text:
    October and November Term, 1883,
    No. 81.
    October 29, 1883.
    The Grand Lodge of the Ancient Order of United Workmen of Pennsylvania vs. Stepp et al.

    Implied or express assent by a member of a corporation to an authority not within the scope of the charter does not confer, such authority or estop such member from denying it.
    Before Mercur, C. J.; Gordon, Paxson, Sterrett, Green, and Clark, JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas No. 1 of Allegheny County.

      Mandamus by J. G. Stepp, S. 0. Kyle, V. Sheaffer, C. W. Hamilton, George Spratt, J. M. Logan, G. K. Cartwright, H. E. Foulk, and J. K. Posey, members of Corona Lodge, No. 23, Ancient Order of United Workmen of the State of Pennsylvania, in their own behalf and in behalf of the other members of said lodge, against the Grand Lodge of the Ancient Order of United Workmen of Pennsylvania, a corporation under the laws of said Commonwealth, W. H. James, Grand Master Workman, and J. M. McNair, Grand Recorder of said Grand Lodge, to compel the said Grand Lodge and its officers to restore the Corona Lodge to all its rights and privileges guaranteed to it under its charter.
    The facts, as they appeared from the petition for an alternative writ of mandamus and the answer thereto, were as follows : The Grand Lodge of the Ancient Order of United Workmen of Pennsylvania was incorporated on March 9, 1871. Its charter provided that it should have the power to institute “ such subordinate lodges as it may see fit, under such rules, by-laws, and regulations as the corporation may establish, not in conflict with the laws of the Commonwealth.” The fourth section of the charter was as follows:
    “Section 4. It shall be lawful for the corporation to create, hold, and disburse a beneficiary fund for the relief of the members and their families, of the lodges established by this corporation, under such regulations as may be adopted by the corporation ; provided, that such fund shall at no time exceed five thousand dollars.”
    The Corona Lodge was instituted by the Grand Lodge on August 6, 1872.
    In 1873, representatives from the Grand Lodge of Pennsylvania, and other Grand Lodges throughout the country, met and organized a Supreme Lodge of the Order. The Supreme Lodge received a charter from the State of Kentucky, approved February 11, 1873. In March, 1882, a notice of an assessment of fifty cents per member was received by Corona Lodge from J. M. McNair, Grand Recorder of the Grand Lodge. This assessment was levied by the Supreme Lodge, and approved by the Grand Lodge of Pennsylvania, for the purpose of aiding the Grand Lodge A. O. U. W. of Indiana. The Corona Lodge refused to pay the assessment, and the beneficiary certificates of its members were, on May 4, 1882, suspended by the Grand Lodge. The relators set forth, inter alia, in their petition that they, as members of Corona Lodge, “received beneficiary certificates from said Grand Lodge entitling each of them to the sum of two thousand dollars, payable at death, to the person designated in said certificate; that each and every member of said Corona Lodge, at the time they applied for said beneficiary certificate, were required to pay to said Grand Lodge the sum of one dollar, and also to deposit the sum of one dollar with said subordinate lodge for the use of the beneficiary fund of said Grand Lodge, and at the same time to sign an application for said beneficiary certificate, which application and beneficiary certificate constituted a contract of insurance between said„Grand Lodge and the members of said Corona Lodge individually ; that, by the terms of said contract, upon the death of a member holding such a certificate, each member holding said beneficiary certificate issued by said Grand Lodge, was required to pay an assessment of one dollar within the time prescribed by the laws of said Grand Lodge, of which death due notice was required to be given to each lodge by the Grand Recorder ; ” that they declined to pay the assessment in aid of the Grand Lodge of Indiana, on the ground that it was without authority of law and in violation of the terms of the contract above referred to ; that they had, in consequence, been unlawfully suspended from their privileges under the said beneficial certificates, and they prayed to be restored and re-instated to all their rights in the same.
    The respondents’ answer and return set forth, inter alia, that the Grand Lodge of Pennsylvania has “full control and authority over all the subordinate lodges of the A. O. U. W. of Pennsylvania, (subject to appeal to the Supreme Lodge,) and adopted for the same a uniform con- . stitntion and code of laws, which it has altered and revised from time to time; . . . that all members of the order who joined it since February, 1873, did so upon express agreement that they would hold their beneficiary certificates subject to such laws as said Grand Lodge had made, or such as it might hereafter adopt, and that each of said relators did join the order since February, 1873 ; . . . that the charter of said Grand Lodge did not confine the operations of said lodge to the State of Pennsylvania, but lodges were established and the beneficiary fund collected from and disbursed to persons entitled thereto under the said beneficiary article in other States, as well as Pennsylvania, until a mutual agreement was entered into between the Grand Lodge of Pennsylvania and the Grand Lodges of other States to delegate general powers for that purpose to a Supreme Lodge ; that said Supreme Lodge was organized by representatives from the Grand. Lodge of Pennsylvania and other Grand Lodges of the order on February 11,1873 ; that said representatives were duly elected by said Grand Lodges and instructed to organize said Supreme Lodge, and that the representative of Corona Lodge was present and acted with the Grand Lodge of Pennsylvania in electing said representatives and instructing them to organize said Supreme Lodge ; that said Supreme Lodge was organized under a charter from the State of Kentucky, approved February 11, 1878; that among other powers delegated to it was the right and obligation to collect, hold, and disburse the beneficiary fund of the order, in all States where there were less than two thousand members, States having over two thousand members to have the right to collect, hold, and disburse the said fund under the local jurisdiction of their Grand Lodges ; that at the time said Supreme Lodge was established, Pennsylvania did not have two thousand members, and said Supreme Lodge did collect, hold, and disburse its beneficiary fund until July, 1874, when Pennsylvania, having obtained over two thousand members, was set aside by said Supreme Lodge as a separate beneficiary jurisdiction and entitled to manage its own beneficiary fund ; that since the organization of said Supreme Lodge, it has been recognized by this Grand Lodge and its subordinate lodges as the supreme head of the order, and the beneficiary regulations of the Grand Lodge are the same as approved by said Supreme Lodge, representatives have been annually sent to said Supreme Lodge, per capita tax paid to it, and the secret and ritualistic work of this Grand Lodge and its subordinate lodges have been received from it, all contracts made by this Grand Lodge guaranteed by said Supreme Lodge, and this Grand Lodge and its subordinate lodges have complied with every regulation and availed themselves of every privilege afforded by said Supreme Lodge; that the establishment of said Supreme Lodge was not only a reasonable, but a necessary, measure for the protection of the members of the lodges established by this Grand Lodge and for the promotion and security of the objects for which it was incorporated ; that the delegation of said powers to said Supreme Lodge was for a valid consideration, and secured important rights and benefits ; that the Grand Lodge, at its annual session, January 8, 1878, regularly adopted the following amendment to its Constitution, viz:
    “ ‘Art. 12, Sec. 1. All laws of general application to the order adopted by the Supreme Lodge are recognized as of binding force upon the Grand Lodge and the subordinate lodges under its jurisdiction.’
    “ That Corona Lodge was represented at said session and participated in the adoption of said amendment; that, at its annual session in January, 1880, the Grand Lodge of Pennsylvania, recognizing the necessity of protecting the lodges established by it, formulated and unanimously recommended the adoption of a general relief law, the purposes of which are set forth as follows:
    “‘Sec. 1. To protect such beneficiary jurisdiction of the order from exigencies which may arise, increasing its death rate to an extent which would make assessments for a time oppressive upon its. membership or beyond their ability to pay ; to strengthen and sustain the order and enable it to meet every emergency, by giving the assistance of the whole to any part suffering from an epidemic or other calamity, relief assessments shall be raised, disbursed, and managed as provided for in this article.’
    “That the representative of Corona Lodge was present and united in recommending said relief law, and the said Supreme Lodge, at its annual session the same year, adopted the said relief law as recommended, and made it of general application to the whole order ; that the adoption of said relief law by the Supreme Lodge was reported to said Grand Lodge by its representatives, and the said report received and adopted, and said relief law is recognized as of binding force by all the subordinate lodges; that all such subordinate lodges promptly paid the first assessment made thereunder, including Corona Lodge, and all but said Corona Lodge promptly paid this relief call No. 2.”
    The relators demurred to the answer on the ground that the matters of fact therein alleged, by way of defense, were insufficient in law to defeat their right to a peremptory writ of mandamus.
    After argument, the Court, March 10, 1883, sustained the demurrer and entered judgment thereon, Stowe, P. J., filing the following opinion :
    “ The question in this case depends upon the legality of the demand upon Corona Lodge to pay the amount assessed upon it by the Supreme Lodge of the Order, for the purpose of relieving the Grand Lodge of the State of Indiana — a corporation organized under a charter granted by the State of Kentucky, February 11, 1873. It is clear that under the charter of the Grand Lodge of Pennsylvania, no such power is granted as that claimed by respondent, as section three of its charter provides that ‘ it shall be lawful for the corporation- to create, hold, and disburse a beneficiary fund, for the relief of the members and their families of the lodges established by this corporation,’ etc. But it is said that the Grand Lodge of Pennsylvania, composed of duly elected representatives of the subordinate lodges under its jurisdiction, and the duly elected officers of said Grand Lodge, and also a duly elected representative of Corona Lodge, who was present and acting with said representatives, assembled in said Grand Lodge, organized a Supreme Lodge of the Order in July, 1873, which, has ever since been recognized by the Grand Lodge of Pennsjdvania and its subordinate lodges as the duly constituted supreme head of the Order, and that the constitution, by-laws, and beneficiary regulations of the Grand Lodge and of the subordinate lodges under its jurisdiction, as they exist to-day, with all revisáis, alterations, amendments, and additions, are the same as approved by the Supreme Lodge, and that the Grand Lodge of Pennsylvania has annually sent representatives to said Supreme Lodge, elected by the subordinate lodges, including Corona Lodge, &c. There seems to be no doubt that Corona Lodge impliedly, at least, if not expressly, from the time of the organization of the Supreme Lodge, in 1873, till this difficulty arose, recognized the authority of the Sujjreme Lodge as now claimed and sought to be enforced against it. If, then, their assent to such authority could confer it, or estop them now from denying it, the relief claimed in this proceeding should be denied. But it seems to me that such a position is not maintainable. The Supreme Court of the United States, following a judgment of the House of Lords, of England, has recently declared that the broad doctrine is now established, that a contract not within the scope of the powers conferred on a corporation cannot be made valid by the consent of every one of the shareholders. Nor can it by any partial performance become the foundation of a right of action. Thomas v. West Jersey R. R. Co., 101U. S., 71. It is said in that case this doctrine is so manifestly supported by sound reason and the highest consideration of policy, that it must hereafter be accepted universally as expressing the true rule of judgment in such cases. The same principle is announced in several other cases cited by plaintiffs — see Salem Mill Dam Co. ■». Ropes, 6 Pickering, 23 ; Colman v. Eastern Counties Railway Co., 16 Law, J. N. S., Equity, 73 and 19 Idem, 225, and the Supreme Court of Michigan in Lamphere v. The Grand Lodge A. O. U. W., 47Mich. Rep., 429, seems to have ruled the very question now before us in a similar case. The Court there saying: ‘ He, the plaintiff, stands suspended by the respondent, and thereby loses his insurance for refusing to recognize the orders of the Supreme Lodge, which is a corporation existing under the laws of Kentucky, and not subject to this jurisdiction. The assessment was made to pay losses on risks taken by the Order in other States and by other State Grand Lodges. The respondent is a Michigan corporation, existing under chapter ninety-four of the compiled laws. The relator is not liable to pay it. It is not competent for the respondent to subject itself or its members to a foreign authority in this way.’ I am of the opinion, therefore, that as the charter of respondent in this case confers no such authority, none exists. The plaintiffs were under no obligations to obey the order of the Supreme Lodge, even though recognized and indorsed by the respondent, that the suspension of Corona Lodge was illegal, and that the prayer of the plaintiffs must be granted and the mandamus awarded as prayed for, with costs.”
    The respondents thereupon took this writ, assigning for errors that the petition was informal, that the rights of relators were several and not joint, and that the Court erred in its rulings.

