text:
    Brickway’s Case.
    1. The Act of April 20th 1869 (admission of certain insane into state hospitals), is not confined to those guilty of offences or dangerous or unsafe to be at large ; it extends to all whose welfare or that of others requires restraint.
    2. The court or judge to whom the application to place the insane person in the hospital is made, may proceed by citation or rule to show cause, to bring in the proper parties for a hearing.
    3. The proceeding may be in any court.
    4. A petition under the act was made to the Common Pleas, who appointed commissioners to inquire into the insanity of the person ; they reported to the Quarter Sessions; an order was made by the Common Pleas to certify the case to the Quarter Sessions, and it was proceeded in to a final decree in that court. The judges being the same in both courts, the order was but formal and produced no substantial change in the proceedings.
    5. The order was but an amendment in pursuance of the sound discretion of the court to produce uniformity in the proceedings.
    6. A person was committed to the jail of Armstrong county for disorderly conduct; by proceedings under the Act of 1869, sects. 6 & 9, he was found insane, and committed by order of the court to a state hospital, at the expense of Armstrong county. A rule by that county on Buffalo township, to show cause why that township should not be certified as his place of settlement, was made absolute. Eeld, that under the Act of 1869, the Court of Quarter Sessions had this power.
    7. An appeal does not lie from the decree of the Court of Quarter Sessions in proceedings under the Act of 1869. The Supreme Court therefore cannot examine errors dependent on the evidence.
    October —1875.
    Before Agnew, O. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Armstrong county : Of October and November Term 1875, No. 191.
    The proceedings in this case were instituted under an Act “ To provide for the admission of certain classes of the insane into the hospitals for the insane in this Commonwealth,” &c., passsed April 20th 1869; Pamph. L. 78, 2 Br. Purd. 969.
    The 6th and 9th sections are as follows :—
    6. Insane persons may be placed in a hospital by order of any court or law judge, after the following course of proceedings, namely: On statement in writing of any respectable person that a certain person is insane, and that the welfare of himself or others requires his restraint, it shall be the duty of the judge to appoint immediately a commission, who shall inquire into and report upon the facts of the case. This commission shall be composed of three persons, one of whom at least shall be a physician and another a lawyer; in their inquisition they shall hear such evidence as may be offered touching the merits of the case, as well as the statements of the party complained of, or of his counsel; if in their opinion it is a suitable case for confinement, the judge shall issue his warrant for such disposition of the insane person as will secure the object of the measure.
    9. If it shall be made to appear to any law judge that a certain insane person is manifestly suffering from want of proper care or treatment, he shall order such person to be placed in some hospital for the insane at the expense of those who are legally bound to maintain such insane person; but no such order shall be made without due notice of the application therefor shall have been served upon the persons to be affected thereby and hearing had thereon.
    On information made August 6th 1878, by Charles Montgomery, a man calling himself Weed or Waddle was arrested and committed to the jail of Armstrong county for disorderly conduct.
    On the 5th of September 1873, James W. McKee presented a petition “ To the judges of the Court of Common Pleas of Armstrong county,” setting out that on the-day of August 1873, a certain insane man, who called himself Weed or Waddle, and whose proper name was unknown, was committed by a justice of the peace of the borough of Ereeport to the jail of said county, and that the welfare of said man required that he be restrained and placed under medical treatment.
    On the same day the court appointed R. W. Smith, a lawyer, J. Gr. Cunningham, a physician, and James McCullough, “ commissioners to inquire and report according to law.”
    On the 6th of September the commissioners reported: “ To the Judges of the Court of Quarter Sessions of the Peace of Armstrong county,” that from the testimony taken by them (which was annexed to the report), “ and from an examination and inspection of said man, and from his own statement, we are of opinion that he is insane, and needs such restraint and treatment as are necessary for his recovery from his malady.” They further reported, that it was “ unsafe and dangerous for the aforesaid insane man to be at large.”
    Thereupon the court made the following order:—
    “ September 9th 1878. On examination of within report and proceedings, the same is approved, and the person named in the proceedings as insane is directed to be committed to the Western Pennsylvania Hospital, at the expense of the county of Armstrong, and a rule is directed to be issued to the poor officers of Freeport, to show cause why he should not be declared a charge upon said borough.”
    From evidence taken in the course of the proceedings it appeared that the name of the insane man was Joseph Brickway. The docket entries then are as follows :—
    “ And now, to wit: April 28th 1874, on motion of J. V. Painter, attorney for the county commissioners of the county of Armstrong, the court order this case certified from the Common Pleas Court at No. 58, December Term 1873. And now, to wit: April 28th 1874, so far as the proceedings in this case seek to charge the borough of Freeport with maintenance of the within-named person, it is adjudged that the same -be dismissed, it appearing that he had not his legal residence in said borough. March 11th 1875, on motion of J. V. Painter, attorney for the county, rule on the Overseers of the Poor of Buffalo township, Butler county, to show cause why the Quarter Sessions of Armstrong county should not certify said township as the place of settlement of said Joseph Brickway. April 28th 1874, served on the Commissioners of Butler county, and on two of the Overseers of the Poor of Buffalo township, Butler county. June 29th 1874 J. G-. D. Findley, Esq., appointed commissioner. May 11th 1875, argued. June 21st 1875, rule made absolute. The Overseers of the Poor of Buffalo township, Butler county, appealed from the decision and decree.”
    The decree was : “ The rule is made absolute, and it is hereby certified that Buffalo township, Butler county, is Joseph Brick-way’s place of residence, and was so at the time of his arrest and when the application was made.”
    The testimony taken before the commissioners to inquire as to the insanity, and also that taken before the commissioner under the rule on Buffalo township, was sent up with the record.
    The assignments of error were :—
    I. The proceedings in the Common Pleas of Armstrong finding Brickway insane, were irregular and void ; because :—
    1. There was no petition in due form alleging that he was insane, and praying for the appointment of commissioners to inquire into the insanity.
    2. The court had no power to appoint a commissioner to inquire into the insanity of Brickway on the petition of McKee.
    8. There were no commissioners legally appointed to inquire into the insanity of Brickway.
    4. The report of the commissioners was void; it did not show that Brickway had any notice of the proceedings, or that the commissioners were sworn or legally constituted to inquire into Brick-way’s insanity.
    5. No jury was empannelled, &c., to pass upon Brickway’s insanity ; there was no commission de lunático inquirendo, and no return of the inquisition lawfully made.
    II. The Quarter Sessions of Armstrong had no authority to commit Brickway to the Western Pennsylvania Hospital, because :—
    1. He was not legally declared to be insane.
    2. Neither the record nor papers show that notice of the inquisition was given to Brick way, nor to any person for him, nor that the appellants had notice.
    3. The record does not show that there was any proof tending to show that a cure of Brickway’s insanity was likely to he effected by committing him to the hospital.
    III. The arrest and imprisonment of Brickway were illegal, because there was no legal offence charged in the information.
    IV. The arrest and imprisonment of Brickway being illegal, the Quarter Sessions had no jurisdiction, and the order committing him to the hospital was void.
    V. Making the, rule absolute, and certifying that Buffalo township was Brickway’s residence; because :—
    1. The proof does not show that he had any legal settlement in that township.
    2. No application was made to the overseers of that township for relief by Brickway or any one on his behalf.
    3. No relief was granted by the overseers to Brickway.

      J. A. McCullough and Thompson Scott, for the-certiorari.

      J. II. McCain and J. Gilpin, contra.
    November 15th 1875,
   Judgment was entered in the Supreme Court

Per Curiam.

No appeal is given in this case to this court, and consequently we have before us only the record proper, not the evidence.

We can, therefore, examine only the assignments of error touching the record, and not those relating to the evidence. It is very evident from the record this proceeding was under the 6th section of the Act of 20th April 1869, a law passed to regulate the practice in the commitment of insane persons to the hospital of the state. The act materially' modifies former laws on this subject. It is not confined to persons found guilty of offences, or those dangerous to themselves or to the community, or unsafe to be at large; but it extends to those whose welfare, or that of others, requires them to be restrained, or who manifestly stand in need of proper care and treatment: sects. 6th and 9th. These sections provide for the exercise of the powers conferred in the act by any court or law judge, and extend to the disposition of the person of the insane subject. In the former it is said : “ The judge shall issue his warrant for such disposition of the insane person as will secure the object of the measure.” The object is announced in the beginning of the section, viz.: Insane persons may be placed in' a hospital by order of any court or law judge, after the following course of proceeding, namely.” Then follows the mode of proceeding on the application of “ any respectable person.” The 9th section provides that “ if it should be made to appear to any law judge that a certain insane person is manifestly suffering from the want of proper care or treatment, he shall order such person to be placed in some hospital for the insane, at the expense of those legally bound to maintain such insane person,” &c. Thus the power to commit to the hospital, and to dispose of the case so as to provide for his maintenance there, by the proper parties, legally bound therefor, is clear, and being in general terms, carries a full power to direct the manner of proceeding, not otherwise provided for in the act. The court or judge may, therefore, proceed by citation or rule to show cause to bring in the proper parties for a hearing. Now, substantially, this has been done in the case before us, though by clerical errors the proceeding appears to be confused; yet not so much entangled that it may not be extricated by a judicious power of amendment.

