author: Mr. Justice Trunkey

text:
    Peterson’s Appeal. Peterson’s Estate.
    1. Testator gave an estate for life to each of his children, and provided that if any of said children should die leaving issue, said issue should, if under age, receive the income of their parents’ share until they attained their majority, and if of age, then receive their parents’ share at once. Held, that a minor grandchild took a vested interest, postponed only until the attainment of full age.
    2. Where a discretionary power of sale is given by will to trustees, no conversion of realty into personalty will take place until a sale is actually made. To work a. conversion the direction to sell must be positive, irrespective of contingencies and independent of discretion.
    January 20th 1879.
    Before Sharswood, C. J., Mercur, .Gordon, Paxson, Trunkby and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 3.
    Appeal of Thomas K. Peterson and Israel Peterson, surviving trustees under the will of John Peterson, deceased, from the decree of the court confirming the adjudication of the account of said appellants.
    John Peterson died December 27th 1855, leaving a will by which he devised all his estate, real, personal and mixed, unto Thomas K. Peterson, Israel Peterson and Edwin Mitchel, and to the survivors and survivor of them and to the heirs and assigns of such survivor in trust: first, for the payment of his debts ; secondly, for the payment of certain annuities to his wife and one of his daughters; and thirdly, for the payment to each of his other eight children of the income of one-eighth part of his residuary estate during their respective lives, with the privilege of obtaining certain loans out of the moneys of the estate, for which interest was to be charged by the trustees. As to the disposition of his estate after the death of his children the testator provided as follows:
    “ And from time to time as any of my said children, namely: the said Eliza W. Boyle (if she survive her husband and return to her family with her children, and to the Protestant faith, but not otherwise), the said Thomas K. Peterson, Israel Peterson, Alexander Peterson, Alfred Peterson, Francis Peterson, Mary Ann Mitchel, Jane Peyton, and John Howard Peterson, shall die leaving lawful issue, such issue, if under lawful age, shall be entitled to receive the interest and income of their parents’ share equally among them —if one, solely, and if more than one, in equal parts; and as they severally attain such lawful age, they are to receive and be paid their share and portion of the principal or capital fund of which their parent had received the interest, and income, the loan, if any, to such parent to be taken as part thereof; and those of my said children leaving lawful issue of lawful age, such issue shall receive and be paid the said principal or capital fund of which their parent had received the interest and income, such loan to be taken as a part, if one solely, and if more than one, equally among them. But in case any of my said children should die without leaving such lawful issue, then and in that case the share and part of such child so dying, as well the real as the personal estate, shall lapse and fall back into my estate and be divided among such of my said children as may be then living, and -the issue of such as may be dead, in the way and manner as I have directed in relation to their particular-share of my estate.
    “ And in order to enable my said trustees to pay off and settle any of the shares and portions of my estate which may from time to time become due and payable on the decease of any of my said children, it shall and may be lawful for them, my said trustees, to take any of the unappropriated funds of my said estate, or to sell any of my real estate for such purposes, and in order to arrive at the value of such share at the time of the decease of any such child or children, it shall be lawful for the said trustees, or the survivors or survivor of them,' with the child or children, if of full age, and the next friend or guardian of such as may be under age, mutually to choose a judicious and disinterested citizen, and these citizens, if an even number, to choose another, or in case they cannot agree upon such persons, then to apply to the judges of the Orphans’ Court to appoint such discreet and judicious persons, who, upon being duly qualified, shall ascertain the value of such share or portion, and in order to do so, they shall make a just and fair valuation of all the real and personal estate — that part which is subject to a life-estate shall be valued but not divided and paid until after the falling in of such life-estate — and upon such share being so ascertained and a due record thereof made or being confirmed by said court, any of my said children shall be at liberty to take the same at such valuation, the eldest male having the first choice and so on to the youngest, and if none of the males will take, then to be offered to the eldest female, and so on-to the youngest, and if none of them will accept thereof (my- meaning is that the part which my said children may elect to take as above mentioned, is that part w-hieh may be found necessary to be sold to raise a fund to pay off the share of the child arriving, at full age as above set forth), then and in such case the same shall be sold by my said trustees, or the survivors or survivor of them, who I also appoint executors hereof, at public sale to the highest and best bidder, any of my said children having the right to become purchasers thereof, such sale to be made in the same manner and on the like terms and conditions as I have hereinafter ordered and directed as to my estate generally, and with such funds to pay and satisfy'the person entitled to such share, his or-her portion thereof; and the like proceedings shall.be had as often as it may be required to ascertain and pay off such share or shares.”
    The testator then nominated the trustees above named to be executors of his will, and gave them full powers whenever they might deem it advantageous to his estate, or “ for the purpose of more easily making partition and division thereof among the parties interested,” to sell the whole or any part of his estate and to invest the proceeds or so much thereof as might not be required for the uses of his will in other real estate or in securities yielding income. He also gave them full powers of lease, repair and improvement of his real estate.
    John Howard Peterson, one of the children of testator, died intestate, on May 29th 1875, leaving a widow, Caroline E. Peterson (nowr Speakman) and one child, Carrie May Peterson, who after-wards died on November 21st 1877, a minor. ■ Edwin Mitchel, one of the trustees having died, the appellants, as surviving trustees, on January 29th 1878, filed their separate account in the Orphans’ Court of Philadelphia county. Mrs. Speakman, the appellee, appeared before the auditing judge and claimed, as next of kin to Carrie May Peterson, to receive the income of John Howard Peterson’s share of the estate accruing since the last payment to Carrie May Peterson, and also claimed the principal of said share. The auditing judge decided that letters of administration must be taken out on the estate of Carrie May Peterson, and awarded the accrued interest of John Howard Peterson’s share to such administrator. He also decreed that the principal of said share “be valued and paid unto the said administrator according to the will of the testator.”
    To this adjudication the trustees filed the following exceptions:
    1. The learned judge erred in deciding that Carrie May Peterson died seised of a fee in the share of testator’s real and personal estate, bequeathed and devised in trust for her father, J. Howard Peterson, for life.
    2. In deciding “that at the death of John Howard Peterson, his daughter, Carrie May Peterson, acquired an absolute vested interest in the share of the testator’s estate given to her, and that this interest was not divested by reason of her death under the age of twenty-one years; but that it passed, under the intestate law, to her mother as her next of kin.”
    3. In not deciding, that upon the death of Carrie May Peterson, a minor, her father’s share lapsed into the residuary estate of John Peterson.
    4. In deciding, that the will of John Peterson worked such a conversion of John Howard Peterson’s share, that the real estate unconverted at Carrie May Peterson’s death, passed as personalty to her mother.
    5. In awarding the share of John Howard Peterson in the real estate of testator, to the administrator of Carrie May Peterson.
    The court dismissed the exceptions and confirmed the adjudication from which decree the trustees took this appeal.

      Frank P. Prichara and Nathan II. Sharpless, for appellants.
    —Where the gift consists merely in a direction to pay or divide at a certain age, the gift is not vested until the time for payment arrives: Seibert’s Appeal, 1 Harris 501; Moore v. Smith, 9 Watts 403; Leake v. Robinson, 2 Mer. 363.
    Where, however, the gift of income precedes, and is distinct from that of the principal, the devise is not vested but contingent, and especially is this the case where the gift is to a class, and the principal is not to be taken out or separated from the estate until the time of payment arrives: 1 Roper on Legacies *581; Batsford v. Kebbell, 3 Vesey 363; In re Ashmore’s Trust, L. R. 9 Eq. 99 ; Spencer v. Wilson, L. R. 16 Id. 501.
    The question raised in this case has never been decided in Pennsylvania, but was referred to by Chief Justice Sharswood, in Provenchere’s Appeal, 17 P. F. Smith 463.
    To establish a conversion, the will must direct it out and out, irrespective of all contingencies. The direction must be positive and explicit; an imperative direction to sell: Anewalt’s Appeal, 6 Wright 414-6.
    A discretionary power of sale given to executors or trustees does not operate as a conversion until the power is exercised: Bleight v. The Bank, 10 Barr 131; Chew v. Nicklin, 9 Wright 84; Edwards’s Appeal, 11 Id. 144; Page’s Estate, 25 P. F. Smith 87.
    Where the exercise of the power of sale is made to depend on any contingency, no conversion takes place before actual sale: Henry v. McCloskey, 9 Watts 145; Cobel v. Cobel, 8 Barr 342; Nagle’s Appeal, 1 Harris 260; Stoner v. Zimmerman, 9 Id. 399; Miller & Bowman’s Appeal, 10 P. F. Smith 404.
    The selection of appraisers by the devisees, and the refusal of any of the devisees to take at the appraisement, are such contingencies as will prevent an immediate conversion: Boshart v. Evans, 5 Whart. 551; Anewalt’s Appeal, 6 Wright 414; Neely v. Grantham, 8 P. F. Smith 433.
    If the parties cannot agree upon the appraisers, how is the valuation to be .made ? The will .provides that the Orphans’ Court may appoint appraisers, but the will cannot confer jurisdiction upon the court. The Orphans’ Court has no jurisdiction over such an appraisement, except to set it aside for fraud: Boger’s Appeal, 10 Barr 440.

