author: Mr. Justice Mercur

text:
    Grosvenor et al. versus Fogg.
    1. Allen married a widoAV having one child ; he devised all his estate to his wife and they afterwards had children ; he died leaving his wife and three children; she died intestate, leaving her four children. Held, that land belonging to Allen descended upon his three children.
    2. Under Act of April 8th .1833 (Wills Act), sect. 1, Allen died intestate as to his children, Avho took the real estate subject only to the widow’s interest under the intestate laws.
    3. The widoAV took no estate of inheritance Avhich she could transmit.
    4. Edwards’s Appeal, 11 Wright 144; Walker a. Hall, 10 Casey 483; Willard’s Appeal, 18 P. F. Smith 327, referred to.
    March 16th 1876.
    Before Agnew, C. J., Sharsavood, Mercur, Gordon, Paxson and Woodavard, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1876, No. 61.
    This Avas an action of ejectment, brought September 26th 1872 by William Fogg against Thomas Grosvenor and Stephen Cook, for an undivided fourth part of a tract of land in Scott township.
    On the 8th of July 1808 Robert Latham owned the whole of the tract in question, and on that day he conveyed to Paddy Allen, under whose title both parties claim, under the following circumstances :—
    The plaintiff’s father died prior to 1803, leaving a widow named Betsey, and the plaintiff, his only child; the widow married Paddy Allen, who on the 9th of July 1807, made a will, by which he gave all his estate, real and personal, to his wife,.Betsey Allen, and made her his executrix. At this time Allen had no children, but there were afterwards born of this marriage, three children, viz., Henson Allen, in 1808, Elizabeth Allen, in 1810, and Mary Ann, now Green, in 1813. Paddy Allen died about 1830; his widow died in 1848, intestate, leaving to survive her, her four children, viz.: the plaintiff and the three Allen children. In 1850, the Allen children conveyed the whole tract to Luther Hubbard; he conveyed it, in 1864, to Thomas Grosvenor, one of the defendants, and in 1869 he conveyed three and a half acres, part of the tract, to Stephen J. Cook, the other defendant.
    The case was tried April 6th 1875, before Handley, J.
    The plaintiff claimed that upon the death of Paddy Allen and under his will his wife became the owner of this land, and upon her death, intestate, one-fourth of it descended upon him.
    The defendants claimed that the birth of the children after the making of the will revoked it, that Paddy Allen died intestate and the land descended upon his widow and three children.
    There were other questions raised on the trial and much testimony taken, which it is not necessary to give.
    The defendants’ first and seventh points and their answers were:—
    1. The alleged will of Paddy Allen having been made prior to the birth of his children, without making any provision for them, said Paddy Allen, so far as regards said children, must be deemed and construed to have died intestate, and his children Henson Allen, Elizabeth Allen and Mary Ann Allen, inherited his real estate as fully as if he had actually died without a will.
    Answer. “ This point wé cannot aflirm as it is framed by the pleader, but say to you, that Paddy Allen’s will was revoked, so far as the interests of the after-born children were concerned. The will stands good for all other purposes intended by the testator ; it cannot be deemed and construed that Paddy Allen died intestate.”
    7. The verdict must be for the defendants.
    Answer. “ This point we cannot affirm; it is for you to say whether the verdict shall be for the defendants, or for the plaintiff.”
    The verdict was for the plaintiff for the land claimed in the writ.
    The defendants took a writ of error, they assigned seven errors.

      The third was the answer to their first point; the seventh, the answer to their seventh point.

      W. W. Lathrope, for plaintiffs in error:
    — The law is stated substantially in the words of the statutes applicable to the case: Act of 8th April 1833, sect. 15, Pamph. L. 259, 2 Br. Purd. 1477, pl. 18 ; Walker v. Hall, 10 Casey 484.
    -Pike, for defendant in error.
    May 8th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of ejectment for the undivided one-fourth part of a tract of land. Both parties claimed under title derived from Paddy Allen. Prior to the birth of any of his children he devised all his real and personal estate to his wife, Betsey Allen. After the execution of his will, three children were born to him. They survived their father, and the plaintiffs in error acquired title from them. The defendant in error is a son of Betsey by a former marriage, and claims as the heir of his mother.

Sect. 15 of the Act of the 8th of April 1833, declares, “ when any person 'shall make his last will and testament, and afterwards shall marry, or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow or child, or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child, or children, after-born, shall be deemed and construed to die intestate ; and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased as if he had actually died without a will.” This section is substantially a re-enactment of the Act of 19th of April 1794.

When Paddy Allen executed his will he had no children. Three were born afterwards. His will made no provision for any of them. He died leaving them. Then, as to them, he died intestate. If he died intestate, these children took all his real estate, subject, only, to his widow’s dower. She had no greater interest in her late husband’s real estate than the intestate laws gave her. She had no estate of inheritance to hold or to transmit to any of her children. The defendant in error could not inherit this land from her, for she never owned it. He could not inherit from Paddy Allen, as he was not of his blood. This is fatal' to the claim of the defendant in error: Walker v. Hall, 10 Casey 483: Edwards’s Appeal, 11 Wright 144; Willard’s Appeal, 18 P. F. Smith 327. It follows that the third and seventh assignments are sustained. It is unnecessary to consider the others.

Judgment reversed.


source: Caselaw Access Project

author: Pisr Curiam.

license: Public Domain

text:
    Dexter’s Appeal. Hughes’s Estate.
    1. A testator devised to his wife the income of his real estate for the support of herself and- children until the youngest came of age, then it was to be equally divided amongst the children. When the youngest child came of
    ' age the children made an amicable partition, fixed the widow’s annual payments in lieu of dower, and agreed that the land should remain charged with the payments, &e.; that on default, a scire facias might issue on it, or she might elect that it was at an end and proceed to recover her dower ; in accordance with the agreement it was recorded. On the sheriff’s sale of the part of one of the children, Held, that the amount of the value of the widow’s interest and the arrearages of her annuity should be paid out of the fund prior to liens subsequent to the recording of the agreement.
    2. The agreement created a charge on the land, and the recording was notice to all persons afterwards taking title to it.
    3. An encumbrance may be fixed upon land by deed, following-it into tho hands of subsequent purchasers, and is as effective as the lien of a judgment.
    March 16th 1876.
    Before Agnew, C. -L, Sharswood, Mercur, G-ordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Wayne county :• Of January Term 1875, No. 201. In the distribution of the proceeds of the sheriff’s sale of Henry F. Hughes’s land.
    James Hughes, the father of Henry and owner of the property which produced the fund for distribution, died in the spring of 1852, leaving a will by which he gave to his wife Margaret all his personal property remaining after the payment of his debts, and the rents, issues and profits of his real estate, in trust for the support of herself and three children, Henry, James and Elizabeth, until they reached full age; after the youngest child arrived at age, the real estate to be divided between the three children. On the 30th of March 1867, all the children having arrived at age, an amicable partition was made, under which Elizabeth conveyed to Henry and James the land afterwards sold by the sheriff as Henry’s, and they conveyed to Elizabeth another piece of their father’s land.
    On the 28th of September 1869, James conveyed to Henry his interest in the land assigned ’to them.
    On the 11th of November 1869, the widow of the one part and Henry and Elizabeth of the other part entered into an agreement reciting, amongst other things, the amicable partition and final conveyance to Henry; also “ That Margaret Hughes is entitled to. her dower in said lands as widow of James Hughes, deceased; and that to avoid proceedings at law and to fix upon the sum which shall be paid her in semi-annual payments during her life by Henry and Elizabeth, and the amount each shall pay, and to secure the payment of the same upon the aforesaid premises.
    “ The parties agree upon (three men) to decide and fix-upon amount to be paid each year by Henry and Elizabeth, to be paid in semi-annual payments, &c.

