author: Chief Justice Acutew

text:
    Carter versus Tinicum Fishing Co.
    1. Title to a fishery was in Sanderlin in 1748 ; partition of his estate was had; James, the husband of Mary, one of his heirs, deceased, being a party ; it was adjudged in 1754 to “ the representatives of Mary, late wife of James,” subject to a ground-rent, the whole estate being divided into five shares. Elizabeth and others, reciting that they wer'e heirs of “James, who was an heir of Sanderlin,” conveyed in 1805 to Carter; the deed also recited the proceedings in partition; also, prior deeds reciting the partition and that the grantors were heirs of other heirs of Sanderlin, and conveying to Carter their interest in two-fifths of the fishery. There was no other evidence of the pedigree of the grantors, nor of any claim, by the descendants of Sanderlin for the fishery. Held, sufficient to raise a presumption of any grant, &e„ to make a good title to Carter of the fishery.
    2. Presumptions arising from great lapse of time and non-claim are sources of evidence which a court is bound to submit to a jury as the foundation of title by conveyances long since lost or destroyed.
    3. Acts of ownership over incorporeal hereditaments, corresponding to the possession of corporeal, are deemed a foundation for a presumption.
    January 18th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: No. 96, to January Term 1874.
    This was an action on the case, brought July 26th 1867, by Paul B. Carter against The Tinicum Fishing ..Company, for the disturbance of a right of fishery on the Delaware river, twelve-fourteenths of which the plaintiff claimed that he owned. The defendants owned the land in front of the fishery, and, by permission of the port wardens of Philadelphia, had erected a pier, which the plaintiff alleged interfered with his right.
    The case hacl been tried twice before, and had been reversed in the Supreme Court: it is reported in 11 P. F. Smith 21.
    It was tried the third time, December 2d 1872. before Butler, P. J. ' '
    The land had belonged to Christopher Taylor, who in 1848 devised to David Sanderlin “ his fishing-place ” in fee. After the death of Sanderlin, James Claxton, Oliver Thomas, William Smith and George Pooly, the husbands of four sisters of Sanderlin, and the children of Ann Venable, another sister, deceased, presented a petition to the Orphans’ Court, setting out that Sanderlin had died intestate, unmarried and Avithout issue, and praying for partition of his real estate amongst the children of Ann Venable ’ and the representatives of the late wife of James Claxton. The property was divided into four shares, and the inquest returned, amongst other things : “We have, by the consent and agreement of all parties concerned, allotted and laid out, to and for the representatives of Mary, late wife of James Claxton, all that fishing-place situate on the island of Tinicum, at the yearly rent or sum of forty shillings, lawful money of Pennsylvania, which said yearly rent is to be divided into five equal parts or shares.”
    On the 22d of August 1796, James Hogan and wife conveyed oné-fifth of the fishery to Joseph Carter, and on the 10th of March 1797, Ann Hannis, David Thomas, Robert Hannis and Deborah his wife, conveyed another fifth of the fishery to Joseph Carter; both deeds recited that the grantors were “ heirs ” of their respective fifths of the fishery according to the division, and that they “ were seised of the fishery as heirs of Sarah Thomas, a sister of David Sanderlin.” On the 6th of February 1805, Mary Claxton, Elizabeth Claxton, James W. Massey and Thomas Massey, conveyed the whole of the fishery to Joseph Carter. This deed recited that the grantors were the heirs of James Claxton, who was one of the heirs of David Sanderlin. All these deeds recited the partition as having been made in 1754, referred to the partition, and named the inquest who made it.
    Joseph Carter, by his will proved February 6th 1830, devised the fishery to two sons, and from them the title to twelve-fourteenths came to the plaintiff by several deeds, the last being dated September 19th 1851.
    The plaintiff gave evidence of the use of the fishery by his predecessors for a very great number of years; some of the witnesses testified to the use for sixty or seventy years.
    The plaintiff gave evidence also of the erection of obstructions by the defendants.
    The defendants gave evidence of their title to the land, showing that it had belonged to the same Christopher Taylor, and been devised by him to John Taylor, from whom the defendants deduced their title by divers conveyances; and also evidence tending to prove an abandonment of the fishery by plaintiff and his predecessors.
    The court charged, “ As announced on a former trial, we do not find any satisfactory evidence of a paper title in the plaintiff,” and, after going over the evidence, instructed the jury to find a verdict for the defendants.
    The jury found for the defendants.
    The plaintiff , took a writ of error, and assigned the above portions of the charge for error.

      Carter p. p. and A. Thompson, for plaintiff in error.
    Joseph Carter’s deed was an ancient deed, being more than thirty years old, and there having been a continuous user of the right under it, the recitals were evidence of pedigree: Bowser v. Cravener, 6 P. F. Smith 142; Paxton v. Price, 1 Yeates 500; Little v. Pallister, 4 Greene 209. There was evidence to establish title in plaintiff by prescription or grant: Gray v. Bond, 2 Brod. & Bing. 667; Worrall v. Rhoads, 2 Whart. 427; Wheatley v. Chrisman, 12 Harris 298; Jones v. Crow, 8 Casey 398; Garrett v. Jackson, 8 Harris 331; Reimer v. Stubbs, Id. 458; Esling v. Williams, 10 Barr 126, Where there is the grant of an easement, without a deed hostile to it, and adverse possession, there is no prescription or presumption from mere non-user : Lindeman v. Lindsey, 19 P. F. Smith 93; Buckholder v. Sigler, 7 W. & S. 154. Where there is an apparent and continuous servitude placed on one part of the land by the owner for the benefit of another part, a purchaser takes subject to it: Seibert v. Levan, 8 Barr 383 ; Overdeer v. Updegraff, 19 P. F. Smith 110; Cannon v. Boyd, 23 Id. 179.

      W. McVeagh (with whom was W. Ward), for defendants in , error.
    A riparian owner can erect works on a river to protect his property and prevent the current from carrying away his ground: Bowyer on Public Laws 368 (59 Law Lib.); Phear on Water-rights 54; 1 Crabb’s Real Prop. 121; King v. Essex, 1 B. & C. 477.
    March 1st 1875.
   Chief Justice Acutew

delivered the opinion of the court,

This case has been before us three times, including the present ■writ of error. The verdict having been for the plaintiffs below, in the former trials, the question before us now was not then fairly presented. Upon the second writ of error, Justice Sharswood said: “We must dismiss from our consideration the fact that evidence was given of a devise of a fishing place by a former owner of the shore, under which the plaintiff attempted to deduce title. He failed, in the opinion of the learned judge below. Whether he was right or wrong in that opinion is a question which we have not before us on this writ of error.” 11 P. F. Smith 21.

On the last trial, the verdict was for the defendant, under the charge of the same learned judge below, and the question is now directly before us upon the derivation of the plaintiff’s title, under the devise alluded to. The learned judge held the evidence of derivation of title to be insufficient. In this we think he erred.

The plaintiff gave in evidence the will of Christopher Taylor, the former owner of the land, now held by the defendants, dated in 1748, and proved on the 24th of December of that year, in which he devised the land to John Taylor, and his fishing-place thereupon to David Sanderlin, his heirs and assigns. This was followed by proceedings in partition of the estate of David Sanderlin, and certain deeds to be noticed presently.

