author: Mr. Justice Paxson

text:
    McManus versus Commonwealth.
    1. In an indictment for murder, the fact that the prisoner was a “ Mollie Maguire,” and the character and purpose of that organization, are competent evidence to show motive for the commission of the murder, and to explain the relations existing between a witness and the prisoner, and why certain admissions and declarations of the latter were made. Hester v. Commonwealth, 4 Norris 139; Carroll et al. v. Commonwealth, 3 Id. 107, and Campbell v. Commonwealth, Id. 187, followed.
    2. The refusal to grant a new trial is a matter of discretion and not reviewable.
    June 11th 1879.
    Before Sharswood, O. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Woodward, JJ., absent.
    Error to the Oyer and Terminer of Northumberland county: Of May Term 1879, No. 42.
    Indictment of Peter McManus for the murder of Frederick Hesser. McManus was jointly indicted with John O’Neil, but they were granted separate trials.
    Frederick Hesser, the deceased, lived in Coal township, Northumberland county, about two miles from the borough of Shamokin. He was a stout, fleshy and healthy man, fifty-seven years old. In the month of December 1874 he was employed in the capacity of night watchman, at what is called the Hickory Swamp coal breaker, about one mile from his residence. He was in the habit of going to his work about six o’clock in the evening, and returning about seven o’clock in the morning. On the 18th of December 1874 he was alive and in good health. About six o’clock in the evening of that day he left his home, and was last seen on his way to his place of employment. The next morning, at about six o’clock, whilst it was yet dark, his dead body was found, lying upon the floor near the stove, in the engine-house of the breaker, partly on his face and shoulder. He wore a black soldier overcoat, the cape of which partly covered his head. A club three and a half to four feet long was found near him and partly under the stove; a hammer that had been used at the breaker was found by his right hip. Both these instruments had blood and hair on them. There was a dinge upon the clock which hung against the wall or post, the face of which was injured, and the glass broken and strewn over the floor. The lower hinge of the door that led into the room was broken, and there were marks upon it. An examination of the body showed eight wounds in the' scalp, apparently produced by some blunt instrument, and a fracture of the right forearm.
    At the time.of the alleged murder the prisoner lived with Henry Long, about a mile from Hickory Swamp Colliery. On the evening previous to the murder the prisoner was at home at Long’s house. One John O’Neil came there while McManus, the prisoner, was there on that Thursday night. One Robert Haggerty and a stranger were with O’Neil when he came. They remained there during the night. When they arrived the prisoner was in bed and they called him up, and they went down stairs. They were together down stairs in the kitchen. Robert Haggerty went home before morning. In the morning the prisoner, O’Neil and the stranger were seen coming down stairs. O’Neil and the stranger went away, McManus, the prisoner, accompanying them for some distance. He returned, and some time after took his gun and dog and told the family he was going hunting, and if any person asked for him, to say that they did not know how soon he would return. He returned late in the day, went up to his room and went to bed about eight or nine o’clock. He was there in the morning. The theory of the Commonwealth was, that on Thursday night, the night before Hesser was killed, the alleged murder was planned by the prisoner and the persons with him at Long’s house.
    At the trial before Rockefeller, P. J., Morgan P. Davis, a witness for the Commonwealth, in substance, testified to two different conversations that he heard between the prisoner at the bar and John O’Neil, and also a conversation between himself and the prisoner. The conversation between the prisoner and O’Neil took place at the mines at Hickory Ridge Colliery, in the month of May or June 1876. The witness said that at the time he heard the first conversation between the prisoner and O’Neil, “that McManus came out from his shutes and headings. This was in the gangway, and asked me if I had seen Jack O’Neil, and I said I had, he was up in his breast. So McManus jumped right on to the ladder, as we call it, that we had to go up. McManus went up the breast forty-five or fifty yards and seen O’Neil. I went up to my own place. I had two shutes, and I went up the inside shute, the next but one to O’Neil’s. When I went up I creeped over through the pillars until I got in the next pillar of the inside shute where O’Neil was working. There I heard a conversation in regard to this Hesser case. Jack O’Neil said to Peter McManus, I was awful afraid last night, 'hearing that the coal and iron police was around after the Mollies. I was awful afraid I would be taken for the Hesser murder case. McManus said, no danger, never fear, Jack. O’Neil said, some of the rest of them may squeal. Then McManus says, no danger Jack, repeating it. If you are taken, die grit, like a goat, and I will do the same. Then McManus talked to him again, and told him, never fear, again. Then Jack said, look how little Kerrigan squealed [referring to the evidence of Kerrigan in Campbell 11. Commonwealth, 3 Nórris 187 Rep.]. Then McManus said to Jack O’ Neil, Michael J. Doyle and Edward Kelley were damned fools for shooting Jo'hn P. Jones in open daylight. If they had taken the dead hour of the night at it, like we did; and it was the deathly blow I give old Hesser on the side of the head what fetched him. Then they moved over a little distance to the outside shute. Then O’Neil says, I am very sorry for it. Then Peter McManus says, I ain’t a God damned bit; it would be death if we didn’t do it, and before I would violate my oath I would die and do it again; and it wouldn’t be no worse anyway. That was all I heard at that time.” The witness stated that he heard another conversation between O’Neil and Peter McManus and another person, in reference to this Hesser murder. “ That was a few days afterwards, in Hickory Ridge Colliery, in the mines, just above the battery, what we call the stoppings for ventilation, to turn it up. They were about eight yards from the gangway, O’Neil, McManus and Pickey Donnelly were together. O’Neií said, I wonder if them fellows that passed us heard our conversation whén we were planning the Hesser murder case ? we were rather full, and talked rather loud. McManus said to Jack O’Neil, keep quiet, mouth shut; it is all dark only to our own party. I wasn’t more than about twelve feet from them.” The witness then related a conversation between himself and the prisoner. “Him and me was going to work in the morning; we were going from Henry Long’s to Hickory Ridge Colliery; only us two were together. He asked me what was the news in the “ Shenandoah Herald” last night. I said that Tom Foster is hunting up those things fast, those Mollie Maguire cases; and the murderers of Hesser ain’t very far from here, I said to him. Then he got excited in a minute, and asked me what did I know about it, and I told him he need not get mad, I was only tilling him what was in the paper. He told me to keep my God damn mouth shut. I kept my mouth shut; I said no more.”
    The Commonwealth offered to prove by a witness upon the stand, Dennis F. Canning, that at the time of the murder of Frederick Hesser, and for some time prior thereto, there existed in the coal regions of Northumberland and Schuylkill counties an organization known generally as the Mollie Maguires, but the real name of which was the “ Ancient Order of Hibernians,” that he was initiated as a member of that organization, and was at the time Hesser was murdered, county delegate of such organization for Northumberland county, and that McManus, the prisoner, whose declarations and admissions, witness has testified to, and whose conversations and acknowledgments had with and made to one John O’Neil, the person jointly indicted with said McManus, as testified to by Morgan P. Davis, was a member and body-master of such organization at the time of and prior to the murder, and was such at the time when such admissions and conversations were made and had; and that said John O’Neil, at the time and prior to the murder, and at the time of said conversations and admissions, was a member of said organization; and that both were known to be such by the witness; and that McManus the prisoner, knew witness to be a member and officer of said organization at the times spoken of; that it was the practice in the said organization, and known to be such to the above-named persons, for the members to aid and assist each other in the commission of crimes, and in defeating detection and punishment. That said organization was a secret one, whose members were bound by oaths or obligations to secrecy; the members of which could make themselves known to each other by signs and pass-words; and that the declarations and admissions of the prisoner, above referred to, were made to the witness, and the conversations and declarations had with and made to John O’Neil were made and had as a fellow-member of said organization. This to be followed by proof that McManus, the prisoner, said John O’Neil and another member of said organization, who called himself Pat O’Neil, met the night before said murder in the neighborhood where the crime was committed, and in a conversation together spoke of beating some one’s brains out; and that said Pat O’Neil had upon his person papers showing him to be a member of said organization, which he destroyed, under instructions of said prisoner, for fear he would be arrested with them on his person, and that he left the county immediately after the commission of said crime, by direction of said prisoner.
    This for the purpose: 1st. To show the motive for the commission of the murder; and 2d. To explain the relations existing between the witness, the prisoner and sa-id John O’Neil, and why the admissions, declarations and conversations above referred to and already in evidence were made and had.
    The defendant objected:
    1. Because the prisoner cannot be called upon to answer to that of which he had no notice. The indictment on which he was arraigned, and to which he has pleaded not guilty, charges that Peter McManus, yoeman,.wilfully and of his malice aforethought did kill and murder one Frederick Hesser. It does not charge that the prisoner was a member of any secret or open society or organization, or that he conspired, contrived or colluded, with the members of any secret or open society or organization to commit the crime charged in the indictment; nor that he was counselled, directed or commanded by any society or organization having authority over him, to commit the crime of which he stands charged. The prisoner is without notice through the indictment or otherwise that he would be called to defend himself against such charges and allegations as are contained in the Commonwealth’s offer. It is a fundamental rule of criminal law that a prisoner can only be called on to answer and defend that with which he is directly charged in the indictment preferred against him.
    2. The prisoner is indicted for murder and not for conspiracy. The offer is to show that he was connected with a secret organization, engaged in and counselling criminal practices. It is not competent to show that. he was connected with such secret organization. Nor can he be called upon to defend an implied charge of conspiracy; such charge must be directly made and set out in the indictment, before a prisoner can be required to answer.
    3. The offer of the Commonwealth is to show that there existed in Northumberland county, and in other counties of this Commonwealth, a secret society, criminal in its purposes and practices, and counselling, permitting or commanding its members to criminal acts, and protecting and defending them against arrest and punishment, and that the prisoner was a member of such society or organization. The only effect of the evidence proposed by the offer, would be to show the character of the prisoner, by inferences drawn from his membership with such criminal society. The character of the prisoner cannot be attacked by the Commonwealth; the prisoner alone may deal with that question, in the first instance by availing himself of his good character as a circumstance of defence; and not until this is done by the prisoner can the Commonwealth enter upon the question of character by direct inquiry, or by indirect means tending to that purpose.
    4. The offer is to show the existence of a criminal society in Northumberland county, and the criminal acts of parties not on their trial here, nor indicted with the prisoner, and for whose acts the prisoner is not responsible.
    5. It does not appear, from the evidence, that the alleged criminal organization or society, of which the prisoner is charged with being a member, had any agency in the indictment to which the prisoner is answering.
    6. Evidence must be confined to the issue in the case, and in this case the proofs do not show the defendant acted otherwise than on his own responsibility, or that he acted by direction of, or in collusion with, any society, or person or. persons.
    7. The opportunity and means for committing the crime, and the motive for it, must be shown by legal evidence.
    8. The evidence offered is not competent.
    9. The evidence offered is irrelevant to the issue trying between the Commonwealth and the prisoner.
    Objected to as to the purpose of the offer.
    1. The opportunity, means and motive ought to be proved from the facts connected with the perpetration of a crime, by the weapons employed in committing it, and the time where committed, and nothing contained in the offer tends to this purpose.
    2. Relations existing between the' witness, the prisoner and said John O’Neil, and why the prisoner made certain declarations and admissions, charged to have been made by him, are not proper subjects of inquiry for the purpose of this trial, nor can such relations be shown by proof of the prisoner’s responsibility and rela tions to, or membership in, a secret society, and therefore such evidence is not revelant.
    By the court: “The question raised by the offer to prove the existence of the society called the ‘Ancient Order of Hibernians,’ known as ‘Mollie Maguires,’ and its objects and operations, is not a new one, and has been before the Supreme Court in several cases. It is true it was offered to prove that the crimes were committed-through the instrumentality of the ‘Mollie Maguire’ organization, but in the case of Hester et al. v. Commonwealth, 4 Norris 139, counsel made the objection that the testimony showed that the society in question had no agency in the alleged conspiracy, but that the prisoners acted on their own individual responsibility; that evidence, therefore, as to the nature of the society and the relations prisoners sustained to it, was incompetent and irrelevant. The court below admitted the evidence, confining it to facts that existed in October 1868, and declined to admit proof of specific acts of other members of the society, either before or since that time. This was affirmed by the Supreme Court. Judge Woodward, in delivering the opinion of the court, says: ‘Was this testimony relevant? It was not designed to be used to establish the commission of any independent crime, nor was its object to affect general character or to repel inferences from adversary facts. Its purpose was to explain the relations existing between the conspirators. The' reason, motive and opportunity of their combined action and the nature of the tie that bound them together.’ In that case, ten men, including the three prisoners, met in a saloon on the evening of the 16th of October 1868, and openly arranged the details of their plan to attack and-rob Mr. Rea on the following day. Hester was the body-master of the Locust Gap division, and the nine others were members of the order. A motive, that is to rob and obtain money, had been proved, and there was no real necessity for proving any other motive; but the evidence was proper, in my opinion, for the purpose of explaining the relations that existed between the conspirators, the reason and opportunity of their combined action, and the tie that bound them together. In the present case, the Commonwealth relies on the confessions, o“r rather what may be more properly termed, the self-criminating statements of the prisoner, in connection with circumstances and facts tending to show that they were true, made to the witness and also to one or more of the alleged conspirators, at a time when they thought no one was present. It is proposed to prove that the prisoner was the body-master of Shamokin division at that time, and John O’Neil was a member of the society. That the witness was county delegate of the same order at the time, and that the declarations and admissions of the prisoner referred to, were made to the witness, and the declarations had with and made to- John O’Neil, were made and had as a fellow-member of said organization. This being in the offer, I do not see how the evidence can be rejected. The evidence already in, clearly tends to show that both the prisoner and O’Neil were some of the parties connected with the murder of Hesser. On the occasion when Pickey Donnelly was present, it would seem plain that they talked of a previous planning of the Hesser murder. O’Neil expressed his fear that some persons who had passed, the night they had planned the Hesser murder, had heard them, as they had talked rather loud, when McManus told him to keep quiet, that it was all dark only to their own party. This evidence, if believed, clearly tends to show that there had been a previous conspiracy, a planning of the Hesser murder, and that these parties were the conspirators. If the kind of testimony received in the case of Hester, was proper to explain the relations, reason and motive, and opportunity of combined action, and the nature of the tie that bound them together; that is, ten men who had conspired to murder Rea, why is it not proper to show the relations, &c., of two or more men who had done the same thing with regard to the murder of Hesser ? The statement of the conversation between the prisoner and O’Neil, as detailed by Morgan P. Davis, tends to show that they were talking together as members of the society. McManus was the body-master and O’Neil a member. O’Neil expressed his fear of being taken for the Hesser murder, as the police were up after the Mollies, and the reply of McManus tends to show that they were acting under some secret oath or obligation. It is not shown that the object was to rob Hesser, and without some. evidence of the kind offered, the act is perfectly inexplicable. With it, perhaps, the declaration and evidence already in, may be understood. The Commonwealth cannot expect to convict the prisoner, on his own confessions and declarations alone, and must show some facts or circumstances independent of them, tending to show that they were true. I have come to the conclusion to admit the evidence, confining the testimony to facts that existed in the month of December 1874, at the alleged time of the Hesser murder, but it is not permitted to prove specific acts of others, members of the society, either before or since that time. *A11 specific acts of others than those charged with complicity in the murder of Hesser, are excluded.”
    The defendant, inter alia, presented the following points, to which are appended the answers of the court:

      3. That the evidence in this case discloses and proves that Peter McManus, the defendant, was not present when. Frederick Hesser was killed, nor did he inflict the injuries Avhich caused the death of Frederick Hesser. That unless the Commonwealth have established by sufficient competent evidence, that Peter McManus counselled, advised, conspired, aided and abetted or procurred the killing of Frederick Hesser, he, Peter McManus, must be ' acquitted.
    Ans. “ I cannot answer this point as requested, but so much of the point as requests the court to charge that unless the Commonwealth has established, by sufficient competent evidence, that Peter McManus counselled, advised, conspired, aided and abetted or procured the killing of Frederick Hesser,. he, Peter McManus, must be acquitted, is affirmed.”
    4. That there is no evidence in this case tending to show that Peter McManus was connected with pr had anything to do with the killing of Frederick Hesser, except the evidence of Morgan P. Davis, and that all the other evidence in the case, is consistent with the innocence of the defendant.
    Ans. “ This point I answer as requested, but say, to you, that in my opinion, there is evidence in the case, tending to show that Peter McManus was connected with or had something to do with the killing of Frederick Hesser, taken in connection, with the evidence of Morgan P. Davis; but without the evidence of said Davis, all the other evidence is consistent with the innocence of the prisoner, and the point is answered in the affirmative.” ,!‘
    In the general charge the court, inter alia, said :
    “ No witnesses have testified that they saw the act done, and the individual who committed it, but the Commonwealth relies partly on facts and circumstances sworn to by several witnesses, and on the declarations, admissions or statements of the prisoner himself, made on several occasions. * * *
    . “ The defendant’s counsel contend that there is no evidence, or not sufficient evidence, in the case to be submitted to the jury, tending to show the defendant’s participation in the alleged crime, and that the court ought to instruct you, as matter of law, that there can be no conviction; but I am of opinion that there is evidence in the case which I am bound to submit to you.”
    The jury rendered a verdict of murder in the first degree, and the prisoner was sentenced to be hung. A like verdict was recorded and sentence imposed in the case of O’Neil. Both took writs of error, and the cases were argued together in the Supreme Court. In the case of McManus,'-'as well as O’Neil, it was alleged that the court erred, 1. In admitting the evidence of Canning; 2 and 8, in the answers to the points of defendants; 4 and 5, in the portions of the charge noted, and 6, in failing to consider on the argument of the motion for a new trial, the after and newly-discovered evidence with reference to the character of Morgan P. Davis for truth and veracity, and also the testimony of trustworthy witnesses, showing that Morgan P. Davis had .testified falsely to the material facts, on the trial of this case. This evidence was brought to thé knowledge of counsel after trial and verdict; depositions of witnesses were taken in Bradford county, which depositions were submitted to the court below, and the attention of the Supreme Court at the argument in said court was asked to this evidence, as it was subjoined in the appendix of the defendant’s paper-book.-

      John K. Clement, E. W. Greenough and George B. Renn, for plaintiff in error.
    It is not proposed in the offer contained in the first assignment of error to show that the society of the “ Ancient Order of Hibernians” ordered, directed, approved of, or counselled this murder; nor that the society had any knowledge that it was to be committed, or by whom it was committed. How can the existence of this society furnish a motive for this crime of murder ? The offer, without suggesting that Peter McManus was induced by the society to commit the crime, or in any way to connect the society with it, simply proposes to make the prisoner responsible for lawless and criminal acts of men said to belong to a secret society of which he was a member, men with whom he is not brought in connection and did not know. The offer does not hint that O’Neil, the “strange man,” or McManus, or either of the other persons who were in company with them, committed this or any other crime, nor is there an attempt made to show that the society of Mollie Maguires planned the murder of Hesser. Upon what principle of law or rule of evidence then, was this testimony admitted-? Members of the Ancient and Honorable order of Free and Accepted Masons, Odd Fellows, of every secret order, and of the Christian chúreh, have, from time to time, committed crimes, but will it be pretended that, therefore it would be admissible to put in evidence the fact that a man, on trial for murder, belonged to either of these institutions, for the purpose of charging him with the responsibility of the criminal acts of others; or that there was a tendency to commit crime in these societies.
    The presumption of good character, the law maintains with equal positiveness. It cannot be taken from the prisoner, by showing him to have had evil associations, or companionship with criminals, or by showing him to have been guilty of other criminal acts. The Commonwealth is not permitted to attack the character of the accused, he not having put it in issue.
    This case in essential features differs from all the. reported cases in which the courts have permitted the Commonwealth to show that the defendants were members of the secret order of “ Mollie Maguires” or “Ancient Order of Hibernians.”