      Thomas N. Speakman and F. Spencer Miller, for appellee.—
    Postponement of the possession or enjoyment of an estate or interest in property does not prevent its vesting, where the suspensive expressions refer to the time of possession, and not to the gift itself: Smith on Executory Interests, secs. 309, 310; Candler v. Dinkle, 4 Watts 143; Reed v. Buckley, 5 W. & S. 517; 1 Jarmon on Wills *727; Fearne on Remainders *552, note g. And where, as here, the whole interest or income is given in the intermediate time for maintenance or otherwise, the property will be held to be vested: Branstrom v. Wilkinson, 7 Ves. 421; Smith on Executory Interests, sec. 328; Provenchero’s Appeal, 17 P. F. Smith 463.
    Conversion is a question of intention, to be gathered from the whole will: Chew v. Nicklin, 9 Wright 84.
    There is no estate given to any of the children, in any particular part or share of the realty, and the only means they have to obtain any rights, given them under the will, is by enforcing the execution of the trust reposed in the trustees: Morrow v. Brenizer, 2 Rawle 189.
    As a further test of conversion, it is obvious that none of the children have any interest in the realty, which would be bound by a judgment, and if they take by election, under the will, it could only be as purchasers : Allison v. Wilson, 13 S. & R. 380 ; Morrow v. Brenizer, 2 Rawle 185; Dundas’s Appeal, 14 P. F. Smith 325 ; Hannah v. Swarner, 3 W. & S. 230; Silverthorn v. McKinster, 2 Jones 72.
   Mr. Justice Trunkey

delivered the opinion of the court, February 10th 1879.

Did the testator intend to attach to the devises and bequests to the issue of his children a condition precedent that they should arrive at lawful age ? The answer is in the terms of the will. Interest and income of both real and personal estate of the share of each child are payable during his or her life, and at death, without leaving lawful issue, such share shall lapse and fall back into his estate and bo divided among such of his children as may then be living- and the issue of such as may be dead, in the way directed in reference to their particular shares. In case any of his children “shall die, leaving lawful issue, such issue, if under lawful age, shall bo entitled to receive the interest and income of their parents’ share equally among them, if one, solely, if more than one, in equal parts. And as they severally attain such lawful age, they are to receive and be paid their share and portion of the principal or capital fund of which their parent had received the interest and income. * * * And those of my said children leaving lawful issue, of lawful age,such issue shall receive and be paid the said principal or capital fund of which their parent had received the interest and income.” Full directions are given for ascertainment and settlement of the portions of his estate, which may from time to time become due and payable on the decease of any of his children. In every part of the will, bearing on the subject, the corpus of each child’s share is treated as given to the lawful issue, and not a phrase indicates that any such issue, under age, is not on an equality with those of full age. The difference is simply this, that the one of majority receives his portion immediately, while payment to the one in his minority-is postponed, he receiving the interest and income in the meantime. In respect to the issue of his children, the gift of the interest and income is not distinct from the principal. Hence it need not now be said whether the doctrine in Spencer v. Wilson, Law Rep. 16 Eq. C. 501, where the income was the subject of one gift and the capital of another, will be adopted in Pennsylvania. Under John Peterson’s will, that the lawful issue of his children take a vested estate, though in their minority when the parent dies, we consider not doubtful, but if it were, the doubt should be resolved against a contingent estafe, for it is a rule of interpretation that, in doubtful cases, estates are to be held vested rather than contingent.

Does the will work an equitable conversion of the real estate? This is the only remaining inquiry, for it is not alleged that there has been conversion by a sale. In order to arrive at the value of a share at the time of the decease of any child, the testator directs that' appraisers be appointed to “ make a just and fair valuation of all the real and personal estate,” and upon such share being so ascertained, any of his said children shall be at liberty to take the part necessary to be sold to raise a fund to pay off the share of a child arriving at full agé, the first choice given to the males in order of seniority and next to the females in like order, and if none of them will accept, then the same shall he sold by the trustees, “ and with such funds to pay and satisfy the person entitled to such share, his or her portion thereof.”

In another part of the will a discretionary powér is given to the trustees, subject to consent of William Spooner, to sell the whole or any part of the estate, and to invest the proceeds in other real estate or personal securities, as they may deem best.. The appellees admit that this discretionary power is no conversion. They also concede that conversion is a question of intention, to be determined by the terms of the will; and contend that the terms of this will “ decisively fix upon the land the quality of money.” But, if this be so, what mean the various directions to be observed before the trustees can sell any part to raise money to pay off a share ? Appraisers shall be chosen by the trustees and surviving children, if they can agree, but if they cannot agree, the appraisers shall be appointed by the court, to make a just and fair valuation of all the real estate, as well as personal, and ascertain the value of the share or portion of the deceased child. Upon due record of the valuation, or confirmation thereof by the court, the children may take the land, and should they so elect, the trustees can make no sale. Their power to sell depends upon the refusal of all the children to accept the share of the land at the valuation. And the like proceedings shall be had as often as it may be required to ascertain and pay off such'share or shares.” Here are contingencies which may prevent a sale of any part of the real estate, during the life estates given to the children. The will works no conversion of land into money. Unless there be an imperative direction to sell, irrespective of contingencies and independent of discretion, conversion will not take place until the sale is actually made: Anewalt’s Appeal, 6 Wright 414; Henry v. McCloskey, 9 Watts 145.

Moreover, this will, in whole and in its parts, shows that the testator contemplated that his real estate should remain in the trustees until those in remainder become entitled to possession. He gave them power to lease and collect rents. He gave them discretionary power, conditioned that William Spooner first assent, to repair, improve and build upon any of his lands, and defray the expensed out of his estate, and also to sell and re-invest in other real estate to be held for the same uses. He repeatedly directs payment of the “interest and income.” lie wills that if any child die without lawful issue, his share in the real and personal estate shall lapse. He made provision for adjustment of the share of a child who should die leaving issue. Wo discover no intention to convert. Many provisions of this will are vain, if the real estate is fixed with the quality of money.

We are impelled to the conclusion, that so much of the decree as rests upon the basis that Carrie May Peterson’s interest in the real estate was converted, is erroneous.

Decree reversed, and record ordered to be remitted for further proceedings.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Kase versus Greenough.
    1. A court of equity may place one on terms, who applies to be made a party to proceedings and may require security as to costs, and fix the amount of a master’s fee.
    2. Where a bond was given as such security for costs in equity proceedings and the decree was adverse to the applicant, in an action of debt upon the bond, a copy thereof was filed, together with a copy of the decree, which included an order fixing the costs. The defendant averred that the paper did not entitle plaintiff to judgment for want of sufficient affidavit of defence. Held, that judgment was properly entered thereon.
    January 20th 1879.
    Before Siiarswood, C. J., Mbrcur, Gordon, Paxson, Irunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1878, No. 42.
    Debt by William Greenough, individually, and as trustee for certain bondholders, against Simon P. Kase and Peter C. Thomson, on a bond given by defendants. The bond, a copy of which was filed, was for §1000, conditioned “ that if the said Simon P. Kase shall fail in his application to be made a defendant in the suit of William J. Greenough against the Danville, Hazelton and Wilkes-barre Kailroad Company, Columbia county, Common Pleas, Decernber Term. 1877, No. .3, in. equity, then we will pay the costs attending the proceedings, before Samuel Dickson, Esq., the master in said shit, including the master’s fee.”
    Filed' with this bond was a copy of the decree of the court dismissing the .petition of Kase to be made a defendant, and making the following order: — •
    “ Upon consultation with the counsel for and against the petition, as to the reasonableness of the fee charged by the master, it is ordered and adjudged that the said fee be, and the same is hereby allowed at the sum of $1000, including amount paid or to be paid by the master for the services of a short-hand writer in taking and printing,the testimony.”
    The defendant filed an affidavit of defence wherein it was, inter alia, averred that, “ deponent is advised, and so suggests, that the paper filed does not entitle the plaintiff to judgment for want of an affidavit of defence, the same being conditioned for the payment of costs, and not for any .determined and specific sum of money.
    “ Deponent is advised, and so suggests, that the said court had no power to order deponent to execute such a bond as the paper sued on, as a condition of deponent’s being allowed to take testimony in support of his said application. And deponent is advised that said order of said court .was illegal, and that said bond is void.
    “ Deponent further saith that said bond is conditioned for the payment of the master’s fee, in the event of deponent’s failure in his said application, but deponent avers that the said master has never presented any bill for his said fee, nor made any claim upon deponent for the same.
    “ Deponent further saith that no averments have been filed with said bond showing the amount .due thereon, and that the amount of deponent’s liability thereunder is not certain or determined.”
    The court entered judgment for want of a sufficient affidavit of defence, when defendants took this writ and assigned this action for error.

      Francis F. Brewster' and F. Qarroll Brewster, for plaintiffs in error.
    The bond is conditioned for the performance of a collateral condition, viz., the payment of costs by the obligors in the event of the failure by one of them in an application made by him, to become a defendant in a certain suit, and it is therefore not within the Affidavit of Defence Act: Boas v. Nagle, 3 S. & R. 250; Stokes v. Sayre, 1 Miles 25; Commonwealth v. Steelman, 2 Id. 405; Commonwealth v. Hoffman, 24 P. F. Smith 105; Smith.v. Harley, 1 W. N. C. 111; Sands v. Fritz, 3 Norris 15.
    The bond is unaccompanied with any averment showing the forfeiture of • the bond, or the amount of costs claimed under the condition of the bond. The obligors never agreed to pay for the services of a short-hand writer, nor can such a charge be properly considered as costs. The “ costs attending the proceedings before the master” were onlv the charges for attendance and miléage óf witnesses.