The plaintiff, Paul B. Carter, claimed the right of fishing through the will of Joseph Carter, dated July 6th 1828. The title to the fishing-place vested in Joseph Carter by virtue of three several deeds from James Hogan and wife, dated August 22d 1796, Ann Hannis, David Thomas and Robert Hannis and wife, dated March 10th 1797, and Mary Claxton, Elizabeth Claxton, James W. Massey and Thomas Massey, dated February 6th 1805. In all these deeds the grantors recite title under David Sanderlin, antfa partition of his estate in the year 1754, referring specifically to the proceedings in partition, and, naming the jurors who made the partition. On referring to this proceeding we find the evidence which fully connects it with the deeds to Joseph Carter. It was commenced on the 3d of October 1752, upon the petition of James Claxton, Oliver Thomas, William Smith and George Rowley, married to four sisters of David Sanderlin (says the petition), and the guardian of the children of Ann Venable, another sister. The petition sets forth that David Sanderlin died intestate, unmarried and without issue. These sisters were therefore his collateral heirs. The petition prays for partition among the children of Mrs. Venable and the representatives of the late wife of James Claxton.” Mary Claxton was therefore then dead, and was represented in thfe petition by her husband. The right of the husband to proceed alone for the partition of his wife’s estate, under the former laws, is recognised in Stoolfoos v. Jenkins, 8 S. & R. 167, and expressly decided in Eckert v. Yous, 2 Rawle 136. On referring to the partition itself, we find that the property of David Sanderlin was divided into five shares, by the jurors named in the deeds to Joseph Carter ; coming to the fishery, it proceeds, “ and we have by the consent and agreement aforesaid allotted and laid out to and for the representatives of Mary, the late wife of James Claxton, all that fishing-place situate on the island of Tinicum, at the yearly rent or sum of forty shillings, lawful money of Pennsylvania, which said yearly rent is to be divided into five equal parts or shares.” The one-fifth of the lands themselves were allotted in the same form to “ the representatives of Mary, the late wife of James Claxton.” Several things are learned from this proceeding. David Sanderlin died intestate, unmarried, and without issue, and his heirs were therefore collaterals. Mary, his sister, and the wife of James Claxton, was dead, and he stood alone as the party to the petition, and the representative of her heirs. The fishery was assigned to her representatives, subject to an annual rent, somewhat in the nature of a ground-rent. These things make manifest the relevancy of the recitals in the deeds to Joseph Cartel’. Thus the deed of 1805 from Mary Claxton, Elizabeth Claxton, James W. Massey and Thomas Massey, recites that they “ stand seised in our demesne as of fee of and in the right to a fishing-place on Tinicum Island, we being heirs of James Claxton, deceased, who was one of the heirs of the estate of David Sanderlin, deceased, who died intestate, seised of the same in fee.” That recitals in a deed much less ancient than this, are evidence of pedigree, is decided in Bowser v. Cravener, 6 P. F. Smith 142 — following Paxton v. Price, 1 Yeates 500. The mistake the scrivener made in calling them the heirs of James Claxton, instead of Mary, is evident, and makes no difference in a deed so ancient, for several reasons. Mary, the wife, was not alive, and her representativos are not named in the proceeding. James Claxton was the only party, and was legally competent to conduct the proceeding, and the issue of Mary Claxton would be the issue of James also, and bear his name. Here, then, is a deed seventy years old, founding itself on a partition fifty years before, containing recitals directly connecting the grantors with the partition, and the only living party thereto, one who rightfully represented the deceased wife. . This title has stood undisputed by the heirs of Mary Claxton to this day. Unless these persons be the heirs of Mary Claxton, who are they? Since that partition one hundred and twenty years have elapsed, and no others have laid claim to represent her. In a deed so old the name of Massey evidently cannot take away from its effect. They join with the Claxtons in calling themselves the heirs, and claiming title under the partition. Evidently 'they were the issue of a female Claxton married to a Massey. These are presumptions a jury must draw in a transaction so far beyond the capability of modern proof, as will he showm presently.

We then come to the two deeds of 1796 and' 1797 to Joseph Carter, in which the grantors recite that they are the heirs of Sarah Thomas, who ivas one of the heirs of David Sanderlin, and recite the same proceedings in partition as the foundation of their title. On referring again to the proceeding in partition we find that Sarah Thomas was a sister and heir of David Sanderlin, and wife of Oliver Thomas, one of the petitioners, and that she was, therefore, entitled to ono of the five shares of the rent charged upon the fishery in the hands of the representatives of Mary Claxton. Thus their connection with the title is made plain. Now, whether the other shares had become vested in these grantors, or in the Claxtons, is not material, for after these deeds to Joseph Carter the existence of the rent is not heard of. According to the authorities to be referred to, the rent not accounted for, or any shares in the estate in the fishery, will be presumed to have been vested in them, or some of them, after this great lapse of time, and no claim by any one.

Presumptions arising from great lapse of time and non-claim are admitted sources of evidence, which a court is bound to submit to a jury as the foundation of title by conveyances long since lost or destroyed.

This is stated by C. J. Tilghman, in Kingston v. Leslie, 10 S. & R. 383. There the absence of all claim for years on the part of a female branch of a family, represented by Honorie Herrman, at an early day, was held to constitute a ground to presume that her title had been vested in the male branch. Judge Tilghman remarked : “ I do not know that there is any positive rule defining the time necessary to create a presumption of a conveyance. In the case of easements and other incorporeal hereditaments, which do not admit of actual possession, the period required by law for a bar by the Statute of Limitations is usually esteemed sufiicient ground for a presumption.” This doctrine of lapse of timéis discussed at large by Justice Rogers in Reed v. Goodyear, 17 S. & R. 352-3. “ The courts of law,” he remarks, “ pay especial attention to rights acquired by length of time. Although it has been doubted (he says) whether a legal prescription exists in Pennsylvania, yet the doctrine of presumption prevails in many instances.” He quotes and approves the language of Chief Justice Tilghman in Kingston v. Leslie, in relation to presumptions in the case of easements and incorporeal hereditaments, and adds : “ The rational ground for a presumption is where, from the conduct of the party, you must suppose an abandonment of his right.” Among the cas,es he cites is one directly applicable to a fishery: So a plaintiff had forty years possession of a piscary ; the court decreed the defendants to surrender and release their title to the same, though the surrender made by the defendant’s ancestor was defectivo: Penrose v. Trelawney, cited in Vernon 196. Justice' Sergeant said, in Foulk v. Brown, 2 Watts 214-15 : “ The court will not encourage the laches and indolence of parties, but will presume, after a great lapse of time, some compensation or release, to have been made; thus length of time does not operate as a positive bar, but as furnishing evidence that the demand is satisfied. But it is evidence from which, when not rebutted, the jury is bound to draw a conclusion, though the court cannot.”

