, if the defendant in error was without fault, the company must prove that it was guilty of no negligence. Thus shifting the burden of proof resting on the passenger and throwing it on the company to disprove negligence. This was error. The duty rested on the defendant in error to prove negligence of the company. Without this he established no cause of action against it: McCully v. Clark, 4 Wright 399; Allen v. Willard, 7 P. F. Smith 374; Waters v. Wing, 9 Id. 211. It is true in many cases the mere fact of injury to a passenger raises the presumption of want of care on the part of a railroad company. Such is the case when the injury results from defective track, cars, machinery or motive power. Here there was no privity between the company and the’driver of the wagon. It was then not liable for the act of the driver thereof on the principle of respondeat superior: Railroad Co. v. Hinds, 3 P. F. Smith 512. The ear did not leave its track. It is not alleged that any of the property of the company was improperly constructed or out of repair. If we correctly understand the complaint, it relates solely to the speed of the car. We see nothing in the case which relieved the defendant in error from proving negligence, or that threw on the company the burden of disproving it. It is not sufficient that he be free from fault, he must prove other facts creating a presumption at least of negligence in the company producing the injury. The question then on this branch of the case, is whether, under the whole evidence, the jury is satisfied that the company did not use all just and proper care and diligence to prevent the injury?

It was urged on the argument that the first assignment was improperly made, as the point covered thereby was withdrawn. It is, however, duly certified as a part of the record, showing that it was affirmed and bill sealed for defendant below. This creates a presumption that it was read and answered in the hearing of the jury. It then had an effect not removed by its subsequent withdrawal, and may be reviewed. That question is of no practical importance now, inasmuch as substantially the same instructions are contained in the portions of the charge covered by the fourth and fifth assignments. The second and third assignments are not sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Lewis versus The Germania Savings Bank.
    1. Certain real estate of a mortgagor was sold in Butler county, and in the distribution of the proceeds the mortgagee, a bank, was a distributee, but was not authorized to take out its distributive share of the fund except upon assigning to the prothonotary of said county in trust, a corresponding amount of the mortgage : Held, that the mortgagee was not bound to do this for-the benefit of a terre-tenant who purchased the- mortgaged premises subject to the mortgage, and until the mortgagee received the amount of the award it had the undoubted right to proceed upon the mortgage to collect the debt secured thereby.
    2. The terre-tenant alleged that he called at the bank and offered to pay the interest falling due and also the principal debt, but was informed by the proper officers of the bank that “ they did not need the money and to let it stand until the Butler county matter was disposed of,” and that shortly after-wards without making any demand for payment of principal or interest, suit was brought on the mortgage. It was contended that under the cireumstances and the agreement to give further time the bank was not entitled to recover attorney’s commissions: Held, that this would be so, if the defendant, even after suit was brought, had been reasonably prompt in paying or tendering payment of the debt and interest.
    3. While stipulations for the payment of attorneys' commissions in mortgages and other securities are valid, they are, nevertheless, subject to the equitable control of the court and will be enforced only to the extent of compensating the plaintiff for reasonable and necessary expenses of collection, and where a debtor has been misled by his creditor or thrown off his guard, it is not an unreasonable exercise of the equitable power of the court to refuse any allowance for attorneys’ commissions : but to justify such action the defeudant should attest his sincerity and good faith by promptly paying or tendering the amount of debt and interest, exclusive of commissions.
    4. In general this court will not review the exercise of a sound discretion by an inferior court upon such a question and the presumption will always be in favor of its discretion unless it is plainly excessive.
    November 1st 1880.
    Before Sharswood, C. J., Mercur,Paxson and Sterrett, JJ. Gordon, Trunkey and Green, JJ., absent.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1880, No. 262.
