author: Paxson, J.

text:
    City of Lancaster versus Kissinger.
    1. A teamster was driving through the streets of a city a pair of horses attached to a platform wagon, which was without sides or hind tail gate, and was loaded with loose boxes containing tobacco. He was seated on one of the. boxes. In crossing a defective gutter, which he had crossed before, but which was too deep for the size of its approaches, and much deeper than it should have been according to the instructions of the city regulator, the jar threw him from his seat, and he fell between the horses and astride the tongue. The horses did not run and he walked along. In trying to grasp the lines he caught •upon one side and drew the horses over to a fence, the cracking of which frightened them and they commenced to run. He could not keep up, tripped and fell, and getting under the wagon received injuries which caused his death. Held, in an action by his widow against the city for damages, the above facts having been given in evidence by plaintiff and being undisputed, that it was error to decline to instruct the jury that they must be satisfied that the proximate cause of the injury was the defective gutter, and that if they believed the testimony, plaintiff could not recover.
    2. The court may be asked to instruct the jury upon the admitted facts of the case.
    3. The rule of Hoag v. The Bailroad Co., 4 Harris, 293; Bailroad Co. v. Kerr, 12 P. F. Smith, 353, and Bailroad Co. v. Hope, 30 P. F. Smith, 373, that the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been seen by the wrongdoer as likely to follow from his act, followed.
    4. Hey v. The City, 31 P. F. Smith, 44, distinguished.
    5. One who is seated upon a wagon in an insecure position, and driving across a gutter which he knows to be defective, is bound to use such care as a prudent man would use under such circumstances.
    6. It was error to exclude from the jury evidence going to show that the person injured had many times, within six weeks before his death driven over the same gutter, with the same wagon, loaded in the manner described, without accident.
    7. It is better, when a point can be affirmed without qualification, that it should be so affirmed, since by difference in language its .force is weakened, and the jury are apt to be misled.
    8. It is the duty of plaintiff, seeking to recover where the gravamen, of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his own part.
    Error to the Court of Common Pleas of Lancaster County.

    Case by Mary Kissinger against the city of Lancaster to recover damages for the death of her husband, Henry M. Kissinger, and the father of her child, Harry Kissinger, caused, as alleged, by the negligence of its officers and employes in properly constructing and keeping in repair a certain gutter in the said city.-
    Plea, not guilty.
    Upon the trial the following facts appeared:
    Henry M. Kissinger was a teamster, and on the 22d of July, 1878, the day on which the accident occurred resulting in his death, was engaged in hauling tobacco with a pair of horses and what is known as a platform wagon, — a wagon without sides or hind end gate. On this wagon were nine boxes of tobacco, — in size three by four feet, — five on the bottom and four others on top of these. The lower boxes were not fastened. Old bolts and nails were used on top of the lower boxes to prevent the upper boxes from slipping. The upper boxes were laid on these bolts and nails. Kissinger sat on the front lower box with his feet on the front gate. The portion of the box upon which he sat measured about two feet: He had driven a similar load earlier in the day over the gutter in question with safety.

      J. A. Sprenger, for the plaintiff, testified:

      “ I saw this man that fell off the wagoii just as he turned into Cherry Alley from Orange Street. I was in front of him. As the wagon came down into the gutter the jar threw the man off. He slid off right down in between the horses astride of the tongue. He threw out his hands as he fell and tried to catch himself. He lit on his feet and walked along. The horses didn’t run away. He tried to catch the lines. lie caught one side and drew the horses over towards the fence, and when it began to crack the horses got frightened and commenced to run. He could not keep up, and tripped himself, and fell and got under the wagon. I saw the hind part of the wagon go over his body. The horses then ran on, and ran into my yard.”
    Kissinger died in consequence of the injuries he received.
    The instructions of the city regulator were that the depth of the gutters should be six inches. The testimony of the witnesses for the defendant as to the depth of the gutter at the intersection of Orange Street and Cherry Alley varied, some saying that it was eight to ten inches deep, others that it was eleven. The testimony of the plaintiff’s witnesses was that it was from fifteen inches to two feet in depth, abrupt in descent, steep, and dangerous. After the accident the street commissioner relaid the gutter, raising it three or four inches, and changed the slope. There was no evidence that at the time of the accident the gutter was out of repair. It was made in 1863 by the street commissioner.

      John M. Eshelman, a witness for the .plaintiff, was asked, upon cross-examination:
    “ Have you not a great many times driven over this gutter in the condition it was in July 22d, 1878, with one-horse wagons and with this same two-horse wagon with nine boxes of tobacco, in the manner you have described to the jury, to this same warehouse?”
    Upon objection by plaintiff, the question was disallowed, and the defendant excepted.
    The witness was further asked:
    “Did or did not Mr. Kissinger, many times within the month or six weeks preceding his death, drive over this same gutter, with the same wagonloaded in the manner you have described, to Skiles & Erey’s warehouse, without accident either to the wagon or himself?”
    Upon objection by plaintiff, the question was disallowed, and defendant excepted.
    Counsel for defendant asked the Court below to charge the jury, inter alia, upon the following points:
    2. It is the duty of plaintiff seeking to recover, where the gravamen of the action is the alleged negligence of the defendant, to show a ease clear of contributory negligence on his own part.
    5. If the jury believe the testimony of J. A. Sprenger, that the deceased was uninjured until after he had crossed the gutter and drawn his horses against the fence, whereby they were frightened and ran away, and thus occasioned the accident, the plaintiff cannot recover.
    6. The jury must be satisfied that the proximate cause of the injury to the deceased was a defective or negligently constructed gutter, otherwise the plaintiff" cannot recover.
    7. If the jury believe the uncontradicted testimony that the deceased was fully aware of the condition of the gutter, by reason of having driven over the same frequently, he was bound to exercise such care and caution as its alleged dangerous character should have suggested to him.
    8. The uncontradicted testimony showing that if there was any defect in the gutter it was a defective grading of the same, for which a municipality is not responsible in damages to a citizen for an injury sustained by reason thereof, the plaintiff" cannot recover.
    The Court below, Livingston, J., answered these points as follows:
    2. The plaintiff seeking to recover here must show negligence on the part of the defendant, — must show, to the satisfaction of the jury, that the alley or gutter was in a dangerous and unsafe condition for ordinary use and travel, which -would be negligence; but the law presumes the injured party exercised ordinary care in crossing the gutter, and, therefore, the burden of proving carelessness or contributory negligence on his part rests on the defendant charging it, unless the proof presented by plaintiff" in itself discloses and shows such negligence.
    5 and 6. While the sixth point in ordinary cases would be affirmed, as the fifth and sixth were discussed as one, we will answer them together. And we refuse to affirm them as stated, and say: If the jury believe, from the evidence, that Ilenry Kissinger was not guilty of carelessness or contributory negligence on his part, before he was thrown from his seat in the manner stated down in between his horses, and also find, from the evidence, that the injury would not have occurred but for a defect in the construction or bad condition of the gutter, the defendant would he liable, although the proximate cause may have been a momentary loss of control, or inability to control his horses after being thrown off, not attributable to the fault of any one, while making an effort to get i’id of the danger caused by his being thrown off his wagon in crossing the gutter.

      7. The city is bound to have its streets and gutters in such order and condition as to be safe for public travel and passage with ordinary care. And if the jury believe, from the evidence, that this street, alley, and gutter were in such condition as to make them unsafe for such travel, then there was negligence on the part of the city, and if the deceased in crossing there used such care and caution as men engaged in such occupation as he was engaged in usually employ in crossing such gutters, plaintiff would be entitled to recover.
    8. This point we refuse to affirm. It is not the law. The law requires the city to have her streets and gutters to be so graded and made as to be safe for public travel with ordinary care. It will not do for her to say the streets and gutters are improperly and negligently made, are in bad condition, but she is not liable for injury because the fault is in defective grading, and if the injured party had used very great and extraordinary care he might have avoided the accident. The city has no right to have her streets, alleys, and gutters in such unsafe and dangerous condition, either from defective grading, or defective construction, or want of repair, or safety from any other act of hers, as to require very great or extraordinary care and caution on the part of the traveller. If it does so grade, construct, or keep them, and injury or damage are caused thereby, it is liable.
    Counsel for defendant excepted to these answers.
    September 28th, 1880, verdict for the plaintiff for $1600, upon which judgment was entered.
    Defendant then took out a writ of error, assigning, inter alia, as its first, third, and fourth and fifth grounds of error, the answers to its second, fifth and sixth, seventh and eighth points respectively, and as its eighth and ninth grounds of error, the rejection of the evidence as above set forth.

      Charles J. Landis and Samuel H. Reynolds for plaintiff in error:
    To say the law presumes the injured party exercised ordinary care in crossing the gutter, and therefore the burden of proving carelessness or contributory negligence rests on defendant, is in direct conflict with'all the authorities on this subject: Waters v. Wing, 9 P. F. Smith, 211.
    A party is to be governed, in the degree of care and caution he is to exercise, by the circumstances of the case, and nature of the difficulties and dangers he ventures to surmount: Railroad Co. v. McTighe, 10 Wr. 316 ; Railroad Co. Ackerman, 24 P. F. Smith, 265 ; McGrew v. Stone, 3 P. F. Smith, 436 ; Railroad Co. v. Stinger, 28 P. F. Smith, 219 ; Mulherrin v.
      Railroad Co., 31 P. F. Smith, 366 ; Railroad Co. v. Feller, 3 N., 226.
    A person who knows a defect in a highway, and voluntarily undertakes to test it when it could be avoided, can not recover against the municipal authorities for losses incurred through such defect: Wharton on Negligence, p. 363; Horton v. Ipswich, 12 Cush., 488 ; Wilson v. Charlestown, 8 Allen, 137 ; Lovenguth v. Bloomington, 71 Ill., 238.
    If the proximate-cause of damage be the plaintiff’s unskilfulness, although the primary cause be the defendant’s misfeasance, the former cannot recover: Flower v. Adam, 2 Taunt, 314.
    A municipality, having power to grade its streets, is not responsible in damages for an injury sustained by a citizen iu consequence of the particular grade adopted: 11 Casey, 324 ; Roberts v. Chicago, 26 Ill., 249 ; Duke v. Mayor of Rome, 20 Ga., 635.