      “ And Henry and Elizabeth jointly and severally covenant and agree well and truly to pay to said Margaret or her assigns annually during her life the sum awarded to be paid her, in semiannual payments; and that this agreement and the sum or sums so awarded to be paid annually to said Margaret or her assigns, and the said award when made hereafter, hereon endorsed, and each and every of the same shall be and remain a true claim and demand upon and against the aforesaid described lands, and said lands to be and remain charged therewith and liable for the payment thereof, and in case of failure at any time or times to pay any money becoming due upon this agreement or the award made in pursuance of same, it shall be lawful for said Margaret Hughes to sue out a writ of scire facias hereon, and for the Court of Common Pleas to enter judgment thereon for such sums as to said court shall seem meet and proper, to enable said Margaret or her assigns to collect any moneys that then are or may thereafter become due upon this agreement or upon said award, &c., &c.
    “ It is further agreed in case of default for thirty days in said annual payments, said Margaret may if she elects declare this agreement at an end and proceed to recover and enforce hor claims or right of dower in aforesaid premises, without exception, loss or hindrance by or from the parties of the second part to this agreement, but said election to be in writing.
    “ The award of arbitrators to be endorsed upon this agreement, to be without appeal and final between the parties, and to become part of the agreement, so that same may be made and entered of record herewith, and the recorder is authorized to enter same of record.”
    The award of the referees endorsed on the agreement decided that Henry and Elizabeth should pay to the widow the annual sum of $225 in semi-annual payments ; the first payment of $112.50 to be made on the 11th day of May, A. d. 1870.
    Both the agreement and award were acknowledged and, on the 22d day of November 1869, entered of record.
    Before the execution and recording of the agreement and award, judgments to a large amount were entered against Henry Hughes in favor of various parties.
    Judgments to a large amount were also entered against Henry Hughes in favor of various persons after recording the agreement and award.
    Henry died about December 1st 1870. His real estate was sold by the sheriff August 29th 1873; the proceeds, $6267.95, were brought into court and H. M. Seely, Esq., appointed auditor to report distribution.
    Before him the widow claimed that the agreement and. award, having been duly recorded, created a lien on the land of Henry Hughes in her favor for the amount awarded to be paid to her, for which she was entitled to come upon the proceeds of the land.
    The auditor reported as his opinion that it was not competent for the parties by the agreement to create a lien upon the land to secure the payments to the widow; he therefore awarded the fund to the judgment creditors of Henry Hughes, excluding the widow.
    The -widow excepted to the report of the auditor; that he should have awarded to her all the money arising from the sheriff’s sale after payment of the liens entered before the 22d of November 1869.
    The court sustained the exceptions, Dreher, P. J., saying:—
    * * * “Any writing that is a valid mortgage in Pennsylvania, it seems to me, must be within our recording acts. I cannot conceive how there can be a valid mortgage that may not be recorded if acknowledged, or the execution thereof proven in the mode prescribed by the recording acts. The sheriff’s sale was by virtue of an execution upon a judgment prior in lien to Mrs. Hughes’s mortgage, and therefore no question can arise as to whether the lien of the mortgage was discharged by the sale. The lien being discharged the case only looks to the fund now in court.
    “ I do not see how the question, whether Mrs. Hughes’s claim of dower was valid or not, can affect her right under the mortgage. The parties were competent to contract in relation thereto and actually did contract. It is certainly binding as between themselves, and there is no allegation of fraud as to creditors, and therefore whether she could or could not have maintained an action of dower is immaterial.
    “ The mortgage covers Elizabeth’s property as well as that of Henry Hughes, and by the agreement they were each to pay one-half of the annuity. Henry’s property has been sold by the sheriff, and the proceeds are now in court. The mortgage is still a lien on Elizabeth’s land, and I think that the widow should claim of the fund in court only the one-half of the annuity. She is entitled to the cash value of the one-half of the annuity, at the date of the sheriff’s sale, and in addition thereto the amount that was then due and unpaid by Henry. The report is referred back to the auditor with the instruction to make distribution in accordance with this opinion.”
    '. The auditor reported in accordance with the decree of the court, awarding to the widow “ for one-half the annuity and interest due at the time of the sheriff’s sale,” and “ for half the cash value of the annuity at the date of the sheriff’s sale, $1280.92.”
    The balance of the fund did not reach to pay the subsequent lien creditors of Henry Hughes. They excepted to this report of the auditor; it was confirmed, and Jesse C. Dexter, with other creditors, appealed to the Supreme Court.
    They assigned the decree of confirmation for error.

      G-. C. Waller, for the appellant.
    — The instrument was not a mortgage. A defeasance is essential to a mortgage: Payne v. Patterson, 27 P. F. Smith 137 ; Pennsylvania L. Ins. Co. v. Austin, 6 Wright 266.

      P. M. Crane, for appellee.
    March 27th 1876,
   Judgment was entered in the Supreme Court,

Pisr Curiam.

— It matters not what name we give to the agreement between the parties of the 11th of November 1869 ; whether a mortgage, a rent-charge, annuity or what. It is an instrument under seal, admitting an estate in the widow in the land, at the time of they amicable partition among the children, and charging the land with the payment of the annual sum to her in lieu thereof, according to the terms of the writing. To this charge the other parties bound themselves firmly by their covenants, when ascertained in the mode fixed upon by themselves ; and provided for a record thereof, as notice to all persons who might take title after-wards to the land. Now, that an encumbrance maybe fixed upon land by deed, following it into the hands of subsequent purchasers, is too well settled to require a citation of precedents. Such is the nature of a mortgage, of a ground-rent deed, of an annuity, and of a subjection by the terms of a conveyance. It is the direct aGt of tbe owners of the land, whereby they fix a charge upon it, and is quite as effective as the lien of a judgment, which is a mere incident at law.

Decree affirmed, with costs, and appeal dismissed.


author: Mr. Justice Woodward

text:
    Harrington, to the use of Cooke, versus Gable.
    1. Judgment was entered against husband and wife on a nóte and warrant of attorney signed by them ; after his death, on a scire facias against the wife and his administrators, judgment by default taken against her was opened upon affidavit that she had not signed the note, and in the issue to try the question it was agreed that the note should stand as a declaration and defendant plead non-assumpsit. On the trial of the issue, the note and record of its entry were not admissible without evidence of the execution of the note.
    2. The subscribing witness testified that he did not see the wife sign the note. Secondary evidence was admissible — without calling the wife or giving proof of her handwriting — of her acts and declarations, for the purpose of showing that she had signed the note.
    3. Evidence that before the date of the note, the wife had contracted with the obligee for a piece of land, and had agreed to give a note for the price, that she had accepted the deed, and was in possession of the land, and on the delivery of the deed the note with her name to it was delivered by her husband to the obligee, and that afterwards, she and her husband called on the obligee and paid $100 on the note; was admissible on the question of her execution of the note. »
    4. The secondary evidence in the case required the submission of the note to the jury on the question of its execution by the wife.
    5. There is no difference as to the admissibility of this kind of evidence, . between direct and incidental admissions.
    March 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1876, No. 132.
    On the 11th of May 1868, judgment was entered in the Court of Common Pleas in favor of William Harrington, to the use of William Cook, against Elizabeth B. Gable and Ferdinand Gable, on the following note, &c.:—
    “April 1st 1868.
    “ Six years after date, for value received, we promise to pay William Harrington, or bearer, seven hundred and sixty-two dollars and twenty-four cents, payable as follows: * * * with interest, and without defalcation, waiving stay of execution, right of , appeal, errors, inquisition and exemption laws, prior to this date. And we hereby authorize the prothonotary or an attorney of any court of record in Pennsylvania,.or, elsewhere, to confess judgment against us for the above sum,'interest and costs, and costs of entering judgment on this note. Witness our hands and seals this fifth day of April, one thousand eight hundred and sixty-seven.
    Elizabeth B. Gable [seal].
    Ferdinand Gable [seal].”
    “Witness present: I. S. Parker [seal].”
    On the 9th of May 1873, a scire'facias was issued on this judgment, viz.: “William Harrington,'to the use of William Cook, against Elizabeth B. Gable arid Ferdinand B. Gable — Ferdinand Gable now deceased — H. S. Gable and Elizabeth B. Gable, administrators of Ferdinand Gable’s estate.” " Judgment was taken December 8th 1873 by default for'want of a:plea and affidavit of defence against Elizabeth B. Gable for $900.85.
    On the 11th of December 1873 an affidavit of Henry S. Gable, the son of Mrs. Gable, was filed, setting out, amongst other things,
    “ that at the time of giving said note and the entry of judgment on the same, the said Elizabeth was the wife of Ferdinand Gable; that he is informed by his mother and believes that she never signed said note or authorized any'person to sign for her,” &c.
    On this affidavit a rule, was granted to show cause why the judgment should not be opened and'Mrs. Gable let into a defence. The rule was made absolute February 7th 1874. By agreement of parties the case was put at issue, “ the' note to stand as a declaration in the case and defendant pleads payment with leave,” &c. The plea of payment was afterwards withdrawn and defendants pleaded “ non-assumpsit.” ■
    The case was tried December 14th 1875, before Ingham, P. J., of the 44th district.
    1. The plaintiff offered the note and record of entry in evidence without proof of its execution, it “ being the note agreed upon in the issue framed to stand as the declaration in the issue.”
    The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    Plaintiff then called Isaac S. Parker, the subscribing witness, who testified that Mrs. Gable’s name was not to the note when he subscribed it. Harrington wanted witness “ to put his name there, for he had to have a witness ;” witness did not want to sign it, it might make him some trouble. Mr. Gable said it would make him no trouble, he had been buying a piece of land, he was to take the note home and have his wife sign it; neither Gable’s name nor his wife’s were to the note; witness saw Gable put his name on the stamps ; Harrington had the paper the first time witness had seen it; Harrington and Gable came down stairs together. Witness never saw the note afterward till the time they took de- - positions on the rule.
    Betsey Strope testified that she had a conversation with Mrs. Gable about a land transaction with Harrington; she said she did not sign the note, she never put her name but to one paper, she did not say what paper she signed, but it was to Harrington. She afterwards said she did not sign the note, but another paper, which she described.
    George Strope, who was present' at the conversation mentioned by the preceding witness, testified to the same circumstances.
    Jane Decker testified that Mrs". Gable told her that she and her husband had bought land from Harrington and given him their obligation for it, and that the deed for the land was made to her.
    J. B. Perry testified that he heard Mr. and Mrs. Gable talking about land they had purchased; she said she was sorry they had bought the land; if she had not been foolish she would not have signed the paper.
    Cook, the use plaintiff, testified that Mrs. Gable paid him sums of money on the judgment at three different times; she wished him to be easy; she could not pay it as fast as it fell due; she would pay what she could; this was in the life of Mr. Gable ; she said she did not sign the note, but intended to pay it; she signed but one paper; thought it was a deed or contract.
    Harrington testified that he never had any other paper signed by Mr. and Mrs. Gable except the note.
    2. Plaintiff offered to prove that Mrs. Gable, prior to the date of the note, bargained with Harrington for a piece of land, and agreed to give her' note to secure the purchase price of the land; that in pursuance of this agreement Harrington executed a deed for the land and delivered the same to Elizabeth B. Gable; that she accepted the deed, and is now in possession of the land for which she agreed to give her note; that at the time the deed was delivered, the note in suit was delivered to witness signed by-Elizabeth B. Gable, or with her name on said note.
    The defendants objected to the offer, it was rejected by the court and a bill of exceptions sealed.
    3. The plaintiff offered to prove that the husband of defendant delivered the note in suit to the plaintiff as executed, and that defendant subsequently called with her husband on plaintiff and paid $100 on said note.
    The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    4. The plaintiff, after having given the foregoing evidence, again offered the note; it was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    The plaintiff rested. The defendant offered no evidence.
    The verdict was for the defendant.
    The plaintiff took a writ of error and in several specifications assigned for error the rejection of his offers of evidence.