    Scire facias sur mortgage issued by the Germania Savings Bank of Pittsburgh against W. A. Lewis, impleaded with James I. and William Robinson. Lewis filed an affidavit of defence which set forth that he has a just and legal defence to the whole of plaintiff’s claim, except as to the part of the principal debt unpaid, which, with interest amounts to the sum of $2468.23, which defence consists of the following facts : Jas. I. Robinson was and is the principal debtor to the plaintiff for the moneys now demanded in this suit, and the mortgage sued on originally required the payment of $8000 and interest to pay and satisfy the same, which whole amount was the debt of’ said James I. Robinson, and so known to the plaintiff when the debt was contracted. This mortgage originally covered the lands of James I. Robinson in Butler county, which were released as hereinafter stated and the lands of William Robinson, the other defendant (who was security for this and other debts of James I. in Allegheny county) of the probable value of $12,000 or $13,000 substituted to enable James I. to borrow the money, and this fact was well known to plaintiff: that afterwards the plaintiff was paid by James I. Robinson $3500 of the principal debt, and the plaintiff released his lands in Butler county from said mortgage ; and about the same time James I. Robinson gave William Robinson a judgment bond in the penal sum of $18,000 in trust to pay his numerous creditors for whose claim William was security in some form, and among others the said plaintiff, for a part of the balance of said mortgage then remaining unpaid, to wit, $3500 ; that afterwards, on the 12th of April 1879, the said lands of William Robinson, in Allegheny county, included in said mortgage as aforesaid for the benefit of James were sold by the sheriff upon proper writs and were purchased by affiant for $5000, subject to the plaintiff’s mortgage; that in the distribution of the said $5000 purchase-money, the judgments owned by the affiant at the time, and sought thereout to be paid, were not reached to an amount above $6000, as the records show; that afterwards, at September Term 1879, the property of. James ®L Robinson, in said Butler county, was sold, sur judgment entered upon the bond given to William in trust, as aforesaid, and a fund of about $6000 raised to apply to the claims of the cestui que trustent therein named, which fund, upon due proceedings, was distributed by the auditor, and the sum of $2279.77 awarded to plaintiff in payment pro tanto of said mortgage debt, which distribution of said sum to plaintiff was demanded by plaintiff through its proper officer, who appeared before the auditor and made due proof of the right of the plaintiff to participate in said fund, and to receive thereout the proper proportion due from said fund, if any, on account of the said mortgage debt; that afterward said auditor filed his report in the Court of Common Pleas of Butler county, distributing, inter alia, the sum of $2279.77 to the said plaintiff, pro tanto, of said mortgage debt, but suspending the payment thereof until the plaintiff had exhausted the security (to wit, the William Robinson mortgage), or shown the same to be worthless ; to which report, before filing, the said plaintiff, by its proper officer and corporate seal duly attached, and upon the advice, after consultation of J. L. Koethen, Esq., made exceptions in writing, now or late on file in said court, and which being overruled by the auditor, were duly renewed in court; and afterwards to wit., on the 15th of July, 1880, the court (Bredin, J., presiding) overruled the exceptions and confirmed the auditor’s report, whose decision is here attached by copy; that after receiving notice'by copy, on or about July 17th, that such decision and decree had been made, affiant called upon J. L. Koethen, Esq., the attorney of plaintiff, and under whose instructions all previous actions by the bank in this matter had been taken, and told him that an appeal to the Supreme Court should be taken; that the authority cited for the decision did not apply, and. that the bank for its protection should take the appeal, which being arranged after full discussion with.the secretary and treasurer and the bank’s attorney, the affiant agreed, verbally, at the time, to bear all expenses and outlays, and because of change of attorneys, this was not by plaintiff carried out; that Chas. M. Seibert, the secretary and treasurer of said bank, and the officer who seemed and talked as though he managed the affairs of the bank, agreed to go himself to Butler county, or have the vice president go; that on July 30th, having previously discovered that the bank itself would not bring or take an appeal and certiorari, or give authority to this affiant, or any one else, to bring or take the same, affiant served notice upon the plaintiff, which notice embodies the agreement and arrangement made with Mr. Seibert, Mr. Koethen and myself, previous thereto, say two or three days before; that this appeal has not been taken by plaintiff, and neither affiant nor any one else authorized to take the same so far as affiant knows ; and affiant further says that the judgment entered in this case should not be for attorney’s commissions, $225, or for costs, and for a defence thereto he says: that previously to June 4th last past, affiant called upon plaintiff and offered to pay the interest falling due on said June 4th, and the principal debt, the interest being from December 4th 1879, at 8 per cent, on $4500; that affiant then and there offered to pay the said principal, debt and interest, and was ready, able and willing to pay the same, but the proper officer of said plaintiff said that they did not need said moneys, and to let it stand until the Butler county matter was disposed of; that they had plenty of money, &e.; that no request nor demand was made by said plaintiff before bringing this suit, for the payment of either interest or principal, and the matter was not talked of prior to this suit, but if demand had at any time been made for such payment this affiant was ready, able and willing to make such payments ; wherefore, affiant says, that neither he nor his property is in any default of payment, and until the same was demanded, and default made thereafter, no penalty attaches to him or his property; the said attorneys’ commissions being a penalty put upon the mortgagor by his own act, for a compensation in case of default by the terms of the mortgage, but in this case the bank waived default, and this at its own request, suggestion and arrangement, and because said plaintiff was inquired of whether affiant should pay interest and principal prior to June 4th ult., at which time the semi-annual interest would fall due, and the principal was then overdue, this affiant says the costs and commissions were not necessary to make claim for by suit, and plaintiff waived the same without some demand after said waiver which was not made in any way.