      Lewis Dewart and George W. Ryon, for the .Commonwealth.—
    The testimony received explained fully the motives and conduct of the prisoner and John O’Neil. • It explained why the prisoner talked so freely with Canning on the subject of the murder, and what McManus meant when he told O’Neil, in their conversation in the dark recesses of the mine, in answer to O’Neil expressing himself as being sorry, “ that it would have been death to them if they had not done it, and before he would violate his oath he would do it again.” And also what he meant when he said to O’Neil on another occasion in the same mine, in the presence of Donnelly, another Mollie, in answer to O’Neil when he was expressing a fear that some one had overheard them when they were planning the Hesser murder. The admission of this evidence is justified by recent decisions: Carroll et al. v. Commonwealth, 3 Norris 107; Campbell v. Commonwealth, Id. 187; Hester et al. v. Commonwealth, 4 Id. 139. The facts contained in this offer and admitted in evidence were relevant, direct and essential. Without them the conduct of the prisoner and his associates would be explicable on no recognised or rational theory regarding the motives and modes of human action. With them a jury was enabled to understand how the brutal and cold-blooded conversation in the house of Henry Long could have been had without scarcely any concealment or reserve; how a horrible murder could have been committed the following night, and how the killing could be talked over so fully among themselves in the recesses of the mine.
    The refusal to grant a new trial is not reviewable here.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This record presents no new questions. The offer of evidence contained in the first assignment of error is almost identical with that in Hester v. Commonwealth, 4 Norris 139, and comes clearly within the ruling of that case. The fact that the prisoner was a member of the Ancient Order of Hibernians, commonly known as Mollie Maguires, and the character and purposes of the order, were competent for the purposes for which the evidence was offered, viz., to show motive for the commission of the murder, and to explain the relations existing between the witness, Dennis E. Canning, the prisoner and John O’Neil, who was jointly indicted with the prisoner for this murder, and why the admissions, declarations and conversations referred to in the offer and already in evidence, were made and had. There was the same mystery about this murder that has marked so many similar crimes in the mining regions for some years past. There was nothing to indicate that robbery was the object, and without some evidence to throw light upon it, the act was inexplicable. There is the same mystery in the conversations between the prisoner and O’Neil, as detailed by the witness Morgan P. Davis. The prisoner was a body-master and O’Neil a member of the order. Their conversation tended to show that they were both members of a secret, oath-bound organization. The witness Canning was county delegate of the order at the time; the declarations and admissions of the prisoner referred to were made to the witness, and to John O’Neil, as fellow members of said organization. This accounts for the making of statements and declarations, which under other circumstances would seem almost incredible; but under the light of this evidence the jury were enabled to understand why the confidences were made. It is also to be observed that when the offer was made the evidence already in tended strongly to connect the prisoner and O’Neil with the crime. On the occasion when Pickey Donnelly was present, it is evident their conversation referred to a previous planning of the murder. O’Neil expressed his fear that some persons who had passed them upon the night when they planned the murder of Mr. Hesser, had heard them, as they “were rather full and talked rather loud,” when McManus replied, “keep quiet and mouth shut; it is all dark only to our party.” The evidence tends to show a conspiracy; that the murder was carefully planned beforehand, and that the defendant was one of the conspirators. I need not pursue this branch of the case further. I have said enough to show that the evidence was competent under Hester v. Commonwealth and prior cases.

Those portions of the charge of the learned judge, and answers to points, embraced in the second, third, fourth and fifth assignments are entirely free from error, and need not be discussed. There was sufficient evidence of the prisoner’s participation in the crime to submit to the jury, and the charge of the court was a clear, adequate and impartial presentation of the facts, and' the law as applicable to them.

The matter referred to in the sixth assignment is not reviewable here. It is but just to the court below, however, to say, that the testimony on the motion for a new trial appears to have been carefully considered. That it did not produce the effect upon the mind of the learned judge that was intended, is the prisoner’s misfortune. It is a matter with which we have nothing to do.

The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purposes of execution.


source: Caselaw Access Project

license: Public Domain

text:
    Bird’s Appeal.
    Plaintiff and defendants were joint purchasers of certain car-works and machinery, the plaintiff owning one-fourth and defendants the other three-fourths. After the purchase the defendants, who were practical nail-makers, induced plaintiff to sell his interest to them. The defendants having subsequently failed to raise money in Northumberland, to carry on a nail-factory, resolved to remove their shops and machinery to Milton, where certain capitalists offered them financial and other inducements. Plaintiff then filed a bill in equity, alleging that when plaintiff agreed to sell, defendants pledged themselves that the said shops should not be removed; that upon the faith of these representations the plaintiff sold; that said removal would work irreparable injury to plaintiff, as he owned a number of lots adjoining the mill whose value would be enhanced by the continuance of the works, and praying for an injunction to restrain the removal, and for a reconveyance of his undivided fourth part. The masters, to whom the case was referred, found that the averments of fraud and misrepresentation were not sustained, and that the purchase-money had'been fully paid. Held, affirming the court below, that the bill was properly dismissed, and that the contract could not be rescinded.
    June 12th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Woodward, JJ., absent.
    Appeal from the Court of Common Pleas of Northumberland county: Of May Term 1879, No. 47.
    This was a bill in equity filed by Joseph Bird against Charles A. Godcharles and others, trading as C. A. Godcharles & Co., to restrain defendants from removing certain shops and machinery. The material facts are stated in the opinion of this court. The court, Rockefeller, P. J., made a decree confirming the report of the masters, dissolving a special injunction •which'had been granted, and dismissing the plaintiff’s bill with costs. Prom this decree Bird took this appeal.

      S. P. Wolverton and L. H. Kase, for appellant.
    The appellees did not want Bird in the firm, and in consideration that he would withdraw therefrom, they agreed to change the works into a nail-factory, and thus enhance the value of plaintiff’s land adjoining. It was the understanding when the shops were bought, that they were to remain in Northumberland. The masters’ findings were against the evidence. The inducement to Bird to sell was, that a nail-factory should be established, and that the shops would not be removed. A permanent injunction should be granted to prevent such removal.

      S. B. Boyer, W. J. Greenough and Joshua W. Comly, for appellees.
    The masters were bound to find, from the testimony, that there was no fraud, and if fraud did not exist, there was no remedy. The question of removal was one of veracity between Bird and Godcharles. The appellees were industrious workmen who did not want any one but a practical nail-maker in the firm. They had limited means and tried to raise money in Northumberland and failed. It was their interest to remain there if they could have procured the necessary funds which were offered them by capitalists in Milton. If they had agreed in writing and under seal, no court of equity would have granted a permanent injunction when, thereby, the defendants would sustain a heavy loss, and the plaintiff would receive very little benefit.
    June 28d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

It would serve no good purpose and protract this opinion to an unreasonable extent, were we to review this case in detail. The printed testimony covers one hundred and eighty-three pages, while the masters’ .report covers one hundred and seventy-five pages. Yet the contention was about a very simple matter. The plaintiff and the defendants became joint owners by purchase, at a judicial sale, of the real estate and property of the Northumberland- Gar and Manufacturing Company, situate in the borough of Northumberland; the plaintiff being the owner of the undivided one-fourth and the defendants being together the owners of the remaining three-fourths. The bill avers that subsequently to the purchase of the property, the defendants formed a copartnership or company under the name of Charles A. Godcharles and Company, for the alleged purpose of manufacturing nails, in the said borough of Northumberland, and upon the premises referred to; that the said Godcharles, for himself and in behalf of the other defendants, falsely and fraudulently represented to the plaintiff that they desired no one associated with them in the business but practical nail-makers, and requested him, the plaintiff, to agree to sell his interest in the shops and machinery to them, to enable them to engage in the business; and they pledged themselves that the said shops and factory should not be taken down or removed from the town of Northumberland,” &c. The bill further avers, that acting upon the faith of these representations, the plaintiff sold his interest in the real estate for the sum of $3000, payable by two notes, one for $1000 at three months, and the other for $2000 at six months; that in violation of their pledges and agreement, the defendants were about to remove the machinery and works to Milton, Pennsylvania, and commence business at that place ; -and that said removal would work irreparable injury to the plaintiff, for the reason that he is the owner of a tract of land surrounding the works at Northumberland, and the continuance of the works would enhance the value of his lots there, and enable him to sell the same. The prayer was, that the defendants be specially enjoined from removing the shops, machinery and fixtures, and for a reconveyanee of the undivided fourth part of said premises. The court below granted the special injunction and continued it for over three years and a half, when, upon final hearing it was dissolved.