      Smith Montanye and DeWitt Maynard, for plaintiff in error.
    — Mrs. Gable’s acts and conduct were evidence that the note was hers : Watson v. Brewster, 1 Barr 381. Mrs. Gable’s acceptance of the deed for which she agreed to give the note estopped her from denying the note: Hill v. Epley, 7 Casey 334. She could not accept the beneficial part and reject remainder: Mundorff v. Wickersham, 13 P. F. Smith 87.

      5. W. Patrick, for defendant in error.
    March 27th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

This was an issue directed by the court below to try the question whether the signature of Mrs. Gable, the defendant, to a judgment-note executed on the 1st of April 1868, in favor of William Harrington, was genuine. The note purported to have been signed by the defendant and her husband Ferdinand Gable, who has since died. It was for the sum of $762.24, payable with interest in specified instalments extending to the 1st of April 1874. On the trial, the allegation of the plaintiff was that Harrington had sold and conveyed a piece of land to the defendant upon her agreement to secure -the purchase-money by a judgment, and that this note was given in pursuance of that agreement. The judgment was entered on the 11th of May 1868. On the 11th of December 1873, an application to open it was made under the affidavit of the son of the defendant, that he had been informed by his mother, and believed, that she had never signed the note, and had never authorized any one to sign it for her. The rule to show cause why the judgment should not be opened, which was granted when the application was made, was made absolute on the 7th of February 1874.

At the trial of the issue, Isaac Parker, whose name was affixed to the note as a- subscribing witness, was called to prove its execution. He testified that he subscribed it at the request of Harrington and Ferdinand Gable; that it had not then been signed by either Gable or his wife; that Harrington said he wanted his name there, for he had to have a witness; and that Gable said it would make the witness no trouble, as he had been buying a piece of land, and he. was to take the note home and have his wife sign it. He did not see the paper afterwards until depositions were being taken in the controversy that had then arisen between thgse parties.

With the failure of the attempt to prove the-execution of the instrument by the subscribing witness, the primary sources of evidence on behalf of the plaintiff had.been exhausted. In view of the affidavit of her son that she had not signed the note, and of her own position as a contestant in the issue, it would have been a hazard to call the defendant, which the plaintiff was not bound to take. The difficulty in proving the handwriting of a lady in the position of Mrs. Gable by the testimony of witnesses called in the usual way, can readily be realized. A resort to secondary evidence to lay ground for the admission of the instrument was, inevitable ; and that which was given, as well as much of that which was offered and rejected, was unobjectionable, for it carried on its face no indication that better evidence could have been obtained. Mr. Harrington testified that this note was the only paper signed by Gable and his wife that he had ever held. Mrs. Betsey Strope swore to two conversations with the defendant, in which the latter declared that she did not sign the note, but admitted that she had put her name to one paper that had been given to Mr. Harrington. George Strope heard one of the conversations with his mother, in which the defendant said she had never signed more than one paper for Mr. Harrington. Mrs. Jane Decker was told by the defendant that she and her husband had bought land of Harrington, and had given him their obligations for it. J. B. Perry heard Gable and his wife talk about the land they had purchased. She said she was sorry they had bought it, for it put them so much in debt, and that if she had not been foolish, she would not have signed the paper. William Cook, the plaintiff, swore to three payments made by the defendant, on account of the note, in the lifetime of her husband. There was enough in this testimony to require the submission of the instrument to the jury. It was for them to say, in view of the statement of Harrington that be bad received no other than this paper in tbe nature of an obligation from tbe defendant, and in view of tbe evidence of ber admission that she bad executed one paper in tbe nature of an obligation in bis favor, whether this note was the paper to which they both referred. Tbe testimony, it is true, indistinctly indicated tbe facts sought to be established; but there would have been no room for the controversy from the outset, if it had been direct and clear. The truth as to the rights of the parties must be found by following such-lights as the surroundings of the case afford. There is no difference as to the admissibility of this kind of evidence between direct admissions and those which are incidental, or made in some other connection, or involved in the admission of some other fact: 1 Greenleaf’s Ev., § 194.

The plaintiff was entitled to show, in connection with the evidence which the court admitted, not only the note itself, but the sale and conveyance of the land by Harrington to Mrs. Gable, her acceptance of the deed, her possession of the land, her agreement to execute a note for the purchase-money, the delivery by her husband to Harrington of the note in suit with her name signed to it, and the fact that she went with her husband subsequently to-the plaintiff and made a payment of one hundred dollars. With the eventual effect of the testimony on the minds of the jury, the court would have nothing to do. The circumstances under which Parker subscribed his name as a witness before the note was executed, might have afforded ground for suspicion and distrust. The fact itself was certainly unusual, and was capable of producing mischievous results. But all such considerations it was for the jury to weigh. The duty of the court was to receive the evidence. The second, third and fourth assignments of error are sustained.

The offer of the note and of the record of the judgment at the opening of the cause was premature, and was properly rejected.

Judgment reversed, and venire facias de novo awarded.


text:
    Wilson versus Kelly.
    1. The affidavit to be taken on an appeal from an award, need not be in writing, but the record must show that it has been taken.
    _ 2. The omission to make the affidavit is fatal, if the objection be taken in time.
    3. The requirements of the statute in relation to an appeal from an award, are for the benefit of the appellee and he may waive them. •
    4. The terms of a court commenced on third Mondays of April, August and November, an appeal was entered March 5th, no affidavit appearing to have been made. On November 26th, the appellee moved to strike it off; Held, that the application was too late.
    5. After the appeal had been entered the appellee pleaded, and procured the continuance of the case when called for trial: Reid, that the appellee having by these acts encouraged the appellant to incur expense, &e., in preparing for trial, he waived all irregularity in the appeal.

      March 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    • Error to the Court of Common Pleas of Wyoming county: Of January Term 1876, No. 179.
    On the 24th of August 1874, Charles D. Wilson brought an action of assumpsit against James-Kelly.
    On the 2d of February 1875, the plaintiff entered a rule of reference and on the 5th of March the arbitrators chosen under the rule awarded for the plaintiff the sum of $60. On the same day the plaintiff appealed from the award and entered into recognisance as required by law, but the record did not show that he had made the required affidavit. On the 23d of August 1875, the defendant pleaded “ non-assumpsit.” On the 22d of November depositions were taken and the case was noted on the same day for trial; on November 23d it was continued at the costs of the defendant. On the 26th of November 1875, a rule was granted on the plaintiff to show cause why the appeal should not be stricken off. On the 27th of November the rule was made absolute and the appeal was stricken off.
    The terms of court in Wyoming county commence on the third Mondays in April, August and November.
    The plaintiff took a writ of error and assigned the striking off of his appeal, for error.