Under the law the proceeding may be in any court, and therefore either in the Common Pleas or Quarter Sessions. The petition of the respectable person,” provided for in the 6th section, was directed to the Common Pleas, but the commission appointed under it, composed of a lawyer, a physician and another, directed their report to the Court of Quarter Sessions, and thenceforth the case proceeded therein, terminating in a commitment to the Western Pennsylvania Hospital, and finally in a rule on the Overseers of Buffalo township, Butler county, to show cause why the Quarter Sessions should not certify that township as the place of legal settlement of the insane person. It is evident that the judges considered themselves as acting in the Court of Quarter Sessions, and being the same -judges, and having the same powers, either in the Common Pleas or Quarter ' Sessions, their order to certify the case as it originally began in the Common Pleas into the Quarter Sessions, was but a formality, and produced no substantial change in the proceeding itself. It was done at the instance of the proper party, and was, therefore, but an amendment, made in pursuance of their sound discretion to produce uniformity in the proceeding before them. The Court of Quarter Sessions having, then, adequate power under the Act of 1869, to make a disposition of the case to secure the welfare of the insane person, and his proper treatment in a hospital, and to order the expense to be borne by those legally bound for his maintenance, no substantial error was committed. The law makes no provision as to the mode of proceedings by the commission or before it. We are bound to presume, therefore, that the court was satisfied when acting upon their report that everything essential had been properly done. Mere informalities and harmless errors must be disregarded.

Proceedings affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Heslop et al. versus Bush et al.

    1. The court has power to recommit an award under the Compulsory Arbitration Law, June 6th 1836, upon the affidavit of the arbitrators, for correction of a clerical error in the amount found by them.
    2. Arbitrators passed upon an item submitted to them; in making their award they omitted accidentally to take it into their calculation. Held, that the award was on their affidavit properly sent back to them for correction.
    3. In such case the party’s right of appeal must be protected.
    4. Where the arbitrators misbehave themselves, or the award is procured by corruption, &c., the court strikes it down ; when a clerical error is corrected it is the exercise by the court of the power of amendment.
    October —1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Qambria county: Of October and November Term 1875, No. 210.
    The proceedings in this case were instituted before a justice of the peace by Joseph Bush, David Rees, George Rich and William Rich, against Joseph Heslop and Mary Heslop. The defendants appealed from his judgment, and the appeal was entered in the District Court of Cambria, October 3d 1874. A rule of reference was entered in the case, and the arbitrators awarded for the plaintiffs $39.52, with costs ; the award was filed February 18th 1875.
    The record then shows as follows :—

      “ February 24th —1875. On motion of D. LcMaughlin, attorney for plaintiffs, and upon affidavit of John.M. Bowman, John H. Dibert and Jacob Swank (the arbitrators), rule to show cause why the award should not be referred back to the arbitrators to correct clerical error in the amount found by arbitrators in favor of plaintiffs.”
    The rule was made absolute.
    The arbitrator’s reported:—
    “ In pursuance of the foregoing order of the District Court of Cambria county, the arbitrators therein named met at the time and place designated in said order, and corrected their previous award as follows, to wit: By excluding the individual account of Joseph Heslop, the defendant, against George Rich, one of the plaintiffs, to the arriount of nineteen dollars and fifty-seven cents, which was intended to have been excluded in their original award, but which was included in their calculation by mistake, thus reducing their intended award to that extent. They, therefore, now, upon revision, award to the plaintiffs the sum of fifty-seven dollars and eighty-eight cents, with costs, as originally intended.”
    The court entered judgment on the last award.
    The defendants took a writ of error. They assigned for error: entertaining the motion for the rule to show cause, &e., and making the rule absolute.

      H. H. Kuhn, for plaintiff in error.
    When the arbitrators are sworn their jurisdiction has attached and the cause is out of court, who can make inquiry into the proceedings only if the arbitrators have misbehaved themselves, or the award was procured through corruption, &c.: Act of June 16th 1836, sect. 26, Pamph. L. 722, 1 Br. Purd. 85, pl. 53; Walls v. Wilson, 4 Casey 514; otherwise appeal is the only remedy: Thompson v. White, 4 S. & R. 135; Wilson v. Hamilton, Id. 238; Wynn v. Bellas, 10 Casey 160.

      I). McLaughlin, for defendants in error.
    If there be mistake in calculation or other such error in an award, it may be recommitted for correction : Morse on Arbitration 329; Kleine v. Cabara, 2 Gall. 61; Blood v. Robinson, 1 Cush. 389; Cumberland v. North Yarmouth, 4 Greenl. 459; Christman v. Thompson, 3 S. & R. 133. This is in the discretion of the court: Gratz v. Phillips, 14 S. & R. 144.
    November 4th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

In this case the court referred the award back to the arbitrators to correct a clerical error in the amount found by them for the plaintiff, upon the application and affidavit of the arbitrators themselves. It was not on account of any change of opinion of the arbitrators, or supposed error of judgment, but simply to cor-reef; their calculation in consequence of the accidental omission of a sum actually passed upon and found by them. This was the exercise, by the court, only of a power of amendment over a clerical error, not a setting aside of the award. The 26th section of the Act of 16th of June 1836, relating to arbitration, says : '“It shall be lawful for the court to set aside an award of arbitrators, on due proof that arbitrators misbehaved themselves, or that the award was procured by corruption or undue means.” In that case the court absolutely strikes down the award; but in this it merely gives its permission to the arbitrators to amend their award so as to make it actually conform to their own findings. Of course in such a case the court will, by their order, protect the party’s right of appeal, if it be necessary.

We think there was no illegal exercise of the power of the court in this case.

Judgment and order affirmed.


author: Mr. Justice Mercur

text:
    Pittsburg and Birmingham Passenger Railway Co. versus City of Pittsburg.
    1. A corporation was authorized to make a passenger railway along a street of a city, but not to use the street until the consent of the councils should be had, and to keep so much of the streets “ from curb to curb as may be used by them, in perpetual good repair, at the expense” of the corporation. The councils gave consent, on condition the corporation should keep the street in a good and sufficient state of repair, and “in a reasonable sanitary condition.” On one side of the street was a ravine, rising to the top of a hill; by an extraordinary rain, rocks, stone, &c., were washed down the ravine on the street, eight or ten feet in depth, for one hundred foot in length. Eeld, that the railway corporation was bound to remove the deposit from the street.
    2. It had been the duty of the city to remove such obstructions, and by the act the duty of the city in this respect was transferred to the corporation.
    November— 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to tbe Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 214. This was an amicable action, to July Term 1874, of tbe court below, between the Pittsburg and Birmingham Passenger Railway Company, plaintiffs, and the City of Pittsburg, defendant.
    The case stated was as follows :—
    “ By an Act of Assembly, approved the 13th of April 1859, Pamph. L. 740, the plaintiffs were incorporated and authorized to construct and maintain a passenger railway along Carson street, in the borough of South Pittsburg. The 8th section of said Act provides:—
    “ ‘ That the said railway company shall not be permitted to use and occupy any of the streets of the said city, of Pittsburg or streets of said borough, for the purposes of their railway, until the consent of the councils of said city and borough is first thereto had by ordinance, duly passed* * * ‘ and the said company shall keep so much of the streets of said city and borough, from curb to curb, as may be used and occupied by them, in perpetual good repair, at the proper expense and charge of the said company.’
    “ On the 15th day of August 1859, the borough of South Pitts-burg passed an ordinance, giving its consent to the occupancy of said Carson street by said company, upon certain terms therein contained, inter alia.

      “ ‘ Section 1st. * * * and provided, also, that the said railway company shall keep said Carson street in a good and sufficient state of repair from curb to curb, to the satisfaction of the committee on streets appointed under the authority of said borough, and also keep said Carson street in a reasonable sanitary condition.’
    “ The company accepted the terms of said ordinance.
    “ Carson street is and was at the time of the passage of said ordinance paved with boulders from curb to curb.
    “By an Act of Assembly, approved April 2d 1872, Pamph. L. 703, the said borough of South Pittsburg was annexed to the city of Pittsburg and made part thereof.
    “ There is a natural ravine in what was formerly the borough of South Pittsburg, running from a point near the southern side of Carson street, between First and Second streets, to the top of Coal Hill, about 1000 feet long.
    “ On the 26th of July 1874, a very heavy and extraordinary rain fell, causing a great wash dowui the said ravine of rocks, stone, gravel and dirt, which was deposited on the roadway of Carson street, and covered the same for the distance of about one hundred feet in length and eight or ten feet in depth. This wash completely interrupted all travel over the roadway of aforesaid street by the railway or otherwise.
    “ The plaintiffs (after calling on the street commissioners to remove the wash, who refused to do so,) caused the same to be removed from Carson street, at an expense to the said company of $135.12.
    “ Should the court, under the above stated facts, be of the opinion that the plaintiff company was not legally bound, at its own expense, to remove from the roadway of Carson street the said wash, then judgment to be entered for the plaintiff for $135.12, with interest from 27 th of July 1874, and costs of suit; but, if the contrary, then judgment to be entered for the defendant for costs.”
    The court entered judgment for the defendant.

      This was assigned for error on the removal of the record to the Supreme Court by the plaintiffs.

