author: Mr. Justice Paxson

text:
    Kimble versus Smith.
    1. To avoid a voluntary conveyance, under the statute of 13 Elizabeth, a subsequent creditor must show a fraud against himself, and not merely a fraud as to existing creditors.
    2. Harlan etal. v. McLaughlin et al., 9 Norris 293, followed.
    June 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1878, No. 148.
    At the trial before Elwell, P. J., the plaintiff gave in evidence the record of a judgment obtained by Kostenbader’s administrators against John B. Kimble, on February 25th 1874, for $5.33, upon a claim originally for $15.40, arising in 1870, and an execution thereunder, by virtue of which the premises were taken in execution as the property of the said John B. Kimble, and sold at sheriff’s sale to Daniel Smith, the plaintiff, for $185. The full value of the tract was about $600.
    The defendant alleged, that at the date of the judgment and sheriff’s sale John B. Kimble had no title to the land, but that the same was the separate estate of Mrs. Hannah Jane Kimble, wife of John B. Kimble, to whom it was conveyed by the following deeds, put in evidence, viz.:
    1862, January 25 th. Deed. John B. Kimble and wife to William O. Wolverton and his heirs, for the tract in question (being the same premises which William Rohrbach and wife, by indenture dated March 29th 1860, not recorded, conveyed to the said John B. Kimble in fee).' Acknowledged same day. (Not recorded.)
    Same date. Deed. William O. Wolverton to Hannah Jane Kimble and her heirs, for the same premises. Acknowledged same day. Recorded same day."
    The plaintiff’s evidence in rebuttal, was substantially: ‘ That the conveyances in 1862, vesting the title in the defendant’s wife, were made without consideration ; that John B. Kimble was at that time indebted to the amount of $291.41 (subsequently reduced to $166.40); that he had not then sufficient property, liable to execution, to satisfy his existing debts; that, after the conveyances, a witness said to Kimble that the witness “ believed he had put his property out of his hands to cheat his creditors,” and Kimble replied: “What else would I have done it for?’ and that Kimble continued to reside on the farm after the conveyances. It did not appear that any of the existing creditors in 1862 had ever impeached the validity of the^settlement of 1862.
    The defendant presented, inter alia, the following points:
    2. That the creditors of John B. Kimble, whose claims were subsequent in date to 1862, had due record notice of Mrs. Kimble’s title, and, not having extended credit upon the faith of his ownership of the land, cannot impeach the conveyances of 1862, as voluntary and void. They had and have no rights to he affected thereby.
    Ans. “ I decline to affirm that point, and refer you again to the instruction in our general charge, to the effect that subsequent creditors may impeach a conveyance provided they can show it was made with intent to defraud creditors; though in what I have said I have instructed you that the mere fact that Mr. Kimble was indebted at that time does not of itself show that his intent was fraudulent. The amount of his indebtedness and his means of payment are to be taken into consideration in ascertaining whether his intent was fraudulent or not.”
    3. That the small debts of John B. Kimble, shown to have existed in 1862, not being debts upon which the sheriff’s sale was made tp the plaintiff, their existence furnishes no ground for the plaintiff’s recovery in this action.
    Ans. “I decline to charge, as a matter of law, that the debts of John B. Kimble, in 1862, furnish no ground for a recovery by the plaintiff; but I submit to you, as in the general charge, whether under all the facts, considering the amount of debts unpaid and the value of the property still retained', the conveyance on 'the 23d of January, 1862, was designed and intended to defraud creditors; that is, I repeat, submitted for your consideration.”
    The court, in the general charge, inter alia said, “Now if you find that Kimble was merely making a transfer of title, expecting to pay off his debts, and not really intending to defraud his creditors, then subsequent creditors (those whose claims accrued quite a number of years afterwards) could not complain. But if he was.in debt, and if he intended to defraud creditors (although they were then existing creditors), and if subsequent creditors can show that the conveyance was made with that view, then they may take advantage of it; in other words, if the transaction was attended with fraud at the time it occurred, there would be nothing occurring afterwards to condone that fraud ; and if the subsequent creditors can show that the conveyance was without consideration, that it was voluntary, andthat.it was made with the intention of defeating creditors, then they, the subsequent creditors, could overturn the whole transaction by causing judgment to be entered against Mr. Kimble and by the sale of the property. The case therefore must turn upon the intention of John B. Kimble at the time he made that conveyance.”
    Yerdict and judgment for plaintiff. Defendant took this writ, assigning for error, inter alia, the answers to points and the portion of the charge above quoted.

      C. R. & W. J. Buckalew and John M. Clark, for plaintiff in error.

      June 19th 1880.

      Wm. H. Abbott and Samuel Knorr, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court,

Hannah Jane Kimble, the wife of the defendant below, acquired her title to the land for which this ejectment was brought on the 23d of January 1862. It consisted of a deed from William O. Wolverton, to whom the defendant and Mrs. Kimble had executed a deed the same day. William Rohrback and his wife had conveyed the land to Kimble on the 29th of March 1860. The deeds from Rohrback and wife to Kimble, and from Kimble and wife to Wolverton have never been placed on -record. That from Wolverton to Mrs. Kimble was recorded immediately after its execution. The judgment in favor of the administrators of Jacob Kostenbader, amounting to $5.30 and costs, under which the property was sold to the plaintiff below, was recovered on the 25th of February 1874.

At the trial of the cause, the allegation of the plaintiff was that the defendant had procured the conveyance to his wife to be made in order to hinder and delay his creditors. The existence of a number of unpaid simple contract debts, amounting to about $117, was proved. In addition to these, three judgments aggregating about $33, were standing open against him on dockets of justices of the peace.

There was an interval of nearly twelve years between the date of the deed from Wolverton to Mrs. Kimble and the date of the recovery of the judgment of Kostenbader’s administrators. During the entire interval the deed had been upon record. The creditors whom Kimble owed had acquiesced in the settlement he had made upon his wife. Most, if not all, of his simple contract debts had been barred by the Statute of Limitations, and the judgments obtained before the justices of the peace had not been pursued. The Kostenbader judgment was in no manner connected with any of the original debts, with any transaction that had grown out of those debts, or with any business relations' formed by Kimble immediately or shortly after the settlement.

May a creditor travel back to inquire into the details of an adjustment of property made without concealment twelve years before the adjustment could have interest or concern to him, and which parties having existing adversary interests had made no effort to disturb ?

The court, in submitting the question of fraud to the jury, instructed them in substance that if the conveyance was made by Kimble with intent to defraud existing creditors, it was not only void as to the creditors intended to be defrauded, but also as to subsequent creditors. Under this ruling the jury found the defendant’s-intention to have been fraudulent.

That the court below erred in its view of the law is conclusively shown by the case of Harlan v. Maglaughlin, decided by this court since the trial in the court below. The opinion, as delivered by Mr. Justice Gordon, will be found in 9 Norris 293, and contains a careful review of the authorities. As a result of such examination the doctrine is there laid down, following Snyder v. Christ, 3 Wright 499, Monroe v. Smith, 29 P. F. Smith 459, and other cases, that in order to avoid a conveyance under the statute of 13 Elizabeth, a subsequent creditor must show a fraud against himself, and not merely a fraud as to existing creditors. This is entirely reasonable and in harmony with the statute which avoids such conveyances only as to the parties intended to be defrauded.

