author: Mr. Justice Mercur

text:
    Kille et al. versus Ege et al.

    1. In an action for mesne profits none of the plaintiffs were originally parties to the action of ejectment, the record of which they gave in evidence, but were added two years after the writ issued; the original plaintiffs had no y^title and were nonsuited; the new plaintiffs did not derive title from the ori2gfginal plaintiffs, but recovered <m their own; there was no privity of interest ’or title between them, and their names had not been omitted through mistake. Held, that although the plaintiffs had been added without objection, yet they thereby acquired no rights relating back of their admission and the action commenced as to them when their names were put on the record.
    • 2. The verdict and judgment in the ejeotment are conclusive of the plaintiffs’ right to recover the mesne profits only from the time the action of ejectment commenced down to the execution of the habere facias, and where they claimed mesne profits .prior to the time of bringing their suit in ejectment, they opened the question of their title and of the possession .of defendants for such prior time, and neither the judgment in the ejectment nor any of the proceedings therein estopped the defendants from having their rights again passed upon or the same evidence again submitted to a jury.
    3. Defendants in an action for mesne profits had leased premises for a term of fifteen years, at an annual rental of $2000 besides the payment of royalty on each ton of iron ore mined and received the rent for one year, but the premises were in no way- injured and no ore was taken therefrom. Defendants, having been evicted by plaintiffs, became unable to fulfil their covenants in the lease and the lessees thereby acquired a right of action, against them for damages. Held, that the $2000 received by defendants did not establish a correct basis for fixing the just rental value of the premises, and it was error in the court below to instruct the jury that these circumstances did not affect the plaintiffs’ right to the rental received by defendants.
    4. Where there was a conflict of testimony, the question of fact as to the quantity of land of a certain tract embraced in a lease should have been left to the jury, and it was error in the court to assume that a certain number of acres were contained therein.
    5. To show the increased value given to premises by improvements in developing mines a witness was called who knew the premises before and after improvements were made, had large experience in ore and iron business, knew the character of the improvements, the ore banks in question, and was familiar with mining operations in the vicinity, Held, that the witness had sufficient knowledge to form an intelligent opinion of the value of the premises before and after development, and other evidence showing some of the improvements to have been of a permanent and valuable character having gone to the jury, the testimony of the witness should have been admitted.
    May 12th and 13th 1876.
    Before Agnew, C. J., Mercur, Gordon and Woodward, JJ. Williams and Paxson, JJ., absent. Sharswood, J., did not sit in this case.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1876, No. 101.
    . This was an action "of. trespass for mesne profits, brought by Caroline Ege, John W. Ege, Emma K. Ege, Joseph B. Haverstick and Mary C., his wife in her right, S. Kate Ege, George T. Ege, Robert S. Ege and Charles R. Ege, minors, by their guardian, Joseph B. Haverstick, against Charles Wharton and John T. Kille.
    The lands of which the mesne profits were claimed were recovered in an action of ejectment, brought on the 7th day of June 1872, by William Cox and others, against Edward Noble and others (see 29 P. F. Smith 15), in which action the parties plaintiff in this suit, the heirs of Elizabeth Ege, deceased, were admitted as plaintiffs, on the 24th of April 1874, and John T. Kille admitted to defend as landlord on the 12th of October 1874. The original plaintiffs were nonsuited .and’a verdict was found for the,new parties plaintiff on the 16th of October 1874, and possession given them on the 26th of same month.
    The mesne profits claimed were those derived from the ore mined and carried away from these lands by the defendants and their lessees, and the rents received by Kille under leases.
    It appeared that Kille, who claimed to own the lands in 1869, through his agent, Wharton, opened an ore bank thereon, and between November 1869 and October 1870, mined, carried away and sold ore to the value of $6950.55.
    That, on. the 21st of October 1870, Kille leased to the firm of Grinterman & Robertson a portion of these lands for a term of fifteen years, in which the firm bound themselves to mine a certain quantity of ore, and to pay to Kille 75, and after July 1st 1871, 50 cents per ton royalty thereon, and that, under this lease, from January 1871 to August 1874, Kille received a royalty of $6941.61.
    From another lease of a portion to James Lanagan, for a like term, the stipulated royalty being 50 cents per ton, Kille received between the 2d of July 1872 and 30th of September 1874, the sum of $6009.03. . ‘» ...
    On the 30th of January 1873, he leased to Seyfert, McManus & Co., 75 acres, for a term of fifteen years, at an annual rental of $2000, and 50 cents per ton royalty on every ton of ore mined and carried away in excess of 4000 tons. On this lease Kille received one year’s rent, $2000, but it was admitted that no ore was taken from the leased premises.
    Plaintiffs gave in evidence the record in the ejectment suit, and then proceeded to show how long the defendants had been in possession and the profits made by them from the lands.
    The defendants contended that the action of ejectment did not exist as to the Ege heirs .until the time they came upon the record, April 24th 1874, and that if the plaintiffs were permitted to show mesne profits anterior to this time, the defendants might show their title to the land as to such anterior profits. They also contended that plaintiffs had no claim to the rent paid by Seyfert, McManus & Co., and that defendants should be allowed for the improvements made upon the lands.
    The questions raised in the case will appear from the following rulings of the court below, upon the admission of evidence, the answers to points and charge to the jury:—
    The defendants offered to show by certain conveyances and drafts the location of the lands, and what portion of them claimed in the action of ejectment were embraced in the leases in question, for the purpose of showing title in the defendants in this case to the land for which mesne profits were sought to be recovered, prior and up to the time the plaintiffs proceeded in ejectment for its recovery, and in answer to their claim for mesne profits prior to said action.
    The court said: “ The offer proposes to go into the question of title prior to the action of ejectment. Now the record and proceedings, and record of trial in the ejectment, show that the same evidence of title was then introduced by the defendants on the trial and passed upon, and that the title on which the plaintiffs recovered extended far beyond the time within which, in this action, mesne profits are claimed. To admit the evidence would be simply to start upon a re-trial of the same questions as those actually tried and determined in the ejectment, and nothing more. We can discover no good or legitimate purpose in doing this, in the trial for mesne profits.
    “That part of the offer which proposes to go into the question of title is therefore rejected. But so much of the offer as proposes to prove that any part of the profits claimed was taken from land not embraced within the limits of the land recovered in ejectment, is admitted.”
    Defendants excepted, and bill sealed.
    Defendants then offered certain deeds of lands, and the considerations paid therefor, for the purpose of showing that defendants were boná fide purchasers in possession under title, or color of title, and to be followed by evidence of permanent improvements to the property, of which the plaintiffs seek to recover mesne profits.
    The court said: “ By reference to the record of the trial in ejectment, it will be found that the same deeds of conveyance were then introduced 'in evidence and passed upon, and we do not think it will aid us any in this trial to re-try the same questions then raised and passed upon. So far as the offer is to prove color of title, it is rejected, but so far as the offer is to show permanent improvements made by the defendants on the property, it is admitted.”
    Plaintiffs and defendants excepted, and bills sealed.
    E. E. Haskill, a witness on the stand, having stated that he had known the country where the ore banks of Ginterman & Robertson and Lanagan are located since 1838, and that he had been in the iron and ore business since 1856, the defendants proposed to prove by him the value of the land upon which these banks are located, with the knowledge that there was ore in it, but undeveloped, and what the value of it is now, with the improvements for mining ore erected on it, and this for the purpose of showing to what extent the property has been increased in value by the labor and expenditures of the defendants in developing the ore, and the improvements erected, and to show that the plaintiffs have not sustained any damage from the act of the defendants.
    Plaintiffs objected, and the court rejected the testimony.
    The eighth point of plaintiffs was as follows, with which is given the answer of the court:—