The learned masters find that the averments of fraud and misrepresentation are not sustained, and that the purchase-money has been fully paid. After a careful examination of the evidence, we see no reason to disturb their finding. The defendants evidently intended, when they bought this property, to alter it into a nail-factory, and continue the business in Northumberland. Their homes and associations were there and they had no thought of going elsewhere. But they needed material aid and could not get it in Northumberland. They were practical men, skilled in the business, but of limited means. They required $20,000 of additional capital. Their contracts for new machinery amounted to over $10,000. The plaintiff and other citizens of Northumberland, while anxious to have the shops continued there, were either unable or unwilling to advance the required capital. The defendants made, apparently, an earnest effort to get the money there— afterwards attempted it in Philadelphia — but without success. The citizens of Milton finally offered to donate the ground necessary for the works, and to loan the company the sum required. We have no doubt the removal of the works to Milton was a disappointment to the plaintiff, and it may be a disadvantage in the sale of his lots. But I have looked in vain through the testimony for any sufficient evidence of a binding contract between the plaintiff and the defendants, that the works should not be removed, much less of any fraud or misrepresentation. There was talk about not removing, and I have no doubt in the most perfect good faith, but it does not reach the standard of a binding contract. Moreover, if there had been such contract, it was one that a chancellor would be loth to enforce specifically, in the face of the fact that the defendants could not set up their works at Northumberland for want of moans. It is not the province of equity to compel the performance of impossible or unreasonable things. For a mere breach of contract, the law, in ordinary cases, furnishes a sufficient remedy.

There is another matter that may be noticed. The plaintiff claims to rescind, and prays for a reconveyance for his undivided fourth. Yet he does not aver in his bill, nor has he proved the repayment, or an offer to repay the purchase-money. On the contrary we gather from the record that the plaintiff received the balance of the purchase-money from the defendants, by the payment of the second note, after bill filed and injunction granted, and continues to hold it. This, if there were nothing else in the case, would be fatal to the plaintiff’s demand for a rescission on the ground of fraud.

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


author: Mr. Justice Trunkey

text:
    Goodman versus Sanger.
    ]. A deed made by a treasurer to the commissioners of a county for a tract of land sold by said treasurer for taxes, according to the provisions of the Act of March 13th 1815, is not void as against a subsequent purchaser, from the former owner of the land, because the deed was not recorded in the office for recording deeds of the county in which the land was situate, within six months after its execution.
    2. In 1813 the county of Columbia was erected out of part of the county of Northumberland, with the right to the latter to collect all unpaid taxes. Certain land was sold for unpaid taxes in 1816, by the treasurer of said county, to the commissioners. The court below held that the deed should have been recorded in Columbia county, and that such a deed was within the recording acts. Held, that this was error; that the purchaser of unseated land was bound to examine the records in the commissioners’ office, and if he found one county had been carved out of another it was incumbent upon him to search, the records of said office in the old as well as the new county.
    June 12th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1879, No. 35.
    Ejectment by John H. Goodman against John Sanger to recover four hundred acres of land in Conyngham township, Columbia county.
    On the 10th of January 1794, a warrant was granted to Johnston Besely for four hundred acres of land in Northumberland county; and in pursuance thereof a survey of four hundred acres and the allowance, on the waters of Catawissa creek, in said county of Northumberland, was made on the 7th of March 1794, and on the 16th of October, in the same year, a patent for .this tract of land was granted to Robert Morris. By an Act of Assembly approved the 22d day of March 1813 (Pamph. L. 1812-3, p. 146), the county of Columbia was, on the first Monday of September 1813, erected out of part of Northumberland county, and the land in question has since been situate in Columbia county. By the fifth section of the said act it was enacted “ that all taxes or arrears of taxes laid, or which have become due within the said couuty of Columbia before the passing of this act, and all sums of money due to this Commonwealth for militia fines in the said county of Columbia, shall be collected and recovered as if this act had not been passed.”
    This Johnston Besely.tract was duly assessed with taxes, as unseated land, from 1796 to 1813, both years inclusive, in the county of Northumberland, and the county taxes for the years 1806 to 1813, both inclusive, and the road taxes for the years 1805 to 1810, both inclusive, not having been paid, the tract of land was sold by the treasurer of Northumberland county for these taxes, in 1816, after the erection of Columbia county, in due form of law, to the commissioners of Northumberland county, and a deed for the same to the said commissioners, dated the 18th day of July 1816, was duly executed-and acknowledged. The commissioners of Northumberland county, at a commissioners’ sale, held at the court house in Sunbury, on the 11th day of June 1874, sold this tract of land to John H. Goodman, the plaintiff, for the sum of $10,000, and afterwards by their deed, dated the 1st day of July 1874, and duly executed and acknowledged, conveyed the same to him. This deed, and the aforesaid deed of the treasurer of Northumberland county to the commissioners of that county, were recorded in Columbia county on the 21st day of July 1874.
    The defendant, John Sanger, was a tenant of Daniel B. Eisher, Asa Packer, Elisha P. Wilbur and Gideon Bast, who made the defence. The land had been unseated until December 1871, when Eisher and his co-tenants erected a small house upon the premises, and'put a tenant in possession. They claimed title under the warrant to Johnston Besely and the patent to Robert Morris, and gave in evidence a deed of Robert Morris and wife, dated the 8th day of July 1795, for this tract and others to John Nicholson, and the proceedings of the Nicholson commissioners, and a sale by them of the Johnston Besely tract, on the 23d of June 1807, to Philip Meyer, who gave his bond, with sureties, for the purchase-money. They also showed payment of this bond, by Valentine Brobst for the estate of Philip Meyer, to the treasurer of the Commonwealth, on the 2d of January 1816, and a deed of the secretary of the Commonwealth, dated the 12th of January 1836, to Eranklin'P. Meyer, Eliza Leib, Catharine Meyer, Mary Ortlip, Rebecca Meyer and Louisa Epting, children and heirs of Philip Meyer, deceased, for the Johnston Besely tract and three others. They then showed that the title of all the several grantees of the children and heirs of Philip Meyer, had, by sundry conveyances, become vested in them, the said Eisher, Packer, Wilbur and Bast.
    At the trial, before Elwell, P. J., the defendant proposed to prove that the purchase-money which formed the consideration of the different conveyances from Meyer’s heirs was actually paid by the purchasers. This offer was for the purpose of showing that the defendant’s lessors, and those under whom they claimed, were purchasers for value, without notice; and the plaintiff’s title not having been recorded, and the conveyances to defendant’s lessors being of record, as already given in evidence, the title of the defendant’s lessors was protected by the recording acts.
    The plaintiff objected: 1. Because the purchasers from Meyer’s heirs were bound to know that the land was unseated; had been assessed for taxes, and sold to the commissioners of Northumberland county; and had such notice by the official books and papers in the commissioners’ office, and of the treasurer’s office of Northumberland county; and also by the redemption by Bright for the county in 1840, on the treasurer’s sale-book of Columbia county. 2. Because no law requires a treasurer’s deed to commissioners to be recorded. The court overruled the objections, and admitted the evidence.
    The following were among the points submitted by plaintiff:
    3. That the official books from the offices of the commissioners and treasurer of the county of Northumberland, given in evidence, showing the assessments and the sale of the land to the commissioners of Northumberland county, were legal notice to the heirs of Philip Meyer, and to all persons claiming under them, of such assessments and sale for taxes;' and also that the entry on the treasurer’s sale-book, of Columbia county, of the redemption from the sale of 1838, made by George Bright, for the county of Northumberland, was notice to the purchasers from the heirs of Philip Meyer, of the title of the county of Northumberland.
    4. That the fact that the deed of the treasurer of Northumberland county, to the commissioners of the same county, was not recorded in Columbia county before 1874, does not, in any manner, affect the title of the commissioners, or of the plaintiff derived from them, so as to invalidate it or postpone it to that claimed by any persons claiming through Philip Meyer, or any other person.
    5. That under the evidence in this cause the verdict of the jury should be in favor of the plaintiff, for the land claimed in the writ of ejectment.
    The court did not specifically answer the foregoing points, but in the general charge, inter alia, said:
    “ The fact that the county of Columbia was erected before this sale, and that the land, from 1813 down, was subject to this county’s jurisdiction, are facts which, it seems to me, enter into consideration in disposing of the question now before the court. It is contended on the part of the defendant, that this conveyance from the treasurer to the commissioners of Northumberland county, is within what is known as the Recording Act, which has been read in your hearing, and "which, for the purpose of giving notice, and for the purpose of preserving the muniments of title, requires and allows the recording of deeds and other instruments conveying title to land. On the other hand, the counsel for the plaintiff contend that this deed is not within the meaning of the recording law. Upon the best consideration which I am able to give to the question, I am of the opinion that it is within the recording law, and that it was the duty of the commissioners of Northumberland county to have recorded the conveyance in the county of Columbia, for the purpose of notice. * * *
    “ This plaintiff does not claim to recover any undivided part of the land; he claims to recover the whole; and, in order to raise the whole question, I charge the jury: That the defendant claims under persons who hold by deed for a valuable consideration, and without notice of the title of the commissioners of Northumberland county; and that he has, therefore, the right to maintain and hold his possession ; and that the verdict should be in favor of the defendant.”
    Verdict for defendant, and after judgment, plaintiff took this writ, and alleged that the court erred in admitting the above evidence, in refusing to affirm the foregoing points, and in the portions of the charge above noted.

      A. J. Dietrick, John G. Freeze and Joshua W. Comly, for plaintiff in error.'
    A treasurer’s deed is not within the recording acts. The parties had notice. The sale of a treasurer requires unusual publicity by publication of notice. It was a public sale, and a deed was made to the commissioners, which remained in a public office. A sheriff’s deed does not come within the recording acts, and the publicity of a treasurer’s sale is greater than that of a sheriff’s. Investigation would have disclosed the deed in Northumberland county, and all the facts. The purchaser was bound to search for outstanding taxes, and such inquiry would have shown when the land was redeemed by Northumberland county. At common law the purchaser was not required to record deed. The law is entirely statutory, and no prudent purchaser of unseated lands will buy them without examining the tax books of the county where lands are situated. Deeds of this character have never, so far as we can ascertain, been recorded in any of the counties of this state.

