author: Thompson, C. J. —

text:
    Angier versus Angier.
    1. In divorce for wilful and malicious desertion and absence from the habitation without reasonable cause for two years, the applicant must establish each of these ingredients as elements necessary to constitute desertion within the meaning of the Act of March 13th 1851.
    2. Whatever may be the grounds the libellant must, by his oath, make it appear to the court that for that cause alone a divorce is claimed.
    3. If it should be shown that the application is not based on the grounds stated, but that the causes are set out to advance a scheme to make out a technical case, the court will not permit it to be successful.
    4. A husband, in the absence of his wife, broke up housekeeping and proposed to her to go boarding, which she declined. In proceedings in divorce against her for desertion, she might show that this had been done with a view to put himself in a position to claim a divorce.
    5. The husband could not claim a divorce based on his own schemes to promote it: this would be taking advantage of his own wrong.
    6. The court rejected evidence by the respondent: “of aseries and frequent repetition of humiliating and insulting language and opprobrious epithets, applied by libellant to respondent in the presence of her servants.” Held to be error.
    7. The evidence was pertinent as to the motives of the libellant in breaking up housekeeping, and to show that his object was to force the respondent to refuse joining him at a boarding-house.
    8. This inference might be drawn by the jury from the evidence and would present a case of fraud on the law and on the respondent which would prevent a divorce.
    9. Fraud will defeat a party practising it to obtain a divorce, as in every other case.
    10. Courts will protect a wife against the fraud of her husband as well as against his force and violence.

      11. A wife may show that her refusal to follow him was to avoid his schemes to get rid of her and not through wilfulness or malice.
    12. Great latitude is allowed in an issue of fraud or where it may be alleged and is material to be proved.
    13. A libellant may require from respondent beforehand notice of special matters to be proved.
    14. The Act of Assembly provides for a jury in divorce only when either party desire a matter of fact affirmed by one and denied by the other, so to be tried.
    15. On an appeal in a divorce case which had been tried before a jury on libel, answer and proof, it is before the Supreme Court as if no jury had sat.
    16. In such case where there is a decree of divorce, if the record shows that the appellee was not entitled to a decree on the merits, the Supreme Court will dismiss the bill and not send it back to be retried.
    17. A party to succeed in divorce must be clear of everything which is charged against the opposite party as a cause of separation.
    January 7th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius. Williams, J., absent.
    Appeal from the decree of the Court of Common Pleas of Philadelphia, No. 122, to January Term 1870.
    On the 15th of June 1867, William R. Angier presented his libel in divorce to the Court of Common Pleas of Philadelphia, averring his marriage on the 1st of June 1859, with Mary Jane Angier, and their cohabitation until November 2d 1866, and that from that day “ she hath wilfully and maliciously deserted and absented herself from the habitation of this libellant without any just or reasonable cause, and still has continued and persisted in such desertion from that time to the present, a term of six months and upwards, and still doth continue to absent herself from the said libellant,” &c. He prayed the court to “ decree a divorce and separation from the said nuptial ties, or bonds of matrimony heretofore uniting, as above mentioned, this libellant to and with the said Mary Jane Angier.”
    There was offered an affidavit of the truth of the statements, and “ that the said complaint is not made out of levity, or by collusion between the said husband and wife and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the said petition.”
    The libellant answered, admitting the marriage, and added: — ■
    “Yet this respondent doth expressly deny the charge of having maliciously and wilfully deserted and absented herself from him the said William R. Angier, as is stated in the libel of the said William R. Angier; but this respondent doth aver that the said William R. Angier hath maliciously deserted this respondent.
    “ All which matters and things this respondent is ready to verify, to maintain and prove, and humbly pleadeth the same in bar to the libel of the said William R. Angier, which she pray^ may be dismissed, &c.”

      On the libel and answer without further proceedings, the case went to trial, May 10th 1869, before Pierce, J., when the libellant gave in evidence the following lettersr
    “ Philadelphia, August 29th 1866.
    Mrs. Angier :
    I have rented my house No. 2031 Walnut street, Philadelphia,' and, as you are already advised, intend to take boarding for you and myself. I will inform you of the place in a day or two.
    As the furniture in the house is yours I wish you either to have it all removed together with all your personal property on the premises, or give me the necessary orders as to what disposition you desire me to make of it. ,
    Yours truly, Wm. Rotoii Angier.”
    “August 29th 1866.
    Your letter of this date is received. I earnestly protest against your pursuing the course that you are threatening me with.
    Yours,
    Mr. Angier. M. J. Angier.”
    “Philadelphia, August 30th 1866.
    Mrs. Angier.
    I have taken rooms and board for you and myself at Mrs. Neil-son’s, N. W. corner of Broad and Locust streets. On Monday next they will be ready for occupancy.
    Please have the furniture belonging to you removed from 2031 Walnut street as soon as possible, or give me such directions as may be necessary about it. There are certain articles about the house belonging to me which I will remove.
    Yours truly, Wm. Rotch Angier.”
    “ Your letter of 30th is received with mingled surprise and pain that you should offer to take me to a boarding-house when for weeks and weeks previous to my going to Newport you never spoke one word to me. Have you not also said that you considered it impossible for us to agree, and with this before me am I to be taken where strangers can be witnesses to the treatment that I have so long been subjected to ? I can conceive no reason why I should be exposed to this additional humiliation, particularly as my father had offered you that he would guaranty you against every claim for my maintenance, support and expenses of every sort if I remained where we have been for years, and you declined the arrangement.
    “ Some days ago I came from Newport (where I have been, and may continue staying at my brother’s without a dollar’s expense to you), and, in pursuance of arrangements, intend returning on Saturday ready to return to you whenever you express a wish to that effect and provide for me a suitable residence.
    Yours, M. J. Angier.”
    Mr. Angier.”
    He also read in evidence the record of the proceedings in the matter of his bankruptcy.
    His petition was filed 5th February 1868. He was discharged on 27th March 1869. Among the creditors returned are Robert Smith (deponent’s father) for $10,750, William D. Smith (her brother), $21,588.
    He called W. D. Smith, the brother of respondent, who testified that she had lived with his family in the summer of 1866. She went to Newport and spent the summer there and returned to Philadelphia in November, had resided with him or his sister Mrs. Whitney since, and had not been living with her husband; witness had loaned to libellant and endorsed for him in 1865 and 1866 ; libellant owed him about $24,000. The respondent had been in the habit of spending the summer at Newport for a number of years ; both before and since her marriage.
    H. 0. Dallett testified that he rented the libellant’s house 2031 Walnut street, on the 20th of August 1866, at a rent of $2000. Libellant removed all the furniture, except some mirrors, &c., belonging to Mrs. Angier, which remained subject to her order.
    Rose Glacken, who had been a servant with the parties, testified that when the respondent came from Newport in the fall of 1866, she said she would not return; when she came back the house was broken up.
    Mrs. Neilson, who kept a boarding-house, testified:—
    “ Over two years ago Mr. Angier took board with me; it was about the latter part of August 1866; he engaged two rooms for himself and wife, with the understanding that if she went to Europe, his father was to come in her stead. He took the rooms on second floor at the corner, two large rooms, the handsomest I have. I had at that time twenty-six or twenty-eight boarders, ladies and gentlemen. Mrs. Angier did not come to my house while Mr. Angier was there; he paid full board for himself and her till the latter part of May or early in June. He took the rooms in end of August, and commenced paying for them from 1st of September. The board he paid was $65 per week.” ,
    Libellant gave evidence that he boarded in Spruce street with comfortable accommodations, and that the respondent had never visited him there.
    The respondent then gave in evidence the following letters :—
    “August 25th 1866.
    Dear Sir:
    Mr. Smith offers to take the house, No. 2031 Walnut street, at an annual rent of $2000, for his daughter Mrs. Angier’s occupancy, and to guaranty Mr. Angier against any liabilities whatever from any quarter that may be contracted by Mrs. Angier.
    Yours truly, Constant Guillou,
    Attorney for Mrs. Angier.
    Mr. Northrop,
    Attorney for Mr. Angier.”
    “ Philadelphia, August 25th 1866.
    C. Guillou, Esq.
    Dear Sir: Your proposition of this date is declined. Mr. Angier renews his offers to take Mrs. Angier with him to two rooms at a boarding-house, and declines any arrangement by which any other person than himself shall control his family arrangements.
    Yours truly, George Northrop,
    Attorney for W. R. Angier.”
    “ Philadelphia, September 1st 1866.
    C. Guillou, Esq.
    My Dear Sir : My client, Mr. W. R. Angier, has notified Mrs. Angier that he has rented his-late residence on Walnut street above 20th and taken board for himself and her at Mrs. Neilson’s, N. W. corner of Broad and Locust streets, where he has secured two rooms on the second floor.
    He has also notified her that he wishes her to remove her furniture, &c., from his late residence on Walnut street or give him such orders with reference to its disposition as may seem good to her.
    To both of these notifications Mrs. Angier has returned letters of reproach, but has omitted all instructions or suggestions. My object in addressing you is to ask you as her counsel whether you have had any suggestions or instructions from her in relation to these matters, and whether you are authorized to send any one on her behalf to take charge of her furniture, &c., and whether it is your wish that we should act for her in the matter.
    Yours truly, George Northrop,
    Attorney for W. R. Angier.”
    “ Dear Sir:
    In reply to your favor, just received, I beg to say that my professional connection with the matter does not authorize me to take any action in regard to Mr. Angier’s threatened removal of the furniture.
    Truly yours, Constant Guillou.
    George Northrop, Esq. September 1st 1866.”