      A. M. Brown, W. H. James, and J. M. Caldwell for plaintiff in error.
    The disputed assessment is not ultra vires, because its object is to afford relief generally to all the members of the Order in all States where lodges of the Order have been established, but it is in strict accord with the intention of the framers of the charter, and within the scope of the powers conferred by it.
    Lamphere v. the Grand Lodge, A. O. U. W., of Michigan, upon which the Court below decided this case is not in point.
    This corporation should be classed with churches and benevolent associations, and not be subjected to rigid restrictions.
    The by-laws have the same force as if specifically granted by the Legislature.
    Thomas v. R. R. Co., 101 IDS. Rep., 71; Salem Mill Dam Co. v. Ropes, 6 Pick., 23; Colman v. Railway, 16 Law Jour. (N. S.) Etp, 73.
    The by-laws derive their force from assent.
    Black and White-Smiths Society v. Vandyke, 2 Wharton, 312 ; Toram v. Asso., 4 Barr, 519 ; Engine Co. v. Harrison, 12 N orris, 264.

      B. F. Wilson and J. MoF. Carpenter for defendants in error.
    A corporation has no powers except those expressly granted by its charter, or such as arise by necessary implication. In this case, an inspection of the application made for the beneficiary certificate, and the certificate itself, as well as. the beneficiary article in the constitution of said Grand Lodge, shows that the payment of the fixed sum of one dollar on each assessment, made to pay death losses'occurring within the State of Pennsylvania, was all that was contemplated by either party when the certificates were issued ; and this was in strict harmony with the provisions of the charter.
    The attempt is now made on the part of the Grand Lodge, at the dictation of the Supreme Lodge, to compel the payment of an additional premium or sum of money to that provided for in the original contract, and this, too, for the benefit of an entire stranger to the contract.
    That the Grand Lodge has not power summarily to cut off, without trial, those who refuse to pay this extra assessment, given to it expressly, or by necessary implication, we think is scarcely doubtful.
    Lamphere v. Grand Lodge, A. O. U. W., of Michigan, 47 Mich., 429 ; Thomas v. West Jersey R. R., 101 U. S., 71; Bank of Kentucky v. Schuylkill Bank, 1 Parsons Eq. Cases, 180; Perrine 'o. Canal Co., 9 Howard, 172 ; Head v. Insurance Co., 2 Cranch, 127; Colman v. Railway Co., 16 L. J. (N. S.) Eq., 73; Phillips v. Allen, 5 Wr., 482; Diligent Fire Co. v. Commonwealth, 25 P. F. Smith, 295; Commonwealth v. Erie and N. E. Railway Co., 27 Penna. State, 339.
    November 12th, 1883.
   Per Curiam:

This judgment is affirmed on the clear and satisfactory opinion of the Court below.

Judgment affirmed.


source: Caselaw Access Project

author: Per Ctjriam:

license: Public Domain

text:
    October Term, 1882,
    No. 46.
    October 10, 1882.
    Hays v. Baltimore & Ohio R. R. Co.
    1. The award of damages of viewers, appointed under the act of 19th February, 1849, P. L., 79, to assess damages for the taking of land by a railroaj company, bears interest only from the time of filing.
    2. It is the duty of the jury to file the award; and if they fail to do so, an order of Court could be had to hasten them.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to Court of Common Pleas No. 1 of Allegheny County.

      Assumpsit by John S. Hays, surviving executor and trustee under the last will and testament of James H. Hays, deceased, against The Baltimore & Ohio Railroad Company, operating The Pittsburgh & Connellsville railroad.
    The following facts were agreed upon in said action in the nature of a case stated.
    The Pittsburgh & Connellsville Railroad Company, on the 2d of April, 1881, presented a petition to the Court of Common Pleas No. 1. of Allegheny county, at No. 189 June term, 1881, (the record of which case is to be treated as part hereof,) praying for the appointment of viewers under the provisions of the act of Assembly of Pennsylvania, approved the 19th of February, 1849, (P. L., 83J to assess damages sustained by the heirs of James H. Hays, deceased, for the taking of land by said company which they had previously appropriated for the purposes of their road. Viewers having been appointed in accord-^ anee with the prayer of the petition, afterwards met on the premises for the purposes of their appointment, and on the 3d of May, 1881, reported in favor of said heirs, awarding to them $34,575 for the damages so sustained by them as aforesaid. This report was on the same day delivered by the viewers to the counsel of said company, but was not filed in Court until the 18th of June, 1881, when the same was confirmed nisi, and no exceptions having been filed to the same, was'afterward, on the of July, 1881, confirmed absolutely. The said heirs have received the said sum of $34,575 from said company, with interest from the 18th of June, 1881, and entered satisfaction in full of said award without prejudice to their right to recover more in this action of assumpsit against the said railroad company, defendant, if entitled thereto, and they claim to be entitled, in addition to the above amount recovered by them as aforesaid, to recover also interest on the said principal sum of $34,575 from the date of said award, to wit, the 3d day of May, 1881, to the date of the filing thereof in Court, amounting to the sum of $266 80.
    If the Court be of opinion that the heirs of James H. Hays, deceased, defendants in the above entitled proceedings at No. 189, June Term, 1881, were entitled to interest on the award of said viewers from the date thereof, to wit, May 3d, 1881, and not merely from the date of the filing of the same in Court, then judgment to be entered for the plaintiff and against the defendant for the said sum of $266 80, with interest from October 4, 1881, otherwise judgment to be entered for the defendant.
    The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein.
    The Court below, Stowe, J., entered the following judgment:
    January 25, 1882, being of opinion that under the foregoing case stated, the plaintiff is not entitled to recover, judgment is now entered thereon in favor of defendant with costs.
    Plaintiff’s attorney excepted. Plaintiff then took out a writ of error, assigning as error the entering of judgment for defendants on the case stated.

      Thomas Q. Lazear for plaintiff in error.
    The owner of the land taken is entitled to interest from the date of such appropriation: R. R. Co. v. Cooper, 58 Penna. St., 408; R. R. Co. v. Burson, 61 Penn. St., 380; ”R. R. Co. v. Gesner, 20 Penna. St., 240; R. R. Co. v. Greely, 3 Foster, (N. EL,) 237; Philadelphia v. Dyer, 41 Penna. St., 463.
    The delay in filing the award was not caused by plaintiff. It was the company’s duty to file it immediately.

      Johns McQleaw for defendant in error.
    The act of 19 February, 1849, section eleven, makes the sum awarded payable only when judgment is entered thereon. Interest is allowable only after the sum is due: Second St., Harrisburg, 66 Penna. St., 132; Miskey v. City of Philadelphia, 68 Ibid, 48 ; Haley v. City of Philadelphia, Ibid, 46; Norris v. City of Philadelphia, 70 Ibid, 332; Kelsey v. Murphy, 6 Casey, 340; Phillips ■». Pease, 39 Cal., 582.
    Plaintiff had power to compel the immediate filing of the report.
    October 23d, 1882.
   Per Ctjriam:

We are of opinion that the judgment in this case was clearly right. The award of damages only bears interest from the time of filing. It was the duty of the jury to file the 'award, and if they failed, the plaintiff could have hastened them by an order of the court.

Judgment affirmed


author: Trunkey, J.

text:
    October and November Term, 1882,
    No. 93.
    October 12, 1882.
    Appeal of John Huckestein et al.