      8. In no ease are defendants entitled to credit for loose property, and temporary structures put and left on plaintiffs’ land by the defendants’ lessees, but the improvements, to entitle them to credit, must be of a permanent kind, evidently made for the permanent benefit of the land, and giving a permanent increase of value to it; and it is for the jury to say whether the improvements are, or are not, permanently beneficial to the land, and such as should entitle defendants to credit.
    Answer: “ This point is answered in the affirmative. The law is correctly stated.”
    The points presented by defendants and the answers of the court were:—
    1. The writ in ejectment to No. 230, August Term 1872, having originally been served in the names of the heirs of William Cox, deceased, who were nonsuited on trial of the ease, and a verdict and judgment in the case having been entered in favor of the heirs of Elizabeth Ege, deceased, who did not come upon the record as plaintiffs until April 24th 1874, the action did not exist as to them until that date.
    Answer: “ In a general sense this proposition is correct, but it must be understood that the moment the heirs of Elizabeth Ege came upon the record as plaintiffs, they became engrafted upon the action as such, and all the legal consequences of the action attached to them the same as if they had been of the original plaintiffs.”
    2. To entitle the plaintiffs to recover in this action the mesne • profits for the time anterior to the existence of the action of eject■ment, they must show their title and the possession of the defendants.
    Answer: “ This point is answered in the affirmative, and we think the plaintiffs have done this. They have shown the possession of the defendants and their lessees from the fall of 1869, and have .also shown their own title by the record and proceedings in ejectment. The verdict and judgment in their favor show the recovery of the title by the plaintiffs, and the charge of the court below and the assignments of error in the Supreme Court in affirming the judgment show unmistakably the character and extent of the title set up by the defendants in that trial to defeat the plaintiffs’ recovery.”
    3. The verdict and judgment in the ejectment are conclusive against the defendants only from the date of the action to the time when the plaintiffs were put in possession of the property and the evidence or notes of trial as kept by the court in that case cannot be resorted to, for the purpose of seeing what title the plaintiffs recovered on, or to show title in them before the action was in existence as to them.
    Answer: “ This point is affirmed generally. But where, as in this case, the record and proceedings in the ejectment show unmistakably the same continuous title in the plaintiffs down to the verdict and judgment from a time anterior to that for which mesne profits are claimed, although claimed anterior to the service of the writ of ejectment, the-defendants will not be permitted on the trial of the action for mesne profits to set up in defence the same title as that defeated in the ejectment. On the trial of a subsequent action of ejectment it would be different. By the record and proceedings in ejectment we take in not only thé verdict and judgment, but also the charge of the court below, the assignments of error passed upon by the Supreme Court and the opinion of the Supreme Court, all of which we think should be taken notice of in the action.” - .
    4. The action of ejectment having had no existence as to the plaintiffs prior to 24th April 1874, and they having been put in possession of the-property on 26th October 1874, and having shown no title in themselves prior to 24th April 1874, they can only recover in this action the profits received by the defendants from April 24th 1874 to October 26th 1874.
    Answer: “ Befused. We have already instructed you as to this.” 6. The lease to Seyfert, McManus & Co., providing for a rental of $2000 per annum, with the privilege of taking out ore therefrom in years succeeding that in which the rent may be paid, and it being admitted that none has been taken, and if the lease to them is on the Cox land, the recovery by the plaintiffs in the ejectment evicted Seyfert, McManus & Co., and made Mr. Kille liable to refund the $2000 they paid to him, and the plaintiffs cannot therefore hold him, in this action, responsible for the amount he received from Seyfert, McManus & Co. ' ' :
    Answer: “We cannot answer this point as. requested. It is true that the recovery by the plaintiffs, in the ejectment, operated as an eviction of the tenants, as between them and Kille, but whether or not Kille is liable or may ever be called upon to respond in damages to Seyfert, McManus & Co., does not affect the plaintiffs’ rights to the rental received by Kille from that part of the plaintiffs’ lands covered by the lease to Seyfert, McManus & Co.”
    8. The value .of the permanent. improvements put upon the ground in the form of machinery, buildings, and conveniences for the mining of ore, may be set off against the value of the ore in place before it was mined; and if the jury believe that the value of those improvements — machinery, buildings and conveniences — equalled or exceeded the value of the ore in place, then their verdict should be for the defendants.
    • Answer: “ This point is answered in the affirmative, with this qualification, however, that no improvements can be allowed for save such only as were put upon the ground prior to the-of June 1872, and which the jury are satisfied are of a beneficial, useful and permanent character. Improvements made and put upon-the ground after the -of June 1872 are not proper subjects of compensation as a set-off to the value of the ore in place, yet in so far as such improvements were used in carrying on and conducting the mining operations, the cost and expense of making and putting them on the ground should be taken into account by the jury in ascertaining the value in place*of the ore mined and carried away.”
    In the general charge, the court, Herman, P. J., said:—
    “From the conflict of the testimony,'we cannot instruct you peremptorily which is the true eastern boundary of the Louis Foulke tract, and therefore submit the matter to you, who are the proper persons to determine the fact.
    [“If you determine that the red marked line is the true eastern boundary of the Louis Foulke, then the Cox must come up to it; " and this would put fifty-two acres of the Seyfert, McManus & Co. lease on the Cox. But if you determine that the true eastern boundary of the Louis Foulke is the line as located by Evans, eighty perches eastward from the red marked line, then but two and a half acres of the Seyfert, McManus & Co. lease would be on the Cox. Thus, upon your determination of the true eastern boundary of the Louis Foulke will depend the proportion of the rents and profits of the Seyfert, McManus & Co. lease which the plaintiffs will be entitled to recover for.”]
    And again:—
    [“ The evidence shows that the defendants and their lessees made . improvements on the premises both before and after the time of bringing the action of ejectment. Whatever improvements of a permanent and valuable character the defendants or their lessees made and put upon the premises’prior to the time of bringing the action of ejectment, are proper and legitimate subjects of compensation to the defendants ; and their value to the plaintiffs, estimated in dollars and cents, must be recouped from and set off against the plaintiffs’ claim for mesne profits in this action.”]
    The verdict was for the plaintiffs, for $12,983.40.
    Defendants sued out this writ, and the errors assigned were 1, 2, 3, 4, 6, 6, the answers of the court to the points submitted by the defendant.
    7. The court’s answer to plaintiffs’ 8th point,
    8, 9. To the portions of the charge in brackets.
    10,11,13. The rejection of the offers of evidence on the part of defendants.

      Lemuel Todd and John Bays, for plaintiffs in error. —
    The action of ejectment was brought by the Cox heirs and decided against them, and that action was not therefore such notice as to debar Kille from setting off his improvements against a later claimant. Kille had no notice of the Ege heirs’ claim until April 24th 1874, and the action did not exist as to them until that date. In an action for mesne profits, the record of the judgment in ejectment is conclusive that defendants were in possession at time ejectment was brought, and also as to the title during the time laid in the demise, but not evidence of the length of time defendants were in possession : Bailey v. Fairplay, 6 Binn. 450. If plaintiffs ask for damages anterior to the service of the writ in ejectment they must show their title and the possession of defendants: Osbourn v. Osbourn, 11 S. & R. 58; Huston v. Wickersham, 2 W. & S. 313; Postens v. Postens, 3 Id. 183; Drexel v. Man, 2 Barr 271; Sopp v. Winpenny, 18 P. F. Smith 80. The action of ejectment is conclusive only from the time it is brought down to the execution of the habere, and the judgment therein is not evidence of any matter which came collaterally in question: Duchess of Kingston’s Case, 11 Harg. State Trials 261; Hibshman v. Dulleban, 4 Watts 191; Lentz v. Wallace, 5 Harris 414; Lamb v. Millar, 6 Id. 450; Martin v. Gernandt, 7 Id. 127; Ihmsen v. Ormsby, 8 Casey 201; Tams v. Lewis, 6 Wright 410; Lewis & Nelson’s Appeal, 17 P. F. Smith 165. The record of an action, founded on common law, consists of the writ, declaration, pleas and judgment: Erb v. Scott, 2 Harris 20. The record remitted from the Supreme Court simply shows the affirmance of the judgment in the court below. The bills of exception only become part of the record in the Supreme Court for purposes of review. Neither the opinion of the Supreme Court nor the assignments of error are returned as part of the record, and yet the court below say, from these plaintiffs have shown title anterior to the bringing of ejectment, and that these matters. should be taken notice of in this action. Seyfert, McManus & Co. paid $2000 rent, but no ore was taken. out by them; clearly Kille will have to repay this rent and recovery of it by the plaintiffs will subject him to pay it twice. Its reception by Kille did not injure plaintiffs. What are permanent improvements is a question -of law for the court and not a question of fact for the jury, and the court should have said that the “ machinery, buildings and conveniences for mining ore” were fixtures, and instructed the jury to allow defendants a set-off for their value : Christian v. Dripps, 4 Casey 271; Harlan v. Harlan, 8 Harris 306 ; Roberts v. Dauphin Deposit Bank, 7 Id. 71; Ewalt v. Gray, 6 Watts 427; Morrison v. Robinson, 7 Casey 459 ; Walker v. Humbelt, 5 P. F. Smith 408. It should have been left to the jury to ascertain the quantity of land of the Cox tract embraced in the Seyfert, McManus & Co. lease. Defendants should have been permitted to show by witnesses who were familiar with the land, the premises, their value and the improvements ; what was the value of the land when known to have ore on it, but not developed, and its value after the erection of improvements, to show plaintiffs had sustained no damage.

      S. Hepburn, Jr., and 8. Hepburn, for defendants in error.—

      The amendment of the record in the ejectment suit by adding the names of the Ege heirs after defendants in that suit had given notice in their abstract of title upon which they, would defend, that the Eges and not the Coxes were the owners of the land in dispute, was certainly proper: Alden v. Grove, 6 Harris 385; Kaul v. Lawrence, 23 P. F. Smith 416. The amendment would not have deprived defendants of any valuable right; they did not complain that it would work them any injury, and failing to do this or object to the amendment in the proper, action, it is too late im a collateral suit to remedy the omission, and deprive the other party of a right incident to and inseparable from his recovery: Hill v. Meyers, 10 Wright. 21; Beatty’s Adm’rs v. Burne’s Adm'rs, 8 Cranch 108. The action tried did exist from its date. The same defendants ■ upon whom the writ was served remained and knew as well of the action before Kille came upon the record as afterwards, and it was they,.not he, who improved after the writ of ejectment was served, and the additional plaintiffs were added with their knowledge and without objection. Plaintiffs do not contend that the record in the ejectment is conclusive of plaintiffs’ right to recover mesne profits or of their title for a longer period than from the date of the writ until the date of the habere facias, but they do hold that in an action for mesne profits, if the record and proceedings of the trial of the ejectment be offered in evidence,.and they conclusively show that the title of .the plaintiffs and defendants were distinctly put in issue and adjudicated, for. a period long anterior to the date of the writ, then the defendants are concluded from contesting that title, and the plaintiffs will be deemed .to have proved their title, for.the period determined by the ejectment, without other evidence.. The charge of the court below when reduced to writing and filed by request, and the notes of testimony so far as necessary to explain the charge, are parts of the record: Northumberland County Bank v. Eyer, 8 P. F. Smith 97 — 102; Downing v. Baldwin, 1 S. & R. 298; Munderbach v. Lutz, 14 Id. 125. The rent received by Kille from the Seyfert,-McManus & Co. lease, was-money received as profits from plaintiffs’ lands, was not his, and was certainly as fair an estimate of what profits should be paid plaintiffs as could be found. Its payment should not be delayed to abide the result of another trial between other parties which may never be brought: Breading v. Blocher, 5 Casey 349; Ranck v. Becker, 13 S. & R. 43. The improvements for which credit is allowed must'be permanent and beneficial : Jackson v. Loomis, 4 Cowan 168; and.their character as well • as value are questions of fact for the jury: Worthington v. Young, 8 Ohio 403. The evidence offered in the 13th assignment of error was simply an opinion, not a fact, and the value of an undeveloped ore bank that no human eye ever saw certainly cannot be proved as a fact from which a jury are to fix actual damages.
   Mr. Justice Mercur

delivered the opinion of the court, ■ October 9th 1876.