      Charles Denues and M. Brosius for defendant in error:
    In regard to the first assignment of error, it is not necessary for the Court to answer a proposition in the very words submitted. It is enough if the answer be sufficiently full to be understood: Munderbach v. Lutz’s Administrators, 14 S. & R., 220 ; Geiger v. Welsh, 1 Rawle, 349 ; Railroad Co., v. Rowan, 16 P. F. Smith, 393.
    The reasoning which attempts to convict Kissinger of contributory negligence by showing that he knew the gutter was there, that it was a dangerous gutter, and be had crossed, it once before, would lead to the alarming consequence that the greater and more obvious the defects in highways, the greater the city’s immunity from liability for damages: Erie City v. Schwingle, 10 H., 384 ; Lower Macungie Township v. Merkhoffer, 21 P. F. Smith, 276 ; Pittston v. Hart, 8 N., 389.
    To say that the city shall escape liability because Kissinger, when thrown into a position of extreme peril, did not exercise the wisest discretion and the most accurate and deliberate judgment in the meansemployed to release himself, is to shock reason and common sense: Hey v. Philadelphia, 31 P. F. Smith, 51.
    The question of grading is not involved.
   The opinion of the Court was delivered by

Paxson, J.

This action was brought in the Court below by Mary Kissinger against the city of Lancaster to recover damages for-an injury to her husband resulting in his death. Henry M. Kissinger was a teamster, and on the morning of July 22d,. 1878, was driving a pair of horses, attached to a platform wagon, through the streets of the city of Lancaster. The wagon was loaded with loose boxes containing tobacco, upon one of which Kissinger was seated. There were no sides to the wagon, and nothing to keep the boxes in place. In crossing a gutter, the jar threw Kissinger off' his insecure seat, lie fell between the horses and astride the tongue. The horses were not frightened, and continued walking. The deceased walked between them for a short distance "What then occurred is best described by one of the plaintiff’s witnesses: “ He lit on his feet and walked, along; the horses didn’t run away; he tried to catch the lines; he caught one side and drew the horses over towards the fence, and when it commenced to eraek, the horses got frightened and commenced to run; he could not keep [stand]"up, and tripped himself and fell, and got under the wagon; I saw the hind part of the wagon go over his body.”

The plaintiff contended that the gutter was defective and dangerous, and that this was the proximate cause of the accident. The character of the gutter has been settled by the verdict of the jury. It appears to have been too deep for the size of its approaches, creating a rude jolt or jar when a wagon crossed it. It had, however, been in existence for several years, and the undisputed evidence shows the deceased knew its condition, and had on the same morning crossed it with the same team, and a similar load, in safety.

The gutter does not seem to have been out of repair; the defect wras in the grade. It was urged on behalf of the city, that it was not responsible for an accident the result of a defective grade, and the Court was called upon by defendant’s eighth point to so instruct the jury. The Court declined to give such instruction, in which we cannot say there was error under the circumstances. There was really no question of grade before the jury. No evidence had been offered to show that the grade of the gutter had been fixed by the city authorities as it was found to be at the time of the accident. On the contrary, it appeared from the defendant’s evidence, that six inches was the depth for gutters according to instructions issued by the city regulator. This gutter was much deeper ; several witnesses say it was eighteen inches in depth. The city, after the accident, raised it several inches. Under the circumstances, Carr v. Northern Liberties, 11 Casey, 324, and other authorities cited by the defendant do not apply.

The two principal questions, as developed upon the trial, were, 1st, was the defective gutter the proximate cause of the injury ? and, 2d, was the deceased guilty of contributory negligence ?

The first question was distinctly raised by the.defendant’s fifth and sixth points (see third assignment). The Court treated them as- one, and answered them together. The instruction prayed for was declined. In this we think there was error. Both points should have been affirmed without qualification. It is true the affirmance of the defendant’s fifth point would practically have withdrawn the case from the jury, for although its facts depended upon the testimony of J. A. Sprenger, yet Mr. Sprenger was one of the plaintiff’s witnesses, and his evidence was not disputed. It was equivalent to a prayer for instructions upon the admitted facts of a case which has been expi’essly sanctioned in Hoag v. The Railroad Company, 4 Norris, 293, and other cases.

It is not always easy to correctly ascertain the proximate cause of an accident. The general rule applicable to such eases is, “ that the injury must be the natural and probable consequence of the negligence ; such a consequence as under the surrounding circumstances of the case, might and ought to have been seen by the wrongdoer as likely to flow from his act:" Hoag v. The Railroad, supra ; Pennsylvania Railroad Co. v. Kerr, 12 P. F. S., 353 ; Same v. Hope, 30 Id., 373.

If we apply this principle to the case in hand, it will at once be seen that the gutter was not the proximate cause of the injury to the deceased. In crossing it he -was thrown from his seat by the jolt occasioned thereby. But he was not injured by the fall, nor was he necessarily placed in peril. The horses were not frightened, and continued to walk. It is clear that but for his unfortunate blunder in pulling the horses up against the fence, the breaking of which alarmed them,he would not have been injured. There is no analogy between these facts and the case of a man who is in peril by reason of a runaway horse and a dangerous precipice, as in Hey v. The City, 31 P. F. S., 44. In such instances a man is not to be held to the exercise of the soundest judgment. The peril of such a position may well excuse an act which in cooler moments would be avoided. In the case in hand, if the horses had been frightened, and were running away, the mistake of pulling the wrong line would have had little significance. But for a man who was in no peril, with a quiet team, to pull it up against the fence until, by the breaking thereof, the horses were frightened and ran away, is quite a different matter. It was not, in the language of the rule above cited, “ the natural and probable consequence” of the defective gutter.

The defendant attempts to hold the plaintiff to the rule that the deceased was bound to exercise care according to the circumstances; that inasmuch as he knew the dangerous condition of the gutter, “ he was bound to exercise such care and caution as its alleged dangerous condition should have suggested to him.” See fourth assignment. The Court below denied this proposition, and held the deceased was bound only to use ordinary care. This idea runs all through the rulings of the Court. As a general principle, ordinary care is undoubtedly the rule in the use of a public highway : Erie v. Schwingle, 10 Harris, 384 ; Lower Macungie Township v. Merkhoffer, 21 P. P. S., 276 ; Borough of Pittston v. Hart, 8 Norris, 389.

In this case much of the danger was the result of the insecure position of the deceased upon his wagon. His seat was hut a loose box, and he had nothing to hold on to. He was liable to be thrown off by any sudden jar, whether caused by the gutter, a loose stone, or any inequality of the road. This is patent, and ought not to be ignored in the case. "What was the proper measure of care under such circumstances ? The same care that a man with a fixed load and a firm seat would be expected to take ? Certainly not. Negligence is the absence of care according to the circumstances. If a man is driving an untamed horse, he naturally and properly exercises more care than if he was driving one entirely gentle. So of the road. If it is rough and out of repair, he exercises more care than if well graded and macadamized. The deceased knew of the defects in the gutter; he knew also that he had an unsafe seat; he was bound to use such care as a prudent man would have used under such circumstances, and the Court should have so instructed the jury.

It was error to exclude the evidence referred to in the eighth and ninth assignments. It was certainly competent to show that the deceased had driven across the gutter several times shortly before his death. It would be evidence of his knowledge of its condition.

The defendant was entitled to an unqualified affirmance of its second point. This is not denied, but it was argued that the answer of the learned judge was a substantial affirmance. It is much better when a point can be affirmed to say so. When affirmed with a qualification or in language different from the point itself, it is very apt to mislead the jury. It certainly weakens the force of the point with them.

There is nothing else in the case that requires discussion.

J udgment reversed.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    May Term, 1881,
    No. 166.
    June 20th, 1881.
    Appeal of W. C. Wood et al.

    It is no reason for refusing to open a judgment obtained upon a renewed promissory note containing usurious interest, that in order to renew the note plaintiff was himself compelled to borrow money at the same, or a greater rate of interest, and that this fact was known at the time of the renewal to the defendant, who agreed that the usurious rate should be paid.
    Appeal of W. C. and J. Wood from the decree of the Court of Common Pleas of Tioga County, discharging a rule to show cause why a judgment entered upon a warrant of attorney should not be opened, and the defendant let in to a defence.
    Judgment was entered June 17th, 1880, by E. T. Billings, to the use of F. Gf. Hall, against W. C. and J. Wood for $747.68 by virtue of a power contained in a promissory note dated October 2d, 1879. After execution had been issued defendants obtained a rule upon the plaintiffs to show cause why the judgment should not be opened and the defendants let in to a defence. The rule was heard upon the affidavits of W. C. Wood, one of the defendants, and E. T. Billings, the plaintiff.
    The affidavit of Wood was to the effect that the note in suit was given as a renewal of a former note, and had no other consideration; that payments which were detailed had been made upon the former note, reducing the amount legally due to $322.96, and that the balance of the plaintiff’s claim consisted of usury.
    The affidavit of Billings set forth that he bought the original note drawn by W. C. Wood and O. L. Wood, and entered judgment upon it for $1025 ; that when it came due the defendants in the present case stated to plaintiff that they had bought the farm against which it was a lien, and were to pay it; “ that they could not then pay the said judgment., but that they were willing to pay, and would pay, to deponent 10 per cent, for the use of said amount due on said judgment, if he, deponent, would extend the time of payment thereof. Your deponent said to them that he could not get along without such payment, as he needed the money, and would be obliged to borrow if he did not get the amount due on said judgment, and that he could not get money at a less rate than 10 per cent. They then stated to deponent that if he would extend the payment of said judgment they would pay him 10 per cent, at least, and as much more as deponent had to pay; that they could not raise money to pay said judgment at a less rate than 10 or 12 per cent., and that they would pay deponent 10 per cent., and more if he bad to pay more, but at least 10. Tour deponent, in consideration of said promise, and for the purpose of accommodating said defendants, borrowed money for his then needs, depending on defendants to pay him, as they had agreed, and he has paid, in consequence of said agreement, in interest and discount, more than the amount which they now ask to be relieved from ; that he has paid interest and discount at a greater rate than 10 per cent, in consequence of their promise,” and that the balance due on a basis of 10 per cent, was $747.68, which defendants subsequently agreed to pay if plaintiff would satisfy the judgment and accept a new note at one year for the amount, which said note plaintiff accepted, and is the note now in suit.
    The Court below discharged the rule, saying:
    “As there is no evidence and no allegation that the loan set up by T). T. Billings in his affidavit was other than a loan by him to accommodate defendants, and his statement that he has paid for the benefit, and at the request of the defendants, the whole amount of the alleged usurious interest is not controverted, we do not feel moved to open this judgment. The defendants not only promised to pay the extra interest, but they induced “Billings to pay it upon their promise to recompense him. To permit them to open the judgment, under such circumstances, seems to us to be inequitable.”
    The defendants then took out a certiorari sur appeal, assigning as error the discharge of the rule.