      M. W. Aeheson, for plaintiffs in error.

      T. J. Bigelow, for defendant in error, cited Pittsburg & Bir. P. Railway Co. v. Birmingham, 1 P. F. Smith 43.
    January 6th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

The plaintiff was incorporated by Act of Assembly of the 13th of April 1859, Pamph. L. 749. It was thereby authorized, inter alia, to construct and maintain a passenger railway along Carson street in the borough of South Pittsburg. Section 8th of the act declares that the company shall not be permitted to use and occupy any of the streets in said borough for purposes of their railway, until the consent of the council of the borough is first thereto had by ordinance duly passed, and “ the said company shall keep so much of the streets of said borough, from curb to curb, as may be used and occupied by them, in perpetual good repair, at the proper expense and charge of the said company.”

By ordinance of the 15th of August 1859, consent was given by the borough to the company to use and occupy Carson street, in accordance with said Act of Assembly, “provided also that said railroad company shall keep said Carson street in a good and sufficient state of repair from curb to curb, to the satisfaction of the committee on streets, appointed under the authority of said borough, and also keep said Carson street in a reasonable sanitary condition.” The company accepted under this ordinance. By Act of the 2d of April 1872, the borough of South Pittsburg was annexed to and made a part of the city of Pittsburg.

A natural ravine of about one thousand feet in length extends from the top of Coal Hill down near to Carson street. In July 1874, a very heavy and extraordinary rain fell. It washed from and through the ravine, rocks, stone, gravel and earth, depositing them in Carson street for a distance of about one hundred feet in length and eight or ten feet in depth. Travel over the street, either by rail-way or otherwise, was thereby interrupted. The plaintiffs (after requesting the city authorities to remove these obstructions, and their refusal so to do,) caused them to be removed, and now claim to recover from the city the expense of that removal-.

The question presented is: was the company bound to remove those obstructions at its own expense ?

Prior to the Act of 13th of April 1859, Carson street was a public highway. The municipal authorities were bound to keep it in repair. It was their duty to remove all obstructions that might be placed -thereon, by floods or otherwise, which interfered with the use or travel of the street. The manifest intention of the statute, and of the ordinance, was to transfer to the company the exclusive duty of keeping in repair all that portion of the street which lies between the curbs. Hence, in the words of the former, the company was to keep the street “ in .perpetual good repair,” and in those of the latter, “ in a good and sufficient state of repair.” Neither one contains any intimation that the municipality was to repair under any contingency. But to make it more clear that the company assumed the whole duty of keeping the street in repair, the ordinance required it to be so kept “ to the satisfaction of the committee on streets.” This practically gave to the municipality the power of deciding on the goodness and the sufficiency of the repairs made by the company. Still further, the company was to keep the street “in a reasonable sanitary condition.” . Thus the company not. only agreed to keep it in repair, but to keep it clean. These two obligations previously rested on the borough. By this agreement the company assumed them. Why shall it not fulfil them ?

It is urged by the plaintiffs that this unusual deposit was not in contemplation of the parties, and, therefore, was not designed to be covered by the agreement. The first part of the proposition may be correct. The full extent of the injury may not have been anticipated, yet it by no means follows that the agreement did not cover it. The ravine was known and visible. The inclination of its sides, as well as its steep declivity towards the street, were not concealed. They gave unmistakable evidence of the manner in which the water would be collected in times of severe showers, and dashed down into the street. All experience teaches that the tendency is to wash out the bed of the ravine, and to deposit the material of which it is composed at or near its foot. The company possessed all this knowledge. This liability to injury is presumed to have been considered by it, yet it made no exception to its liability to repair. In the broadest and most comprehensive terms it agreed to “ keep said street in a good and sufficient state of repair.”

It was well said by Chief Justice Gibson, in Schuyl. Nav. Co. v. Moore, 2 Whart. 491, the best construction is that which is made by viewing the subject of a contract as the mass of mankind would view it; for it may safely be assumed that such was the aspect in which the parties themselves viewed it. Applying this rule of construction, can a reasonable doubt exist that the contract covered the injury in question ? The subject-matter was a street. It was to be kept in a suitable condition for all the uses and purposes of a street. That obligation rested somewhere. If it be said that it is thrown back on the municipality, where the general law imposed the duty of repairing, I answer that the later and special law transferred that duty to the company. 'No other conclusion will give full effect to the statute of 13th of April 1859.

It is further contended that the agreement only contemplated keeping in repair the roadway or pavement of the street, and did not extend to the removal of deposits made thereon by third persons, or by the operation of natural causes. This narrow view finds no warrant in the Act of Assembly, nor in the ordinance. Neither of them speaks of the roadway or the pavement, but of the street as a street, and for all the purposes of a street. The manifest intention of the parties was that the company should keep the whole street, “ from curb to curb,” in good condition, for free and uninterrupted travel as a public highway. If the walls of a house should fall into it; if a tree should be blown across it; if any person should place obstructions in it, none of these might destroy the surface of the paved roadway, yet as a street or public highway its usefulness would be impaired and temporarily destroyed. Can it be said that a street in that condition is not out of repair ? Its main functions as a street would be suspended.

Repair means to restore to sound or good condition, after injury or partial destruction. As a street, or way of passage, Carson street was injured. It was partially destroyed. It was rendered impassable. To repair it; to restore it to its former condition, required the removal of the deposit thrown upon it. The company could not otherwise fulfil its contract. Nothing less was satisfactory to the committee on streets.”

The conclusion to which we have arrived is well sustained by Passenger Railroad Co. v. Birmingham, 1 P. F. Smith 41. The present plaintiff there contended, under the same Act of Assembly and the same ordinance, that it was not bound to remove the dirt which accumulated on Carson street, by its ordinary use as a public thoroughfare. This court held otherwise. It held that the removal of accumulations was a part of the duty of the company, under its obligation to keep the street in perpetual good order and repair. It is true those obstructions were not so extensive as those under consideration now, but the principle is the same.

In delivering the opinion of the court, Mr. Justice Read said: It is clear, therefore, under any fair construction, the duty of cleansing the street, that is, keeping all in good order, devolved upon the railroad company, and not upon the municipal corporation.”

It follows, therefore, that the plaintiffs were bound to remove the obstructions at their own expense, and the learned judge was entirely correct in entering judgment in favor of the defendant on the case stated.

Judgment affirmed.

Chief Justice Agnew and Justices Gordon and Woodward dissented.


author: Mr. Justice Paxson

text:
    Nolan et al. versus Sweeny.
    1. Land was sold to Timothy Sweeny — there being a father and son of that name — and Bartholomew, another son; Nolan went into possession under a written agreement, which was lost, signed “ Timothy Sweeny,” “ Bartholomew Sweeny," to support their father for life. The father died, and afterwards Nolan died, having devised the land to his wife. In ejectment by Timothy, the son, against the wife, he alleged that he was one of the original vendors and that the agreement was that Nolan was to have it for the father’s life only ; the wife alleged that the father was the original vendee, that he executed the agreement, and by it Nolan was to have the land absolutely. Under objection — no exception being sealed — the plaintiff was allowed to testify that he was the vendee and what was the agreement with Nolan. Held, that he was estopped from objecting to the competency of the wife, who was offered as a witness for the defence.
    2. The writ was for a tract of land, describing the adjoiners on the north, east, south and west, containing 100 acres more or less; the verdict was for “ plaintiff for 20 acres on the lower or south end of the tract.” Held, that the verdict was void for uncertainty.
    3. No partition having been made between Timothy and Bartholomew, the verdict should not have been for land in severalty, but for an undivided interest.
    4. Miller v. Casselberry, 11 Wright 377, recognised.
    November 15tb 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1875, No. 55.
    This was an action of ejectment, brought April 24th 1872, by Timothy SAveeny, against Eleanor Nolan and Timothy Nolan, for a tract of land “ in Fairview toAvnship * * * bounded on the north by John Moore, on the east by David McCullough, on the south by Miles Sweeny and others, and on the west by widow Seibert, containing 100 acres more or less.”
    The case Avas tried June 13th 1874, before McGuffin, P. J.
    The plaintiff and defendant, Eleanor Nolan, are children of Timothy Sweeny, the elder, deceased. Eleahor Nolan is the widow of John Nolan ; Timothy Nolan, the other defendant, is the son of John and Eleanor Nolan. It appeared to be assumed that the defendants were devisees of John Nolan of the land in controversy.
    Both parties claimed under Archibald McCall, who, on the 15th of August 1838, sold 139 acres 52 perches of land (of which the land in dispute is part or the whole), by articles of agreement, to Timothy Siveeny and Bartholomew Sweeny, payable in instalments, the last being payable June 15th 1840. Bartholomew Sweeny was a son of Timothy Sweeny, the elder. The articles of Agreement were lost, but the substance of them, as above stated, was not a matter of contest.
    The main contest in the case was, whether Timothy Sweeny, the vendee in the articles, was the plaintiff or his father.