The application of this principle to the case in hand is eminently proper. Here we have the sale of the property under a petty judgment of $5.30 recovered upon a debt contracted years after the settlement was made, and after the title stood in Mrs. Kimble’s name upon the record. The trifling debts existing at the time of the settlement were paid; or barred by the statute; if any wrong had been contemplated as to. existing creditors, it had been condoned or forgotten, at least it had not been followed up by adversary proceedings. We are unable to see any evidence in the cause that a fraud was intended by the defendant as to subsequent creditors, and the learned court should have so instructed the jury.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Bear Valley Coal Company versus Dewart.
    1. An abandoned title is not transferred to an adverse claimant, or person who first seizes the land, but it falls back to the state, and, by its extinction, sometimes makes a younger and conflicting title good. The doctrine of abandonment does not apply to a perfect title, but only to imperfect titles. In favor of a junior warrant or settlement right, after long lapse of time, an imperfect title by warrant and survey may be presumed to be abandoned. But such presumption cannot be made of a perfect title ; that is never reinvested in the state on such principle. After the land has been located and patented, it will not fall back because it is derelict, nor for the owner’s neglect to pay the taxes.
    2. A stranger will not acquire title by payment of taxes on unoccupied land. Actual possession is necessary to acquire title under the Statute of Limitations. The presumption arising from the owner’s neglect to exercise every act of ownership, often called abandonment of his waiver of irregularities in sales of land for taxes, or on judicial process, is a very different thing from the statutory title by adver-se and continuous possession. In case of conflicting titles the older and better will not be lost by reason of the Statute of Limitations, nor presumption of waiver, upon the mere payment of taxes by the holder of the younger title.
    3. The general rule is that the plaintiff in ejectment must recover on the strength of his own title, and when an outstanding title, better than his own, is shown, he must fail to recover.
    4. Foust v. Boss, 1 "VV. & S. 501 ; Hunter v. Cochran, 3 Barr 105 ; Biland o. Eckert, 11 Harris 215, and McBarrow et al. v. Gilbert et al., 6 Wright 268, reviewed and distinguished.
    June 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Northumberland county: Of May Term 1880, No. 100.
    Ejectment by William L. Dewart against the Bear Valley Coal Company, to recover a tract of land. '• '
    Dewart is the owner of two adjoining tracts-of land situate in Coal township, in the county of Northumberland. The one containing seventy acres and allowance, &c., was surveyed on the 5th of November 1852, by virtue of warrant to William Wilson and William L. Dewart, dated the 24th of January 1852; and the other, containing forty acres and allowance, &c., was surveyed on the 6th of April 1853, by virtue of a warrant dated the 31st day of March 1853. Both tracts were patented to these warrantees by •one patent dated the 11th day of May 1854, and William Wilson and his wife, by their deed, dated the ~24th of September 1857, endorsed on the patent, conveyed all their interest in these lands to William L. Dewart. These tracts both remained unseated until about the year 1874, when the Bear Valley Coal Company caused a cabin to be built on the southern or last surveyed tract. Dewart learning that the company had made an entry on his lands, claiming them, on the 11th day of December 1874, brought this ejectment for the one hundred and ten acres of land contained in these two surveys.
    On the trial, before Rockefeller, P. J., the company gave no evidence of title in themselves to any part of either of these tracts, but alleged that the heirs of Hugh Bellas, deceased, had a right to twenty-one acres of the northern unseated tract, by virtue of a warrant and survey to Jacob Bright and patent thereon, all prior in date to the warrant to William Wilson and William L. Dewart. The defendant endeavored to set up this older survey as an outstanding title, and claimed a right to defend Thereby against the plaintiff’s recovery as to these twenty-one acres.
    The plaintiff made the following offer of evidence : The unseated land-books of Northumberland county from .1-828 to 1874, for the purpose of showing that the James Hepburn tract, an intervening survey, was assessed for taxes during all that time, and that the taxes were paid; that the Jacob Bright tract was assessed up to the year 1844 inclusive, and was not assessed after that date at all. That the lands of Wilson and Dewart were assessed from 1854 inclusive, to the time of bringing this suit.
    This to show claim of title by the owners of the Wilson and Dewart title of the land covered by. those surveys, and also that the James Hepburn was claimed by the owners during all that time, and also by the non-assessment and payment of taxes for the Jacob Bright survey that that tract had been abandoned after 1844 or was derelict, and cannot be set up against the title of the plaintiff. Evidence admitted. (1st assignment of error.)
    The defendant, inter alia, submitted the following points, to which are appended the answers of the court:—
    1. That the undisputed evidence being that the Jacob Bright survey was located by actual survey on the ground, and patented more than twenty years before warrants were obtained for the Dewart and Wilson surveys, and that twenty-one acres of the Dewart and Wilson surveys interfere with the Bright survey, the plaintiff has shown no title to this interference, it having been previously appropriated for the Bright survey, and the verdict of the jury must exclude this interference containing twenty-one acres.
    Ans. “ This is so, but I decline to instruct you that your verdict must exclude the interference containing twenty-one acres.” (2d assignment.)
    3. The non-assessment of taxes by the commissioners of Northumberland county on the Jacob Bright survey on the unseated land-books of the county after the tract had been assessed on said books for fourteen years, can work no forfeiture of the title to the Jacob Bright survey, nor show an abandonment by the owners thereof.
    Ans. “ I affirm this point, but I cannot say that the facts do not show .such an abandonment as will prevent a party without title from setting up this title as outstanding.” (3d assignment.)
    4. The defendant having shown a valid title to the Jacob Bright survey in the heirs of Hugh Bellas, deceased, the verdict of the jury must exclude so much of the land embraced in the writ of ejectment in this case as is covered by the Jacob Bright survey.
    Ans. “I decline to answer this point as requested. (4th assignment.)
    In the general charge, the court, inter alia, said :
    “ The evidence shows that the Jacob Bright survey, or tract of land, was assessed with taxes soon after it was located or surveyed, and continued to be assessed up to 1844. The books, however, do not show any payment of taxes during any of those years by any of the owners. They simply show the assessment of taxes. From 1844, down to the present time, that tract has never been assessed. No taxes have ever been paid upon it by any person, and no possession was ever taken. No acts of ownership by the warrantee or the patentee, or any other party, has been shown for a period of perhaps thirty-eight years. On the other hand it has been shown that for the last thirty or forty years, perhaps, taxes have been regularly assessed and paid by the owners, or parties claiming to be the owners of the James Hepburn survey. The unseated land-books also show that the William Wilson and William L. Dewart surveys have been regularly assessed, and the taxes paid from 1854 down to the present time; and I am of the opinion that the evidence shows that the title to the Jacob Bright survey is not such an outstanding title as would entitle the'defendants toset.it up. * *• * So that so far as we know the defendant in this case has no title to this land, and has shown no title to the Jacob Bright survey. They are, for all we know, mere intruders — a party in possession without right or title, or color of title ; and we instruct you, as a matter of law, therefore, that the plaintiff is entitled to recover, and that your verdict must be in his favor.”
    Yerdict for plaintiff, when defendant took this writ and alleged that the court erred as set forth above.

      S. P. Wolverton, for plaintiff in error.
    The question is, did the defendant offer such a valid and subsisting title in a third party as to defeat recovery by the plaintiff. It is difficult to understand why a title which would be considered aYalid and subsisting title, if set up by the owner as a defendant in an ejectment, should not be so considered if set up as an outstanding title.
    The learned judge relied upon the cases of Hunter v. Cochran, 3 Barr 105 ; Foust v. Ross, 1 W. & S. 506 ; Riland v. Eckert, 11 Harris 215, and McBarron v. Gilbert, 6 Wright 268, to sustain this ruling. These cases are clearly distinguishable. It would be a dangerous doctrine to hold that the owner of a junior survey which interfered with the senior, could acquire title to the interference by mere payment of taxes assessed upon his surveys. The owner’s non-payment of taxes cannot be considered as an abandonment of his title. The doctrine of abandonment does not apply to lands held by a perfect title, but only to imperfect titles, by warrant and survey. There are imperfect titles by warrant and survey, abandonment of which may be presumed in favor of a junior warrant or settlement right, or a purchaser of an irregular tax title: Chambers v. Mifflin, 1 P. & W. 74; Addleman v. Masterson, Id. 454; Star v. Bradford, 2 Id. 384; Read v. Goodyear, 17 S. & R. 350; Zerbe v. Schall, 4 Watts 138; Foust v. Ross, 1 W. & S. 506. But a warrant and survey, returned and accepted on which the purchase-money has been paid, confers a perfect title against all the world but the Commonwealth, which has itself the legal title only as security for the patenting fees. If the payment of taxes by the owner of a junior interfering survey can confer no title upon him, and the non-payment by the owner of- the senior survey can work no forfeiture of title, it necessarily follows that there is a valid and subsisting title in the owners of the Jacob Bright survey, and if a better title than the plaintiffs can be set up by the defendant, as an outstanding title: Watson v. Gilday, 11 S. & R. 337.
    June 22d 1880.

      Joshua W. Comly, for defendant in error.
    It is true that in his writ of ejectment, the plaintiff asserts that the defendants had both of these tracts in their actual possession, and the defendants, by pleading the general issue, admitted themselves to be in possession of the whole of the land claimed in the writ: Ulsh v. Strode, 1 Harris 433 ; but this is a legal fiction, something like the confession of lease, entry and ouster in the old form of ejectment, and intended, as that was, to facilitate the trial of titles. The evidence on the trial was that the defendants had no actual or other possession of the twenty-one acres, and it was perfectly clear that a verdict in favor of the defendants could in no possible contingency do the company any good, and that a general verdict in favor of the plaintiff could not in any manner injure either the coal company or the owners of the Jacob Bright survey, and that to permit the defendants' to set up the Jacob Bright title, could have no other effect than to put the plaintiff to the unnecessary and useless expense of making the necessary preparation to show that his is the better title, and in doing so to'occupy the time of the court and of the jury in deciding between these titles by a verdict and judgment which would not bind the owner of either title.
    The court below did not decide the title of Bellas was an abandoned title, but that it was such a title as the company could not set up, as it was a mere squatter.
   Mr. Justice Trunkey

delivered the opinion of the court,

This action is for recovery of a tract of land containing one hundred and ten acres, granted by one patent dated May 11th 1854, on two warrants and surveys, the first dated in 1852 and the second in 1853. Since 1854 the land has been assessed as one tract, unseated, and the taxes have been paid by the plaintiff and those under whom he claims.

In 1829 a patent was granted to Hugh Bellas for a tract of one hundred and eighty acres on a warrant and survey in name of Jacob Bright, dated in the same year, which includes part of the land embraced in the plaintiff’s title. This tract was assessed as unseated till 1844, when it was dropped from the assessments. By the pleadings it is' asserted and admitted that the defendant is in actual possession of the whole tract covered by the description in the writ, and the trial, verdict and judgment were on that basis. If it be a fiction, the parties so conducted the cause that the record stands as if it were a reality.