      Elliott & Watrous and Strang & Sanders for the appellants.
    Why an unlawful agreement to pay usurious interest by the maker of a note is more binding because coupled with an agreement that the payee may, if he choose, make an unlawful agreement with another party to pay usurious interest for money to be used by himself, is difficult to understand. It would practically nullify the statute against usury.
   The opinion of the Court was delivered by

Gordon, J.

This was an application on part of the appellants to the Court below to open a judgment now standing on the dockets of Tioga County against them, in which I). T. Billings is the legal, and F. G. Hall, the use plaintiff. The case was disposed of on the affidavits of W. C. Wood and H. T. Billings. By these it appears there was included in the judgment some $444.18 of interest beyond the legal rate. Billings, however, avers that when the original note, of which the present one is a renewal, became due, he applied to the defendants for payment, and that they, not being able to pay, and he being in want of money, agreed that on his giving them an extension they would pay him interest at the rate of not less than 10 per cent., and more, if he had to pay more for money for his own use; that in consequence of this arrangement he granted the extension and borrowed money for his own use at a rate even greater than 10 per cent., and that subsequently a new judgment was taken which included the old one, previous payments being first deducted with the addition of 10 per cent, interest. Under this statement the learned judge of the Court below thought that as Billings had paid to the person or persons from whom he borrowed the money to supply that which the defendants ought to have paid, the whole amount of the interest which was included in the judgment, it would be inequitable to permit the defendants to avoid a contract made at their own instance and for their own benefit, and therefore refused their motion.

We confess this presents a very fair and reasonable account of the transaction between these parties, but then the fact remains that $444.18 of this judgment is confessedly usurious, and under the provisions of the first section of the act of May 28th, 1852, this amount the defendants cannot be compelled to pay. The plaintiff’s affidavit does but explain why the usurious interest was included in the judgment, but this explanation does not relieve the contract from the inhibition of the statute.

Confining our attention, as we must, to the transaction itself, we discover just this: that if the defendants are compelled to pay the full face of this judgment they must pay an .amount of interest which is 4 per cent, in excess of the legal rate, and how can the force of this fact be averted by the allegation that Billings had, in order to accommodate the defendants, to pay to some other person 10 per cent, for an equivalent loan ? And if he paid to another what he might have refused to pay, does that furnish a reason for compelling the defendants to pay what they may lawfully refuse to pay ?

The serious defects in the argument of the appellees is that it would allow the lender to recover usurious interest whenever it appeared that the money loaned had been borrowed at illegal rates, or when the creditor, in order to accommodate his debtor in the way of time, has contracted such loan in order to meet his own necessities. In other words, usury is made to condone usury, — similia similibus ourantur. We need hardly say that the statute cannot be avoided by any such method; the intent is too obvious, and were it permitted the statute might as well he repealed.

The order of the Court below, discharging the rule to open the judgment, is reversed and set aside, and a procedendo is awarded.


author: Mercur, J.

text:
    Appeal of John G. Bridaham et al.

    1. Where a legatee, after making a will disposing of her legacy, assigned the legacy by an instrument, the validity of which is in dispute, and died, it is the duty of the auditor appointed to distribute the estate of the testa or, when the assignment is presented before him, to determine the question of its validity.
    2. It is not necessary for the assignee to enforce his claim against the executor of the estate of the legatee.
    8. And this is true, though the Supreme Court has previously affirmed the validity of the will of the legatee.
    Appeal of John G-. Bridaham and Daniel Cessna, attaching creditor of the said John G. Bridaham, from the decree of the Orphans’ Court of Bedford County, confirming the report of an auditor appointed to distribute the balance in the hands of the executors of John Bridaham, deceased.
    John Bridaham died in June, 1865, leaving a last will and testament, which was dated May 3d, 1865, and proved June 24th, 1865. In it he appointed, as his executors, John W. Lingenfelter and his son, John G. Bridaham, and, after making a specific devise to his wife, Eve, he directed that $300 be paid by his executors to his daughter, Charlotte, and that the remainder of his estate be divided among his daughter, Charlotte, his daughter, Louisa, his son, John G., and the children of his deceased son, Henry, in four equal shares.
    Charlotte Bridaham made a will, dated April 4th, 1877, in which she appointed Alexander King her executor, and after bequeathing $100 to her nephew, Willie Bridaham, gave, bequeathed, and devised the remainder of her estate to her sister, Louisa, the children of her brother, Henry, and the children of her brother, John' G. Bridaham. She died May 24th, 1877, and letters testamentary were granted to her executor, King, May 31st, 1877.
    Twenty-two days before her death, on the 2d of May, 1877, Charlotte Bridaham entered into an agreement with John G. Bridaham, which set forth that “ in consideration that the said John G. Bridaham hath and doth undertake, covenant, agree, and bind himself, his heirs and assigns, to furnish and supply me, during the remainder of my lifetime, with sufficient boarding, washing, nursing, care, attentioti, and every other thing necessary for my comfort through life, and bury my body after my death ; and that he shall also furnish and supply to my mother, Eve Bridaham, during her lifetime, all the care and attention that she may require, I do assign, transfer, give, convey, and set over, and by these presents have assigned, transferred, given, conveyed, and set over to the said John G-. Bridaham, his heirs and assigns, all my goods, chattels, property, and effects I now have, or may hereafter acquire, and particularly all my legacy or legacies, share, or part of my father’s estate, given and bequeathed by his last will and testament.”
    A dispute having arisen concerning the will of Charlotte Bridaham, a feigned issue of devisavit vel non was framed in the Court below, in which Alexander King, the executor, was plaintiff, and John Q-. Bridaham, defendant. It was pleaded in this issue:
    1. That the will was procured through undue influences.
    2. That it was revoked by the agreement of May 2d, 1877. The verdict was for the plaintiff, after which there was a -writ of error to the Supreme Court. This Court decided as follows:
    “ This feigned issue was tried on an immaterial question. The execution and validity of the will were not denied on the issue devisavit vel non, but it was pleaded that the will was revoked by a subsequent sale of the goods and chattels, property and effects of Charlotte Bridaham, the testatrix, to John, her brother. The article of sale expressed no intention to revoke the will, and it is not clear that it passed all the property which would pass under the will. rihe validity of the agreement was a disputed fact, but it was between parties in a different right, and the executor could not contest it until he had established the will. The jurisdiction belongs to a different court. The issue upon .the will concerned only the heirs or legal representatives, but that in the article of agreement a purchaser. The executor’s title to administration depended on the will, and that was not disputed on the trial. The verdict in favor of the will should stand.
    “ Judgment is affirmed on the first issue on the validity of the will, and the finding on the other issue is quashed.”
    Upon the petition of Alexander King, executor of Charlotte Bridaham, setting forth that the testatrix was a legatee and heir-at-law of John Bridaham, deceased, that there were certain balances in the hands of the executors of the said estate, and.praying the Court, to appoint an auditor .to distribute these balances among the four heirs and legatees of John Bridaham, deceased, viz., Louisa Grubernator, John G. Bridaham, the heirs of Henry Bridaham, and Alexander Ring, executor of Charlotte Bridaham, according to their respective interests, the Court below appointed an auditor to make distribution.
    Before the distribution, Daniel Cessna, holding a judgment against John G. Bridaham for $900, issued an attachment execution summoning the executors of the estate of John Bridaham, deceased, and the executor of the estate of Charlotte Bridaham, deceased, as garnishees.
    Before the auditor, the claims of John G. Bridaham as assignee of his sister Charlotte, and of Daniel Cessna, his attaching creditor, were presented and were objected to. John G. Bridaham testified that he performed, his contract with his sister until she and her mother died, but admitted that the bills for her coffin, funeral expenses, medical attendance, and a judgment were not paid.
    The auditor found that under the feigned issue the will of Charlotte Bridaham was established to be a valid will; that Alexander Ring, being the executor of the same, was entitled to the share of the testatrix in her father’s estate for the purpose of administration, and that all claims against the estate must be enforced against him, including the contract between John G. Bridaham and his sister, if the same was a valid contract. He awarded to Alexander Ring, executor, the sum of $1680. The auditor reported that he was influenced in his decision by the fact that the will has been declared to be a valid will by the proceedings in the feigned issue, whilst the contract is yet to be declared valid, and there are serious objections to it. It is objected to, and if it is made to appear to be a subsisting and just contract,» the estate conveyed may be recovered from the executor.
    John G. Bridaham and Daniel Cessna excepted, inter alia, to this finding and appropriation of the funds. ,
    The Court below, Hall, P. J., overruled the exceptions and confirmed the report.
    This ruling was assigned as error.