      E. J. Ohase (with whom were W. E. 0. A. Little), for plaintiff in error.
    — A written affidavit on which to ground an appeal is not necessary : Ross v. Dysart, 12 Harris 395. The objection to the appeal was too late Clarke v. McAnulty, 3 S. & R. 364; Cameron v. Montgomery, 13 Id. 128 ; Weidner v. Matthews, 1 Jones 336; Carothers v. Cummings, 13 P. F. Smith 199; The Delaware and Hudson Canal Co. v. Loftus, 21 Id. 418. The latter case holds that making no objections until the third term of court, or after steps had been taken to prepare the case for trial, was a waiver of the objections: Mayes v. Jacoby, 8 S. & R. 526. The defendant having pleaded since the appeal, waived the defect: Cavence v. Butler, 6 Binn. 52; Zeigler v. Fowler, 3 S. & R. 238; Shisler v. Keavy, 25 P. F. Smith 79; Howell v. Philadelphia, 2 Wright 471; Shank v. Warfel, 14 S. &. R. 205 ; Craig v. Brown, 12 Wright 202; Stephen’s Pleading 430.
    There was no paper-book or argument for defendant in error.
    March 27th 1876.
   Mr. Justice Mercur

delivered the opinion of the court

On the 5th of March 1875, the plaintiff appealed from an award of arbitrators in his favor, and gave the requisite security. The record does not show that he made any “ oath or affirmation.” The statute does not require the affidavit'to be in writing: Ross v. Dysart, 12 Harris 394. Yet the record should show that the necessary oath or affirmation was actually made. If not made, the omission is fatal to the appeal, if the objection be taken in time. Was it so taken?

The three succeeding terms of the Common Pleas were held in the months of April, August and November, respectively. At the April term no action appears to have been taken by either party. At the August term the defendant entered the plea of non-assumpsit, thus putting the case at issue. In September the plaintiff entered rule to take the deposition of witnesses. They were taken, and filed on the 22d November. The case was then on the trial list for November term, and on that very day was actually called by the court and marked for trial. On the day following, on application of defendant, the case was continued.

Three days thereafter, the defendant applied for a rule to show cause why the appeal should not be stricken off. The rule was granted, and subsequently made absolute.

The record fails to disclose the grounds on which the rule was taken, and the action of the court predicated. On the argument it was stated to he the absence of any affidavit.

Thus it appears no objection was made by the defendant until nearly nine months after the appeal had been entered. The requirements of the statute are for his benefit. He might waive all of them : Mayes et al. v. Jacoby, 8 S. & R. 526 ; Shank v. Warfel, 14 Id. 205; Craig v. Barclay, 12 Wright 202.

The case, however, shows more than the mere passive conduct of the defendant. He had entered a plea thereby imposing on the plaintiff the necessity of preparing for trial. The plaintiff had acted on the duty thus thrust upon him. He had incurred the necessary expense. He was in court ready for trial. Before the jury was sworn the defendant procured a continuance of the cause.

Up to this time the defendant had made no objection to the regularity of the appeal. By acts both of omission and commission he had induced.the plaintiff to believe that all irregularity was waived. He not only waived his rights when he might have spoken effectively, but he gave positive encouragement to the plaintiff to incur costs and expenses. The plaintiff acted upon that encouragement. The application of the defendant to strike off the appeal came too late: Clarke v. McAnulty, 3 S. & R. 364; Sleck v. King, 3 Barr 211; Marks v. Swearingen, Id. 454; Carothers v. Cummings, 13 P. F. Smith 199; Delaware & Hudson Canal Co. v. Loftus, 21 Id. 418.

It follows, therefore, the learned judge erred in making the rule absolute.

The judgment striking off the appeal is reversed, and the case ordered to be reinstated, to be proceeded in according to law.


author: Mr. Justice Sharswood Mr. Justice Sharswood

text:
    Pennsylvania and New York Railroad and Canal Company versus Bunnell.
    1. Every court of record has at common law power of amendment; it does not depend upon statute.
    2. Under the statutes of amendment, it is of right; at common law it is discretionary.
    3. The general power of amendment exists both before and after judgment.
    4. A petition for viewers for damages was presented under the Act of February 19th 1849 (Railroad Act): upon exceptions to their report the proceedings were set aside and. the applicants permitted to file an “ amended petitionReid, this was not a distinct petition, but an amendment to the original petition.
    5. In the trial of an issue on an appeal from the assessment of railroad damages, Reid, to be proper to ask “ what was the fair market value of this farm immediately after the construct!on and successful operation of this road on it only by such construction.”
    6. Market value of land is not a question of science or skill upon which only an expert can give an opinion.
    7. Persons of the neighborhood are presumed to have sufficient knowledge of the market value of the land.
    8. A company made a canal through the plaintiff’s land, they afterwards made a railroad through the same land ; the fact that the canal was a cheap and sufficient means of conveying his products, was material in the assessment of damages; that the defendants owned and might abandon the canal did not vary the case.
    9. It was immaterial what damages the plaintiff received from defendants for the construction of the canal.
    10. It was proper to ask: “ How much, if any, does the burden of fencing the railroad detract from the value of the farm ?”
    11. The fact that after the construction of the railroad, a post-office was moved to a point on it much more convenient to the plaintiff, was not material in assessing damages.
    12. Evidence of the prices at which land in the neighborhood had been recently sold was inadmissible.
    13. In his first petition the plaintiff averred that he had sustained damages to the amount of $3000 ; in his amended petition he set out no particular amount: Reid, that this was persuasive evidence as to the amount of the damages, but did not estop him from claiming more.
    March 13th 1871.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Certiorari to the Court of Common Pleas of Wyoming county : To January Term 1871.
    This was a proceeding by James Bunnell for the assessment of damages sustained by him by the location and construction of the railroad of the Pennsylvania and New York Canal and Railroad company through his premises.
    The petition was filed January 28d 1869 ; it set out that petitioner was “ * * * the owner of a certain tract of land, containing about twenty-two acres, bounded on the north by John Bunnell, Jr., east by the North Branch Canal, south by Charles Place, west by the highway, and that the Pennsylvania and New York Canal and Railroad Company, in pursuance of their act of incorporation have surveyed, &c., * * * a route for a railroad through his said land, for the distance of one hundred and twenty rods over* through and along his said land, and taken possession of the same without making compensation to your petitioner for the same, and against his consent, and by the route of such railroad, so located, * * * your petitioner has sustained damages in the taking of his land so as aforesaid, to his said land, the sum of $3000.” * * *
    The prayer was for viewers under the Acts of Assembly.
    Viewers were accordingly appointed.
    On the 17 th of April 1869 the viewers reported: “* * * that 'there will be taken * * * for said railroad sixty feet in width for a distance of one hundred and twenty-two perches, as marked on the accompanying plot or draft, and the quantity of the land so taken is two acres and eight tenths, that the same is bottom farm land, cleared, cultivated and of good quality, and upon which there is a good orchard, and of the value of $300 per acre, being altogether of the value of $840. The said viewers further report that having had a due regard to, and making a just allowance for the advantages which have resulted, or which seem likely to result to the said James Bunnell in consequence of the making and opening of said railroad, and of the construction of the works connected therewith, and after having made a fair and just comparison of the said advantages and disadvantages, they estimate and determine that the said James Bunnell has sustained damages, including the taking and occupying of his land as above stated, to the amount of-$2500.” * * *
    On the same day judgment was entered against the company for the amount awarded.
    On the 20th of April the report was confirmed nisi.
    The railroad company, May 3d 1859, filed exceptions to the report of the viewers, viz.:—
    1. The petition does not show that the said claimant could not agree with the said company as to the amount of damages.
    2. The farm of said claimant is not sufficiently described in said petition or in the report of the viewers.
    3. In the petition the quantity of the land through which the said railroad passes is incorrectly stated, in that it is set forth as containing but twenty-two acres, whereas, it contains about two hundred acres, by reason whereof the said viewers were liable to he misled in their estimate of the advantages accrued or likely to accrue to the said claimant from the construction of said railroad through the said farm.
    4. There nowhere appears either in the petition or in the report, or in any part of the record in said case, any sufficient description of the land taken,” &c., by the railroad company.
    6. The report does not sufficiently show upon what grounds the viewers award to the claimant the sum of $1660, in addition to the sum awarded by them for tbe land actually taken and occupied by the company. ’ .
    6. The written report of the viewers does not agree with the plot or draft annexed to their report, and they award damages for more land than is contained in “ sixty feet in width for a distance of one hundred and twenty-two perches,” this being reported by them as the amount of land taken.
    7. The viewers, in their report, do not note' the fact of their adjournment from the 16th of April to the 17th of the said month; whereas the report shows that the last-mentioned date was the time that the said report was made.'
    8. The damages awarded are excessive.
    , On the 20th of August 1869, on motion of the company, the court ordered the judgment to be stricken off, “having been improperly entered.”
    The court, Elwell, 'P. J., sustained the 3d, 4th and 5th exceptions, and overruled the 2d, 6th, 7th and 8th exceptions. As to the 1st, he said it was not necessary then to decide it, as leave would be given to file an amended petition, and said that viewers wmuld not thereafter be appointed, unless it appeared that the parties could not agree.
    On the 25th of September 1869 the proceedings were set aside, and “ leave granted to amend the petition, and new view awarded.”
    Bunnell; on the 16th of November 1869, presented an “ amended petition,” viz.:—
    “ That the Pennsylvania and New York Canal and Railroad Company have surveyed, &c., * * * a route for a railroad, * * * and have entered upon the lands of your petitioner, * * * through which said route passes, and have established and constructed thereon a railroad ; that he has applied to the said Pennsylvania and New York Canal and Railroad Company, and has endeavored to agree with it for the compensation proper for the damages done or likely to be done, &c., * * * and that after such application and endeavor, your petitioner cannot agree with the company,” &c.
    The company objected to the appointment of viewers on this petition, averring that it was irregular. The objection was overruled, and viewers were appointed.
    On the 11th of December 1869, the viewers reported * * * . “ That there has been taken and occupied of the land of the said James Bunnell, for constructing and establishment of said railroad, as follows : beginning,” &c. (giving the courses and distances and adjoiners) * * * “ as marked on the accompanying plot or draft; and the quantity of land so taken is three acres and twenty-nine perches; that the same is good bottom farm land, cleared and cultivated, and of good quality, and upon which there were twenty-five good bearing apple-trees,, and of the value of .$200 per acre, being altogether of the value of ¡§636.25. The said viewers further report that, having had a due regard to and making just allowance for the advantages which have resulted, or which seem likely to result to the said James Bunnell, in consequence of the making and opening said railroad and of the construction of works connected therewith, and after having made a fair and just comparison of the advantages and disadvantages, which consist of almost entire destruction of about twenty-one acres of other land than that taken and used by the said railroad, they estimate and determine that the said James Bunnell has sustained damages, including the taking and occupying of his land as above stated, to the amount of |2450.” * * *
    The viewers annexed a draft to their report.
    On the 13th of December 1869, Bunnell appealed from the award of the viewers.
    On the 18th of December the company filed exceptions, viz.:—
    1. The plaintiff had no right to file his amended petition in this case upon which the viewers, making said report, were appointed at the stage of the proceedings at which it was filed.
    2. The amendment so made is not sufficient for the purposes intended by it.
    3. The errors appearing on the record in this case have not been corrected by the amended petition.
    4. In said report of viewers the description of the land taken by the railroad company is insufficient and incorrect.
    5. The land taken by the company as described in the within report of the viewers does not correspond with the lines as marked on the draft annexed to the said report.
    6. The viewers report the lines of th.e railroad by angles, while the line as located by the company, and as marked on the ground, is a curved line.
    7. In said report the advantages and disadvantages of the railroad to the petitioner are not sufficiently set forth.
    8. The damages awarded are excessive.
    Same day the company appealed from the award of the viewers.
    On the 25th of May 1870, the court, Elwell, P. J., delivered the following opinion on the exceptions.
    “ The amended petition contains all that is necessary to constitute a cause of action or valid complaint under the statute. It was filed by leave of court, and the question of its regularity was raised at the time of appointing the viewers. The practice adopted can do the defendant no harm, having been twice decided by the court in this case it is not open for consideration.
    “ The inaccuracies of description, referred to in the 4th and 6th exceptions, are more apparent than real. It arises from adopting the courses of the lines as returned by the viewers as the only guide to location; whereas, the courses as shown by the draft accompanying the report, are fixed and certain points on the line of adjoining owners established by actual measurement from the canal, on one side, and the public highway, or travelled road, on the other.
    “ If there be, as alleged by the defendant, an error in the return of the courses from one of these corners to another, the means of correcting it is furnished by the report itself, and the mistake is not fatal to the proceedings. The variation of the compass from the true course can be easily ascertained. In fact, has already been ascertained in this case, as shown by the testimony of the engineer called as witness by the defendant.