    Affiant says further: 1. That judgment for $2468.23 should be entered without costs in favor of the plaintiff. 2. That as affiant is advised and believes the foregoing stated facts show a payment to the plaintiff of $2279.77 by the principal debtor, which payment although not actually in moneys, the plaintiff .is entitled to, and being so entitled the plaintiff by lawful proceedings has recovered and is entitled to the said moneys in law ; and' affiant says that he believes the foregoing facts as stated to be true, &c.
    Lewis also filed a supplemental affidavit of defence wherein he averred that he desires to say in further justification of the position taken by him in his affidavit of defence above, that at the meeting of this affiant with the proper officer of said plaintiff (which proper officer was Charles Seibert) in the month of June last past and prior to the 4th day thereof, in addition to the statement contained in above affidavit, it was mutually arranged by and between this affiant and said Seibert that, upon the receipt of the fund distributed by the Court of Common Pleas of Butler oounty, the plaintiff after deducting the interest up to the time would credit the principal debt with the balance of said moneys, and carry the balance of the mortgage debt for affiant at the stipulated interest until plaintiff wanted the same paid, and then and there gave the reason therefor as set forth in the affidavit filed as aforesaid, to which arrangement and agreement proposed this affiant assented ; that affiant has at no time or in no way made default in payment of said mortgage debt except and in the way set forth in this and the previous affidavit, which default the plaintiff waived and asked affiant in effect to continue said mortgage until the moneys secured thereby were wanted by the plaintiff; that affiant is advised and believes that he is indebted to the plaintiff as terre-tenant in the sum mentioned heretofore in his affidavit, without costs and without attorney’s commissions.
    The plaintiff took a rule to show'cause why judgment should not be entered for want of a sufficient affidavit of defence, which the court made absolute. Lewis then took this writ and assigned this action of the court for error.

      S. M. Raymond, H. W. Weir and W. L. Chalfant, for plaintiff in error.
    The facts set forth in the affidavits of defence must be taken as absolute verities. It was the duty of the bank to make the money appropriated to it in Butler county — the hank had made by its execution the sum of $2279.77, to apply to the mortgage debt of James I. Robinson — having done so it was bound, in protection of the surety, to pursue the same until received or finally decided adversely. It could not abandon the fight either after the auditor had decided nor the puisne court; the determination must be had here, before the bank can say the money appropriated by the auditor is not receivable by it to the credit of the mortgage. The bank having pursued the principal debtor by execution, and received an award of the money must pursue its legal remedies to the end, and if it abandons its remedies it releases the surety pro tanto: Stephens v. Monongahela National Bank, 7 Norris 157; cases cited in Rees v. Barrington, Leading Cases in Equity (White & Tudor), vol. 2, part 2, p. 1867. The attorney’s commissions cannot be claimed as it was at no time necessary to collect by law. The question of default under the affidavits was one for the jury, and should have been so left.

      George W. Guthrie, for defendant in error.