      John Cessna and J. B. Cessna for the appellants.
    The Court failed to distinguish the difieren ce between a claim of a purchaser from decedent during life and a creditor next of kin and legatee of the decedent. The error of the Court and auditor lies in the ruling that the claim of the purchaser must be enforced through the executor. This was a contract for the sale of a chose in action for a valuable consideration. Delivery was effected by the execution of the paper: Pringle v. Pringle, 9 P. F. Smith, 281; Smyth
      v. Craig, 3 W. & S., 14 ; Parker v. Donaldson, 2 W. & S., 9 ; Bond v. Bunting, 28 P. F. Smith, 210.
    The agreement was an executed and not an executory contract: Bortz v. Bortz, 12 Wr., 382 ; Garver v. McNulty, 3 Wr., 483 ; Iron Company v. City of Erie, 5 Wr., 341 ; Gray v. Packer, 4 W. & S., 17 ; Perry v. Scott, 1 P. F. Smith, 119 ; Coal and Iron Company v. Scott, 9 Norris, 332.
    An agreement may be executed as to one party, and ex-ecutory as to the other: Neas’s Appeal, 7 Casey, 294 ; Cook v. Trimble, 9 Watts, 15.
    By the assignment the legacy passed from Charlotte, and the contract being executed no failure on the part of the assignee could reinvest it.

      John M. Reynolds for the appellee.
    The commission of the auditor gave him no authority to try or determine the validity of this paper. The contract is executory. The failure of the vendee to show performance operated as a dissolution of the contract, and put an end to all rights and obligations under it: Pott’s Appeal, 5 Barr, 501 ; Arnold’s Administrator v. Fitzgerald, 26 P. F. Smith, 385 ; 7 W. & S., 41.
    Whether it is an executed or executory paper depends not on the words but upon the intention as gathered from the whole contract: Shirley v. Shirley, 9 P. F. Smith, 272 ; Ogden v. Brown, 9 Casey, 249 ; Williams v. Bentley, 3 Casey, 300.
    Very slight circumstances showing any remaining contract in the vendor will be allowed to prevail: Winslow v. Leonard, 12 Harris, 14.
   The opinion of the Court was delivered by

Mercur, J.

This contention arises between the executor of CharlotteBridaham and one claiming as a purchaser from her during her life. This decree appears to have been made under a misapprehension of the power and duty of the auditor to-decide on the validity of the alleged purchase The judgment in the feigned issue of Bridaham v. King established the validity of Charlotte’s will, but not the validity nor the invalidity of appejlant’s purchase. Her previous execution of a will did not prevent her from selling and transferring the property in question. If she owned the property at the time of her death, the proceeds were correctly decreed toiler executor. If, however, she had sold and transferred the same during her life, then the proceeds thereof should be decreed to the purchaser or those claiming under him.

The appellant gave in evidence an instrument in writing, under seal, on its face duly executed and acknowledged by Charlotte, whereby she sold and transferred the property to him. The validity of this instrument appears to have been questioned, and fraud, misrepresentation, and absence of sufficient consideration in its execution, and a failure of performance by the appellant alleged. Without examining and passing on the questions thus suggested, the auditor concluded that if the agreement was valid, yet, nevertheless, the fund should be decreed to the executor, and if the appellant had any claim which could be enforced, it should be made against the executor. In confirming the report, in so far as it rested on such assumption, the learned judge erred. The ease must therefore be sent back, with instructions to hear the evidence, and to pass upon and decide the several questions affecting the validity of the written instrument, and to decree in accordance with this opinion.

Decree reversed, and a procedendo awarded.


author: Sterrett, J.

text:
    October and November Term, 1881,
    No. 76.
    Clohessy versus Roedelheim et al.

    1. The act of March 29th, 1860, P. L., 346, was not intended to prevent every admixture of liquors, and the penalty of the act is aimed at such impurity, vitiation, or adulteration of liquors or admixtures thereof as impair either their quality or value.
    2. The act forbids the introduction of all poisonous or noxious ingredients.
    3. In order to establish a forfeiture of the right of vendors to recover the price of liquors sold, because of a violation of the local option law, it is not enough for the vendee to prove that an agreement or contractwas made in the county in which that law is in force, but it is incumbent on him to prove a sale consummated by delivery in that county.
    4. It is not error to refuse to affirm a point which improperly assumes as conceded a fact which is denied.
    5. If a sale is actually made in one county, neither the manner in which the goods are consigned to the purchaser, nor the purpose for which they are thus consigned can possibly make another county the place of sale or delivery.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Assumpsit by S. Roedelheim, S. Bing, and IT. Schloss, trading as Roedelheim, Bing & Co., against Michael Clohessy, to recover the price of certain liquors sold and delivered.
    On the trial in the Court below, before Collier, J., counsel for plaintiff offered in evidence a note drawn by the defendant, dated April 6th, 1874,- at six months, for $280, and a book account for orders filled between April 24th and September 18th, 1874, showing an unpaid balance of- $197.40, amounting in all to $478.95.
    Michael Clohessy, the defendant, testified in substance as follows:
    I live in the borough of Irwin, Westmoreland County; I conduct a hotel there. The plaintiffs in this case used to be in the liquor business in Pittsburgh. I bought these goods in my own house in the borough of Irwin from Mr. Bing, a member of the firm, in the fore part of April, 1874. They were delivered about the 6th or 7th of April at Larimer Station in Westmoreland County. They were directed to ‘ B. B. & Co.,’ Larimer Station, Westmoreland County. Plaintiffs afterwards sent a card authorizing the station master or agent to deliver the goods to the bearer of said card. They sent one of their business cards. Teamsters hauled the goods to my place at Irwin after night. I got some little goods afterwards, in September, 1874. Mr. Bing agreed with me, and he wrote in my ledger that he was going to send me Finch’s golden wedding pure rye whiskey, made in the year 1869. A barrel of whiskey was shipped to me May 22d, 1874. They shipped several times to me with this card. 1 have one of the cards here.
    (Witness produces it.)
    “ Pittsburgh, May 22d, 1874.
    “ Freight Agent,
    “ Irwin Station, Pa.
    “ Dear Sir : Please deliver unto bearer one barrel and one box glassware, marked B. & B., at your station, and oblige, “ Yours, Boedelheim, Bing ■& Co.”
    The bargain or sale for the May shipments was closed at my place with Mr. Bing. Mr. Bing guaranteed that he would give me pure liquor. He was to give me some Free-port whiskey and some of'Finch’s golden wedding, and some other different brands of liquors. I came into Pittsburgh a few days afterwards and met a neighbor of mine in Irwin. I took him down. Mr. Bing wrote me out a written guarantee in the presence of my friend. The firm signed it. He guaranteed to give me pure rye whiskey. He guaranteed to give me everything pure ; everything would be as he represented it; and he wrote me out this guarantee, and I forgot to lift it. Two or three weeks afterwards I went in to him and told him the people were complaining of the goods, and that they were not, I thought, as he told me they would be. I told him that the whiskey was not as old as he represented it; the stamps showed so. I told him the goods wasn’t as he represented thém to be, and I couldn’t make use of them; I didn’t get the kind of whiskey and liquors I bargained for; the people wouldn’t pay me anything for it. I offered two or three times to send it back. They didn’t accept my offers. They told me they would make it all right with me, and guarantee I never would lose anything. It wasn’t pure rye whiskey; it didn’t come up to the guarantee, and had an offensive taste. I employed Francis O. Phillips, professor in the Western University, to examine these liquors. I got bottles, filled them out of barrels of liquors that I got from this firm that I had on hand. Another man and me, as soon as we filled them, fetched, them here and gave them to Mr. Phillips. I bought no liquors from anybody else than the plaintiffs. All the liquors that I sold came from the firm of Roedelheim, Bing & Co. No one about my establishment put water or sugar or any other adulteration in any of these liquors.
    Upon cross-examination he testified:
    These April goods were shipped to Larimer Station, in the name of R., B. & Co., over the Pennsylvania road. Mr. Bing requested that the goods be marked R., B. & Co. I told Mr. Bing I didn’t w'ant to get the goods at all; that I was afraid of being returned for selling them; and he told me he would ship the goods in the name of the firm, and he would guarantee it would never cost me one dollar the selling of it. He said he had an attorney in Greensburgh, and if 1 would get into any trouble he w-ould see me out of it. I never knowed anything about the card ; they planned it all out themselves.
    Ten other witnesses testified that they were customers of the defendant, drank liquors at his bar, and that these liquors had a bad taste and smell.
    F. C. Phillips, for the defendant, testified that he was professor of chemistry in the Western University for five years; that he had received samples of liquors from Clohessy November 17th, 1876, and made an analysis of them; that the Freeport whiskey had a peculiar disagreeable taste, contained acetic acid, and, as an adulteration, a considerable quantity of a bitter substance, which he believed to be hop bitters; that the Monongahela whiskey contained a small quantity of burnt sugar, and had an offensive, mouldy, or smoky taste; that the gin contained a moderate amount of sugar and oilofjuniper,and sediment was muddy and acid; and that he believed it to consist of gin, with a notable quantity of sour wine; that the port wine contained a considerable quantity of sediment, sulphuric acid, acetic acid, and a considerable quantity of sugar ; that the family l’ye and Jamaica rum contained no impurities; and that thé brandy was very acid, and contained sediment, sour wine, and, as an adulteration, a bitter extract. There was no poisonous admixture.
    Counsel for defendant then proved that the county of Westmoreland voted against license March 21st, 1873; and that the local option law was in force in that county at the time of these sales.
    Samuel Bing, one of the plaintiffs, testified in rebuttal in substance:
    Clohessy bought those goods, in April, 1874, as he bought all his other goods, — by inspection, — by coming to our store after I solicited him to come there, — requested him to come. We showed him the goods. He inspected them. We told him the age of the goods. If he found them satisfactory he would buy them, and if not he would pass them by. We gave no guarantee; we never give any guarantee. Every man that is in the whiskey business knows what Freeport whiskey is. We sold it as Freeport. He tasted the port wine, the rum, and the gin. I know nothing at all about a written guarantee. I was never requested to give one. We had a special arrangement with Mr. Clohessy to ship his goods with our initials on, — E. & B., — as he didn’t want to receive the goods in his own name during local option time in Westmoreland County. The goods were shipped from our store in Pittsburgh by the Pennsylvania railroad. We delivered the card giving the railroad company the right to deliver the goods to the bearer to Mr. Clohessy. At his request we would write out the card, directing the station agent at Irwin to deliver these goods to the bearer. That card, of course, we gave to Mr. Clohessy ; who he gave that card to to get his goods we don’t know. It was Mr. Clohessy’s arrangement; we would not make no such arrangement with anybody else. The freight was paid by Mr. Clohessy, to the best of my knowledge; we never paid any freight. Those goods were ordered in our store by Mr. Clohessy.
    Upon cross-examination, the witness said:
    I never took any order from him at Irwin. After selling the goods we had a standing rule with Mr. Clohessy. He didn’t want to be known as receiving the goods in his owm name, and he requested us .to mark the goods E. & B., give him the card to allow him to go there himself or send there whoever he pleased, and the freight agent would give those goods to the bearer of the card. If we didn’t give the card to him directly, we mailed it. That card authorized the railroad company to deliver the goods at the station to -which they were shipped in Westmoreland County. Mr. Clohessy requested us to ship them that way for the reason stated, — that he didn’t want to be known. He wanted to guard against the local option law. He didn’t want to be known as receiving goods in his own name.
    The testimony of Sigmund Roedelheim and Herman Schloss, the other plaintiffs, was to the same effect.
    Counsel for plaintiffs asked the Court to charge the jury upon the following points, inter alia:

    8. That if the jury believe that at the time of shipment of the goods, a card or wwitten order was delivered personally to defendant or mailed to him, which card directed the railroad company to hand over the goods sued for herein, to defendant or bearer, and that such card or order was so delivered or mailed by direction of defendant, then the instant such card was so delivered or mailed at Pittsburgh the title to said goods passed out of plaintiff's, and vested at once in Clohessy, the defendant, and the sale was in law a sale made at Pittsburgh, and was not in violation of the local option law of Westmoreland County.
    9. That if the jury believe that the goods sued for herein were marked “ R. & R.” by special order of Clohessy, the de - fendant, and that defendant paid the freight thereon, the sale was not completed till delivered to the common carrier at Pittsburgh, but that when so delivered the title was instantly vested by law in the defendant, Clohessy.
    The Court affirmed these points and defendant excepted.
    Counsel for defendant asked the Court to charge upon the following points, inter alia, which points and answers were:
    2. That any impurity, vitiation, or adulteration to the least extent would fall within the meaning of the law which prohibits a recovery for such liquors. Therefore,if the jury find from the evidence that there was the least impurity, vitiation, or adulteration, their verdict should be for the defendant.

      Answer. If the jury believe that there was any impurity, vitiation, or adulteration which impaired the quality or value of any of the liquors in suit to the least extent, the plaintiffs cannot recover for the liquors so impaired.
    3. That the term impure means the introduction of any substance foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiff's cannot recover.

      Answer. Refused.
    5. That if the jury find that the contract of sale and purchase was made in the county of Westmoreland while the local option law, which prohibited the sale of intoxicating liquors in that county, w^as in force, and in violation thereof, the plaintiffs cannot recover.
      Answer. Refused.
    7. That if the jury believe the testimony of the plaintiffs themselves, that the liquors were shipped in their own names to Larimer, or any other point in the county of Westmoreland, and that the goods were there delivered to the defendant in violation of the local option law then in force, the plaintiff cannot recover.
    Answer. Refused. The plaintiffs expressly deny that they delivered the goods to the defendant in Westmoreland County.
    8. That if the jury find, from the facts as stated by the plaintiffs, that the liquors were shipped to any point within the county of Westmoreland in the plaintiffs’ names, and that the plaintiffs authorized the delivery to' defendant, in the county of Westmoreland, at the request of defendant, to knowingly aid him to evade the prohibitory law then in force in that county, then, and in such case, the plaintiffs cannot recover in this action.

      Answer. Refused.
    9. That if the jury find from the evidence that the plaintiffs, in the sale and delivery of the liquors sued for, knowingly aided and abetted the defendant in any way to evade or violate the liquor law then in force in the county of Westmoreland, then, and in such case, the plaintiffs cannot recover.

      Answer. Refused.
    Counsel for defendant excepted to these answers.
    The Court charged the jury generally that if they believed there was a delivery in Westmoreland County, or an agreement to deliver there, they should find for the defendant; that it was for them to determine whether any of the liquors were impure, vitiated, or adulterated in the least degree, so as to impair their quality or value, and if they were, plaintiffs could not recover for the liquors in that condition; that if all were in that condition they could not recover anything, and if only a part were so they could not recover for that part; and that if there was a guarantee defendant could stand upon it, and if the goods were not as represented, the plaintiffs could not recover.
    January 21st, 1881, verdict for the plaintiffs for $272, upon which judgment was entered.
    Defendant then took out a writ of error, assigning as his first, second, third, fourth, fifth, and sixth grounds of error the answers to the defendant’s 2, 3, 5, 7, 8, and 9 points, and as his seventh and eighth grounds of error the answers to plaintiffs 8 and 9 points as above.

      Weir & Gibson and C. F. McKenna for plaintiff in error.
    It was an erroneous interpretation of the act of March 29th, 1860, to instruct the jury that the liquors might be impure or adulterated in such a way as would not impair their value or quality, and if so plaintiffs could recover. The act declares that proof of impurity, vitiation, or adulteration shall be a good and legal defence.
    The plaintiffs made an arrangement with Clohessy for the purpose of shielding him from the penalties of the local option law he was violating. If the contract of sale and delivery were in violation of the statute which prohibited such sale and delivery, the Court will not aid the plaintiffs to enforce it.
    If the plaintiffs knowingly aided and abetted the defendant, or conspired wnth him to violate the law in the sale and delivery of the liquors, the Court will not assist them to realize the fruits of their wrong: United States v. Owens, 2 Peters, 538 ; Coppell v. Hall, 7 Wall., 558 ; Bank v. Lanier, 11 Wall., 369 ; Bank of Augusta v. Earle, 13 Peters, 587 ; Mitchell v. Smith, 1 Binney, 110 ; Seidenbender v. Charles’s Administrator, 4 S. & R., 151 ; Biddis v. James, 6 Binney, 329 ; Maybin v. Coulon, 4 Dallas, 298 ; Duncan v. McLure, 4 Ibid., 308 ; Badgly v. Beale, 3 Watts, 263 ; Kepner v. Keefer, 6 Ibid., 231; Wagonseller v. Snyder, 7 Ibid., 343 ; Clippinger v. Hepbaugh, 5 W. & S., 315; Filson v. Himes, 5 Barr, 452 ; Columbia Bank and Bridge Co. v. Haldeman, 7 W. & S., 233 ; App. v. Coryell, 3 Penna. R., 494 ; Edgell v. McLaughlin, 6 Wh., 176 ; Brua’s Appeal, 5 P. F. Smith, 295 ; Fowler v. Scully, 22 Ibid., 456 ; Stephens v. Monongahela National Bank, 7 Norris, 157.

      Josiah Cohen for defendant in error.
    The place of delivery is the place of sale: Garbracht v. The Commonwealth, 28 Pittsburgh Leg. Journal, 220 ; 2 Parsons on Contracts, 586 ; Shriver et at. v. Pittsburgh, 16 P. F. Smith, 446 ; Pinch v. Mansfield, 97 Mass., 89.
    The true object of the act of Assembly invoked by plaintiff' in error was not to prevent the admixture of liquors, for by its terms admixtures were recognized, but to prevent such admixtures from being impure, vitiated, or adulterated.
   The opinion of the Court was delivered, November 14th, 1881, by

Sterrett, J.

One of the several defences, made in the Court below, was grounded on the act of 29th of March, 1860, which, inter alia, provides that, “ in all actions for the sale of any spirituous, vinous, or malt liquors, or any admixtures thereof, it shall be competent for the defendant, in every such case, to prove that said liquors or admixtures thereof were impure, vitiated, or adulterated; and, proof thereof being made, shall amount to a good and legal defence to the whole of the plaintiffs’ demandPurdon, 949, PI. 61.

Testimony was introduced by the defendant below tending to prove that at least some of the liquors purchased from the plaintiffs were of the character described in the act; and, in the two points covered by the first and second assignments of error respectively, the Court was requested to charge: 1st. “That any impurity, vitiation, or adulteration, to the least extent, would fall within the meaning of the law which prohibits a recovery for such liquors; therefore, if the jury find from the evidence that there was the least impurity, vitiation, or adulteration, their verdict should be for the defendant.” 2d. “ That the term impure means the introduction of any substance foreign to and not essential in the manufacture of pure liquors. Therefore, if the jury find that the liquors sued for contained any impurity, the plaintiffs cannot recover.” The latter proposition was refused; and, in answer to the first, the learned judge instructed the jury that if they believed “there was any impurity, vitiation, or adulteration which impaired the quality or value of any of the liquors in suit to the least extent, the plaintiffs cannot recover for the liquors so impaired.” In view of the mischief intended to be remedied by the act, we think the construction given to it in the foregoing answer, in connection with the general charge, is entirely proper. The act ■was not intended to prevent every admixture of liquors, for by its very terms “ admixtures thereof” are recognized. The penalty of the act is aimed at such impurity, vitiation, or adulteration of liquors or admixtures thereof as impaired either their quality or value. This, of course, forbids the introduction of all poisonous or noxious ingredients, because these necessarily impair the quality, if not also the value of the liquor. The amount found by the jury, as compared with the plaintiffs’ demand, indicate that, under this branch of the defence, part of their claim was excluded by the jury.