      “ Philadelphia, September 28th 1866.
    Constant Guillou, Esq.
    Counsel for Mrs. W. R. Angier.
    Dear Sir:
    I herewith send a list of the furniture, &c., belonging to Mrs. W. R. Angier, which has been stored as hereinafter stated, and all of which is subject to her order. Will you have the kindness, as her counsel, to transmit it to her.”
    Then follows a list of furniture, silver, jewelry, &c., stored at different places.
    “ Wm. Rotch Angier.”
    “ No. 615 Walnut Street.
    Dear Sir:
    Your favor dated 28th ult. was brought to my office an hour since. In compliance with your request I transmit it to Mrs. Angier, at Newport, by to-day’s mail.
    You will understand that she adheres to her protest against the course which you have pursued relative to 2031 Walnut street, the removal of a part of her chattels, and the leaving of the residue upon premises understood to be rented out.
    Yours respectfully, Constant Guillou.
    Mr. Wm. Rotch Angier. October 1st 1866.”
    Robert Smith, the father of respondent, testified: The parties lived with him for 18 months or 2 years after their marriage; witness defrayed all the expenses for their support; he furnished the house in Walnut street; since their marriage he had contributed $28,000 or $30,000 to their expenses, including furniture. Witness asked libellant why he was removing the furniture, &c., he said to lessen his expenses, he thought they were about $10,000. Witness further testified: “ I then asked him if the only reason he had for breaking up housekeeping was the expenses, if he and Mrs. Angier would remain in the house and avoid scandal I would bear all the expense, and it should not cost him a dollar; it was possible to reconcile them together. He declined the proposition, saying it was useless, they could not live happily together. He then remarked, why don’t she give me a divorce ? or grant me a divorce ? I answered she should not do that, his conduct did not deserve it.” * * *
    “ Mrs. Angier’s visits to Newport were made annually, before and after her marriage; she was always at my house or her sister’s, except one season, when he took a cottage there; the house in town was left in 1866, just as in previous years. She went either with one of the family, or one of the servants, I am not sure which.”
    The respondent offered to prove “ a series and frequent repetítion of humiliating and insulting language and opprobrious epithets addressed by libellant to respondent in the presence of her servants.”
    This offer was objected to, that no language or act could be given in evidence which would not furnish the wife sufficient ground to obtain a divorce: also, no notice or specification had been served on libellant stating the acts to be relied on as furnishing cause for desertion.
    The court rejected the evidence, and sealed a bill of exceptions.
    Judge Pierce in his charge said: * * *
    “[You will remember that the husband has the right to determine the place of residence for himself and his wife; it would, of course, be wiser and better to consult her upon the subject, but this is not indispensable. The law vests in him the right to determine and casts upon her the duty to accompany him, from which she can only be excused by such causes as would justify her in leaving his house, which, as already explained, are those causes which would justify her in applying for a divorce.] A wife is not justified in refusing to follow a husband to a home not so stately as the one she leaves; if the necessities of the husband require the change she must go, be the abode ever so different or humble.
    “But it is contended here that the husband deserted the wife ; that the home which they had occupied still remained, and that there was no necessity for his leaving it. His answer is that he did not elect to abide there or have her father support her, preferring to be at the head of his own house. I charge you that the Irasband was under no obligation to accept her father’s proffered bounty and might lawfully prefer to take upon himself the support of his family.
    “ [As to the suggestion that his object in breaking up the establishment was to effect the separation and effect the desertion of his wife, this cannot be material so long as he made a home which he offered her.] Even if he desired the separation, so long as he provided a home and there was no consent on his part that she should stay from it, she was not justified in doing so by apprehensions that she might not be so happy as she was at the old home.”
    The verdict was for the libellant.
    The decree was as follows :—
    “ An issue having been formed in this case between the said libellant William R. Angier and the said respondent Mary Jane Angier, to try the matters of fact affirmed on the one side and denied on the other, and the said issue having been tried by a jury, and a verdict rendered by them in favor of the libellant, the said William R. Angier, and the court having fully heard and considered the said cause proceeded to determine the same as to law and justice appertains, and do now, this 10th day of July, A. D. 1869, sentence and decree that the said William R. Angier the libellant, be divorced and separated from the nuptial ties or bonds of matrimony contracted by him with the said Mary Jane Angier the respondent, according to the Act of Assembly in such cases made and provided.”
    The respondent appealed to the Supreme Court and assigned for error — rejecting her offer of evidence; the parts of the charge in brackets, and in decreeing a divorce.

      L. Q. Qassidy and 0. Gruillou, for appellant. —
    There was no necessity for notice to introduce the facts in the offer of evidence unless a specification had been called for. They were as much in answer to the libel as any other facts: Breinig v. Breinig, 2 Casey 161; Cattison v. Cattison, 10 Harris 276. The evidence rejected was important as showing the libellant’s intention in breaking up his housekeeping: Gordon v. Gordon, 12 Wright 236; Hollister v. Hollister, 6 Barr 453; Richards v. Richards, 1 Wright 228; Carpenter v. Carpenter, Milward 159; Whispell v. Whispell, 4 Barb. 217; Dysart v. Dysart, 1 Robertson 106; D’Aguilar v. D’Aguilar, 1 Haggard 773, note; Reese v. Reese, 23 Alabama 785; Chesnutt v. Chesnutt, 28 Eng. Law & Eq. 603. The evidence was pertinent as showing what indignities the respondent might reasonably expect would be inflicted upon her, aggravated by the circumstance that they would be with more publicity: 1 Bishop on Marriage and Divorce, §§ 699, 725; Breinig v. Meitzler, 11 Harris 161. It was not necessary to render the wife’s condition intolerable that there should have been blows, Indignities would be sufficient: Elmes v. Elmes, 9 Barr 167; Butler v. Butler, 1 Parsons Eq. C. 329; Richards v. Richards, 1 Wright 226. The wife was not bound to follow her husband under all circumstances to a place to which he might capriciously choose to go: Tyson’s Appeal, 10 Barr 223; Cronise v. Cronise, 4 P. F. Smith 265; Bishop v. Bishop, 6 Casey 413. Eor some purposes a wife may have a domicil different from her husband: Colvin v. Reed, 5 P. F. Smith 379; Starrett v. Wynn, 17 S. & R. 130. She did not wilfully desert, &c., he deserted and it was competent for her to show it: Bishop on Marriage and Divorce, §§ 673, 674, 681; Cattison v. Cattison, Bishop v. Bishop, supra; Ingersoll v. Ingersoll, 13 Wright 249. The court must see that the testimony is sufficient to justify a decree of divorce: Edmonds’ Appeal, 7 P. F. Smith 232.