While due effect should be given to the statutes authorizing amendments, yet care must be taken that they be not so used as to pervert their true spirit. None of the defendants in error were originally parties to the action of ejectment, the record of which they gave in evidence. They were substituted some two years after the writ issued. The original plaintiffs had no title and were nonsuited. The defendants in error did not derive title from them, but recovered on their own title solely. It was in nowise connected with the original plaintiffs. The so-called amendment was not the addition of names omitted through - mistake, nor of parties holding any joint interest with the original plaintiffs. There was no privity of title or interest between them. They were strangers to each other’s claim. The substitution was not authorized by the statute. That question, however, is not now before us on bill of exceptions. The substitution having been made, and the record being given in evidence in a subsequent suit, we may declare its effect.

Amendments depriving the-opposite party of any valuable right shall not be allowed; hence, when the name of a person was added as plaintiff in ejectment after suit brought, it was held that, if at the time of the amendment the title of the new party was barred by the Statute of Limitations, he could not recover: Trego et al. v. Lewis, 8 P. F. Smith 463; Kaul et al. v. Lawrence et al., 23 Id. 410. It follows therefore that, although the defendants in error were substituted without objection, yet they thereby acquired no rights relating back of their substitution. As to them, the action commenced when their names were put on the record. The first assignment is sustained.

The 2d, 3d, 4th, 10th and 11th assignments will be considered together. The .action of -ejectment was a legal averment of the right of the plaintiffs therein to the possession of the land. By theft recovery that right was established. In this subsequent action for mesne profits, the verdict and judgment are conclusive of their right to recover damages from the time their action commenced-down to the execution of the habere facias possessionem: Drexel v. Man, 2 Barr 271. But when they sought to recover for damages or profits prior to their action, the verdict and judgment were not conclusive as to such prior time. They were then required to prove theft title; for the record only showed that they recovered the term mentioned, from their substitution: Hare v. Fury, 3 Yeates 14; Bailey et al. v. Fairplay, 6 Binn. 450; Osbourn v. Osbourn, 11 S. & R. 58; Huston v. Wickersham, 2 W. & S. 308; Postens v. Postens, 3 Id. 183; Drexel v. Man, supra ; Sopp v. Winpenny, 18 P. F. Smith 80.

The evidence in the action of ejectment by which the right of possession was sustained, must not be confounded with the right itself. The direct issue in the case was their right to possession at the time they came on the record. . That issue having been found in favor of the plaintiffs therein, cannot be questioned in the present case. But it is well settled-that the estoppel of a.judgment extends only to the question directly involved in. the issue .and not to any incidental or collateral matter, though it may have arisen or been passed upon. The Duchess of Kingston’s Case, 11 Harg. State Trials 261; Moulton v. Libbey, 15 N. H. 480; Campbell v. Consalus 25 N. Y. 613; Hibshman v. Dulleban, 4 Watts 183; Lentz v. Wallace, 5 Harris 412; Martin v. Gernandt, 7 Id. 124; Lewis and Nelson’s Appeal, 17 P. F. Smith 153.

It is urged that the charge of the court below, in the action of ejectment affirmed here, is a part of the record, and that it and the other proceedings in that case show the same title now set up by the plaintiffs in error was there adjudged to be invalid.

It is true the charge of the court and the evidence may be made a part of the record for the purpose of reviewing the correctness of the rulings in the particular case: Northumberland Bank v. Eyer, 8 P. F. Smith 97; but at common law they are no part of the record: Erb v. Scott, 2 Harris 20; Hageman et al. v. Salisberry, 24 P. F. Smith 280. They are preliminary or incidental to the main issue concluded by the verdict and judgment. For the purpose of enforcing the particular judgment they may be. deemed a part of the.record: Hageman v. Salisberry, supra. Their conclusive effect in a .collateral suit is another question.

• It was held in Packet Co. v. Sickles, 5 Wall. 592, and in Coleman’s Appeal, 12 P. F. Smith 252, that the plea of judgment recovered may be sustained by a mixed matter of record and of fact. But when extrinsic evidence is given for that purpose, it must be consistent with the record, and unless it be shown that the verdict and judgment necessarily involved its consideration, it will not be conclusive.

Thus far-we have considered the effect to be given to a judgment in those cases where one judgment is conclusive. The verdict and judgment in this ejectment did not necessarily involve'the title nor the possession prior to the commencement of the action. They were conclusive for the recovery of mesne profits only, and for that purpose only from the time of the commencement of the suit.

In a second action of ejectment between the same parties, the verdict and judgment would not be conclusive. Every fact and conclusion found in the first suit might be controverted in the second. Hence when, in this action, the defendants in error claimed for mesne profits prior to bringing their suit in ejectment, they opened the question of their title and of the possession of the opposite party for such prior time, as fully as it would have been by a second action of ejectment. Neither the prior judgment in ejectment nor any of the proceedings therein estopped the plaintiffs in error from having their rights again passed upon, nor from' having the. same evidence considered by another jury. The assignments are therefore substantially sustained.

The fifth assignment relates to the plaintiffs in error being charged in this action with the money which they had received from Seyfert, McManus & Co.

In an action for mesne profits the plaintiff may recover for the fair rent or yearly value of .the premises, and for injury done thereto: Huston v. Wickersham, supra. Compensation is the proper measure of damages: Morrison v. Robinson, 7 Casey 456. The action is equitable in its character: Zimmerman v. Eshbach, 3 Harris 417. Hence a boná, fide occupant under claim of title who has made permanent and valuable improvements, may show them to be a full compensation for the use of the premises: Morrison v. Robinson, supra. The fact that the plaintiffs in error had let the premises for a term of fifteen years at an annual rental of $2000, besides the payment of royalty on each ton of iron ore mined, and received the rent for one year, did not necessarily give the defendant in error the right to recover that sum. It appears that no ore was mined by the lessees during the time for which the plaintiffs in error are liable for mesne profits. By their eviction they became unable to fulfil their covenants in the lease. Their lessees acquired a right of action against them for damages which may equal or exceed the whole sum they have received. Then if the premises were in nowise injured by the lessees, and they took no ore therefrom, we cannot see that the $2000 received by the plaintiffs in error establishes a correct basis for fixing the just rental value of the premises. The receipt thereof under the circumstances establishes no just compensation for the rights withheld, nor for injuries sustained. The point covered by this assignment should have been affirmed.

We are not furnished with the draft showing the “ red marked line” referred to in the eighth assignment. We understand it is also called the “ Pine Grove line.” John Evans testifies: taking it for granted that the line marked with red marks is the western boundary of the Cox tract, there would only be about twenty acres of the Seyfert and McManus lease on the Cox tract.” David Peelor testifies, “ taking it for granted that the Pine Grove line is the western boundary of the Cox tract, there would only be about twenty or twenty-five acres of the Seyfert & McManus lease on the Cox lands.” Both of these witnesses were surveyors and had surveyed the lands in controversy. The number of acres was for the jury to find, and the learned judge erred in inadvertently assuming fifty-two acres to be the correct quantity.

The evidence covered by the thirteenth assignment was offered for the purpose of showing substantially the increased value given to the premises by the improvements and expenditures made by the plaintiffs in error in developing the mines. The witness knew the premises both before and after those improvements were made. He had had large experience in the ore and iron business. He knew the character of those improvements. He knew the ore banks in question, and was familiar with mining operations in that vicinity. ■He therefore, had sufficient knowledge to form an intelligent opinion of the value of the premises both before and after their development. Those two valuations being ascertained certainly threw some light on the value of the improvements. Other testimony had shown some of the improvements to be of such a permanent and valuable character as to make them the proper subject of consideration by the jury. Morrison v. Robinson et al., supra. We do not think the mode of proof was so objectionable as to justify the exclusion of the testimony.

In so far as the other assignments are not covered by what we have already said, they are not sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Miller’s Estate. Bair & Shenk’s Appeal.
    B. & S. were holders of a note of J. M., endorsed by A. M. Both J. M. and A. M. at different times made assignments for the benefit of their respective creditors, that of J. M. having been made first. B. & S. received a dividend on the note from the estate of J. M. Meld (reversing the court below), that they were entitled, in the subsequent distribution of the estate of A. M., to a dividend upon the whole amount of the note.
    May 13th 1876.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Appeal from a decree of the Common Pleas of Cumberland county: Of May Term 1876, No. 114.
    This was an appeal by Bair and Shenk from a decree of the court below confirming the report of the auditor appointed to audit the account of the assignee for the benefit of creditors of Amos Miller.
    The facts of the case appear in the opinion of the court.