      George F. Baer, S. P. Wolverton and C. R. Buckalew, for the defendant in error.
    The acknowledgment of the treasurer’s deed to commissioners, was in the form prescribed by the act, viz., “Acknowledged by the grantors before one of the justices of the peace,” &c. It is, therefore, within the exact terms of the recording act.
    The acknowledgment of a deed to county commissioners, was not directed by the act to be in open court, as treasurers’ deeds to individuals and sheriffs’ deeds, were by law required to be acknowledged. No argument against the necessity for recording a treasurer’s deed to commissioners, where the land lies in another county, can be drawn from the fact that sheriffs’ deeds are not within the recording act. The legislation in the two cases is essentially different. The Supreme Court has given two reasons for holding that sheriffs’ deeds are not within the recording act. The one as given in Shrider’s Lessee v. Nargan, 1 Dall. 72; McCormick v. Meason, 1 S. & R. 96,. and Naglee v. Albright, 4 Whart. 297, is, that they are acknowledged in open court, and the minute made by the prothonotary is equivalent to recording. The other as given in Seechrist v. Baskin, 6 Barr 154, is “ that the authentication prescribed for it is acknowledgment before court and not before a magistratethis, says the court “ shows that it is not within the provisions of the recording laws.” Now none of these reasons can be applied to a treasurer’s deed to county commissioners.
    It is a fallacy to assume that an entry in a commissioners’ book, is equivalent to an enrolled decree of a court. The records of one county are not notice to purchasers of land in another. Northumberland county was bound to put her deed on record in Columbia county. There is no theory of law which requires a purchaser in one county to go into another county to get his title. After the five years, the commissioners own the land, just like other individuals, and are within the recording acts.
    June 23d 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The Act of March 13th 1815, which makes it the duty of county commissioners to buy unseated lands at tax-sales requires them ,to provide a book and enter therein the name of the person as whose estate the same was sold, the quantity of land, and the amount of taxes it was sold for. In that book they shall charge every such tract with reasonable county and road tax, for five years, if the land shall remain so long unredeemed. It may be redeemed within said period by paying the taxes for which it was sold and costs, and the taxes which shall have been assessed from year to year after the sale, with interest, and thereupon the commissioners shall convey the land to the owner, by deed poll, endorsed on the back of the treasurer’s deed to them. Such is the prescribed record of their purchase and other proceedings. It is also made the duty of the commissioners.’ clerk to enter said sales in their book of minutes, and any redemption which may happen, and sales by them after the right to redeem has passed over. An assessment of taxes is essential to authorize a sale, the record of which is kept in the commissioners’ office. On that depends the validity of the sale. The assessment, the public sale, the deed, are links in the chain, and if the first two be wanting the owner is not divested of his title. Therefore, a record of the deed only even after the day for redemption has passed, is not enough to show that such title as the owner had is vested in the grantee! The evidence of the authority to sell, of the sale, and of the execution of the deed may be found in the commissioners’ office. The law demands that records thereof shall be made and kept there, not at full length, but to such extent as gives ample notice to all persons interested.

When unseated land is sold to one, other than the county, the treasurer must acknowledge the deed for the same in open court. For reasons given by Gibson, C. J., in Seechrist v. Baskin, 7 W. & S. 403, such acknowledgment does not authorize an entry of the deed in the recorder’s office; nor is the deed itself within the purview of the recording laws. He was speaking of a sheriff’s deed and said, “ it is a link in a chain of judicial proceeding ; and being already of record it would be as useless to record it over again, for purposes of notice, as it would be to record the other proceedings in the action; it would occasion perplexity and uncertainty, if purchasers were bound to resort to different offices, as independent sources of information, instead of but one. Such a deed might be beneficially recorded for purposes of preservation; but to authorize it would require a statute.” A treasurer’s deed is a part of statutory proceedings of public officers, a prescribed entry of which is made and kept in books in a public office, and for like cogent reasons that record is sufficient. Since the decision in Seechrist v. Baskin, the Acts of 1846, Pamph. L. 124, and 1849, Pamph. L. 344, authorize deeds of sheriffs, treasurers and county commissioners to be recorded in the office of the recorder of deeds in the county where the lands lie; and the records thereof, or duly certified copies, shall be evidence where the original deeds would be. These acts appear to be solely for preservation of the deeds and making exemplifications evidence; they dispense with no proofs previously necessary to support the deeds. Nor is it their purpose to make the respective records notice of a sheriff’s sale, or of a sale for taxes.

The acknowledgment of a treasurer’s deed to the county commissioners is before a justice of the peace. The grantees are public officers who make a minute of their purchase and subsequent proceedings respecting the land, which may be redeemed by the owner, and if so the deed shall be given to him. Perhaps in this may be found a reason for dispensing with acknowledgments in open court, but none for bringing the fragment of evidence within the recording act.

By the Act of March 22d 1813, the county of Columbia was erected out of part of Northumberland, with right to the latter to collect all taxes or arrears of taxes laid, or which had become due within the said county of Columbia, as if the act had not been passed. Prior to that date taxes had been assessed on this land, which remained unpaid; it was sold in 1816. The right of Columbia to assess taxes on all lands within its limits, and the obligation of Northumberland to pay the taxes so laid on any land owned by it, are settled by Devor v. McClintock, 9 W. & S. 80. It is well said by defendant’s counsel that the land had passed into the jurisdiction of Columbia before the sale, and that after the sale Northumberland held it as private individuals hold theirs, subject to payment of taxes, and to loss of its title had one taken and held adverse possession for twenty-one years. They contend that, therefore its title to lands outside its confines are subject to the provisions of the recording act. But as already noted, a treasurer’s deed to a private person could not have been recorded under that act, prior to 1846. The land remained unseated, and a purchaser was bound at his peril, to look to the proper records to learn if the title was clear. Who ever heard of one going to the office of the recorder of deeds to examine if there was an outstanding tax title for an unseated tract? As well might he go to the prothonotary’s office to ascertain if taxes were in arrears. ITis place of search is in the commissioners’ office, and as' he goes back, if he finds the county carved out of another he will not stop short of the latter. The erection of the new county imposed the burden of search in that and in the old, and it could not be otherwise without legislative enactment. Instead of releasing the land from the taxes previously laid it was expressly enacted that they should remain collectible. The direct line of inquiry would lead a purchaser to knowledge that the tract was formerly in Northumberland, subject to taxation there, and by following it he would learn if the land had been sold, to whom, and if redeemed. Were the record incomplete, not clearly showing a sale and outstanding title, a reasonable search leaving it doubtful whether the land had been redeemed and the deed to the commissioner given to the owner, then long lapse of time would advantage the claimant against the tax title. Where the assessment, sale and deed plainly appear in the proper place for inquiry, the purchaser cannot be relieved by mere lapse of time.

We cannot avoid the conclusion that the learned judge erred in holding that the deed “ is wdthin the recording law, and that it was the duty of the commissioners of Northumberland county to have recorded the conveyance in the county of Columbia for the purpose of notice.” All his rulings, which are assigned for error, were based on that opinion, and there is no occasion for remark upon the several specifications.

Judgment reversed and a venire facias de novo awarded.


text:
    Knouf's Appeal.
    1. The rule as to subrogation exists only when both funds are in the hands of a common debtor of both creditors.
    2. The equities between parties cannot be considered upon a motion for subrogation. To entitle a party to subrogation his equity must be strong and his case clear. In such applications great care should be taken by the court that the subrogation will work no injustice to the rights of others ; and it will never be allowed where the equity of the party seeking it is no stronger than the equity of the party affected by it.
    3. Mechanics’ claims have no superior equities over other liens. If as a class they have rights to subrogation at all, it is not because they possess superior merit.
    June 13th 1879.
    Before .Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Woodward, JJ., absent.
    Appeal from the Court of Common Pleas of Northumberland county: Of May Term 1879, No. 76.
    Appeal of Henry Knouf and Ellen J., his wife, from the decree of the court in the matter of the petition for subrogation, in the assigned estate of John Knouf, Peter Heilman and Henry Knouf.
    John Knouf and Peter Heilman purchased a piece of land in the borough of Milton, Pa., on the 10th day of July 1875, John Knouf to hold the undivided two-thirds and Peter Heilman the undivided one-third. On the 30th of April 1877, John Knouf sold and conveyed the one undivided third to Henry Knouf. They had erected a planing-mill on this property as partners, doing business under the firm name of Knouf & Co. They commenced the erection of the mill about the 20th of December 1876. Prior thereto the following judgments had been entered up as liens against the property on which the planing-mill was erected.
    W. P. Hull & J. B. Davis, July 17th 1875, 450.00
    u u u a ic ii 450.00
    Alexander Jordan, Dec. 3d 1875, 1080.00
    White, Lentz & White, June 7th 1876, 2375.00
    Patrick Coyle, Dec. 4th 1876, 880.00
    $5235.00
    In the construction of the mill Knouf & Co. became indebted for lumber and machinery, for which the following mechanics’ liens were filed:
    Houston, Smith & Co., for machinery, . . . $1914.90
    Rowley & Hermanee, “ “ ... 1337.00
    Bickel.& Bailey, “ “ ... 936.37
    MeCleery, Newhard & Co., lumber, . . . 376.04
    W. D. Snyder, “ materials, . . . 132.49
    $4696.80