      Gr. Northrop, for appellee. —
    The respondent’s expressed willingness to return, admits a desertion. The court will not interfere with the finding of the jury: Andrews v. Andrews, 5 S. & R. 374. Her intent to desert was manifest when she withdrew from her husband’s residence: Ingersoll v. Ingersoll, supra. “Maliciously” is equivalent to “ wilfully” : Chapman v. Com’th, 5 Whart. 427; Bishop on Marriage and Divorce, § 397, note. The reasonable cause which will justify a wife in quitting her husband is that, only, which would entitle her to a divorce: Eshbach v. Eshbach, 11 Harris 345; Groves’ Appeal, 1 Wright 447; Butler v. Butler, 1 Parsons 329; Gordon v. Gordon, 12 Wright 233. Notice of the facts to be proved should have been given: Steele v. Steele, 1 Dallas 409; Garrat v. Garrat, 4 Yeates 244; Light v. Light, 17 S. & R. 276; Hoffman v. Hoffman, 6 Casey 420.
   The opinion of the court was delivered, January 24th 1870, by

Thompson, C. J. —

One of the grounds for divorce from the bonds of matrimony contained in the Act of 13th of March 1815, is for wilful and malicious desertion, and absence of one party from the habitation of the other, without reasonable cause, for the space of, or during the period of two years. The applicant for a divorce on this ground must establish with sufficient certainty, each and every of these ingredients, as elements necessary to constitute desertion within the meaning of the act. They all must co-exist in proof, or no decree can be granted.

Collusive applications for divorces are strictly forbidden by the statute, and, in order to guard against them, any presumption that such is the case must be negatived in the outset by the oath of the party applying, setting forth that the application is “ not made out of levity, or by collusion, and for the mere purpose of being freed and separated, * * * but in sincerity and truth for the causes mentioned in said petition.” Whatever, therefore, may be the grounds upon which an application is made, the libellant must, by his or her oath, make it appear to the court that for that cause, and for that alone, a divorce is desired and claimed.

This is the applicant’s primd facie case, and it is made out when the petition is in form, and sworn to. But as in every other proceeding in law or equity, this primd facie case may be overturned or disproved. If it should be shown in any case that the application is not, in fact, based upon the grounds stated, but that the causes set forth are merely to advance a scheme or trick to make out a technical case to sever the bonds of matrimony, no court would permit the application to be successful. It would be against law, justice and truth to do so. Courts ought never to sever the marriage contract, but where the application is made “in sincerity and truth,” for the causes set forth, and no other, and fully sustained by testimony.

In this view of the law, we think the learned judge below pushed a principle, which might be all right in some cases, too far, when he said, in view of the evidence in this case, “ that as to the suggestion that the libellant’s object in breaking up the establishment (his house) was to effect the separation, and effect the desertion of his wife, — this cannot be material so long as he provided a home, which he offered her. Even if he desired the separation, so long as he provided a home, and there was no consent on his part that she should stay from it, she was not justified in doing so, by apprehensions that she might not be so happy as she was at the old home.”

This view overlooked the testimony in the ease in one important aspect, and prevented the jury from inferring from it facts of which it was full, in another.

The alleged desertion of the respondent was attempted to be established by proof that after the libellant had broken up his home in the absence of his wife, without consultation, or any knowledge of an intention to do so communicated to her, she failed to go to quarters proffered to her at a boarding-house. He was, in point of fact, the first to desert. It must be remembered that he claims no desertion by proof against his wife, until after he had broken up their household establishment and left, and formally notified her to take possession of her share of the household goods. Was she bound to follow him if she had good reason to believe that his movements were solely with a view to force her to desert his habitation, and thus make a case for him? Was he not bound to exhibit a case of good faith on his part, in order to be entitled to charge bad faith on hers ? If the evidence were full to the fact that he desired to get rid of his wife previously to his giving up housekeeping, and that all that he did afterwards was to consummate that design, was he entitled to be divorced? Would that be a divorce applied for “in sincerity and truth?” viz., for the desertion of his wife, if he had labored and schemed to provoke that desertion? This cannot be, unless the necessity of possessing a good cause is no merit in a divorce proceeding. But this charge of the learned judge deprived the libellant of the inferences from the testimony, that the whole thing was concocted in fraud of the divorce laws; and his notification of a room for her at a boarding-house, was. but a part of a scheme to throw off the bonds into which he had voluntarily entered, and which, from caprice or other cause, had become annoying to him. She was entitled to such an inference from the testimony, if legitimate, and this was for the jury, but was forestalled by the above view of the law.

There was no desertion from the habitation of the libellant by the respondent, and in this respect the ease is very different from the eases cited to show that if a wife deserts the habitation of her husband, or the husband turns a wife out of doors, that such acts can only be justified by reasons which would entitle the party to a divoree. Of this character are the cases of Eshbach v. Eshbach, 11 Harris 343; Groves’s Appeal, 1 Wright 443, and Gordon v. Gordon, 12 Id. 226. Here the libellant left without any cause or reason, as disclosed to his wife. The doctrine advanced was that she was bound to follow his footsteps, notwithstanding every act might persuade that he did not desire her association as a wife. If she failed to do so under such circumstances, after expressing herself entirely willing to do so, is wilful and malicious desertion to be inferred against her ? By first leaving his habitation, he gave his wife the opportunity of showing why he did it, and why and wherefore she did not follow; and if she could show by his acts and declarations that he in fact did not desire her to follow and live with him, would such a failure necessarily furnish a reason for an inference of wilful and malicious desertion from his bed and board ? In Bishop v. Bishop, 6 Casey 412, we held that wilful and malicious desertion was not to be inferred from a refusal on part of the wife to cross the ocean and join a husband who had broken up their household establishment and emigrated to America. We thought her case entitled to be considered in the light of the difficulties put before her by her husband voluntarily and without any controlling necessity, and that proof in addition to the absence of the wife, was necessary in order to establish the desertion to be of the character required by the Act of Assembly. We gave her the advantage of the presumption of innocence until the contrary should be established. Had she deserted her husband’s habitation without reasonable cause before he left England, a different case would doubtless have been presented. So indeed would it have been in the case in hand. For it has been held in the cases referred to, supra, that unless turned out by her husband, or leaving him for causes which would entitle her to a divorce, the desertion meant by the Act of Assembly would be inferred — for the act gives this effect to such absence without there be reasonable cause; and reasonable cause has been settled to be, such cause as would entitle to a divorce.

Although the wife in this case might not be justified to the extent of entitling her to a divorce on account of the bad faith of her husband in breaking up his establishment with a design ultimately to force her to desert him, nor even to prevent him from obtaining one if she persisted in refusing to rejoin him if he desired her to do so in good faith; yet she might undoubtedly show that all that had been done in breaking up housekeeping by her husband, was with a view to put himself into a position to claim a divorce from her, as a good reason why she did not follow him to become the victim of his schemes. In such a condition of things, neither party could claim a divorce; their case would not be within the Act of Assembly. This sort of proof would be a mode of negativing the charge of wilful and malicious desertion. He could not claim a divorce based upon his own schemes to promote it. To allow this would be to permit him to do what the law forbids, namely, to take advantage of his own wrong. We think, therefore, the learned judge erred in the instructions referred to, and which we need not further discuss.

We are also of opinion that the learned judge erred in refusing the offer of respondent to prove a series of “ humiliating language and opprobrious epithets addressed to her in the presence of her servants.”

This testimony should have been admitted as pertinent to the question of the motives of the libellant in breaking up his household establishment, and to show that the object of the libellant in doing so was to force the respondent to refuse joining him in a boarding-house, or to compel her to abandon him in time, if she did. This was her theory of his actions and motives, and she was entitled to prove it if she could. If a jury would be bound to infer this from the testimony, it would present a case of fraud upon the law and upon the respondent, which ought and would prevent a divorce upon his application.

I cannot for my life see why fraud and chicanery are not to have the effect to defeat a party practising them, in an attempt to rescind the marriage contract, as well as in every other case; yet it seems sometimes to be regarded as an exception to the rule that fraud vitiates whatever'it touches. Unless we regard a wife as possessing “no rights which the law is bound to respect,” we are bound to protect her against the fraud of her husband when it may go to affect her dearest rights, as we would against his force and violence. If a scheme be disclosed to get rid of a wife, by exposing her to insult before strangers, until she shrinks from and abandons her persecutor, is he to be rewarded by a rescission of his marriage bonds, just as if he had acted honestly, and she wilfully and maliciously? Verily, no. She may defeat his unworthy attempts by showing that her refusal to follow him was to avoid his schemes to get rid of her, and not through wilfulness and malice, with just the same effect as if she had gone to him and suffered, and endured, until she could endure no longer. The testimony offered was a step in the line of proof to show a scheme to get rid of the respondent, and when received, it might or might not have proved it, just as the jury might determine. But it ought to have gone to them. If fraud be admissible to be set up against such an application, and we have said it is, then ought the testimony to have been admitted on that ground. Great latitude of proof is allowable in an issue of fraud, or where it may be alleged and is material to be proved.

Notice of the special matters to be given in evidence might have been required from the respondent beforehand, but it was not. And as there was no rule of court requiring it to be given, and no demand for it, we think the testimony was not properly rejected for the want of it, as the learned judge held.