    1. Where an application to open a judgment rests upon an attempt to show that the terms of a written contract were not complied with, the weight of the evidence touching the disputed points need not be so strong in order to move the Court to open the judgment as if the contract was sought to be overthrown.
    2. That a party has a judgment as collateral security for what may be due upon a contract, is not a reason for refusing to open the judgment where there is a proper ease for submission to a jury to determine how much, if anything, is due on that contract.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal by John Huckestein and Henry Huckestein, copartners, as Huckestein <& Co., George S. South, and William Huckestein, from the decree of the Court of Common Pleas No. 1 of Allegheny County, discharging a rule to show cause why the liquidation of a judgment should not be set aside, and why the judgment should not be opened and the defendants let into a defense.
    Judgment was entered against the defendants November 16, 1881, in favor of A. J. Jolly, for $1,052 52, upon a confession contained in a bond. The bond was in the penal sum of $4,000, and conditioned for .the payment of $2,000 on the 1st day of November, 1881, and “if fifty per cent, thereon is paid on its becoming due, then, and in that case, this bond not to be entered on record until ten days after the date of its becoming due, viz: November 1, 1881; the amount of money to be collected on this bond to be liquidated in accordance with the amount of stone delivered to said Huckestein & Co., for the pier in the Union Bridge Company’s bridge, for which A. J. Jolly shall produce certificates for the price of the stone from Huckestein & Co.” The bond was given to secure performance of an agreement between Jolly and Huckestein & Co., dated July 27, 1881, in which Jolly agreed to deliver all the new sandstone, estimated at three hundred cubic yards, required for the construction of a new pier for the Union Bridge over the Allegheny river. The agreement provided that the stone were to be delivered “at the rate of two car-loads per day, or as fast at that rate as the railroad company will transport them that they were to be measured by Jolly and marked single on each stone, and the invoice of each car-load to be mailed to Huckestein & Co., and if the invoice was not accepted, Jolly to be notified within five days; that the whole price of the stone delivered was to be paid Jolly on or before November 1, 1881, Huckestein & Co., to pay the freight and charge it to Jolly; that the stone were to be cut and dressed, in accordance with specifications to be furnished by Huckestein & Co., “all plans and specifications to be furnished within two weeks from the date hereof,” and “all the said stone to be delivered before the 20th day of September, 1881.”
    The liquidation of the judgment, filed by leave of the Court, nunc pro tunc, May 1, 1882, as of November 15, 1881, showed a credit upon the bond of $1,000, paid November 1, 1881. The judgment was made up by adding to the balance of $1,000 the sum of $2 50 for interest and $50 12 for attorneys’ commissions. This liquidation set forth a further claim for stone, furnished under the contract, amounting, November 11, 1881, over and above pay.ments on account, to $98 07, and for stone furnished subsequently, $281 70.
    December 17, 1882, upon petition of the defendants, the Court granted a rule to show cause why the liquidation should not be set aside and the judgment opened and they be let into a defense. Before a commissioner appointed to take testimony upon the rule, John Uuckestein, one of the defendants, testified, inter alia, in substance :
    I gave Jolly verbally the sizes needed, from time to time, to meet the heights of the ice-cutter. I also sent to acquaint him with the height required. I gave instructions to inform him of the sizes required. I told him in the beginning of the delivery of the stone that McSweenyhad condemned the manner in which the stone were cut and ordered us to re-cut them. I told him also, at this time, that he should send us the stones as needed then in the building of the pier, as there was some stone among those deliveries that we needed in the last couple of courses of stone in the pier. The stone were not delivered as ordered by me. They came mixed in sizes, and not as we ordered them, nor as we needed them in the building of the pier. The stone were not cut as oi’dered, and were not of the kind called for by the specifications. The joints did not come up to the requirements, and the balance of the stone was narrower and thinner. I told Jolly of the trouble it put us to in setting the stone, that it took more cement; on several occasions the engineer ordered the stone to be taken out. The stone were not shipped as'we needed them. We were waiting on them. We waited for three days before we had enough stone to begin the third course. We waited about on every course after that. They did not ship the stone required in the first courses first. They shipped them mixed as to their heights. It delayed us from six to seven weeks. We were working on the first course September 10. We were to finish the pier by October 1, 1881. We finished it on the 20th or 21st of December. There were twenty-three courses. If the stone had been on the ground as ordered, it would have taken thirty-five days to build the pier. The stone were not delivered within the time specified in the contract. The last of the coping stone were delivered on the 7th or 9th of December. We unloaded promptly. The river rose on the 38th, 39th, and 20th of November. The stones that were unfit to* go in the pier we put in a culvert. Our actual loss, incurred by reason of the nondelivery of the stone as called for in the agreement, was $8,339 12.
    There were numerous witnesses for the defendant who corroborated much of the above testimony.

      A. J. Jolly, the plaintiff, testified, inter alia: “On the 15th of October, I received the first specifications for the stone required. We would receive an order for a certain class of stone — generally a verbal order; here and there a telegram; received some by letter. These orders were, at various times, countermanded before they would reach their destination.”
    In rebuttal, lie testified that he did not delay the shipment of the stone after receiving instructions from Huckestein & Co., at any time during the erection of the pier.
    A number of witnesses for the plaintiff testified that Huckestein & Co. did not haul the stone away promptly from the cars when delivered.
    May 1, 1882, the Court discharged the rule.
    The defendants then appealed, assigning that the Court erred in refusing to open the judgment, in discharging the rule, and in refusing to set aside the liquidation.

      Barton & Son, for the appellants.
    All of the evidence shows that, from time to time, plaintiff’s attention was called to the sizes and courses, and that he was dilatory in delivering.
    The opening of a judgment entered on a warrant of attorney is no longer within the discretion of the Court below, but, like entering a judgment for want of a sufficient affidavit of defense, is a matter that may be reviewed. The question is not, did the defendants show conclusively a good defense, but did they make out a fair case for a jury.

      Jo7m H. Large, for the appellee.
    The testimony does not show who was to blame in the matter. In no special instance is the cause of the delay brought to rest upon the appellee.
    October 25, 1882,
   the opinion of the Court was delivered by

Trunkey, J.

Jolly covenanted with Huckestein & Go. that he would deliver all the new sandstone required for the construction of a new pier for the Union Bridge before September 20, 1881. Huckestein & Co. gave a judgment-bond, with surety, to secure payment of the price, and the judgment was confessed on said bond. The contract and bond are unimpeached, neither party alleging fraud or mistake therein. This application for opening the judgment does not rest upon an attempt to overcome or vary a written contract by oral testimony.

The appellants do not undertake that burden, and the weight of the evidence touching the disputed points need not be so strong in their favor to move the Court to open the judgment, as if the contract in writing was sought to be overthrown. That the party has a judgment as collateral security for what may be due upon a contract is not reason for refusing to open the judgment, when there is a proper case for submission to a jury to determine how much, if anything, is due on that contract.

Here the allegations and testimony have respect to the manner of performance, and delay in performance, by the plaintiff in the judgment, of his contract. That there was considerable delay is agreed; and that by reason thereof Huckestein & Co. suffered loss is clearly proved.

It also appears that Huckestein & Co. failed to give the'Orders and specifications, so that the stone could have been delivered within the stipulated time. But, after the delivery had begun, the stone was not promptly furnished as required for the work. The parties differ as to the cause, each alleging it was the other’s fault. One also alleges that part of the stone furnished was unfit, and could not be used in the pier; the other, that the whole accorded with the specifications.

Numerous witnesses testified respecting the disputed points, and their testimony is conflicting. An examination of the testimony convinces us that the appellants are entitled to a trial by jury. It would answer no good end to now remark the testimony at length or express an opinion of its weight.

The order discharging the rule to show cause is reversed, and said rule is made absolute, and procedendo awarded.


author: Gordon, J.

text:
    October and November Term, 1883,
    No. 54.
    October 25, 1883.
    McMurray et al v. Kenney.
    ]. By agreement under seal, A, owning the fee simple in certain lots of ground, covenanted to convey them to B. On the following day, A assigned the agreement to 0, and executed a deed to C for the lots in fee. Subsequently, 0 made a deed to B in fee. Prior to the agreement between A and B, 0 had verbally agreed to sell the same property to D, who paid the consideration money, and had given written receipts therefor, which set forth that they were given for the purchase money of the lots. D immediately took possession of the premises, and made repairs and improvements thereon. Held in an ejectment by the sheriff’s vendee of B against D, that the equitable title vested in B at the time of the execution of the agreement between A and B, and that 0, when he held the legal title, held as trustee for B.
    2. Although the receipts given to D may have constituted a sufficient agreement to convey under the statute of frauds, yet at the time of their date, C had no title, and his subsequently acquired title did not inure to the benefit of D, since the equitable title had then vested in B.
    3. The agreement between A and B provided that if B did not meet his payments at the time fixed, he would execute to A, his heirs and assigns, a quit claim or release of all interest in the said premises. Held, that the failure to pay at the time agreed on was not' per se a forfeiture, and that the subsequent acceptance of a mortgage for the purchase money by 0, and the execution of a deed by him to B, deprived him of all power to enforce this part of the contract.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Clark, JJ. Green, J., absent.
    Error to the Court of Common Pleas No. 1 of Allegheny County.

    Ejectment by T. J. Kenney against John McMurray and' Robert Potter for four lots of ground in North Fayette township.
    Upon the trial in the Court below before Stowe, J., the following facts appeared:
    Both parties claimed the land through James McCandless. On June 1, 1867, McCandless sold to C. H. Love one hundred and fifty acres of land at Oakdale, Allegheny county, for $15,000, taking a purchase-money mortgage from Love for $10,000. Love laid the property out in lots, in the plan of which lots Nos. 19, 20, 21, and 22 are the property now in dispute. The mortgage not being paid, was foreclosed by McCandless, and the property sold at sheriff’s sale in April, 1876. At this sale Love bought in the lots 19, 20, 21, and 22 in the name of James E. Eiken for $875, and not being able to pay the money, McCandless agreed to take them, and the sheriff’s deed was made to him.
    The plaintiff offered in evidence an agreement under seal, dated November 23, 1876, between McCandless and Love, in which the former agreed to sell, inter alia, the lots in dispute to the latter for the sum of $6,716, of which $2,000 was payable February 1, 1877, and the balance April 1, 1877. This agreement provided :
    “And it is hereby expressly agreed and understood, that in case the said C. H. Love fails or neglects to pay the said sum of $2,000 on the 1st day of February, 1877, and the balance or remainder of the said purchase money of said lots or pieces of ground on or before the 1st day of April, 1877, then and in that case he, the said C. H. Love, together with his wife, shall execute and deliver to the said James McCandless, his heirs, executors, and assigns, a quit claim and release, in due form of law, of all their right, title, interest, and claim of, in, and to the lots or pieces of ground herein mentioned and described.”
    The plaintiff also offered in evidence the following assignment, under seal executed by McCandless, November 24, 1876 :

      “ For value received, I hereby sell, assign, transfer, and set over to S. B. W. Gill, all my right, title, interest, and claim whatsoever of, in, and to the within agreement.” Defendant’s counsel objected to the offer of the above agreement and assignment, which objection was overruled and an exception taken. (First assignment of error.)
    McCandless made a deed for the lots to Gill November 24, 1876. A deed for the lots, from Gill to C. H. Love, dated May 12, 1877, was admitted -in evidence under exception. (Third assignment of error.)
    Plaintiff then offered a purchase-money mortgage from Love to Gill, dated May 12, 1877, for $3,400, being for the whole purchase money; assignment of said mortgage to T. J. Kenney; seire facias upon said mortgage and proceedings thereunder; and deed from the sheriff to T. J. Kenney, the plaintiff, dated February 12, 1881.