To defeat the prima facie title shown by the plaintiff, the defendant proved the outstanding title in Hugh Bellas for about twenty-one acres of the land. It was admitted that Bellas is dead and that he left living descendants. Under the evidence there could be no question of the validity of the title vested in the heirs of Bellas, and the court so held ; but refused to instruct the jury that their “ verdict must exclude so much of the land embraced in the writ of ejectment in this case as is covered by the Jacob Bright survey,” and on the ground that the defendant was a mere intruder, ruled that the “ outstanding title must be a valid subsisting title, not one abandoned, derelict or barred by the Statute of Limitations,” and directed a verdict for the plaintiff. In support of his instruction, the learned judge referred to the cases of Foust v. Ross, 1 W. & S. 501; Hunter v. Cochran, 3 Barr 105; Riland v. Eckert, 11 Harris 215, and McBarron et al. v. Gilbert et al., 6 Wright 268. The scope of the decision in Foust v. Ross is, that when land has been assessed, sold for taxes and deed duly executed by the proper officer, and the taxes subsequently paid by the holder of the tax title for more than twenty-one years, he has such title as enables him to recover against a mere intruder who will not be permitted to insist on irregularities which the former owner may be presumed to have waived by his abandonment. A man may be presumed to have waived irregularities in a tax sale or judicial sale, or in other words, to have abandoned his right to the purchaser after long lapse of time, as is fully explained in Bunting v. Young, 5 W. & S. 188. In Hunter v. Cochran, a purchaser at a tax sale attempted to hold land on which the taxes had been paid, and he failed. Biland v. Eckert enforces like principle, as applied in Foust v. Boss. The land was sold on execution upon a judgment against the administrators without notice to the heirs of the decedent, and it was held the title was good against all persons except the heirs, and after twenty-one years the defendant would not be permitted-to set up a defence, the heirs could waive. In McBarron et al. v. Gilbert et al., the facts were as follows: The land in suit, as settled by the verdict, was included in chamber surveys on the Mertz and Flowers warrants which were returned in 1784. In 1794 actual surveys were made on the Morris warrants and patents issued, and these overran the land embraced in the Mertz and Flowers surveys. The title of the defendants originated in 1815, more than thirty years after the return of the surveys on the Mertz and Flowers warrants. Sixty-five years had elapsed from the date of the Morris surveys, and no owner of that title had ever asserted it, and the defendants had no connection with it. It was held that after twenty-one years the law treats all surveys duly returned into the land-office as actual surveys ; that before the warrants issued under which the defendants claimed, time had ripened the presumption which started with the return of the Mertz and Flowers surveys, which could not be impaired by the defendants showing that at some former day the Morris title was outstanding; and that under the circumstances the Morris title must be treated as null. In -fact, the title of the plaintiff was on the .oldest warrants and surveys and perfect as against the title of defendants, and the alleged outstanding junior title was a nullity.

An abandoned title is not transferred to an adverse claimant or person who first seizes the land, but it falls back to'the state, and by its extinction sometimes makes a younger and conflicting title good. The doctrine of abandonment does not apply to a perfect title but only to imperfect .titles. In favor of a junior warrant or settlement right after long lapse of time, an imperfect title by warrant and survey may be presumed to be abandoned. But such presumption cannot be made of a perfect title; that is never reinvested in the state on such principle. After the land has been located and patented, it will not fall back because it is a derelict nor for the owner’s neglect to pay the taxes: Hoffman v. Bell, 11 P. F. Smith 444. A stranger will not acquire title by payment of taxes on unoccupied land. Actual possession is necessary to acquire title under the Statute of Limitations. The presumption arising from the owner’s neglect to exercise every act of ownership, often called abandonment, of his waiver of irregularities in sales of land for taxes or on judicial process, is a very different thing from the statutory title by adverse and continuous possession. In case of conflicting titles, the older and better will not be lost by reason of the Statute of Limitations, nor presumption of waiver upon the mere payment of taxes .by the holder of the younger title.

The general rule is that the plaintiff in ejectment must recover on the strength of his own title, and when an outstanding title better than his own is shown, he must fail to recover. There are exceptions to the rule, but we are of opinion that the facts of this case do not take it out, and that the defendant’s first, third and fourth points should have been affirmed.

Judgment reversed, and venire facias de novo awarded.


text:
    Appeal of Johnson et al.
    In proceedings in equity by a bridge company to restrain the erection and maintenance of a ferry the master found that the grant of the ferry franchises to “ M., his heirs and assigns,” was a valid and existing grant, so long as they continued to exercise it, and that neither its nonuser nor subsequent Acts of Assembly could destroy the grant. It was held that no one could use the ferry franchises unless by purchase or assignment from M. or his heirs. It appeared that defendants erected the ferry with the consent of the heirs, some of whom were associated with defendants in the operation of the ferry: Held, that it was of no consequence that the heirs of M. had not parted with all their rights in the ferry franchises; that it was of no concern to plaintiffs whether defendants had a conveyance of the franchises or only a license to use them, as either would be a sufficient protection.