This is about what we ruled in Breinig v. Breinig, 2 Casey 161. In Garrat v. Garrat, 4 Yeates 244, a nonsuit was granted for want of notice of special matter, but with leave to take it off, which was afterwards done. It will be remembered that this was against the libellant, whose libel was defective in specification. There was surprise in that case, in offering new matter different from that disclosed by the libel. Nothing like that appears to have been claimed here. We think the want of notice of special matters not required by rule of court, or by any special order, was not a ground for refusing the evidence offered. It may be good practice to give notice or to call for it; it saves controversy: but if neither be done it would be a peculiar case which would justify a rejection of testimony on the ground of want of notice, when that is for the first time suggested in the midst of a trial. Such we think was not this case. The reasons thus given as to these two complaints of error are sufficient to require us to reverse the decree of the court below.

Must we send the case back to be retried on the issue? We think not. When we inspect the record there was, properly speaking, no issue in the case within the meaning of the Act of Assembly. A jury seems to have been sworn to try the case between the libellant and respondent, on the libel and answer. But the Act of Assembly provides for a jury, only, when either party shall desire any matter of fact, which is affirmed by one party and denied by the other, to be so tried. That does not appear by the facts as presented to have been the case. The jury was brought in, seemingly, as assistants to the court, when they were really not necessary. The decree was by the court, on bill, answer and proof, and is here on appeal, and subject to be disposed of as if no jury had sat in the case. We will therefore dispose of the case as we conceive the merits under the evidence require.

We are of opinion, from a careful consideration of all the testimony, and drawing all legal inferences from it, that the libellant is not entitled to claim a divorce from his wife. We think it shows that the application was not made “in sincerity and truth,” for the causes set forth, viz., the desertion of the wife; but that that as a cause, so far as shown and claimed, was the result of the management, scheming and colorable conduct of the applicant. W e hold that where such conduct has reacted on the conduct of the wife, so as to keep her absent from her husband, who has left her and her abode, it necessarily meets the allegation of wilful desertion, and deprives him of the right to claim advantage of certain acts and conduct which he has promoted and designed. Like in all other cases in equity, the applicant must be rectus in curia; have a good cause, and the respondent a bad one. This must always be the case where the divorce is resisted. The party who wouldiwin in such a contest must be clear of everything which is charged as a cause of separation against the opposite party.

We will refer to a few of the facts disclosed by the testimony, observing that no portion of it not noticed specially does in the least, in our opinion, raise a counter current to that produced by the facts to be noticed.

In the summer of 1866, the respondent being absent at Newport with the assent of the libellant, he suddenly commenced to break up his residence, and on being remonstrated with for doing so by the respondent’s father, he made as an excuse, the statement that his establishment was too expensive for his circumstances. To obviate this, Mr. Smith offered to undertake to defray all the expenses of his daughter, the respondent, and eventually proposed to pay rent for the house in a sum equal, as it turns out, to that for which the libellant rented it to another party, viz., $2000 per year. Met as to the objection of expense, the libellant declared in substance that it was useless to insist on him to keep the establishment, “that they,” meaning himself and wife, “ could not live happily together,” exclaiming, “why don’t she give me a divorce, or grant me a divorce ?” This, unexplained, cannot but be regarded as the key-note to all his after conduct. •

He proceeded to break up the establishment, and on the 30th of August 1866, addressed to his wife, who had been absent, with his consent, as already seen, for some time, the following note:

“Mrs. Angier: I have taken rooms and board for you and myself at Mrs. Neilson’s, N. W. corner of Broad and Locust streets. On Monday next they will be ready for occupancy. Please have the furniture belonging to you removed from 2031 Walnut street (former residence), or give me such directions as may be necessary about it. There are certain articles about the house belonging to me which I will remove. Yours, truly.”

To any mind, and especially to a wife’s, this would mean sepaaration, if words mean anything. It wag "withdrawal on his part, and a setting off her goods and chattels to her, as if it were no longer intended that she was to live with him, and with a personal reclamation of his own from their joint possession, for his own enjoyment and use. Their home was thus broken up, when its occupancy might have been continued almost without expense, and his wife notified in the coldest manner, of rooms taken, and to be “ ready for occupancy on Monday next.” No one could make out of this a desire on his part for the society of his wife. She could read nothing but a wish for separation, interpreted in the light of his impatient exclamation of a desire for a divorce, and his refusal of indemnity against expense by his father-in-law, who was amply able to make it good. This offer she could hardly believe was refused from delicacy and a disinclination to avail himself of gratuitous support from friends. She must have known that he had been the recipient of very large sums already from her father and brother, amounting in the aggregate, as his schedule in bankruptcy shows, to between thirty and forty thousand dollars. The respondent replied to this note within a day or two, and remonstrating against his breaking up their home without knowledge or assent by her; reminding him of past unkind treatment at home, and after all this, desiring to take her to a boarding-house, “where,” as she says, “strangers might be witnesses to the treatment she had been so long subject to:” she concluded by saying, “ I intend returning (from Newport) on Saturday, ready to return, to you whenever you express a wish to that effect, and provide a suitable residence.”

Neither to the charges of bad treatment or the offer to return did the libellant ever reply, either to assure her he wished her to come to, and live with him, or that he had procured a proper residence for her. She did not decline to join him, but wished some sign or token that it was desired, and that a fit place was provided. If he had desired her presence after having broken up her home without consulting her, it was his duty to have said so; but he did not, and in two days after her return to the city to the house of her brother, without a sign or a wish that she should follow him, he charges desertion upon her.

Without recapitulating the facts in proof further, it is apparent, we think, that the boarding-house project was a scheme to effect a separation. He rented his own house, in which they had lived, for $2000 per year, and took rooms at Mrs. Neilson’s, at the rate of $2000 a year. There was no great economy in this, especially as he was offered to be indemnified against every expense of his wife, at his old residence. It is evident therefore he did not expect nor wish that his wife should come to the boarding-house and live with him. This seems plain from his whole conduct, but especially does it appear from the testimony of Mrs. Neilson, of whom he engaged rooms. She says he engaged two rooms for himself and wife, with the understanding that if she (his wife) went to Europe, his father was to come in her stead!” Where this idea originated of her going to Europe, we are not informed by the testimony, but are obliged to presume that the rooms were not taken with any intention of their ever becoming the home of his wife. This, and numerous other things in the testimony show such an apparent case of management and scheming on part of the libellant to provoke desertion on part of his wife, as acquits her of the charge of wilful and malicious desertion, and proves him guilty of practising such bad faith in exhibiting his bill for a divorce from the bonds of matrimony, as required the court below to dismiss his bill as unfit, under the testimony to be granted. Considering the case on its merits, as we have done, we do not find that the libellant has made out any such.case of wilful and malicious desertion of the wife as is required in law to be the foundation for a decree of divorce, but are constrained to conclude from the evidence, that whatever of desertion there was in the case was brought about by the acts of the libellant himself, and that he is not entitled to the decree he seeks.

Decree of the court below is reversed, and the libellant’s bill is dismissed at his costs.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Zeisweiss versus James et al., Anna N. James and Mary A. Conover with her husband O. H. P. Conover.
    1. A testator devised to his grand-nieces all the property of which he should die possessed, “and to their heirs and assigns, subject nevertheless to the following restrictions, * * * the real estate of which I may die seised shall be held and enjoyed by them during their lives, or, in case of the death of one of them, during the life of the survivor,” upon condition that they or one of them should make the testator’s homestead a place of permanent residence; upon the refusal of both to reside at the homestead, for two months, the real estate mentioned to go as directed in the next clause of the will, as if the devisees were dead. Held, that the fee simple to the grand-nieces was reduced by the subsequent words to a life estate.
    2. The “next clause” of the will directed that upon the death of the devisees for life, the real estate should go to “ The Infidel Society in Philadelphia, hereafter to be incorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics,
    &c.” Held, that the remainder limited to a corporation thereafter to be created was void, because there was no devisee competent to take at the time, and the possibility that there might be such a corporation during the particular estate for life, was too remote.
    3. It would seem, such an association could not be incorporated under any of the general laws of the Commonwealth.
    4. It is in entire consistency with the constitutional guaranty of the rights of conscience and religious liberty to hold that even if Christianity is no part of the law of the land, it is the popular religion of the country, an insult to which Would be indictable as directly tending to disturb the public peace.
    5. The laws and institutions of Pennsylvania are built on the foundation of reverence for Christianity.
    6.. The religion revealed in'the Bible is not to be openly reviled, ridiculed or blasphemed to the annoyance of sincere believers.
    7. It is no objection to a devise for a charity that it is so vague and indefinite that no particular person may have such an interest as will give him a right to demand its execution, if there be a trustee named clothed with discretionary power to carry out the general objects of the donor.
    8. In this case this discretion cannot be assumed by a court nor reposed in a trustee of their selection.