    The defendant in error had nothing to do with the relative rights of Lewis and William and James I. Robinson. We hold our mortgage on William’s farm— let it be granted that James was originally the principal debtor and that the position of the parties had not been changed, there is no' rule of law or equity which enables the surety to require the creditor to proceed first against the principal: Geddis v. Hawk, 1 Watts 280 ; McCarthy v. Gordon, 8 Whart. 321; or to make use of its position to compel the surety to pay the debt' twice for the benefit of a third party. That the officers of the defendant in error at the solicitation of Lewis (for the affidavit of defence shows that the action was so taken), and without a full knowledge of the situation, claimed the proceeds of the Butler county farm and were refused, cannot change the situation; it was under no obligation to make the claim, and having made it, Lewis was the party to appeal from the decision if any appeal was to be taken.
    As to costs and attorney’s commissions, it is submitted that the affidavit shows no reason why defendant in error should not recover them. 'It might be true, if the plaintiff in error had been misled by an officer of the bank, and had immediately, upo.n service of the writ in this case, tendered payment of the amount due upon the mortgage, that he would in equity have been entitled to relief; but he did not do so — he-made defence to part of the claim (which he still endeavors to maintain) and merely tendered judgment for the balance, without costs or attorneys’ commissions, leaving us to collect it at our own expense. The commission allowed is for collection, not merely for issuing a writ of scire facias, and can be demanded if collected by an attorney after default, even without suit: Imler v. Imler, 13 Norris 372.
   Mr. Justice Sterrett

delivered the opinion of the court, November 15th 1880.

Assuming all the allegations of fact contained in he affidavits of the defendant below to be true, they do not constitute a valid defence to the payment of the principal debt and interest or any part thereof. It is not pretended that any part of the fund distributed by the Court of Common Pleas of Butler county has ever been received and applied to the mortgage-debt; on the contrary, it appears by the opinion of that court, which is referred to and made part of the affidavit of defence, that the bank is not authorized to take out of court its distributive share of the fund, except upon assigning to the prothonotary in trust, &c., a corresponding amount of the mortgage upon which this suit is brought. It is very clear that the bank is not bound to do this for the benefit, or supposed benefit, of the terre-tenant, who purchased the mortgaged premises subject to the mortgage in question. It is the principal security for the debt. The judgment on which the money was realized in Butler county, was merely collateral, and until it is awarded- to and received by the bank, there can be no question as to its right to proceed on the mortgage for the purpose of collecting the debt secured thereby.

There is nothing substantial in the alleged agreement of the bank to give further time to the terre-tenant, for the reason that no sufficient consideration for such agreement is disclosed in the affidavits of defence.

The only matter about which there can be any room for doubt is the item of attorney’s commissions. It is alleged by the plaintiff in error that prior to June 4th he called at the bank and offered to pay the interest falling due on that day, and also the principal debt, but was informed by the proper officer of the bank that “ they did not need the money, and to let it stand until the Butler county matter was disposed of,” &c, and that shortly afterwards, without making any request or demand for payment of principal or interest, suit was brought on the mortgage. It is contended that under the circumstances detailed in the affidavits of defence, as to the agreement to give further time, the plaintiff below was not entitled to recover attorney’s commissions. . We think this would be so if the defendant, even after suit was brought, had been reasonably prompt in paying, or tendering payment of the debt and interest secured by the mortgage. In Daly v. Maitland, 7 Norris 384, it is held that while stipulations for the payment of attorney’s commissions in mortgages and other securities are valid, they are, nevertheless, subject to the equitable control of the court, and will be enforced only to the extent of compensating the plaintiff for reasonable and necessary expenses of collection. Applying this doctrine to the case of a debtor who has been misled by his creditor and thrown off his guard in the manner the plaintiff in error alleges he was, it would not be an unreasonable exercise of the equitable power of the court to refuse any allowance for attorney’s commissions ; but, to justify such action on the part of .the court, the defendant should attest his sincerity and good faith by promptly paying or tendering the amount of debt and interest, exclusive of commissions. This was not done in the present case. On the contrary, the defendant took defence to about one-half of the plaintiff’s claim, and failed to pay or even tender the residue. The course thus pursued by him has entailed on the bank the expenses of litigation which is not yet ended. Its claim was contested in the court below, and after an adverse decision there it has been obliged to follow the defendant into this court. Under such circumstances he has no. equitable claim to relief from the stipulation in the mortgage for payment of attorney’s commissions. It was inserted for the very purpose of indemnifying the bank against just such expenses as it has incurred, and may yet become responsible for, in the collection of its claim in this case. In the case above cited it is said by the present chief justice : “In general this court will not review the exercise of a sound- discretion by an inferior court updn such a question, and the presumption will always be in favor of its discretion unless it is plainly excessive.” Guided by this principle we see no error in the court below in allowing attorney’s commissions and including the same in the judgment. Under the circumstances disclosed by the record, the discretion with which that court is invested in such matters was wisely exercised.