Again he says, “ The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard for the peace and security of society. Justice cannot be satisfactorily done where parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papers which our predecessors have carefully preserved are often thrown aside, or retained as useless by their successors.” Acts of ownership over incorporeal hereditaments, corresponding to the possession of corporeal, are deemed a foundation for a presumption. “ The execution of a deed,” says Gibson, O. J., “is presumed from possession in conformity to it for thirty years: and why the entire existence of a deed should not be presumed from acts of ownership for the same period, which are equivalent to possession, it would not be easy to determine Taylor v. Dougherty, 1 W. & S. 327. And, said Black, C. J., in Garrett v. Jackson, 8 Harris 335 : “ But where one uses an easement whenever he sees fit, without asking leave and without objection, it is adverse, and an uninterrupted enjoyment for twenty-one years is a title which cannot afterwards be disputed. Such enjoyment, without evidence to explain how it begun, is presumed to have been in pursuance of a full and unqualified grant.” This is repeated by ^Justice Woodward, in Pierce v. Cloud, 6 Wright 102-14. See his remarks also in Fox v. Thompson, 7 Casey 174, that links in title are supplied from long and unquestioned assertion of title. The same principles are repeated by the late C. J. Thompson in Warner v. Henby, 12 Wright 190. The necessity of relaxing the rules of evidence in matters of ancient date was shown in Richards v. Elwell, 12 Wright 361, a case of parol bargain and sale of land, and possession for forty years. The court below held the party to the same strictness of proof required in a recent case. It was there said by this court: “ If the rule which requires proof to bring the parties face to face, and to hear them make the bargain, or repeat it, and to state all its terms with precision and satisfaction, is not to be relaxed after the lapse of forty years when shall it be ? After a lapse of fifty or sixty years it is not probable that any witness can be found above ground to state anything. Shall we wait for that period before we begin to relax ? In the ordinary course of human affairs forty years are almost as likely to carry the proofs beyond the memory of living witnesses., It is contrary to the presumptions raised in all other cases — presumptions which are used to cut off and destroy rights and titles founded upon records, deeds, wills and the most solemn acts of men. Based upon a much shorter time we have the presumptions of a deed, grant, release, payment of money, abandonment and tbe like.” And again : There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull and torpid brain.” The same principles are held in the following cases : Turner v. Waterson, 4 W. & S. 171; Hastings v. Wagner, 7 Id. 215; Brock v. Savage, 10 Wright 83. The present case is stronger than any herein cited. The title of Joseph Carter had its inception in 1796-7, and its full completion in 1805. Living witnesses on the trial carried back his actual enjoyment and possession of this fishery upon the land, now held by the defendants, to the very beginning of this century. From that time it has continued without challenge or denial by any one claiming title under Mary Claxton or her heirs. That of itself is sufficient to raise a presumption of any deeds, grants or devolutions by descent to make a good title, in Joseph Carter to the fishery devised to David Sanderlin. When to this we add the proceedings in partition, and the recitals in the deeds, together with the antecedent lapse of fifty years from the time of the partition, all doubt vanishes as to the devolution of the title by regular steps to Joseph Carter. It is quite probable that the attention of the learned judge below was not drawn to the purport of these papers, and the facts deducible directly from their face, or to the effect of the lapse of time in welding together the broken links of title, if any existed prior to the deeds to Joseph Carter. The oversight led to error in instructing the jury that the plaintiff had not shown title to the fishery devised by Christopher Taylor to David Sanderlin. The evidence was most ample, and ought not to have been disregarded by the jury.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Township of Newlin versus Davis.
    1. A railroad company, upon constructing their road along the bank of a stream, built a bridge for travel over it, and closed up a fording previously used. Held, that the bridge became a public highway, and the township was liable for injury arising from its being negligently out of repair.
    2. A county is responsible only for the bridges which it erects by virtue of the Act of Assembly. .
    3. The bridge having been built by the company under the authority of the General Railroad Law, the township had power to erect any superstructure on it to render it safe, and collect the cost from the company.
    4. When a public officer neglects keeping the highways in repair, the municipality which he represents must answer for it.
    5. Rapho v. Moore, 18 P. F. Smith 404; Meadville v. Canal Co., 6 Harris G6 ; Pennsylvania Railroad v. Duquesne, 10 Wright 223 ; Phœnixville v. Phœnix Iron Co., 9 Wright 135, followed.
    January 19th 1875.
    Before Agnew, C. J., Sharswood, Meecijr, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Chester county: No. 105, to July Term 1874.
    This was an action on the case, brought February 11th 1875, by Aaron Davis against the township of Newlin, for injuries to his horse and carriage, which had been thrown into the Brandywine creek, in consequence of a defect in the bridge, which he alleged it was the duty of the township to maintain.
    On both sides of the Brandywine, where the bridge crosses it, are public roads; near the point of crossing there had been a road which crossed the creek by a ford. Some five years since, the Wilmington and Reading Railroad was constructed; the company then made this bridge across the stream and closed up the fording; the travel was thus compelled to pass over the bridge; subsequently a road was laid out by order of the Court of Quarter Sessions over the bridge. The plaintiff Was the owner of a horse and carriage which were being used by another person, to whom he had lent them when the accident occurred.
    The case was tried February 10th 1874, before Butler, P. J.
    There was evidence that the bridge had no side rails; that -in driving across the bridge the horse had frightened at a piece of plank nailed over a hole in the bridge ; he commenced backing, and before he could be prevented, backed over the bridge into the creek, by which the horse, Carriage and harness were injured.
    There was much evidence bearing on the question of negligence; amongst which was, that the railroad company had not put any railing on the bridge, and that the township had frequently repaired the bridge.
    The defendant’s point was :
    The defendant is not responsible for the condition of the bridge, not being liable for its maintenance or repair, and therefore upon the law and the evidence in the case, the verdict must be for the defendant.
    The court answered the point in the negative.
    In his charge Judge Butler said: * * *

      “ Did the defendant'fail in its duty as charged? The defendant denies first, that any duty whatever rested upon it respecting the bridge — that it was in any way responsible for its condition; and second, denies that the bridge was not in proper condition. [The first position, just stated, is covered by a point presented to the court, which will be more maturely considered hereafter. At present we instruct you that (if the undisputed testimony bearing on this question is believed) the defendant is responsible for the condition of the bridge. It is true, the township could not have been required to build it; nor to replace it if swept away. If it had not been built, or was so removed, the public would pass through the water, as at other fords. But with the bridge there, the public travelling that road must pass over it; the ford is obstructed. It is unimportant that they could cross above, or elsewhere ; it is their right to pursue this road, and in doing so they are compelled to pass over the bridge. It was built before the road was laid out (in anticipation of it); but this also is unimportant. The defendant by keeping and maintaining it there, has adopted it as, and made it, a part of the highway, inviting and compelling those travelling there to pass over it.] Under these circumstances the duty is imposed on the defendant to keep it while there, in proper condition for use, as safe, considering all the circumstances, as it is reasonably practicable to make £.j. »» % ^
    The court then submitted the question of negligence to the jury.
    The verdict was for the plaintiff for f 83, and the court after-wards entered judgment for the plaintiff on the verdict.
    The defendant took a writ of error and assigned for error the answer to the point and the part of the charge in brackets.

      tT. W. Barnard and F. O. IJooton, for plaintiff in error. —
    The railroad company having erected the bridge for its own benefit, they are liable for its repair : Phœnixville v. Phœnix Iron Company, 9 Wright 135 ; Rex v. Inhabitants of Lindsay, 14 East 317 ; Pennsylvania and Ohio Canal Company v. Graham, 13 P. F. Smith 297. Bridges are not always esteemed part of a highway: Rapho Township v. Moore, 18 P. F. Smith 404.

      J. S. Futhey, for defendant in error.
    February 1st 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

The injury of which the plaintiff complained, in the court below, resulted, according to the finding of the jury, from the negligence of the supervisors of Newlin township, in not providing proper safeguards, for the bridge in question, over the Brandywine creek.

The road was made, and the bridge built, by the Wilmington and Reading Railroad Company, under the provisions of the Act of February 19th 1849, in order to supply the old improvements. We also understand, that subsequently to the building of the bridge, a road was laid out across it by the ordinary proceedings under the road law. In either case the road and bridge became a public highway. The evidence shows that they were so regarded, not only by the public, which constantly used them as such, but also by the township officers, who took charge of, and put such repairs upon them as they thought necessary.

To whom then was committed the maintenance of this bridge ? Unless something is shown to the contrary, this duty must devolve on the county' or township : Meadville v. The Canal Company, 6 Harris 66; Rapho v. Moore, 18 P. F. Smith 404. Rut the county-can he made responsible only for those bridges which it erects under and by virtue of the Act of Assembly. As this was not such a bridge, it follows that the county had no control of or power over it, and hence had no duty to discharge with reference to its maintenance. Primá facie then this obligation rests upon the township.

But it is argued, that as it was built by the railroad company, as part of the old road, which it was bound to supply, therefore that company was responsible for its proper construction, and also for its maintenance. That this is true so far as the first part of this obligation is concerned, there is no doubt; whether it is so as to the latter part, we give no opinion. But admitting the whole proposition to be correct, have the supervisors no duties with reference to this part of this highway ? The bridge was defective and dangerous; that the jury have found. That it was a necessary part of a public road, over which persons travelling along that road were obliged to pass, is not disputed; and we think it beyond question, that not only had the supervisors full power and authority to affix any superstructure that would render the bridge safe, but they had the right.to charge the cost thereof over to and collect it from the railroad company: Pennsylvania Railroad Co. v. Duquesne Borough, 10 Wright 223; Phœnixville v. The Phœnix Iron Co., 9 Wright 135. Having therefore the fact of the public road fully established, and observing also, that the law has clothed the township officers with the most ample power over it, and this with especial view to the public welfare and safety, we think it will not do to say that these officers have no duties concerning it which they are legally bound to discharge. Such a construction of the law would lead to the most grave consequences.

Suppose some private individual, owner of the land over which a road passes, cuts a race across that road, as he may of right do, he must bridge it at his own expense; but in the event of his neglect of this duty may the supervisors permit such an obstruction to remain, on the ground that the duty to bridge or fill it up, was with him who created it, and therefore they and their township have no responsibility with respect to it ? Or take the same case, and suppose he does build the necessary bridge, he is bound to keep it in repair: Woodring v. Forks Township, 4 Casey 355. But if the bridge dilapidates, and he does not repair it, may the supervisor refuse so to do, and thus risk the life, limbs and’property of the citizen ? Conceding the doctrine as contended for by the plaintiff in error, that there is no liability upon townships in the cases above mentioned, and the result must be, that the party injured may be wholly without redress; for he who created the obstruction, from which the damage arose, may be insolvent, dead, or out of the state.