      June 7th 1880.
    Before Sharswood, C. I., Mercur, Gordon, Pass on, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Clinton county: Of May Term 1880, No. 46. In Equity.
    Bill in equity filed by the Lock Haven Bridge Company against William Johnson and others to restrain them from the erection and maintenance of a ferry. ' -
    The bill, in substance,.alleged, 1. The plaintiff is a corporation created by the Act of 4th day of March 1850, Pamph. L. 782.
    2. That by her charter she is authorized to erect and maintain, over the west branch of the Susquehanna, river, in the county of Clinton, a bridge for travellers to cross and recross said river.
    3. That by her charter she may demand and receive toll, &c., except in certain cases, as specified in her charter. 4. That in pursuance of her said rights, she, at great expanse, erected a bridge over said stream, and has for more than twenty years been in peaceful, quiet and uninterrupted enjoyment of the same. 5. That within sixty days last past, the defendants and others have unlawfully erected a rope, chain or wire ferry across said stream, within two miles below said bridge, and are keeping up the same. 6. That the maintenance of said ferry .by the defendants is diverting the travel from said bridge, thereby materially and unlawfully curtailing the amount of the business and profits of the plaintiff, greatly to her damage and in violation of the Act of Assembly of this Commonwealth, entitled “ An Act relating to Bridges and Ferries in Clinton and Lycoming counties,” approved the 29th day of March 1860, Pamph. L. 1860, p. 341. 71 That the defendants are now committing all the illegal acts herein complained of and threaten to continue their commission in the future, all of which acts are contrary to equity and injurious to and destructive of the right, &c., of the plaintiff, &c. The prayers were:
    1. That the defendants may be restrained by injunction, &c., from erecting, keeping up, maintaining, and operating said ferry. 2. That the defendants may be decreed to pay the plaintiff damages. 3. For further relief.
    The defendants’ answTer, in substance, was, 1. The statements made in the 1st, 2d and 3d paragraphs of plaintiff’s’ bill are true. 2. THb allegations in the 4th paragraph are true, except that defendants deny they in any manner disturbed the plaintiff in the peaceful enjoyment of her franchises. 3. The allegations as set forth in the 5th paragraph are true; excepting that it is denied that the defendants unlawfully erected their ferry across said stream; they claim that the same is a lawful structure, that they were in the exercise of their legal rights in the erection, maintenance and use of the same, all of which was done by said defendants, and those associated with them, for their own use and convenience, and the use and convenience 4of all such as might desire and have occasion to cross said river, which is a public highway, under the authority, power and privileges granted by an Act of the General Assembly of Pennsylvania, entitled: “ An Act establishing a public ferry on the south side of the west branch of the Susquehanna river, in the county of Lycoming, and to vest the fight thereof in John Myers, his heirs and assigns,” approved the 29th of March 1813, by which act it is provided that John Myers, his heirs and assigns, should have the right to erect and maintain such a public ferry at the place where the ferry of said defendant is erected, with the right to charge tolls for the use of the same, and that the ferry aforesaid of said defendants was erected with the consent of the heirs of the said John Myers, some of whom were, and still are, associated with the said defendants for the erection and maintenance of said ferry; and some of whom have given their consent in writing to the erection and maintenance of said ferry, and the same was erected, maintained and used witn the consent of the owners and occupiers of the land on the north side of the river, where the landing from said ferry on that side is constructed as provided by said Act' of Assembly, which act it is prayed may be taken as part of the answer. 4. That said ferry was erected where the post road from Williamsport to Bellefonte formerly crossed the said river, above the head of the Great Island and opposite Dunnstown, which was formerly in Lycoming but now in Clinton county. 5. Although it may be true, as alleged in 6th paragraph, said ferry of defendants diverted travel to some extent from plaintiff’s bridge, yet it is denied that thereby the business and property of the plaintiff were materially and unlawfully curtailed, greatly to the damage of the plaintiff, and in violation of the said Act of Assembly, approved the 29th of March 1860, entitled: “ An Act relating to Bridges and Ferries in Clinton and Lycoming counties;” and defendants further answer this charge and say, they or some of them, having formerly travelled over said bridge, have, in a measure, or altogether, ceased from crossing the same, having contributed towards the erection and maintenance of said ferry, and have used the same, because, for the space of about four years immediately before the erection of said ferry, said plaintiff unlawfully, and in defiance of defendants’ rights, made undue and illegal discriminations against them in the tolls charged and exacted from them, by compelling them, or some of them, to pay much higher rates of toll than by law she had a right to charge; * * * when we and those associated with us, desired the use of said ferry, and erected and used the same as we had a right by law to do as aforesaid. And, further, we aver and claim that, in the erection and use of said ferry, we have not violated said Act of Assembly, approved the 29th March 1860, which does not apply to said ferry or those who may operate the same as aforesaid; for, by said act, it is expressly provided, that nothing in this act contained shall apply to any ferry which has been or may hereafter be erected, established, kept up and maintained in pursuance of the provisions of any law of this Commonwealth specially authorizing the same; the said ferry having been erected, established, kept up and maintained in pursuance of, and as required by said Act of Assembly, approved the 29th March 1813. 6. Defendants deny said ferry across said river, which is a public highway, is illegal, injurious to, and destructive of the rights, property, privileges and franchises of the plaintiff, or in violation of the said act, approved the 29th March 1860.
    The bill and answer was referred to Jesse Merrill, Esq., as examiner and master, who reported, substantially, as follows:
    That by the Act of March 29th 1813, John Meyers, his heirs and assigns, were granted the right to establish a public ferry on the south side of the west branch of the Susquehanna river, in Lycoming county, at a point where the post road from Williamsport to Bellefonte crosses said river, above the head of the Great Island, and opposite Dunnstown. That such a ferry was established in pursuance of said grant, and used as such until the spring of 1852.-That it was not used from that time until June 1877, when the defendants, and others associated with them, erected posts on the north and south sides of the west branch of the Susquehanna river, stretched a wire rope, attached to it, by means of ropes and pulleys, a flat,»and began .transporting across said river, horses, wagons and people.
    That upon the death.of John Myers, to whom the original ferry grant was made, his son, John Myers, became possessed of the lands upon which the ferry is located; that the latter died in January 1873, intestate, and leaving a widow and nine children; that four of these children were minors, in June 1877, at the time of the erection of this ferry, and had for their guardian, J. G. Harris; that said guardian was not cohsulted about, nor did he agree to the erection of the ferry; that John and Thomas, two of the other heirs, assisted the defendants in erecting it; that James, another heir, assisted and agreed to its erection, conditionally; and that Marcellus and Robert, two other of the heirs, were interested in it from the beginning by being subscribers thereto, and they, with their mother, after the institution of this suit, joined in a paper, acknowledging that they were willing that the ferry association should use the rights of the heirs of John Myers, under the Act of Assembly authorizing his father to erect a ferry; and that said association had proper authority from the owners of the land on the north side of the river for the erection of said ferry there. That no demand for the use of said ferry was made from 1852 until 1877, when the defendants, and those associated with them, erected the ferry for the convenience of those forming said association in crossing said river, and to avoid unjust discriminations made against them in collecting tolls by the Lock Haven Bridge Company.
    That by an Act of Assembly of the Commonwealth of Pennsylvania, approved March 4th 1850, and a supplement thereto, approved April 2d 1850, the Lock Haven Bridge Company was incorporated; that in pursuance of their charter, said corporation erected a bridge over the west branch of the Susquehanna, in the pool of the Dunnstown dam, which was finished and thrown open to travel in January 1852; that since that time said bridge has been in constant use, excepting for two or three months in 1865.
    That by the Act of Assembly of April 2d 1850, above referred to, ample provision is made for the payment of any injury sustained in the erection or construction of said bridge; and that by an Act of March 29th 1860, all persons are prohibited'from keeping up, maintaining, erecting or establishing a ferry across any of the rivers of Clinton and Lycoming counties within two miles of any toil bridge. Provided, That this shall not apply to any ferry which has been or may hereafter be erected, established, kept up and maintained in pursuance of the provisions of any law of this Commonwealth specially authorizing the same.
    That no proceedings were ever instituted under the provisions of the Act of Assembly, of April 2d 1850, by the owners of the Myers ferry, or by any stockholder or other person interested, for the assessment of damages; that the bridge company never paid any damages for any injury done to said ferry. That said ferry was within two miles of plaintiff’s bridge, and that the erection and maintenance thereof did induce persons to cross the river at said ferry, that otherwise would have crossed at said bridge, thus reducing the receipts for tolls and the revenues of the bridge company.
    The master reported as his conclusions of law, inter alia, as follows:
    “ That the grant of ferry franchises to John Myers, his heirs and assigns, is a good and valid grant to them, so long as they may choose to exercise it, and that neither the non-user of the franchise from 1852 until 1877, nor the Act of Assembly of March 29th 1860, prevents them from using and maintaining a ferry at the point named, in accordance with the Act of Assembly of March 29th 1813; and that the Acts of Assembly could not and do not destroy the franchise granted by said act.
    “ That the defendants not being the heirs or assigns of John Myers, to whom the franchise to erect and maintain a ferry at this point, was granted, have no authority under the Act of Assembly of March 29th 1813, for what they have done, and are consequently subject to the Act of Assembly of March 29th 1860, and must, therefore, be enjoined by the court from further maintaining the ferry erected by them. * * *

      June 19th 1880.
    “ Defendants justify the erection of the ferry which they established and operated, by claiming that it was made by and with the consent of'the heirs of John Myers, and that, therefore, the title to the ferry franchise from the Commonwealth vests in them. '
    They have, in my opinion, entirely failed to establish by evidence that they hold the grant made by the Commonwealth of Pennsylvania to John Myers, either by purchase or assignment, and therefore they are without right or title to any franchise under which they can justify the erection and operation of said ferry.”
    He, therefore, framed a decree enjoining the defendants from further operating the ferry. Exceptions were filed to this report, which the court, Cummin, P. J., dismissed, and confirmed the report. From this decree this appeal was-taken.

      Seymour D. Ball, for appellants.
    The evidence shows that the widow Nancy Myers and a majority of the children, that is five of them, all of lawful age, were Associated with the defendants below in the erection and use of the ferry in question, either working at it with them, or contributing to the expense of its erection and use. The Act of 1813 confers the ferry franchises upon “John Myers, his heirs and assigns.” The main object of the legislature in granting this franchise, as aforesaid, was to provide the people with a safe, convenient and economical means of crossing the river at the place designated, and to have the same kept up there. The five heirs concerned in the erection and use of the ferry had a right to enter upon and use the same, being only accountable, in a proper action at law, to their co-tenants; and there is no principle of law which would prevent them from associating the defendants below with them in the same, and thus effecting the purpose and intention of the legislature in the passage of the Act of 1813.

      H. T. Harvey, for appellee.
    This was not a public ferry as contemplated by the Act of 1813: it was a more private flat. The authority conferred upon John Myers in 1813 not having been used from 1852 to 1877, the franchise must be regarded as abandoned. The use of this ferry is an interference with the franchise of the bridge company, and is in violation of the Act of 1860. The ferry franchise could not be exercised under the authority acquired by the co-operation or mere acquiescence of a part of the Myers heirs.
   Mr. Justice Paxson

delivered the opinion of the court,

The right of the heirs of John Myers to maintain a ferry at the point in controversy is not disputed. The master finds, “ That the grant of ferry franchises to John Myers, his heirs and assigns, is a good, valid and continuing grant to. them, so long as they choose to exercise it, and that neither the non-user of the franchise from 1852 to 1877, nor t-he Act of Assembly of March 29th 1860, prevents them from using and maintaining a ferry at the point named, in accordance with the Act of Assembly of March 29th 1813; and that the Acts of Assembly could not and do not destroy the franchise granted by said act.” This finding not having been excepted to in the court below must be regarded as conclusive. The learned master further finds, however, that the appellants have no right to erect and maintain the ferry, for the reason that they have “ entirely failed to establish by evidence that they hold the grant made by the Commonwealth of Pennsylvania to John Myers, either by purchase or assignment, and that therefore they are without right or title to any franchise under which they can justify the erection and operation of said ferry.” This finding is a conclusion of law. The facts upon which it is based are not found. The evidence, however, is before us, and if it shows the learned master has drawn an inaccurate conclusion from the facts, there is no reason why we may not correct it.

. The answer of the defendants, who are also the appellants, avers “ that the ferry aforesaid of said defendants was erected with the consent of the heirs of the said John Myers, some of whom were, and still are, associated with said defendants for the erection and maintenance of said ferry, and some of whom have given their consent in writing to the erection and maintenance of said ferry.”

The plaintiffs did not demur to this answer as they might and ought to have done if they regarded it as insufficient. The case went to a master, and the evidence taken fully sustains every averment as above set forth. Indeed, the facts as averred are not disputed. The contention is that because there was no formal assignment or conveyance of the rights of the Myers heirs to the franchises in question, they could not, in conjunction with the other defendants, erect and maintain 'this ferry. But no formal assignment was necessary. The heirs having the right to set up the ferry could authorize any one else to do so. That they did so authorize the defendants clearly appears. James Myers, one of the heirs, testified: “ We consented that they should have the ferry there before it was erected, provided that they would put in the pier. They have never refused to build this pier. As soon as they got under way they intended to go to work at the pier, but the sheriff came down and stopped them. By ‘we’ I mean John and mother and myself, who were all that were there; we saw the rest of the family and got their consent. The posts were erected on each side of the river, and a wire rope stretched across; on this pulleys were fixed that were attached to ropes fastened to the flat, and it was thus propelled. We understood it so when we gave our consent.”