      The plaintiff alleged that he and his brother Bartholomew had made an agreement in writing with John Nolan, which had been drawn and witnessed by one William Hope, and which was lost, by which Nolan was to keep the father for life, and in consideration, Nolan was to have the land in dispute during the father’s life.
    The defendants alleged that the vendee, Timothy Sweeny, was the father; and that he and his son Bartholomew, by agreement in writing with John Nolan, made September 23d 1842, “in consideration of the maintenance of Timothy Sweeny, for and during his natural life,” granted the land to “ the said John Nolan, his, executors, administrators and assigns for ever.”'
    Archibald McCall died in 1843, Timothy Sweeny, the father, died in 1859, and John Nolan died in 1860.
    The plaintiff testified that he bought the land from McCall; that he and Bartholomew went on it to live,;' that his father lived with them; they built a log-house, and plaintiff cleared some land, but Bartholomew did not; the clearing was on the south side of the tract; he left the place, his father being in possession ; he then gave Nolan possession ; the arrangement with Nolan to maintain his father was in writing drawn by William'Hope; it was left with him; plaintiff never saw it since.
    The plaintiff testified as to his efforts to obtain the agreement and his inability to procure it. He was then asked to testify what were the contents of the agreement. The defendant objected to the plaintiff so testifying, because he was incompetent to testify, as Nolan was dead. The court admitted the plaintiff to testify.
    The record showed that the court afterwards, when the bill of exceptions of the whole record was finally made up, declined to seal a bill of exceptions to the admission of this testimony.
    Plaintiff testified that the arrangement with Nolan was to keep the father.
    Hope testified that he drew the agreement in 1841 or 1842 ; it was signed by plaintiff, Bartholomew and Nolan; he signed it as a witness; it was left with him ; had it in his possession a long time ; he had often looked for it; did not know what had become of it; it was not then in his possession ; it was not acknowledged; that by the agreement Nolan was to have the use of 100 acres of the land which had been purchased from McCall for the maintenance of their father ; “ the land was given to John Nolan by the agreement during lifetime of old Mr. Sweeny.” There was evidence that Bartholomew Sweeny was dead.
    The plaintiff gave other evidence in support of his case.
    The defendants gave in evidence from the records in the office of the recorder of deeds, an agreement signed by “ Timothy Sweeny ” and Bartholomew Sweeny, dated, and containing as set out in the above statement of the case.

      The record showed that the agreement was witnessed hy “ William Hope,” proved by his affidavit, taken before a justice of the peace of Crawford county, September 21st 1848, and recorded January 30th 1844.
    The defendants then proposed to ask Eleanor Nolan (one of them) whether she was present when the agreement referred to by Hope was written and signed; whether she heard it read, or was made acquainted with its contents by the parties ; what they were, and who were the parties to the agreement.
    The offer was objected to, that Mrs. Nolan was incompetent, because she was the widow of John Nolan, and his devisee of the land in dispute and claimed as such.
    The court rejected the offer and sealed a hill of exceptions.
    There was other testimony on the part of the defendants in answer to the plaintiff’s case.
    For the plaintiff, in rebuttal, William Hope testified that he had never written, witnessed or proved the agreement, the record of which had been given in evidence by the defendants.
    The foregoing will sufficiently present the case for an understanding of the questions decided by the Supreme Court.
    The verdict was “for plaintiff, Timothy Sweeny, for 20 acres on the lower or south end of the tract. ”
    The court entered judgment on the verdict.
    The defendants took a writ of error; they assigned for error:—
    1. Rejecting Eleanor Nolan as a witness.
    7. Entering judgment on the verdict.

      JBredin, Thompson Scott, for plaintiff in .error,
    as to rejection of Mrs. Nolan as a witness, referred to Act of April 15th 1869, sect. 1, Pamph. L. 30, 1 Br. Purd. 624, pl. 16; Karns v. Tanner, 16 P. F. Smith 305. As to the uncertainty of the verdict, they cited Miller v. Casselberry, 11 Wright 377.

      L. L. Mitchell, for defendant in error.
    Nolan was the assignee of plaintiff and his brother of “ the ‘ thing in action.’ ” Nolan being dead, his wife was, therefore, incompetent: Act of April 15th 1869 ; Karns v. Tanner, supra, By the description in the precipe g.nd verdict, the land found for the plaintiff could be set off: Tryon v. Carlin, 5 Watts 371.
    November 26th 1875.
   Mr. Justice Paxson

delivered the opinion of the court,

Whatever view we may take of the competency of Eleanor Nolan as a witness under the Act of 15th of April 1869, it was clear error to reject her evidence after admitting the plaintiff, Timothy Sweeny, to testify. The theory of the plaintiff was that he and his brother Bartholomew had given the use of the land to John Nolan during the lifetime of their father, in consideration of Nolan’s taking care of and keeping the latter. The theory of the defence was, that the agreement was made between Nolan, Bartholomew Sweeny and Timothy Sweeny, the elder, and that the gift of the land was absolute. It was therefore a vital point in the cause whether it was the plaintiff or his father who had entered into the agreement. It was equally important to ascertain what the agreement really was. John Nolan was dead and could not speak. The plaintiff was permitted to testify under objection to the fact of Nolan’s death; that the plaintiff ivas the Timothy Sweeny who had made the agreement with Nolan; and that plaintiff and his brother Bartholomew had given the use of the land to John Nolan for keeping their father. The plaintiff having thus been admitted to this extent in regard to the transaction with the dead man, he was estopped from objecting to Eleanor Nolan as a witness. As the record stands we cannot pass upon the propriety of the admission of the plaintiff’s testimony, as the learned judge of the court below declined to seal a bill as to that. We will therefore decide only what is before us — that it was error to exclude Eleanor Nolan after having permitted the plaintiff to testify. The witnesses stand upon an equality.

Aside from this question the judgment must he reversed upon the seventh assignment of error. The verdict is uncertain and is incapable of being reduced to certainty. The plaintiff brought his ejectment for the whole tract, and the verdict was “for twenty acres on the lower or south end of the tract.” How and where is the line to run ? Had there been any such reference to monuments on the ground, to recorded deeds, to diagrams filed of record, to warrants of survey, or identified agreements, as was said in Miller v. Casselberry, 11 Wright 377, the verdict might have been reduced to a certainty. But it lacked all these essential elements and should therefore have been set aside.

Another objection is that the verdict is for so much land in severalty; there had never been a partition of this property between Timothy Sweeny and his brother Bartholomew or his heirs; the verdict should have been for an undivided interest.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Coleman et al. versus Chadwick. Chadwick versus Coleman et al.

    1. Of natural right the surface land is entitled to support from the strata below.
    2. When the owner of the whole fee grants the minerals, reserving the surface, his grantee is entitled only to so much of the minerals as he can get without injury to the surface.
    3. A custom contrary to such right would not be reasonable and therefore would be invalid.
    4. A grant of minerals and all privileges necessary for the convenient working, &c., of coal, and the rights “incident or usually appertenant to working and using coal mines,” does not affect the grantor’s right to a surface support.
    5. The loss of springs to the owner of the surface by reason of the ordinary working of the mines, does not render the owner of the minerals liable for damages.
    6. Horner v. Watson, 29 P. F. Smith 251; Jones v. Wagner, 16 P. F. Smith 429, adhered to.
    November 11th 1875.
    Before Agnew, C. J., Siiarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of error to the District Court of Allegheny county: Of October and November Term 1874, No. 221 and 236.
    This was an action on the case commenced April 19th 1872, by James M. Chadwick against William Coleman, Frank Rahm, John S. Slagle and William Yarnum, partners, trading as Coleman, Rahm & Co.
    The plaintiff declared that he was the owner of a tract of sixteen acres of land in Penn township, Allegheny county, on which he with his family resided; that the defendants were possessed of a coal mine underlying the said tract of land; that it was their duty in working the mine to leave sufficient pillars, ribs, supports, &c., so as to prevent the superincumbent surface of the said tract from falling in, or to have set up sufficient posts to support and protect the surface and prevent it from falling in; that the defendants mined the coal in so unskilful, negligent and careless a manner as to cause the surface of the tract overlying the mine “ to cave in, crack, break and thereby destroy the buildings, orchards, springs of water, &c., and diverted the springs and streams of water from their natural channel, &c., so that the plaintiff was not only disturbed in his possession, use, &e., of the tract, but injured in his occupation as farmer and fruit-raiser.”
    The second count averred that the defendants took away the coal, without leaving proper ribs and supports or putting up the necessary posts for support; that in consequence the surface fell down, making cracks in plaintiff’s land, and injuring his dwelling-house, his fences, fruit trees, &c., and diverting' the springs from their natural channel.