The above stated examples, which are applicable to a corporation as well as to a person, for a corporation is but an artificial person, and the consequences flowing from them, demonstrate that to exempt the township from liability in the case in hand, would violate the plainest principles of common sense. The public authorities are charged with the maintenance of the highways; they have abundant power for that purpose. That they should keep them in a safe condition is of the highest importance to the citizen, absolutely necessary for his safety and welfare, and to that ■ end he pays his taxes. When, therefore, the officer neglects this duty, with which he is charged,.the municipality which he represents must answer for it.

The argument, that the bridge was a structure too expensive for the township to erect, has no force whatever, as it was not called upon to erect it. The expense necessary to make it safe was but trifling; one witness says it would not have exceeded twenty dollars. This surely would not have been too burdensome for this township; but if it were so, the supervisors might have obviated all danger by closing the bridge up, or removing it, and by opening the old ford by which the creek was formerly crossed.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    West Chester and Philadelphia Railroad Co. versus Jackson, Adm’x, &c., of Gray.
    1. A railroad company issued stock; becoming embarrassed, a law was passed in 1855, authorizing them to complete their road, &c., to issue preferred stock, the holders to receive a dividend of 8 per cent, from the time of payment therefor before the other stock; the dividend to be paid only out of the net earnings of the road. Other laws authorized the issue of a “ consolidated preferred stock,” to retire the stock theretofore issued; the holders to receive 8 per cent, from July 1872, before any other stock should receive a dividend. “ Consolidated” stock was issued, which was used in retiring all other stock except forty-two shares of the “ preferred” stock, the holders of which declined to convert into the “ consolidated” stock. In July 1873 a dividend was declared on the “consolidated” and “preferred” stock as it should then stand on the books, payable out of the earnings of the road for the two preceding years: Held, that the owners of the forty-two shares of “ preferred” stock were entitled to a dividend of 8 per cent, per annum from the time of payment for it in 1855, the whole amount of dividend declared being sufficient for that purpose.
    2. Taking “ preferred” stock under the Act of 1855, was a contract for the advance of money to the company and was the same as a purchase of the company’s bonds; the preferred stock was only a form of mortgage.
    3. Assumpsit was the proper form of action for the holder to recover the back dividends; the proceeding not being to enforce the declaration of a dividend.
    January 20th 1875.
    Before Agnew, O. J., Sharswoqd, Mercür, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Chester county: Of July Term 1874, No. 38.
    This was an action of assumpsit, brought July 15th 1873, by Mary Jackson, executrix, &c., of Gibbons Gray, deceased, against The West Chester and Philadelphia Railroad Company.
    After the suit was brought the parties agreed upon and filed a case stated which showed the following facts :—
    The defendants were organized as a corporation some time early it the year 1850, under an Act of Assembly approved April 11th 1848.
    On the 30th March 1855 (Pamph. L. 157) a supplement to the act of incorporation' was passed; it recited that the company would require for the completion and equipment of their road more money than could be realized tby the sale their bonds and stock then authorized; and that making a floating debt for that purpose would be onerous to the management of the road and probably unduly hazard the interest of the stockholders.
    The act enacted :—
    Sect. 1. That for the purpose mentioned in the preamble, the company should be empowered to create a preferred stock of 8000 shares of $50 each, the act to be accepted by a majority in value of the stockholders at a meeting called for the purpose.
    Sect. 2. Gave preference in taking the stock to the old stockholders.
    Sect. 4. That the holders of the preferred stock should be entitled to receive a dividend of 8 per cent per annum on its par value, payable semi-annually, from the time of payment therefor, before any interest or dividend should be paid to the holders of unpreferred stock, and no dividends on the preferred stock should at any time be paid except out of the net earnings of the road, nor until all interest on the debts of the road should have been first paid or provided to be paid out of the net earnings.
    Sect. 5. That at any time after one year from the acceptance of this act, the president and managers should have the right, and when the profits of the road should justify it and one-fourth of the unpreferred stock should require it, it should be their duty, to redeem all the preferred stock by paying the holders the full amount of their stock at its par value, “together with a sum which with all dividends and interest theretofore paid thereon, shall amount to 8 per centum per annum from the time of the original payment to the company therefor, and if not so redeemed, the preferred stockholders shall be entitled to only pro rata dividends with the unpreferred stockholders.”
    Sect. 7. That when the preferred stock should have been paid or redeemed, or the holders neglect or refuse to receive such payment upon its being tendered, the holders of the unpreferred stock should be reinstated, in all their rights, &c.