    9. When there is no competent trustee named, or he dies or resigns, and there is no provision made by the testator for the continuance of the trust, the charity must fail.

      10. Power to act at discretion need not be expressly given if it can be implied from.the nature of the trust.
    11. An unincorporated society may be a trustee invested with such discretion, and may perpetuate itself by a succession of its members.
    January 7th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius. Williams, J., absent.
    Certificate from 'Nisi Prius.
    This was a case stated, in which Amanda James, Anna N. James, and Mary A. Conover, with her husband O. H. P. Conover, were plaintiffs, and Nathaniel Z. Zeisweiss was defendant.
    The facts submitted for the opinion of the court being as follows : Levi Nice, of the city of Philadelphia, died in April 1865, seised in fee of a tract of land in the county of Philadelphia, known as Oxford Lodge, having made his last will and testament by which he devised as follows:—
    “I give and devise unto my grand-nieces Mary A. Conover, wife of O. H. Perry Conover, and Anna N. James, children of my niece Amanda James, all the property of which I may die possessed of, in fee simple, and to their heirs and assigns, subject nevertheless to the following restrictions, that is to say, that the real estate of which I may die seised shall be held and enjoyed by them during all the time of their natural lives, or in case of the death of one of them during the life of the survivor upon the express condition that they shall make the homestead property upon which I now reside, and known as Oxford Lodge, as their place of permanent residence or the residence of one of them, and it is my will that should they both refuse to so reside at said homestead residence for the space of two months, then said real estate is to go as directed in the next clause of this my will, that is to say, in the same manner as if both of devisees were dead.”
    “ Immediately after the death of both of my said grand-nieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Society in Philadelphia hereafter to be incorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics, &c.”
    The said Amanda James is the heir at law of the testator.
    On the 5th of January 1866, the plaintiffs entered into an agreement in writing with the defendant to convey to him in fee simple the premises mentioned, and they subsequently offered to deliver to him a deed in fee simple in the usual form for the premises, in fulfilment of their agreement; the defendant refused to receive the deed, alleging that the plaintiffs did not under the will possess a good title in fee simple. It was agreed that, if the court should be of opinion that Amanda James, Anna N. James and Mary A. Conover were entitled to an estate in fee simple in said premises, judgment should be entered for the plaintiffs for $501; otherwise judgment should be entered for the defendant. It was also agreed that either party should be entitled to a writ of error or certificate.
    The court, Thompson, C. J., delivering the opinion, entered judgment for the plaintiff upon the case stated.
    The defendant removed the case to the Supreme Court, and assigned for error the entering of judgment for the plaintiff.

      W. A. Manderson, for plaintiff in error.

      Titos. J. Qlayton, for defendant in error,
    cited 2 Redf. on Wills, 2d ed. 770; 1 Dev. Eq. 276; Holland v. Peck, 2 Ired. Eq. 255; 1 Jarman on Wills 332.

       The Act of April 26th 1855 does not apply.

   The opinion of the court was delivered, January 13th 1870, by

Sharswood, J. —

It must be conceded that the devise by the will of Levi Nice to Mary A. Conover and Anna M. James, in fee simple, is reduced, by the subsequent words, to a life-estate to the devisees and the survivor of them, determinable, however, on their both refusing to reside on the homestead known as Oxford Lodge for the space of two months. The testator declares that in that event the said real estate is to go as directed in the next clause of his will; that is to say, in the same manner as if both of the devisees were dead.

The next clause is as follows: “ Immediately after the death of both my said grand-nieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Society in Philadelphia, hereafter to be incorporated, and to be held and disposed of by them, for the purpose of building a hall for the free discussion of religion, politics, &c.”

If there was an Infidel Society in Philadelphia at' the date of the will, it was not then incorporated, the testator expressly referring to it as thereafter to be incorporated. If we are to infer the nature and objects of the corporation from the name, it means an association of infidels or unbelievers, for the purpose of propagating infidelity, or a denial of the doctrines and obligations of revealed religion. It must be so understood, according to the commonly received meaning of the term. Such an association, it would seem, could not be incorporated under any of the general laws of the Commonwealth. The Acts of April 6th 1791, 3 Smith 20, and of October 13th 1840, Pamph. L. 1841, p. 5, provide for the incorporation of societies for any literary, charitable or religious purpose, and beneficial societies or associations. It could scarcely be considered as within either the letter or spirit of these acts. It is highly improbable that the legislature will ever incorporate, or authorize the incorporation, of such an association. Supposing it, however, to be possible, it is potentia remota — that a corporation should be created, and with that name — a possibility upon a possibility, which, as Lord Coke tells, us, is never admitted by intendment of law : Co. Litt. 25-6, 184 a. It is like a remainder to the heirs of a person unborn — that a person should be born and die during the continuance of the particular estate— or to an unborn son of a particular name : Eearne 251. Indeed, the very case is put in the old books that if a remainder be limited either by feoffment or devise to a corporation which is not in existence at the time of the grant or devise, the remainder is void, even though such a corporation should afterwards be erected during the particular estate, because it is potentia remota: Sir Hugh Cholmley’s case, 2 Rep. 51 a; Lane v. Cowper, Moor, 104; Cowden v. Clarke, Hob. 33; Noe’s case, Winch 55; Simpson v. Southward, 1 Rol. Rep. 254. In the Year Book, 9 Hen. VI. 24, it is laid down that if one devise lands to the priests of a chantry, or of a college in the church of A., at which time there is no chantry and no college, the devise is void, notwithstanding the devise is by license of the king; and if after a chantry or college is made in the same place, yet they shall not have the land, because at the time of the devise there was no corporation in which the devise could take effect. We must conclude then that this remainder, limited to a corporation thereafter to be created, was void, because there was no devisee competent to take at the time, and the possibility that there might be such a corporation during the particular estate for life, was too remote.