      George L. Crawford and Samuel Gustine Thompson, for defendant in error.
    The copy filed is not only of a bond but of a record, and is within the act: McCleary v. Faber, 6 Burr. 476 ; Hogg v. Charlton, 1 Casey 200; Moore v. Fields, 6 Wright 467; Luckenback v. Anderson, 11 Id. 123.
    The copy filed being of a bond conditioned for costs, with averment of amount in the decree, of which a copy is filed, is within the act: Montayne v. Carey, 1 W. N. C. 311; Sitgreaves v. Griffith, 2 Id. 705 ; Sutton v. Athletic Club, 4 Id. 90 ; Lehman v. Jacquet, 5 Id. 183. A court of equity has unquestioned power to admit a party upon terms : Pemberton on Decrees 404-5; Bird v. Gandy, 2 Eq. Cas. Abr. 251; Stevens v. Williams, 1 Sim. N. R. 545; Finch v. Shaw, 20 Beav. 555; Coombe v. Stewart, 13 Id. 111. The bond was voluntary, and Kase liable without it.
   The judgment of the Supreme Court was entered, February 10th 1879,

Per Curiam.

A court of equity has a large discretion as to costs. It can always place a party under terms who applies to the chancellor for that which is only grantable of grace. When, therefore, the plaintiff in error, Kase, applied to be made a party to the proceedings in equity, he submitted himself to whatever the court might see fit to direct in regard to his application. It was highly reasonable that he should pay the expense of it if he did not succeed. He accordingly, with Thompson, the other plaintiff’ in error, gave bond conditioned to pay the costs attending the proceedings before the master, to whom his application had been referred, and it was entirely competent for the court to determine the amount of •the master’s fee. Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Philadelphia & Reading Railroad Co. versus Killips.
    1. Where there is extensive travel upon a highway crossing a railroad track it is the duty of the company to give timely and sufficient notice of the approach of trains to such crossing.
    2. Where at a public crossing, a railroad company has been in the habit of keeping a watchman to open and close a gate at the approach of trains, it is a question for the jury, whether the company is not chargeable with negligence in leaving the gate open and fastened back and without a watchman.
    3. The unnecessary and extraordinary use of a railroad whistle, is negli genee.
    4. Where it is alleged and denied that the blowing of a locomotive whistle was the cause of an accident, it is for the jury to say, whether the whistle was blown in an unnecessary and extraordinary manner and whether the accident was caused thereby.

      5. Negligence is the absence of care, according to the circumstances, and is always a question for the jury, where there is reasonable douot as to the facts, or as to the inferences to be drawn from them.
    January 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and'TRUNKEY, JJ. - Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia■ county: Of July Term 1878, No. 6.
    Case by Margaret ■Killips, the widow of Hugh Killips, and by George and Isabella Killips, his father and mother, to recover damages for the death of said Hugh Killips, alleged to have been caused by the defendant’s negligence.
    The narr. contained two counts. The first alleged that defendant was engaged in managing a railroad and propelling cars' along Ninth street, in Philadelphia, at and near Columbia avenue; that Hugh Killips, the husband and son of plaintiffs, was riding along said avenue, and that as he approached on said avenue defendant was propelling a train along Ninth street, but that defendant’s servants made such great noises and shrieks, by blowing the whistle on the engine, that the horse of said Killips was frightened and ran'off, and that thereby he was thrown out and so injured that he afterwards died.
    The' second count alleged that defendant’s servants did, by their negligence, startle, scare and frighten a horse which Killips was driving along Columbia avenue, whereby, &c.
    - Defendants pleaded “Not guilty.”
    On the trial before Hare, P. J., it appeared that on May 6th 1875, about 7 o’clock in the evening, deceased, with two companions, was driving in a one-horse wagon down Columbia avenue, going east towards Ninth street.
    In April 1875, at the request of the Union Passenger Railway Company^'whose track is laid on Columbia avenue in this city, and by an arrangement between that company and-the defendant in this suit, a- gate was erected at the crossing of Columbia avenue, over Ninth street, at the joint expense of the two companies. The gate was at the bottom of an incline upon Columbia avenue, and its object was to stop the passenger railway cars in case they could not stop themselves by their brakes. This gate was operated by the defendant, and from the time it was first put in use, April 14th 1875, until November 18th 1875, was operated between the hours of 6 a. m. and 7 p. M., by the flagman stationed at the crossing. At the'latter hour, when, according to the rules of the defendant, the hours of duty of all its flagmen upon Ninth street ended, the gate was locked parallel with Columbia avenue, and left open during the night.
    It was not shown that there was any ordinance of the city making it the duty of the company to keep the gate at this point. The flagman had at 7 o’clock opened the gate for the. night and locked it. There is a large factory at the northwest corner of the crossing, which obstructs the view of the railroad from the west when looking towards the north. The view is unobstructed from Columbia avenue looking south. Shortly after the gatekeeper left, on the night of the accident, the deceased and his companions drove down towards the crossing, and stopped on Tenth street to observe whether a train was approaching. Hearing no bell or other warning they proceeded slowly down towards the crossing and when within thirty feet of it an engine suddenly appeared, and the whistle being blown, as it was alleged, the horse became frightened and reared up on the gate and the deceased was thrown out with such violence that ho died from the injury received a few days thereafter.
    It was daylight, and Killips and his companions knew of the gate and the purpose for which it was used. There was a conflict of testimony in regard to the blowing of the whistle of the engine, the material portions of which are stated in the opinion of this court. The plaintiff'’s witnesses all alleged that a whistle was blown two or three times by the engine, some of them going so far as to. say it was blown wilfully, for the purpose of frightening Killips’s horse, and that the horse was frightened by the whistle. The defendant denied this, and called witnesses to show that no whistle at all was blown, but that Killips’s horse was frightened by some barrels and whitewashed boards, which had been placed on Columbia avenue, between Ninth and Tenth streets, to guard a trench in that street.
    It was not alleged that the train was negligently managed other than in blowing the whistle. It was a violation of the orders of of the company to blow a whistle from Diamond street, a point beyond where the accident occurred, except in case of danger to persons upon the track.
    The court affirmed the following points submitted by defendant:
    1. That the defendants being authorized, to use steam-engines upon their railroad on Ninth street, in this city, are not responsible for accidents arising from horses being frightened by the noises properly incident to the employment of such engines, or by sight of the engines.
    3. That the servants of a railroad company cannot be taken and found by a jury to have been negligent from the mere fact of sounding a whistle upon an engine in the ordinary way. Sounding a whistle, in order to amount to negligence, must have been of an extraordinary character. Although, therefore, even should the jury believe that a whistle was blown upon the engine upon defendant’s road, and that Hugh Killips’s horse was frightened thereby, the plaintiffs are not entitled to recover, unless the jury also believe from the evidence that the whistle then blown was of an extraordinary and unnecessary character.
    4. If the jury should believe that the engineer upon the loeomotive blew the whistle for the purpose only and with the intention of frightening .Killips’s horse, the defendant would not be .liable for such an act, and.plaintiffs cannot recover upon that, ground.
    The other pointsof defendant, with the answers of the court, were as follows: . . •
    2. That unless the jury believe from the evidence that the defendent’s servants in charge of the engine, which crossed Columbia avenue upon the evening, of May 6th 1875, were exercising their right to use and move such engine in an .extraordinary way and without due and reasonable care, no negligence can be-imputed to them in this respect, and although the jury may believe that the horse behind which Hugh Killips was riding was frightened by the sight or noise of the train approaching in the ordinary way, and that in consequence of such fright the wagon was upset and ICillips killed, the plaintiffs cannot recover.
    Ans. “ I affirm that point, so far as regards the engine itself; that is, an engine used in the ordinary way. At the same time it does not preclude the jury from determining whether the company was negligent in leaving the gate open and fastened back and without a watchman, although at the times prescribed by. the rules of the railroad company.”
    5. That there is no ■ positive duty upon a railroad company to place flagmen or to erect and tend gates at public crossings, or to keep flagmen standing at or to tend such gates at all' hours of the day and night. Although, therefore, a gate had been erected .by the railroad company at Ninth and Columbia avenue, .and a flagman was stationed there in the daytime, if the jury.believe that the accident in question occurred after the flagman had left for the day and had fastened the gate open for the night, the absence of the flagman and the fact that the gate was open are not evidence of negligence upon the part of the defendant, and the plaintiffs cannot recover upon the ground thereof.
    Ans. “ Refused.”
    ■ 6. That the evidence in this case does not show that the .facts that .the gate at Ninth and Columbia avenue was open and that there was no watchman there caused the accident in question, and the same are therefore irrelevant and should not be considered by the jury.
    Ans. “Refused.”
    • 7. That if the jury believe that the whistle was not blown .at all upon the engine crossing Columbia avenue, upon the evening of May 6th 1875, there can be no recovery against the defendants.
    Ans. “Refused.”
    . 8. That there is no sufficient evidence of negligence upon the part of the defendant’s servants, and your verdict should be for the defendants.
    Ans. “Refused.”