      The company accepted the Act of Assembly and issued 5764 shares of preferred stock; after this issue there remained 7858 shares of the common or unpreferred stock, a number of shares of that having been absorbed in the purchase of preferred stock.
    Gibbons Gray, the plaintiff intestate, subscribed for 30 shares of the preferred stock and paid for it in full on the 7th of June 1855 ; one-half in cash and one-half in common stock and received a certificate for the 30 shares October 27th 1855 ; he afterwards purchased from a holder four shares of preferred stock, for which a certificate was issued to him on the 20th of March 1856 ; these four shares had been paid for by the original owner on the 7th of June 1855, one-half in cash and one-half in common stock; he also purchased from another holder, two shares of preferred stock, for which a certificate was issued to him December 16th 1858; this had been paid for in like manner, June 11th 1855.
    The road went into operation for its whole length from West Chester to Philadelphia in 1859 and has continued in operation ever since.
    By an Act of April 13th 1871 (Pamph. L. 1507), for the purpose of relieving the indebtedness of the railroad company and providing for the advantageous operation of the road, the company were authorized to issue not exceeding 35,000 additional shares of preferred stock, “ the total aggregate of that issued and to be issued not to exceed $2,000,000,” and also for the same purpose to issue bonds to an amount not exceeding $2,000,000, at an interest of 7 per cent, per annum, to be secured by mortgage, &c.
    By an Act of April 3d 1872 (Pamph. L. 821), the preferred stock under the Act of 1871, was authorized to be used for improving the road, &c., and “ for retiring and cancelling all the stock heretofore issued, upon such terms as the managers may deem advisable; the said stock shall be called consolidated preferred stock and the holders thereof shall receive dividends up to 8 per cent, per annum, commencing from July 1st 1872, before the holder of any stock thereafter issued or otherwise authorized shall receive any dividends; and the holders of said consolidated preferred stock shall receive all arrears of dividends at the rate of 8 per cent, per annum before any dividend is made on the other stock.”
    By authority of these last two acts the company “ have issued 16,388 shares of consolidated preferred stock, all which has been used in retiring and cancelling the preferred and common stock of the company, with the consent of the holders thereof. In so doing they have issued to each holder of preferred stock, three shares of consolidated preferred stock for every two shares of preferred stock previously held by him; and to each holder of common Stock as many shares of consolidated preferred stock as he had previously held of common stock, no money being paid or received by the company except in adjusting fractions of shares. In this manner all the preferred and common stock of the company has been retired and cancelled, except 42 shares of preferred stock (in which are included the said 36 shares of the plaintiff) and 49 shares of common stock.
    “ No dividend upon any of the stock of the said company was ever declared or paid prior to the 7th of July 1873, on- which day a dividend of 4 per cent, upon the preferred and the consolidated preferred stock, as it should stand upon the books of the said company, on the evening of the 10th day of the same month, payable on the 16th of the same month, was declared, and subsequently paid, and the defendant on the said 16th day of July 1873, paid to the plaintiff $72, being 4 per cent, on said 36 shares of preferred stock held by her. The entire number of shares of preferred stock on the books of the company, on the evening of the 10th of July, were the 42 shares before mentioned; and the entire number of consolidated preferred stock on the books of the company, was 16,388. The said dividend of 4 per cent, was declared and paid out of the net earnings of the road within the preceding two years, after all interest due on the debts of the company had been first paid out of said net earnings. * * *
    “ On the 9th day of July A. D. 1873, the plaintiff gave notice to the defendant in writing, that she would on the 16th day of the same month demand payment from the treasurer of the said company of all dividends which had accrued upon the 36 shares of preferred stock standing on the books of the said company, in the name of the said Gibbons Gray, from the time of the original payments therefor, and in pursuance of said notice the plaintiff did on the said 16th day of July 1873, demand of the treasurer of the said company payment, as aforesaid, which payment was refused.
    “ The questions for the consideration of the court are:
    “ 1. Whether the defendant is liable in this action to pay the plaintiff such a sum as with the dividend of 4 per cent, already paid shall amount to 8 per cent, per annum upon the par value of the said 36 shares of preferred stock from the time the same was originally purchased from the company to the 16th day of July A. D. 18?3, the date of bringing this action.
    “ 2. Whether the defendant is liable in this action to pay any sum whatever to the plaintiff as interest or dividends on the said 36 shares of preferred stock.
    “If the court shall be of opinion that the defendant is liable in this action to pay to the plaintiff, as in the first question above-stated, then the court well render judgment in favor of the plaintiff for the sum of $2634.59 with interest thereon, from July 15th 1873, with costs.
    “ If the court shall be of opinion, that the plaintiff is entitled in this action to recover of the defendant any other sum of money, then the court shall render judgment for the plaintiff, for such sum as the court shall consider she is entitled to recover, with costs.
    “ If the court shall be of opinion, that the plaintiff is not entitled to recover in this action from the defendant any sum of money whatever, then judgment shall be rendered for the defendants with costs.”
    The opinion of the court was delivered by Butler, P. J.
    After showing that the company was liable to pay the arrears of the eight per cent, per annum on the preferred stock, as claimed by the plaintiff, he proceeded: * * * “ It follows that the plaintiff’s rights have been disregarded; her preference taken from her. The money which belonged to her has been given to others.
    “ For the injury thus inflicted can she maintain assumpsit ? We j believe she can. In Massachusetts, in Williston v. Michigan Railroad Co., 13 Allen 400, it is held that a stockholder cannot sue at law for an undeclared dividend. There are many reasons why this should be so, but whether we will follow Massachusetts need not be considered now. This suit is not for an undeclared dividend, but for damages resulting from breach of duty, as in Reese v. The Bank of Montgomery County, 7 Casey 78. The defendant has declared a dividend, amounting in the aggregate to $33,000. Ascei’taining the net profits, it set aside a dividend fund of this amount, which it resolved should be distributed. But, instead of distributing to the plaintiff her just proportion, the defendant gave part of what belonged to her to others, in violation of its duty. The extent of her injury is the difference between what she received and what she should have received. Now why may not this sum be recovered in assumpsit ? The action lies for breach of trust, breach of duty, arid violation of other equitable rights: Coleman v. The Columbia Oil Co., 1 P. F. Smith 74; Crossgrove v. Himmelrich, 4 Id. 203 ; McCullough v. McCullough, 2 Harris 295; Forrest v. Campbell, Leg. Int., Sept. 4th 1874. Here is no question involved respecting the receipts, disbursements and liabilities of the company, nor the discretion of directors, as where the suit is for an undeclared dividend. Every fact is ascertained, the fund applicable to distribution set aside, and a dividend declared. The fault is simply in withholding a part of the plaintiff’s just proportion and giving it to others.
    “ She must therefore be allowed to recover. But how much was withheld ? What should she have received ? This depends on the number of shares of preferred stock to participate in the distribution. The case finds that there are but forty-two, all others having been redeemed and cancelled. That this redemption was effected by means of other stock is unimportant. The result is the same as if it had been accomplished by returning the money. The preferred stock was given up, and all rights and obligations created by it are gone. The holders sold out, and in turn became purchasers of a different stock, creating other and different relations to the company. There are hut the forty-two shares remaining, all besides is common stock, no matter by what name called. The dividend ascertained and set apart was sufficient to pay eight per cent, on the par value of this from the time it was issued. And this sum, deducting the amount received, is what the plaintiff should have had. The parties agree that the balance is $2534.59. Eor this we therefore direct judgment to be entered, adding interest from July 15th 1873, when it should have been paid, as the case provides for.”
    Judgment having been entered in accordance with the order of the court, the defendants took a writ of error; they assigned for error, that the court erred:
    1. In not entering judgment for the defendant.
    2. In entering judgment for the plaintiff for more than $134.10, even if she be entitled to recover in this action.

      W. Darlington, for plaintiffs in error,
    discussed the various Acts of Assembly, and argued that the company was not permitted from the earnings of one year to pay their dividends for preceding years in which no profit was made. A dividend not declared cannot be recovered in this action: Williston v. Michigan Railroad Co., 13 Allen 400 ; Angel & Ames on Corp. 554. If the plaintiff can recover at all, it can be but for the proportion of the dividend which her thirty-six shares of preferred stock bears to the whole number of such shares existing before the conversion into the consolidated preferred stock. She is bound by the arrangement creating that stock: Curry v. Scott, 4 P. F. Smith 277. There were 5764 shares of preferred stock; the whole dividend was $33,000; of this she would be entitled to $206.10, less $72, already received: Coleman v. Oil Co., 1 P. F. Smith 74.

      P. T. Cornwell and J. J. Lewis, for defendant in error.
    The contract fixing the rights of the parties is in the Act of March 30th 1855, which was to meet the exigencies of the road as then existing, and when they should be met, the preferred stock was to be redeemed. Creating preferred stock is a mode of borrowing money and is but a form of mortgage: Redf. on Railways, sect. 237; Everhart v. W. C. & Phila. Railroad Co., 4 Casey 353. The action is not to compel the declaration of a dividend; the company has declared a dividend, and plaintiff but claims her share of a dividend declared: Montgomery v. Reese, 2 Casey 143, s. c. 7 Id. 78 ; McCullough v. McCullough, 2 Harris 295; Wilson v. Bank, 5 Casey 537.
    February 1st 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

No language could be more definite and explicit than that of the fourth section of the Act of Assembly of the 30th of March 1855, under which the rights of the plaintiff below were asserted. The earlier sections had authorized the issue by the West Chester and Philadelphia Railroad Company of eight thousand shares of preferred stock, and had directed the form of subscription, and specified the terms and mode of payment. The fourth section declared that the holders of this stock should be entitled to receive! a dividend of eight per cent, per annum, upon their par value, paya-l ble semi-annually from the time of payment therefor, in preference! of, and before any interest or dividends should be declared or paid] in favor of and to any holder or holders of the unpreferred stock! of the company. Of the 5764 shares issued in pursuance of thei act, Gibbons Gray, the plaintiff’s intestate, subscribed for thirty, and subsequently purchased six, which were transferred to him on the company’s books. Under the Acts of the 13th of April 1871, and the 3d of April 1872, a fresh adjustment of the corporate capital has been made. These acts authorized the issue of a consolidated preferred stock, into which both the preferred stock under the Act of 1855 and the common stock should be converted, the holders of the former receiving three new shares for two held by them, and the latter receiving share for share. All the holders of the original preferred stock have accepted this adjustment except the plaintiff and the holders of six.other shares.

On the 7 th of July 1873, a dividend of four per cent, was declared by the company. There had been no previous dividend, and the record shows that this was made up from the net earnings of the road during the two years preceding the date when it was declared. Upon these facts, the question arose whether the plaintiff was entitled to the dividends provided to be paid to the holders of the preferred stock, by the terms of the Act of 1855, or her rights were confined to a participation in the dividend declared in 1873 for the benefit of all the stockholders.

The payment for his shares by Mr. Gray, and the issuing of the r; certificates to him by the defendants, made as complete a contract/:, as if he had been a purchaser of bonds instead of a subscriber for: stock. And his contract rights were precisely defined by the Act] of 1855. In effect, it was an agreement for the advance of money to an embarrassed railroad company. A corporation may issue new shares and give them a preference as a mode of borrowing money, where it has power to borrow on bond and mortgage, as pret]) ferred stock is only a form of mortgage. Redf. on Railw., sect. 237; Everhart v. Railroad Co., 4 Casey 353. The preferred stock wasj] not designed to form a permanent part of the capital, for pro-,'! vision was made by the fifth section of the act for its redemption.] Mr. Gray's subscription was made upon the faith and in view off the statutory stipulations, and of these the plaintiff- has the right! to require the performance by the defendants. She is entitled to] receive just what the company agreed to pay when the 'money was obtained.