      John Hays, for the appellants.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

Amos Miller made a voluntary assignment for the benefit of creditors on the 24th of October 1873. On distribution by an auditor of the balance in the hands of the assignee, Bair and Shenk, the appellants, presented a claim founded on a note for $3000 drawn by John Miller and endorsed by Amos Miller, which had become due and been protested for non-payment on the 1st of April 1873. It appeared that after making the note, and before the assignment of Amos Miller was executed, an assignment for the benefit of his. creditors had been made by John Miller. It appeared also that in a distribution of John Miller’s estate, the appellants had received a dividend on their claim of $399.60. The question presented was, whether the appellants were entitled to a dividend out of Amos Miller’s estate on the entire claim, embracing the principal and interest of the note, or on the balance remaining after deducting the dividend received from the assigned estate of John Miller. The auditor allowed a dividend only on the balance, and his report was confirmed by the Common Pleas.

In deciding the question, the auditor and the court below rested on the authority of The Bank of Pennsylvania v. McCalmont, 4 Rawle 307; and Perit v. Pittfield, 5 Id. 166. In the first of these cases it was held that the rule for making a dividend where more than one of the persons liable to the payment of a note or bill have failed, and made voluntary assignments of their property for the purpose of paying their respective debts and liabilities, is to take the amount actually due upon the note or bill at the times respectively, at which the first dividend is declared of each fund so assigned. The rule thus established was confessedly outside of any precedent, and was founded on what was assumed to be local practice. Judge Kennedy said: “ The rule possibly has been derived from that which seems to have been adopted in England in cases of bankruptcy, which is to take the amount of the debt actually due at the time of the creditor’s first proving it against the fund. The only difference between the two cases seems to be that in the case of bankruptcy the amount of the debt due at the time of the creditors first proving it, is taken as the sum for which a dividend shall be allowed, but in the cases of voluntary assignments here, the amount due at the time of declaring the first dividend of each fund respectively is taken as the sum on which the dividend is to be allowed. I do not see any sufficient reason why this rule, which has already been adopted in practice here, should not also be adopted by the courts.” In Perit v. Pittfield, the principle of The Bank of Pennsylvania v. McCalmont was followed without discussion.

In later cases, doctrines have been settled entirely inconsistent with the principle of these two precedents. Morris v. Olwine, 10 Harris 441, decided that a creditor by bond and notes secured by mortgage may have recourse, in the first instance, to the personal property of the debtor, which had been assigned for the benefit of creditors without preference; and that, though after an award by an auditor in his favor to a pro rata share of the personal estate, such a creditor, by direction of the court, proceeded upon the mortgage and recovered the greater proportion of his claims, he was still entitled to the pro rata dividend on his whole claim, and was not-limited to a pro rata share on his claim as reduced. A creditor who has a lien upon a particular portion of an assigned estate, and out of a sale of part of which he realizes a portion of his claim, is entitled to Ms pro rata dividend on the whole claim out of the general assets in the hands of the assignee to an amount sufficient to pay the balance of his demand in full, although a portion of the estate on which he holds the lien remains unsold : Keim’s Appeal, 3 Casey 42. A debtor executed a general assignment of all his estate in trust for the benefit of his creditors; subsequently, the assignor became entitled to a legacy, which was attached and recovered by one of the creditors for whose benefit the assignment was made. It was held that such creditor was, nevertheless, entitled to a dividend out of the assigned estate, on the whole amount of his claim at the time of the execution of the assignment: Miller’s Appeal, 11 Casey 481. It was said in that case, that “ a creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of the assigned estate; and the extent of his ownership is fixed by the amount of the claim when the assignment is made.”

Patten’s Appeal, 9 Wright 151, was perhaps a still stronger case. In the argument, the authority of The Bank of Pennsylvania v. McCalmont, 4 Bawle 307, and Perit v. Pittfield, 5 Id. 166, was there pressed upon the court in opposition to the doctrine announced in Miller’s Appeal. It was ruled that the detention by vendors of goods sold on the insolvency and assignment for the benefit of creditors by the vendees, did not rescind the contract of sale; that the vendors were entitled to pro rata distribution out of the assigned estate; and that where part of the goods had been delivered, and the balance which had been retained had been sold by the vendors, who applied the proceeds to the payment of the notes given upon the sale, leaving a balance still due, they were entitled to a dividend on the whole amount of their claim at the date of the assignment. In delivering the opinion, Judge Strong said: “If the beneficial ownership of property assigned in trust for creditors is not in the creditors for whose benefit the trust was made, it can be nowhere, for clearly it is not in the assignor, nor is it in the trustee; surely it cannot be maintained that when an assignment has been made in trust for creditors, it does not operate as much for the benefit of a creditor who holds a collateral security for the debt due him as for the benefit of the creditor who holds no collateral.” These eases have been emphatically endorsed by this court in Hess’s Estate, 19 P. F. Smith 272; Brough’s Estate, 21 Id. 460 ; and Graeff’s Appeal, 29 P. F. Smith 146. Brough’s Estate, indeed, may be regarded as decisive. Brough being indebted to Hinchman, gave him his own note with endorsers, and the note of Gabley as collateral security. Brough afterwards assigned for the benefit of creditors. The notes were not paid at maturity, but afterwards payments on account were made by the endorsers. In the distribution of Brough’s estate, it was held that Hinchman was entitled to a dividend on the amount due at the date of the assignment, irrespective of the intervening payments.

Upon authority the rights of the appellants would seem clear. They would seem clear also in view of a principle so simple and palpable as to be obvious to the plainest comprehension. If the estates of the two debtors had been adequate to the purpose, the appellants had the right to demand payment of their debt in full. That is, if each estate had been large enough to pay a dividend of fifty per cent., the dividends from both, if apportioned to it, would have satisfied the claim. By the rule which was adopted by the court below, if John Miller’s estate had paid fifty per cent., and a dividend of fifty per cent, had been subsequently declared in Amos Miller’s estate, the appellants would have been confined to a pro rata distribution on the balance remaining due, and one full quarter of their claim would have been left unpaid. Surely a rule that would so divert funds admittedly adequate as to make the satisfaction of an uncontested debt impossible, would be neither sound nor safe nor just.

The decree of the Common Pleas is reversed at the costs of the appellees; and it is now ordered that the scheme of distribution reported by the auditor and confirmed by the court be so modified and corrected as to allow to Bair and Shenk, the appellants, a dividend upon the whole amount of their original claim, with interest and cost of protest.


author: Per Curiam. —

text:
    Woods’s and Brown’s Appeal.
    1. Where a proper book is kept for the purpose of showing when a mortgage is left for record, the lien of the mortgage begins from the time of the entry in this book'and the delay of the recorder in recording or indexing a mortgage will not divest its lien.
    2. It is not incumbent upon the mortgagee to supervise the recorder and see that the mortgage is recorded and indexed.
    May 15th 1876.
    Before Ag-new, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    This was the appeal of W. H. Woods and W. M. Williamson, doing business as Woods & Williamson, and of Lewis Brown and William Hibbard, trading as Brown & Hibbard, from the decree of the Court of Common Pleas of Huntingdon county, in the distribution of the proceeds of the sheriff’s sale of the real estate of John S. Bare, No. 119, of May Term 1875.
    In 1872, John S. Bare, trading as John S. Bare & Co., in Mt. Union, Huntingdon county, owned two tracts of land, one of which Bare purchased of Henry C. Shaver and John A. Gayton, trustees to sell the real estate of Henry Shaver, deceased, for which he paid $800, paying one-third when he received possession, and giving his mortgage and judgment bond to said trustees for the balance of the purchase-money.
    The day the mortgage was given, the 15th of July 1872, Gayton, one of the mortgagees, took the mortgage to the office of the recorder of the county, and handed it to the recorder, taking from him his receipt that it had been left with him for record; and from the evidence it appeared that the mortgage was entered in the entry-book kept for that purpose, on that same day, but was not recorded until about the 4th of December 1872, nor indexed until April 5th 1873, nearly nine months afterwards, when it was indexed by a new recorder.
    On the 22d of November 1872 Bare gave his judgment note to Woods & Williamson for $200, on which judgment was entered on the 4th of December 1872.
    On the 7th day-of December 1872, Brown and Hibbard, obtained judgment against Bare, on an account for merchandise, and on the 30th of March 1873 issued execution on .this judgment.
    On the 9th of April 1873, Shaver and Gayton, the mortgagees, entered judgment upon the judgment bond accompanying the mortgage, and on the same day issued execution.
    The two tracts of land belonging to Bare were sold on these executions, the mortgagees’ tract bringing $610 and the other $450, which amounts, upon the appearance of a contest between the mortgage and the judgment creditors, the sheriff turned into court, whereupon an auditor was appointed to distribute the fund.
    Before the auditor the judgment creditors contended, that they had not had notice, either actual or constructive, of the mortgage; that they believed these tracts of land to have been unencumbered, and that the Mortgage Index did not show anything recorded against them until after the execution of the judgment creditors had issued.
    The question then arose, was the mortgage legally recorded,, and the auditor decided that it was not, and that the subsequent judgment creditors should have priority.
    The mortgage creditors excepted to the report of the auditor, alleging that he erred in not appropriating to the mortgage of Henry Shaver’s trustees the sum of $534, with interest from the 22d day of February 1872, said mortgage being for the .purchase-money, duly recorded, and the first lien on the land therein, described, the said land having been sold by the sheriff for a sum sufficient to pay the said mortgage in full, as appears by the sheriff’s return, and the testimony attached to the report of the auditor.
    The court below sustained the exceptions, and. decreed that the prothonotary should redistribute the fund, which was accordingly done, awarding to the mortgagees the bulk of the fund, and the balance in part payment of the judgment of Woods & Williamson.

      The judgment creditors appealed, and assigned for error this decree of the court.