This is very explicit. It leaves no room for doubt that the defendants are maintaining the ferry with the consent of the Myers heirs. It is of no consequence that the latter have not parted with all their rights in the ferry franchises. It is no concern of the plaintiffs whether defendants have a conveyance of the franchises or only a license to use them. Either would be a sufficient protection.

The decree is reversed, and the bill dismissed with costs.


author: Per, Curiam.

text:
    Township of Conyngham versus Walter.
    1. W. held a judgment and issued a scire facias to revive it. The defendant pleaded that the plaintiff could not maintain the writ, because the defendant was a township and was not the owner of real estate. The plaintiff demurred to this plea and the court sustained the demurrer: Held, that this was not error. ';
    2. The defendant took a rule to show cause why judgment should not be entered on the scire facias without interest, which rule the court discharged, and directed that interest on the original judgment should be computed and judgment entered for the aggregate sum of debt and interest as a new principal : Held, that this was not error.
    June 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of .Columbia county: Of May Term 1880, No. 124.
    Scire facias to revive a judgment obtained by Abner K. Walter against the township of Conyngham, on an order issued by said township.
    The plaintiff, Walter, held a judgment against the township entered in the Court of Common Pleas of Columbia county, to December Term 1873, for $796.72. In January 1879, he issued a scire facias in the usual form to revive said judgment.
    To this writ the township pleaded that the plaintiff ought not to have or maintain this scire facias, because the defendant is a certain district or territory in the county of Columbia, erected and organized under the laws of Pennsylvania, by the name, style and title of the Township of Conyngham, with all the rights and privileges pertaining to a township within said county, under the laws of said Commonwealth, and that the said township is not the owner of any real estate. Wherefore, because the said defendant remains and is bound by the original judgment, and was at the time the plaintiff obtained the same, and is now, a quasi municipal corporation under the laws of the Commonwealth, and has not, and is not now, the owner of any real estate, the said township prays judgment of the writ aforesaid, and - that the same may be quashed.
    To this plea the plaintiff demurred, on the ground that it was not sufficient in law to preclude him from maintaining his action. There was a joinder on the demurrer', and on these pleadings the court below, on the 8th of September 1879, ordered judgment to be entered for the plaintiff on the demurrer, the amount to be computed by the prothonotary, to which counsel for the defendant excepted, and at the same time took a rule on the plaintiff to show cause why judgment should not be entered without interest on the scire facias, which rule, the court, on the loth of December 1879, discharged, and directed that the interest on the original judgment should be computed, and judgment entered for the aggregate sum of debt and interest as a new principal.
    The following was the opinion of the court, Elwell, P. J.:
    “Before the Statute of Westminster II., 13 Ed. 1, cap. 45, Roberts Dig. 240, the plaintiff in a judgment could not maintain a scire facias upon a personal judgment, nor have execution where the judgment slept a year and a day, but was put to a new action upon the original judgment: 3 Salk. 321.
    “ The rule of the common law was for the protection of the debtor, and one object of the statute was, says Gibson, J., in Pennock v. Hart, 8 S. & R. 269, ‘ to preserve to him the benefit of it, while a more speedy and less oppressive remedy was provided for the creditor. * * * Both at the common law, and under the statute, the presumption is prima facie that the judgment has been discharged, and the defendant is not to be molested with an execution before he has an opportunity to show the truth. ’
    “ A scire facias is in the nature of an original action, and the defendant may plead to it in bar of an execution: Co. Litt. 290 a; 2 Tr. & H. Pract. 272, 3d ed.
    “ The action by scire facias is a substitute for the action of debt upon the judgment, and the latter action may still be maintained in England, but it has become less frequent because of the Statute of 43 Geo. 3, which precludes the plaintiff from recovering costs in an action on' a judgment unless the court or one of the judges shall otherwise direct: 1 Chit. Pl. 111.
    “ In Duff v. Wynkoop, 24 P. F. Smith 305, it was held, that a scire facias is a substitute here for an action of debt elsewhere; the judgment on it is quod recuperet instead of a bare award of execution.
    “ By our Act of 1845, the time within which a plaintiff may have execution upon a judgment is extended to five years. If the plaintiff, after the lapse of that time, shall cause an execution to be issued without a previous scire facias, it will be set aside: Comly v. Rissel, 1 Phila. R. 402.
    “ At common law a judgment was not a lien on real’estate. The necessity for a renewal of the judgment after a year and a day was in no way created by any question on that subject. It arose altogether from the presumption of discharge or release by the lapse of time. This presumption, as we have seen, does not create a bar to the recovery of the debt unless it is rebutted by proof, but it extends no further than to require that the plaintiff who has taken no steps to execute his judgment during a year and a day at the common law, or the five years now allowed by statute, to call upon the defendant by legal process to show cause why he should not have the fruits of his judgment. If he will not do this the presumption stands in the way of his collecting the judgment by execution of any kind.
    “ By the Act of 1834 the party entitled -to the benefit of a judgment against a township, shall have execution thereof by a writ commanding payment thereof out. of any moneys in the treasury unappropriated, and if there be none, out of 'the first money that shall be received for the use of the' township, and not otherwise.
    “ This process is what is called in the act an execution, and is, therefore, within the prohibition of the common law^is extended by the Act of 1845.
    “ By the scire facias the plaintiff is not-seeking to have execution otherwise than is provided by the Act of 1834. He is but calling upon the defendant tó show cause why he should not have execution according to that act. It is no answer for the defendant to say the judgment is not a lien on real estate,'and, therefore, the act prohibiting execution after five years does not apply. Why it does not, it appears to me to be impossible to establish by any course of sound reasoning.
    “In no statute, nor by any decision of any court, has a different rule been established for municipal corporations from that in regard to natural persons as to the presumption arising from lapse of time beyond which a judgment cannot be executed without a revival. Why should there be a distinction ? There is greater reason why the officers of a township after the lapse of five years, should b<? afforded an opportunity to show cause why the statutory writ of execution should not be issued, than in the case of an individual. New officers are annually coming in to take charge of the financial affairs of the township. And, therefore, protection to the township requires that, where a plaintiff has taken no action for five years, he shall be put to his writ of scire facias before he can have execution.
    “ If the plaintiff had issued the statutory writ instead of his scire facias it would have been set aside on motion. Inasmuch, therefore, as the plaintiff could not proceed otherwise than by a scire facias he is entitled to maintain his action. It is no objection to his proceeding that other creditors have judgments upon which scire facias may be issued, and thus óosts may be made to the township. The only question is, has the plaintiff the right to have judgment that he may recover his debt by such form of execution as is in such case provided by law.

      “ The case of Schaffer v. Cadwallader, 12 Casey 126, relied upon by the counsel for the defendant, decides nothing more than that no execution can issue against the land of a municipal corporation, because the judgment is not a lien upon its real estate. But this touches not the question raised by this record. The judgment in this action merely determines that the plaintiff has or has not the right to recover, by the kind of execution to which he is limited by statute, the amount appearing by the record to be his due.
    “ Having no doubt that the plaintiff has pursued the remedy which the law provided for him, and that without pursuing it he was not entitled to execution, I am of opinion that the plea of the defendant cannot be sustained.
    “And now, September 8th 1879, judgment for the plaintiff on the demurrer. Amount to be computed by the prothonotary.
    “ The uniform practice of entering judgment upon a scire facias upon a judgment, is to include the interest as part of the new principal: Berryhill v. Wells, 5 Binn. 56 ; Fries v. Watson, 5 S. & R. 220. There is no good reason why a judgment against a municipal corporation should be an exception to the general rule.
    “ And now, December 13th 1879, rule discharged, and it is directed that the interest on the original judgment be computed, and judgment entered for the aggregate sum of debt and interest as a new principal.”
    The defendant took this writ, alleging that the court erred : 1. In entering judgment for the plaintiff on the demurrer. 2. In directing that the interest on the'original judgment be computed, and judgment entered on the aggregate sum of debt and interest, as a new principal.

      William A. Marr and John G. Freeze, for plaintiff in error.
    We contend that a scire facias on a judgment against a township is unnecessary for the term of twenty years at least; and if we are right in this, then any revival or renewal of it on a writ of scire facias within that time, should be without interest computed, making up a new principal, and without costs on the writ.
    The scire facias could not continue the lien, for no lien was ever acquired by the judgment, because it was against a township, and because the township was not the owner of any real estate: Morgan v. Moyamensing Township, 2 Miles 397 ; Monaghan v. The City of Philadelphia, 4 Casey 207; Schaffer v. Cadwallader, 12 Id. 126.
    Besides that, we say that the Act of 26th March 1827, Pamph. L. 129, the Act of 16th June 1836, Pamph. L. 755, and the Act of 16th April 1845, Pamph. L. 538, relate to the writ of fieri facias and to the lien on real estate, and are within the principle of Dodge v. Casey, 1 Miles 13, where an alias fi. fa. is allowed, although more than five years had elapsed since entering the judgment, without the intervention of a scire facias: Shaw v. Richards, 2 Miles 103 ; Landouzy v. Seelos, 4 W. N. C. 151. A writ of fieri facias is a lien upon personalty from the date of its receipt by the sheriff — it authorizes a levy upon both personal and real estate, and it provides for a sale of the property levied upon the writ.- Not one of these things can happen upon any writ that can be issued against a township.
    June 21st 1880.

