text:
    Shughart versus Moore.
    1. When a promise is made by one in consideration of the-execution of a writing by another, the promise may be. shown by parol evidence.
    2. Powelton Coal Co. v. McShain, 25 P. P. Smith 238 ; Weaver v. Wood, 9 Barr 220, followed.
    May 12th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1874, No. 79.
    This was an action on the case, brought January 7th 1870, by Jonas Shughart against Johnston Moore. The cause of action as set out in the declaration was in the first count: That in consideration that the plaintiff, at the defendant’s request, would move on his farm, become his tenant for one year, from the 1st day of April 1869, to the 1st day of April 1870, and farm it on the shares, the defendant would build a suitable barn on the farm ; that the plaintiff did become tenant and took possession of the defendant’s farm, &c., yet the defendant refused to erect the barn, and the-plaintiff suffered great loss. In the second count: That'the plaintiff being in the occupancy of defendant’s farm, the defendant proposed to him that if he would continue on the farm from April 1st 1870 to April 1st 1871, and farm to the shares,.the defendant promised that he should have the farm for another year on the shares; that the plaintiff arranged to continue, the defendant promising to finish the barn by the first day of October 1869, but the defendant did not finish the barn nor allow plaintiff to remain ón the farm.
    The case was tried August’19th 1873, before Junkin, P. J.
    The plaintiff testified that under an agreement in writing with the defendant he went on his farm in the spring of 1869.
    Plaintiff then offered to prove that before April 1st 1869, defendant proposed to him that if he would move on his farm as a cropper, for a year, the defendant would build a barn “ by harvest;” that plaintiff agreed to it, and after plaintiff entered on the farm the defendant brought him the agreement to sign ; the plaintiff would not sign it because nothing was said in it about building the barn; defendant said it was not necessary; he would do as he had promised. Plaintiff, relying on defendant’s promise to build the barn, was induced to sign the agreement, but defendant, when called on to build the barn, refused to do it.
    . The defendant objected, that the offer was to prove a contract by parol, when there is a contract for the subject matter in writing.
    The offer was rejected by the court, and a bill of exceptions sealed.
    The plaintiff further testified that whilst he was living on the farm, defendant came on it about harvest, and said if plaintiff' would carry it on for another year, defendant would put up the barn and have it under roof on the 1st of October; the defendant proceeded to build the foundations and stopped, and plaintiff’s stock was without shelter; he detailed other injuries, which he suffered by reason of the failure of defendant to build the barn.
    A. Layman testified, that in the summer of 1869 defendant came to the farm to step off the foundation of the barn, and he did so; that he said to plaintiff, “ you have been doing well, you may remain another year, I will put up the barn for you.” Plaintiff agreed to that, and said he would stay if defendant w'ould put the barn up. There was other evidence tending to establish the plaintiff’s case.
    The defendant testified that plaintiff went to his farm in the spring of 1869; under the written agreement, defendant told plaintiff within the first week of April, that he did not suit him, and that he must look out for another place at the end of his lease. Defendant had previously contracted to build a barn on the farm; he went to' the farm in July, plaintiff came in and behaved so badly, that defendant told him that he could not have the farm. After-wards defendant went to where the men were quarrying stone for the barn; plaintiff attacked him with a shovel, saying he had no business there; when defendant found that he could not go there to see about the building of the barn, he directed the builder to carry up the walls and cover them, so as to preserve them, and finish the next year. There was other evidence of threats of injury to defendant when he wrent to the farm in relation to building the barn.
    The defendant’s third point and the answer were :—
    Point. If the jury believe that the agreement was as stated by Mr. Layman, “ That Moore said he had come to stake off the foundation of the barn; that he would put up the barn under roof by the 1st of October, and that Shughart could remain on the farm another year, and Shughart said he would remain, provided he put up the barn,” there was no binding and conclusive contract of lease between the parties. His remaining was optional with Shughart, to stay or not; and as the barn was not put up, and Shughart did not stay, he cannot recover for the loss of the farm the succeeding year, and he cannot recover for any loss the want of the barn occasioned, as there was no barn contracted for in the written lease which covered that year.
    Answer : “We answer that if you find that this was the only agreement between the parties, as set out in this point, we affirm the point, because it does not show a binding contract. If you find that Moore said he had come to stake off the foundation of the barn, that he would put it under roof by the 1st of October, and that Shughart could remain on the farm another year, and Shughart said he would remain, provided he put up the barn,’ and Moore did not agree to put up the barn if Shughart would remain another year, this would not constitute a contract between the parties, but would be mere propositions, and unless you find that such propositions were assented to upon both sides, it would not be a contract; but if made and accepted, it would be a contract, and binding on the parties. You will determine how this was.”
    The court charged: * * * “ This plaintiff alleges that defendant leased to him for a second year, and as an inducement to the tenant to accede, the defendant agreed to build the barn during the continuance of the written lease. We see no difficulty in saying, that it was competent for the parties to provide, in the parol agreement of lease, for the second year, that the landlord should build a barn during the continuance of the term covered by the written lease, although by the terms of the latter, no barn was to be erected, and the plaintiff bound to remain to the end of the term without a barn. So far as the last contract conflicted with the written lease for the previous year, it superseded it — or perhaps in this case it would be more correct to say, that it was an independent contract, upon a new subject, both as to the barn and letting for the second year — so that on this point there is no difficulty.
    “ The first question is, did these parties make an agreement verbally for the lease of the farm for the second year, and the building of the barn in fall of 1869 ?
    “ If you find that no such agreement was made, the plaintiff’s case ends there, and you will find for the defendant. [Or if you find that such an agreement was made,, and the plaintiff prevented the defendant from going on with the barn, by ordering him off the premises, and threatening him with personal injury, and you find that it was the fault of the plaintiff that the agreement was not complied with in building the barn — plaintiff cannot recover, for he himself would be the cause of the injury he complains of.] It was the undoubted right of Mr. Moore to be upon the premises to see after the building of the barn, and if plaintiff, through violence, rendered it dangerous for Mr. Moore to be there, the plaintiff ought not to recover damages for what was his own fault or folly. But should you find that such agreement of lease was made, and nothing was done by Shughart to prevent Mr. Moore from performing his part thereof — then, it would be your duty to assess the damages in favor of the plaintiff, and the measure of these damages would be the injury the plaintiff sustained for the want of the barn — the exposure of his stock, and the injury resulting therefrom, up to the 7th January 1870, when suit was brought; although such injury only became apparent after the latter date, if in fact sustained before; and the loss the plaintiff sustained, by reason of defendant failing to carry out the lease for the second year.”
    [On the question of the making of said verbal lease for the second year, and building barn, the plaintiff and his son prove it— the testimony of Layman does not distinctly prove it, and we will draw your attention to his testimony, when answering defendant’s points.]
    The verdict was for the defendant.
    The plaintiff took a writ of error. He assigned for error: rejecting his offer of evidence, the answer to defendant’s third point and the parts of the charge in brackets.