      “ The beginning point and the termini of the lines at either end on the complainant’s farm being given, by reference to other fixed and permanent public monuments, the courses can and must be corrected and controlled by them.
    “It was said, per Knox, J., in Railroad v. Porters, 5 Casey 169, that, ‘where the line is noi straight, the courses and distances should be given, and the boundaries stated.’ It is now contended by the defendant’s counsel that something more than this is required. It is true, as contended, the degree -of curvature might be ascertained upon the ground, and stated in the report, or by application to the railroad company. (The latter is the safer and better practice, and parties, if they would avoid difficult and unnecessary questions, will avail themselves of it.) But, with the distances on the centre line, and the courses, I apprehend an artist would readily ascertain the degree of curvature.
    “When the ground of the road has been taken, and the road established and constructed its location at the time of the views, is that to which the question of damage is applied, and of course may be always resorted to as explanatory of the return as made. These views dispose of the exceptions numbered 4 and 6.
    “I am unable to find any essential difference between the draft and report as alleged in the 5th exception.
    “ On a former hearing between these parties, the matters contained in the 7th and 8th exceptions were argued, considered and decided by the court. The reargument has not convinced me that my decision was erroneous. The statute does not require an itemized statement of advantages and disadvantages. I think the court might, by rule, require this of viewers, but where it is not done before the view and making report, it is not such an omission as requires -the court to set aside these proceedings. These exceptions are dismissed and the report of the viewers confirmed.”
    August 23d 1870, on the application of the plaintiff, the court directed that the cause be put at issue as in action of trespass q. c. /., in which Bunnell should be plaintiff and the railroad company defendant.

      On the 19th of September 1860, a certiorari from the Supreme Court at the instance of the company, was filed.
    They assigned nine errors; eight being to the overruling of their exceptions; the ninth to the confirmation of the report of the viewers.

      Little Sittser, for certiorari.
    — There is no provision in the' statute for filing an amended petition ; when one claims a privilege to be tried by a special tribunal created by statute and in derogation of the common law, he is held to a strict construction of it: Zack v. Pennsylvania Railroad Co., 1 Casey 396. The description in the viewers’ return ought to contain the length and breadth of the line of the road; and, where it is not straight, the courses and distances and boundaries: Pennsylvania Railroad Co. v. Porter, 5 Casey 168. The ground of the finding is not sufficiently set forth in the report: O’Hara v. Pennsylvania Railroad Co., 1 Casey 446; Reitenbaugh v. Chester Valley Railroad Co., 9 Harris 100.
    The reporter received no paper book from the other side.
    May 8th 1871.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was a proceeding in the court below to assess damages for land taken by the Pennsylvania and New York Canal and Railroad Company, under the eleventh section of the Act of Assembly of February 19th 1849, Pamph. L. 84. Exceptions were filed to th'e report of the viewers, the dismissal of which has been assigned here for error. It will not be necessary to consider them seriatim— a few general principles will dispose of them all.

The idea that all amendment must depend upon statute is essentially erroneous. Every court of record has at common law a power of amendment, the difference between which and that which depends upon the statutes of amendment and jeofails, is that it is a matter within the legal discretion of the court, while the latter is of right. All mistakes originally were amendable the same term, because the record is a roll of that term, and so in the breast of the court during the whole term, and then a new roll might be brought in the cause, and consequently the same roll may be amended: Bacon’s Abr., title Amendment A. But this limitation, that it must be in the same term, was not very strictly adhered to, for as long as the cause was in paper, that is, at any time before final judgment was entered and the roll made up, amendment might be made, although the term had gone by: 1 Tidd’s Practice 697. Hence, in Bondfield v. Milner, 2 Burr. 1098, a qui tam action for usury, and therefore not within the statutes of amendment, it was allowed, Lord Mansfield saying: The rule is, that whilst all is in paper you may amend.” It has been accordingly laid down as a general principle, well supported by the decided cases, that every court of record has power over its own records and proceedings as long as they remain incomplete, and until final judgment is rendered, and until that time it is the established practice in such courts to regard all actions, whether on the docket of the existing or a former term, as within the jurisdiction and control of the court: 1 Tidd’s Practice 161, note JB, and cases there cited. Any such distinctions, however, have been entirely repudiated in this state,.and the general power of amendment asserted to exist in the court whether before or after judgment. “ The old notion,” says Chief Justice GrlBSON, that the record remains in the breast of the court only till the end of the term, has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books and those of our neighbors.' The power of the court to amend being established, the conclusiveness of the record as amended follows of course. Even were the amendment erroneous, the regularity of it could not be inquired of collaterally ; and not being under the Act of 1806, it could not be inquired of even directly on a writ of error:” Rhoads v. The Commonwealth, 3 Harris 276. This disposes of the first exception.

The second and third exceptions complain of the insufficiency of the amended petition, but do not specify wherein. It seems from the printed argument that it was considered that the amended petition was to be taken by itself and not in connection with the original petition. It is plain, howmver, that although styled an amended petition, it was, in reality, an amendment to the petition, and taking both together we consider , them as sufficient. The fourth, fifth, sixth and seventh exceptions are satisfactorily disposed of in the opinion of the learned judge below; and the eighth, that the damages awarded are excessive, is clearly not a matter of review here. Proceedings affirmed.

On .the 30 th of August 1871, the cause was removed by the defendants to the Court of Common Pleas of Susquehanna county, where the issue on the appeal was tried, October 13th 1874, before Streeter, P. J.