Another ground of defence was, that the liquors were sold and delivered by plaintiffs to defendant in Westmoreland County in violation of the local option law then in force in that county. On that subject the testimony was somewhat conflicting, and it was, therefore, a question of fact for the jury, whether the sale was consummated by delivery in Allegheny or in Westmoreland County. That question was fairly submitted with proper instructions as to what constituted a sale, and the jury were told that if they believed the liquors were sold in Westmoreland County their verdict should be for the defendant. In addition to the instructions thus given in the general charge, two of the plaintiffs’ propositions, complained of in the last two assignments, were affirmed. In each of these an important phase of the question, as suggested by the testimony, was clearly and correctly presented, and there was no error in affirming them. The verdict, rendered under the full and explicit instructions thus given in the general charge, and in answer to the plaintiffs’ eighth and ninth points above referred to, establishes the fact that the sale was made in Allegheny County, where the local option law was not in force.

The third assignment is not sustained. It was not enough for defendant to show that an agreement or contract to sell was made in Westmoreland County. Before he could claim that plaintiffs had forfeited their right to recover the price of their goods, in consequence of having sold them in Westmoreland County contrary to law, it was incumbent on him to prove a sale consummated by delivery in that county,— such a sale as would render them amenable to indictment there. As already observed, the instructions on this subject were clear and adequate. The point, as presented, was rightly refused: Garbracht v. Commonwealth, 28 P. L. J., 220.

For the reason given by the learned judge, there was no error in refusing to affirm the point specified in the fourth assignment. It improperly assumed, as a conceded fact, that the liquors were delivered. by the plaintiffs below in Westmoreland County. This they expressly denied, and it thus became one of the main questions of fact for the jury.

The fifth and sixth assignments are not sustained. The propositions recited therein, and which the Court refused to affirm, are based on the testimony as to an understanding between the parties, in pursuance of which the goods, purchased by defendant below, were marked “R. & B.,” and shipped to Westmoreland County, so that his name would not appear as consignee, etc. If the sale was actually made in Pittsburgh, neither the manner in which the goods were consigned to the purchaser, nor the purpose for which they were thus consigned could possibly change the place of sale and delivery. Assuming it to be true that they were marked and shipped in the manner and for the purpose testified to by the defendant below, the plaintiffs, in so doing, violated no law. If they sold and delivered the liquors to him at Pittsburgh, as the j ury found, they had an undoubted right to mark and ship them to him in any manner he might direct. To hold that by so doing they knowingly aided him to evade or violate the liquor law then in force in Westmoreland County, would be wholly unwarranted. Aside from the defence based on the act of 1860, the only question that could legitimately arise on the evidence in the case was whether the sale was consummated by delivery in Allegheny or in Westmoreland County. That question, as we have seen, was fairly submitted to the jury and found in favor of the plaintiffs below

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 172.
    Linton versus Vogle.
    1. On an appeal from the judgment of a justice the defendant cannot be called upon to defend against a claim for damages, the items of which in the aggregate exceed the jurisdiction of the Court on appeal, and a verdict rendered for the amount of such items should be set aside, or the judgment arrested.
    2. While the power of the Court to authorize amendment of the narr cannot be questioned, it is not competent for the plaintiif to cure the defect in such a verdict by remitting the excess over $100, and it is error for the Court to determine that $100 is the proper amount of damages for which judgment should be entered.
    3. The defendant has a right to insist that damages exceeding the limit of the jurisdiction of the justice shall be neither claimed nor proved, and that a jury shall pass upon the question of the amount.
    Error to the Court of Common Pleas No. 1 of- Allegheny County.

    Appeal by defendant from the judgment of a justice of the peace.
    John Vogie, the plaintiff, obtained a judgment against William Linton, the defendant, before a justice, July 1st, 1879, for “ damages for hindrances in working his corn crop, his potatoes, and for defendant not paling his garden according to contract, in the sum of $75 ” and costs. August 4th, 1879, defendant appealed to the Court of Common Pleas. October 6th, 1879, plaintiff filed an affidavit of claim, setting forth that defendant was indebted to him in the sum of $75, with interest, for damages sustained and contracts made'by him with defendant for the working of his place on the shares, defendant having failed to come up to his part of the contract.
    November 3d, 1879, G'eorge EL Quaill, as agent for plaintiff, filed an additional affidavit of claim setting forth the claim more specifically, but limiting it to the same amount of $75.

      The narr filed, contained the common counts in assumpsit, and the following special count:
    “ And in the sum of $500 as damages for the bi’each of a verbal contract made and entered into by and between 'William Linton, defendant, and John Yogle, plaintiff', on or about the 1st day of December, 1878, the terms and purport of which is as follows: Plaintiff agreed to crop the farm of William Linton, defendant, situate in Eindley township, Allegheny County, aforesaid, putting in a spring crop in the spring of 1879, and a fall crop in the fall of 1879, in consideration of which defendant agrees to give plaintiff:' a home on said farm in which to live; give him one-third of the crops in the bushels ; when it was agreed to furnish plaintiff with horses to plough and work the crops, and furnish plaintiff with work when he was not actually employed working his crops, at current rates of compensation paid for labor.
    “ Plaintiff', in pursuance of this agreement, put in about twenty acres of oats, fourteen acres of corn, and one acre of potatoes.
    “ About the middle of June, 1879, plaintiff several times demanded of defendant a horse to work the corn and potatoes, but defendant, as often as requested, refused to furnish the same, whereby the corn and potatoes were unworked and wholly damaged. Plaintiff also offered himself to defendant and asked for work, -which was refused by defendant, whereby plaintiff lay idle and out of work for the space of three months, to wit: from June 15th, 1879 to September 15th, 1879, to plaintiff’s serious damage ; and whereas, the defendant afterwards, to wit, the day and year aforesaid, in consideration of the premises, then and there promised to pay the said several sums of money respectively to the plaintiff on request, yet he has disregarded his promises, and has not paid any of said sums or any part thereof, to the damage of said plaintiff in the sum of $500, and therefore he brings suit.”
    On the trial, upon evidence in support of this narr, the jury found a verdict for the plaintiff in the sum of $140. Defendant moved for a new trial and in arrest of judgment, whereupon the Court below made the following order:
    “May 23d, 1881. On argument list, and plaintiff allowed to amend his narr by striking out $500 and inserting $100 as damage, and plaintiff now in open court remits all of above verdict over one hundred ($100) dollars. New trial refused, and judgment directed to be entered for $100 and costs, on payment of verdict fee.”
    The defendant took out a writ of error, assigning as error the above order.

      Whitesell & Son and Slagle & Wiley for plaintiff in error.
    The Court allowed an amendment of this record, which did not accord with the testimony in the case, and entered judgment for an amount which was not indicated by the pleadings, evidence, or verdict.
    The claim in Court was increased beyond that made before the justice either by enhancement of the amount claimed in items then presented, or by the addition of items not then claimed. Either way it shows that the actual demand before the justice was greater than his jurisdiction.
    If so, the Court of Common Pleas had no jurisdiction: Collins v. Collins, 37 Penna. State, 387 ; Bower v. McCormick, 73 Penna. State, 427 ; Owen v. Shelhamer, 3 Binney, 45.

      George H. Quaill for defendant in error.
    It is the sum demanded which gives jurisdiction. In this case the summons, transcript, the judgment of the justice, the affidavit of claim, the narr, as amended, and the judgment of the Court, all show that the sum demanded originally was within the jurisdiction of the justice. Plaintiff below, in open Court, agreed to remit the excess of the verdict over $100, and this is a very usual practice where juries give more damages than the Court, in their discretion, think the circumstances warrant: Darrah v. Warnoch, 1 P. & W., 21 ; McEntire v. McElduff, 1 S. & R., 18.
    When the demand is within the jurisdiction of the justice it is not fatal to the appeal that a sum beyond the jurisdiction is laid in the declaration: Greenawalt v. Shannon, 8 Barr, 465 ; Hoffman v. Dawson, 1 Jones, 280.
    Every court has the power of amendment, and may exercise it at any time before final judgment: Canal Company v. Bunnell, 81 Penna., 414.
   The opinion of the Court was filed October 31st, 1881, by

Sterrett, J.

While it is true, in . a certain sense, that on appeal from the judgment of a justice the proceedings are de novo, it is well settled that the cause of action cannot be changed, nor can the demand be increased beyond the limit of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of suit. A verdict and judgment for more than that is conclusive that the action was either erroneously brought or improperly prosecuted: Darrah v. Warnoch, 1 P. & W., 21.

In the present case the plaintiff’s demand before the justice was $75 damages for breach of contract, and for that sum he obtained judgment, from which defendant appealed.

In his affidavits filed in Court setting forth more fully the contract and breaches thereof, he claimed the same amount, with interest from July 1st, 1879. Thus far the record exhibits a cause of action clearly within the jurisdiction of the justice ; but the declaration containing the common counts, to which is added an inartificially drawn special count on the verbal contract, lays the damages at $500. This might .and should have been amended by leave of Court, so as to bring the case properly within its jurisdiction ; but without offering to do so, the plaintiff proceeded to trial, and having introduced testimony tending to prove the allegations contained in the.special count and items of damage, exceeding in the aggregate the jurisdiction of the justice, a verdict was rendered in his favor for $140, nearly twice the amount demanded by him on the hearing before the justice, and subsequently in .his affidavits of claim.

The plaintiff in error could not be thus called upon to defend against a claim for damages, the items of which, in the aggregate, as shown by the testimony as well as the verdict, greatly exceed the jurisdiction of the Court on appeal. He was not bound to anticipate or defend against such excessive claims, nor would the Court have been justified in entering judgment on the verdict as rendered. The result was a mistrial, and the verdict should have been set aside or judgment arrested; but after verdict, the Court permitted the plaintiff to amend by striking out $500 and inserting $100 as damages, and then upon his remitting all of the verdict in excess of $100, judgment was entered for that amount. In this, we think, there was error. While the power of the Court to authorize the amendment cannot be questioned, the circumstances were not such as to justify the entry of judgment for $100. Inasmuch as the defendant was not bound to anticipate or defend a claim for damages exceeding $100 the verdict was invalid, and judgment thereon would have been irregular and illegal. Nor was it competent for the plaintiff' to cure the defect by remitting part of the verdict, or for the Court to determine that $100 was the proper amount of damages for which judgment should be entered.