      W. S. Woods, for appellants. —
    A recorded mortgage not properly indexed is good as between the mortgagors and mortgagees, but not as to subsequent bond, fide creditors or purchasers without actual notice of the mortgage : Speer v. Evans, 11 Wright 141; Luch’s Appeal, 8 Id. 526 ; Bear v. Patterson, 8 W. & S. 233. It was the duty of the mortgagees to see that the mortgage was properly recorded and indexed : Mann’s Appeal, 1 Barr 27 ; Bellas v. M’Carty, 10 Watts 26; Smith’s Appeal, 11 Wright 140; Ridgway Budd & Co.’s Appeal, 3 Harris 182 ; York Bank’s Appeal, 12 Casey 461; Hulings v. Guthrie, 4 Barr 124; Jaques v. Weeks, 7 Watts 261; Rickert v. Madeira, 1 Rawle 325 ; Semple v. Burd, 7 S. & R. 290 ; Friedley v. Hamilton, 17 Id. 70.

      8. T. Brown and J. M. Bailey, for appellees. —
    The entry book in which the entry was made on the receipt of the mortgage was a book publicly kept in the office for that purpose, in its regular place, and showed the number, names of parties and date of the mortgage and when it was left for record. These entries in a book thus kept are in compliance with the Act of Assembly, March 28th 1820, Purd. Dig. 478. The mortgage commenced its lien the moment it is left for record and in endorsed by the recorder and entered upon the recorder’s book: Musser v. Hyde, 2 W. & S. 314; Brooke’s Appeal, 14 P. F. Smith 127.
   The judgment of the Supreme Court was entered May 22d 1876,

Per Curiam. —

We are of opinion that the entry for record in the proper book kept for the purpose of the mortgage of John S. Bare to Shaver and Gayton, gave it a lien which was not divested by the delay of the recorder of deeds in recording and indexing the mortgage. Under the law the lien of the mortgage begins when it is left for record and entered in this book, which the law requires to be kept for the purpose of showing what deeds or mortgages are left for record. It is not so easy to see on what principle a duty rests on the mortgagee to supervise the actions of the recorder, and to see that he makes the record and indexes it immediately. The law having provided the entry-book to give notice of the fact that the instrument is left for record, the rest depends on the number to be recorded, and the force of the recorder to write up the record books.

Decree affirmed with costs and appeals dimissed with costs to'be paid by the appellants.


text:
    Huntingdon and Broad Top Mountain Railroad and Coal Company versus Decker.
    1. The declarations of an agent made at the time of the particular transaction, -while acting within the scope of his duties, may be given in evidence against his principal; otherwise, if made after the transaction is fully completed and ended.
    2. The declarations of officers of a corporation rest upon the same principles as apply to other agents.
    3. Where a railroad company knowingly employs a conductor who is unfit
    for' his position, it is responsible for his negligence to a fellow-servant, and knowledge in a superintendent who possesses general powers of management is knowledge in the company. 4

    4. Where evidence tending to prejudice or affect the jury, and to impair the effect of the evidence of a material witness in regard to other facts (properly in evidence) has been improperly admitted, its withdrawal by the court after argument upon it to the jury by counsel, does not cure the fault of its admission.
    5. In an action for damages arising from an accident caused by the negligence of a railroad company’s servant, the court below admitted as evidenoe of the company’s knowledge of this servant’s unfitness, a statement of their superintendent made on the day after the accident: Held, to be error.
    May 16th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas of Huntingdon county: Of May Term 1876, No. 1.
    Case by Mary Decker against the Huntingdon and Broad Top Mountain Railroad and Coal Company, to recover damages for herself and her two minor children for the death of her husband, Adolphus Decker, who was killed in a collision upon the defendant’s railroad.
    Decker was engineer on the locomotive of a freight train on the defendant’s road, and was killed on November 21st 1872, by a collision between his train and another train on the same road. At the time of his death he was running upon what was called the Cumberland coal train No. 2, from Huntingdon to Mt. Dallas. That train left Huntingdon on the morning of the day of his death, and when the collision took place was running on its schedule time, and in all respects according to orders. On the day of the accident, the “local freight” train (running from Mt. Dallas north) with which the collision occurred, was behind time, and in such case it became the duty of the conductor of that train, Jacob Bowser, to keep out of the way of other trains. Bowser was well aware of this rule, and was besides notified, before leaving Mt. Dallas, by a telegraphic order from the superintendent of the company, that the Cumberland coal train No. 2 would be on the road for that day. This order was as follows:—
    . “ Telegraphic Train Order
    No. 2 Coal Train will be represented. Run accordingly.
    J. McK.
    “Correct. J. McK.”

      Bowser was also killed in the accident, and this order was found in his pocket after his death. .
    It appeared, from the testimony of the engineer of Bowser’s train, that when this order was handed to Bowser he mis-read it, as if it had been: “Coal Train No. 2 will not be represented,” &c. Then, instead of awaiting Coal Train No. 2 at Piper’s run, he pushed on to Riddlesburg and, solely in consequence of this mistake or disobedience of orders, the collision in which Decker was killed occurred between Piper’s run and Riddlesburg.
    At the trial, the plaintiff offered to prove by John Chappell that, on thpiday of the accident, a few hours after it ■ occurred, he met Mr. McKillips, the superintendent of' the defendant company, who said Bowser had gone against his orders; that witness replied that this was not the first time Bowser had done this, and then McKillips said, “Don’t you know that I have discharged him three or four times for getting drunk and disobeying orders ? But he would promise to obey orders, and I would employ him again,” for the purpose of shoAving negligence on the part of defendant in retaining in their employ a man Avhose intemperate habits were known to the superintendent.
    The defendant objected to proving conversations with superintendent McKillips, he being-a competent witness, and such proof being inadmissible to contradict him, if he should deny the matter alleged.
    The' evidence was admitted and bill for defendant sealed.
    The admission of evidence under this offer was the subject of the first assignment of error.
    The evidence given by the witness before this offer Avas made, and afterwards, in pursuance of it, shoAved that the conversation between the witness and the superintendent took place on the day after the accident. There was some contention in this court as to whether the offer Avas of a conversation Avhick took place on the day of, or the day after, the accident. This court took the latter view of it.
    The plaintiff offered to prove by the same witness that McKillips, as superintendent, had the entire control and management of the road, its hands, machinery, trains, &c.; that he employed Bowser, the conductor of the local freight, through whose negligence, in part, it is alleged the plaintiff’s husband was killed; that Bowser was a reckless conductor, and of intemperate habits; that he had been repeatedly discharged by McKillips for disobedience of orders and drunkenness, and employed again by him, after notice from the engineer of Bowser’s train that he would leave the service of the company unless he Avas put on another engine or Bowser was discharged, and that-McKillips promised to see what he could do, and said, “ Wait a littleand that by the negligence of either McKillips or Bowser, or both of them, the plaintiff’s husband was killed.

      Defendant objected on the ground, (1) that previous special acts of incompetence are not matters for the-jury as to general character, and for the further reason that there could be no recovery against the company for an injury done to one servant by the carelessness or mistake of another in the same service; and (2) that no blame having been shown to. attach to any other person than Bowser, it is only his general character for negligence and unfitness that can be shown, and only when offered in connection with proof that the defendant had previous knowledge of such unfitness.
    The evidence was admitted, and a bill for the defendant sealed. This was the subject of the second assignment of error.
    The plaintiff further offered to prove by John Hughes that the railroad company, defendant, employed as their superintendent, John McKillips, a man of known intemperate habits, and committed to him the general management of the road, covering the employment and discharge of all hands, the making of schedules and the running of all trains; that Bowser’s train, on the day of-the accident was not running on schedule, but on orders from McKillips, who was under the influence of liquor on that day, and that for years before the accident the general reputation of McKillips for fitness and competency for the position he held was bad.
    This was offered to show negligence on the part of the defendant in employing an unfit superintendent; and also to show such personal negligence on the' part of the superintendent on the day of the accident as contributed to the death of the plaintiff’s husband. This evidence was objected to by the defendant.'
    This was the third error assigned.
    The plaintiff also offered to prove by W. H. Fisher that on the 19th April 1870, and from that time until the 29th July 1870, he was the engineer of Bowser’s train; that Bowser’s character as a conductor was that of a reckless, careless man; that he (the witness) complained of him to John McLaughlin, the train master, three different times; that he afterwards complained of him to Mr. McKillips, the superintendent, and that Mr. McKillips told him that McLaughlin had spoken to him about it; and that he (the witness) left the road or left that train on account of Bowser’s carelessness or recklessness ; that Bowser’s general reputation as a railroad man was that of one who was unfit for the position of conductor; to be followed by evidence that Bowser continued to bear that reputation up to the time of the accident at which Decker was killed. This was objected to on the ground that the time during which his character was proposed to be proven, being more than two years before the accident occurred, was too remote to be evidence. The evidence was admitted and a bill sealed; this constituted the fourth assignment of error.
    A very large amount of testimony was introduced under the third offer above, on the subject of the superintendent’s competency, and much time during the trial (which lasted for several days) was taken up by this question. McKillips himself was also a witness, and testified as to material points in the case.
    The court (Dean, P. J.) charged the jury that the general rule is that where several persons are employed as workmen in the same general service and one of them is injured through the carelessness of another the employer is not responsible; but that if the jury believed that Bowser was incompetent and unfit for his position and was known to his employers to be so, the defendant would be responsible ; and further charged:—
    “ As to the evidence relating to McKillips’s habits rendering him unfit for his position, we withdraw that evidence entirely from your consideration. It was admitted by us in view of the fact that at an early stage of the case it was urged by plaintiff that the accident might have been caused by clashing or contradictory orders issued by McKillips. From the evidence here in the case on both sides the orders to Bowser were proper and intelligible, and you would be bound to so find from the evidence, because the evidence is undisputed, that from no direct act of McKillips did the accident occur. This being the case his char'acter and habits have nothing whatever to do with the issue — they have no bearing on it, and you will dismiss from your minds any impression made by the testimony in this particular, with reference to McKillips’s habits and unfitness. It was received in view of another theory which it was thought might be drawn from the evidence. You will determine just the question whether McKillips, prior to the accident, knew that Browser was reckless and incompetent, or drunken, to an extent which unfitted him for the position.”
    There was a verdict for the plaintiff and judgment thereupon. The defendant below took this writ of error. The first four assignments of error respectively were to the admission of evidence as above shown.