      The verdict was for plaintiffs for $4500, and after judgment defendant took this writ and assigned for error the above answers to the second, fifth, sixth, seventh and eighth points.

      Thomas Kart, Jr., for plaintiff in error.
    There is no common-law duty upon a railroad company to station flagmen at public crossings, irrespective of circumstances : Stubley v. London & N. W. Railway Co., L. R. 1 Exch. 13; Beisiegel v. N. Y. Central Railroad Co., 40 N. Y. 9 ; McGrath v. Railroad Co., 59 Id. 468 ; Penna. Railroad Co. v. Matthews, 7 Vroom 531; D., L. & W. Railroad Co. v. Toffey, 9 Id. 525; Commonwealth v. Boston & W. Railroad Co., 101 Mass. 201; Bailey v. N. H. & H. Railroad Co., 107 Id. 496.
    The only qualification of this rule is that such an obligation may become due by reason of the railroad company constructing its road so as to create a peculiar difficulty at the crossing and making it therefore more than ordinarily dangerous.
    It is sufficient to say in this case that no question of a duty to maintain a flagman or a gate at Ninth and Columbia avenue was made or submitted to the jury. And even if it had been pretended that the railroad company was bound to keep a watchman there, nothing was shown which would, under the authorities above cited, have justified the submission thereof to the jury.
    There was no peculiarity about this crossing, for the fact that buildings prevented a view at Tenth street does not distinguish it from other city crossings.
    The placing the gate at the crossing was the voluntary act of defendant, and it should not be held to be negligent because it assumed to put a watchman to attend to it for a portion only of the day. The cases in which companies were. held liable for not maintaining, or negligently maintaining gates, were cases in which there was some statutory requirement. If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it: Skelton v. London & N. W. Railway Co., L. R. 2 C. P. 631; McGrath v. Railroad Co., 59 N. Y. 468; Thorne v. Deas, 4 Johns. 84; Grant v. City of Erie, 19 P. F. Smith 420.
    The deceased had no right to interpret the absence of the flagman as an assurance of safety: McGrath v. Railroad Co., supra.

    The blowing of the whistle was not negligence. It was not blown after the horse took fright, and non constat that it was not blown to warn the driver of the-horse or to try to stop the train. Relation must be had to the circumstances in which the engineer was placed, and the motive.for blowing the whistle bo determined thereby.

      Creorge Junkin, for defendants in error.
    Where there is extensive travel across a railroad track, the company is bound to exercise a degree of care and diligence commensurate with the risk of accident: Philadelphia and Reading Railroad Co. v. Spearen, 11 Wright 300.
    Due warning should be given by the company of the -approach of the train: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Reeves v. Del. & Lack. Railroad Co., 6 Casey 454; Pittsburgh and Fort Wayne Railroad Co. v. Dunn, 6 P. F. Smith 280.
    When the defendant’s railroad is carried across a public highway in such manner and place- that those travelling the highway can neither see nor distinctly hear approaching trains, until too late to avoid collision with them, the company is liable for such collision, in the absence of negligence of those injured: Richardson v. Railroad Co., 45 N. Y. 846.
    It was a question for the jury, whether the circumstances surrounding this crossing were not such as made it the duty of the company to put the gate there. They got permission from the city to do it: Railroad Co. v. Hagan, 11 Wright 244.
    The public saw the gate there, and recognised it as the company’s notice to all comers that a train was coming, and all had a right to suppose that it was only open when it was-safe to cross,, no matter at what hour of the day or night they drove along Columbia avenue.
    The unnecessary blowing of the whistle, under the circumstances, was negligence: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Railroad Co. v. Dunn, 52 Illinois 451; Railroad Co. v. Stinger, 28 P. F. Smith 219; and the question was properly left to the jury.
    Negligence is the absence of care according to circumstances: Turnpike Co. v. Railroad Co., 4 P. F. Smith 345.
    What is negligence, is always a question for the jury, w-hen the measure of duty is ordinary and reasonable care,, and where the standard of the degree of care shifts-with circumstances: West Chester Railroad Co. v. McElwee, 17 P. F. Smith 311, and cases cited in Br. Dig. 1800.
    Where there áre any controverted facts, the question of negligence is for the jury: Pennsylvania Railroad Co. v. Ogier, 11 Casey 60; Holmes v. Watson, 5 Id. 457.
   Mr. Justice Sterrett

delivered the opinion of the court, February 17th 1879.

It. is not claimed, in this case, that the deceased was chargeable with contributory negligence; but, it is contended that there was not sufficient evidence to justify the court in submitting to the jury the question of the company’s negligence.

The learned judge affirmed, without qualification, the defendant’s first, third and fourth points, and thereby instructed the jury, in substance, that the company, being authorized to use steam-engines' on its-road,' was “not responsible for accidents arising from horses being frightened by the noises properly incident to the employment of such engines, or by the sight of the enginesthat the sounding of a whistle, in order to amount to negligence, must be of an extraordinary character, and although the horse may have been frightened by the blowing of the whistle, there could be no recovery,, unless the jury found from the evidence that;it was of an extraordinary and unnecessary character; nor would the company be liable if the engineer “blew the whistle for the purpose only, and with the intent of frightening” the horse. These instructions are not complained of, and their effect manifestly was to limit the right of recovery, so far as the whistle may have been instrumental in causing the accident, to an extraordinary and unnecessary use thereof. And, in affirming defendant’s second point, he charged that no negligence could be imputed to the company from the exercise of its right to use and run its engine in an ordinary way, and with due and reasonable care; but, at the same time said that the jury were not precluded “from determining whether the company was negligent in leaving the gate open and fastened back, and without a watchman.” This latter qualification, and the refusal to affirm the defendant’s fifth to eighth points, both inclusive, have been assigned for error.

The jury were thus permitted to inquire whether the whistle, if blown at all, was of an extraordinary and unnecessary character, and whether, under the circumstances, the company was negligent in leaving the gate open and fastened back, without a watchman.The consideration of the jury was, in effect, restricted to these inquiries, and the only question is, whether there was sufficient evidence to justify their submission.

The testimony was conflicting as to whether the whistle was blown at all or not. One of plaintiff’s witnesses, describing the occurrence, says, “just then the locomotive came in view from behind the corner of the factory. When those on board saw us they blew their whistle twice or three times. I don’t know whether the engineer seeing us -caused him to blow, but he did so. It was a whistle sharp and shrill, a good whistle.” Another,says, the “engineer whistled after he came by the building, to scare the horse or something. I suppose he whistled to frighten the horse. It was a continuous locomotive whistle — nothing peculiar about this. It seemed like three jerks, as if pulled open very sudden.” One of defendant’s witnesses testifies “ there was no occasion to blow the whistle. I heard no whistle. At the time the engine passed, the horse was thirty feet from the track, on the west side of Ninth street.” The engineer in charge of the locomotive says, “I never blew a whistle unless something was on the track. I did not blow the whistle, to my knowledge. There was nothing to require me to blow a whistle. I did not blow to frighten the horse ; did not blow at all, to my knowledge.” Other testimony of the same kind was given on both sides; and the defendant introduced testimony to show that the bell was rung and that the horse shied at some object in the street.

It is quite obvious that the testimony thus introduced was proper for the consideration of the jury. It was for them to say whether the whistle was1 blown or not; and if it was, whether, under the circumstances, it was necessary or wholly unnecessary, and sounded in an extraordinary-manner without reasonable care, and whether the accident was caused thereby. The company’s liability depended on the fact whether- the accident resulted from want of proper care •on the part of its employees. Negligence is the absence of care ■according1 to the circumstances, and is always a question for the jury when,, as in this- case, there is reasonable-doubt as to the facts, or as to the inferences to be drawn from them. Wanton and unnecessary sounding of-a locomotive whistle, under certain circumstances, has been held to be negligence: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 239; Railroad Co. v. Stinger, 28 Id. 219. In the former case the engineer'blew his whistle under a bridge while Barnett was passing over, in consequence of which his horses frightened, ran off and injured him. In delivering the opinion of the court, Mr. Justice Williams characterized this as “an act of gross negligence, .and a sufficiently proximate cause of the injury to render the company liable therefor.” If the jury found that the whistle was blown, as claimed by the plaintiff, and that, under the circumstances, it was an unnecessary and • extraordinary act, what difference is there, in principle, between that case and this ? There may be some difference in degree, but not in kind. There was no error in submitting this question to the jury.

■ Were'the facts in relation to the gate at the crossing a proper subject of inquiry'for the jury on the question of the company’s negligence ? ’' -

■It is not claimed'that, irrespective • of circumstances, it is a common-law duty of a railroad company to station flagmen or-maintain gates at public grade crossings. A road may be so constructed, however, by making-short curves or deep cuts at a public thoroughfare as to make it more than ordinarily dangerous, and it may thus become the duty of-the company to employ a flagman or adopt other adequate means of-warning-and protection. Where there is extensive travel on-a streét-or other highway crossing a railroad track, the company,-as well as the public, is bound to exercise a degree of care -and diligence commensurate with the risk of accident. • It is the duty of the company,-on-the one-hand, to'give timely and sufficient notice-of-'the approach of trains at such crossings, while ón the-other it is the imperative-duty of the traveller to stop, look and listen -for'approaching trains 'before attempting to pass -a railroad crossing: While 'the law does not point out any .particular mode or manner,in which notice of approaching trains shall be given, it does require that some suitable and adequate means, adapted to the circumstances, shall be adopted and applied.