      The offers were admitted under exception. (Fourth and fifth assignments of error.)
    The defendant then gave evidence of the following facts:
    On May 4, 1876, Gill made a verbal agreement with the defendant, McMurray, to sell to him the same lots for the sum of $875, and received on account $400. The balance of $475 McMurray paid to him May 11, 1876. For these amounts Gill gave receipts as follows :
    “Received of Mr. John McMurray the sum of four hundred dollars on account of the purchase money of four lots, Nos. 19, 20, 21, and 22, in C. H. Love’s plan of the McCandless farm, at Oakdale, Allegheny county, Pa., purchased at sheriff’s sale by James E. Eiken.

      “May m, 1876. S. B. W. Gill.”
    “Received, May 11th, 1876, of Mr. John McMurray, four hundred and seventy-five dollars in full of the balance of the purchase money of the within-mentioned lots.
    “$475 00. S. B. W. Gill.”
    Gill told McMurray to take possession, and the latter did take possession on the 12th of May,- 1876, and remained in possession, through his tenants, up to the time of trial, except for a portion of one day. He put some weather-boarding on a small house on the premises, locked up the house with a pad-lock, repaired the floor, made rails on the property, and put up a fence. He also pried the house up and put posts under it. Gill disappeared September 17, 1877, without having made a deed to McMurray.
    Defendants offered to prove that at the sheriff’s sale on the Love mortgage, a notice was read and served upon the sheriff that the lots did not belong to Love, but were the property of McMurray. Upon objection, the Court rejected the offer, and defendants took an exception (sixth assignment of error).
    Plaintiff offered to prove by C. H. Love, in rebuttal, that he was present at the sheriff’s sale of this property in 1876; that the property was knocked down at his bid in the name of James E. Eiken; that he paid several hundred dollars on account of the bid to the sheriff; that subsequently he entered into an arrangement with James McCandless, the plaintiff in the writ, under which the property was sold, by which James McCandless was to take the sheriff’s deed for this and other property sold at the said sale under the same mortgage, and an arrangement by which McCandless was to take the deed and was to re-convey the lots in controversy in this suit to him, or to such persons as he might direct; that such agreement was subsequently put in writing, on the 23d of November, 1876, and on the 24th of November, 1876, McCandless conveyed the premises to S. B. W. Gill, with notice of this arrangement between himself and Mr. Love, and, at the same time, assigned the written agreement referred to, which is already in evidence, and that, in pursuance of that agreement, the property was conveyed by S. B. W. Gill to witness, C. H. Love, and a mortgage given for the purchase money by C. H. Love to S. B. W. Gill, and assigned to Thomas J. Kenney, the plaintiff in this suit; that when Gill purchased the property from McCandless in 1876, before the subsequent conveyance to Love, he, Gill, extended the time stipulated in said agreement for the payment of the purchase money.
    The offer was admitted under exception. (Second and seventh assignments of error).
    Plaintiff then testified as to the facts stated in the offer. He said, inter alia:

    “I found it was going to take a little more time than I supposed. I spoke about it in the presence of Mr. Mc-Candless and Mr. Gill at the time the agreement was executed . . . and that was the understanding that I could have more. They never asked any quit-claim deed or anything of the kind of either myself or my wife.”
    The Court thereupon peremptorily instructed the jury to render a verdict in favor of the plaintiff, to which defendant took an exception. (Eighth assignment of error)..
    February 6, 1883, verdict for plaintiff, with six cents damages and costs, upon which judgment was afterwards entered.
    Defendants then took out a writ of error, assigning errors as set forth above.

      T. Walter Day, for plaintiffs in error.
    The contract between Gill and McMurray, the payment of the money and the receipts therefor, constituted a sale of the land within the statute of frauds. Smith’s Ap., 19 P. F. Sm., 480; Shoofstall «. Adams, 2 Grant, 212 ; Mc-Farson’s Ap., 1 Jones, 503 ; Colt *. Selden, 5 Watts, 528; Ross v. Baker, 22 P. F. Sm., 186; Burns Sutherland, 7 Barr, 108; Broom’s Leg. Maxims, 673-4; Moore v. Small, 7 Harris, 461; Cadwallader v. App, 31 P. F. Sm., 210; Lowry *. Mehaffy, 10 Watts, 387; Tripp v. Bishop, 6 P. F. Sm., 429 ; Johnston v. Cowan, 9 Id., 280; Huddleston v. Briscoe, 11 Ves., 591; Welford ®. Beezely, 1 Ves. Sr., 8; Fowle v. Freeman, 9 Id., 351.

      In pursuance of this contract, possession was taken, which would take the case out of the statute of frauds: Clarke v. Yankirk, 14 S. & R., 354; Bassler v. Niesly, 2 Id., 354; Jamison v. Dimock, 14 Norris, 52; Colt v. Selden, 5 Watts, 528; Miller v. Hower, 2 Rawle, 53 ; Parrish v. Koons, 1 Parsons, 91 ; Billington v. Welsli, 5 Binney, 131; Pugh v. Good, 3 W. & S., 56; Reed v. Reed, 12 Penna., 117 ; Bassler v. Niesley, 2 S. & R., 352 ; Troup v. Troup, 6 Norris, 149 ; Haslet v. Haslet, 6 Watts, 464; Moore v. Small, 7 Harris, 461.
    Although Gill did not have title when he made the sale to McMurray, the subsequent conveyance to Gill enured to the benefit of McMurray: Clark v. Martin, 13 Wr., 303 ; Patton n. Hollidaysburg, 4 Wr., 206 ; Washabaugh v. Entriken, 34 Penna., 74; Tyson v. Passmore, 2 Barr, 122; Brown v. McCormick, 6 Watts, 60; Foter’s Ap., 3 Penna. St., 79.
    The agreement to extend the time of payment by Love was void, McMurray having acquired title and Love having notice thereof: Woods v. Wallace, 10 Harris, 175; 1 Green Ev. section 275-6; Maul v. Rider, 9 P. F. Sm., 167; Patton v. Hollidaysburg, 4 Wr., 206 ; Jamison v. Dimock, 14 Norris, 52.
    The evidence that the purchaser at sheriff’s sale had notice of the McMurray title should have been admitted: Barnes ¶. McClinton, 3 P. & W., 67; Ross v. Baker, 22 P. F. Sm., 186; Hill ¶. Epley, 7 Casey, 331; Jamison v. Dimock, 14 Norris, 52.
    The agreement between McClintock and Love was a mere privilege or option given to Love to have certain property conveyed to whom he might designate, if he paid the consideration at the time specified. If he failed to pay, he was to acquire no title. Time, in this agreement, was of the essence of the contract: 1 Fonbl. Eq., sec. 12, ch. 6 ; Story’s Eq., sec. 776 ; Westerman ». Means, 2 Jones, 97; Bodine v. Glading, 9 Harris, 50; Brown v. Yandergrift, 30 P. F. Sm., 142 ; Espy v. Anderson, 2 Harris, 308.

      Thomas C. Lazear and John F. Edmundson for defendant in error.
    The receipt relied upon does not set out the terms of the contract, nor sufficiently describe the property, nor designate the parties. To take a parol sale out of the statute of frauds, the possession must be exclusive and the boundaries distinctly ascertained: Haslet ». Haslet, 6 Watts, 464; Blakeslee v. Blakeslee, 22 Penna., 237; Ackerman ®. Fisher, 457 Id., 57; Bowers®. Bowers, 14 Norris, 477; Frye ®. Shepler, 7 Penna., 91 ; Burns ®. Southerland, Id., 103.
    The'improvements could be compensated in damages: Moore ®. Small, 7 Harris, 461; Poorman ®. Kilgore, 2 Casey, 365 ; Cox ®. Cox, Id., 375; Postlethwait ®. Frease, 7 Casey, 475 ; Harris ®. Richey, 6 P. F. Sm., 395 ; Mc-Kowen ®. McDonald, 7 Wr., 441; Toe ®. Toe, 3 Gr., 74; Ballard ®. Ward, 8 Norris, 358 ; Detrick ®. Sharrar, 14 N orris, 521.
    The conveyance to Gill was in trust for Love. The purchaser of an equitable title takes subject to equities to which it was subject in the hands of the person from whom he purchased : Chew ®. Barnet, 11 S. & R., 389 Reed ®. Dickey, 2 Watts, 459 ; Kramer ®. Arthurs, 7 Penna., 165.
    Adverse possession, to be notice to a purchaser or mortgagee, should be clear, distinct, and unequivocal: Martin ®. Jackson, 27 Penna., 504; Meehan ®. Williams, 48 Penna., 238.
    November 5, 1883,
   the opinion of the Court was delivered by

Gordon, J.

Both parties to this suit claim to have derived title to the land in controversy from James McCandless, and the one and only material question in the case is, who is the rightful possessor of his title ?

McCandless, on the 23d of November, 1876, by articles of agreement duly executed, covenanted, on payment of the purchase money therein set forth, to convey to C. H. Love, whose title the plaintiff below now owns, the several lots of ground, the right of possession to which forms the subject of the present contention.

This agreement was, on thé next day after its date, assigned by McCandless to S. B. W. Gill. On the same day of this assignment, McCandless executed to Gill a deed for this property in fee, and on the 12th of May, 1877, Gill conveyed to Love. This brief exhibits a good title in Love.

Against this, the defendant sets up the following receipts :

“Received of John McMunuy the sum of four hundred dollars on account of the purchase money of four lots, Nos. 19, 20, 21, and 22, in C. H. Love’s plan of the McCandless farm, in Oak Dale, Allegheny county, Pa., purchased at sheriff’s sale by James E. Eiken.
May Ifth, 1876. S. B. W. Gill.”
“Keceived, May 11th, 1876, of John McMurray, four hundred and seventy-five dollars in full, balance of the purchase money of the within-mentioned lots.
S. B. W. Gill.”

It is contended that these constitute a sufficient agreement to convey under the statute of frauds. This may be admitted; but at that time Gill had no title, hence even his most formal conveyance could not have transferred to his vendee land that confessedly belonged to another person. But, it is urged, on the authority of Clark v. Martin, 13 Wr., 299, and similar cases, that Gill having afterward acquired title from McCandless, that title inured to the benefit of McMurray.

The principle thus stated is undoubtedly a correct one, but it cannot apply in this case, since the day before the deed was executed to Gill the equitable title vested in Love.

Thus, Gill never had anything but the legal title, and this he held as trustee for Love, the equitable vendee of McCandless. Of this legal title, McMurray, perhaps, might have compelled a conveyance, had he taken the proper steps for that purpose whilst it was still in Gill, but failing so to do, he now stands wholly without right of any kind.