      A. P. Spinney, for defendant in error,- was not heard by the court.
   The judgment of the Supreme Court was entered

Per, Curiam.

This judgment is affirmed on the opinion of the

learned iudge of the court below.

Judgment affirmed.


author: Mr. Justice Green

text:
    The Lycoming Fire Insurance Company versus Schwenk et al.
    1. A policy of insurance provided that the company should not be liable “ for any loss or damage by fire caused by means of an invasion, insurrection, riot, civil commotion, or military or usurped power x” Held, that where a breaker at a coal mine was set on fire at night by a party of men, who fired a number of shots, drove the watchman away and then burned the breaker, there was a riot within the meaning of the policy.
    2. Per Green, J. — We are decidedly of the opinion that in the testimony set forth in this opinion every element of riot is' found, whether at common law or under the Act of 1705.
    June 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Northumberland county : Of May Term 1880, No. 135.
    Covenant by William Schwenk and Jacob Geise, trading as William Schwenk & Co., for the use of Henry Saylor against the Lycoming Fire Insurance Company, upon a policy of insurance upon a coal-breaker and machinery near Mount Carmel, in Northumberland county.
    The defendant pleaded:—
    1. That the property alleged in thé declaration to have been burned and destroyed by fire “ was burnt and destroyed by rioters in the perpetration of a riot and not in any other manner2. That the burning and destruction of the said property “ was caused by means of a riot and not in any other .manner3. That the burning and destruction of the said property “ was caused by means of a civil commotion, and not in any other manner.” The defendant pleaded further “ non est factum, covenants performed absque hoe and nil debet.”

    It was provided by the policy that the defendant should not be liable by virtue of this policy “ for any loss or damage by fire caused by means of an invasion-, insurrection, riot, civil commotion or military or usurped power,” and also that “ persons sustaining loss by fire or lightning under a policy shall give notice thereof forthwith to the secretary, and within thirty days of said loss deliver to the secretary a particular account and proof thereof, signed and sworn to by them, setting forth among other things: “ Sixth, the date of the loss and the amount thereof; Seventh, how the fire originated, so far as said persons know or believe.” A fire occurred on the 3d of June 1875, and a statement of the loss sworn to by William Sehwenk on the 22d of June 1875, purporting to give a particular account of the loss and the origin of the fire was sent to the secretary of the company, in which among other things was the following: “A fire occurred on the 3d of June 1875, at about the hour of ten o’clock, p. M., and originated as follows, viz.: of my own personal knowledge I do not know, but the two watchmen who were in charge of the premises say that about seventy-five men came to the breaker, and while some stationed themselves as pickets, others carried wood for kindling to the boiler-house, and after saturating the wood and parts of the building with coal oil, set fire to it, and then remained and guarded the premises until they were satisfied that destruction to the breaker was certain.” No notice of any other cause of the fire was ever given to the company, and on the trial the defendant contended that this was notice that the property was burned and destroyed by means of a riot, and also proved by the watchmen and others that the property was set on fire and destroyed in the manner stated in the notice.
    The sixth and seventh points of the defendant with the answers of the court thereto were as follows :—
    6. That if the jury believe that the breaker was destroyed by fire in the manner testified by Timothy Adams, -their verdict ought to be in favor of the defendant.
    Ans. “ I cannot charge you as requested as a matter of law, but say to you that I have already in the general charge defined the offence of riot, and have just told you, in answer to the foregoing jooints of the defendant, what circumstances would be deemed a riot so as to constitute a defence to the plaintiff’s claim, and I now submit the testimony of this witness with all the other evidence in the ease to you from which you are to find the facts.” (10th assignment of error.)
    7. That if the jury believe that the breaker was destroyed by fire, and in the manner testified by Albert Ford, their verdict ought to be in favor of the defendant.

      Ans. “I cannot charge you as requested in this point as a matter of law, but say to you that I have already in the general charge defined the offence of riot, and have just told you, in answer to the foregoing points of the defendant, what circumstances would be deemed a riot so as to constitute a defence to the plaintiffs’ claim, and I now submit the testimony of this witness with all the other evidence in the case to you, from which you are to find the .facts.” (11th assignment of error.)
    The material portions of the testimony of Adams and Ford will be found in the opinion of this court. In the general charge, the court, Rockefeller, P. J., inter alia, said
    “ [For the present I will say to you that a riot at common law is the tumultuous disturbance of the public peace by three persons or more assembling together of their own authority with the intent mutually to assist one another against any who shall oppose them in the execution of some private object and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended is lawful or unlawful.] (1st assignment of error.) [In order to prove a riot it is necessary at common law to prove on the trial a previous unlawful assembling. It must be shown that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least by such apparent tendency thereto as would inspire the people with terror, such as being armed, using threatening speeches, turbulent gestures or the like. If the assembling of persons be not accompanied with such circumstances as these, it cannot be deemed a riot, however unlawful the acts which they actually committed.] (2d assignment.)
    “ [Then at common law it was also necessary that there should be a tumultuous disturbance of the-public peace. By that is meant, we think, a violent, turbulent, disorderly and noisy disturbance of the public peace.] (3d assignment.) Then this disturbance must be by three or more persons, and they must have assembled together of their own authority, with intent mutually .to assist one another against all persons who might oppose them in the execution of some private object, as for instance in the execution of the burning down of a building or anything "of that kind. Then it must be shown that they afterwards actually did execute this object in a violent and turbulent manner, to the terror of the people.
    “ While the law is for the court to determine, and you are bound by the instructions of the court on questions of law, yet you are to determine the facts from the evidence in the case, and you must have reference in making up your verdict to a]j the facts and circumstances in the evidence. :
    “ Then if you believe the evidence, on the night of the 3d of June 1875, the plaintiffs’ property was destroyed by fire. You will recollect the testimony of the witnesses on the subject as to what took place at the time that the property was destroyed for which the plaintiffs seek to recover the insurance in this case. Timothy Adams stated that he was there, employed by the plaintiffs, William Sehwenk & Co., as watchman; that on the 3d of June, at about eleven o’clock at night, he heard a noise in the bush, a rustling in the leaves. He didn’t.know for certain what was there but he fired his gun, and immediately after his firing it was returned by another proceeding from the direction of this noise in the woods, and presently by another shot, and then in a short time he says there was a volley fired. At one time he said there might have been fifty or seventy shots, and again he said that there might have been only four or five, six, seven or eight. What is meant by a volley was the firing of a number of shots. Then, he says, presently a number of men, probably seven or eight, came out to the breaker and he heard them talking. He was up on the plane of the breaker above them and he heard one of them asking for some wood and another asking for some coal oil; soon after that the breaker was on fire. He doesn’t speak of any noise having been made by these men except the firing of the pistols, as he thought, previous to the time of setting fire to the breaker. He moved on down the plane and finally got inside of the drift and remained there a short time when he saw the men going away. He doesn’t speak of their having made any noise at the time they were going away.
    “ Then you heard the testimony of Alfred and Joseph Ford and Harriet Farley, all persons who were in the neighborhood the evening of this fire, and you will determine from these witnesses what actually did occur on that occasion. Young Mr. Ford that he saw the men coming down the railroad ; that he heard them talking loudly.
    “[You will take into consideration all the evidence. Was this a riot ? Was this a tumultuous disturbance of the public peace by three or more persons assembled there together of their own authority with intent, mutually, to assist one another against any who should oppose them in the execution of their purposes, or in burning of the breaker or other property ? Did they burn the breaker and other property in a violent and turbulent manner to the terror of the people ?] (4th assignment.) You heard the testimony, so far as terror is concerned, of Harriet Farley. She was on her way home from Mount Carmel. She testified as to what she heard and saw. You heard the testimony of Alfred Ford in regard to whether he was put in terror, and the testimony of Timothy Adams on the same subject. [You will determine from all the evidence whether the acts of shooting and the noise that was created by the firing of the building were violent and turbulent acts, and whether they were to the terror of the people. We think that it is not necessary that there should have been shouting or blowing of horns; that the noise caused by the shooting off of guns and pistols would be a tumultuous disturbance of the public peace.]”
    The 12th assignment of error was as follows :

      “Because the general charge of the court, as to what constitutes a riot, differs from and is in conflict with the law as is stated by the court by affirming the third and fifth points of the defendant below, which the court below affirmed to be correct to such a degree as to be contradictory and irreconcilable, and this contradiction tended to confuse and mislead the jury, and prevented them from obtaining from the charge any certain idea of what is necessary in law to constitute a riot, to wit: the court in their general charge say, ‘ then at common law it was also necessary that there should be a tumultuous disturbance of the public peace. By that is meant, as we think, a violent, turbulent, disorderly and noisy disturbance of the public peace, &c.’ ”
    The following are the 3d and 5th points, with the answers of the court.
    3. “ That if any persons to the number' of three or more shall meet together with clubs, staves or other hurtful weapons, to the terror of the peaceable people or inhabitants of this Commonwealth, and shall commit or design to commit violence or injury upon the persons or goods of any of the said inhabitants, such persons are guilty of riot.”
    Ans. “ I answer this point as requested.”
    5. That noise is not a necessary element of a riot, nor is it necessary that any person should be put in actual fear, but if a number of men, to the number of three or more, banded together for the purpose of destroying the breaker of the plaintiffs, and having armed themselves with pistols or other arms or weapons, went to the said breaker with a determination and purpose to destroy it, against any resistance that the watchmen there might offer, and did actually destroy it by fire, the plaintiffs cannot, under the terms of the policy of insurance, recover in this suit, and the verdict ought to be in favor of defendant.
    Ans. “Affirmed.”
    Verdict for plaintiffs for $2473.33, and after judgment thereon, defendant took this writ and alleged that the court erred, inter alia, as set forth in the above assignments of error.