The defendant below had a right in the first place to insist that damages exceeding the limit of the justice’s jurisdiction should neither be claimed nor proved, and in the next place he was entitled to have the jury pass upon the question of damages. The plaintiff, in his original demand, supported by his own oath, on the hearing before the justice, and in the affidavits of claim afterwards made in Court by himself and his attorney, fixed his damages at $75. There is no good reason why he should have judgment for more tlian that sum, with interest. It is not to be presumed that the plaintiff undervalued his own claim.

If the declaration had been amended before or during trial, and the testimony as to the damages had been kept within proper bounds, we would not feel disposed to disturb the judgment; but as it is, we are of opinion that it cannot be sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam:

text:
    October and November Term, 1881,
    No. 26.
    Shettler et al. versus Hartman.
    1. An oil lease for a term of fifteen years contained a provision “that, after the expiration of the aforesaid thirty days, the second party (lessee) shall pay to the first party (lessor) the sum of one dollar per day, when all the provisions of this lease shall be accorded to the said second party during the payment of one dollar per day to the said first party. . . . The party of the second part covenant to commence operations for said mining purposes within thirty days from the execution of this lease, or thereafter pay to the party of the first part one dollar per day until work is commenced.” The lessee not having commenced operations more than a year thereafter, and not having surrendered the lease: Held, that the lessor was entitled to recover'from the lessee one dollar for each and every day from the time of the expiration of the thirty days to the time of commencement of suit.
    2. The failure to pay a dollar the first day after the thirty days expired did not, ipso facto, forfeit the lease.
    Error to the Court of Common Pleas of Clarion County.

    Covenant, July 9th, 1878,by Conrad Hartman against John Shettler and John-C. Reid.
    In the trial in the Court below, before Jenks, J., the following facts appeared:
    The 16th of May, 1877, plaintiff and defendants executed an instrument under seal, by the terms of which the plaintiff, as party of the first part, leased to the defendants, as party of the second part, a certain tract of twenty-five acres of land in Clarion County, for fifteen years, for the purpose of mining for petroleum, in consideration of the one-sixth part of the petroleum so mined and pumped. The lease proceeded:

      “Provided that after the expiration of the aforesaid thirty days the second party shall pay to the first party the sum of one dollar per day, when all the provisions of this lease shall he accorded to the said second party during the payment of one dollar per day to the said first party.

    “ The said party of the first part covenant to grant to the said parties of the second part the right to remove any machinery or fixtures placed on said premises by the said parties of the second part. The party of the second part covenant to commence operations for said mining purposes within thirty days from the execution of this lease, or thereafter pay to the party of the first part one dollar per day until work is commenced.”
    The words in italics were inserted in writing, the rest of the lease being printed.
    The plaintiff having offered the lease in evidence, and proved that the defendants had not operated under it, rested.
    Counsel for defendants offered to show mistake in the execution of the lease, and produced John C. Reid, one of the defendants, who testified, inter alia,:

    Then we agreed that we would take these twenty-five acres on the same terms, thirty days’ time to commence, and if we did not operate after that we were to pay him a dollar a day for any time we chose to keep it. . . . I copied our lease from the other man’s lease, but 1 was not lawyer enough to put that in. . . . We were to pay him a dollar a day as long as we chose to hold it that way. If we didn’t choose to hold it we could throw it up, relinquish it. "We were to go to a justice and have an acknowledgment if we intended to hold it. If we did not conclude to hold it I supposed it was to be dead. ... We did not agree to pay a dollar a day absolutely, •whether we intended to operate or not. We were to have an option as long as we chose by paying a dollar a day. ... I may have forgotten to write out that part of the lease more plainly and fully, not being used to writing articles. I copied that article very nearly verbatim. It seems to be in the wrong place. It was done in a hurry.
    Upon cross-examination he said:
    “ Question. Did he agree to any other contract than that you should commence operations in thirty days, and on failure pay the dollar a day ?
    “Answer. That was my understanding.
    “ Q. Did he agree to any other coutract?
    “ A. The agreement was that we we're to have a lease for thirty days, and after that we were to pay him a dollar a day as long as -we chose to keep it.”
    John Shettler, the other defendant, testified, inter alia:

    We were to have a lease for thirty days. After the thirty days we were to pay a dollar a day, if we chose to keep it, and if not we could not hold the lease. The lease was to be forfeited. That was the understanding or agreement. . . . We did not agree to pay a dollar a day absolutely after the thirty days as long as the lease run. ... I cannot tell exactly how long after the thirty days, but I' met Hartman and he said something about that lease, and I said: “You can do just what you please with that lease, for we don’t want that lease.” . . . Every time he said anything to me about it I said we didn’t intend to have anything to do with that lease, because we didn’t intend to hold it to operate it.
    Upon cross-examination he said:
    “ Question. Have you surrendered your lease to the present day ?
    “A. No, sir.
    “ Q. Have you ever offered him the lease back ?
    “ A. I never had it in my possession.
    “ Q. Was it the understanding you were to give up the lease if it didn’t pay ?
    “A. Certainly.”
    Conrad Hartman, the plaintiff, and his wife, S. Hartman, testified that the agreement was that the defendants would commence in thirty days, and if they didn’t they were to pay a dollar a day until they would commence.
    The Court charged the jury:
    “ We are requested to instruct you on the points presented by the plaintiff, as follows:
    “1. That the written contract between the parties, dated the 16th day of May, 1877, given in evidence in this case by the plaintiff, as the foundation of his action, is the law between the parties; and under its provisions, if the jury find from the evidence that the defendants did not commence to operate for oil on the premises therein described within thirty days from its execution, to wit, on or before the 16th of June, 1877, or at any time thereafter hitherto, plaintiff is entitled to recover in this action one dollar per day for each and every day from the said 16th day of June, 1877, to the commencement of this suit, on the 9th day of July, 1878.
    “ We answer this pointinthe affirmative, as qualified in the general charge.
    “ 2. That under the terms and provisions of the said written agreement it was the duty of defendants to proceed and operate for oil on the territory therein described on or before the 16th of June, 1877, and on failure to do so, unless prevented by the plaintiff, plaintiff is entitled to recover in. this action, as stated in first point.
    “ We answer this point in the affirmative, as qualified in the.general charge.
    “We are required to give our opinion as to the true comstruction of this article of agreement. We have made it the' rule by which the rights of these parties must be determined.,, and [we instruct you to be governed by this article in making up your verdict, and as we construe it jmu will construe it, and apply that construction to the facts as proven].
    “The party of the first part, in consideration of certain stipulations, conditions, and covenants, leases to the parties of the second part, their- successors and assigns, a certain tract of land.
    “ [In this lease the rights of the defendants are made to depend upon the performance of the covenants given in the lease. One of these covenants required the parties of the second part to commence operations for miuing purposes within thirty days from the execution of the lease, or if they do not, it requires them to pay to the party of the first part one dollar per day until work is commenced.
    “These are the clear covenants. Now there is a provision that ‘ after the expiration of the aforesaid thirty days the parties of the second part shall pay to the first party the sum of one dollar per day, when all the provisions of this lease shall be accorded to the said second parties during the payment of the said one dollar per day to the said first party/
    “ We think that means this: Eirst, That the parties of the second part must commence operations under this contract within thirty days. Second, That'if they do not, they pay one dollar a day until work is commenced. Third, If they do not commence work they have the right, under this covenant, to hold this lease as long as they pleased by paying to the party of the first part one dollar per day; but this right conferred upon them of holding as long as they pleased, upon the payment of one dollar per day, does not destroy the right of the plaintiff (under this covenant on their part to pay one dollar per day) to call upon them for the payment of one dollar per day for at least a reasonable time after they have failed to put down a well.]
    “ Observe these terms: ‘ The parties of the second part covenant to commence operations for said mining purposes within thirty days from the execution of this lease, or thereafter pay to the party of the first part one dollar per day until work is commenced/
    “ ‘ Provided, That after the expiration of the aforesaid thirty days, the second party shall pay to the first party the sum of •one dollar per day, when all the provisions of this lease shall be accorded to the said second parties during the payment of the said one dollar per day to the said first party/
    “ [So long as they see fit to keep this lease in life, it will be ■continued in life. But they would not be permitted under that clause to so use it as to destroy the plaintiff's right to recover the sum of one dollar a day for a reasonable time after they failed to put down a well. If the defendants held the lease without giving notice of their determination not to go on to put down a well, then the plaintiff would be entitled to recover, at least, until they should notify the plaintiff that they did not intend to go on and put down a well. That is the instruction for the present. Now, what time did they notify him that they would not hold it any longer ? If you take that view of the case, you give them a verdict of one dollar a day up to that time.]
    “You will find your verdict under these instructions.”
    Counsel for defendants excepted to the charge.
    May 7th, 1830. Verdict for the plaintiff, $331.82, upon which, subsequently, judgment.
    The defendants took out a writ of error, assigning as error the answer to plaintiif’s first point, and the portions of the charge within brackets.