But it may, nevertheless, be true that if the purpose for which the devise over in remainder was made, be a valid charitable use, which can be enforced and administered in a court of equity, it will not be allowed to fail for want of a trustee : McGirr v. Aaron, 1 Penna. Rep. 49. Such an use may be vague and indefinite, so that no particular person or persons may have such an interest as will give them a right to demand the execution of it, yet that forms no objection to a charity if there be a competent trustee named, clothed with discretionary power, either express or implied, to carry out the general objects of the donor or testator. As was said by Gibson, C. J., in Witman v. Lex, 17 S. & R. 93 — “ It is immaterial whether the person to take be in esse or not, or whether the legatee was at the time of the bequest a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator’s bounty to those objects.” To the same effect are McGirr v. Aaron, 1 Penna. Rep. 51; Martin v. McCord, 5 Watts 495; Beaver v. Filson, 8 Barr 335; Pickering v. Shotwell, 10 Barr 23; The Domestic and Foreign Missionary Society’s Appeal, 6 Casey 425. “ A charitable gift,” says Comstock, O. J., in Beekman v. Bonsor, 23 New York 308, “ definite both in its subject and purpose and made to a definite trustee, who is to receive the fund and apply it in the manner specified, is to be maintained, although it would be void try the general rules of law,' because the particular objects of the gift, or persons to be benefited by it, are unascertained. Such a gift is capable of being enforced by judicial sentence; and affords neither room nor justification for an exercise of the cypres power. So much, then, of that which is peculiar in .the English system of charitable trusts ought to be considered as settled in the jurisprudence of this state. But beyond this we cannot go, without exercising functions which are not judicial; which, in England, rest on prerogative, and are there exercised by the sign manual of the sovereign, or by the Court of Chancery, as the keeper of his conscience Godard v. Pomeroy, 36 Barb. 546; Le Page v. McNamara, 5 Clark 124 ; Owens v. The Missionary Society, 4 Kernan 380. The discretion, which must, in such a case, necessarily be vested somewhere, cannot be assumed by a Court, for it would not be a judicial function ; nor can it, therefore, be reposed in a trustee or trustees of their selection. When there is no competent trustee named, or he dies or resigns, and no provision is made by the testator for the continuance of the trust, the charity must fail: Fontain v. Ravenel, 17 Howard S. C. Rep. 369. In that case executors were directed to make distribution of the estate among such charities as they should deem most beneficial. But they died without doing so. “ There must be some creative energy,” said Mr. Justice McLean, “ to give embodiment to an intention which was never perfected. Nothing short of the prerogative power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of this charity, but behind, that is a more formidable objection. There is no expressed will of the testator. He intended to speak through the executors, or the survivor of them, but by the acts of Providence this has become impossible. It is, then, as though he had not spoken. Can any power now speak for him except theparens patries ? Had he declared that the residue of his estate should be applied to certain charitable purposes, under the statute of 43 Eliz., or on principles similar to those of the statute, effect might have been given to the bequest, as a charity, in the state of Pennsylvania. The words as to the residue of his property were used in reference to the discretion to be exercised by his executors. Without their action he did not intend to dispose of the residue of his property.” “ Power to act at discretion,” says Gibson, C. J., “ need not be expressly given if it can be implied from the nature of the trust:” Pickering v. Shotwell, 10 Barr 28. No doubt an unincorporated society may be a trustee, invested with such a discretion, and may perpetuate itself by the succession of its members. This is the doctrine of the learned and elaborate opinion of Mr. Justice Baldwin in Sarah Zane’s will: Magill v. Brown, Brightly’s Rep. 346, note, sustained and- affirmed by the court in the Domestic and Foreign Missionary Society’s Appeal, 6 Casey 425, and the Evangelical Association’s Appeal, 11 Casey 316. Now, if the use in this case be a valid charitable use, it is certainly of a very indefinite nature, and requires to be administered according to a discretion to be confided to some person or persons. The testator named the Infidel Society in Philadelphia, which might have been well enough, if there was such a society, though unincorporated; but he made it an essential quality of the society thus selected, that it should be incorporated. That, as we have seen, was a potenta remota, which made the devise over in remainder, after the life estates, a void devise. There was no trustee then competent to exercise a discretion in the administration of the chai’ity. Building a hall may be an object sufficiently definite; but the trust was not to end there. It is evidently a permanent, perpetual one. The hall, when built, must be kept up and maintained. Some person or persons must regulate the free discussion in religion and politics, and determine what is to be included under the comprehensive “ et cetera.” It is plain that no court would ever undertake to administer such a charity, or to exercise discretion through a trustee or trustees appointed by them. It is not a disposition of property “ for any religious, charitable, literary or scientific use,” within the Act of April 26th 1855, § 10, Pamph. L. 331. If this course of reasoning be sound, it follows that this devise is void as a charity, and that the reversion, subject to the life estate, descended to Amanda James, the niece of the testator, and his heir at law, under the Intestate Act, and that a conveyance by her and the life-tenants will vest a good title in fee simple in their grantee.

In placing the decision on this ground, however, it must not be understood that I mean to concede that a devise for such a purpose as was evidently contemplated by this testator, even if a competent trustee had been named, would be sustained as a valid charitable use in this state. These endowments originated in England, at a period when the religious sentiment was strong, and their tendency was to run into superstition. In modern times the danger is of the opposite extreme of licentiousness. It is necessary that they should be carefully guarded from either, and preserved in that happy mean between both, which will most conduce to the true interests of society. Established principles will enable the courts to accomplish this. Charity is love to God and love to our neighbor; the fulfilment of the two great commandments upon which hang all the law and the prophets. The most invaluable possessions of man are faith, hope, charity, these three; but the greatest of these is charity. Love worketh no ill to his neighbor : therefore love is the fulfilling of the law. It is the fountain and source whence flow all good works beneficial to the souls or bodies of men. It is not easy to see how these are to be promoted by the dissemination of infidelity, which robs men of faith and hope, if not of charity also. It is unnecessary here to discuss the question under what limitations' the principle is to be admitted that Christianity is part of the common law of Pennsylvania. By the third section of the ninth article of the Constitution it is indeed declared “ that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences ; that no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience; and no preference shall ever be giveit by law to any religious establishments or modes of worship.” ¿ It is in entire consistency with this sacred guarantee of the rights of conscience and religious liberty to hold that, even if Christianity is no part of the law of the land, it is the popular religion ofjdm-ceuntry, an insult to which would be indictable as directly fending to disturb the public peace. The laws and institutions of this state are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the Commonwealth : Updegraph v. The Commonwealth, 11 S. & R. 394; Vidal v. Girard’s Executors, 2 Howard (U. S.) 198. I can conceive of nothing so likely — so sure, indeed, to produce these consequences, as a hall desecrated in perpetuity for the free discussion of religion, politics, et cetera, under the direction and administration of a society of infidels. Indeed, I would go further, and adopt the sentiment and language of Mr. Justice Duncan in the case just referred to : “ It would prove a nursery of vice, a school of preparation to qualify young men for the gallows and young women for the brothel, and there is not a sceptic of decent manners and good morals who would not consider such a debating club as a common nuisance and disgrace to the city.”

Judgment affirmed.


author: Sharsavood, J. —

text:
    West Pikeland Road.
    1. A church or cemetery may be a terminus for a public road.
    2. It is not a requisite of a public road that all the inhabitants of the county will have occasion to use it; if many persons besides those owning the land where it terminates find it useful and convenient.
    3. A church is open to all who desire to worship God and receive religious instructions, at the regular and appointed seasons, and who behave with propriety.
    4. Viewers are to have respect not merely to the shortest distance, but to the best ground and so as to do least injury to private property.
    5. It is not necessary that a road should start or terminate in another road at right angles, it may connect at a very acute angle and part of the roads he near parallel.
    January 17th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., at Nisi Prius. Williams, J., absent.
    Certiorari to the Court of Quarter Sessions of Chester county: No. 120, to July Term 1869.
    On the 10th of June 1868, a petition was presented to the Court of Quarter Sessions of Chester county, praying for viewers “ to lay out a public road, beginning in the public road leading from Cedar Hollow to Tustin’s bridge, at a point in the same, near the St. Peter’s Lutheran and German Reformed Church, and ending at a point on the grounds of said St. Peter’s Lutheran and German Reformed Church.”
    Viewers were accordingly appointed, who, at the next term, reported that they had laid out a public road, “ beginning at an iron pin in the public road, leading from Cedar Hollow to Tustin’s bridge, &c., thence partly along said road and through a narrow wedge of unimproved land belonging to the German Evangelical Lutheran Church, and passing in front of said St. Peter’s Lutheran and German Reformed Church, &c. * * * to a post on land belonging to St. Peter’s Lutheran and German Congregations.” On the 10th of August 1868, this report was read and confirmed nisi.
    On the 18th of August, exceptions were filed by the German Lutheran Evangelical Church, viz.:—
    “ 1. The viewers had no power to lay out a public road from the property of a private corporation to a public road.
    “ 2. Instead of laying out a road from the property of the corporation to the public road by the most convenient and direct route, they have laid out a road nearly parallel with, and partly on the bed of the present road, extending 11 perches in length, and for about two-thirds of the distance along the front of the church property, in violation of their duty and in fraud of the law.”
    Sept. 14th 1868. The exceptions were dismissed and report confirmed.
    Eeb. 11th 1869. Reviewers were appointed.
    April 27th 1869. Report of reviewers laying out the road on the same ground as the viewers, read and confirmed nisi.

    May 10th 1869. The same exceptions as before were filed by the same party.
    June 14th 1869. The exceptions were dismissed, the report of the reviewers confirmed, and the road ordered to be opened thirty-three feet wide.
    In dismissing the last exceptions, the court (Butler, P. J.) delivered the following opinion :—

      “ The road terminates at a church and public cemetery. The place is known to be one of great resort, as well by the public at large, as by the members of the church. We entertain no doubt that it is a proper and lawful terminus for a public highway, just as is a wharf, a ferry or a railroad depot, or other place to which the public has occasion to travel. The first exception is therefore dismissed.

      “ There is no substance in the complaint contained in the second exception. The new road is connected with the old one at the place of beginning, in the usual and proper manner. At the point where two roads diverge from each other, or where a road forks, necessarily each road or fork must be for a short distance partially run over the same ground, increasing the width beyond the number of feet allowed to either. That the jury did not start at the edge of the old road, but a few feet further back, running over it for a short distance, is unimportant. This exception is also dismissed.”
    The proceedings were removed to the Supreme Court by certiorari at the instance of the German Evangelical Lutheran Church.
    The following errors were assigned:—
    1. Dismissing the exceptions and confirming the reports of viewers and reviewers.
    2. Deciding that a public road may be laid out from the property of a private corporation to a public road.
    ■ 3. Not setting aside the reports, the viewers and reviewers not having laid out the road from the property of the corporation to the public road, by the most convenient and direct route, but having laid it nearly parallel with the old road, along in front of the church property, in violation of their duty and in fraud of the law, is shown by the reports and drafts.