      George Hill and Joshua W. Comly, for plaintiff in error.
    The definition of riot adopted by the court from Hawkins Pleas of the Crown, book 1, chap. 65, page 293, does not correctly define the common-law offence, and is not and never was the law of Pennsylvania : 3 Coke’s Inst. 176; 4 Blackstone Com. 146; 2 Ben. Dig. verbum “Riot;” Pennsylvanian. Cribbs, Add. R. 277; Commonwealth v. Dupuy, Brightly’s R. 46; Lewis’s U. S. Crim. Law 72; Shousen. Commonwealth, 5 Barr 83; Act of 1705, 1 Bioren’s Laws 30 ; Act of March 31st 1860, Pamph. L. 389.
    If the breaker, structure and machinery of the defendant were unlawfully burnt by three or more men, banded together for that purpose, they were burnt and destroyed by means of a riot within the terms of the exception in the policy of insurance, and the court below erred in not so telling the jury, instead of instructing them that they must find that the assembling of the offenders was accompanied with such circumstances as inspired the people with terror, and that there was a violent, turbulent, disorderly and noisy disturbance of the peace.
    June 14th 1880.
    The testimony of either Timothy Adams or of Alfred Ford, standing alone, if believed by the jury, proved the case of a flagrant riot, and if the counsel for the plaintiff in error understand the .reason of the court below for refusing to affirm the sixth and seventh points of the defendant below, it was because the court considered it to be their duty to leave all the evidence to the jury to find “whether the acts of shooting, and the noise that was created by the firing of the building were violent and turbulent acts, and whether they were to the terror of the people,” and whether there was a tumultuous disturbance of the peace.
    In the general charge, the court stated certain essentials, in their opinion, without which a riot cannot exist or be proved, but in affirming the third and fifth points of the defendant below, they admit the possible existence of riot in which some of the elements, declared to be essential, are wanting. This was calculated to confuse and mislead the jury.

      S. P. Wolverton and J. B. Packer, for defendants in error.
    The definition of riot by the court below is abundantly sustained by authority: 2 Russell on Crimes 247; Roscoe on Crim. Ev. 725 ; 3 Wharton’s Criminal Law 153, sect. 2474, 6th ed.; King, P. J., in case In re Riots of 1844, 2 Clark 278; Angeli on Fire and Life Insurance, sect. 136; Langdall v. Mason, Park on Insurance 965, 8th Eng. ed. There was not a riot, nor was the destruction caused by means of a riot within the words of the policy. The men who burned the breaker were incendiaries, not rioters. They proceeded quietly to the breaker and left it without noise or violence.
    The testimony of Adams and Ford clearly show that the breaker was not burned by men engaged in a riot, and the court could not have affirmed the defendant’s sixth point without committing manifest error. As there is no statute defining riot in Pennsylvania, and the common law is still in force, it was the duty of the court to define and explain riot at common law. In doing this the court adopted the definitions approved by all writers on criminal law. After explaining riot at common law, they accepted the definition drawn by the defendants’ counsel affirming their third, fourth and fifth points.
   Mr. Justice Green

delivered the opinion of the court,

The defendant’s sixth point requested the court to say “that if the jury believe that the breaker was destroyed by fire in the manner testified by Timothy Adams, their verdict ought to be in favor of the defendant.” The seventh point made a similar request as to the testimony of Alfred Ford. Adams had testified that at about eleven o’clock at night, while he was watching at the breaker,

“ there was a lot of men came up to the breaker through the woods. I first heard them, and I fired a shot; they fired too; they returned the fire and came up right away and set fire to the breaker. I seen some of them; now I couldn’t tell you how many I seen that was there. I didn’t see any before the breaker was on fire; I seen then may be eight or ten; I can’t tell how far they were away from the breaker when they commenced shooting ; may be fifty yards or so; they didn’t make much noise.”

Q. “What amount of shooting was done?” A. “It was a regular volley. I think may be there was fifty shots fired altogether; I heard them coming in the direction of the breaker. * * * I did not go down until they had the breaker on fire; they came right up after the shooting and set fire to the breaker; after they set fire to the breaker I came down and went into the drift. * * * I didn’t hear them say much, only when they came they said ‘Get out of this;’ that is about all I think I heard.”

Q. “How did they set fire to it?” A. “They got some fine kindling wood and poured some coal oil on; they hollered for it; one hollered for wood; and the other said ‘give me that coal oil;’ that I heard; then they set it on fire; it burned pretty rapidly. * * * I can’t say I was afraid; I didn’t like to stay in the breaker any how; I didn’t want to be burned up. * * * I was not in danger of being shot, because I was inside of the breaker; they couldn’t shoot through. I was more in danger of the fire than from being shot; I crawled down the plane over their heads.”

Ford testified that he also was a watchman at the breaker on the night of the fire, and was in the office immediately before the fire, and heard four shots fired one at a time, and then there was a silence. “ After I heard the four shots then there was a lot fired just about I guess ten or fifteen yards from me; lot of shots, sounded to me like a volley of them. * * * After the shots were fired they plunged into the office, one of the men as soon as that volley of shots was fired, and asked who was there, but there was nobody there; I wasn’t in the office at the time; I saw him coming into the office from the back window; I didn’t see anybody else there at the time; I* heard him ask who was there; I didn’t make any answer to the question; I wouldn’t have been here if I had, I guess; I went back of the office down in the bush and concealed myself. * * * I wouldn’t like to fight against so many men.”

We are decidedly of the opinion that in the foregoing testimony every element of riot is found, whether at common law or under our Act of 1705. There was the unlawful assemblage of three or more persons combined together to perpetrate an outrageous and violent crime. The commission of the crime was immediately preceded by numerous discharges of firearms. Two peaceable citizens engaged in watching and protecting the premises, placed there for that purpose, were compelled to flee therefrom in terror of their lives. The crime was arson, one of the most odious known to the criminal law. It was committed at a late hour of the night, when the great majority of persons are in their beds and asleep and least prepared to defend themselves or their property. It is an offence having a more natural and necessary tendency to put whole communities in fea'r and terror than almost any other. In this instance it was accompanied by the voices of men calling for wood and oil with which to apply the fire, by the loud and appalling noise of exploding weapons of destruction, and the criminals themselves were a band of men whose numbers could not'be determined on account of the darkness of the night. For a court in charging a jury to speak of such an occurrence as anything less than a riot of the most marked and distinct character would be simply to mislead them. We think the learned judge of the court below, in his comments to the jury, dealt quite too leniently with the plain and undisputed facts of the case. lie said to them that to prove a riot there must be a previous unlawful assembling, accompanied with circumstances of force or violence, and “ that if the assembling of persons be not accompanied with such circumstances as these it cannot be deemed a riot, however unlawful the acts which they actually committed.” From this the jury would naturally infer that unless the proof went back to the time when the men first met together, and established that such original meeting was attended with circumstances of actual force and violence, a case of riot could not be made out, no matter what acts of outrage and violence were subsequently perpetrated. Such is not the law as we understand it, and we consider it error to say or to intimate that it is to a jury charged with the trial of such a case. We think, too, that the court rather overstated the necessity of proving “ a violent turbulent, disorderly and noisy disturbance of the public peace” in order to make out a case of riot. There was no controversy as to what were the facts; not a witness was called to give any other account of the occurrence than that testified to by Adams and Alfred Ford. Their credibility was not assailed or impeached in any manner. It was a case in which it would have been entirely proper for the court to characterize directly the criminal aspect of the facts testified to by the witnesses named. Instead of doing this the learned judge told the jury they must decide whether they believed the witnesses when there was not a shadow of doubt thrown upon their credibility; and if they believe them they are to “ determine the facts and circumstances.” Whether the facts and circumstances constituted a riot he did not tell them, although expressly requested to do so in two points. In our opinion he should have affirmed the defendant’s sixth and seventh points without qualification. For not doing so he was in error, as also in the general charge for the reasons heretofore stated. We sustain the second, tenth, eleventh and twelfth assignments of error, and on these the case is reversed.