The testimony of the plaintiff was that he was the owner of a farm-of 270 acres of land, through which the railroad was completed in the spring of 1869; before the road was built the farm was worth $28,000.

1. It was proposed to ask: “ What was the fair market value of this farm immediately after the construction and successful operation of this road upon it only as affected by such construction.

The offer was objected to, because

“1. It leaves the* witness to allow in his estimate of value depreciation from consequential and speculative causes.

“ 2. It does not limit him to purely legal subjects of depreciation, or injury from the road.

“ 3. It is incompetent for him to speak of market value without first showing whether he had any means of knowing such value,

i. e., legal knowledge on that subject.”

The offer was admitted and a bill of exceptions sealed.

He said after the road was completed his farm was worth but |21,000. It was injured by its being cut into two parts, leaving two narrow strips between the canal of the defendants and their railroad; the land between the railroad and canal was about seven acres, there were about three acres of the land taken by the railroad ; the land was very productive.

2. The plaintiff offered to prove that the canal was at the time of the completion of .this road in successful operation, and also the means of transportation of the products from his farm, for the purpose of showing how the farm was situated when the injury was done, and also as a means of assisting the jury in arriving at its value.

Objected to, because,

“ 1. This subject of inquiry is incompetent.

“ 2. It opens -a collateral question that is irrelevant in this issue.

“ 3. The canal being owned by defendants, the damages, if any, caused by it, have been already paid by defendant.

“4. The defendants had a right to abandon the canal and put this other improvement in its place, and their doing so is not now to be complained of. They are not to claim, as ground of damage, benefits of the canal (which they made defendants pay for), so making double profit out of defendants.”

The offer was admitted, and a bill of exceptions sealed.

Plaintiff said that the canal was in operation at the time the railroad was constructed, about 25 rods from his house; he transported his crops and received coal by it much cheaper than by the railroad; the construction of the railroad injured his farm by taking away a large number of apple trees also.

3. It was proposed to ask “how much, if any, does the burden of fencing the railroad detract from the value of the farm ?”

This was objected to by the defendant.

' “1. The question, in order properly, to guard the answer of the plaintiff (witness), should be, ‘ how much less would the whole farm sell for in market, on account of additional fencing made necessary by the road ?’

“ 2. The witness has no right to estimate a sum, the interest of which will keep up the fence.”

The offer was admitted, and a bill of exceptions sealed.

The plaintiff said the additional burden of fencing resulting from the construction of the railroad would be about $2136. The amount of fencing would be about 240 rods. No fence would be safe but a stone fence, which would have to be quarried a mile and a quarter aw'ay, and drawn there. It would cost $8 per rod. Keeping up the fence would be another item. There was a board fence put up by defendants, but it was not sufficient to protect the cattle from the railroad.

4. Defendants, on cross-examination, proposed to prove by the plaintiff that the defendants owned the canal; that witness opposed its construction, claiming it as a damage to him ; that it overflowed a part of the said seven acres; and that he received of this defendant $3400 damages on account of said canal.

Plaintiff objected to the offer: that it is irrelevant and incompetent ; nothing is claimed in this suit for any damage done by the canal.

5. Also, to ask him if he had not stated that the canal was a great damage to his farm; if he did not say so to the agents of the company, and demand of them $10,000 on account of that injury.

Roth offers were objected to and rejected, and bills of exceptions sealed.

6. Plaintiff called W. B. Harding, and proposed, to ask him “ what was the fair market value of the farm in 1866 or 1867, before the railroad was projected and laid upon it.”

This was objected to by defendants, on the ground that the witness is not competent to speak of value until the ground is laid, by showing that he had some legal knowledge of value that qualifies him to speak.”

The offer was admitted, and a bill of exceptions sealed.

He fixed the value of the farm at about $27,000 before the road was made. He testified to many particulars in which it was injured by the construction of the railroad, and fixed its value after the construction of the road at $21,000.

On cross-examination, the defendants proposed to ask him,

7. “ If, before the road was made, the nearest post-office to Bunnell’s was not at Russell Hill, four miles off, and if it was not now at Vosburg Station, and if that was no benefit to the place?”

This was objected to' by the plaintiff, rejected by the court, and a bill of exceptions sealed.

A number of witnesses for the plaintiff testified as to the value of the farm before and after the construction of the railroad, fixing it at about the sum the plaintiff and Harding had given, and stating, about the same particulars as making up the damage. Amongst others,

8. Plaintiff called J. Lee, and proposed to ask him “ whether the location and the construction of this railroad upon the farm of plaintiff was an advantage or disadvantage to it, and in what way.”

This was objected to by defendants, because:

1. This question draws out an answer that allows for remote and speculative injuries.

“ 2. The witness is not to judge what are legal damages and what not.

“ 3. Nor is he to judge and swear what is advantage and what is disadvantage.”

The offer was admitted, and a bill of exceptions sealed.

Defendants examined a number of witnesses, in answer to the plaintiff’s case. Some of them fixed the damages at a very much smaller sum than the plaintiff’s witnesses, and the others thought no damages at all had been sustained by the plaintiff.

They gave evidence of the prices which had been offered for other farms in the neighborhood, and for which some of them had been sold.

On motion of plaintiff’s attorney the court struck out all the evidence relating to the prices offered for other farms in the neighborhood, and for which some had been sold.

The following are points of defendants with their answers :—

“ 1. Plaintiff’s sworn petition and claim, which was the origin and foundation of the present proceedings and trial, limiting his claim to $3000, it should stand as the limit here.”

This point is answered in the negative. The fact stated in this point is persuasive evidence against the plaintiff, and1 should be considered by the jury ; but we cannot say, as matter of law, that the plaintiff is limited to the amount set out in his petition.

“ 4. The cost of making the railroad fences .should not be allowed, for the company made them ; nor should the cost of stone Avail (Avhere the stone is one and a half miles off) be reckoned by the jury at $8 per rod, or at any price ; nor should a sum be set aside and allowed, the interest of which would keep it in repair. Put it should be, how much less would the farm bring in market, by reason of the burden of keeping it up ?”

“ This point is affirmed, with this qualification : If the fence built by the company was a poor fence, and not an ordinary and reasonably good one, the jury may take into consi deration the expense of making it such ; as well as the expense of keeping it in repair ; and say how much this burden of repairing and keeping in repair will detract from the market value of the whole property.”

The court further charged:—

“ Was the land of the plaintiff injured in its market value or benefited by this improvement ? This is the simple inquiry. . If injured, to what extent? Compensation is to be allowed to the amount of damage sustained by the owner of the property. [In arriving at a conclusion you may properly inquire what the property would have sold for immediately before and after the road was constructed and in successful operation; being particular to consider whether the increase in value, if any, arises from the improvement in question, or from some other cause.]

M. B. Little and J. B. G-owen, for plaintiffs in error. —

Direct injuries only are to be regarded; those consequential are to be rejected : Cleveland & Pittsburg Railroad Co. v. Speer, 6 P. F. Smith 326 ; Watson v. Pittsburg & Connellsville Railroad Co., 1 Wright 469. The opinion of witnesses must be preceded by evidence that they are persons of skill, &c.: Carr v. Northern Liberties, 11 Casey 324; Searle v. Lackawanna & B. Railroad Co., 9 Id. 63; Railroad Co. v. Hiester, 8 Barr 450; White Deer Creek Imp. Co. v. Sassaman, 17 P. F. Smith 421.

“ If you find from the evidence that the plaintiff’s land was increased in value by the construction of the road, that increase in value may .be set off against the damages inflicted upon the property by its construction. Consider, then, the real damages done to the property, which are direct and tangible, not consequential, speculative, and contingent; and then inquire whether the whole property was increased or diminished in value by means of the construction of the railroad. In other words, what was the market value of the land just before the road was projected; and what was its market value when the road was completed and in successful operation, as affected by the construction of the road ? The difference, if there were any, in favor of the plaintiff, is the amount he is entitled to recover, with the interest from the time the company entered upon and took possession of his land.”

The verdict was for the plaintiff for $4080.

The defendants removed the record to the Supreme Court, by writ of error No. 104, to January Term 1875.

They assigned for error:—

1. Admitting the evidence mentioned in the first bill of exceptions.

2. That mentioned in the sixth bill of exceptions.

3. That mentioned in the eighth bill of exceptions.

4. That mentioned in the second bill of exceptions.

5. 6. Bejecting the offers of defendant mentioned in fifth and sixth bills of exceptions.

7. Admitting the evidence mentioned in the third bill of exceptions.

8. Bejecting the offer of defendant mentioned in the seventh bill of exceptions.

9. Striking out the evidence of defendant in relation to prices which had been offered for other farms in the neighborhood, and for which some of them had been sold.

10. The answer to defendants’ first point.

11. The qualification of the answer to the defendants’ fourth point.

12. The part of the charge in brackets.

This writ of error was argued in the Supreme Court, March 17th 1876,

before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Mr. Justice Mercur, having been of counsel in the case, did not sit.