But it is said the agreement between McCandless and Love "was forfeited in consequence of the non-payment of the purchase money at the time fixed by the terms thereof.

In order to understand this proposition properly, we transcribe that part of the contract bearing upon this particular point of the case. It is as follows : “And it is hereby expressly agreed and understood, that in case said C. H. Love fails or neglects to pay said sum of $2,000 on the 1st day of February, 1877, and the balance or remainder of said purchase money of said lots or pieces of ground on or before the 1st day of April, 1877, then and in that case, he, the said C. H. Love, together writh his wife, shall execute and deliver to the said James McCandless, his heirs, executors, and assigns, a quit claim and release, in due form of law. of all their right, title, interest, and claim of, in, and to the lots or pieces of ground herein mentioned and described.”

Here we find Love agreeing that, if he did not meet his payments at the time fixed, he would reconvey to Mc-Candless, his heirs, or assigns. The neglect of payment was not, therefore, per se a forfeiture, and whether or not the quit claim or release should be insisted upon, depended altogether upon the will of McCandless or Gill, to whom he had assigned. But neither of these parties ever attempted to enforce this part of the contract, and all right and power to do so forever passed from Gill when he accepted Love's mortgage for the purchase money and executed to him the deed of May 12, 1877.

Under the circumstances as above stated, McMurray’s possession, whatever it may have been, amounted to nothing, for it was without right, and was not continued long enough to make title by the statute of limitations.

Judgment affirmed.


author: Per Curiam:

text:
    October and November Term, 1882,
    No. 162.
    October 23, 1882.
    Appeal of Nancy Neel.
    1. Where a deceased owner of a coal mine leaves surviving him a widow and minor children, the guardian of the children may, under the act of April 25, 1850, P. L., 573, operate the mine, or have it operated, to exhaustion, for the benefit of his wards; and he may lease it at a certain rent per hundred bushels of lump coal, in accordance with the universal custom of the trade in the region where the mine is located, which excludes rental for nut coal and slack.
    2. Being bound to treat the mine as an entirety, he may lease the interest of the widow with that of his wards.
    3. The lease having been made at a fair rental value, he is not bound to account to the widow as to her one-third interest for more than he is entitled to receive under the conditions of the lease.

      4. Under a bill in equity, filed by her for an account in such case, the decree may embrace all the coal that may be taken out during the future continuance of the lease.
    5. The costs in such a case were properly divided equally between the parties.
    Before Siiarswood, C. J.; Mercttr, Gordon, Paxson, Trtjnkey, and Green, JJ. Sterrett, J., absent.
    Appeal of Nancy Neel from the decree of the Court of Common Pleas No. 1 of Allegheny County, directing a sum of money to be paid to her, a future accounting by one of the defendants, and that the costs be divided equally between the parties.
    Bill in equity filed by Nancy Neel, widow of William Neel, against John E. Bravo, who was guardian for the four minor children of the said William Neel, and Harvey Hutchinson, praying for an injunction, the appointment of a receiver, and an account.

      August 6, 1881, D. F. Patterson, was appointed master to take testimony, find the facts, and report form of decree.
    The master found, inter alia, the following facts :
    The controversy between the parties arises upon a bill in equity filed July 16, 1881, by Nancy Neel, who is the widow of William Neel, who died intestate on March 18, 1880, leaving to survive him the said widow and four minor children, of whom John F. Dravo, one of the defendants, is guardian. At the date of his decease, William Neel was the owner, amongst other property, of an opened coal mine, located in Allegheny county, on that part of the Monongahela river known as Pool No. 2, together with the usual appurtenances and appliances for mining and marketing coal in that coal region.
    The defendant, Dravo, as guardian of the minor children, entered upon the possession of this coal mine, with certain of the appurtenances and equipments, and, on June 27,1881, let the same to the other defendant, Harvey Hutchinson, for a term of two years, at the rate of fifty cents per hundred bushels for all the lump coal to be mined during the term by the lessee. The plaintiff did not join in the lease.
    The product of coal mines in this coal region consists of three grades, to wit: First, the lump or merchantable coal; second, the nut coal; and third, slack or dust. There is no dispute that there is a universal custom, well known and acted upon by the coal operators in the Monongahela coal region, to lease mines at a certain rate per hundred bushels of the lump coal mined, without any account to be given by the lessee of the nut coal and slack; and it is further a universal custom to pay the miners for the lump coal only, at a certain rate per bushel for mining.
    The defendant, Dravo, has all along been willing to account, and has accounted, to the plaintiff for the lump coal mined by his lessee, at the rate of fifty cents per hundred bushels, as provided for in his lease to the defendant, Hutchinson.
    The plaintiff’s counsel insisted upon the production of the books of the defendant, Hutchinson, for the purpose of introducing evidence to prove the entire product of the mine since he has operated it, together with the amounts received by him from the sale of such product, including nut coal and slack, and the costs and expenses incurred by him in mining and marketing such product. The master refused to order the production of such books for such purpose, and excluded all testimony relating to the quantity of nut coal and slack mined by Mr. Hutchinson, or to the prices received by him for any of the coal mined by him, or of his outlays and liabilities in mining and marketing the coal.
    The mine in question had been operated for many years, at least thirty years prior to William Neel’s decease, by William Neel and others. The body of coal so operated upon consisted of upwards of two hundred and fifty acres. At the date of his death, the coal had all been mined out except remnants, consisting of small blocks, not exceeding an acre or two each, of solid coal, located for the most part at places in the mine distant from the pit mouth and from each other, and of pillars and ribs situated in different j)arts of the mine, some of them in places where the mine had been worked as long as thirty years ago. The entire amount of coal remaining when Mr. Dravo took charge of the property, including pillars and ribs, was from twelve to fifteen acres. William Neel had operated the mine up to the date of his death. At that time, he was in possession of a lease of a river front for landing and loading barges and fiats ; and he was owner of barges and flats for marketing the product of the mine, an incline plane and tracks for running coal from the pit mouth to the river, and of mules, pit wagons, dram wagons, and the usual equipments of such mines in that coal region.
    After William Neel’s decease, his widow, the plaintiff, administered his personal estate and settled her account as administratrix. All of the personal property connected with the mine was inventoried and appraised, and she was charged with it in her administration account, and the mine was operated for awhile under her authority, and the proceeds accounted for. The defendant, Hutchinson, was in her employ, and aided her in administering her husband’s estate. A considerable portion of the personal property that had been used in connection with the mines was sold by the administratrix, and the proceeds accounted for; but, upon consultation with the guardian of the children, Mr. Dravo, and with his consent, she retained unsold seven mules, valued at $650, nine fiats, valued at $1,800, and eighty pit wagons, valued at $1,200, for which she received credit at the valuation in her administration account. These mules, flats, and pit wagons were retained by the consent of all interested parties, (there being no creditors interested,) for the purpose of being used in working out the remaining coal from the mine.
    The mules, flats, and pit wagons were transferred by the plaintiff to the defendant, Dravo, to hold to the extent of two thirds for his wards, and to the extent of an undivided one third in trust for the plaintiff, as widow.
    About the same time, the defendant, Hutchinson, made an offer to Mr. Dravo to lease the mine, with certain appurtenances and privileges, and Mr. Dravo, as guardian, presented his petition to the Orphans’ Court of Allegheny county for authority to lease on the terms offered, with the plaintiff’s consent, and the said Court made the order as prayed for.
    William Neel was the owner, at the date of his decease, of about twenty-five to thirty dwelling-houses, which were intended to be occupied by miners employed in the pit. Such dwellings for miners are connected with nearly all, if not all, coal works in this coal region. They are let to the miners at certain rates, and the rental deducted from such miners’ wages. It is a universal custom, in the letting of coal works, that the rent of the miners’ houses goes to the lessee, unless special provision to the contrary is made in the lease. An offer for the rent of coal works at a specified rate per hundred bushels is understood amongst persons engaged in the trade to be an offer of so much per hundred bushels of lump coal, including the use of miners’ houses and the equipments of the mine.
    There was a large quantity of iron in the pit at the date of the lease, in use for tracks in the main entries, the exact value of which I am unable to find from the testimony. Mr. Serena, who is now, and for twenty years has been, the foreman in the Neel mines, testified that there is iron enough in the mines to lay from one and a half to two miles of double track, and that it would sell for aborrt forty dollars per ton. Under the terms of Mr. Hutchinson’s lease, he is required to remove this iron from the pit and deliver it on the adjoining grounds to the lessor. It will cost about one hundred and fifty dollars to remove it as required by the lease.
    Mrs. Neel testified that Mr. Dravo told her that Mr. Hutchinson would give fifty cents a hundred bushels for the coal and take the iron out, and she told him she did not want Hutchinson to have it, that she would give sixty cents herself, and give security in ten thousand dollars, or put up the money for security.
    Mr. Dravo testified that Mrs. Neel delayed so long in' complying with the terms proposed that he, under the belief that the estate was suffering from allowing the mines to remain idle, applied, on June 25, for authority to lease without her joining in the lease.