Judgment affirmed.


text:
    Appeal of Henry W. Patterson, Administrator.
    Where a judgment is entered on the same day but after the death of the defendant debtor the legal fiction of a relation of judgments does not apply, and it is not entitled to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors.
    November 3d 1880.
    Before Sharswood, C. J., Merour, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ. absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1880, No. 84.
    Appeal of Henry W. Patterson, administrator of Alfred Patterson, deceased, from the decree of the court in the matter of the account of the said Alfred Patterson, administrator of S. M. Kier, deceased, of the proceeds of the sale of real estate of said decedent.
    On the 12th of September 1874, Alfred Patterson brought suit in the Commom Pleas Court No. 1 of Allegheny county, against Samuel M. Kier, both of whom were then living, to recover the amount of two promissory notes on which the latter was liable as endorser. On the 6th of October 1874, judgment was entered therein against the defendant for the sum of $10,020 in default of an appearance, &e., on a precipe filed by the plaintiff. On the same day of the entry of this judgment S. M. Kier, the defendant, died, and from affidavits subsequently filed in the case it appeared that his death occurred at 5 o’clock in the morning, and that the judgment was not entered before 9 o’clock of the same morning.
    On the 10th of October 1874, S. Schoyer, Jr., Esq., attorney for defendant, presented to said court an affidavit made by W. L. Kier, a son of the defendant, setting forth that S. M. Kier, died at 5 o’clock on the morning of October 6th 1874, accompanied with an affidavit of the prothonotary’s clerk, that said judgment was entered between 9 and 10 o’clock of that day: and thereupon, on motion of said attorney, a rule was granted on the plaintiff to show cause why said judgment should not be vacated as improvidently entered, which rule on the 17th of the same month, was made absolute. But afterwards, on the 9th of January 1876, on motion of Alfred Patterson, the order making said rule was rescinded: and on the 10th of March 1876, the motion to strike off said judgment was withdrawn by Mr. Schoyer, defendant’s attorney, he being at that time also the attorney for Mrs. Nancy B. Kier, then the administratrix of the estate of S. M. Kier, deceased, and who, on the 17th of October 1874, had, on Mr. Schoyer’s motion, been substituted as defendant.
    On .the 15th of April 1879, Cyrus Clark, Jr., the present administrator of said estate, William Donnell, and other creditors, applied to said court to have the said order of January 9th 1876, rescinded, and the said judgment set aside; but the rule granted on this application, after argument by counsel, was discharged on the 31st of May 1879.
    Mrs. Nancy B. Kier having, on the 23d of May 1877, been removed as administratrix, the said Alfred Patterson was appointed in her stead as administrator de bonis non, of the said S. M. Kier, and as such administrator he afterwards sold certain real estate of the decedent, situated in Allegeny county, under an order of the Orphans’ Court; and before filing his account of said sale Mr. Patterson also died on the 11th of December 1878. But his administrator, Henry W. Patterson, filed such an account after the death of the said Alfred Patterson ; and this is the account now in controversy, the matter in dispute being the credit taken in said account for the sum of $8694.53 appropriated to the aforesaid judgment. Exceptions were filed to the allowance'of such credit by Cyrus Clark, Jr., the present administrator de bonis non, of the said S. M. Kier, deceased, and also by a number of the creditors of said estate, on the ground, as they contended, that said judgment was not entitled to priority over other debts of the decedent in the distribution of the fund. These exceptions were afterwards argued and were sustained by the court; and on the 8th of October 1879, the court entered the decree from which the appeal in this case was taken, surcharging Alfred Patterson, the accountant, with the sum of $8694.53, and ordering that this amount- be paid to Cyrus Clark, his successor.