The road of the plaintiff in error is located on Ninth street and crosses Columbia avenue at right angles. From the point of intersection westerly to Tenth street the grade is considerably ascending. At the northwesterly corner of the crossing a large factory obstructs the view of the railroad on that side to a person approaching from the west until he reaches the house line, about twenty-five feet from the track. In 1875, the gate in question was put up jointly by the railroad company and the Union Passenger Railway Company. According to the testimony of Mr. Kemble, it was so constructed as to swing across Ninth street or across Columbia avenue, so “ that when opened on the avenue it was shut on Ninth street — to warn the public and engineer at the same time; it could be swung up along ■ the curb of Columbia avenue.” The gatekeeper was on duty from 6 o’clock, A. M., until 7 o’clock, P. M., at which time the gate was swung back along the southerly curb of, Columbia avenue, and there locked for the night. A few minutes after the gate had been thus locked back and the keeper had left for the night, the deceased and his companions drove down the avenue towards the crossing and stopped at Tenth street for the purpose of ascertaining whether a train was approaching. The intervening houses so obstructed their view that they could not see the railroad on the north side of the crossing. Hearing no bell or-other warning, and seeing the gate open, they supposed there was no train approaching, and drove slowly down to the crossing. When within about thirty feet of it, the engine suddenly made its appearance, without previous warning, as was alleged; the whistle was. blown; the horse became frightened and reared up on the gate; the deceased was violently thrown out and sustained the injuries which caused his death. The testimony tended to prove these facts, and it was claimed that they afforded evidence of negligence, proper to be submitted to the jury.

It is evident that the risk of accident at this point was so great that it was necessary to adopt some precautionary measure. A flagman had been previously stationed there, and then the gate was adopted as a better substitute. The ground of complaint is that the keeper was withdrawn at 7 o’clock and the gate left in such a position as to mislead the travelling public — invite .them to cross and lure them into danger, and that the deceased was thus misled, and injured. If this be so, it would seem that there was a want of that care which, under the circumstances, should have been exercised. We think the learned judge committed no error in submitting the testimony to the jury. It -was a question for them whether, in view of all the circumstances, as they found them to exist, the company was not chargeable with negligence in this regard.

There is nothing in any of the other assignments of error that appears to call for further notice. Judgment affirmed.

Siiarswood, C. J., and Paxson, J,, dissented.


author: Mr. Justice Mercur

text:
    Dungan’s Appeal.
    1, Taxes which are alien upon land will he entitled to be paid out of the proceeds of a sheriff’s sale of an interest in the land, although the person whose title .is sold never held title to the land in his own name, and the title, both legal and equitable, at the time of the sale, was in a third person.
    2. A judgment obtained against a debtor, after he has conveyed land in fraud of creditors, only binds the title of the fraudulent grantee, and a sale thereunder does not discharge prior liens.
    January 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 24.
    Appeal of J. Dyer Dungan from the decree of the court sustaining the exceptions to the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of certain real estate sold under a judgment obtained by Dungan against George Mountjoy.
    The judgment of Dungan was obtained September 6th 1875, for $898.76. On February 3d 1877 a writ of fieri facias was issued, and levy made on eleven houses as the property of said Mountjoy. March 13th 1877, a writ of venditioni exponas was issued, under which the said property was sold, on April 2d 1877, to Levi Harring, for $900,- which money was paid into court for distribution. Before the auditor the proceeds were claimed by the execution-creditor, and by the city of Philadelphia for the current taxes for the year 1877. Levi Harring also appeared before the auditor and claimed to have the proceeds applied to the payment of the taxes.
    The admitted facts found by the auditor are as follows:
    On June 19th 1876, the premises wrere conveyed by Joseph Singerly to one George G. Mann, in pursuance of a verbal agreement between Mann and George Mountjoy, the defendant in the execution. Mountjoy was insolvent at the time, and had judgments recorded against him to a large amount. Mann was named by Mountjoy as the person to take the title, and who would execute the mortgages for the purchase-money and advances. Mountjoy was to have the net profit of the transaction, and Mann had no interest, except as a trustee or depositary of the legal title for Mountjoy. The operation subsequently broke down, and all hope of profit was-abandoned, when, on December 29th 1876, Mann, with the consent of Mountjoy, and at the request of Singerly, conveyed the premises to Levi Harring, who subsequently purchased at the sheriff’s sale. The auditor found as a fact that George Mountjoy (the defendant in the execution) had no interest whatever in the premises, legal or equitable, at the time of the issuing of the execution, or at the time the taxes were assessed against the property, or at-the date of the sheriff’s sale, and awarded the fund to the execution-creditor.

      Exceptions were filed by the City of Philadelphia and by Levi Ilarring, which were sustained by the court, and the fund was awarded to the city on account of the taxes for the year 1877.
    This action of the court was assigned as error.

      F. F. Brightly and Pierce Archer, Jr., for appellant.
    As the title to the real estate was not in Mountjoy at the time of the sale, the taxes were not discharged, and therefore could not be paid out of the fund in court, and it must go to the execution-creditor: Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Id. 294; Mix v. Ackla, 7 Watts 316; Fisher v. Lyle, 8 Phila. 1.

      Christian Kneass and P. Spencer Miller, for appellees.
    Where a debtor conveys land in fraud of creditors, a judgment subsequently obtained against him only binds the title of the grantee, and a sale under it does not discharge prior liens: Hoffman’s Appeal, 8 Wright 95; Jacoby’s Appeal, 17 P. F. Smith 434.
    The lien for taxes, unlike that of a judgment, is not against any one specific title to or interest in land, but is against the land itself, and against every interest in said title to it, whether legal or equitable : Vanarsdalen’s Appeal, 3 W. N. C. 463.
   Mr. Justice Mercur

delivered the opinion of tne court, May 5th 1879.

The fund in contention was produced by a sheriff’s sale of the real estate of George Mountjoy. He never held a legal title to the lands, but acquired an equitable interest under these circumstances. He was insolvent, and judgments to a large amount were standing against him. Singerly owned the lands now in question, and houses were in process of erection on them. It was verbally agreed between Singerly and Mountjoy, that the former should convey the lands to one Mann, who should execute mortgages thereon to secure the price or value thereof, and the advances; and that Mountjoy should erect buildings thereon and sell them, and have the net profits, after paying the price or value of the lands, and advances. The conveyance was made and the mortgages executed under this agreement. Mann had no interest other than as trustee of the legal title for the use of Mountjoy. The purpose was to enable the latter to realize something out of the transaction. His enterprise proved a failure. He gave up all hope of realizing a profit. On the 29th December 1876, by consent of Mountjoy, and request of Singerly, Mann conveyed the lands to Ilarring. It does not appear that Ilarring had any notice of Mountjoy’s interest in the premises.

The judgment on which the sale was made was recovered against Mouutjoy before he had any interest in the land, and was not revived. In February 1877, execution issued thereon, the land was levied on, and in 'April following it was sold to said Harring. The taxes for 1877 being unpaid, the city of Philadelphia claimed them out .of the proceeds of the sale, and the appellant claimed the proceeds should be applied on the judgment in his favor, on which the sale was made. The court below decreed the fund to the payment of the taxes, from which this appeal was-taken.

At the time of the- conveyance to Harring, the appellant had no lien which could be enforced against a good faith purchaser. The lien of the levy attached after that conveyance. The object of-the sheriff’s sale, when the title was thus in Harring, was manifestly with the intention of questioning the good faith of his purchase. As he became the purchaser at the sheriff’s sale, his title then became undoubted.

It is true, it has frequently been held that a sheriff’s sale made by virtue-of a lien acquired after a conveyance, is the means of vesting in the purchaser the right which a creditor has to attack the good faith of the prior conveyance, but has no effect on undisputed liens existing prior to the conveyance sought tó be impeached: Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Id. 294; Hoffman’s Appeal, 8 Wright 95. It therefore follows, that the fund raised by such a sale must be applied on liens which attached after the conveyance.

Under the Act of Assembly of '3d February 1824, all taxes which may be lawfully assessed on real estate situate in Philadelphia are declared to be a lien on the said real estate, and “said lien shall have priority to, and- shall be fully paid1 and satisfied before any recognisance, mortgage, judgment, debt, obligation or responsibility.” This was so far modified by Act of 11th April 1835, as not' to deprive a first mortgage of. the benefit of its primary lien, nor: cause it to be discharged by a sheriff’s sale under a junior encumbrance.

The Act of 1824 does not, in express terms, declare the precise time when the lien for taxes shall attach; yet we think the clear meaning is, as soon as they are “lawfully imposed or assessed.” Nothing in the act indicates that the lien shall be postponed to any future time. As soon as the liability of the land for the specific tax arises the lien must attach. Hence it was said in Camac v. Beatty, 5 Phila. 129, “we are cleaidy of the opinion that the tax is a lien from the time of its assessment.” While this was said by the judge of an inferior court, yet it is entitled to great consideration. Thus, it appears, that the lien of the city for taxes, as well as the lien of the appellant’s execution, both attached after the conveyance to Harring. If the lien of the taxes attached at the beginning of the year for which they were laid, they were prior in time to the levy. If prior in time, but after the conveyance to Harring, the lien was prior to the levy on the interest sold by the sheriff. The tax ben was the first after the alleged fraudulent deed to Harring. If so, it was entitled to be paid before the judgment of the appellant. The fact that his judgment was used as the instrument to effect the sale did not give him a preference over prior liens on the title or interest which he sold: Hoffman’s Appeal, 8 Wright 95; Jacoby’s Appeal, 17 P. F. Smith 434.