      Upon, this testimony, taken in connection with the facts hereinafter stated, and found relating to the necessity for promptness in operating this old mine, I do not feel warranted in finding as a fact that Mr. Dravo could have made a more favorable lease to Mrs. Neel than that which lie did make to Mr. Hutchinson.
    That old coal mines, worked out to the extent that the Neel mine had been worked at the date of Mr. Hutchinson’s lease, command considerably less rental than mines of bodies of solid coal.
    The interests of Mr. Dravo’s wards, as well as that of the plaintiff, in the Neel mines, were liable to become impaired by allowing the mines to remain idle.
    Fifty cents per hundred bushels of lump coal was a fair rental value of the property leased by Mr. Dravo to Mr. Hutchinson, and the lease made, upon the conditions therein named, was a favorable lease for the wards of Mr. Dravo, as well as for the plaintiff.
    The lump coal mined by Mr. Hutchinson, under his lease, up to June 1, 1882, is 841,744 bushels.
    The master reported as follows :
    “By the act 25th April, 1850, it is provided that when coal mines are owned by tenants in common, and coal has been taken out by any one of such tenants, any coowner may proceed by bill in equity for an account of the coal so taken out. In Coleman’s Appeal, 12 P. F. Smith, 252, it is held (see pp. 278-9) that the just basis of account in such cases is the value of the coal in place in the mine, or, as it is termed, mine leave. The method of ascertaining such value is said to depend in large measure upon the circumstances of each particular case. In that case, which related to an ore mine peculiarly situated, the accounting was based upon the value of the ore at the pit’s mouth, less the cost of mining; but the learned judge who delivered the opinion was careful to say: “We do not mean to say that it would hold in any other case than the one now before the Court — certainly not where’ the mining is expensive and hazardous.’
    “The plaintiff’s counsel contends that Mrs. Neel, as widow, is entitled to receive one third of all moneys obtained from the sale of coal taken out of the Neel mine under the authority of her co-tenant, less her proportion of all necessary outlays incurred in mining and marketing the coal, and keeping the mine and other property used in connection with it in proper working order. It is claimed that, as the coal taken out was all sold in flats at the landing connected with the works, and as the plaintiff is willing to bear her proper share of all expenses and risks incident to the running of the works, the only proper basis of accounting, and that which most nearly accords with the views taken in Coleman’s Appeal, is the amount received for all grades of coal mined and sold, less the expenses of carrying on the work. It is contended that such would undoubtedly be the rule if her co-tenant had operated the mines in person; and that he could not grant to a lessee any greater right or less burdened right, with respect to accounting, than he himself could have exercised.
    “The defendant, Dravo, claims that, as the representative of the plaintiff’s minor co-tenants, he had the'authority to enter the mine and work it to exhaustion, in order to preserve and secure the interests of his wards ; that he rvas not bound to operate the mine in person, but had the right to let it out to be operated in the customary way of letting mines in that coal region, on the basis of a rental of so much per hundred bushels of lump coal, exclusive of nut coal and slack; and, that having so let out the mine to a competent lessee, at a fair rental value, he is not bound to account for more than the quantity of lump coal taken out, and, for that, only at the rate per hundred bushels proAdded in the lease.
    “In my opinion, Mr. Dravo, as guardian of the minor children of the deceased owner of the mine, had laAvful authority to operate the mine, or have it operated, for the benefit of his wards: Coleman’s Appeal, ante; and he had the right to work it, or have it worked, to exhaustion : Westmoreland Coal Company’s Appeal, 4 Norris, 344. It does not seem doubtful to me that he had the right to work the mine, or to let it out to be worked, in accordance with the universal custom practiced by persons engaged in the trade in that coal region. The testimony clearly establishes the .fact that he could not permit the mine to remain idle without serious risk of injury to the interests of his wards. He was not bound to embark the estate of his wards, or his own personal estate, in the uncertain business of operating an old coal mine. He had the right to have the mine worked, as any owner of a similar mine would have it Avorked. He was bound to treat the mine as an entirety, and, in letting out the interest of his wards, he had no recourse from letting out the interest of the plaintiff. If he had lawful right to make a lease of the mine, Mr. Hutchinson had lawful right to take the lease; and, in that event, Mr. Hutchinson cannot be held to account beyond the provisions of the lease. If the lease was made at a fair rental value, or bank leave, Mr. Dravo cannot be held to account for more than he is entitled to receive under the conditions of the lease.
    “If this view of the law be correct, it settles the controversy, for I have found as a fact that Mr. Dravo is entitled, under the lease, to receive the full rental value of the mine and property let to Mr. Hutchinson.
    “The lump coal taken out of the mine up to June 1, 1882, under the authority of the lease made by Mr. Dravo, is 841,744 bushels, which, at the bank leave stipulated in the lease, amounts to $4,208 72, of which amount the plaintiff is entitled to receive one third, to wit: $1,402 90.
    “In the view I have taken of the law governing the case, I have not thought it necessary to consider to what extent, if at all, Mr. Dravo is protected by the order of the Orphans’ Court authorizing him to make the lease.
    “The act upon which this proceeding is founded provides for taking an account of the coal taken out of a mine, and there may be a question as to the power of the Court to make any decree at this time relating to the coal hereafter to be'mined during the period covered by the lease. This question has not been ai’gued nor suggested by counsel; but, if the view I have taken of the law be correct, the lease is operative during its full term, and, as the act contemplates the settlement in one proceeding of all interests involved, I am of opinion that the decree should embrace all the coal that may be taken out under the lease. The lease provides for semi-annual accounts and payments from Mr. Hutchinson to Mr. Dravo, and I suggest that similar accounts and payments be made by Mr. Dravo to the plaintiff.
    ‘ ‘ As Mr. Dravo has always been willing to account to the plaintiff in accordance with the provisions of the lease, I see no occasion for imposing any portion of the costs of litigation upon him.”
    The plaintiff filed exceptions to master’s report, inter alia, as follows :
    The master erred—

      Third. In excluding testimony as to quantity of nut coal and slack mined, and the cost of operating the mines.

      Fourth. In reporting that the plaintiff was bound to accept the terms of the lease made by John F. Dravo to Harvey Hutchinson.

      Fifth. In not reporting to the Court the “proceeds” of the mine in question.

      Seventh. In finding that fifty cents per hundred bushels was the fair leasing value of the mine in question, and that the lease in question was the most favorable that could have been made.

      Eighth. In finding that Mrs. Neel had no cause of action, and for this reason imposing costs upon hex*.

      Eleventh. In recommending that plaintiff have an account of the “merchantable coal” only, and thereby excluding and wrongfully depriving her of one of the principal sources of pi'ofit accruing to her, and to which she is by law entitled, to wit, the “nut coal and slack.”
    These exceptions were dismissed by the Court, except that as to costs, which were equally divided, and a decree was entered ordering defendant Bravo to pay to plaintiff $1,402 90, her proportion of the rental value up to June 1, 1881; that he should account for and pay over to said plaintiff one third of the money he may be entitled to receive under the provisions of the lease at the times provided in said lease for payments by defendant Hutchinson during the continuance of the lease, and that the costs be equally divided between the parties.
    Plaintiff thereupon appealed, and assigned as error the dismissal of the exceptions and the entry of the above decree.

      J. McF. Carpenter for appellant.
    The sale or lease by one co-tenant of a chattel makes the purchaser and the other co-tenants tenants in common of the whole, Oviatt v. Sage, 7 Conn., 95, and makes the lessee in possession liable to account to them : Barnaul v. Landon, 25 Conn., 137; Coal Co.’s Ap., 4 Norris, 344. The only right that defendant Hutchinson has is to mine the coal and account to plaintiff for her share of the product or proceeds of the mine. The lease of the two-thirds interest did not vest the title in the lessee of plaintiff’s one-third interest: Job v. Potton, 32 Law Times, 112; Barnum v. Landon, supra.

    Tire basis for ascertaining the damages of the tenant in common not leasing, should be his shax-e less the cost of mining and loading or putting on platform: Lyon v. G-ormley, 3 P. F. Sm., 261; Martin v. Porter, 5 M. & W., 351; Wild v. Holt, 9 Id., 672; Morgan v. Powell, 3 Ad. & E., N. S., 278; Coleman’s Ap., 62 Penna., 252.

      Carnahan & Son for appellees.
    Coleman’s Ap., 12 P. F. Sm., 252. Universal custom has fixed the value of coal in place as the true value, which is in perfect accord with Coleman’s appeal. The rule would be different as to a willful trespasser, but' the appellees are not trespassers, and have the right to mine the coal.
    As the appellees were always willing to account under the lease, they should not bear any portion of the costs.
    November 20, 1882.
   Per Curiam:

We affirm this decree upon the report and opinion of the learned master in the Court below. We think also that the decree as to the costs wras right.

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


author: Per Curiam :

text:
    October and November Term, 1882,
    No. 69.
    October 17, 1882.
    Oliver v. The Metropolitan National Bank of Pittsburgh et al., Garnishees.
    The Court below, in whieli there was a rule that all agreements of counsel touching the business of the Court should be in writing, struck off a judgment, entered against garnishees in an attachment execution for want of an answer, upon testimony of a verbal agreement by counsel for the plaintiff not to take judgment pending certain proceedings which had not terminated at the time of judgment and until after notice: Held, by a divided Court, that it was not error.
    Before Siiarswood, C. J. ; Mercur, Gordon, Trunkey, Sterrett, and Green, JJ.
    Error -to the Court of Common Pleas No. 2 for Allegheny County.

    Attachment execution by D. B. Oliver, president of the School-District of Allegheny City, suing for the use of the said school-district and the school-district of the Sixth ward, Allegheny, against S. J. Crist, defendant, and William Blakely, and the Metropolitan National Bank of Pittsburgh, Garnishees.
    The sheriff returned service of the writ upon the garnishees.
    December 23, 1881, interrogatories were filed and a rule to answer was taken, the service of which was accepted by William Blakely for himself and as attorney for the bank.
    On February 16, 1882, the Court entered judgment against the garnishees in default of answer for $2,621 80 and costs. A rule was subsequently granted on the plaintiffs to show cause why this judgment should not be stricken off. The affidavit of William Blakeley in support of the rule set forth “that he is one of the garnishees mentioned in above-stated case; that he is also attorney for The Metropolitan National Bank, the other garnishee mentioned; that a day or two prior to the return day in said rule, Joel L. Bigham, Esq., attorney for the plaintiff, came to the office of the affiant, and affiant explained to him that he had, prior to said attachment, entered into a written contract with said Crist, by which the affiant and said Crist were to submit to arbitration the matters in dispute between them, and suggested to Mr. Bigham that the answer of affiant had better be delayed until this settlement was completed ; the affiant also stated to Mr. Bigham that he, the affiant, knew that The Metropolitan Bank was not in anywise indebted to or liable to said Crist, and then and there agreed that no answer in either of the cases mentioned need be filed until the settlement between Crist and affiant was completed, or until further notice from said Bigham; that affiant and Crist have not as yet settled or agreed upon any amount, and the affiant never received any notice from said Bigham, and that said Bigham entered the judgment in violation of said agreement; that affiant and Mr. Bigham had, for several years, been associated as partners in business, and have always been on terms of intimacy, and affiant did not consider an agreement in writing necessary.”
    The affidavit of C. B. Cornelius set forth £ £ that a day or two before the expiration of the ten days limited for the garnishees to make answers to the interrogatories which had been served upon them, deponent saw Mr. Bigham, the attorney for the plaintiff, in consultation with Mr. Blakeley, in the office of said Blakeley; that after Mr. Bigham had left the office deponent inquired of Mr. Blakeley what he should do in the said case, informing him that the ten days allowed for answering had about expired; that Mr. Blakeley informed deponent that Mr. Bigham had promised and agreed with him that he would not enter judgment against the garnishees in said case until such time as said Blakeley had effected a settlement with said S. J. Crist; at least, not without giving him (Blakeley) notice.