      The tract of land, surface and minerals beneath, on the 4th of October 1853, belonged to Thomas Chadwick, who, on that day, conveyed to the firm of Coleman, Hailman & Co., “all the bituminous and fossil coal within and underlying” the tract in question ; “ containing an area of coal of 40 acres and 145 perches, with the privilege of entering on and occupying so much of the overlying land as might be necessary for opening mines, adits, drains, &c., and for constructing ways, roads, &c., and all the privileges necessary for the convenient working, transportation, &c., of the coal, &c., and “all rights and privileges incident or usually appertenant to the working and using of coal mines.” The rights of the grantees under the foregoing conveyance were after-wards vested in the defendants. After the death of Thomas Chadwick, by proceedings in partition of his estate, the plaintiff, as one of his sons and devisees, became the owner of the part of the tract, the injury to which part is complained of in this suit.
    The cause was tried February 4th 1874, before Kirkpatrick, J.
    The plaintiff proved the mining of coal by defendants under his property; that by reason of their mining the surface had sunk in a great many places; that about three acres of his land had been damaged; he testified particularly as to the injury done to his land and the extent of it. He testified also that there were three springs of water on his property, which were then dried up; there had been plenty of water until the ground began to fall in; the water went over the surface; he supposed it went into the pit.
    On cross-examination, he testified that the. coal was very near the surface.
    From the plaintiff’s evidence in chief and on cross-examination of his witnesses, it appeared that the “ribs” of the mine were drawn, that the coal in some places approached within ten or twelve feet of the surface, that it would be a difficult matter to put proper supports in the mine to hold the roof up ; if they had driven narrow entries and left pillars standing it would not have caved in ; but to take out coal it would be almost impossible to put up pillars to sustain that light covering, unless they had “ logged it” over on the top, the expense of which would be more than the coal was worth; if very narrow rooms had been taken, and the ribs not drawn, it would have sustained itself.
    There was much evidence as to the fact and cause of the injury; to its extent and the amount of damage sustained by the plaintiff.
    The evidence was that when coal is taken out it destroys springs; that no way was known by which coal could be taken out without interfering with springs ; whenever the rock breaks it will cause the springs to disappear before the breaks appear on the surface; if the vein of the spring is broken 200 yards from its mouth it will dry the spring up ; sometimes cutting a clay vein will spoil a spring; if the spring comes out above the coal, coal cannot be mined and the spring preserved ; the best springs come from clay veins; leaving pillars in the mine would not preserve the spring; entries in mines cannot be driven without cutting clay veins.
    In the course of the trial the defendants made the following offers of evidence, which were rejected by the court, and several bills of exception sealed:—
    1. That at the date of the conveyance from Thomas Chadwick to William Coleman et ah, it was, and for many years previously had been, the universally approved, established and customary course and practice of mining coal in the vicinity of the plaintiff’s land, and in this bituminous coal region — as well when the coal and surface were owned separately, as when owned together — to mine and remove all the coal without leaving ribs or pillars of coal or other supports for the surface, to be followed by evidence that the defendants mined their coal from under the plaintiff’s surface according to the said course and practice of mining, and with care and skill, and without any negligence in the operation of mining.
    2. That from the character of the coal vein in plaintiff’s land and the vicinity, and generally throughout the bituminous coal region of Western Pennsylvania, and from the sitiuation of said coal vein in respect to the surface and the nature of the overlying soil, it is impossible to work the coal or carry on mining operations therein without disturbing the surface and causing a subsidence thereof, and that it is impracticable to support the surface and prevent its subsidence by means of coal pillars or ribs or artificial props; that at the date of the conveyance from Thomas Chadwick to Ooleman et al., it was and for many years previously, to wit: from the time when bituminous coal was first extensively mined in this region, it has been and still is the universally approved, established and customary course and practice of mining coal in the vicinity of the plaintiff’s land and throughout this bituminous coal region — as well when the coal and surface were owned separately as when owned together — to mine and remove all the coal without leaving ribs or pillars or other supports for the surface; that said course and practice of mining is better for the surface owner than to attempt to keep up the surface by means of coal pillars, or ribs or props, because the surface where all the coal is removed settles evenly, whereas if coal ribs or pillars or props are left, it will eventually break and settle unevenly; and that the defendants mined their coal from under the plaintiff’s surface according to said course and practice of mining, and with care and skill, and without any negligence in the operation of mining.
    3. That from the nature of the coal vein under the plaintiff’s surface, and its nearness to the surface, and the character of the overlying soil, it was not possible to carry on mining operations in the coal in the plaintiff’s land, without disturbing the surface and causing the subsidence complained of in this case, and that it was not practicable to support the surface and prevent said subsidence and alleged injuries by means of coal pillars or ribs, or by artificial props; and that the defendants mined their coal from under the plaintiff’s surface with the utmost care and skill, and without any negligence in the operation of mining.
    The following are points of the plaintiff, which were affirmed:—
    1. If the jury believe, from the evidence in this case, that the defendant or their employees mined, dug and carried away the coal and slack underlying plaintiff’s property, without leaving or putting up proper and sufficient pillars, posts or supports for said surface property, by reason whereof plaintiffs property caved, sunk and fell in, and was thereby damaged, the verdict should be for the plaintiff, in such an amount as is warranted by the evidence.
    2. If the jury believe, from the evidence in this case, that the defendants or their employees dug, mined and carried away the coal underlying the plaintiff’s property; and took, dug and removed the coal pillars, stumps and ribs under said property, without putting up sufficient pillars and supports to keep said surface in its natural state, level and position, thereby causing the surface of said property to crack, sink, cave and fall in, causing damage to the same, the verdict should be for the plaintiff, in such an amount as is warranted by the evidence.
    4. If by the deed from Thomas Chadwick to Coleman, Hail-man & Co., from which company and their vendees, the defendants, by divers mesne conveyances, obtained said coal; and if, after the death of Thomas Chadwick, his heirs made an amicable partition of the surface estate to and among themselves, said James M. Chadwick taking, and now owning and possessing, a distinct part or portion thereof, said coal estate and the superincumbent land owned and in possession of said James M. Chadwick, the plaintiff, became thereby two separate and distinct estates; and if the defendants or their employees mined, dug, and carried away the said coal underlying the surface property of said James M. Chadwick, without leaving ribs, stumps or supports, or putting up proper and sufficient pillars or supports to keep said surface intact, by means whereof said surface of James M. Chadwick cracked, sunk, caved and fell in, causing damage to the same, then the verdict should be for the plaintiff.
    The following are defendants’ points, which were refused:—
    1. Upon all the evidence in the case the verdict should be for the defendants.
    2. Under the conveyance in evidence from Thomas Chadwick and wife to William Coleman and others, the grantees in said deed and those acting under them had the right to mine and take out the coal thereby conveyed, according to the established, approved and customary course and practice of mining bituminous coal at the time of the said conveyance, without liability to the owner of the surface for consequential damages, provided said coal was mined and taken out with proper care and skill, and without any negligence in the operation of mining ands taking out the coal.
    The court charged :—
    “We have no extended general charge to deliver. The points presented by the counsel cover all the questions in this case, and we will not comment on the facts. Our opinion is that the plaintiff has a right to recover. We regard this as settled by the decision of the Supreme Court in Jones v. Wagner, 16 P. F. Smith 429. ...
    ... “ We have prepared a form of special verdict, which you will adopt, filling up the amounts which we have left blank. * * *
    We take this course in order that we may consider the question of the right of the plaintiff to recover for loss of springs before the court in banc, and mould the judgment as we may decide that question.”
    The jury returned the following verdict:—
    “ We find for the plaintiff in the sum of $1700, this amount including all damages of every kind, as claimed by him, and in assessing this amount we incorporate an amount of $1000, which we find and award for his losses of springs, and -if the court in banc should be of opinion that he is not entitled to recover this item, then this amount to be deducted from the above verdict of $1700, and judgment to he entered for the plaintiff in the sum of $700, non obstante veredicto; otherwise the verdict to be for the plaintiff in amount as above rendered.”
    July 11th 1874, it was “ ordered that judgment be entered upon the verdict for the plaintiff upon the questions of law reserved non obstante veredicto, in an amount and to the extent of $700, being the amount found by the jury for loss and prejudice to the plaintiff’s land, exclusive of loss of springs, with interest,” &c.
    Each party took a writ of error.
    The plaintiff assigned for error the entering of judgment for $700, and not for $1700, the amount found by the jury.
    The defendants assigned for error:—
    I, 2, 8. The rejection of their offers of evidence.
    5. Affirming the plaintiff’s first point.
    6. Affirming the plaintiff’s second point.
    7. Affirming the plaintiff’s fourth point.
    8. Refusing defendants’ first point.
    9. Refusing defandants’ second point.
    10. Charging that plaintiff had a right to recover.

      J. Fitzsimmons, for plaintiff below.
    If an owner of the whole estate have alienated the minerals, reserving the surface, he is not presumed to have parted with the right to support of the surface: Bainbridge on Mines 380; Jones v. Wagner, 16 P. F. Smith 429; Dugdale v. Robertson, 8 Kay & J. 695; Humphries v. Brogden, 1 Eng. Law & Eq. 241; Wakefield v. Buccleugh, Law Rep. 4 Eq. 613; Glasgow v. Hurlet and Campsie Alum Co., 8 Eng. Law & Eq. 13. Where general words in a contract follow particular recitals, they are to be construed as applicable to subjects ejusdem generis: Parsons on Contracts 501, note u; 500, note r. The right of support to the surface cannot be taken away by words of doubtful meaning : Bainbridge on Mines 433; Proud v. Bates, 5 Am. Law Reg. (N. S.) 171; Shaw v. Stenton, 28 L. J. Exch. 253. Where a particular clause in a deed granting certain rights respecting persons or things of an inferior class, followed by a general clause, such clause will not grant rights to persons or things of a superior class: Doe v. Meyrick, 2 Crompton & J. 223; Jackson v. Stevens, 16 Johns. 110; Queen v. Nevill, 8 Q. B. 452.
    The springs of water cannot be dissevered from the soil; all are considered real estate: 1 Co. Lit. 3 b, 4 a, sect. 1; Caldwell v. Fulton, 7 Casey 483. The defendants had no right to disturb plaintiff’s right to his flow of water: Acton v. Blundell, 12 M. 6 W. 336; N. A. Railroad Co. v. Peterson, 14 Ind. 12; Washburn on Easements 365, 378, 450, 456, 460; Smith v. Kenrick, 7 C. B. 515. Each contiguous proprietor has absolute control of the water within his own premises: Wheatley v. Baugh, 1 Casey 533; Dexter v. Providence, 1 Story R. 387; 2 Hilliard on Real Prop. 105; Hill v. Newman, 5 Cal. 445. A subterranean spring cannot be diverted by the owner of the land above, to the injury of those using the water: Smith v. Adams, 6 Paige 485; Ralston v. Benstead, 1 Campbell 463; Whitestone v. Park, 2 Hurlstone & Norman 870. A spring is a water-course which, after leaving the opening, cannot be diverted: Gillett v. Johnston, 30 Conn. R. 180.