If, in fact, the lien of the taxes attached after the lien acquired by virtue of the levy on the execution, yet the Act of Assembly makes the taxes a preferred lien, and directs them to be paid before the judgment of the execution-creditor. If the taxes were a lien at the time of sale their payment is preferred.

The lien of the taxes was not restricted to the particular interest or title of any one person, but was a charge on the whole land. The lien was therefore on all the interest or title sold by the sheriff. The fact that an equitable interest only was sold, did not prevent the city from claiming the taxes laid on the whole estate, out of the proceeds of the sheriff’s sale: Vanarsdalen’s Appeal, 3 W. N. C. 463.

The decree of the court below is affirmed, and the appeal is dismissed at the costs of the appellant.


text:
    Seabrook versus Moyer.
    An eviction of a tenant, under a title paramount to that of his landlord, from a portion of demised premises when the tenant continues in possession of the remaining part, using and enjoying it, does not work a suspension of all subsequent rent, and the tenant is liable to his landlord, in an action for use and occupation, to the payment of such portion of the rent as the value of the part retained bears to the whole.
    January 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Picas, No. 3, of Philadelphia county: Of July Term 1878, No. 36.
    Debt by Thomas Seabrook against Michael Moyer to recover the rent of certain promises leased to defendant.
    There were two counts in the narr., one on a demise at $250 a month and another for use and occupation. The defendant pleaded nil debet and payment, and specially, that he had been evicted from an alley-way, a portion of said premises.
    The court, Fell, J., ordered a nonsuit, which the court in banc refused to take off, which was assigned for error. The remaining facts will be found in the opinion of this court.

      Charles Hart and Chapman Biddle, for plaintiff in error.
    The tendency of modern authority is to hold that where the tenant continues in possession of the residue, after eviction from part, he is liable on a quantum meruit for use and occupation. The original contract or lease is suspended, and therefore covenant will not lie, nor can the landlord distrain, for there is no certain sum due; but the tenant is liable for whatever may be the worth or value- of the portion which he continues to occupy. This view of the law is supported by Lawrence v. French, 25 Wend. 443; Fitchburg Cotton Manufactory Corporation v. Melvin, 15 Mass. 268; Tomlinson v. Day, 2 B. & B. 680; Grand Canal v. Fitzimmons, 1 Hudson & Brooke 449; Blair v. Claxton, 18 N. Y. 529; Bennett v. Bittle, 4 Rawle 344; McClurg v. Price, 9 P. F. Smith 420.
    Vermilya v. Austin, 2 E. D. Smith (N. Y.) 204, cited by the defendant in error, was afterwards taken up to the Court of Errors and Appeals, and under the name of Christopher v. Austin, is reported in 1 Kernan 218. That court, however, while affirming the lower tribunal, states the law applicable to a case like the present, as follows: “ Where the tenant enters, but is prevented from obtaining the-whole of the premises, by a person holding a part under a prior lease executed by the landlord, it has been placed upon the same footing as an eviction by title paramount, and the landlord has been permitted to recover for use and occupation on a quantum meruit.”

    Z?. Spencer Miller, for defendant in error.
    In Pennsylvania an eviction from part of the premises suspends the whole rent, and if the holding out continue to the end of the lease no rent can be recovered. The Pennsylvania cases are all to be found in an able opinion of Judge Allison’s, reported 2 Brewster 524.
    The case of McClurg v. Price, 9 P. F. Smith 420, though not a case of technical eviction, was treated as if it were, and it was expressly declared that the omission of the tenant to give up possession did not interfere with his right to defend against the entire rent.
    Vermilya v. Austin, supra, decides that debt will not lie for use and occupation where there is a lease under seal.
   Mr. Justice Mercur

delivered the opinion of the court, May 5th 1879.

This was an action of debt for the rent of certain premises demised by plaintiff to defendant. The term was for three years from January 1st 1874, at an annual rental of $3000, payable monthly. The narr. contained two counts, one on a demise at $250 a month, the other for use and occupation. The premises leased consisted of a building fronting on Market street, with a right of way over an alley, of three feet two inches in width, between the leased building and the adjoining property. The defendant took possession and paid the rent up to 1st February 1875. In that month the adjoining owner began to build, and in so doing he constructed a party-wall on eleven inches of this alley-way, thus reducing its width and also the width of the rooms in the second and third stor.y of the building. This taking by the adjoining owner was by virtue of a written agreement entered into between him and the plaintiff before the execution of the lease between plaintiff and defendant. By the terms of that agreement the plaintiff and adjoiner had each relinquished to the other the right of way over the alley. In so far as the defendant was not deprived of the premises by this interference of the adjoining owner, he remained in possession of the building, but refused to pay any rent, claiming it to be such an eviction as discharged him from all obligation to pay. The plaintiff claimed the defendant remained liable on a quantum meruit for use and occupation. The court below ordered a judgment of nonsuit to be entered. That is assigned for error.

It is a well-settled rule that if a landlord wrongfully dispossesses his tenant of any portion of the demised premises the rent for the whole is thereby suspended. In the present ease, the plaintiff committed no act after possession taken under the lease, by which his tenant was deprived of any part of the demised premises. On the contrary the evidence shows that he tried to prevent the eviction, llis offence consisted in demising premises to the defendant to a portion of which he had no title at the time. The eviction of the defendant was by virtue of a title paramount to the title of his landlord. It matters not that the plaintiff had previously held it. At the time the lease was executed and the relation of landlord and tenant between the parties was created, the outstanding title of the adjoiner was as superior to the title of the plaintiff as if he had never held it. If the defendant had been evicted by paramount title, from the whole premises, he would have been discharged from the payment of the whole rent, after that time. But an eviction by such title, from a part only of the demised premises, when the tenant continues in possession of the remaining part, using and enjoying it, does not work a suspension of all subsequent rent. He remains liable to the payment of such proportion of the rent as the value of the part retained bears to the whole. On having been evicted from a part he might have removed from the residue and thereby wholly relieved himself from the payment of future rent; failing to do so, he became liable to a just apportionment. This conclusion is fully sustained in Taylor on Landlord and Tenant, § 378, and the English and American cases there cited.

Our own cases recognise the same rule when the landlord conveys a part of the demised premises during the term and possession of the tenant, and the vendee has entered and evicted the tenant from the part thus conveyed. By retaining possession of the remaining part he becomes liable to pay for the use of the portion thus retained. It is held not to be such a wrongful eviction by the landlord as to release the tenant from paying a just compensation for that which he continues to enjoy: Reed v. Ward, 10 Harris 144; Linton v. Hart, 1 Casey 193. The learned judge therefore erred in ordering a judgment of nonsuit.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Gordon

text:
    Bardsley versus Delp.
    1. The holder of a promissory note, who had no notice of the equities existing between the maker and the payee, cannot be affected by them unless he is a holder without consideration.
    2. "Where the holder of a note received it for an antecedent debt, he is a holder for a valuable consideration.
    3. Averments in an affidavit of defence, that the payee of the note had received it from the maker to use for a specific purpose, and that in violation of said agreement he had endorsed it to the holder, who had taken the same for an antecedent debt due by the payee, are not sufficient to prevent judgment.
    January 22d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 67.
    Assumpsit by William Bardsley against Allen Delp, on a promissory note made by Delp to the order of one Barndt, and by the latter endorsed to plaintiff.
    To the copy of the note filed the defendant filed an affidavit of defence, wherein he averred that defendant was a tenant of Barndt; that defendant was served as garnishee in an attachment sur judgment obtained by Hunsberger & Bros, against Barndt; that Barndt asked defendant for the note in suit to settle the amount due them, and for that purpose defendant gave it to him ; that in violation of said agreement Barndt had endorsed it to plaintiff; that plaintiff did not purchase said note for a valuable consideration, but received the same for an antecedent debt; that the attachment was then pending, and defendant was held to answer. A rule for judgment for want of a sufficient affidavit of defence was discharged, which action was assigned for error by plaintiff, who took this writ.

      William II. Browne, for plaintiff in error.
    The holder of a negotiable instrument who received it in absolute payment of a pre-existing debt without notice, is entitled to recover thereon, notwithstanding a failure of consideration between the original parties : Red. & Big. Lead Cas. 183, 194; Petrie v. Clark, 11 S. & R. 377. Nothing but clear evidence of knowledge or notice of fraud or mala fides can impeach the prima facie title of a holder of negotiable paper taken before maturity: Phelan v. Moss, 17 P. F. Smith 59 ; Moorehead v. Gilmore, 27 Id. 122; Battles v. Laudenslager, 3 Norris 452. Even where the maker shows the note was fraudulently obtained, as between the original parties, the holder cannot be required to prove that he gave value for it unless his title is in some way impeached: Red. & Big. Lead. Cas. 188, 213.