      W. B. Richardson, chairman of the finance committee of the board of control of the city of Allegheny, made an affidavit in answer to the rule, setting forth: “I am advised, and the plaintiff expects to prove, that the agreement alleged in said affidavits to have been made, in point of fact never w7as made, and that no agreement was made by Mr. Bigham, the counsel for plaintiff, which would prevent the entry of judgment.”
    Rule 38 of the Court provides that “the agreements of the attorneys of this Court touching the business of this Court shall be in writing, otherwise they will be considered of no validity.”
    April 17, 1882, the Court made the rule to strike off the judgment absolute; upon which the defendant took this writ of error, assigning for error this action of the Court.

      J. L. Bigham and W. B. Rodgers for plaintiff in error.
    The question in this case is as to the power of the Court summarily to vacate a judgment regular on its face. We had a regular judgment against garnishees in default of answers. The garnishees then came in, and not questioning the regularity of the judgment, set-up an alleged verbal agreement between counsel to extend the time for filing answers. We denied such an agreement, and the Court made absolute a rule to “ strike off ” the judgment. Assuming, for the purpose of the argument, that there had been such air agreement of counsel as alleged, had the Court any right to “strike off” or vacate the judgment?
    For irregularity or collusion in the rendition of a judgment it is overturned; for pretermitted matter of defense it is opened. To open a judgment, however, is not to set it aside, and the opening of it deprives it of no quality but maturity for execution. Grallup v. Reynolds, 8 Watts, 424.
    A judgment will not be set aside except for matter-apparent on the face of the record. Devereux v. Roper, 1 T. & H. Pr., 662.
    Even judgment by confession can be stricken off only for fraud or forgery, and then only after a trial of the facts. Humphreys v. Rawn, 8 Watts, 78.
    And more, the agreement as alleged is an agreement not in writing, and which under our rules cannot be enforced. The most that the Court had any power to do was, if, upon testimony, it found such an agreement had been made, to open the judgment and let the garnishees into a defense.

      A. M. Brown for defendants in error.
    As to the power of the Court to set aside the judgmenfc, we tliink there cannot be a doubt, and upon the facts presented by the defendants, a denial of their application for relief would have been worse than inequitable.
    Our courts possess the powers of a Court of Chancery, to relieve against inequitable judgments; and they may even open or set aside a judgment obtained on an award, under the compulsory arbitration law, (notwithstanding the statutory remedies,) and let the defendant into a defense on the merits, on the ground of fraud. A judgment may be opened or set aside, as between the parties, for formal irregularity in its entry, or because of some good defense, upon the merits, resident in the defendant, which, by his neglect or by reason of his ignorance of the existence of the suit against him, he has been deprived of the opportunity of setting up, and which, in justice, he ought to be allowed to establish. Indeed, in all cases of accident or mistake, the uniform practice is to open or set aside judgments to prevent injustice: 1 Troubat & Haly’s Prac., 651. If any of the proceedings on the part of the plaintiff be irregular, and the irregularity be hot waived by any act of the defendant, or if the judgment be signed when in fact the defendant has not been guilty of any default, the Court, upon motion, will set aside the judgment: 1 Troubat & ITaly’s Prac., 390 ; 2 Arch. Prac., 11; and the Court will, also, in some cases, on the defendant’s application and affidavit of merits, set aside a regular judgment, if the plaintiffs have not lost a trial. This, however, is wholly discretionary in the Court: Ibid, 390-391 ; 2 Salk., 518 ; 4 Taunt., 885 ; Cowper, 729. The courts have power to strike off a decree improvidently entered: Newcomer’s Appeal, 7 Wright, 43 ; and to strike off or open a judgment entered on a warrant of attorney, or to award an issue to ascertain the facts : Kellogg v. Krauser, 14 S. & R., 137.
    Moreover, the judgment was illegal, both in form and substance, because it was a joint judgment against several garnishees not jointly liable. The proceedings in foreign attachment and attachment execution against garnishees are several against each, and in cases of controversy the issue between the plaintiff and each garnishee must necessarily be several: Ellmaker The Bank of the United States et al., 6 Pa. Law Jour., 97, (3 Clark, 504.)
    October 25th, 1882.
   Per Curiam :

Judgment affirmed.


text:
    October Term, 1883,

      No. 156.

    November 2, 1883.
    Pullman Car Company v. Gardner.
    1. A sleeping-car company is bound to provide reasonable care and precaution against the valuables of a passenger being stolen from his bed, or from the clothes on his person, while he is asleep.
    2. Whether it has exercised that degree of care under given circumstances is for the jury.
    3. While evidence to the effect that another passenger was robbed on the same night and in the same sleepiug-car as the plaintiff is not relevant to prove that the plaintiff was in fact robbed, it is admissible as bearing on the absence of proper care by the defendant company.
    4. Declarations of the porter left in the care of the car by the company that, during the night in which the robbery occurred, he went to the toilet-stand, from which the berths were not visible, to black the boots of a passenger, are admissible.
    5. A berth-check, given to the plaintiff when he entered the car in exchange for his ticket, and which contained the notice, “ Wearing apparel or baggage placed in the car will be entirely at the owner’s risk,” was properly excluded.
    Before Merotjr, C. J.; Gordon, Paxson, Sterrett, Green, and Clark, JJ. Trunkey, J., absent.
    Error to the Court of Common Pleas No. 1 of Allegheny County.

    Case by William Gardner against The Pullman Palace Car Company, to recover damages for losses occasioned by the alleged negligence of the defendant and its employés, in not exercising proper care for the protection of plaintiff and his personal effects. Plea, not guilty.
    The facts as they appeared at the trial before Stowe, J., were as follows: On April 8, 1881, the plaintiff purchased for two dollars a sleeping-car ticket, entitling him to a berth in the sleeping coach “ Bordentown,” running from Philadelphia to Pittsburgh. The berth designated by the ticket was the upper one in the second section from the rear door on the left of, the car. The plaintiff retired immediately upon the train leaving Philadelphia, which was at 11.50* p. m. He took off his coat and vest, and put his watch, which was valued at $250, and his pocket-book, containing about $55, into the inside pocket of his vest. He then wrapped his vest up and placed it under the corner of the mattress farthest from the aisle outside. He was soon asleep, and did not wake until the train reached Huntingdon at seven o’clock in the morning. He was then aroused by the passenger conductor asking for his railroad ticket. He found the ticket outside the pocket-book. The money had been taken. The watch was also gone. He called the conductor, and a dispatch was sent forward to Tyrone, where detectives met the train and searched part of the passengers, but the missing property could not be found. There were two Pullman cars on the train, one sleeper and a hotel car. Five men wrere in charge of these cars, the conductor, a porter for the sleeper, and a cook and two waiters for the hotel car. The conductor kept watch, in accordance with the company’s regulations, sitting on a camp-stool at the end of the aisle next to the large state-room until three o’clock. He then went to sleep, leaving the car in the sole charge of the porter.
    Two passengers had taken berths at Philadelphia for Altoona, and they left the train at Harrisburg. One of them had the lower berth in the section next to the plaintiffs.
    The plaintiff testified, inter alia, under objection.
    ‘ ‘ I commenced talking to the porter, and General Boss was with me. I picked him out, and he recognized me, and then says he: £ This is a very careless way of taking-care of people’s property.’ Says I: ‘It is a very careless way of taking care of the cars.’ The porter says: ‘ How can I take care of two cars together ? ’ The porter said he could not take care of two cars, and says I: £ Where is the conductor ? ’ He says: £ The conductor is here.’ Says I: £ How is this ? Is there no care to be taken of us while we are asleep?’ With that another man sung out, says he: £I am robbed.’ . . . Yes, sir; he (the porter) said one of the men w7ho got off at Harrisburg went back to get his boots blacked, and the other went in the car.
    By counsel for plaintiff.

      Q. Where did he say he blacked the boots ?

      A. Before he got to Harrisburg. The porter said they would not take them off because they were going in the country.

      Q. Afterwards he came and had them blacked ?
    A. Yes, sir.

      Q. Where was he — did he say ?
    A. In the front end of the car, where the toilet stands.” (Fourth assignment of error.)
    The boots were blacked at the wash-stand. There was a state-room between that and the car. The toilet-stand was at the extreme end of the car. The instructions of the company were that the porter, while blacking shoes, should sit in the aisle with the door open on a camp-stool.

      Counsel for plaintiff offered in evidence, under objection, the deposition of Charles C. Darling, as follows:
    “ Q. Were you on the night spoken of robbed while asleep 2 If so, state what it was.

      A. I was robbed of cash — -bank notes.

      Q. Were those bank notes taken from your pocket-book or your clothing, and how had jmu disposed of your money for the night 2

      A. They were taken from my pocket-book from m37 inside vest pocket. I had the vest rolled up, put under the mattress next the window at the head of the bed.” Eb seq. (Fifth assignment of error.)
    Counsel for defendant offered in evidence an identified copy of the berth check given to the plaintiff when he entered the sleeping car by the conductor who took up the ticket.
    The check contained, inter alia, the words: “Wearing apparel or baggage placed in the car will be entirely at the owner’s risk.”
    Objected to because the contract was made before the cheek was given.
    The offer was overruled. (Sixth assignment of error.)
    The defendant presented, inter alia, certain points, which, with their answers, were as follows:
    1. That under all the evidence the plaintiff is not entitled to recover.