As to the fencing, the question should have been, “ How much less would the whole farm sell for in the market on account of additional fencing made necessary by the road:” Delaware Railroad Co. v. Burson, 11 P. F. Smith 380.

The first point should have been affirmed. No declaration is necessary after an appeal: Lehigh Valley Railroad Co. v. Lazarus, 4 Casey 203. The sum mentioned in the petition is the amount claimed, and the issue is to try its validity. The amount claimed in a declaration binds the plaintiff, even in a common-law action.

W. JET. Jessup, for defendant in error. —

The market value of property must depend on the opinion of witnesses : Brown v. Corey, 7 Wright 506. The true measure of damages is the difference of the market value before and after the construction of the road; Watson v. Pittsburgh & Conn. Railroad, 1 Wright 481; Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411.

The cost of additional necessary fencing issto be taken into consideration, as being the direct result of the construction of1 the road: Watson v. Pittsburgh & Conn. Railroad Co., 1 Wright 480 ; Brown v. Corey, 7 Id. 505 ; Western Penna. Railroad v. Hill, 6 P. F. Smith 460; Patten v. Northern Central Railroad, 9 Casey 426. Evidence of the price obtained for neighboring property was properly stricken out: E. Penna. Railroad v. Hiester, 4 Wright 53; Chapin v. Boston & Portland Railroad, 6 Cushing 422; Upton v. S. Reading Railroad, 8 Id. 600 ; Wyman v. Lee and Cambr. Railroad, 13 Metc. 327.

Mr. Justice Sharswood

delivered the opinion of the court, May 8th 1876.

The first two assignments of error are to the admission of an offer by the plaintiff below, to ask a witness what was the fair market value of the plaintiff’s farm before and after the construction of the road upon it, only as affected by such construction. The objection was that it left the witness to allow speculative and consequential causes of depreciation, instead of purely legal ones, in his estimate. That the true measure of damages is the differerence between the market value of the property before and after the construction of the road, so far as that difference, was caused by the construction, is not denied. It is not easy to see how the question could have been more accurately framed. Market value is what the property would sell for. As was said by the court, in Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411, The only safe rule is to inquire what would the property, unaffected by the obstruction, have sold for at the time the injury was committed? What would it have sold for as affected by the injury ? The difference is the true measure of compensation.” This accords with all that has been held in subsequent cases, of which it will be enough to refer to Brown v. Corey, 7 Wright 495; Delaware, Lackawanna & Western Railroad Co. v. Burson, 11 P. F. Smith 369; East Pennsylvania Railroad Co. v. Hottenstine, 11 Wright 28. Another objection was, that it did not appear that the witnesses had competent knowledge to speak upon the subject. The market value of land is not a question of science and skill, upon which only an expert can give an opinion. Persons living in the neighborhood may be presumed to have a sufficient knowledge of the market value of property with the location and character of the land in question. Whether their opinion has any proper ground to rest upon, or is mere, conjecture, can be brought out upon cross-examination. Such opinions have always been received. “ It is a kind of evidence,” said Chief Justice Tilghman, in Kellogg v. Krauser, 14 S. & R. 142, so commonly admitted, without dispute or objection, that I have no doubt of its legality:” Brown v. Corey, 7 Wright 506; Pennsylvania Railroad Co. v. Henderson, 1 P. F. Smith, 321.

The 3d assignment is, that the plaintiff was allowed to ask a witness whether the location and construction of this railroad upon the plaintiff’s farm was an advantage or disadvantage to it, and in what way. It seems to be considered that this question calls for an opinion which would embrace law as well as fact. It may be that there are consequential damages for which the law allows no recovery. But when the witness is asked in what way the road was an advantage or disadvantage, surely the answer must show whether it would fall within the rule. It would be hard to frame a question that would not either be open to this objection or to a more decisive one, of being leading : White Deer Creek Improvement Co. v. Sassaman, 17 P. F. Smith 421.

The 4th, 5th and 6th errors assigned may be considered together. There was no inconsistency in the rulings of the court. The fact that before the railroad was constructed the canal afforded the plaintiff a cheap and sufficient means of conveying his products to market,, was surely material; and the fact that it belonged to the defendants and might , be abandoned by them, did not vary the aspect of the case. In the damages which the plaintiff originally received for the construction of the canal, it is to be presumed that the advantage he derived from it as a highway to market was duly considered. It may be that the abandonment of the canal by the defendants was damnum absque injuria. But the fact that it was there was an element in the assessment of the damages which was important. Nor was it material how much the plaintiff had demanded or received for the construction of the canal.

As to the 7th assignment, the question “ how much (if any] does the burden of fencing the railroad detract from the value of the farm ?” was entirely proper-. Value meant market value. That was what the attention of the witness had been called to just before. The question then was the same as that which the learned counsel for the defendants thought ought to have been put: “ How much less would the whole farm sell for in market on account of additional fencing made necessary by the road?” The question was in the very words used in the charge of the judge below, and afterwards in this court, in Delaware Railroad Co. v. Burson, 11 P. F. Smith 380.

We find no error in the rejection of the evidence that after the construction of the railroad the post-office was moved to a point nearer to the farm. That could not have affected the market value, or if it did, it is not easy to see how it was brought about by the construction of the railroad. It might be removed by the government at any time.

As to the 9th error, which relates to the striking out of the defendant’s evidence in relation to the prices offered and paid for other properties in the neighborhood, it is sufficient to say that this ruling of the learned judge below is fully supported by the determination of this court in East Pennsylvania v. Hiester, 4 Wright 53, in which it was held that in such a proceeding as this evidence of the price paid or amount received for land in the neighborhood in particular is inadmissible. The only proper test is the opinion of witnesses as to the value of the land taken, in view of its location and productiveness, its market value, or the general selling price of land in the neighborhood.

We are of opinion that the answer of the court to the defendants’ first point was correct. The plaintiff was not concluded by the amount claimed in his first petition, which the court granted him leave to amend. That the court had power to allow the amendment is clear: Pennsylvania Railroad Co. v. German Lutheran Congregation, 3 P. F. Smith 445. The learned judge properly admitted it as persuasive evidence to the. jury of the estimate the plaintiff had himself put upon his damages.

The qualification of the affirmance of the defendants’ fourth point was entirely right, in view of the evidence in regard to the fence erected by the defendants as not sufficient for the purpose.

We do" not fully understand the criticism made in the I3th assignment to that part of the charge in which the court instructed the jury to be' “ particular to inquire whether the increase in value came from the railroad or some other cause.” It is not objected that it was wrong, but that it was emphatic. That rather involves a question of taste as to style, which we do not sit here to consider. But the clause thus extracted and objected to forms but part of the sentence, and the whole, taken together, is not even subject to the objection of being too emphatic. It was but a very proper caution-to the jury. The judge said: “In arriving at a conclusion you may properly inquire what the property would have sold for immediately before and after the r.oad was constructed and in successful operation, being particular to consider whether the increase in value, if any, arises from the improvement in question, or-from some other cause.”

On the whole we find no error in the record.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Gise versus Commonwealth.
    1. The limitation of the Act of March 31st 1860 (Criminal Procedure), sect. 77, is a bar to a prosecution for bigamy, after two years from the second marriage, although cohabitation under it continued until within two years of the prosecution.
    2. A literal construction of sect. 49, Act of March 31st I860 (Criminal Code), defines no offence; a man cannot legally have two wives or a woman two husbands at the same time.
    3. At common law bigamy occurs and is complete when the second marriage is accomplished.
    4. Bigamy is where one marries a second wife or husband, the first being living.
    5. On an indictment for bigamy it is not necessary to prove cohabitation; the crime is complete although there be an immediate separation, without cohabitation at all.
    March 17th 1876.
    Before Agnew, C. J., Sharswood, Mbrcur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Quarter Sessions of Luzerne county: Of January Term 1876, No. 250.
    At the September Term 1875 of the Court of Quarter Sessions of Luzerne county, an indictment was found on the 10th of September, the first count of which charged: that David Gise “did unlawfully and wilfully have two wives at one and the same time.”
    The second count charged that Gise, “ on the first day of January, A. D. one thousand eight hundred and fifty-five, did marry one Harriet Fisher, and he the said Harriet then and there had for a wife, and the said David Gise afterwards, and while he was so married to the said Harriet as aforesaid, on the twenty-fourth of May, A. D. one thousand eight hundred and sixty-eight, unlawfully did marry and take to wife one Jemima Davis, and to her the said Jemima was then and there married; the said Harriet, his former wife, being then alive,” &c.
    The Act of March 31st 1860 (Criminal Code), sect. 34, Pamph. L. 392, 1 Br. Purd. 324, pi. 49, enacts, “ If any person shall have two wives or two husbands at one and the same time, he or she shall be guilty of a misdemeanor,” &c.
    The defendant pleaded “Not Guilty,” and the Statute of Limitations.