      These mechanics’ liens were all subsequent to the liens of the above-stated judgments.
    On the 21st of June 1877, the partners of Knouf & Co. executed a deed of assignment to Albert Cad\vallader, for the benefit of their creditors, by which they conveyed all their real and personal estate held by them as partners under the firm name of Knouf & Oo.
    The assignee presented his petition to court for an order to sell the real estate, discharged of liens, under the Act of 19th of January 1876. An order was awarded, in pursuance of which the real estate of Knouf & Co. was sold. On the 9th of January the assignee filed his account of proceeds. On the 18th of January an auditor was appointed to distribute the balance in the accountant’s hands, $4631.14. This sum the auditor distributed to the judgment lien-creditors, and it proved insufficient to pay them. These judgments were liens on individual property of the members of the firm. Alexander Jordan’s- judgment was the first lien against a farm of Peter Heilman, in Lycoming county, and the others were liens against the individual real estate of John Knouf, in Northumberland county.
    On the-25th of March 1878, the plaintiffs in the above stated mechanics’ liens, presented their petition to the court praying to be subrogated to the rights of the. plaintiffs in the above stated judgments. A rule was granted on' the plaintiffs in these judgments (all of which had been paid in full except Patrick Coyle), to shoAY cause why the petitioners should not he subrogated to their rights. But no rule or notice was served on the next lien-creditors.
    Ellen J. Knouf, the appellant, had a judgment for $4300, duly entered in Lycoming county, and in Northumberland county, and entitled next to be paid out of the proceeds of the sale of Peter Heilman’s farm, and also of John Knouf’s property.
    She discovered these proceedings, and filed an answer to the rule objecting to subrogation to the prejudice of her rights, because the mechanics’ liens were statutory liens, and limited to a specific building and curtilage, against which they had been filed, and could npt by the process of subrogation be extended as liens on a farm in another county, and deprive her of payment of her judgment, duly entered in that county. The court, Rockefeller, P. J., made a decree of subrogation, which was assigned for error.
    P. L. Hackenberg and S. P. Wolverton, for appellants.
    It is undoubtedly the law, that when a creditor has a lien upon two funds in the hands of the same debtor, and another creditor has a lien only upon one of the funds, the first may be compelled in equity to resort to the fund which the other cannot reach, but the funds must he in the hands of the common debtor of both creditors: Ex parte Kendall, 17 Vesey 514. The defendants in the judgments and mechanics’ liens were not common debtors of the same persons: Ebenhart’s Appeal, 8 W. & S. 331; Story’s Eq. Pl. 642; Dorr v. Shaw, 4 Johns. Ch. 332; Gearhart v. Jordan, 1 Jones 332; Neff v. Miller, 8 Barr 350. The mechanics’ liens cannot be changed from specific statutory liens upon the buildings described therein to general liens through subrogation. It would give them the same effect as the lien of a judgment, making them liens on all of a defendant’s real estate wherever situate. Subrogation is not to be allowed except in a clear case, and where it works no injustice to the rights of others: Lloyd v. Galbraith, 8 Casey 110; Erb’s Appeal, 2 Barr 296; Miller v. Jacobs, 8 Watts 487. The effect of this subrogation is to make an individual partner pay the debts of the firm without any adjustment of the partnership affairs, and this, without notice of the proceedings for subrogation, which clearly cannot be done: Fessler v. Hickernell, 1 Norris 150.

      John McCleery,Franklin Bound and J. Merrill Linn, for appellees.
    The lien given by statute to mechanics and material-men differs in no essential particular from a judgment against defendants’ interest in the land bound by it. If the quantity of interest is a fee-simple (as it is admitted to be in this case), then the lien covers the fee-simple, and passes the same to the purchaser by a sale of the premises by virtue of proceedings upon the mechanics’ liens: Lyon v. McGuffy, 4 Barr 128. So far as the real estate of John Knouf, in Northumberland county, is concerned, we think there can be no question as to appellee’s right to subrogation as decreed by the court below: Delaware and Hudson Canal Company’s Appeal, 2 Wright 512. Now, can there be any doubt in this case, that John Knouf, the grantor and general warrantor, in his deed to Henry Knouf, was bound, as defendant, for the payment of one-half of the four paramount judgments of Hull & Davis and Alexander Jordan et al., and Peter Heilman the other half? The one-half of those judgments already paid to the plaintiffs out of the proceeds of the “planing-mill property,” and which John Knouf was bound to pay, is the sum of $2285.88. Therefore, on the principle decided in Gearhart v. Jordan, these mechanic lien-creditors, ,if for no other reason, are entitled to be subrogated to the rights of these paramount judgment-creditors, to that extent at least, as against the proceeds of John Knouf’s separate real estate in the hands of his assignee, and now in the court below for distribution. We are lien-creditors of the same common debtors that Ellen Knouf is. The lien bound the separate interest of each defendant in the planing-mill property held by them as tenants in common, not as co-partners. If this equitable doctrine of subrogation can be asserted and enforced by our courts against a fund in another state: Appeal of Allegheny Nat. Bank et al., 2 Leg. Opin. 88, and in a foreign jurisdiction, what insuperable obstacle exists to its enforcement in an adjoining county in the same state, and particularly, as in this case, where the funds are in the hands of trustees appointed by, and under the control of the very court that decrees subrogation, and ready for distribution.
    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The appellants object to the order of subrogation made by the court below for the following reasons: 1. There are not two funds belonging to the common debtor. 2. It throws partnership-creditors upon the individual estates of the partners, to the exclusion of individual creditors having liens thereon, and 3. The mechanics’ lien-creditors having specific liens only, with no right to proceed against any other property, are not entitled to subrogation. To decide these questions properly, requires an examination of the facts.

John Knouf, Peter Heilman and Henry Knouf, became the owners in fee as tenants in common, of a lot of land in the borough of Milton, on which they erected a planing-mill, and commenced business under the firm name of Knouf & Co. Prior to the commencement of the building, the following judgments were entered as liens against the property: Hull & Davis v. John Knouf and Peter Heilman, two judgments of $450 each; Alexander Jordan v. Same, for $1080; White, Lentz & White v. Same, for $2375, and Patrick Coyle v. Same, for $880. At the time these several judgments were entered, the said John Knouf was the owner of two other lots of ground, one of them situate in the borough of Milton, the other situate in Torbert township, Northumberland county. The judgments above mentioned, were not only liens upon the mill property, but were also liens upon the individual property of John Knouf, and the judgment of Alexander Jordan, was a lien by transcript, upon the farm of Peter Heilman, in Lycoming county. Ellen Jane Knouf, one of the appellants, held a judgment of $4300 against the same defendants, which in Northumberland county was subsequent in point of lien, to the mechanics’ claims hereinafter mentioned, and was one of the first liens upon the farm of Peter Heilman, in Lycoming county.

We now come to the mechanics’ liens, in whose favor the order of subrogation was made. They were filed for work and materials furnished to the firm of Knouf & Co., for and about the construction of the planing-mill aforesaid, and amounted in the aggregate to the sum of $4696.80. They were all subsequent as to lien to the five judgments first above stated.

The firm having failed in 1877, executed a deed of assignment of the firm property, for the benefit of its creditors. John Knouf and Peter Heilman also executed separate assignments of their respective individual estates. The assignee of the firm sold the mill property discharged of all liens, under the Act of 19th January 1876, filed his account of the proceeds, and an auditor was appointed to distribute the balance in his hands, amounting to $4631.14. The auditor awarded the whole of the fund to the judgments which were prior liens to the mechanics’ claims, whereupon the latter creditors obtained the order of subrogation, which is the subject of this contention.

It needs but the above statement of facts, to show that the difficulties in the way of the mechanics’ lien-creditors, are very serious, leaving out of view any question of the right of subrogation growing out of the peculiar nature of their liens. The claims filed were against the firm, and were for partnership debts. The firm does not, and so far as this record shows, did not own any real estate. The mill lot was owned by the three partners, not as a firm, but as tenants in common. The judgments which were paid out of the fund, and to which the appellees were subrogated, were not against the firm, but against John Knouf and Peter Heilman, two of the members of the firm as individuals, and the fund out of which the appellees claim to be paid, was raised from, or belongs to, the individual estates of the said John Knouf and Peter Heilman. It will thus be seen, that there are not two funds in the hands of a common debtor. There are, in point of fact, three funds, one belonging to Knouf & Co., one to John Knouf, and the third to Peter Heilman. The rule as to subrogation exists only where both funds are in the hands of a common debtor of both creditors. Lloyd v. Galbraith, 8 Casey 103; Fessler v. Hickernell, 1 Norris 150. There is the further objection that the order throws the payment of the partnership debts upon the individual estates of John Knouf and Peter Heilman. It is impossible for us in this proceeding, to determine the equities between the partners, and Fessler v. Hickernell, is an authority in point, that such equities cannot be considered upon a motion for subrogation. To entitle a party to subrogation, his equity must be strong, and the case clear. In such applications great care should be taken by the court, that the subrogation will work no injustice to the rights of others: Erb’s Appeal, 2 Barr 296. And it will never be allowed, where .the equity of tjje party seeking it is no stronger than the equity of the party affected by it. I am unable to see what equity the appellees have, that entitles them to be paid their mechanics’ claims against the firm of Knouf & Co., out of the individual property of Peter Heilman, in the adjoining county of Lycoming, as against the appellant, who is a judgment-creditor of said Heilman in said county. It is a mistake, to suppose that mechanics’ claims have superior equities over other liens. If, as a class, they have any right to subrogation at all, about which I express no opinion, it is not because they possess superior merit.

While it is to be regretted that the appellees will lose their money, if the fact be so, it was nevertheless a risk which they voluntarily assumed, when they furnished labor and materials for the erection of a building upon a lot already encumbered by judgments to the extent of $5235.