It is no answer to the plaintiff’s demand to say that her thirty-six shares were part of the 5764 shares originally issued. Her right is not limited to the proportion of the net profits divided in 1873, which would come to her if the other stockholders had retained their rights to participation in the distribution. All of them, except the holders of six shares, have entered into a new contract with the defendants, under the Acts of 1871 and 1872, by which their claims as preferred stockholders under the Act of 1855 were surrendered and extinguished. The case stands as if forty-two shares only had been issued, for they only were outstanding when the dividend was declared.

And it is no objection to the demand that it covers a period of time during which no profits were realized by the company. The proviso to the fourth section of the Act of 1855, that dividends should not he paid except out of the net earnings of the road, nor until after payment of all interest due on the company’s debts, bad reference only to the time when the dividends should be paid to the stockholders. The amount of them, and the time when they were to commence, were fixed by the enacting clause of the section. They were to be eight per centum per annum, payable semi-annually, “from the time of payment for the stock,” and before any payment to the holders of the common stock.

The dividend the defendants declared in July 1873, proved them to be in possession of ample funds. Unquestionably, the time had arrived when it was legitimate for the plaintiff to call on them to perform their contract. And her claim was properly presented in this action. This is not, in any aspect, an effort to coerce the policy or control the discretion of the directors. It is not an attempt to enforce the declaration of a dividend. That has been declared, hut the defendants have made a mistaken distribution of money they admitted to he in their hands, and which legally belonged to the plaintiff. The authorities relied on by the court below, adequately proved that an action of assumpsit was the plaintiff’s appropriate remedy. Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Helfenstein’s Estate.
    1. A note was, “ One year after date I promise to pay to the order of *.*, treasurer of the Theological Seminary, &c., the sum of $400U, at 6 per cent, interest, to be paid yearly, value received. The condition of the above donation is that the said $4000 is to form a library fund” for the Seminary, “ the principal to be preserved intact, and the interest to be annually devoted to the purchase of books,” &c., the selection to be made by the professors or by Professor Good, so long as he remains in the Seminary.” The note was handed to Good in the makers life; after his death Good notified the trustees of the Seminary that he had received the note; they resolved to accept it on the conditions named, and to buy books to the amount of one year’s income. Held, that the note was but an offer, and the death of the maker before acceptance by the Seminary was a countermand, and the amount was not recoverable.
    2. Had the Seminary accepted the note before the death of the maker, they would have assumed the duties under the condition; this would have been a sufficient consideration to sustain the promise.
    January 21st 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Montgomery county: Of July Term 1874, No. 32. In the distribution of the estate of Albert Helfenstein, deceased.
    Albert Helfenstein, a minister of the German Reformed Church, made the following note:
    “$4000. North Wales, Montgomery Co., Pa.
    June 1870.
    “ One year after date I promise to pay to the order of Rev. D. Winters, D. D., Treasurer of the Theological Seminary at Tiffin, Ohio, or his successors in office, for the time being, the sum of four thousand dollars, at six per cent, interest, to be paid yearly, value received.
    “ Due, June 1871. '
    “ The condition of the above donation is, that the said sum of four thousand dollars is to form a Library Fund for the Theological Seminary at Tiffin, Ohio (or to be devoted to the Endowment Fund of the Theological Seminary at Tiffin, 0.), the principal to be preserved intact and the interest to be annually devoted to the purchase of books for the said Library, the selection to- be made by the Professors in the Seminary (or by Prof. Good, so long as he shall remain a Professor in said Seminary).
    A. Helfenstein, Jr.”
    He died September 12th 1870, having made a will, dated June 21st 1870. He made a number of pecuniary legacies, amounting to more than the balance of his estate after payment of his debts; there was no residuary clause. Letters testamentary were issued to Jacob B. Bowman, one of the executors named in his will. No reference was made in the will to the above-stated note to Winters. At a meeting of the trustees of the Theological Seminary at Tiffin, on the 13th of October 1870, a communication dated October 1st 1870 was received from J. H. Good, chairman of the committee on the increase of the. library, informing the trustees that “some weeks previously” he had received from A. Helfenstein, the note above stated. The trustees thereupon passed a resolution, “that the board accepts said note and donation on the conditions specified in the noteand that Prof. Good “ be authorized to purchase such hooks as may be needed, to the amount of the probable income of the note for the first year.”
    The executor having filed his account, by which it appeared that the amount for distribution was $20,853.90, G. N. Corson, Esq., was appointed auditor to report distribution.
    The auditor excluded this claim in reporting distribution amongst the creditors of the decedent; after making distribution amongst the creditors there remained for distribution amongst the legatees a balance of $2481.71.
    The Seminary filed exceptions to the report; that the auditor erred in rejecting the note from the distribution.
    The Orphans’ Court overruled the exceptions and confirmed the report; this was assigned for error on appeal by the Seminary to the Supreme Court.

      B. JE. Chain, for appellants. —
    The benefit which the Seminary students would receive from the books was a sufficient consideration: Austyn v. M’Lure, 4 Dallas 226; Hind v. Holdship, 2 Watts 105; Mercer v. Lancaster, 5 Barr 162; Esling v. Zantzinger, 1 Harris 53; Dartmouth College v. Woodward, 4 Wheat. 642; Yard v. Patton, 1 Harris 278; Caul v. Gibson, 3 Barr 416; Chambers v. Calhoun, 6 Harris 13. The note with the condition was a declaration of trust, requesting the seminary to establish a library; the consideration therefore was sufficient: Barnes v. Perrine, 12 N. Y. Rep. 18. The Seminary accepted the note and on the faith of it incurred liabilities; this was sufficient consideration: Collier v. B. E. Society, 8 B. Monroe 68; Morton v. Noble, 1 La. An. 192. It is an executed trust: Ellison v. Ellison, 6 Ves. 656; 1 Lead. Cas. in Eq. (H. & W.) 208; Hughes v. Stubbs, 1 Hare 476; Morgan v. Millison, Law Rep. 10 Eq. 475. The legatees are themselves but volunteers; a voluntary bond is in the nature of a legacy ; Ramsden v. Jackson, 1 Atk. 292; Villiers v. Beaumont, 1 Vernon 101; Fairbeard v. Bowers, 2 Id. 202; 2 Wms. on Ex’rs. 914; Toller on Ex’rs. 283; Lechmere v. Carlisle, 3 P. Wms. 222; Candor’s Appeal, 3 Casey 119.

      B. M. Boyer (with whom were T. W. Bean and C. S. Stinson), for legatees, appellees.
    A subscription to a charity not accepted, in the life of the donor, is revoked by his death: Phipps v. Jones, 8 Harris 260. The paper was but the declaration of an intended gift: 1 Blacks. Com. 441; 2 Kent Com. 138; Colteen v. Missing, 1 Madd. Ch. Rep. 176; Hooper v. Goodwin, 1 Swanst. 486; Pecot v. Sanderson, 1 Dev. (N. C.) Rep. 309 ; Fink v. Cox, 18 Johns. R. 145; Noble v. Smith, 2 Id. 52. A parol unexecuted promise to make a gift inter vivos is void: Yard v. Patton, 1 Harris 285.
    February 1st 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

Had the decedent united with others as a subscriber to the fund for the increase of the library of the Theological Seminary at Tiffin, Ohio, the note upon which the appellant made his claim might have been sustained under the case of Caul v. Gibson, 3 Barr 416. Or, if the note had been accepted by the trustees, before the death of the promissor, it would have stood on the footing of the principle applied in Chambers v. Calhoun, 6 Harris 13; for in such case, if the trustees assumed the duty imposed upon them by the terms of condition of the note, it would have been a sufficient consideration to sustain the promise. But when the decedent died, the trustees had not accepted the note, and his death was a countermand in law of the offer, for such it must be considered until accepted. In Phipps v. Jones, 8 Harris 260, where there was a subscription with others for the benefit of a proposed association to build a church, it was held that it was a mere proposal, revocable until the association was formed and the promise accepted, and the death of the subscriber was such a revocation. The promise then was a nudum pactum. Nor can it be sustained as a declaration of trust. If it could, every parol promise wfithout consideration might. It matters not who the promissee is, whether a private individual, a corporation or charity. Mr. Helfenstein held no fund or property of which a declaration of trust could be predicated, and which might be enforced in equity as against mere volunteers. Such was the case in Ex parte Pye, 18 Ves. 140 ; Ellison v. Ellison, 6 Id. 656 ; Richardson v. Richardson, Law Rep. 3 Eq. 686; Morgan v. Mallison, Id. 10 Eq. 475. Had the donor in this case held stocks or bonds, or notes of a third person, and had promised to give such property or securities to this charitable purpose, it might, perhaps, have been within the principle of these decisions, which are founded in reason and good sense. There is no prescribed form for the declaration of a trust. Whatever evinces the intention of the party that the property, of which he is the legal owner, shall beneficially be another’s, is sufficient. V. O. Sir W. Page Wood said in Richardson v. Richardson, supra, “the real distinction should be made between an agreement to do something when called upon, something distinctly expressed to be future in the instrument, and an instrument which affects to pass everything, independently of the legal estate.” But the case now before the court, of amere promise to pay money in futuro, is evidently far out of the reach of any of these eases.