      M. W. Acheson, for defendants below.
    The deed from Chadwick was a sale of all the coal and the right to mine it; by the contract the whole coal may he devoted without leaving support: Jones v. Wagner, 16 P. F. Smith 429. Proof of usage is admissible to interpret a contract: 1 Greenl. on Evid., sect. 292, 294; 2 Parsons on Contr. 49; Dwight v. Whitney, 16 Pick. 179; Stultz v. Dickey, 5 Binney 285; Aughingbaugh v. Coppenheffer, 5 P. F. Smith 347; Taylor’s Land. & Ten., sect. 350, 538, 554; Van Ness v. Pacard, 2 Peters 137; McCullough v. Irvine, 1 Harris 438. As to the loss of springs he cited: Wheatley v. Baugh, 1 Casey 528; Whetstone v. Bowser, 5 Id. 59; Haldeman v. Bruckhart, 9 Wright 514; Ballacorkist Mining Co. v. Harrison, 29 L. T. N. S. 658.
    January 6th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

We have held in the case of Horner v. Watson, 29 P. F. Smith 251, decided at the present term, approving Jones v. Wagner, 10 Id. 429, that of natural right the surface land is entitled to support from the strata below, and that, when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get without injury to the superincumbent soil, and that the plea of a custom to the contrary could not be entertained, because such a custom would be unreasonable, and hence wanting in an element essential to its validity. To the opinion in that case we refer for the reasoning intended to sustain that conclusion. It is admitted, however, that, as a man may do what he pleases with his own, he may, by grant, part with the right of surface support, and, it is contended, that such is the purport of the deed of Thomas Chadwick and wife to Coleman, Hailman & Co. That part of the aforesaid deed, which is supposed to release such right, reads thus: “And all the privileges necessary for the convenient working, running and transportation of said coal, and deposition of excavated matter, and also all rights and privileges incident or usually appertenant to the working and using of coal mines.” But we cannot perceive that this grant in any way compromises the grantor’s right of surface support. If, indeed, the destruction of the super-incumbent estate be one of the privileges necessarily incident and appertenant to coal mining, then the said indenture does convey the right contended for. As, however, we have just determined that such destruction of the surface is in no way incidental to such mining, we must necessarily refuse our assent to the construction contended for. It is in effect but another form of a plea of a general custom or usage permissive of the removal of all subjacent support. For it is argued, that when the vendor used the words “ all rights and privileges incident or usually appertenant to the working and using of coal mines,” he did so in view of such custom, as above referred to, and that his covenant must be interpreted accordingly. The answer to all this is, that as no such custom could have existed, because of its unreasonableness, it could not have entered into the contract of the parties. Support is part and parcel of the reserved estate; it is of common right, and hence must pass, if at all, by express grant, and is not to be defeated by mere implication arising from language that does not import such an effect.

We think the whole question is determined in the negativing of the custom contended for, and hence the judgment of the District Court must be sustained.

We also affirm the same judgment in the writ of error brought by James M. Chadwick.

So far as we can judge from the record presented to us, the loss of the plaintiff’s springs was occasioned by the ordinary operation of mining, and would have occurred though no part of the surface had been broken. Mining must interfere more or less with those subterranean streams and percolations of water which appear upon the surface as springs; to say that the owner of the substrata shall be accountable in damage for their disturbance, is to say that he shall have no use whatever of his minerals, for, without interfering to some extent with such waters, mining is impossible.

Judgment affirmed.

Williams and Meucur, JJ., dissented.


author: Mr. Justice Woodward

text:
    Graver versus Scott.
    1. A contract was for the sale of a piece of land, “ also a tract of coal propertyfor the land the vendee “ agrees to pay. §2500, §2000 to be paid on delivery of the deeds and possession of the property; * * * the coal is to be paid for at the rate of half a cent per bushel, payment to be made for the coal at the end of each year; vendee agrees to use at least §1000 worth of coal at half a cent a bushel each year.' Held on its face to be a divisible contract.
    2. The vendor being unable on demand to deliver a deed and possession of the property the vendee did not take possession of the coal tract nor mine coal; at the end of the year the vendor sued for the §1000. Held, the suit being in affirmance of the contract, that parol evidence was admissible that the land was necessary for the vendee’s enjoyment of the coal and that it was the understanding at its execution that the contract was entire.
    3. In absence of explanatory proof, on a sale in separate lots, if title to a portion fails, equity will compel the vendee to take the lots to which title can be made.
    4. If the part of a contract of sale that has failed be so essential to the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto.

    5. A verbal promise at the making of a written contract, if made to obtain its execution, may be given in evidence.
    6. An action by the vendor for the purchase-money under a contract is in affirmance of it, and is subject to the rules applicable to a bill for specific performance.
    7. McClurg v. Price, 9 P. P. Smith 420, distinguished. Nicol v. Carr, 11 Casey 381, followed.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to tbe Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, No. 113.
    This was an action of debt, brought October 3d 1874, by Alexander Scott against Michael Graver.
    The plaintiff’s claim was for coal which the defendant was to mine from plaintiff’s property and pay for, under the following agreement between them :—
    “Agreement made this'13th day of September 1873, at Pittsburg.
    “ This agreement witnesseth, that Alexander Scott, of Aliegheny county, of first part, agrees to sell to M. Graver, of Allegheny city, of second part, the following described property for the amount and on the terms hereinafter mentioned:—
    “ A piece or parcel of ground, known as the ice-pond, situated in Allegheny,' Butler and Armstrong counties, at the junction of Buffalo creek and Allegheny river, bounded by Buffalo creek, Allegheny river and West Penn Railroad, containing five and a quarter acres, more or less; also a tract of coal property, known.as the Miller’s heirs property, said to contain about three acres surface and about seventeen acres of coal.
    “ The terms of purchase are these: For the ground known as the pond property, party of the second part agrees to pay twenty-five hundred dollars; two thousand dollars to be paid on delivery of the deeds and possession of the property; the other five hundred dollars to be paid at the end of three years.
    “ The coal is to be paid for at the rate of a half a cent per bushel, according to actual measurement, as dug and delivered; payment for the coal to be made at the end of each year. Party of second part agrees to use at least one thousand dollars’ worth of coal at half cent per bushel each year.”
    The affidavit of defence was :—
    “ This affiant saith, that it is true that the piece or parcel of ground known as the ice-pond property, and the tract of coal mentioned in said agreement, are not contiguous, but in fact they bear such relation to each other that this affiant would not have bought the coal property, under any circumstances, without the said pond property; and affiant saith that the plaintiff insisted that this affiant purchase the said coal property in connection with the said ice-pond property, and the parties dealt in respect to the said properties as a unit; that the said coal property would be worthless to the defendant without the ice-pond property. Affiant further saith, that the plaintiff hath never been able, and is not now able, to make title to affiant for the ice-pond property, nor has he ever been able, nor is he now able to give this affiant possession thereof. That on the 21st of August 1874, this affiant caused to be tendered to the plaintiff the two thousand dollars purchase-money mentioned in said agreement, and demanded that the plaintiff execute to the affiant proper deeds, and give him possession of said property. But the plaintiff neglected and refused to comply with said demand, and still neglects and refuses. That this affiant was never in possession of either of said properties, nor did he ever mine any coal from the said'coal property.' Affiant saith, that the plaintiff hath violated his contract in every respect, and that he has never even tendered affiant a deed for the coal.”
    The ease was tried March 16th 1875, before Kirkpatrick, J. The plaintiff testified that defendant did not take any coal out from September 13th 1873 until September 13th 1874; he made a demand on the 24th of September 1874, from defendant, for payment of $1000 under the contract; defendant did not pay-
    The defendant, under objection by plaintiff, testified that he purchased the ice-pond for the purpose of erecting an oil refinery on it; plaintiff said he wanted the pond property to sell the coal property ; they are about 400 or 500 yards distant from each other; defendant did not want the coal property, and would not have purchased it without the pond property ; it was not essential for the pui’pose for which he desired the nond property; it was of no value to him without the pond property. Plaintiff never gave him possession of the property; defendant was anxious to have it, because his purchase was based on certain contingencies that he would get possession in a short time. He made a tender of $2000 to plaintiff and demanded a deed; plaintiff never tendered him a deed for any of the property. One Tarr was living on the pond property at the time; he had claimed to have a title to it; he was in possession until after this suit was brought.
    There was other evidence in corroboration of defendant’s testimony and by the plaintiff in answer to it.
    The court charged :—
    * * * “ In the trial of this cause I received with some doubt testimony as to what transpired at the time that this compact was being entered into. I did it for the purpose of enabling the jury to determine whether this contract was an entire contract or was a separable contract. Had I been determining the contract upon the paper alone, I might have said, as it was my duty to construe the contract, that it was a separable and divisible contract. I say now to you, upon reflection, that I think that testimony was improperly received. I think that this contract is a separable and divisible contract; that the right to recover has no reference nor allusion to the ice-pond property whatever; that the fact that Tarr was in possession, and that Mr. Scott could not make a deed for this property, is no defence to the right to recover for' the coal property for the $1000; and I so instruct you, and that under all the evidence in this case your verdict must be for the plaintiff, debt, interest and costs. * * * We say, as a matter of law, that there is no defence.”
    The verdict was for the plaintiff for $1030.
    The defendant took a writ of error and assigned for error :—
    1-3. The charge of the court.
    4. In not charging that the plaintiff could not maintain the action without a previous tender of a deed for the coal property.