The order of subrogation of September 28th 1878, is reversed and set aside, at the costs of the appellees.


author: Mr. Justice Sterrett

text:
    Souder versus Schechterly.
    1. The general rule is that a debtor may appropriate his payments as he sees fit at the time of making them; but if neither he nor his creditor makes any specific application of them the law will do so. In the case of running accounts, composed of various items of debit and credit occurring at different times, and no special appropriation of the payments is made by either party, the law will apply the successive payments or credits to the discharge of the debit items antecedently due in' the order of time in which they stand in the account; in other words, each item of payment or credit is applied in extinguishment of the earliest debit items in the account, until the whole payment or credit is exhausted.
    2. The general rule is that the declarations of a grantor, made after he has parted with his title, are not admissible for the purpose of impeaching it; but the rule has been so modified that when the bona tides of the transaction is assailed by creditors on the ground of fraud, and some testimony is introduced tending to show collusion, then such subsequent declarations of the grantor are admissible.
    June 13th 1879.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1879, No. 65.
    Ejectment by William Schechterly against Elizabeth W. Souder, for a lot of land. Both parties claimed through William F. Souder. The plaintiff alleged he acquired title by virtue of a judgment against the latter, and a sheriff’s sale and deed to him. The defendant alleged that her husband, William F. Souder, conveyed the property to her before the entry of the judgment, under which plaintiff claimed. To maintain the issue, plaintiff exhibited a judgment against William F. Souder, in. favor of Daniel Snyder, entered on the 9th of December 1873, against the administrators of said William F. Souder, who died in April 1872. This judgment was for $257.18, and was assigned to plaintiff. An execution issued thereon, and the property was sold to plaintiff for $800, and a sheriff’s deed was delivered to him in May 1874. The defendant was in possession of the property. On the 30th of April 1866, William F. Souder, by a deed which expressed a consideration of $1500, conveyed tbe lot in question to his wife directly, without the intervention of a trustee. There was some evidence that in 1842, at the time of her marriage, Mrs. Souder brought some money to her husband, and that a portion thereof was invested in household goods. The undisputed facts were, that William F. Souder purchased the lot, erected a house thereon, and lived-there with his wife until his death; that the lot was worth about $1500; that he owned another lot worth about $300, and household furniture valued at $600 ; that he was an industrious mechanic and earned about $1200 per year. It was alleged that there were various claims against Souder at the time he made the conveyance to his wife. One of these claims was that of a Mr. Reighart, who testified, that in 1866 there was a balance in money due him- by Mr. Souder, of $277; in April, about the time of the conveyance to his wife, of about $270; that there was a running account between them, until 1869, when witness took a note; that subsequently to the death of Mr. Souder suit was brought upon the note and judgment obtained thereon for $605; that the balance in 1869, when the note was taken, was $458.
    At the trial, before Elwell, P. J., the plaintiff offered to prove: that about the time of the conveyance to the wife, Souder was contemplating entering into the lumber business with partners, and following the evidence already given of the business transactions of William F. Souder, that in 1868, in the spring, Souder entered into partnership with the witness, Daniel Snyder, and Eli Hartman, as the firm of Snyder, Hartman & Co., in the planing-mill business; to prove the financial condition of Mr. Souder in 1866 and down to the death of Souder, and also the financial condition of this firm; that during all the transactions of the witness with Souder, he represented that he owned the property in question in this action, to about November 1871 or the time of the recording of the deed to Mrs. Souder by her husband; and also declarations of Souder that he made the deed in view of entering into partnership in the lumber business.
    The defendant objected, but the court overruled the objection.
    The court also admitted evidence of the declarations of William F. Souder, made in 1871, to witness, as to the transfer of this property to his wife. Also, evidence to prove indebtedness contracted by Souder from 1868, and down to the recording of the deed by the wife, for the purpose of showing bad faith in making the conveyance against creditors.
    Two of defendant’s points, with the answers thereto, were as follows:
    5. That the declarations of William F. Souder, made some years after his conveyance to his wife, are not evidence to affect her title, unless made in her presence, or by her authority.
    Ans. u I do not affirm this point. The conveyance was voluntary. If there were creditors to be defrauded, the fraud was continuous, and the declarations of either party to the conspiracy to defraud are evidence, made at any time.”
    7. That as to the claim of B. F. Reighart of $277 in 1866, the subsequent payments made by Souder of $400 to $500 upon account, in the absence of any specific appropriation of payments by the parties, will, in law, be applicable to the earlier items of the account, including those prior to April 1866, and the claim takes position as a debt subsequent to the conveyance to which the doctrine of legal or constructive fraud, in the absence of actual, will not apply.
    Ans. “ I have answered that in the general charge refusing so to instruct you. I say the book-account was but one debt. The law in the absence of any agreement of the parties would apply the payment on the whole debt; at the most, therefore, payments made after 1866 can only be considered as applicable ratably on the whole debt, the old as well as the new; consequently, there would be a portion of that debt, at least, due in 1866. The purpose of giving in evidence the debts of 1866, is to bear upon the question of the intent with which the conveyance was made by Mr. Souder to his wife, and of course received by her; for if he was guilty of fraud, she was equally guilty of fraud, because she paid no money for the property; and his intent, therefore, is attributable to her in the whole course of the transaction.”
    The verdict was for plaintiff, when defendant took this writ and assigned for error the admission of the above testimony, and the answers to the foregoing points.

      A. C. Smith, C. R. Buckalew and H. E. Smith, for plaintiff in error.
    The Reighart claim took position as a debt subsequent to the conveyance, and could not raise or support the imputation of legal fraud against it. In the case of running accounts, each item of payment or credit is applied in extinguishment of the earliest items pf debt standing in the account until the whole payment is exhausted. The court erred in admitting declarations of Souder, made years after the conveyance ; Bump on Frauds, 2d ed., 567; Hartman v. Diller, 12 P. F. Smith 43; Tripner v. Abrahams, 11 Wright 227; Williams v. Davis, 19 P. F. Smith 21.

      Charles G. Barkley and Samuel Knorr, for the defendant in error.
    The least degree of concert or collusion between parties to an illegal transaction, makes the act of one the act of all, and the declarations of one may be given in evidence to affect the others : Peterson v. Speer, 5 Casey 491. A book-account is held to be but a single debt, not made up of several separate and distinct debts: Hollister v. Davis, 4 P. F. Smith 508.

      October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The controversy in this case hinged on the validity of the voluntary conveyance of April 30th 1866, executed by William E. Souder, in favor of his wife, the plaintiff in error. The deed was assailed on the ground of actual as well as constructive fraud ; and there was a verdict in favor of the plaintiff below, who claimed as purchaser at sheriff’s sale under a judgment obtained in December 1873 against the administrators of Souder with notice to his widow and heirs. It may be conceded that if the deed from Souder to his wife was fraudulent, as alleged, the plaintiff below was entitled to recover.

Testimony was introduced for the purpose of proving that Souder was indebted to several persons at the date of the conveyance. It was shown that on an open account, he then owed B. E. Reighart a balance of $277; that the account ran on several years thereafter, during which there were credits and payments on account made by Souder without any specific application thereof by either party, amounting to between four and five hundred dollars. It was claimed by the plaintiff in error that in the absence of any specific appropriation of payments by the parties, the law would apply them in their order to the oldest items of the account, including those prior to April 30th 1866; that in this way the indebtedness existing at the date of the conveyance was fully extinguished, and the claim, consisting of the later items, would rank as a debt contracted subsequent to the conveyance, to which the doctrine of legal or constructive fraud, in the absence of actual fraud, would not apply. A point to this effect was submitted to the court, and in refusing the same the learned judge said: “ The book-account was but one debt. The law, in the absence of any agreement of the parties, would apply the payment to the whole debt. At most, therefore, payments made after 1866, can only be considered as applicable ratably on the whole debt, the old as well as the new, consequently there would be a portion of tha-t debt at least due in 1866. The purpose of giving in evidence the debts of 1866 is to bear upon the question of the intent with which the conveyance was made by Mr. Souder to his wife, and of course received by her; for if he was guilty of fraud, she was equally guilty, ‘because she paid no money for the property, and his intent, therefore, is attributable to her in the whole course of the transaction.” This answer has been assigned for error.

The general rule is that a debtor may appropriate his payments as he sees fit at the time of making them; but if neither he nor his creditor makes any specific application of them the law will do so. In the case of running accounts, composed of various items of debit and credit occurring at, different times, and no special appropriation of the payments is made by either party, the law will apply the successive payments or credits to the discharge of the debit items antecedently due in the order of time in which they stand in the account; in other words, each item of payment or credit is applied in extinguishment of the earliest debit items in the account, until the whole payment or credit is exhausted: 1 Story’s Eq. Jur. 459, a ; Pierce v. Sweet, 9 Casey 151; Hollister v. Davis, 4 P. F. Smith 508. There are some exceptions to this rule, but there is nothing in the circumstances of the present case to bring it within any of them. In answer to defendant’s first point the learned judge had already instructed the jury, that as to any debt due by Souder at the time of the conveyance to his wife, its payment by him afterwards and before her title was controverted, will relieve the case from any imputation of fraud as to such debt. The balance due Reighart was the only debt, existing at the date of the conveyance, that was not disputed, and as the jury were practically instructed that it was not fully discharged by the subsequent payments, the error was likely to be prejudicial to the defendant below and may have carried the verdict against her.

The remaining assignments of error, relating to the admission of testimony as to acts and declarations of Souder subsequently to the conveyance to his wife, are not sustained.

The general rule, applicable more particularly to conveyances for a valuable consideration, undoubtedly is, that the declarations of the grantor, made after he has parted with his title, are not admissible for the purpose of impeaching it; but the rule has been so modified that when the bona tides of the transaction is assailed by creditors on the ground of fraud, and some testimony is introduced tending to show collusion, then such subsequent declarations of the grantor are admissible: Hartman v. Diller, 12 P. F. Smith 37. The same principle is recognised in Scott v. Heilager et al., 2 Harris 238; McElfatrick v. Hicks, 9 Id. 402; Confer v. McNeal, 24 P. F. Smith 112, and Tripner v. Abrahams, 11 Wright 220. It is said in Rodgers v. Hall, 4 Watts 359, that the least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all. While the evidence of collusion in this case was very slight, there were some facts and circumstances connected with the transaction that were proper for the consideration of the jury, and justified the court in receiving the testimony, and submitting it to the jury, as was done, with carefully guarded instructions.