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


text:
    Lewisburg, Centre and Spruce Creek Railroad Co., to use of J. H. Miller et al, versus Stees.
    1. Plaintiff, ll for use,” &c., declared on a joint and several obligation, guarantying $45,000.; defendant pleaded in bar that plaintiff had brought suit on the same obligation against Mensch, another of the obligors, and had recovered judgment for $74, which was satisfied; plaintiff replied that the use-plaintiffs had advanced money to pay a deficiency of the guaranty, the other obligors, including defendant, agreeing that it should stand for their use, and each would pay his share, and that the judgment recovered was for MensclVs share. Held, these pleadings made no issue for the jury, but the parties having gone to trial on the merits, the court would not reverse on that ground.
    2. In Pennsylvania, if parties go to trial without a formal issue, it is an agreement to waive matters of form and try on the merits.
    3. Assuming the replication to be a new cause of action, the defendant might have demurred, but having gone to trial on the merits, it stood as if it was a new declaration, and the defendant had tried on the merits without a plea.
    4. In an action of debt against the defendant, on the agreement of each to pay his proportion of the deficiency, the judgment against Mensch for his. share, although brought in the name of the obligor, would not be a bar.
    January 26th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Passon and Woodward, JJ.
    Error to the Court of Common Pleas of Union county: Of January Term 1874, No. 227.
    This was an action of debt, brought December 9th 1871, by the Lewisburg, Centre and Spruce Creek Railroad Company, for the use of J. E. Herr, D. H. Miller and Oliver P. Mensch, against Samuel Stees.
    The suit was on a guaranty signed by the defendant, D. H. Miller and J. E. Herr, two of the beneficial plaintiffs, Abraham Mensch and fifty-seven others, under their seals, of which the material parts are :
    “We the undersigned, for value received, do hereby jointly and severally bind ourselves, our heirs, &c., to the Lewisburg, Centre and Spruce Creek Railroad Company, and do hereby guaranty to said company good and valid subscriptions to the stock of said company to the amount of $45,000 * * *, to be applied: 1. To pay for what right of way cannot be obtained, and to grading said road * * * from the western boundary of the borough of Lewisburg to the western boundary of the borough of Mifflinburg. Said subscriptions to be paid as the work progresses for grading said line, and if any instalments are not paid as called for by said company to pay estimates for contractors, then the guarantors to this agreement will pay the same on ten days’ notice. The work of grading said road to be commenced within three months, and to be completed and cars running within one year from the date of this guaranty. The said company to proceed with track-laying as rapidly as the road is graded from Lewisburg depot west to Mifflinburg. "VYe further guaranty to said company as much of the right of way between Lewisburg and Mifflinburg as lies in our power, in the following manner: 1. To procure general releases gratis as far as they can be obtained. 2. To procure from such other landholders as we can, an agreement to take stock in said company for the right of way and damages, in all cases to be made as reasonable as can be. We further guaranty to said company ground sufficient for freight and passenger depots, near or within the borough limits of Mifflinburg, in a location satisfactory to said company and suitable for said purpose. Also a general release for the right of way through the entire limits of our borough of Mifflinburg, both to be free of all charges whatsoever. Witness our hands and seals this 14th day of July, A. D. 1870.”
    The declaration set out the guaranty in totidem verbis, and averred, “ that said guaranty has not been complied with by said Samuel Stees, or any other of the guarantors, in this, that the $45,000 of good and valid subscriptions to the capital stock of said railroad company has not been procured or paid, nor has the guaranty been paid, as the work of grading, &c., progressed and money was needed, though due notice was given, nor have instalments been paid as called for by said company for contractors, nor have the guarantors paid, though duly notified, nor has defendant or other guarantors procured or endeavored to procure right of way since date of said guaranty. The said guaranty, not having been fulfilled by defendant or any other of the guarantors to said paper, and there being a large deficiency, the said defendant has become liable to pay plaintiff the same,” &c.
    The defendant pleaded a special plea, which after setting out the guaranty, proceeded:
    ■ “ That on the 11th day of November 1872, the plaintiffs brought suit on the same guaranty, &c., against the aforesaid Abraham Mensch, one of the aforesaid joint and several co-obligors with the defendant, &c., upon which the plaintiff has declared in this suit, before (x. N. Youngman, Esq., one of the justices of the peace, &c., whereupon the same guaranty was given in evidence in the cause before the said justice, and a hearing was had upon the merits, and after such hearing the justice gave judgment for the said Lewis-burg, Centre and Spruce Creek Railroad Company, for the use of the said D. H. Miller, J. E. Herr and Oliver P. Mensch, for the sum of $72.50, with costs, &c., and that on the 16th day of November 1872, the said Abraham Mensch took an appeal from the said judgment of the said justice, to the Court of Common Pleas, &c., which appeal was entered in said court on the 18th day of November 1872. That on the 5th day of December 1872, the plaintiff in said sitit filed in said court his declaration against the said Abraham Mensch, in which he declared upon the same guaranty upon ■which he has declared in this suit against him, the said Samuel Stees. That the said Abraham Mensch entered a rule, &c., to have arbitrators chosen in said suit, according to the provisions of'the compulsory arbitration laws, &c., * * * and plaintiffs and the said Abraham Mensch agreed upon Jesse Schreyer, &c., as the arbitrators, * * * whereupon the said arbitrators after hearing the parties, * * * rendered an award against the said Abraham Mensch, for $74.43, which award so found, the said plaintiffs, on the said 26th day of April 1873, did enter in the Court of Common Pleas, &c., and had judgment entered on the same against the said Abraham Mensch, for the amount of the aforesaid award, &c. That on the 17th day of May 1873, the said Abraham Mensch paid to the plaintiffs in said suit $74.43, and all interest then due thereon, in full satisfaction and payment of the aforesaid award, and also paid costs of said suit. * * * And -this the said Samuel Stees is ready to verify; whereupon he prays judgment if the said Lewisburg, Centre and Spruce Creek Railroad Company, for the use of the said D. H. Miller, J. E. Herr and Oliver P. Mensch, ought to have or maintain their aforesaid action therefor against him, after having brought suit as aforesaid against the said Abraham Mensch, upon the said guaranty as aforesaid, as is declared upon in this suit, and recovered judgment in the same; and the said judgment, interest and costs being paid by him, the said Abraham Mensch, in full as aforesaid.”
    In another plea defendant averred that the plaintiffs had been paid in full for all claims against them.
    The replication was: “ That the guaranty was executed and delivered by the obligors therein set forth, to said railroad company, not only as a joint obligation, but as joint and several, leaving it optional with plaintiff to bring separate suits against the obligors who signed the same, the defendant being one of them. That the obligors failed to make up the amount of $45,000, good and valid subscriptions to the stock of said railroad company, in accordance with the terms and conditions of said writing, leaving a large deficiency on the subscription, say some $16,000. Upon a fair and equitable division among the solvent obligors to said writing, it was agreed that each obligor’s share of the deficiency of said guaranty, so far as relates to the subscription to be made, was $230. That when that part of the Lewisburg, Centre and Spruce Creek Railroad extending from Lewisburg to western boundary of Mifflinburg was completed, said company refused to run their locomotives and cars thereon until the balance of said $45,000 was paid or advanced; and the obligors to said instrument of writing, including the defendant, being very anxious to have the cars run on said road, D. H. Miller, J. E. Herr and O. B. Mensch were induced to advance to said railroad company the balance of the $45,000, with the agreement that said obligation should stand for their use, and to collect thereon from such of the guarantors who might refuse to pay up their share, the defendant and other obligors assenting and agreeing thereto. That the said railroad company, being so advanced, did commence and continue running their locomotives and freight and passenger cars on said railroad mentioned in the bond of guaranty. That the defendant, having neglected to pay his share of said deficiency, suit was brought to recover his share of the same, to wit, the amount agreed upon as aforesaid. That Abraham Menseh, the obligor referred to in said special plea of defendant, agreed also to pay his share, $230, and did pay thereon, so as to reduce it to $72.50, but neglected to pay that balance, although frequently promising so to do, he was sued before George N. Youngman, Esq., a justice of the peace, to recover the same. In said suit before said justice nothing was embraced or passed upon, but the balance of said Abraham Mensch’s own share of the deficiency of $45,000, good and valid subscriptions to said railroad company, nor was any claim made in that suit in relation to procuring right of way between Lewisburg and Mifflinburg, nor in relation to grounds for'depots. That there was nothing investigated before George N. Youngman, Esq., the justice of the peace aforesaid, but to ascertain the balance due by said Abraham Menseh on his share of said deficiency of subscription, which share was found to be $74.43, for which said justice entered judgment, and from which judgment defendant appealed and entered a rule to have arbitrators chosen. Arbitrators were chosen, plaintiff’s claim established, and defendant making no defence, the arbitrators, on the 26th of April 1873, filed their report, finding in favor of the plaintiff and against Abraham Menseh, $74.43, which was for balance of said share of Abraham Menseh. • That amount of said award was paid over to George B. Miller, one of the firm of George F. Miller & Sons. This arbitration arrangement was evidently a manoeuvre on part of some of the obligors in said guaranty to try to get clear by some imagined technicality from paying their honest proportion of the deficiency of said guaranty of stock. It is denied by plaintiff that the suit against Abraham Menseh, referred to in defendant’s special plea, was for the same matter for which the present suit against Samuel Stees was brought.”
    In reply to defendant’s second special plea filed, plaintiffs say, “ that said railroad company has not been paid in full prior to the institution of this suit or since by the obligors, but have been advanced by Dr. D. II. Miller, J. E. Herr and Oliver P. Menseh, with the understanding and agreement that said guaranty should stand for their use to collect from such of the obligors who should neglect to pay. That defendant, Samuel Stees, has not paid one cent on said guaranty; and this the said plaintiffs are ready to verify, therefore judgment is prayed for damages,” &c.