Judgment reversed.


author: Mr. Justice Mercur

text:
    County of Luzerne versus Trimmer.
    1. While the contested election of a county officei is pending, and until its determination by a final decree on the merits, the fees of the office belong to the incumbent.
    2. In such a contest the decision of the Court of Common Pleas on the merits is final. A certiorari only brings up the record, and if its regularity is approved, the effect thereof is to confirm the decree of the lower court from its date.
    3. A commission issued to a county officer pending a contest of his election is irregular but not void. Its operative power is suspended during the pendency of the contest, but if it is decided in his favor then the commission takes effect and no second commission is necessary.
    4. The election of B., as prothonotary, was contested, and pending the contest a commission was issued to him. The Court of Common Pleas dismissed the petition of the contestant on June, 30th 1877, and on certiorari, the Supreme Court affirmed this decree on March 25th 1878. The incumbent of the office, in a suit to recover from the county the fees which had been paid into the county treasury during the pendency of the contest, claimed that he was entitled to said fees until the date of the decision in the Supreme Court: Held, that the decision in the Common Pleas was final and that plaintiff was entitled to no fees thereafter,
    5. In re Contested Election of Barber, 5 Norris 392, explained.
    June 8th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Columbia county: Of May Term 1880, No. 119.
    This action was originally brought in Luzerne county, .and the venire was afterwards changed to Columbia county.
    It was a case stated, in substance, as follows:
    S. W. Trimmer was duly elected at the general election in the fall of 1873, and commissioned prothonotary of the county of Luzerne, to hold office until the first Monday of January 1877, and until his successor was duly qualified, and held the office from the 13th March 1875, to the 3d of January 1877.
    A. P. Barber was elected to the office of prothonotary of Luzerne county to succeed the said Trimmer, and was commissioned by the governor on the 7th of December 1876, to hold for three years from the first Monday in January 1877, and until his successor was duly qualified.
    On the 6th of December 1876, a petition was duly filed contesting the election of said Barber to said office, upon which issue was joined, and which was finally determined by the Supreme Court on the 25th of March 1878, having been dismissed by the Court of Common Pleas on the 30th of June 1877.
    On the 3d of January 1877, at the instance of Barber, a writ of quo warranto was issued by the Court of Common Pleas of Luzerne county against Trimmer, requiring him to show by what warrant he held the office of prothonotary, pending the contest aforesaid, upon which, on the 3d of January 1877, the said court entered judgment of ouster against said Trimmer, whereupon he was duly removed from said office, and Barber entered into possession, which judgment of ouster was reversed by the Supreme Court on the 25th of March 1878, and it was adjudged that the said Trimmer had the right to hold the said office of prothonotary, pending the contest of the election. (See In re Contested Election of Barber, 5 Norris 392.)
    Barber claiming to act by virtue of the said commission and the judgment of the court, and the Act of 31st March 1876, said county of Luzerne being a county of over 150,000 inhabitants, collected and paid into the county treasury the sum of $26,569.12, from the 3d of January 1877, to the 25th of March 1878, exclusive of state taxes.
    The said county paid o.ut of the treasury for the expenses of said office, clerk hire and salary of thé prothonotary, by virtue of said act, the sum of $15,800.27, between the dates aforesaid.
    Demand was duly made on the county of Luzerne for the said money before the commencement of suit, viz.: on the 12th of April 1878.
    The question for the determination of the court was, whether Trimmer was entitled to the fees of the prothonotary’s office of Luzerne county, between the 3d of January 1877 and the 25th of March 1878, and to recover the same as collected by said Barber, and paid over to the county. If the court should be of opinion that Trimmer was entitled to the fees of the office, or any portion thereof, during the time aforesaid, then judgment to be entered in favor of the plaintiff; otherwise judgment to be entered for the county of Luzerne.
    The court held that Trimmer was entitled, under the law, to fifty per cent, of that portion of the fees collected by Barber and paid into the county treasury, over and above the amount paid into the treasury for current expenses of the office, between January 3d 1877 and March 25th 1878 (the date of the final decree of the Supreme Court), with interest, and accordingly entered judgment in his favor for $5956.50, with costs. The county took this writ, and alleged that the court erred in the entry of judgment, and in holding that the plaintiff was entitled to any fees after June 30th 1877, when the contested election case was determined by the Common Pleas.

      Thomas H. Atherton, Allan II. Dickson and Henry W. Palmer, Attorney-General, for plaintiff in error.
    The decision of the Court of Common Pleas on the 30th of June 1877 terminated the contest, and that decision was final. The certiorari merely brought up the record to determine whether' the proceedings were regular and before a competent tribunal, but the original judgment is not affected thereby. The certiorari does not prolong the contest. The final adjudication was on June 30th 1877, and not on March 25th 1878, when the judgment of the Supreme Court was entered: Act of July 2d 1839, Pamph. L. 559; Purd. Dig. 1181, Pamph. L. 66; Sheppard’s Case, 15 P. F. Smith 20; Ewing v. Thompson, 7 Wright 372.
    The commission issued to Barber pending the contest was not void as his right to the office under the same was merely “ suspended,” and the commission did not “take effect” until the “legal qualification of the officer.” This was on the 30th of June 1877, if not before. To hold that Barber had no right to the office until a valid commission was issued, and that his commission was void would, in effect, decide that he never was duly qualified: Act of 1839, supra; In re Election of Barber, 5 Norris 392; Ewing v. Thompson, supra.

      John Lynch and C. R. Buckalew, for defendant in error.
    The petition contesting the election of Barber was filed on the 6th of December 1876, being the twenty-ninth day after the general election of that year, and the governor’s commission was issued to Barber on the following day, being the thirtieth day after the election. It was, presumably, issued before notice reached him in the regular course of mail of the petition of contest filed the day before, and in violation of an express prohibition contained in the Act of 1839. As the act declares that no commission shall issue within the lapse of thirty days from the election, it follows that the commission was unlawfully issued and was invalid. It conferred no right, and it furnished no ground for the judgment of ouster against Trimmer erroneously pronounced by the Common Pleas in January 1877 : In re Contested Election of Barber, supra; Cromline v. Brink, 5 Casey 522; Mark’s Ex’rs v. Russell, 4 Wright 372; Mayfield v. Moore, Bright. Election Cases 605.
    The legal effect of .the certiorari was to suspend all claims and all action under the decree of the court below until the final decision by the Supreme Court. Until the judgment of the Supreme Court was rendered, the contest was pending and plaintiff was entitled to the fees until that date : Ewing v. Thompson, supra.

      October 4th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

The right of the defendant in error to the emoluments of the office ended when it was judicially decided that Barber was duly elected and entitled to the office. The decision in favor of Barber was made by the Court of Common Pleas on the 30th June 1877. Inasmuch, however, as a certiorari was taken to that judgment, and it was not affirmed in this court until the 25th March 1878, the learned judge held the defendant in error entitled to the emoluments of the office until the latter date. In so holding there was error. Due effect was not thereby given to the judgment of the 30th June 1877. The merits of that decision were not reviewed in this court. The certiorari brought up the record only. Although our affirmance of the decree was on the 25th March 1878, yet the effect thereof was to confirm the decree of the 30th June 1877. That was the final decree on the merits of the controversy : Election Cases, 15 P. F. Smith 20. Barber was thereby declared to be the prothonotary de jure. Thenceforth, the defendant in error was merely an officer de facto. His acts were good as to third persons who have an interest in the act done; but he could not recover the fees given for the official services: Riddle v. County of Bedford, 7 S. & R. 387; Commonwealth ex rel. Bowman v. Slifer, 1 Casey 23.

It is contended that Barber was not duly qualified when the decree of the 30th June was made in his favor. This argument rests on the facts that the Act of Assembly declares no commission shall, issue within thirty days after the election, nor pending a contest for the office. The petition contesting his election was filed on the twenty-ninth day thereafter, and without notice thereof the governor issued the commission on the thirtieth day after the election. It is .therefore urged that the commission was wholly invalid under the authority of In re Contested Election of Barber, 5 Norris 392. Such an inference might be drawn from the generality of the language used in that case. It should, however, be interpreted in view of the question then presented. The contention was whether the effect of the commission was such as to authozrize Barber to take possession of the office and to hold the same during the pendency of the contest. It was held to give no such power. It issued irregularly but was not void. Its operative power was suspended during the pendency of the contest. When it was decided that Barber was entitled to the office, then the commission took effect. No second commission was necessary. This conclusion is in harmony with that part of the third section of the Act of 2d July 1839, Purd. Dig. 1181, which declares when a commission is suspended by reason of a contest, it shall take effect from the time of the legal qualification of the officer under the same. To the same effect is Ewing v. Thompson, 7 Wright 372. In case the defendant in error had yielded up the office to Barber at the time the court decided in favor of the latter, his right thereto would have been clear. He had taken the oath of office and held a commission from the only authority competent to issue it. The defendant in error is not entitled to recover any portion of the fees after the 30th June 1877. The learned judge therefore erred in entering judgment for any fees received'after that date. It must therefore be modified so far as to give the defendant in error a judgment for the sum of two thousand six hundred and eighty-seven dollars and ninety cents, with interest from the time payment was demanded.

And now, to wit, October 4th 1880, judgment reversed and set aside, a judgment is hereby entered in favor of the defendant in error for $3087.50, as of this date.