      S. L. Brown (with him J. M. Bailey and J. H. Growen), for the plaintiff in error. —
    The evidence as to McKillips’s competency was discussed at length to the jury. It was then too late to withdraw it: Penna. Railroad Co. v. Butler, 7 P. F. Smith 335; Del. & Hud. Canal Co. v. Barnes, 7 Casey 193. There is no rule of law that an employer is bound to employ none but skilful servants: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384; Weger v. Penna. Railroad Co., 5 P. F. Smith 460; Caldwell v. Brown, 3 Id. 456.

      B. M. Speer (B. S. McMurtrie with him), for defendant in error. —
    As to the first assignment, the objection made admits the facts, but urges that the plaintiff below was bound to call McKillips to prove them. If the suit had been against McKillips, his admissions would have been evidence against him ; but he was the company ; its knowledge could only be shown by showing his knowledge. His knowledge was one of the issues of the case: Frazier v. Penna. Railroad Co., 2 Wright 111. If the objection is sound, proof of his knowledge would have become impossible, had he died before the trial: Laning v. New York Central Railroad Co., 49 N. Y. 45, is directly in point. The evidence as to McKillips, having been withdrawn, could not have injured the defendant; for it touched the right to recover and not the question of damages. It did not tend to inflame the damages as in Penna. Railroad Co. v. Butler, supra. In Del. & Hud. Canal Co. v. Barnes, supra, the evidence was not withdrawn.
   Mr. Justice Mercur

delivered the opinion of the court, October 9th 1876.

The first assignment of error is to the admission of the declarations of the superintendent of the company, made on the day after the accident.

It is a well-established rule that the declarations of an agent, made at the time of the particular transaction which is the subject of inquiry, and while acting within the scope of his authority, may be given in evidence against his principal, as a part of the res gestee. It is equally as well settled that the declarations of an agent, made after the transaction is fully completed and ended, are not admissible: Magill v. Kauffman, 4 S. & R. 320; Hough v. Doyle, 4 Rawle 291; Clark v. Baker, 2 Whart. 340; Bank of Northern Liberties v. Davis, 6 W. & S. 285; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339. The declarations of officers of a corporation rest upon the same principles as apply to other agents. Idem.

A question was raised whether the declarations testified to by John Ohappel were not made on the day of the accident and immediately thereafter. A reference to his testimony clearly shows them to have been made on the next day. After he had testified to a conversation he had had with the superintendent on the day or evening' of the accident, and before the evidence covered by this assignment was offered, the question was put to him, “Did he say anything about Bowser having disobeyed orders ?” To this the witness answered, “He did not say that until the next day.” Again, after the court decided the evidence admissible, the first question put to him was, “You stated you had a conversation with McKillips the day after the accident about Bowser?” To this the witness answered, “Yes,” and proceeded to narrate it. The objection is not to proving the fact of the superintendent’s knowledge of Bowser’s improper conduct and habits, but to the mode of proof. The evidence ought not to have been received.

We see no error in admitting the evidence covered by the second and fourth assignments. It was clearly competent to prove Bowser’s accustomed disobedience of orders and his habitual drunkenness ; that these facts were known to the superintendent, who had the entire control and management of the road, including the right to employ and to discharge conductors and hands.

Where a railroad company employs a conductor who is unfit for the business and knows his unfitness, it is chargeable with the consequences of the conductor’s negligence, even to one employed in the same general service. Knowledge of the superintendent, possessing the general powers stated, is knowledge to the company: Frazier v. Pennsylvania Railroad Co., 2 Wright 104; Caldwell et ux. v. Brown et al., 3 P. F. Smith 453; O’Donnell v. Allegheny Valley Railroad Co., 9 Id. 239; Ardesco Oil Co. v. Gilson, 13 Id. 146; Patterson v. Pittsburgh & Connellsville Railroad Co., 26 Id. 389. When a conductor is shown to be habitually intoxicated, it raises a presumption of negligence in case of accident: Pennsylvania Railroad Co. v. Books, supra.

The third assignment relates to the incompetency of the superintendent on the day of the accident. Unless some act of his contributed to the accident, it mattered not what his habits were. Hence no evidence should have been received of his general incompetency, unless it was shown that it contributed to the injury. In this case it is shown that the order of the superintendent was correct and proper. It is shown that the collision was caused by the carelessness of Bowser in not correctly reading the order, or in not obeying it. There was therefore error in receiving evidence of his incompetency. It is true, when the court charged the jury, it withdrew from their consideration the evidence tending to show him unfit for the position; but did this cure the evil ? In Shaeffer v. Kreitzer, 6 Binn. 430; Nash v. Gilkeson, 5 S. & R. 352; Ingham v. Crary, 1 Phila. R. 388, it was held that when evidence had been improperly admitted which was calculated to affect the minds of a jury, the error was not cured by the direction of the judge that it should not be regarded. In Unangst v. Kreamer, 8 W. & S. 391, and in Miller v. Miller, 4 Barr 317, the former cases were somewhat modified; but in the Delaware & Hudson Canal Co. v. Barnes et al., 7 Casey 193, all the cases were reviewed. The cases are there distinguished, and it is shown that in both of the latter the evidence was withdrawn from the jury immediately after it had been given. The manifest reasoning of the court was to hold that whenever the testimony received was of such a character as to inevitably tend to prejudice the minds of the jurors, the error was not cured by the court telling them, after the argument had closed, not to consider the testimony. In this case the evidence had undoubtedly produced an impression on the mind of the jury. It was calculated to impair the effect of his testimony in regard to other facts in the ease. Although the court did say to them that his character and habits had nothing to do with the issue, and that they should dismiss from their minds any impression made by the testimony in this particular,” yet in so far as it. affected his general reputation as a witness it was ..not withdrawn, nor could its effect be entirely removed. r •

Under the whole evidence and charge of the court we discover no substantial error in the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Borie versus Crissman et al.

    Where a life tenant leases a farm for a term, reserving a rent in kind and dies during the term, under the provisions of the Act of February 24th 1834, the administrator of the life tenant is entitled to the rent which has accrued at the time of the death of the life tenant and the balance goes to the remainderman.
    May 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Blair county: No. 85 of May Term 1876.
    This was an amicable action of debt on a bond brought by 0. L. Borie, trustee of Louis & Trotter, against Frederick Crissman, administrator of Catherine Crissman, deceased, and John B. Westley, who was the surety on the bond, in which a case was stated for the opinion of the court substantially as follows:—
    Daniel Crissman, of Tyrone township, Blair county, died in 1838, leaving a will in which he devised to his wife, Catherine Crissman, all the profits and income arising from his real estate during her natural life, and the remainder, subject to the above estate to the widow, to his minor children, who in the lifetime of the widow sold all their interest to the plaintiff.
    On the 20th of December 1873, Mrs. Crissman leased said real estate, consisting of a farm, to George W. Kyper, for the term of one year, to commence April 1st 1874, in consideration of which lease Kyper was to give to Mrs. Crissman two-fifths of all the spring grain and one-third of all the fall grain raised on said farm, to be delivered at Altoona or Tyrone Mills, free of charge. There were other reservations as to portions of the fruit, and conditions as to disposition of straw and hay, and pasture of cattle, having no particular bearing on the question in the case.
    Mrs. Crissman died intestate,, on the 18th of September 1874, and her son Frederick Crissman was appointéd her administrator.
    The spring grain consisted of Indian corn and oats, that had been planted and was growing before the 1st of June 1874, and the fall grain, of wheat that had been sown and was growing before the 12th of September 1874; and the landlord’s share, under said lease, was 360 bushels of corn, worth $135, and of oats 37 bushels, worth $22.20, which share was delivered to Frederick Crissman, administrator, upon his giving to plaintiff the bond on which this suit is founded.
    If the court should be of the opinion that the aforesaid landlord’s share of the corn and oats should be delivered to said administrator of the estate of Catherine Crissman, deceased, as assets of said estate, then judgment to be entered for the defendants; if not, 'then judgment to be entered for plaintiffs for $157.20, if the court be of the opinion that the whole of said corn and oats should belong to plaintiff; or for a proportional. part with interest, if the court should be of opinion that any portion should belong to plaintiff. The costs were to follow the judgment, and either party reserved the right to sue out a writ of error.
    The court, Dean, P. J., ordered judgment to be entered on case stated for defendants.
    Plaintiff assigned for error this order of the court.
    ■ The parties also asked the court to determine the ownership of the wheat and rye sown in the fall a few days prior to Mrs. Crissman’s death and harvested in July 1875, of which the landlord’s share amounted to $143.20.