      W. Darlington, for certiorari,
    referred to Act' of June 13th 1836, Pamph. L. 555, § 4, et seq.; Purd. 871-880, pi. 4-94. A public road under this act is a highway; a highway is an open communication from one city or town to another: Webster’s Dict. in verbo; Woolrych on Ways 3-4; 1 Blackstone’s Com. 358; 2 Id. 35; House v. Bardin, 1 H. Bl. 355. It must he a public thoroughfare: Wood v. Veal, 5 B. & Aid. 459; Woodyear v. Hadden, 5 Taunt. 126. A private way is such as goes to a church, house, &c.: 3 Comyn’s Dig. 58, Qhimin D. 1; 1 Hawkins’s P. C. Ch. 76, § 1; Act of June 13th 1836, § 11, Pamph. L. 536; Purd. 872, pi. 13. Private way cannot be laid out as a public road: Miller’s Road, 9 S. & R. 35; Sandy Lick Creek Road, 1 P. F. Smith 94.

      J. 8. Futheg, contrh,
    referred to Act of 1836; Sandy Creek Road, supra. A public road may be laid out from a highway to a place of public resort: Extension of Second Street in Columbia, 11 Harris 346; Rugby Charity v. Merryweather, 11 East 375; Rex v. Lloyd, 1 Campbell 260; Bateman v. Black, 14 Eng. L. & Eq. 69; Angell on Highways 109; Angell & Durfee on Highways 110.
   The opinion of the court was delivered, October 20th 1870, by

Sharsavood, J. —

The principal question which has been raised upon this record is, whether a road described as beginning at a public road and ending on land belonging to St. Peter’s Lutheran and German Congregation, can be laid out as a public road. The general road law, the Act of June 13th 1836, Pamph. L. 551, does not define a public road, but it does give what may be considered a definition of a private road, as “ a road from the respective dwellings or plantations of the petitioners to a highway or place of necessary public resort, or to any private way leading to a highway § 11. The viewers are required to state particularly whether the road desired be necessary for a public or private road. In this case both viewers and reviewers reported that the road as petitioned for as a public road Avas necessary, and both reports were confirmed by the court. We entertain no doubt that a church or a cemetery may be a lawful terminus of a public road, and we think it to be fairly inferred that in this case the land belonging to St. Peter’s Lutheran and German Congregation was occupied and used for one or both these objects. A church is a place of public resort, and especially when a graveyard is attached to it, it may be very necessary for the accommodation of the neighborhood that the road to it should be a highway. It is not a requisite of a public road that all the inhabitants of the county will have occasion to use it. It is enough that many persons besides those owning the land where it terminates will find it useful and convenient. A church is open to all who desire to worship God and receive religious instruction at the regular and appointed seasons; it is not closed against any one who behaves Avith propriety. The Acts of Assembly of April 2d 1822, Pamph. L. 286, and March 16th 1848, Pamph. L. 447, recognise places of religious worship as entitled to the special protection of the laws against interference or disturbance.

“When the want of a road from one given point to another,” says Chief Justice Black, “would prevent a portion of the public from getting to market, to church, or to other places where men are in the habit of meeting, on their lawful business, or in pursuance of their proper duties, the road is necessary:” Extension of Second street in Columbia, 11 Harris 346; see Simmons v. Mumford, 2 Rhode Island 172. In the ease of Church Road, 5 W. & S. 200, it will be seen that a public road was laid out in 1734, both the termini of which were churches, “ from the church in Whitemarsh township to the church in Oxford.”

There is nothing in the second exception. It is certainly true that the provision of the law which limits the breadth of a public road to fifty feet cannot be evaded by laying out two roads parallel and adjoining to each other : Road Case, 4 W. & S. 39; but it is not necessary in any case for a road to start from or terminate at another at right angles. The viewers are to have respect not merely to the shortest distance, but to the best ground, and so as to do the least injury to private property. To accomplish these results it may often be required that one road should connect with another at a very acute angle, and thus for a part of the route be nearly parallel.

Order affirmed.


author: Sharswood, J. — Thompson, C. J. — Williams, J. —

text:
    Hannum versus The Borough of West Chester.
    1. As a general rule wherever the cause of action is such as would be subject to the bar of the Act of March 27th 1713 (Statute of Limitations), if prosecuted under any of the forms enumerated in that act, then the statute is applicable; otherwise not.
    2. It applies to proceedings in other courts and before other tribunals than those of the common law.
    3. In regard to any actual taking by other than railroad companies, it seems, that under the constitutional provision, no title to the land or an easement over it is to be gained without payment of or security for the damages.
    4. An occupation or use is a continuing trespass, for which ejectment, trespass or case would lie, unaffected by the bar of the statute as far as the right is concerned.
    5. The statute limits only the period for which damages could be recovered to six years before the commencement of the action.
    6. Nothing but adverse possession or use for twenty-one years would bar the right of action itself.
    7. AVhen a statute gives a new and special remedy, and precludes all others, the Statute of Limitations does not apply.
    8. The Statute of Limitations is not a bar in any case of taking under the right of eminent domain: per Thompson, C. J., and Williams, J.
    January 17th 1870.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius. Read, J., absent.
    Error to the Common Pleas of Chester county: No 152, to July Term 1869.
    The proceedings below were commenced by petition by the plaintiff for the assessment of damages sustained by him by the diversion of water from a creek running through his premises by the defendant. The water was taken by the borough under the authority of an Act of Assembly of April 16th 1838, by which the borough was authorized to purchase any water-power, and take any stream of water or land to which such stream may he appertenant, for the purpose of introducing water into the. borough. For such taking the act provides that compensation to the owners shall be made as follows; upon failure of the parties to agree upon the compensation to be made, they shall choose six men to assess the damages, or in case they cannot agree upon such persons, the Court of Common Pleas, upon application of either party, shall award a venire to the sheriff to summon six men to assess damages and report to the court, which report being confirmed by the court, judgment to be entered thereon, either party to have the right of appeal within thirty days; such proceedings to be had on appeal, as are used in actions for damages at common law.
    In the year 1854 the borough erected waterworks on the premises adjoining and above those of the plaintiff, and in the fall of that year commenced taking water from the creek running through the premises of the plaintiff, without having the damages assessed under the Act of Assembly, or giving bond under the Constitution of Pennsylvania.
    On the 10th of December 1866, Samuel Hannum filed his petition to have an assessment of the damages, which he alleged he had sustained by the taking of the water by the borough, upon which the court awarded a venire to the sheriff, who summoned six men, who on the 18th April 1867 reported that they valued the damages sustained by the plaintiff at $330. From this award the plaintiff appealed, and on the trial of the cause, gave^ evidence to show that he used his farm largely for the purpose of stock grazing; that before the borough commenced taking water from the creek, he had water sufficient for watering his stock and other purposes; that after and during such taking, the water in the creek was so much reduced that it became muddy, and insufficient for the necessities of his farm, and unfit for watering cattle ; that the cattle became diseased, in consequence of standing and tramping in the muddy water, and that with the increase of the borough, the consumption of water increased.
    The plaintiff also offered evidence to show the probable consequences of the stock running into the impure water; their often getting diseased feet and other diseases. This offer was rejected by the court and a bill of exceptions sealed.
    The evidence for the plaintiff being closed, the court directed a nonsuit to be entered, on the ground that the Statute of Limitations barred the plaintiff’s right to recover, he having failed to bring his action within six years from the time of the first taking of the water.
    The court (Pearson, P. J.) delivered the following opinion:—

      “ The complaint in this case was commenced by petition, an inquest appointed, taken, reported to court, and an appeal entered therefrom. It was understood that the case was to be tried on the facts stated in the petition on the one hand, and without plea on the other, but that the plea of actio non accrevit infra sex annos, should be considered as put in on the morning of the inst., when the cause was called on. In cases of this character, the damages are to be assessed, not only for the past injury, but for all time to come: see 7 S. & R. 411. The evidence shows that the water was diverted from the stream for the use of the borough, in the year 1854, and has been used in the same way ever since. That the injury of the plaintiff was as full in the year 1856, as at any other time since, and that he was put to the same inconvenience every dry season, especially in 1866; that the Statute of Limitations is applied to damages done in the construction of a railroad, is clearly settled in Foster v. The C. Valley Railroad Co., 11 Harris 371, and is in like manner held in Redfield on Railroads, § 23.