    The following was the opinion of the court:
    “ The only question which was pressed upon the court in this case was, whether the judgment of Alfred Patterson, entered against S. M. Kier after, but on the day of the death of the latter, was entitled to priority of payment out of the proceeds of the sale of real estate over the claims of general creditors. It was claimed on behalf of Mr. Patterson; (1) That his judgment could not be attacked collaterally; it appeared upon its face to have been entered against Mr. Kier in his lifetime, and must be presumed in this proceeding to have been in fact so entered; and (2) that the lien of his judgment related by a legal fiction to the beginning of the day on which it was entered, and therefore antedated the death of Mr. Kier, and is entitled to priority of payment by reason thereof.
    “ 1st. A judgment and the subject of its grasp are distinct things, and may be so treated without impairing the record. The judgment itself as such cannot be attacked collaterally except for collusive fraud or want of jurisdiction in the court which pronounced it; but its lien may be attacked in a variety of ways. Thus in Sankey v. Reed, 2 Jones 95, parol evidence of an agreement between the plaintiff and defendant was admitted to restrict the lien of the judgment. So in Bank v. Gorman, 8 W. & S., 309, it was held that it was competent to show at what time of the day a voluntary assignment was made, with a view to affect the lien of a judgment. The same point was ruled in Boyer’s Appeal, 1 P. F. Smith 43. So in Ex parte D’Obree, 8 Ves. 83, Lord Chancellor Eldon held that it was competent to show whether an act of bankruptcy was committed before or after a judicial act. To the same effect are Thomas v. Desanges, 2 B. & Ald. 586, and Sadler v. Leigh, 4 Camp. 197. So in Lanning v. Pawson, 2 Wright 486, circumstantial evidence was held admissible to show that the defendant was in fact dead at the time of the entry of the judgment.
    “ 2d. It has long been the settled law of Pennsylvania that the rights of creditors become fixed the instant of the debtor’s death with respect to the distribution of decedent’s estate; and that no creditor can by any subsequent act deprive his fellows of those rights: Leiper v. Levis, 15 S. & R. 108 ; Prevost v. Nichols, 4 Yeates 487 ; Turner v. Hauser, 1 Watts 422 ; Bosler v. Bank, 4 Barr 34; McClintock’s Appeal, 5 Casey 360 ; Kelly’s Appeal, 27 P. F. Smith 232; Roumfort v. McAlarney, 1 Norris 193. The twenty-fifth section of the Act of February 24th 1834, Purd. Dig. 422, pi. 89, makes ‘ all judgments which at the time of the death of the defendant are liens on his real estate * * * rank according to their priority at the time of such death.’ The twenty-second section of the same act, Purd. Dig. 421, pi. 85, provides for ‘ all debts other than these:’ Ramsey’s Appeal, 4 Watts 73. In the absence of provision for the priority of lien of judgments entered subsequently to the.‘time of death,’ it must be presumed that no priority was intended to be given. JSxpressio unius exalusio alterius. And without statute it cannot exist. ‘It is a fundamental doctrine in the Pennsylvania law of decedents, that the legal character and effect of a debt due by a decedent’s estate is to be collected from what was its condition at the decease of the debtor. If it was specialty or simple contract, then such it continues, so far as respects the order of its payment, although it has passed into a judgment in a suit brought by the creditor against the executors or administrators of the deceased:’ Wootering v. Stewart, 2 Yeates 483; Moliere’s Lessee v. Noe, 4 Dall. 450; Penn Bank v. Stambaugh’s Adm’rs, 13 S. & R. 399; Fryhoffer v. Busby, 17 Id. 121. This doctrine holds equally good whether the question to be determined be, whether a debt is entitled to rank in the order of payment as a judgment; or, whether an admitted judgment .is or is not a lien. The rationale of each is the same, viz., that at the death of the debtor his estate, real and personal-, stands pledged by operation of law for the payment of his debts; that the actual appropriation of his estate for this purpose, although postponed for reasons of convenience, is supposed to be made immediately on his decease, consequently the condition of claims against him as they stood at his decease are to be regarded; no particular creditor, who may-have lost an advantage by laches during the lifetime of the debtor, being permitted to regain his loss at the expense of others, who in abstract equity stand equal to himself.