      R. M. Speer and R. S. McMurtrie, for plaintiffs in error.—
    The widow had demised the real estate for a rent in kind, and having parted with the possession, she is not entitled to emblements, but only to that portion of the rent which had accrued at the time of her death. At .common law there could be no apportionment of rent by time; but by statutes in England (11 Geo. 2, ch. 19, sec. 15, and 4 Wm. 4, ch. 22), and by similar statutory provisions or usage in this country, there is always an apportionment in such cases, the lessee being liable to the representatives of the deceased life tenant for the rent until he died and to the heir afterwards: 1 Parsons on Contracts 516; Ghreen v. Osborn, 17 S. & R. 171; Ex parte Smyth, 1 Swanst. 337; Williams on Real Property 58; 2 Sharswood’s Blackstone 122; 3 Kent’s Com., 9th ed. 614; Blight v. Blight, 1 P. F. Smith 420. The 14th and 15th sections of 11 Geo. 2, ch. 19, are in force in Pennsylvania: Roberts’s Digest 237. Under the Act of February 24th 1834, executors or administrators of any tenant for life who shall die before or on a day on which any rent was reserved, &c., may recover the whole or a proportion of the rent, “according to the time 'elapsed at the death of said tenant for life:” Smith v. Wistar, 5 Phila. R. 145; Henderson v. Boyer, 8 Wright, 220. Rent not due is an incident of the reversion: Evans v. Hamrick, 11 P. F. Smith 19; Bank of Pennsylvania v. Wise, 3 Watts 394. Rent has not accrued until it has become due and payable: Garrett v. Dewart, 7 Wright 348. The plaintiff is entitled to the whole of the landlord’s share of the fall crop of 1874, harvested in 1875: Lamberton v. Stouffer, 5 P. F. Smith 284.

      D. J. Neff and JR. A. Clarke, for defendants in error. —
    The doctrine of the apportionment of rent does not'apply in this case. Mrs. Crissman was cultivating the land by paying Kyper with a portion of the crop instead of money, the almost universal method of cultivating farms in Pennsylvania. Kyper was a cropper, not a tenant. He had no interest in the.land, but received his "share of the crops as the price of his labor. The possession is still in the owner of the land, who- can alone maintain trespass: Fry v. Jones et al., 2 Rawle 12 ; Adams v. McKesson’s Executrix, 3 P. F. Smith 83. The crop having been sown or planted before the death of the widow, her share of it was emblements, whether it was to be delivered to her before the end of the year or not. Assuming that between the widow and the tenant her share may be called rent, between her and the remainderman it is emblements. No case can be cited where a rent payable in kind was apportioned between the remainderman and the representatives of the tenant for life.
   Mr. Justice Gordon

delivered the opinion of the court, October 9th 1876.

The rent reserved, in the lease of Mrs: Crissman, to G. W. Kyper, was in kind; the grain and hay to be delivered at Altoona, after they were harvested and prepared for market. At that time, then, was the rent due, and not before: Lamberton v. Stouffer, 5 P. F. Smith 284. In the meantime, before the grain was harvested and ready for delivery, Mrs. Crissman, the life tenant, died. Under these circumstances, •were the rule of common law still in force, the rent would fall to the reversion: 2 Black. Com. 175-6. Indeed, the sub-tenant might have abandoned the premises and paid rent to no one. To remedy this evil, the statute of 11 Geo. 2, ch. 19, sec. 15, provided that the executor of the life tenant should be entitled to recover a rateable proportion of the rent accruing between the last day of payment and the death of the lessor: Id. 124. So our Act of 1834, secs. 7 and 30, secures to the executor or administrator of the life tenant, an apportionment of rent accruing for the “last year or quarter of a year or other current period of payment.” The current period, in the case in hand, was the whole of the year for which the lease was drawn; the rent, inter alia, two-fifths of "the spring and one-third of the fall grain, to be delivered as in said lease stated. The combined value of these products would be the rent for the current period, and it ought to be apportioned according to the theory above stated. So, that part of said rent now in the hands of the administrator, and which is the subject-matter of the case stated, should be divided between the parties, in the same proportion that the time, from the beginning of the lease to the death of Mrs. Crissman, bears to the whole year.

The judgment is reversed and a procedendo awarded.


author: Mr. Justice Paxson

text:
    Halfpenny versus Bell, to the use of Apsley et al.

    1; Bell sued Halfpenny on a single bill; at the trial Halfpenny offered to set off damages arising from a breach of a sealed contract between them, entirely disconnected with the note in suit, which offer was refused; Held (reversing the court below), that such damages could properly be set off.
    2. Matters ex contractu arising out of a different transaction from the one in suit may be proved by way of set off.
    May 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1876, No! 3.
    Debt by B. E. Bell, to use, &c., against John Halfpenny, on a single bill, dated October 22d 1873, payable one day after date. The defendant pleaded “Never indebted,” and “Payment, with leave,” &c.
    At the trial, after the bill had been placed in evidence by the plaintiff, the defendant offered the following agreement, to be followed by evidence that a large amount of damages had been done by plaintiff to defendant’s land, by reasbn of floating logs down the stream, mentioned in the agreement, for the purpose of showing a set off to an amount equal to, or greater than, the note in suit.
    “ This indenture, made the 13th day of June, A. D., One Thou- ■ sand Eight Hundred and Sixty-eight, between John Halfpenny and Daniel Nole, the firm of Halfpenny & Nole, of the Township of Antis, County of Blair, and State of Pennsylvania, of the one part, and Benjamin E. Bell, of the Township, County and State aforesaid, of the other part; Whereas, the said Benjamin F. Bell is seized in fee of and in a certain tract, piece or parcel of land, situated in said Township of Antis, and having thereon erected a saw mill, at the mouth of a certain (run or stream of water, known as Laurel Run, and whereas, the said Benjamin F. Bell is also seized in fee of and in certain other tracts of timber land, situated on the headwaters of said Laurel Run, the timber from which said tracts of land he is desirous of floating or driving down the said Laurel run to the aforesaid saw mill, and whereas the said firm of Halfpenny & Nole is seized of and in fee of a certain intermediate tract of land on said Laurel Run: Now this indenture witnesseth that the said Halfpenny & Nole for divers good causes and considerations, and more especially for and in consideration of One Dollar to them in hand, paid by the said Benjamin E. Bell and his heirs and assigns the full and uninterrupted usé, liberty and privileges of, and passage via, and along said Laurel Run for the purpose of clearing said run or stream of water of brush, logs, stones, drift, or other obstructions of any kind whatsoever, and also for the purpose of floating or driving timber as aforesaid from said tracts of timber land to said saw mill together with ingress, egress, and regress to and for the said Benjamin E. Bell his heirs and assigns and his or their workmen and employees at all' times and seasons during the term hereinafter mentioned through the land of the said Halfpenny & Nole along said Laurel run and its banks to and for the purpose hereinbefore mentioned to have and to hold all and singular the privileges aforesaid, to him the said Benjamin F. Bell, his heirs and assigns to the only proper use and behoof of him, the said Benjamin F. Bell, his heirs and assigns for and during the term of fifteen years in common with them, the said Halfpenny & Nole, and their heirs and- assigns. Provided that the said floating or driving of logs shall not at any time be allowed to work, or cause injury or detriment to said Halfpenny & Nole and that any accidental injury shall be promptly repaired by the said Benjamin F. Bell; injury from floods or other natural causes excepted. In witness whereof the said parties have hereunto set their hands and seal the year and day first above written.
    Witness present John Halfpenny, [l. s.~
    (Signed,) W. H. Ebaugh. Benjamin F. Bell, [l. s.°
    The offer was objected to, “ first, because the offer is to prove unliquidated damages; and, secondly, because the offer is to prove a set-off arising out of a distinct and separate cause of action, not relating to the subject-matter of the present cause.”
    No objection appears to have been taken to the mention in the agreement of one Nole, who, however, does not seem to have signed the agreement.
    These objections were sustained, and the jury were instructed to find for the plaintiff, which they did. After judgment, the defendant took this writ of error and assigned for error the refusal of the court to admit the evidence contained in the defendant’s offer.

      >S. Calvin, for plaintiff in error,
    cited Hunt v. Gilmore, 9 P. F. Smith 450.

      IL. W. Baldridge, for defendant in error. —
    The defendant’s right of action arose quasi ex delicto, and out of a transaction altogether distinct from the debt sought to be recovered: Gogel v. Jacoby, 5 S. & R. 122; Hood v. Kean, 11 Id. 295. Rights of action arising in separate and distinct covenants, under seal, cannot be set off against each other: McQuaide et al. v. Stewart et al., 12 Wright 198. The defendant sought to set off damages alleged to be due to him for floating logs through land of which it appeared that he was a tenant in common with one Nole. Set-off can be allowed only where parties have a mutual right to sue each other: Henderson v. Lewis, 9 S. & R. 379; Everson v. Fry, 22 P. F. Smith 326.
   Mr. Justice Paxson

delivered the opinion of the court, May 29th 1877.

It was held in Hunt v. Gilmore, 9 P. F. Smith 450, that unliquidated damages arising ex contractu from any bargain, may be set off under the Defalcation Act of 1705, 1 Sm. Laws 49, whenever they are capable of liquidation by any known legal standard. Tested by this rule, the offer of evidence embraced in the plaintiff’s assignment of error ought to have been received. That the damages were unliquidated, and that the offer was to prove a set-off arising out of a distinct and separate cause of action, is not material. There was no difficulty under the well-settled rules of law in liquidating the damages; that they arose out of a separate cause of action constitutes no objection. Matters growing out of the same transaction, as a general rule, are the subjects of an equitable defence; our Defalcation Act allows other and totally distinct transactions to be proved by way of set-off, in order to avoid circuity of action. We see no reason why the defendant below should not set off as a defence to the note in suit, the damages, if any, sustained by him under the agreement of 13th of June 1868. The objection that such damages arise from tortious acts, is not tenable. The agreement, although inartificially drawn, is a covenant to repair. Under it Bell, the plaintiff below, acquired the right to float his logs down the stream through the defendant’s property, subject to the condition of promptly repairing any accidental injury occasioned thereby. It does not necessarily follow that the damages which the defendant claimed to set off, arose from any tortious acts. If they did, we concede, under all the cases, they could not be allowed.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sharswood

text:
    Tatham versus Ramey.
    1. The Act of 10th May 1871, permitting amendments in the form of actions, does not authorize the substitution of an entirely new and different form of action.
    2. R., the widow of one who died seised of a farm, and intestate, leaving seven children, brought an action of dower against T., who had purchased two-sevenths of the farm, subject to the widow’s dower,- and retained one-third of the purchase-money to secure himself against it. The writ was served upon T.’s tenants on the farm, and T. appeared to the action by counsel. After-wards the form of action was changed by the plaintiff to debt, and a declaration in debt filed. Held (reversing the court below), that the change introduced a new cause of action and was not within the intention of the Act of 10th May 1871.
    3. The widow of one who died seised of land and intestate has her remedy in the Orphans’ Court, and not in a court of law by action of dower.
    May 17th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.