      M. W. Acheson, for plaintiff in error.
    The action was an equitable proceeding to enforce specific performance; the defendant, therefore, can avail himself of any equitable defence: Nicol v. Carr, 11 Casey 881. Conceding that the agreement on its face is a divisible contract, the parol evidence shows that it would be inequitable to enforce the performance of hut a part: Freetly v. Barnhart, 1 P. F. Smith 279; Stoddart v. Smith, 5 Binn. 355; 1 Sugden on Vendors 476, et seq.; pl. 1-24, p. 484, note g ; Gibson v. Spurrier, Peak Ad. Cases 49. The parol evidence in this case did not contradict the agreement and was admissible: Barnhart v. Riddle, 5 Casey 92; Miller v. Fichthorn, 7 Id. 252; Chalfant v. Williams, 11 Id. 212; Powelton Coal Co. v. McShain, 25 P. F. Smith 238. The plaintiff was bound to tender a deed before suit: Withers v. Atkinson, 1 Watts 236; Smith v. Webster, 2 Id. 478.

      W. S. Puniance 3,v¡& S. A. Puniance, for defendant in error.—
    The agreement is as if a contract had been made for each property by a distinct writing; in such case the contract would have been divisible: Roberts v. Beatty, 2 Penna. R. 69. If the part to be performed by one party consists of distinct items and the price to be paid by the other is apportioned to each item, the contract is severable: 2 Parsons on Oontr. 29, 31; McOlurgy. Price, 9 P. F. Smith 420; Lucesco Oil Co. v. Brewer, 16 Id. 351; Coffman v. Hampton, 2 W. & S. 377; Barclay v. Tracy, 5 Id. 45 ; Tompkins v. Haas, 2 Barr 74. As to the admission of the parol evidence they cited: Balt. & Phila. S. B. Co. v. Brown, 4 P. F. Smith 81.
    January 6th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

Upon its face, the instrument executed by these' parties on the 13th of September 1843, created two separate and independent contracts. The ice-pond lot was sold for $2500, in two stipulated payments. The consideration for the coal property was to he the payment at the end of each year of half a cent per bushel for all the coal dug and delivered, the purchaser, the defendant below, agreeing to use $1000 worth of coal each year at the specified price. On the trial the ground was taken on the part of the defence, that while the agreement was separable and divisible in its provisions, yet in fact, in view of the understanding of the parties, it was an entire contract, and was induced by a single substantial consideration. Evidence was given to prove that the motive of the defendant was to obtain the title to the ice-pond lot for the erection of an oil refinery; that he did not want the coal lot, and under no circumstances would have purchased it by itself, hut was compelled to take it, as the plaintiff insisted on selling both properties together; and that the subjects-matter of the agreement were treated as an entirety throughout the negotiations. It was shown also that one Tarr was in possession of the ice-pond property when the contracts were made, and was not dispossessed until December 1874, two months after this suit was brought. In the charge of the court, the jury were instructed that the evidence had been'improperly received, and should be disregarded"; that the rights of the parties were governed by the agreement; and that as a matter of law no defence had been shown to plaintiff’s claim.

In the absence of any proof of explanatory facts, when property is sold by a single contract in separate lots, and a title to a portion of them fails, equity will compel the purchasers to take the lots to which title can be made: 1 Sugden on Vendors 291. Thus, in Poole v. Shergold, 1 Cox 273, a man became the purchaser of several lots of an estate, the title to two of which failed. Upon the master’s report Lord Kenyon said he must take it for granted that these two lots were not complicated with- the others, so as to entitle the purchaser to resist the whole, and therefore decreed specific performance pro tanto. But it was said in the same case, that if a title cannot be made to a lot which is complicated with the rest, the purchaser will not be compelled to accept the rest. And Lord Kenyon said that if a purchase was made of a mansion house in one lot, and of farms, &c., in others, and no title could be made to the mansion house, it would be -a ground to rescind the whole contract. In a previous case, before Sir Thomas Sewell, Master of the Rolls, a man who had contracted for the purchase of a house and wharf was compelled to take the house, although he could not get the wharf, and although it appeared that his object was to carry on his business at the wharf. This was declared by Lord Kenyon to be a determination contrary to all justice and reason;, and in a note to 1 Sugden on Vendors 294, it is stated that “ this case has been frequently disapproved, and would not have been so decided at this day.” In Stoddart v. Smith, 5 Binney 355, it was said by Tilghman, C. J., that there are cases where failure to part ought to dissolve the whole contract. * * * The principle is this, that where the part lost appears to be so essential to the residue that it cannot be reasonably supposed the purchase would have been made without it, the contract is dissolved in toto.” In that case the contract was enforced as to the residue for which title could be made, but the reasons given were, that the five lots lost were not adjoining or particularly connected with the others ; and that there was no evidence of their being in any way essential to the use or full enjoyment of the residue.” In Freetly v. Barnhart, 1 P. F. Smith 279, which was a bill in equity to enforce the specific execution of a contract, the plaintiff had agreed to sell to the defendant three leases of land in West Virginia, in consideration for which the defendant was to convey to the plaintiff eight acres of land in Venango county, Pennsylvania, and become a member of the Cunningham Oil Company. On the hearing there was evidence of the invalidity of at least one of the leases. It was held that “ the lease of the Dill and tract was clearly defective to the extent of one-third, the party entitled to that being non compos mentis when it was made. This, of itself, would justify a refusal to decree in such a case as this.” The action here is in affirmance of the contract, and Nicol v. Carr, 11 Casey 381, shows it to be subject to the rule that would apply to a bill for specific performance. So far as the evidence indicates the use to which the coal property was to be devoted, it would appear that fuel was to be obtained from it for the purposes of the- oil refinery on-the ice-pond lot, which it was the design of the defendant to erect. How the properties were tobe connected, and how and to what extent the enjoyment of the one was dependent on the possession of the other, .the jury alone could have determined.

In support of the ruling of the court below, the counsel for the plaintiff have relied in their argument on the doctrine asserted in 2 Parsons on Contracts 29-31, that “if the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is apportioned to each item to be performed, or is left to be implied by law, such a contract will generally be held to be severable. * * * But if the consideration to be paid is single and entire, the contract must be held to be entire, although the subject of the contract may consist of several distinct and wholly independent items.” The doctrine is stated with sufficient accuracy to meet a case ivhose particular circumstances warrant its adoption, but the defect of the statement, as quoted by counsel, consists in its universality. While the reduction to the limits of a maxim of the great body of principles that make up an entire branch of our legal system, might be convenient, it would be exceedingly unsafe. McClurg v. Price, 9 P. F. Smith 420, was cited as an instance where this rule was adopted without qualification. All that was done there was to settle the law that bore on the facts which the case presented. It was not designed to unsettle or disturb the authority of Obermyer v. Nichols, 6 Binney 159, and of other well considered precedents, containing such elements as proof of substantial but defective performance, proof of a failure to perform capable of compensation in damages, or proof of other peculiar facts requiring the application of peculiar principles. The Lucesco Oil Company v. Brewer, 16 P. F. Smith 351, was also cited. The contract there was manifestly severable, and was within the general doctrine of Parsons on Contracts. In neither McClurg v. Price, nor the Oil Co. v. Brewer, were there any circumstances proved to show such relations of parties, such situation of property, or the existence of such exceptional conditions as to require the intervention of a jury to promote an equity, or avert an injustice, or prevent a fraud.

The parol evidence was competent, and was properly received by the court. It was said in Barnhart v. Riddle, 5 Casey 92, “ that many cases might be cited from the books to mark the distinction, too often lost sight of by counsel, in the zeal of an argument, between evidence to alter the language of a written instrument and evidence to define the position of the parties, and the nature and condition of the subject of the contract. So long as parties call on courts of justice to administer their contracts, they must expect them to be administered as nearly as may be according to the very intention and understanding that were present in the minds of the parties when the contract was signed, and to this end courts take the language employed, and apply it to the surrounding circumstances exactly as they believe the parties applied it:” Miller v. Fichthorn, 7 Casey 252, is an authority to the same general effect. In Pennsylvania, in the words of Lowrie, C. J., “in consequence of our liberal allowance of set-offs, defalcations and equitable defences, parol evidence is often admissible in an action on a written contract, in order to extend the field of inquiry to the whole transaction of which the particular contract forming the basis of the action constitutes a part.” In an action on a contract for the sale of a colliery for a gross sum of money, to be paid at a certain rate per ton on each ton of coal mined therefrom, parol evidence is admissible to prove that at the time of the execution of the contract, it was agreed between the parties that the vendors should not be bound to mine the necessary amount of coal, and that the vendee should take the risk of their doing so: Chalfant v. Williams, 11 Casey 212. The English rule that parol evidence is inadmissible to vary the legal operation of an instrument is not the law of this state: Id. A verbal promise by one of the parties at the making of a written contract, if it was used to obtain the-execution of the writing, may be given in evidence. “This rule is put upon the ground that the attempt afterwards to take advantage of the omission from the contract of such promise is a fraud upon the party who was induced to execute it upon such promise:” Per Gordon, J., in Powelton Coal Company v. McShain, 25 P. F. Smith 238. Having been received, the evidence should not have been withdrawn. It had a legitimate bearing on the questions which the defendants had legitimately raised. With the other proofs it should have been submitted to the jury.