      “ That the owner of property can have but one action, and the damages cannot be severed, is decided in Wadhams v. Lack. & B. Railroad Co., 6 Wright 410. The time when this injury was done, its extent and character, was well known to the plaintiff, and if he desired to maintain an action, he should have commenced it within a reasonable time. A delay of six years operates as a bar, and here it exceeds double that period.

      “ The court directs a nonsuit to be entered.”
    The plaintiff took a writ of error, and assigned for error the rejection of the offer of evidence and the entry of the nonsuit.

      J. Smith Futhey and P. Frazer Smith (with whom was Geo. F. Smith), for plaintiffs in error’,
    as to the rejection of evidence, cited Western Pa. Railroad v. Hill, 6 P. F. Smith 460; Wilmington & Reading Railroad v. Stauffer, 10 Id. 374. As to the Statute of Limitations: Western Pa. Railroad v. Johnson, 9 P. F. Smith 290; Del., Lack, and Western Railroad v. Burson, 11 Id. 369.

      W. Mac Veagh and W. Darlington, for defendant in error,
    cited Wadhams v. L. & B. Railroad, 6 Wright 310; Angell on Limitations 24; Hoveden v. Lord Annesley, 2 Sch. & Lef. 329; 2 Story’s Eq. § 1520; Farnam v. Brooks, 9 Pick. 242; McCrea v. Purmont, 16 Wend. 460; People v. Everest, 4 Hill 71; Humbert v. Trinity Church, 24 Wend. 594; Bank v. Daniels, 12 Pet. 56; Foster v. Railroad, 11 Harris 371; Del., L. & W. Railroad v. Burson, supra.

   The opinion of the court was delivered, January 31st 1870, by

Sharswood, J. —

The Act of March 27th 1713, 1 Smith 76, for limitation of actions, copied from 21 Jac. 1, c. 16, includes in its enumeration all forms of personal actions in use, but it provided that the time should be reckoned from the cause of action or suit, and not after. Hence most probably the construction, which has been uniformly received, that it is not the form, but tbe cause of action which is to be considered: and it may be stated as a general rule that wherever the cause of action is such as would be subject to the bar if prosecuted under any of these forms, then the statute is applicable: otherwise not. “ It is the nature of the cause of action,” says Mr. Justice Agnew, “such as a legacy, a foreign judgment, a widow’s interest, an award at common law or a distributive share, rather than the form of action, which determines the applicability of the statute:” De Haven v. Bartholomew, 7 P. F. Smith 129. Accordingly it has been uniformly held to apply to proceedings in other courts, and before other tribunals than those of the common law, though the words of the statute are evidently confined to the latter: and this not merely by analogy as has been sometimes inaccurately stated, but because the true spirit and intent of the statute requires that the rule should be uniform. “It is said,” remarks Lord Redesdale, “that courts of equity are not within the statutes of limitation. This is true in one respect: they are not within the words of the statutes, because the words apply to particular legal remedies: but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes; they act in obedience to them:” Hoveden v. Lord Annesley, 2 Schoale & Lefroy 629. The justice of this observation has been always since acknowledged: 2 Story’s Eq. 1520; Bank v. Daniels, 12 Peters 56; Humbert v. Trinity Church, 24 Wend. 594. “ I do not say,” remarks Sir William Scott, “ that the Statute of Limitations extends to prize causes; it certainly does not: but every man must see that the equity of the principle of that statute in some degree reaches the proceedings of this court:” The Mentor, 1 Rob. 180. It follows that the bar of the statute is applicable, though the legislature may provide new and special proceedings in cases, which before were remedied in the common-law forms: for it cannot be supposed that a virtual repeal of the statute was intended: Farnam v. Brooks, 9 Pick. 242. The inquiry must then be what would have been the form of action at common law, if the special tribunal and proceeding had not been provide^ If in such form there would have been a bar, it will still continue.

It is not necessary to consider the case of an actual taking of property by a corporation in virtue of the right of eminent domain, under an authority granted by the sovereign. The Act of April 17th 1866, Pamph. L. 106, has enacted “that no suit or action shall be brought against any railroad company, incorporated by the laws of this Commonwealth, for damages, for right of way or use and occupancy of any lands by said company, for the use of their railroad, unless such suit or action shall be commenced within five years after said lands shall have been entered upon, for the purpose of constructing said road, and within three years after said road shall be in operation.” As to how far the construction of this act is to be affected by the fourth section of art. vii. of the constitution I say nothing. In regard, however, to any actual taking by other than railroad companies, it rather seems to me that under this constitutional provision no title to the land or an easement over it is gained without payment of or security for the damages. An occupation or use must be regarded as a continuing trespass, for which ejectment, trespass or ease would lie unaffected by the bar of the statute as far as the right is concerned. It would operate only to limit the period for which damages could be recovered to six years before the commencement of the action. Nothing but adverse possession or user for twenty-one years would bar the right of action itself. It would follow then that when a statute gives a new and special remedy, and precludes all others, the Act of Limitations does not apply. If there can be but one such proceeding, instead of successive actions, then the consequence that entire damages must be given, measured by the depreciation of the property, instead of merely the actual damage sustained for a limited period, ought to make no difference in the result.

The case before us is not that of an actual taking, but of consequential damages: the right to recover which the legislature might have withheld altogether, but they did not choose to do so. By the Act of April 16th 1838, Pamph L. 477, and the supplement thereto of March 23d 1839, Pamph. L. 129, in conferring upon the borough of West Chester the powers necessary for the purpose of introducing a suificient supply of fresh and pure water, they provided a mode of ascertaining and recovering damages “ to any person or persons who may be injured by the diversion of the waters that may be used by the said borough for the purposes aforesaid.” Had the borough of West Chester, without the express authority of law, undertaken to divert the waters of Chester creek, they would have been liable to the plaintiff for any damage sustained by him in consequence of such illegal act in an action of trespass on the case. Until such a period of time had elapsed as that the plaintiff’s right to the uninterrupted flow of the water would have been lost or- extinguished by adverse user — he could have maintained actions to recover the damages from time to time as they accrued: for it would have been a continuing wrong or nuisance. There is no ground for the presumption that the legislature in providing the special remedy meant to subject him to any new bar from lapse of time, which would not have existed independently of it. They meant, indeed, that instead of successive actions on the case there should be but one proceeding; the judgment in which should be in effect a transfer to the borough of all his right to the waters of the creek, which might be needed for the purposes in contemplation. This indeed calls necessarily for a new rule for the assessment of the damages, but creates no new bar from lapse of time. If it were so he would be deprived of his common-law remedy, and nothing effectual would be substituted for it. For suppose, as may well have been the case, that when the borough first began to divert the water, it was in quantity so small that the value of the plaintiff’s farm was not sensibly affected. Apart from the lawful authority vested in the borough he might perhaps have maintained an action at common law without proving any damage, on the principle of the Tunbridge Wells Dipper’s Case, 2 Wils. 422 — adopted by this court in Williams v. Esling, 4 Barr 486 — in order .to establish his right to the water, and prevent the acquisition of an adverse right by the defendants, grounded on his acquiescence in their use, but he certainly was not bound to do so. He had a period of twenty-one years in which in that view he might safely remain inactive. On the other hand, it was always in the power of the borough, by instituting proceedings themselves against any owner of lands through which the creek runs, to acquire his right, if they could not have accomplished the same thing in a more inexpensive mode by purchasing releases at the outset. It is no answer to this to refer to the extent of the course of the stream, and the number of landholders through whose property it runs, and the want of knowledge or notice to the borough of any claim for damages. They must be intended to foresee and know all the natural consequences of their acts, and it was their duty to govern themselves accordingly. We think, therefore, that the learned judge below erred in entering a nonsuit.

We are of the opinion that he was right in rejecting the evidence offered to prove the probable consequences of cattle running into the impure and stagnant water. Its effect upon the value of his farm was too vague, remote and uncertain, to form an element for the estimation of the damages by the jury.

Judgment reversed, and procedendo awarded.

Thompson, C. J. —

I agree to the reversal of this case, but do not agree that the statute of limitation of actions is a bar in any case of taking under the right of eminent domain.

Williams, J. —

I concur with the Chief Justice.