    “For example, a judgment-creditor who has, before the death of his debtor, suffered the lien of his judgment to expire by effluxion of time; a judgment-creditor who during the life of his debtor has never proceeded to attach the lien of his judgment to after-purchased property not bound by it; or, as in this case, the holder of a quasi judgment, to the perfection of whose character as a judgment binding on land a step is wanting which ought to have been taken during the life of the debtor: in all these cases the creditor’s priority of lien is gone. Nor is there any particular hardship in this, more than the creditor might have suffered from his laches, even living his debtor. If in either of the enumerated cases the judgment-creditor had sold his land, the purchaser would have held it discharged of the lien of the judgment; why then, if he should die while judgments against him stand in this condition, should not his general creditors occupy as favorable a position as a purchaser under him? Bank of North America v. Fitzsimmons, 3 Binn. 342; Patterson’s Estate, 1 Ash. 336, per President King.
    “ Is the fiction of relation of judgments consistent with this ‘ fundamental doctrine ’ of the law of decedent ? . A satisfactory answer to this question may be found in the opinion of the court in Leiper v. Levis, 15 S. & R. 108. That was a case in which an execution had been issued after the death of the debtor, and was sought to be made effective by the fiction of relation- to the first of the term in which the debtor had died: but the principle of the two cases is the same. Rogers, J., said : ‘ The practice of Pennsylvania is too well settled to be now shaken, that a judgment may be entered or execution issued after the death' of the defendant, and that the execution has relation to the -first day of the preceding term. This legal fiction works no injustice between the parties themselves or their legal representatives, and may be justified by the consideration that the practice facilitates the collection of debts certainly due, from an estate acknowledged to be solvent. If we were now, for the first time, to consider whether legal relations and legal fictions should be introduced, it would perhaps be wise to inquire into, and sift most minutely, the foundation on which they were supported. This, however, is not a case where rights of the parties only are involved, but it concerns creditors and the responsibilities of administrators. It is the case of an insolvency, and an attempt, by means of a legal fiction, to deprive other creditors of a vested right. * * * Fictions were not intended to do injustice, nor should they be permittted to interfere with the operation of a most beneficial statute.’ The court then recites the eleventh section of the Act of 1794, which was substantially re-enacted in the twenty-second section of the Act of 24th February 1834, and goes on to say: ‘ The right of the creditor became vested to be paid in the order pointed out by the act. * * * What, then, is the matter submitted to the court but an attempt, by means of a legal fiction, which was never in the contemplation of the legislature, to change the rights of creditors by mere issuing of an execution after the death of the intestate. Establish the principle contended for by the plaintiff, and it would be unsafe for an executor to pay the funeral expenses. * * * A creditor with a warrant of attorney to confess a judgment would have it in his power to sweep the whole estate in prejudice of debts of equal or superior .degree, contrary as I believe to the manifest interest and policy of the Act of 1794.’ The same principle has been applied in the analogous cases of bankruptcy and voluntary assignment, in which evidence of fractions of a day is admitted with a view to defeat the lien of a judgment : Ex parte D’Obree, supra; Bank v. Gorman, supra ; Boyer’s Est., supra. The time of death of a debtor is therefore an import tant element in the distribution of the estates of decedents. It is a question of fact -which determines the relative rights of creditors, not a fiction; and the admissibility of evidence with respect to that fact must obviously be governed by the exigency of each case. It is competent to show the day or fractions of a day as circumstances seem to require. It is the instant of death that fixes the rights of creditors: McClintock’s Appeal, supra. And judgments afterward, whether on the same day or not, gain no priority, by virtue of their entry, over the claims of general creditors. The only effect of such judgments was to liquidate the amount due and prolong the duration of the claim upon which it was based: Pitts, and Steub. Railroad Co’s Appeal, 2 Grant 151.”