      Answer. Refused. (First assignment of error.)
    3. That if the.jury find, from the evidence, that the conductor was at his post and stood on watch in the coach where the theft occurred until three o’clock, that he then called the porter to take his place, and that the porter continued on watch in the car until morning, and that this was tbe usual mode of caring for the safety of the passengers when asleep, and guarding their personal effects against intruders, pickpockets, and thieves, it was the exercise of that ordinary care which the law requires, and the plaintiff is therefore not entitled to recoven

      Answer. Affirmed, with this explanation: Merely suggesting that by the expression “ the porter continued on watch in the car until morning” we mean, not simply that he assumed to watch, but that he did actually, and with reasonable and proper attention, continuously watch till morning. (Second assignment of error.)
    The Court charged the jury, inter alia:

    “We used to ride around in stage coaches ; if robbed while in them the company, being under no obligation to •carry a guard, was not responsible for the robbery, although you might go to sleep, and they knew perfectly well you would go to sleep, or ought to suppose you would, for a man could not ride half a dozen days or nights without going to sleep; but in the case of a sleeping-car company, the great convenience and inducement held out to passengers is that they will give them a comfortable night’s rest. They notify them they will make them pay for it, and say to them, you may go to sleep. The principal part of the arrangement is the advantage the passenger will have over the ordinary car, that he can lie down and go to sleep. When you have gone to sleep, of course, you can’t take care of yourself^ everybody knows that, and for that very reason'the fact that the company notifies you to lie down and shut your eyes and go to sleep and thus become helpless, it is their duty to take care of you while yon do sleep — not that they are insurers, not that they say you shall not be robbed or cannot be robbed, but they will use reasonable and ordinary care to prevent people intruding upon you and picking your pockets or carrying off your clothes while you are asleep. That is the principle that should underlie all of these cases, and it strikes me it is founded on good sense and good logic. They know that there are certain dangers to the sleeping passengers; their experience, common sense, without that, would say that there were dangers. They know that anybody and everybody, provided they are ordinarily respectable looking, can ride in their cars. They know the possibility of robbery, and they, therefore, when they no-tify you to close your eyes and rest, say to you and me, we will not say you shall not be robbed, but we will say we will exercise a reasonable and ordinary care to protect you from robbery. Applying that principle, you will inquire: Lid, or did not, this company, at the time this transaction occurred, on this particular car, do its duty, and if so; did the parties it had employed do their duty in guarding the car that night against just such a robbery as occurred? We have it in evidence that the company has done its whole duty as a company. They require a constant watch to be kept, some person in the body of the car where the sleepers are, watching continuously; Mr. Smithley and the conductor both say that. If watch was kept by one, I apprehend it would be sufficient.
    “Of course there are many cases that no protection could guard against. It is apparent that these berths must be made in such a way that the head-boards may be easily moved — slipped out — and, without you would keep a watchman at every berth, there might be some fellow so expert as to be able to move one out and not be detected, just as many thieves can stand right before your face and talk to you and at the same time pick your pocket, and you never suspect it. It is a sleight of hand that seems to be peculiar. Against thefts of that kind the company are not bound to protect you ; but they are bound to protect you against such thefts as reasonable care will guard against. In this case, the evidence satisfies me, and it would seem that is the reasonable conclusion from the testimony — that, however, is for the jury — first, that the regulations of this company were reasonable and prosper. They kept a guard, according to their regulations, and intended to keep a continuous watch, so that a man sitting there could see everything that was going on without interfering with the sleepers. He would have no business to be away, except in a special case. They station him at the end of this little aisle, where he can see the whole length of the car, see anybody undertaking to crawl from one berth to another, or anybody in the aisle. It is lit up sufficiently to be able to distinguish objects. These Pullman cars seem to have been sufficiently manned. There were five employes altogether. One man seems to me to have been quite enough at a time to guard a car in the way that ordinary care would require it to be guarded. The conductor says he was awake in the car till three o’clock, I believe it was, says he was there continuously and watched continuously. So far, if that is true, he must have done his duty. He left his post of observation or watch, and put the colored porter upon guard. Now, the question for you to determine, if you find that reasonable care was exercised, as I think it was, up to that time, is, did this colored man do his duty ? There is no evidence to indicate that he was not a sufficiently proper man. Therefore, the company would not be liable for having employed a man not fit for the purpose. [Did he do his duty? The regulations required him to stay in the aisle of the car continuously, to watch there continuously, until the danger was over — until daylight. Did he do it ? If so, where is the evidence of it ? We have his own declarations that he was on guard, coming from the conductor; but we have also his own declarations to the plaintiff that he went out of that apartment for a time to black a pair of boots or shoes. If he went out of that aisle, even for a very few minutes, and during that time this robbery occurred, and the jury believe that if he had been in his place of observation it would not and could not have occurred without detection, the company is liable, because he failed to do his duty to that extent that it allowed this robbery to be done. It was his fault, and is visited on the company, although they may have done everything they thought right to get a proper man. ‘ Watching’ is not simply to be on watch nominally, it is to be on watch actually, to be there, not under pretense of continuing there; there till you get tired and then go out and lie down or do something else, and let the very thing occur you are put there to avoid ; watching must be continuous and active. He could not watch a car full of sleeping people very well if he were in the front part in those little rooms or ante-chambers, or whatever they are called, where people dress and wash.”] (Third assignment of error.)
    February 24, 1883, verdict for plaintiff, on which judgment was afterward entered.
    The defendant then took a writ of error, assigning errors as above set forth.

      II. W. Weir for plaintiff in error.
    The Pullman Palace Car Company is not an inn-keeper and is not responsible as an inn-keeper for the property of passengers on its cars.
    It only undertakes to accommodate a certain class, those who have already paid their fare, and are provided with a first-class ticket, entitling them to ride to a particular place.
    It does not undertake to furnish victuals and lodging, but lodging alone.
    The traveler is not compelled to accept the additional comfort of a sleeping car; he might have remained in an ordinary car, and there were easy methods within his reach by which both money and baggage could be safely transported. Pullman Palace Car Company v. Smith, 73 111., 360.
    If defendant is responsible for the loss on any other ground, it can only be for the want of exercising ordinary care in the protection of the defendant in error and his personal effects.
    The presence of the conductor or porter on watch in the coach-car occupied by Gardner and other passengers during the whole of the night the theft was committed, we submit, would be the exercise of ordinary care and the jury should have been so instructed. But the Court, in that part of the charge embraced in the second assignment of error, went far beyond this and exacted the most extraordinary vigilance. This was more than the law required.

      W. F. MgQooJc for defendant in error.
    The defendant was a bailee for hire, accepting the custody and control of the persons of passengers with such wearing apparel and personal effects as are usual and proper for passengers to have with them.
    Defendant, by its contracts, impliedly represented to the public and to the plaintiff that its cars were such in construction and so managed that a person might resign himself to unconscious sleep, and that, whilst in this helpless condition, reasonable provision had been made for the security of his life and personal property.
    As a bailee, the defendant comes under the general rule of law and is bound to exercise reasonable care only as to the subject-matter of bailment. That reasonable care varies with circumstances, is greater at night, when the passenger is helpless and asleep, than in daytime, when he is awake and able to protect himself. The defendant ’was liable only for failure to exercise such ordinary care, and this is a fact for the jury.
    Blum ®. Southern Pullman Palace Car Co., 3 Central Law Journal, 591; Brjmn». Steamship Co., 34 Leg. Intel., 97; Crozier®. Boston, N. Y. and Newport Steamboat Co., 43 Howard’s Pr., 467.
    November 12th, 1883.
   Per Curiam:

We have carefully examined the evidence and considered the assignments of error. Conceding that the company is not liable in this action as an inn-keeper or common carrier, yet a reasonable and proper degree of care is imposed on the company. Whether it did exercise that degree of care under the circumstances was for the jury. The main object in taking passage in such a car is to permit the passenger to sleep. While in that helpless condition, a duty rests on the company to provide reasonable care and precaution against the valuables of a passenger being stolen from his bed or from the clothes on his person. This is not the case of a robbery by force and violence, but by stealthy larceny. Unless a watchman be kept constantly in view of the center aisle of the car, larceny from a sleeping passenger may be committed without the thief being detected in the act. While the fact that another passenger in the same car was robbed the same night was not relevant to prove that the defendant in error was in fact robbed, yet it was admissible as bearing on the absence of proper, care by the company. This case was submitted to the jury in an able and correct charge. We see no error of which the company can complain.

Judgment affirmed.


text:
    October and November Term, 1882,
    No. 155.
    October 18, 1882.
    Stewart et al. v. Lindsay et al.

    1. Under the act of March 20,1810, Pur. Dig., 608, the decision of a Court of Common Pleas on a certiorari to a justice of the peace is final and conclusive and no writ of error lies.
    2. The act of 1879, P. L., 194, merely enlarges the jurisdiction of the justices and does not give a right to a writ of error.
    Before Shaeswood, C. J.; Merctie, Gordon, Trunkey, Sterrett, and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 1 of Allegheny county.

      Certiorari in the Court below to an alderman of the city of Pittsburgh in an action of debt brought by ID. Stewart and W. C. Stewart, doing business as I). Stewart & Son, against J. C. Lindsay and George B. Sterritt, doing business as Lindsay, Sterritt & Co.
    The alderman gave judgment for the plaintiffs for $200 and costs.
    The Court below, upon exceptions filed, reversed the judgment.
    The plaintiffs then took out a writ of error, assigning as error this action of the court.
    October 9, 1882, the defendants moved to quash the writ of error.

      J. McF. Carpenter for plaintiffs in error.
    This being a writ of error to the judgment of the Court of Common Pleas on a suit brought into that Court by certiorari to an alderman, objection is made to the right to have the cause heard in this Court.
    The Court is referred to the following, decisions sustaining that right: Seaman v. The Commonwealth, P. L. J., vol. 29, 95; Cooke v. Reinhart', 1 R., 317; Zimmerly v. Road Com., 1 C., 134; Haines v. Levin, 1 P. F. S., 412; Johnson v. Betts, 26 Idem, 465.

      Noah W. Shafer for defendants in error.
    Section twenty-two of the act of March 20,1810, reads : “And the judgment of the Court of Common Pleas shall be final on all proceedings removed as aforesaid by the said Court, and no writ of error shall lie thereon.” All of the cases cited by plaintiffs in error arose under special laws and expressly recognize the binding' effect of the act, supra.

    The act of 1879, entitled “An act to enlarge the jurisdiction of justices of the peace and regulating the fees of constables making sales under this a,ct,” provides : “And provided, further, that nothing contained in this act shall be construed to al ter, impair, or abridge the right of any person to appeal from the judgment of the justice of the peace, magistrate, or alderman, or to certiorari the proceedings to the Court of Common Pleas of the proper county as in other cases.”
    The wisdom of the act of Assembly of 20th March, 1810, has been shown by an acquiescence therein by the legal profession for more than seventy years, and its authority and the decisions under it should not now be questioned.
    October 25, 1882.
   Per Curiam:

It is expressly enacted that the decision of the Court of Common Pleas on a certiorari to a justice of the peace under the act of 1810 shall be final and conclusive, and that no writ of error shall lie. The act of 1879 merely enlarges the jurisdiction of the justice — with the same right of appeal and certiorari as in the act of 1810 — and there is no reason why the provision as to writ of error should not be applicable.

Writ of error quashed.