      Alfred Moore, for defendant in error.
    It is contended that an affidavit of defence by the maker, alleging such facts as show that the note was obtained from him by misrepresentations, and negotiated in fraud of his rights, is sufficient to prevent judgment from being entered for want of a sufficient affidavit of defence: Hutchinson v. Boggs et al., 4 Casey 294; Hoffman v. Foster, 7 Wright 137. Where a negotiable note has been obtained from the maker under false pretences, and fraudulently put in circulation by the payee, in an action by the holder against the maker, the former, to entitle him to recover, must show that he was a holder by purchase for value before the maturity of the note: Holme v. Karsper, 5 Binn. 469; Knight v. Pugh, 4 W. & S. 445; Hutchinson v. Boggs et al., and Hoffman v. Foster, supra; Phelan v. Moss, 17 P. F. Smith 67.
   Mr. Justice Gordon

delivered the opinion of the court, February 10th 1879.

The defendant below, by his affidavit of defence, set forth, that he made the note in suit for the accommodation of M. K. Barndt, he, the payee, agreeing at the same time that ho would use the note in settlement of a judgment of Hunsberger & Bros., on which an attachment-execution had issued, and had been served on the defendant as garnishee, and that Barndt had violated his agreement by endorsing the paper over to the plaintiff. As the plaintiff had no notice of the equities thus subsisting between the maker and the payee, he could not be affected by them unless he occupied the position of a holder without consideration: Byles on Bills *130. In view of this, the affiant further set forth, that the plaintiff did not purchase the note for a valuable consideration, but received the same from the said Barndt for an antecedent debt. This, however, is a contradiction in terms; for if the plaintiff' received the note for, that is, as we take it, in payment of an antecedent debt, he did purchase it for a valuable consideration: Kirkpatrick v. Muirhead, 4 Harris 123 (Bell, J.); Rosenberger v. Bitting, 3 Id. 278.

If, indeed, the defendant, by this ambiguous wording, meant that the plaintiff' had taken it as collateral security for a pre-existing debt, he should have said so. If he has not been able to make out a prima facie ease for himself, we cannot help him by inferences drawn from obscure language Avhich he by a word or two might have made plain. If a defendant, when he has the stand to himself, cannot make out a case in his own favor, it must be because he has none, and he ought not to ask a court to patch up a case for him.

It is now ordered that the record in this case be remitted to the court below, and said court is directed to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why judgment should not be so entered. „


author: Mr. Justice Meiicu r

text:
    Young versus Young.
    1. It is error to enter a judgment quod partitio fiat, without all the co-tenants having been named of record; unless all the parties in interest are named, no title can pass under the proceedings. And this error is not cured by the mere addition of the name of a co-tenant omitted as one of the defendants after judgment.
    2. While the power to amend by the addition of a name omitted through mistake may be liberally exercised, yet no one should be forced on the record at so late a period as to deprive him of any subsequential right that he may have asserted if he had been made a party at the commencement of the proceedings.
    January 22d 1879.
    Before Sharswood, C. J., Mbrcur, Gordon, Paxson, Woodward; Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No; 47.
    This was an action of partition, brought by Thomas Benton Yoilng against William J. Mclntire and others.
    Under the will of William J. Young, deceased, Thomas Benton and his four sisters, Sarah, Josephine, Mary A. and Emma, took a vested remainder in fee, subject to a life-estate in their mother and the unmarried daughters.
    Emma Richardson, one of the daughters, died December 27th 1874, leaving a husband, John Richardson (since deceased), but no issue, and her share descended to her two brothers, Thomas Benton Young, Alfred Young, and her three sisters, Josephine McIntyre, Mary A. Weatherby,'and Sarah A. Young, as tenants in common.
    The widow of testator died September 1st 1875. These proceedings were commenced in February 1878, by Thomas Benton Young, as plaintiff, against William J. Mclntire and Josephine his wife (formerly Young), Sarah A. Young, and Isaac H. Weatherby and Mary his wife (formerly Young), as defendants, and prosecuted to the issuing of an order of sale on June 7th 1878, without naming Alfred Young in any of the proceedings.
    On June 26th 1878, a rule was taken to amend the record, by adding the name of Alfred Young as party defendant.
    On July 1st 1878, the rule to amend was made absolute; the court, however, set aside the appraisement, and ordered that the appraisers meet again, with notice to Alfred Young of the time and place of such meeting; and also ordered that Alfred Young have leave, upon notice, to take or refuse at the new appraisement.
    All 'the parties refused to take at this appraisement, and the court ordered a sale. Alfred Young had no notice or voice in the selection of the commissioners. He was not named in the narr., and merely notified of the second meeting of the commissioners and the rule to take or refuse the property at their valuation.
    Alfred Young took this writ, and alleged that the court erred in making absolute the rule to amend; in ordering a sale, there being no proper judgment upon which said order could be predicated; and in entering judgment quod partitio fiat.

      Francis S. Cantrell, for plaintiff in error.
    Judgment can be only entered in this summary manner when the defendant agrees to it or makes default: Lafferty v. Beale, 1 Miles 51; 2 Tr. & Haly’s Pract. 279, 280.
    Alfred Young, who was not named in or served with either summons or narr., by an order of the court, subsequently made, amending the record, is held to be bound by this judgment. Unless a party is named in the narr., in partition, his interest is not affected by the judgment: Blackwell v. Cameron, 10 Wright 236; Richards v. Rote, 18 P. F. Smith 248.
    He is also bound by the nomination and appointment of the commissioners, although he had no voice in their selection.

      Charles Henry Jones, for defendants in error.
    It will be presumed that there was enough before the court below to justify it in amending the record by adding his name: Wilson v. Mechanics’ Savings Bank, 9 Wright 494; Musser v. Gardner, 16 P. F. Smith 246. The amendment was not irregular, because made after judgment quod partitio fiat: Miller on Partition 203; Bailey v. Fairplay, 6 Binn. 454; Ward v. Stevenson, 3 Harris 21; Richter v. Cummings, 10 P. F. Smith 443; Schwartz v. Mauer, 2 W. N. C. 445. As the irregularity, if any exists, is of form only, this court will treat the record as amended: Robertson v. Reed, 11 Wright 115; Trego v. Lewis, 8 P. F. Smith 463; Kelsey v. Nat. Bank of Crawford County, 19 Id. 431.
   Mr. Justice Meiicu r

delivered the opinion of the court, May 5th 1879.

This was an action of partition. It was brought by th,e defendant in error against certain persons interested in the lands, sought to be partitioned, but it wholly omitted to name the plaintiff in error, although he had an estate in fee therein. Regardless of his rights, without naming him in the declaration, and without any notice to him, the case proceeded to judgment quod partitio fiat. The parties to the action then agreed upon and nominated three commissioners to make partition. The court appointed them. They reported, valuing the lands. All the parties declined to take at the valuation, and a sale was ordered. At this stage of the proceedings, the court amended the record, by adding the name of the plaintiff in error as party defendant. It then set aside the finding of the commissioners, but ordered them to meet again, with notice to the plaintiff in error, and that he also have leave to take or refuse at the new appraisement. All the parties declining to take at this appraisal, the court ordered a sale. To the action of the court three errors are assigned, but they may be considered together.

It was manifest error to enter a judgment quod partitione fiat without all the co-tenants having been named of record. Unless all the parties in interest were named, no complete title could pass under the proceedings. The title of one not named would remain undisturbed. The error ivas not cured by the mere addition of the name of the plaintiff in error to the record as one of the defendants, after the judgment. There was no amendment of the praecipe or of the narr. He was deprived of all opportunity of being heard in opposition to the judgment, and of any voice in the selection of commissioners to pass on the question of partition and appraisement. While the power to amend by the addition of a name omitted through mistake, may be liberally exercised, yet no one should be forced on the record at so late a period as to deprive him of any substantial right that he might have asserted if he had been made a party at the commencement of the proceedings. Here he was compelled to accept appraisers to pass on his rights who had been chosen by others. This was an abuse of the equitable principle which underlies the right of amendment. The amendment ought not to have been allowed.

As the judgment ought not to have been entered, nor the amendment made under the circumstances, the learned judge erred in ordering the sale: Blackwell v. Cameron, 10 Wright 236 ; Richards v. Rote, 18 P. F. Smith 248. The assignments are therefore sustained.