    From the decree of the court this appeal was taken.

      Thomas C. Lazear, for appellants.
    Neither the defendant nor his .representatives will be permitted to impeach a judgment, for error in a collateral proceeding; it can only be done by writ of error or by a direct application to the court in which it is entered to set it aside. . It has been repeatedly held that the validity of a judgment cannot be inquired into in the distribution of the proceeds of a sheriff’s sale, and the principle applies with equal force to the proceeds of an administrator’s sale: Meason’s Estate, 4 Watts 341; Thompson’s Appeal, 7 P. F. Smith 175; Butterfield’s Appeal, 77 Id. 197. And coming more directly to the case in hand are Yaple v. Titus, 5 Wright 195 and Warden v. Tainter, 4 Watts 279, holding that a judgment rendered against a person after his death cannot be attacked collaterally. We submit, therefore, that even granting the position (which we deny) that the Orphans’ Court was authorized to go into the inquiry and admit parol evidence to show whether the judgment was anterior to the time of Mr. Kier’s death, yet after the evidence was in and it was shown by it that he did not die before 5 o’clock of the morning when the judgment was entered, the rule of law that judgments become liens from the first hour of- the day, should have settled the question of both the validity and priority of the judgment : Boyer’s Appeal, 1 P. F. Smith 437; Metzler v. Kilgore, 3 Barr 247. In Sims v. Hampton, 1 S. & R. 411, Chief Justice Tilgiiman stated the rule to be, “ that there shall be no fractions of a day except in a case of necessity.” To the same effect is Steele v. Taggart, 1 Bro. 20; Emerick v. Garwood, Id.; Mechanics’ Bank v. Gorman, 8 W. & S. 209.

      S. W. Cunningham, for appellee.
    The -manifest intention of the legislature, as interpreted by this court, was that there should be a strong, and clear distinction between the two classes of claims, in the distribution of the. proceeds' of real estate affected thereby. See Ramsey’s Appeal, supra. Creditors are more to be favored than heirs. At death all claims are divided into two classes, those having special and those having general liens. It is true that the language generally used is .that judgments against personal representatives have no priority; but this means, we think, judgments entered after decedent’s death. If Samuel M. Kier had died one day earlier, which would have been the return-day of the writ, and judgment had been entered as it was entered, surely the judgment would have had no priority. It would have fallen within the class of judgments against personal representatives who would have been substituted on application under the twenty-sixth section of the Act of 1834, Purd. Dig. 424, pi. 94, on the ground that the case was an action depending at the time of the decease. Just so in the case at bar, the administratrix was substituted, and for the same reason.
    The reasons for the distinction between the classes would place all judgments entered after the death in the same class.' There is no difference in principle, whether the judgment be entered upon the same day of the death or afterwards, when the- suit is brought before the death. The “ time of the death” is what fixes the class, and that is a question of fact. In the language of McClintock’s Appeal, 5 Casey 360, it is “ the instant of his death.” The utmost diligence after the debtor’s death can avail nothing to secure priority as against others in the same position: Patterson’s Estate, 1 Ash. 336. Hence evidence is admissible to show the exact time of the death, by virtue of which all general creditors acquire rights. This will prevent the injustice of permitting one of the general creditors, by a subsequent act, to get the advantage of his fellows.
    Surely a simple rule of policy or a fiction of law adopted for convenience in cases where no rights are in any way infringed upon by it, should not stand in those cases where it would set at naught the clear intention of the legislature, subvert the whole policy of the law with reference to the estates of decedents, and destroy vested rights. Moreover, if the judgment in this case be held to date from the first moment of the day of entry, so should the liens arising from the death of the decedent relate back to the same moment. In that case justice would be done; all would attach at the samewmoment and share pro. rata. Equity would at least require this.
   The judgment of the Supreme Court was entered, November 15th 1880,

Per Curiam.

We adopt the opinion of the learned judge of the court below, and affirm the decree he has so well stated.

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