      There was no rejoinder.
    The case was tried December 18th 1873, before Bucher, P. J. D. H. Miller, one of the beneficial plaintiffs, testified, that after the execution of the guaranty, work on the road proceeded quite rapidly and calls were made for money in pretty quick succession. The subscribers failed to pay the instalments, but the company finished the road nearly for the cars to run; at this time there was a considerable deficiency. The president of the company, on the 20th of September 1871, said the road was done, but the company would not run it until the subscribers paid the deficiency of their subscription, amounting to $7000 or $8000. On that day, O. P. Mensch, Iierr and witness gave their obligations for the deficiency, supposing each guarantor would pay his proportion. A meeting of the guarantors was held; the defendant was present; the amount each guarantor was to pay was discussed; it was not known what the share of each would be; it was agreed each should pay $175 ; defendant had given his note for this sum, but it was claimed it was more: all agreed to pay the amount of their shares of the deficiency; the only question was the amount. The amount was fixed at $220 for each guarantor to pay on the settlement. Defendant did not agree that his liability on the guaranty was $220. The beneficial plaintiffs gave their obligations to the railroad company for between $7000 and $8000; the company accepted it; $3700 were paid in cash, and the company accepted the note of the beneficial plaintiffs for the balance as cash; the company never assigned the guaranty to the beneficial plaintiffs.
    J. E. Herr, one of the beneficial plaintiffs, testified that the defendant agreed to pay whatever the amount might be, whenever they were satisfied what it was; it was ascertained his quota would be $230.
    There was other evidence that the beneficial plaintiffs had paid the deficiency in the $45,000, and that “ every exertion was made to collect to the stock.”
    The defendant gave in evidence the record of a suit, plaintiff against Abraham Mensch, originally before a justice of the peace, showing that the same breaches were alleged in that suit as in this, and judgment against Mensch, as set out in the plea.
    Plaintiffs, in rebuttal, gave evidence that Mensch made no defence in the suit before the justice against him, but an appeal was taken.
    The court instructed the jury to find for the defendant; the jury so found.
    The plaintiffs took a writ of error and assigned this instruction for error.

      G. P. Miller, for plaintiffs in error.

      W. Van G-ezer and J. W- Oomly, for defendant in error.

      February 8th 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

If we are to decide this cause on strict technical rules, as we have been .earnestly urged to do, in order to show that there is still such a thing as special pleading in Pennsylvania, this judgment must be reversed. The plaintiffs declared upon a joint and several bond, executed by the defendant below -with others, guaranteeing to them good and valid subscriptions to their stock to the amount of $45,000, to be applied in a certain way, and alleging a breach. To this the defendant pleaded in bar that the plaintiffs had sued upon the same bond another of the obligors, one Abraham Mensch, and recovered a judgment thereon for the sum of $74.43, and that said judgment had been paid and satisfied. To this plea the plaintiffs filed a replication, admitting the judgment, but averring that the beneficial plaintiffs — two of whom were co-obligors — bad advanced the money to the railroad company, and that the other solvent obligors had agreed that the bond should stand for the use of the beneficial plaintiffs, to recover thereon their several proportions— the defendant and other obligors assenting and agreeing thereto; that Abraham Mensch also was a party to this agreement, and the judgment pleaded was for so much of his share of this deficiency as remained unpaid. There was no rejoinder to this replication. In strictness then there was no issue to be tried by the jury. Put the parties chose to go to trial on the pleadings without a formal issue, and in this state it is settled that an omission to compel the opposite party to perfect the pleadings beforehand, is a tacit agreement to waive matters of form, and try the cause on the merits, just as going to trial on a short plea is, according to our practice, a waiver of the right to demand a plea in full form; Sauerman v. Weckerly, 17 S. & R. 116 ; Collum v. Andrews, 6 Watts 516. The plaintiffs then could not ask this court to reverse on this ground. And neither can the defendant set up the imperfection or defects of the pleading, all which he has waived by going to trial on the merits. He contends now that the replication was a departure from the declaration. Concede that it was — that it was a new cause of action — he might have demurred on that ground. But who ever heard of a departure in pleading being set up as a defence upon a trial before the jury ? The case stood as if the replication had been the original declaration, and the defendant' having gone to trial without a plea, it was a tacit agreement to try on the merits; in other words, a general traverse. Is it to be doubted then, that, had the declaration been in debt upon a special agreement by the obligors with the beneficial plaintiffs, that each of them should pay their proportion of the deficiency, and alleging what the deficiency was, the judgment against Abraham Mensch, one of those co-obligors, for his proportion of that deficiency, would have been no bar to a recovery against Samuel Stees, another of them ? Yet, that was the issue, as it must be now regarded to have been before the jury. There was certainly evidence which went to support the allegations of fact in the replication. The record of the suit against Mensch showed that it was for what remained unpaid of his share of the deficiency. True, the suit was in the name of the legal plaintiffs, the obligees in the bond; but as the proceeding was commehced before a justice of the peace, that did not determine its true character under the Act of the 20th March 1810, which provides, that on an appeal “ the casé shall be decided on its facts and merits only; and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action shall prejudice either party in the court to which the appeal shall be made: Comfort v. Leland, 3 Whart. 81. We think, therefore, that the learned court below erred in instructing the jury to find for the defendant. As the case goes back for another trial, it will be well for the counsel of the plaintiffs below to have the record put into the proper shape, as the power of amendment now possessed by the courts, both as to the form of the action and the names of the parties, will enable them to do.

Judgment reversed and venire facias de novo awarded.