      Error to the Court of Common Pleas of Blair county: Of May Term, 1876. No. 6.
    This action was begun as an action of dower at common law, by “Elizabeth Ramey, widow of Jacob Ramey, deceased, now intermarried with Joseph S. P. Harris,” against George M. Tatham; the narr. contained counts for dower in five messuages. The writ was served on the tenants of the defendant, who occupied a certain tract of land of which Jacob Ramey had died seised, of an undivided two-sevenths of which the defendant had become the owner after Ramey’s death. After an appearance was entered for the defendant, the plaintiff obtained leave to amend the declaration, and sometime afterwards filed a declaration in debt, and procured a plea to be entered by the prothonotary for the defendant, under the rules of court, of “never indebted;” whereupon the defendant’s counsel moved the court to strike off the plea and permit him to withdraw his appearance, on the ground that the appearance for the defendant, who resided in Philadelphia, had been obtained by a service in a local action on his tenant. The plea was stricken off, but the withdrawal of the appearance was refused. The defendant then demurred to the declaration, and' assigned the following grounds of demurrer:
    1. “ The declaration is in debt, while the action is in dower.
    2. “ There was no permission to change the form of action from dower to debt; nor could such permission be granted whereby an appearance of a defendant residing out of the county could be secured in a real action and he afterwards be proceeded against by a change of the action to a personal one.
    3. “ The said declaration declares no promise to the plaintiff, nor any facts from which a liability to the plaintiff can be declared.”
    Judgment was entered on the demurrer for the plaintiff; the defendant then pleaded “never indebted,” and “payment with leave,” &c.
    At the trial, and before the jury was sworn, the plaintiff obtained leave to amend the record so as to read: “ And now, February 5th 1873, plaintiff has leave to amend, upon payment of costs to date, to change the forms of action from dower to debt, and file declaration accordingly.”
    It appeared from the evidence that Jacob Ramey died, intestate, in 1855, seised of a tract of land in Elair county, leaving a widow, the plaintiff, and nine children, two of whom died soon afterwards, intestate and without issue. In 1864, two of Ramey’s children, Anna and Susan, the latter then the wife of William M. Eicholtz, conveyed their undivided two-sevenths of this tract to Tatham, the defendant, for $4539.75, “subject, however, to the dower of Mrs. Elizabeth Ramey, widow of Jacob Ramey, deceased.” Tatham paid two-thirds of the purchase-money, and retained one-third of it on account of the widow’s dower, which remained in his hands at the time of the trial.

      Evidence was given in. behalf of the plaintiff tending to show that Mrs. Ramey had taken part in the sale to Tatham, in order to pi'ove a contract between them for the payment of interest upon the one-third of the purchase-money to Mrs. Ramey during her lifetime. There was also some evidence to show that Mrs. Ramey, up to the time of bringing the suit, had demanded, hut never received, from Tatham, interest on this amount. The defendant denied that there had been any contract between himself and the plaintiff by which he was to pay Mrs. Ramey interest on the part of the purchase-money retained by him, but testified that the understanding between them had been, that Mrs. Ramey was to be paid out of the rent of the farm, and that he had always been willing to pay her her share, and had so instructed his agents. It appeared that the agreement for the sale of the two-sevenths of the farm had been in writing, but neither party produced a copy of the writing at the trial.
    The defendant presented the following points, among others:—
    1. “ The plaintiff having issued a writ of dower, cannot recover from the defendant, having changed the cause of action and the form thereof.”
    3. “There having been no contract in writing, signed by the plaintiff, for the sale of her interest in the two-sevenths of the tract -conveyed by Anna M. Ramey and Mrs. Eicholtz to the defendant, the verdict must be for the defendant.”
    The court refused both points, and left it to the jury to determine whether Tatham had agreed to pay Mrs. Ramey any, and what annual amount in consideration of her interest in the land.
    After a verdict for the plaintiff and judgment thereon, the defendant took this writ of error, and assigned for error, that the court erred (1) in refusing leave to the defendant to withdraw his appearance; (2) in entering judgment on the defendant’s demurrer for the plaintiff; (3) in permitting the record to be amended at the trial, as above shown; (7) in not affirming the defendant’s first point; and (9) in not affirming defendant’s third point.

      S. S. Blair, for plaintiff in error. —
    The Act of 10th May 1871, under which the amendment was made, extends the power of amendment to the form of action only ; a change in the cause of action has never been tolerated. The rule is, that so long as the substantive cause of action remains the same, the mode of stating it may be varied by amendment: Cassell v. Cooke, 8 S. & R. 268 ; Newlin v. Palmer, 11 Id. 98; Root v. O’Neil, 12 Harris 326; Smith v. Bellows, 27 P. F. Smith 441. In dower the thing claimed is land, with damages for its detention; in debt the claim is for a fixed sum of money. The one action is local, the other transitory. If this change be allowed, then ejectment can be changed to case for slander, and a citizen of Philadelphia, who appears to a writ of ejectment served on Ms tenants at Erie, must stay in court to answer any claim the plaintiffs may choose to set up against him. The right which every man has of being impleaded in the courts of his own district has always been greatly valued, and it is not to be supposed that the legislature would do such violence to the spirit of the people without a very clear expression of that intent.
    The declaration in debt discloses no right of action. The widow’s interest is real estate : Thomas v. Simpson, 3 Barr 70; Shaupe v. Shaupe, 12 S. & R. 12; Miller v. Leidig, 3 W. & S. 458. The heirs and a stranger cannot fix the price of it for her. She can resort to the Orphans’ Court to ascertain her interest: Gourley v. Kinley, 16 P. F. Smith 270. If there was an executory contract to sell her interest to Tatham, and he refused to take it, Mrs. Barney would be entitled only to damages for breach of the contract and not to the contract price: Bowser v. Cessna, 12 P. F. Smith 148.

      J). J. JSfeff and F. Jadcel, for defendant in error. —
    The request of the defendant to withdraw his appearance was an appeal to the discretion of the court. The cause of action was substantially the same. The amendment introduced no new cause of action. The action of dower was brought to recover a specific piece of land or its equivalent in' money. Amendments which tend to advance the cause of justice should be liberally allowed: Trego v. Lewis, 8 P. F. Smith 463; Knapp v. Hartung, 23 Id. 294; Smith v. Bellows, 27 Id. 441.
    The duty on Tatham’s part to pay Mrs. Ramey became personal, as a fund was provided for that purpose. Accepting the deed expressly subject to dower was an assumption by the vendee to pay it; one-third of the price set apart fixes the amount of it, and it would be a fraud in the purchaser to retain the money and refuse to pay the dower: Woodward’s Appeal, 2 Wright 327; Keim v. Robeson, 11 Harris 459.
   Mr. Justice Sharswood

delivered the opinion of the court, May 29th 1876.

It certainly was not the meaning of the legislature, in passing the Act of May 10th 1871, Pamph. L. 265, permitting an amendment or change in the form of an action, to authorize an entirely new and different cause of action to be substituted. The words of the act, “ If the same shall be necessary for a proper decision of the cause upon its merits,” plainly evince this, and it is the principle which runs through all our acts for amendment and the decisions wMch have been had upon them. The courts have construed these acts with the greatest liberality, but never to the extent of allowing a different cause of action to be introduced. It would lead to very great injustice to defendants if this could be done, of which the case presented on this record is an illustration. The plaintiff below sued out a writ of dower against the defendant. It was served on the tenants of the land, and the landlord or owner in fee simple, residing in a distant county, appeared by „his attorney. It was proper that he should do so, if he had any defence against the claim of the demandant. Dower is a real and local action, and cannot be brought except in the county where the land lies : Act of 13th June 1836, Pamph. L. 587. The demandant was allowed to change the form of action from dower to debt, which is a personal and transitory action, and to file an amended declaration grounded upon a contract of the defendant to pay the plaintiff a sum of money as interest. Yet the attorney for the defendant— who had never been served and was not within the jurisdiction of the court — was not allowed to withdraw the appearance which he had entered to the writ of dower. Thus, upon the same principle as that adopted and carried out by the learned judge below, a man, by commencing an action of ejectment, and by a service on the tenant securing the appearance of the landlord, may then change the form to assumpsit, and recover upon any contract relating to the same land; for it can hardly be pretended that he could introduce a cause of action not connected in some way with the same subject-matter. If one sues to recover the possession of land, that is a different cause of action from a claim for rent on a lease. The demandant had no right to maintain her action of dower, on her own showing, for the court had no jurisdiction.of it. As her husband had died seised and intestate, her remedy was in the Orphans’ Court; or if the defendant had become personally bound to pay her interest upon her thirds as valued by agreement, she must pursue him by personal action, in the proper forum, for the arrears.

Judgment reversed.