The fourth error is assigned to the failure of the court to charge that the plaintiff could not maintain this action without a previous tender of a deed for the coal property. While the property included three acres of surface, it seems obvious from the whole-agreement, in the absence of explanatory testimony, that the parties treated it not as land but a mining right. The only consideration to be paid was half a cent per bushel for the coal that should be dug and delivered. No date was specified for the execution of the deed for even the ice-pond lot. For that, $2000 were to be paid “ on the execution of the deeds and possession of the property.” The contract contained no provision to secure the consideration for the coal lot. With such knowledge of the facts as the record affords, the failure to tender a deed cannot be held fatal to the plaintiff’s action. Such a deed in the ordinary form would scarcely meet the exigencies of a contract which partakes more of the nature of a mining lease than of a sale of land. The difficulties in the way of a conveyance do not appear insurmountable. The property could be made subject to the consideration in the very words the parties employed, although, in the absence of stipulations, this could only be done by a fresh agreement, or by the terms of a conditional verdict.

Judgment reversed, and a venire facias de novo awarded.


text:
    Taylor, Executor, &c., of Barnes, versus Kelly.
    1. In an action against an executor for debt of testator the wife of a residuary legatee is not competent, under the Act of April 15th 1869, to testify for the defendant as to matters occurring in the life of the testator.
    2. The competency conferred on a witness by the enacting clause of the Act of 1869, is taken away by the proviso where an executor is a party.
    3. The incompetenoy of the wife to testify in the interest of her husband, in a suit against an executor, stands as if the Act of 1869 had not been passed.
    4. Dellinger’s Appeal, 21 P. F. Smith 425; Diehl v. Emig, 15 Id. 320; Gyger’s Appeal, 24 Id. 48; Karns v. Tanner, 16 Id. 297; Pattison v. Armstrong, 24 Id. 476, compared.
    November 17th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1875, No. 144.
    This was an action of assumpsit, brought March 20th 1873, by William Kelly against Samuel Taylor, executor, Ac., of Henry Barnes, deceased.
    The cause of action in this case was a claim by the plaintiff for boarding the testator for a number of years previously to his death.
    The case was tried February 11th 1875, before McJunkin; P. J.
    The plaintiff gave evidence to sustain his claim.
    The defendant, Samuel Taylor, the executor, being also the husband of the testator’s daughter, who was a residuary legatee under her father’s will, was offered as a witness. The plaintiff objected to the competency of the witness to testify to any matter occurring in the lifetime of the testator.
    Mrs. Barnes, the wife of Henry Barnes, a son of the testator, the son being a residuary under the will, was also offered. The plaintiff made the same objection to this witness as to the other.

      The court refused to allow either to testify as to the matters objected to and sealed several bills of exception.
    The verdict was for the plaintiff for $1388.87.
    The defendant took a writ of error, and assigned for error the refusal to allow the witnesses to testify, as stated in the objections.

      II. B. MoCornb (with whom was J. MeMichael), for plaintiff in error.
    Mrs. Barnes standing alone had no interest. The policy of the law has been to exclude husband or wife as a witness when the other had an interest, but this policy is removed by the Act of April 15th 1869, section 1st, Pamph. L. 30, 1 Br. Purd. 624, pl. 16, which declares that no policy of the law shall exclude a person from being a witness; the proviso does not affect a husband or wife called to testify for each other: Dellinger’s Appeal, 21 P. F. Smith 425.

      J). B. Kurtz (with whom was B. T. Kurtz), for defendant in error.
    The rule excluding the testimony of husband and wife for each other is one of interest as well as policy: 1 Greenl. Ev. 329, 334. The construction of a statute should approach as near as possible to the common law: Stowel v. Zouch, Plowden 365; Heyden’s Case, 3 Rep. 7; 1 Kent’s Comm. 464, 465. The safest rule to reach the intention of a law is to adhere to the words: Olmstead’s Case, Brightly’s Rep. 9; Packer v. Sunbury & Erie Railroad Co., 7 Harris 220.
    November 22d 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The assignments of error are to the rejection of two witnesses. One is the husband of a daughter, the other is the wife of a son of the testator. The wife of the former, and the husband of the latter, are interested in the estate.

Unless the witnesses were made competent by the Act of 15th April 1869, they are clearly incompetent to testify to the matters for which they were offered. This is conceded. Their competency is sought to be established by the first section of that act. It declares “no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding: Provided, this act shall not alter the law as now declared and practised in the courts of this Commonwealth so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communication of his clients.” If the proviso ended there, the witnesses would have been competent in behalf of the plaintiff in error, as to matters which occurred in the lifetime of the testator; but it further proceeds to declare “ this act shall not apply to actions by or against executors, administrations or guardians, nor where- the assignor of the thing or contract in action may be dead, excepting in issues and inquiries devisavit vel non, and others, respecting the right of such deceased owner, between parties claiming such right by devolution, on the death of such owner.”

Thus it appears the same imperative “ shall not apply” extends to a ease in which an executor is a party, as to the prohibition of husband and wife from testifying against each other, and counsel to the privileged communication of his client. The language is neither doubtful nor obscure. Its clear and mandatory edict takes all these cases out of the statute. Evans v. Reed, 28 P. F. Smith 415, decided at the present term, was a ease in which the action had been brought between parties in their own right. On a former trial both parties had testified and their evidence had .been reduced to writing. On a subsequent trial, after the death of one of the parties and the substitution of his administratrix, we held the testimony of the decedent thus taken might be given in evidence. We considered it substantially as a deposition taken when the party was competent, which is expressly authorized by the third section of the act. That action was not brought by or against an executor or administrator. The party was clearly a competent witness when the testimony was taken.

The present action was brought against an executor. It was on a contract claimed to have been made with his testator. The right of the witnesses to testify is rested on this Act of 1869. It is urged inasmuch as it declares “ no interest nor policy of law shall exclude a party or person from being a witness,” and the witnesses offered not being directly interested in the event of the suit, they cannot be excluded by the policy of the law. Prior to the enactment of this statute, both interest and policy excluded husband and wife from testifying for and against each other.

We must not overlook the fact that all competency imparted to ány witness, by the enacting clause of the 1st sect., is entirely taken away by the proviso, in case an executor is a party to the action. It would be no more clearly in the face of the statute to hold that husband and wife may testify against each other, than that they may testify in their own favor, when an executor is a party to the action, to events which transpired during the life of the testator. Each is prohibited by the same expressive language. The same clause in the enactment made both husband and wife equally competent. The same prohibition in the proviso made them both incompetent to testify in behalf of each other, when an executor is a party.

The language of the statute requires no acuteness to interpret it. It utters no uncertain sound. Any attempt to define its meaning cannot make it more clear. We have no right to assume the legislature did not intend what they have so distinctly and imperatively declared. We must not search for some occult meaning, as, if the language was obscure. We must yield to its language,’so clearly expressed, its natural force and effect.

The subject-matter about which the witnesses were called to testify, is not within the exception to the proviso. It is not the settlement of a claim of right that passed by devolution of the estate. The incompetency of the witnesses in this case stands as if this act had never been passed.

When the legislature sought to qualify this statute, as they did by the 1st sect, of the Act of 9th April 1870, they restricted the right .of a party to testify to matters only which occurred after the death of the person whose estate was represented on the trial.

The conclusion to which we have arrived is sustained by Diehl v. Emig, 15 P. F. Smith 320. That was an action by a daughter against the executor of her father’s will. It was held her , husband was not a competent witness to testify to matters occurring in her father's lifetime. It is also in accord with the spirit and reasoning of Karns v. Tanner, 16 P. F. Smith 297, and of Pattison v. Armstrong et al., 24 Id. 476. It is true, the conclusion to which we have arrived is in conflict with Dellinger’s Appeal, 21P. F. Smith 425; but a more careful examination of the act convinces us that due consideration was not then given to its provisos. It may be said, however, that Dellinger’s Appeal was not a common-law action by or against an executor, but the distribution of a fund in the Orphans’ Court. It was, however, held in McBride’s Appeal, 22 P. F. Smith 480, that the word “ actions” as used in the proviso, was intended to embrace civil proceedings, whatever their form, as well as actions technically, so called. An action is the lawful demand of one’s right in a court of justice. So in Gyger’s Appeal, 24 P. F. Smith 48, it was held that a distributee is not a competent witness, in the distribution of a decedent’s estate, as to matters occurring in the lifetime of the decedent.

A true enforcement of the statute of 1869 requires us to hold that it means what it says, when it declares, “ this act shall not apply to actions, by or against executors, administrators or guardians.” We see nothing in the letter, nor in the spirit of the act, so far as it applies to husband and wife, to make one competent, when the other is incompetent. It therefore follows the learned judge was entirely correct in excluding the witnesses.

Judgment affirmed.

Chief Justice Asnew and Mr. Justice Sharswood, dissented.