      The Act of March 31st 1860 (Criminal Procedure), sect. 77, Panaph. L. 445, 1 Br. Purd. 394, pi. 79, provides that, “All indictments which shall hereafter be brought or exhibited for any crime or misdemeanor — murder and voluntary manslaughter excepted — shall be brought or exhibited within the time and limitation hereafter expressed and not after; that is to say, all indictments and prosecutions * * * for all misdemeanors, perjury excepted, shall be brought and exhibited within two years after such * * * misdemeanor shall have been committed.”
    The indictment was tried November 29th 1875, before Harding, P. J.
    The evidence of the Commonwealth was that Grise married Harriet Fisher on the 10th of June 1852, and lived with her several years; he afterwards left her, and on the 24tli of May 1868, married Jemima Davis, Harriet being in full life.
    The defendant offered no evidence.
    The court charged :—
    “ * * * Bigamy as defined by text writers, is ‘ the state of a man who has two wives, or a woman who has two husbands living at the same time.’ The Pennsylvania statute has in view just that ‘state’ of a man or woman, as the case may be, and provides concerning it thus: ‘ If any person shall have two wives or tw.o husbands at one and the same time, he or she shall be guilty of a misdemeanor.’ Under this statute the offence of bigamy, like that of carrying concealed weapons, for instance, is continuous ; and the limitation does not begin to run as long as the criminal act — ‘ having two wives or two husbands at one and the same time’ — continues.
    “ The English statute is different: ‘ Whosoever, being married, shall marry any other person during the life of the former husband or wife * * * * shall be guilty of a felony.’ Under this statute the limitation begins to run from the moment the criminal •act is consummated; that is, when one being ‘married,’ marries ‘ any other person during the life of the former husband or wife.’
    “ If you believe the Commonwealth’s testimony, the defendant may be convicted ; his plea of the Statute of Limitations cannot avail him. * * *”
    The defendant was convicted and sentenced.
    Having excepted to the charge of the court on the effect of the Statute of Limitations, the defendant took a writ of error and assigned the charge for error.

      P. L. Merriman, for plaintiff in error, cited Commonwealth v. Hutchinson, 2 Pars. 458.

      P. W. Palmer, for Commonwealth, defendant in error.

      May 18th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

This case presents a single question.

The plaintiff in error was indicted for the crime of bigamy. Upon the trial in the court below, the Statute of Limitations was set up as a defence. It appeared that the second marriage took place more than two years prior to the prosecution. The court ruled that bigamy was a continuing offence, and that the statute did not apply. The defendant was convicted and sentenced; and the record having been brought into this court upon a writ of error, we are required to decide upon the correctness of this ruling.

Our Statute of Limitations contains no clause excepting bigamy out of its operation. Its language is: “ All indictments which shall be brought or exhibited,” &c. Were we now to say that all indictments except bigamy shall be barred, unless brought or exhibited within the statutory period, we should be writing into the Act of Assembly .that which, the law-making power has not placed there. This is clearly not within the province of the judiciary. It is said, however, that the Statute of Limitations does not apply by reason of the peculiar phraseology of the section of the code defining bigamy ; that the offence is the having two wives or two husbands at one and the same time, and is of a continuing nature. This is certainly a literal construction of the act, and taken in this strict sense it defines no offence, for the reason that, under the law of Pennsylvania, it is impossible, as a legal proposition, for a man to have two wives, or a woman to have two husbands at the same time. A man who takes a wife here, cannot have a second wife so long as his former marriage is undetermined by divorce or death. He may, indeed, enter into a second marriage contract pending the-first. But the second woman is never a wife. The law strikes down such second contract as void, and the offence is bigamy on the part of the man.

It is very clear that at common law the crime of bigamy occurs- and is complete when the second marriage is accomplished. -It follows that the statute would commence to run from that time. This has never been questioned. But it is said that, owing to the peculiar language of our statute, it seeks to extend the offence of bigamy beyond the mere marriage contract, and cover the subsequent cohabitation of the parties, which, being continuous in its nature, is not affected by the bar of the statute. Yet, a little reflection will show, that our code, so far from being peculiar in its terms, merely defines the offence of bigamy at common law. It is said, in Bacon’s Abridgment, that bigamy is the “ having of a plurality of wives,” and that the offence consists of marrying a second wife, the first being alive. Bouvier defines it to be “the state of a man who has two wives, or of a woman who has two husbands, living at the same time.” Blackstone say3 it is the “having of a plurality of wives at once.” It will be seen that our code, 34th section of Act of the 31st of March 1860, Pamph. L. 392, uses almost the precise phraseology of the text writers. Its language is: “ If any person shall have two wives or two husbands at one and the same time.” Nor can it be claimed that there is anything novel in this section. It is but a re-enactment, of the Act of 1705 (1 Sm. Laws 29), so far as it relates to the description of the offence. In a note to the last-named act, it is .said that this statute merely defines the offence of bigamy, which “is understood in law to be, where a person marries a second wife or husband, the first being living.”. Such has been the uniform construction of our statute since the Act of 1705; our indictments have been so drawn. The forms which are given by Mr. Wharton, in his Precedents, at page 582, charge the second marriage as the offence,as at common law. One of those forms was própared by Mr. Jared Ingersoll, while attorney-general, in 1795; the other by Attorney-Gen eral Bradford, in 1790. Both of these eminent lawyers evidently regarded the second marriage as the offence; and such has been the uniform construction from that day to the present time. That they were right in this, is manifest from the fact that the indictment for bigamy is always, under our practice, found within the jurisdiction where the second marriage took place. That the venue must be so laid is elementary law: Wharton’s A. C. L., § 2627 ; Finney v. State, 3 Head. 544; People v. Mosher, 2 Parker 195. It is not so in England, nor in New York, nor Virginia. But this rests upon statute. We have no such statute, and the common-law rule prevails.

What our statute forbids is the contracting of a second marriage during the .lifetime of a former husband or wife. As was said in the State v. Patterson, 2 Ired. 346: “ Marriage, or the relation of husband and wife, is in law complete when-parties, able and willing to contract, actually have contracted to be man and wife, in the form and with the solemnities required by law. It is marriage ; it is their contract which gives to each right or power over the body of the other, and renders a constant cohabitation lawful; and it is the abuse of this solemn and formal contract, by entering into it a second time when a former husband or wife is still living, which the law forbids, because of its outrage upon public decency, its violation of the public economy^ as well as its tendency to cheat one into a surrender of the person under the appearance of right. A man takes a wife lawfully when the contract is lawfully made. He takes a wife unlawfully when the contract is unlawfully made; and this unlawful contract the law punishes.” In Reg. v. Baron, 1 Cox Crim. Cas. 34, it was said by Lord Denman, C. J.: “ The offence consisted in going through the ceremony of marriage, and appearing to contract that which was a legal and binding union at the time when she (the defendant) had already a husband living. That single fact constitutes the crime and the proof of it.” It is needless to multiply authorities.

The doctrine, now for the first time asserted, that the continuing cohabitation is the offence, does not need an extended discussion. It is not necessary to allege or prove cohabitation upon an indictment for bigamy : Cayford’s Case, 7 Greenleaf 58 ; Graham v. The People, 9 Parker; State v. Patterson, supra. On the contrary, a man may be convicted of bigamy who separates from his second wife at the altar, and has never cohabited with her at all. The gravamen of the offence is the second marriage contract, by means of which the offending party fraudulently obtains dominion or control over the body of the other. Mere lewdness or unlawful cohabitation is provided for by other sections of the code. The doctrine of continuing offences is novel. No text writer in England or America has ever asserted it. No respectable authority has ever recognised it. It is wholly unknown to the criminal law. There is a period in the history of every crime when it is completed arid the offender becomes liable to the penalties of the law. From that moment the statute commences to run.

It is said that, if the statute runs from the second marriage,a man can defy the law by keeping his second marriage secret until after the statutory period has passed. This hardly rises to the dignity of an argument. Carried to its legitimate conclusion, it would apply to every case of crime, and entirely annul the statute. It is true a man may live openly with his second wife after the bar of the statute. So he may with any other woman. I do not see that the scandal, or the injury to public morals, is greater in the one case than in the other. In either case he may be punished according to the nature of his offence. When a married man-unlawfully cohabits with a woman, he commits the crime of adultery. When he contracts a second marriage, he is guilty of bigamy. The difficulty in this case arises from the attempt to punish a man for one offence under a statute defining and punishing a different offence.

The statutes of several of the states differ from our own. So does the English statute. But the difference is more in form than substance. They are generally intended to define and punish the offence of bigamy. We have already seen in what that offence consists.

I have used the word bigamy according to its popular signification. Strictly speaking, it means twice married, as its derivation clearly shows. This was never an offence at common law, although made so by the canonists. Polygamy is the proper term to, describe the offence we have been discussing; but by long usage bigamy has come to be understood in law to be the state of a man who has two wives, or a woman who has two husbands, at the same time.

The Statute of Limitations is a bar to this prosecution. It follows, therefore, that the plaintiff in error was illegally convicted and sentenced, and should be restored to his liberty.

The judgment is reversed, and the record remitted to the Court of Quarter Sessions, with directions to carry this order into effect.