      B. J. & A. B. Reid for plaintiffs in error.
    In that part of the charge in which the jury were instructed to be governed by the articles in making up their verdict, the Court excluded the parol evidence of what was said and agreed on at the execution of the lease, which would have thrown light on what was obscure in the writing: Selden v. Williams, 9 Watts, 9 ; Chalfant v. Williams, 11 Casey, 212. The Court was driven to intei’polate into the contract what neither party contended for, namely, that the lessees would be bound to pay the forfeit for a reasonable time, or until they gave notice to the lessor that they did not intend to operate. Clearly there is no warrant in the writing for that construction. Which of the other alternatives, then, is the more reasonable and consonant with the time spirit of what is written ? Is it likely that the parties intended or expected that, for not going to the probably fruitless expense of operating, the lessees could be compelled to pay a dollar per day for fifteen years ? Either that or our construction, by which they had the right to keep the lease alive as long as they saw proper to pay the forfeit for not working, and at the same time the lessor’s rights are protected.
    The vice of the defendant iu error’s contention and the Court’s instructions to the jury is that they alike ignore that written clause in the lease qualifying the printed covenant to pay a forfeit. Unless that clause means what we contend it means, it is wholly useless and insensible, and might as well have been left out. For, if left out, the part remaining would bear precisely the construction that the defendant in error puts upon the whole instrument as it is.

      Boggs & Weidner for defendant in error.
    There is nothing in the wording of the proviso itself that removes the covenant to operate or pay the dollar a day, abridges the terms of the lease, or forfeits the contract.
    The alleged parol agreement is utterly at variance with the written lease: Martin v. Berens, 17 P. F. Smith, 462 ; Miller v. Smith, 9 Casey, 386 ; Shepler v. Scott, 4 Norris, 332 ; Callan v. Lukens, 8 Norris, 134.
    The view of the Court that defendants below should be responsible for the dollar per day until they gave notice of their intention to forfeit, was a middle course which has done them no injustice.'
   Per Curiam:

There is nothing in the charge to the jury of which the plaintiff in error has any right to complain. The terms of the written lease were very clear, and there was no discrepancy between the written and the printed part. The lessees were to commence operations within thirty days, or thereafter pay one dollar a day until work was commenced. Allowing full effect to all the parol evidence, there was nothing to contradict or vary the writing. It is all the same thing in different words. The lessees cannot pretend that they could hold on to the lease indefinitely without paying anything, and the idea propounded that the failure to pay a dollar the first day after the thirty days expired, ipso facto, forfeited the lease cannot be entertained for a moment. It was, at least, the part of the lessees to put an end to it by a surrender, or an offer to surrender it.

Judgment affirmed.


author: Per Curiam :

text:
    October and November Term, 1881,
    No. 89.
    Kinnear versus Gealy et al.

    A sale of lands by a debtor is not fraudulent and void as to a creditor having a judgment which is a lien, and may be continued and enforced, though the sale be made for an inadequate consideration and the object expressed at the time be to get the land from under this judgment.
    Error to the Court of Common Pleas of Venango County.

    Ejectment, commenced August 7th, 1877, by F. D. Kinnear against Asa W. Gealy, John W Gealy, Nesbit A. M. Gealy, E. I. Agnew, G. H. Nesbit, A. H. Tack, Frank Tack, L. Tack, Theodore Tack, I. B. Dean, S. C. T. Dodd, and John T. Shirley, to recover possession of a tract of one hundred acres of land in Clinton township, Venango County.
    Upon the trial in the Court below the following facts appeared:
    Both plaintiff and defendants claimed title through William P. McKee, who, in 1851, owned a number of tracts of real estate, including the one in dispute, in Venango County. About this time McKee became insolvent, and all of his real estate which could be found was levied upon by creditors, and sold by the sheriff. It appeared that the tract in dispute was not included in this sale.
    In 1848 William P. McKee and James Harris, trading as McKee & Harris, brought suit against Samuel Sloan, in which suit the jury found a verdict for the defendant for $220.10. Judgment was entered on the verdict May 31st 1851.
    On the 29th of November, 1853, McKee entered into an agreement under seal, with G. W. Gealy, in which he granted, bargained, and sold the said tract to Gealy, and which provided :
    “ And the second part (Gealy) doth agree on his part to pay therefor, as soon as a sufficient treasurer’s deed can be obtained so as to insure the title to the said premises to the said second part, the sum of $150 currency of the Commonrvealth,on the premises or his own residence, in the aforesaid Scrubgrass township, and the said second part to have full possession of said premises from this date with all appurtenances belonging thereto.”
    Concerning this agreement, McKee, for the defendants, upon cross-examination, testified:
    “ I thiuk Mr. Gealy brought the article to my house. I would not be certain. The article was signed after it was brought to my house. I am certain that I signed it in my own house the day it was witnessed. ... I think Mr. Gealy came to see me once before, and we talked about the land in regard to the purchase of it. Mr. Gealy stayed over night with me when the article was signed. I was in debt to Samuel Sloan at the time the article was signed. He got a judgment against me in Venango County Court of $200 and upwards. Mr. Gealy knew about this judgment. We talked about it previous to the signing of the article, at the time I talked of selling the land to him.” . . .
    Question. Was not the object of the sale to G. W. Gealy to get rid of the payment of this Sloan judgment, and to get this land discharged from the judgment? . . .
    Answer. “Yes, sir.” (Witness explains.) “I considered that Sloan owed me about $600, and had sued him in court, but the law cut me out of my cash payments, as the cash was kept with the store account, and he got judgment against me as above stated, and would rather any person else would get the land than Sloan. All this was talked over previous to the signing this agreement (Exhibit A.) between me and Gealy. I don’t know that Gealy agreed with me that the Sloan judgment should not be paid. I never paid the Sloan judgment. Gealy never paid me the $150 mentioned in Exhibit A., but he paid me the $1 receipted on the contract.......As soon as Gealy could get a treasurer’s title he was to pay me the $150.......1 supposed that all the property we purchased from Mr. Hughes was sold by the sheriff, until Mr. Gealy told me it was not all included in the sheriff’s sale, and what was mentioned in the article was not, and upon receiving this information I made this article marked Exhibit ‘A.’ I do not know Mr. Gealy’s object in purchasing the land. He said he had laud joining it, and wanted this. . . . Mr. Gealy knew I wanted to get this land out from under the Sloan judgment. I considered it unjust, and did not want to pay it. Mr. Gealy knew this before and at the time he signed the agreement, marked Exhibit A.”
    Gealy entered into possession and made improvements. The land was sold by the treasurer of the county, August 26th, 1856, for the unpaid taxes of 1855, to John Gealy, who assigned the treasurer’s deed, August 23d, 1858, to George W. Gealy. The latter remained in possession until his death, March 31st, 1877, when his title became vested in the defendants. The lien of the Sloan judgment against McKee and Harris was permitted to expire. A sci. fa. to revive it was issued January 8th, 1857, which was returned nihil. An alias sci. fa. was issued February 5th, 1857, upon which judgment was obtained, and the damages assessed at $302.80 and costs. Under a fi. fa. upon this judgment, levy was made, inter alia, upon the land in dispute, and it was sold by the sheriff to F. I). Kinnear, the plaintiff, and a deed executed November 21st, 1857, and duly recorded.
    There was much other evidence in the case, and numerous assignments of error, which, under the view the Court took of the case are immaterial.
    On behalf of the plaintiff, it was. contended that the agreement of November 29th, 1853, between McKee and Gealy, being intended to hinder, delay, and defraud creditors, was void under the statute of 13 Elizabeth.
    November 20th, 1880, verdict for defendants, upon which, subsequently, judgment.
    The plaintiff took out a writ of error.

      J. H. Osmer and C. Heydrick for plaintiff in error.

      Charles W. Mackey for defendants in error.
    At the time of the purchase by Gealy, Sloan et al. had a judgment which was a valid and subsisting lien upon the land in dispute, and it continued to be a lien for upwards of two years. Gealy, therefore, purchased subject to the lien.. It could not have been the intention of McKee to hinder, delay, or defraud Sloan, because he told Gealy about the judgment, and Gealy knew that it was a lien upon McKee’s title. If the lien had been kept alive, the land could not have been wrested from under it. It was the fault of Sloan or his attorney.
   Per Curiam :

There was no evidence to submit to the jury of any fraud on Sloan in the sale by McKee to Gealy. Sloan had a judgment against McKee, which was at; the time a lien on the land, on which he could proceed and sell it as well after as before the article with Gealy. How, then, was the contract or conveyance to Gealy a fraud on Sloan ? It could not have hindered, defrauded, or delayed him. Sloan suffered the lien of his judgment to expire without reviving it. Gealy bought subject to the lien. We think this disposes of the whole case, and renders an examination of the other questions raised by the several assignments of error unnecessary.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 309.
    Moody’s Appeal.
    An appeal will be quashed where the appellant has not complied with the requirements of the act of June 8th, 1881.
    Appeal of George O. Moody, William McNaughton,E.&R. Mead, Jr., & Co., and M. J. Heywang, trustee for creditors of Kingsland & Reynolds, from the decree of the Court of Common Pleas of Crawford County, distributing the proceeds of the sheriff’s sale of the property of the firm of Kingsland & Reynolds.
    It appeared that the appellants had failed to enter the recognizance required by the act of J une 8th, 1881, P. L., p. 80?. which provides that no appeal shall be entered or writ of eertio
      rari or of error be delivered, until the party or parties entering such appeal or purchasing such writ “ shall have first entered into a recognizance with sufficient sureties, in double the amount of costs accrued, conditioned upon the affirmance by the Supreme Court of such judgment, order, or decree for the payment of all costs that have accrued in the cause or shall accrue upon the said appeal or writ of error or certiorari, and for the return to the Court below of the record with the remittitur.”

      Neill & L. Heywang for appellants.

      F. B. Guthrie and Julius Byles for the appellee.
   The opinion of the Court was filed January 2d, 1882.

Per Curiam:

It is provided by the act of June 8th, 1881, Pamphlet L., page 80, that no appeal shall be entered from the decree of any court until the party or parties entering such appeal shall have first entered into a recognizance with sufficient sureties, in double the amount of costs accrued, conditioned upon the affirmance by the Supreme Court of such -decree for the payment of all costs that have accrued in the cause dr shall accrue upon the said appeal, and for the return to the Court below of the record with the remittitur. This act not having been complied with in this case,

Appeal quashed.