The order is set aside, and the judgment reversed.


author: Mr. Justice Paxson

text:
    Junction Railroad Co. versus City of Philadelphia.
    1. A municipality cannot support a claim for paving against the road-bed of a railroad company, and it is immaterial whether the company has simply the right of way or owns the bed in fee.
    2. The right of way acquired by a railroad company is exclusive at all times and for all purposes.
    3. The City of Philadelphia v. The Philadelphia, Wilmington and Baltimore Railroad Co., 9 Casey 41, followed.
    January 22d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 3, .of Philadelphia county: Of July Term 1878, Nos. 61 and 62.
    Scire facias sur municipal claim by the city of Philadelphia, to the use of Holgate, Johnson & Co., against the Junction Railroad Company.
    The claim filed was for $842.37, for paving, against lot of ground, situate on north side of Girard avenue, one hundred and forty feet east of Thirty-eighth street, city of Philadelphia, sixty feet front and two hundred and fifty feet deep north to other ground of said Junction Railroad Company.
    ‘ ‘ The defendant filed an affidavit of defence, wherein it was averred that the railroad of the said company is a public highway for the transportation of passengers and freight; that the premises described in the claim filed constitute a section of the road-way of this company, being a strip of ground sixty feet in width, extending northwardly from Girard avenue, and used exclusively for railroad purposes ; that the paving, for the cost of which the said claim was ' filed, was done exclusively upon Girard avenue, a public highway of the city of Philadelphia, which crosses the railroad of the said company by means of a bridge at a point considerably above the grade of the said railroad, and almost at a right angle thereto ; the grade of the said street was fixed by the city of Philadelphia, and the said paving was done exclusively upon the said bridge (about thirty-six feet in length), and the approaches thereto, which rest upon the road-way of this company; but in no other sense was any portion of the said paving done upon any property owned by the company, or upon premises adjoining the property of this company ; the said company has not, does not and can not derive the slightest benefit from the said paving; and deponent is advised by counsel that the said company is not liable for the cost thereof.3 ’
    The Junction Railroad is a corporation created by the legislature of Pennsylvania, by the Act of May 3d 18G0, which authorizes said company to construct a railroad, commencing at a point upon the Philadelphia and Reading Railroad, at or near the bridge of said company near Peters’s Island, in the river Schuylkill; thence to the Pennsylvania Railroad at the village of Ilestonville, and thence to a point on the Philadelphia, Wilmington and Baltimore Railroad, by the shortest practicable route. All of said Junction Railroad is thus situate in the county of Philadelphia, and subject to the General Railroad Act of February 19th 1849, and the supplements thereto.
    The said Junction Railroad intersects Girard avenue below grade, and the city of Philadelphia has built a bridge over said Junction Railroad, and the said paving, duly authorized by councils, was dono upon said bridge and the approaches thereto, the ground for sixty feet in width at this point, under and on both sides of the bridge, being owned by the said Junction Railroad, in fee. The paving was completed and accepted by the city in July 1876.
    A rule was taken for judgment for wrant of a sufficient affidavit of defence, and the court (Yerkes, J.), in an opinion said:
    “ The case of City v. Railroad Company, 9 Casey 41, must govern wherever it is applicable; but in that case the railroad company only possessed an easement and were not the owners of land. In the case before us the defendant company own the land. The acts relative to paving make the owners of land liable to pay for paving. We cannot find authority to apply a rule to railroad companies owning.land different from that applicable to private persons. It may be that any proceedings to enforce the lien would vest a title subject to the easement or the franchises of the company; but that does not seem any reason why whatever interest the company may have in the land in excess of the necessities of the easement should not be subject to,lien and levy and sale.
    “ The claim is against a lot sixty feet in width. There is no averment that so much land is necessary for the enjoyment of the franchises vested in the defendant, and the fact is that much of the land is not so used, and it was so admitted on the argument. If the land against which the lien is filed is not used for corporate purposes, why should it not be subject to lien, &c. ?
    “We do not see why an interest in land in excess of the easement, and why land owned by a railroad company, and not used for the purpose of its corporate franchises, should not be subject to a paving lien. To this extent we hold that defendants are liable. Nor can the fact that the ground is below grade affect the question. If it was so held, there would be no reason why private owners of land above and below grade should not be exempted.
    “Rule made absolute.”
    The railroad company took this writ and assigned this action for error.

      Thomas Hart, Jr., for plaintiff in error.
    The soil of one public road cannot be taxed to raise funds to make or improve another: City of Philadelphia v. Philadelphia, Wilmington & Baltimore Railroad Co., 9 Casey 41; City v. Eastwick, 11 Id. 75. The occupation of land by a railroad company is so necessarily exclusive, that there is practically no difference bétween the fee-simple value of the land and the damages for the technical easement of way.
    The decision certainly did not intend to distinguish between cases where a company obtained a release of damages, or where damages had been assessed by a jury and where the company had bought a strip of land for its road-bed, and while protecting the parts of its roadway acquired in the former mode, and because so acquired, permit other portions resting upon the latter title to be liened and sold. No such distinction can Be justified. It is the use and pulpóse to which the property of a railway company is put, which determines its liability to taxation. It is the public works held by corporations, with their necessary appurtenances, which are exempt from taxation: Carbon Iron Co. v. Carbon County, 3 Wright 251; Railroad Co. v. Berks County, 6 Barr 70.
    No distinction between property held in fee and under release of damages was made in any of the other cases upon the subject of the taxation of the property of railroads: Lehigh C. & N. Co. v. Northampton, 8 W. & S. 334; Navigation Co. v. The Commissioners, 1 Jones 202; Delaware & Hudson Canal Co. v. The Commissioners, 3 Harris 351; Plymouth Railroad Co. v. Colwell, 3 Wright 337; Northampton Co. v. Lehigh C. & N. Co., 25 P. F. Smith 461; Lodge v. P., W. & B. Railroad Co, 8 Phila. R. 345.

      Thomas J. Ashton, for defendants in error.
    The first section of the Act of April 21st 1858, provides, “That the offices, depots, car-houses and other real property of railroad corporations situate in said city, the superstructure and water stations of the road only excepted, are, and hereafter shall be subject to taxation by ordinances for city purposes.” Under said act, and the ordinances of the city, the ground of the company is certainly liable for this paving.
    The case of the Northern Liberties v. St. John’s Church, 1 Harris 104, very clearly distinguishes between taxes as taxes, and assessments for municipal improvements, and the law as there stated, it .is submitted, is the law of this state to-day: Hammett v. The City of Philadelphia, 15 P. F. Smith 146.
    In answer to the averment of plaintiff in error that the whole of said sikty feet owned by them is used exclusively for railroad purposes, it is only necessary to state that, by actual measurement, only about twenty-two feet thereof are used for the superstructure of the double tracks of this road, and how the remaining thirty-eight feet are or can be necessary for the proper use of said road, it is not easy to understand. If they can own sixty feet they might well claim that six hundred feet were required for the necessary uses of the said railroad. But in view of the Act of 1858, which makes all railroad property, except the superstructure of the road and the water-stations, subject to taxation by ordinances for city purposes, it would seem too clear for argument that the fee of the said sixty feet is liable for the claim, and that judgment was properly entered thereon.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

This case is ruled by The City of Philadelphia v. The Philadelphia, Wilmington and Baltimore Railroad Co., 9 Casey 41. It was there held that the city cannot support a claim for paving, against the road-bed of a railroad. An attempt was made to distinguish the cases, upon the ground that the plaintiff in error owned the road-bed in foe, whilst in the case cited the company had only a right of way over it. We are unable to see any substantial distinction. The right of way acquired by a railroad company is exclusive at all times and for all purposes: Railroad Co. v. Norton, 12 Harris 465; Mulherrin v. Delaware, Lackawanna and Western Railroad Co., 31 P. F. Smith 366. Moreover it is perpetual. For the purpose, therefore, of filing municipal claims for paving against the road-bed of a railroad company the distinction between the right of way and the fee is a shadowy one. While the fact that the company did not own the fee was referred to in the case in 9 Casey, it was not the only or the main reason for affirming the judgment. It was there held that the claim had “no foundation either in the letter of the law or in its spirit, nor in the form of the remedy;” that the paving laws are means of compulsory contribution among the common sharers in a common benefit, and as a railroad cannot, from its very nature, derive any benefit from the paving,-while all the rest of the neighborhood may, it is not to be presumed that the compulsion was intended to be applied to such companies. A scire facias upon a claim of this kind is a proceeding in rem. It is averred in the affidavit of defence “that the premises described in the claim filed in the above-entitled case constitutes a section of the roadway of this company, being a strip of ground sixty feet in width, extending northwardly from Girard avenue, and used exclusively for railroad purposes.” Upon a judgment recovered upon this claim it is plain that no portion of the ground could be sold other than that above described, nor is it claimed that the city could do more than sell the fee in the sixty feet subject to the easement or right of way of the company. The contention is that the company, being the owner of the fee, the fee may be sold subject to the easement. But eui bono ? Such proceeding would be a vain thing. The fee is absolutely worthless subject to the easement. But as before observed it is entirely immaterial whether or not the company is the owner of the fee. In the City of Philadelphia v. Eastwick, 11 Casey 75, the city filed two liens, one against the railroad company for the paving done along its track, and the other against the owner of the fee. Having failed, as we have seen (City of Philadelphia v. Philadelphia, Wilmington and Baltimore Railroad Co., supra), to sustain its claim against the company, the city attempted to enforce it against the owner of the fee, in which it was also unsuccessful. The attempt to lien the road-bed failed, both as to the company holding the mere right of way, and the owner of the fee. The Junction Railroad is a connecting link between three of our leading lines of railroad. It is a public highway of more than ordinary importance. “It would be strange legislation,” says Lowrie, J., in The City v. The Railroad Company, supra, “that would authorize the soil of one public road to be taxed in order to raise funds to make or improve a neighboring one.”

The learned judge of the court below placed his decision partly upon the ground that a portion of the land was in excess of the amount required for the easement. We find no such statement or admission in the affidavit of defence, and we cannot go outside of it. On the contrary, it is expressly averred that the ground in controversy is a section of the roadway of the company, and is used exclusively for railroad purposes.

I have confined the discussion of this case to the matter of the roadbed. The question of the liability of other real estate of such corporations, such as depots, offices, shops, and the like, to taxation and municipal assessments, is not raised by this record.

Judgment reversed, and a procedendo awarded.