Judgment reversed and a venire facias de novo awarded.


text:
    Hoy versus Holt.
    1. Where in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is bound to do so, though the premises be destroyed by fire or o.ther accident.
    2. When a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, and therefore if a lessee covenant to repair a house, though it be burned by lightning or thrown down by enemies, yet he is bound to repair it.
    June 16th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Centre county: Of May-Term 1879, No. 126.
    Covenant by John Hoy against William Holt, and others to recover damages for a breach of a covenant in an article of agreement.
    In 1870 John Hoy, the plaintiff below and the plaintiff in error, was the owner of a valuable tract of timber land in S.now Shoe township, Centre county, Pa., and also of a portable steam saw-mill, which had been in use for several years, and in need of repairs. William Holt, who lived on an adjoining tract, Jesse Williams and W. M. Holmes, were manufacturers and dealers in lumber. Jesse Williams had previously leased another tract of timber land in said township of Snow Shoe, and had used Hoy’s steam saw-mill in the manufacture of lumber.
    On the 23d day of July 1870, Hoy entered into a written contract with said Holt, Williams and Holmes, whereby Hoy sold to said parties all the white pine, oak and hemlock timber on said tract of timber land.
    The agreement contained the following covenant:—
    “ Said Williams, Holmes and Holt are to have the use of said Hoy’s steam saw-mill (now or recently) in the possession of Jesse S. Williams, to saw said timber free of charge; the compensation for the use of said steam saw-mill being considered and included in the price to be paid for said timber as aforesaid. Said Williams, Holmes and Holt are to put said saw-mill in good repair and good running order, and the same so keep, and when all said timber is sawed into lumber and manufactured into shingles (the engine and machinery of said saw-mill to be used for driving the shingle machines), to deliver said saw-mill to said. Hoy in reasonable good condition and repair.”
    In pursuance of said agreement, the said Holt, Williams and Holmes entered into possession of the said tract of timber land, put the steam saw-mill in good repair and working order, and commenced the manufacture of lumber. Subsequently, said Williams and Holmes sold their interest in the contract to Holt, who continued the manufacture of lumber in said Hoy’s mill until July 7th 1872, when the mill was burned — the same not having been insured by said Hoy or Holt. Holt built a new steam saw-mill on said tract, where he manufactured the residue of the merchantable timber on said tract, or the greater part of it, and removed the mill he had built.
    At the time the agreement was entered into, on the 23d of July 1870, the ruling prices for merchantable white pine and oak timber in Snow Shoe township, were above $3.50 per thousand feet, board measure, but a reduction was made by said Hoy in the price of stumpage, in consideration of the necessary repairs to the mill, and its delivery to him in good repair when the said timber was manufactured.
    On the 7th of August 1876, Hoy instituted an action in covenant on said agreement, against Holt, Williams and Holmes, to recover the value of said steam saw-mill, or damages for its nondelivery according to the covenant in the agreement.
    In charging the jury, the court, Mayer, P. J., inter alia, said:
    “ In pursuance of the terms of the agreement the defendant entered into possession of the timber lands, repaired the mill, and commenced manufacturing lumber and shingles. Before ‘all of the timber upon said lands had been sawed .into lumber and manufactured into shingles,’ the mill took fire and was destroyed. How the fire originated is unknown. The plaintiff contends that under the covenant, which we have just read to the jury, the defendant is liable to the plaintiff for the burning of said mill, and is either bound to rebuild and replace said mill, as it was before the fire, or respond in damages to the plaintiff to the extent of the loss sustained by the destruction of said mill. •
    “As we interpret and construe said covenant, looking at the entire scope and purport of it, we are of the opinion, and so instruct the jury, that the defendant is not liable for the burning of said mill, unless the evidence in the case satisfies the jury that the burning was caused by the negligence of the defendant, or that of his agents or employees.”
    The verdict was for defendants, when the plaintiff took this writ and alleged that the court erred in charging as above.

      Adam Hoy and A. O. Furst, for plaintiff in error.
    Where there is an express and unconditional agreement to repair and keep in repair, the tenant is bound so to do, though the premises be destroyed by fire or other accident: Chit. Con. 336; Add. Con. 374; Paradine v. Jane, Aleyn 27; Brecknock Company v. Pritchard, 6 Term R. 750; Bullock v. Dommitt, 6 Id. 650; Walton v. Waterhouse, 2 Saund. 422 ; Leeds v. Cheetham, 1 Simon 146 ; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Linn v. Ross, 10 Ohio 412. The case of Pollard v. Shaffer, 1 Dall. 230, decides that destruction of the premises by a public enemy will excuse a tenant from his contract to deliver up the premises in good repair; but it does not decide that destruction by an accidental fire will excuse.

      Alexander & Bower and Beaver & Gephart, for defendants in error.
    There was no lease of any land or tenement, and, therefore, the saw-mill, which was only a personal chattel and not attached to the soil, was not the subject of lease; it was a thing that could be hired or bailed. So far then as the mill was concerned we contend that it was a personal chattel, and that the contract between the parties placed them in the relative position to each other of bailor, and bailee. It was a contract of sale as to the timber, and a contract of bailment as to the saw-mill.
    The tenant is not bound to rebuild a house burned accidentally: Pollard v. Shaffer, supra.

    June 23d 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The mill in controversy having been destroyed by fire during the defendants’ occupancy of it, and before they had completed the cutting and manufacturing of the timber purchased of the plaintiff, the defendants allege that they are under no liability to rebuild, or compensate the plaintiff'for his loss, because the contract between the parties was not a lease; but that it was a sale as to the timber, and a bailment as to the mill. It is not important by what name we call the contract. It is material to know what the parties agreed to do. Briefly stated, the plaintiff sold to the defendants his timber upon a certain • tract of land at a stipulated price per thousand feet, with the privilege of a portable steam saw-mill belonging to plaintiff and upon the premises, for the purpose of manufacturing said timber. The defendants covenanted “to put said saw-mill in good repair and good working order, and the same so keep; and when all said timber is sawed into lumber and manufactured into shingles, to deliver said saw-mill to said Hoy (plaintiff), in reasonable good condition and repair.” Now, whether we call this a lease or a bailment, the covenant remains, and the defendants must show that they have performed it, or that they are excused from its performance by some legal reason.

It has always been considered that where, in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is- bound to do so, though the premises be destroyed by fire or other accident: See Chit. Con. 336; Ad. Con. 374; Brecknock v. Pritchard, 6 Term R. 750; Bullock v. Drommitt, Id. 650; Leeds v. Cheetham, 1 Simon 146; Digby v. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Linn v. Ross, 10 Ohio 412; And it is no defence' to the claim for rent that the premises had been destroyed by fire, and that the landlord had received the insurance money: Magaw v. Lambert, 3 Barr 444; Fisher v. Milliken, 8 Id. 121; Dyer v. Wightman, 16 P. F. Smith 427; Bussman v. Ganster, 22 Id. 285. The ease of Pollard v. Shaffer, 1 Dallas, 210, was cited as sustaining a contrary view. But in that case.it was specially pleaded by the defendant “ that an alien enemy, to wit, the British army, commanded by General Sir William Howe, on the 1st of September 1777, had invaded the city of Philadelphia, had taken possession of the premises, and held the same until the end of the term, and afterwards; and that during the period they held possession, they had committed the waste and destruction,” &c. In the case in hand the injury was not occasioned by the act of God or a public enemy. It was an accident, not necessarily the fault of the defendants, but one which they could have protected themselves against, either by an insurance, or by an exception in the contract. The latter is very common in this state; indeed, there are few leases here that do not contain an exception in case of fire. This is the reason, in all probability, why our books are so meager of authority upon this point.

It is conceded that the contract in controversy is not technically a lease. It is, however, one of a class quite common in the lumber regions, and known as timber leases. In such cases the timber is paid for at fixed rates, and such possession of the premises given, and for such time, as is necessary to remove it. And there is an analogy between this contract and ordinary leases of real estate so far as the liability to repair is concerned. If, however, the defendants are right in their position, that the contract was a mere bailment of the mill, their covenant is still in their way. For while it is undoubtedly the general rule in case of bailments, that if the thing hired is lost or injured by inevitable casualty, or by superior force, and without any fault of the hirer, he is exonerated from all risk: Story on Bailments, sect. 408. Yet the rule is laid down by the same eminent authority, that bailees may be responsible for accidents by special contract: Id. 29. If the defendants were bailees of the mill, they were so by special contract, with a special covenant to repair, and the cases cited of common-law bailments do not apply. The one raises a duty created by the party, the other a duty created by the law. The distinction between them is well defined by Sergeant Williams in his edition of Sir Edward Saunders’s Reports (2 Saund. 69); Walton v. Waterhouse, Id. 422, note (2.) “ When the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, .the law will excuse it, as in waste, if a house be destroyed by tempest or by enemies, the lessee is excused; so in escape, if a prison be destroyed by tempest or enemies, the gaoler is excused; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And, therefore, if a lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he is bound to repair it.”

It is a reasonable interpretation of this contract that the parties contemplated the return of the mill when the contract was over, “ in reasonable good condition and repair.” The contract so stipulates. The defendants were to put the mill in good order and repair, and keep it so. This was doubtless with a view to enable the plaintiff to manufacture the balance of his timber after the defendants had ceased operations. Not only was this the plaintiff’s understanding of the contract, but he appears to have given a consideration for it. He says, in his testimony: “I reduced the price of the timber down to $3.50 for their timber, when the Snow Shoe Company got $5 for their timber. So I made a reduction for repairs of the mill that I should get a good mill and put down the price of the timber.” This testimony does not appear to have been contradicted. The plaintiff having made an abatement in the price of the timber for the very purpose of having the mill restored to him in good order, and the defendants having covenanted to restore, no sufficient reason has been shown why they should not be held to their covenant.

The judgment is reversed, and a venire facias de novo awarded.