      J. Gr. Vale and W. J. Shearer, for plaintiff in error.
    The evidence rejected was not to vary the'terms of the lease, but to show that the promise which was the inducement to execute the lease was not kept: Partridge v. Clarke, 4 Barr 166; Powelton Coal Co. v. McShain, 25 P. F. Smith 238; Christ v. Diffenbach, 1 S. & R. 465 ; Campbell v. McClenachan, 6 Id. 172; Oliver v. Oliver, 4 Rawle 145; Gamp’s Appeal, 15 P. F. Smith 476.

      J. Hays and W. H. Miller, for defendants in error.
    Unless an omission from a writing has been by fraud or mistake, it cannot be added by parol: Martin v. Berens, 17 P. F. Smith 459.
   Mr. Justice Sharswood

delivered the opinion of the court, May 24th 1875.

The cases of Weaver v. Wood, 9 Barr 220 and Powelton Coal Co. v. McShain, 25 P. F. Smith 238, are full to the point that the offer of evidence complained of in the first assignment of error ought to have been received. These cases settle beyond all question that where a promise is made by one party in consideration 'of the execution of a written instrument by the other, it may be shown by parol evidence. It is no answer to this, to say that the jury may have found for the defendant on the evidence upon the ground that the plaintiff had prevented the defendant from fulfilling his contract to build the barn. How can we say that this was the point upon which the evidence was rendered when both points were distinctly submitted, and when a very material part of the plaintiff’s evidence upon one of them was excluded from the consideration of the jury unlawfully ? The other errors assigned are not sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Chestnut versus Harbaugh et al.

    1. An executed contract is not void although made on Sunday.
    2. The Sunday law of 1705 does not declare a contract made bn that day void, but the law will not lend its aid to enforce an executory contract so made.
    3. Lyon sold to Chestnut mules belonging to him and in the'possession of Chestnut, who gave his note dated on Sunday, which he paid. Held, that the contract was not, for that reason void, if the mules had been delivered to Chestnut in pursuance of it.
    4. The possession of Chestnut was primá facie evidence of his title.
    May 12th 1875.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Fulton county: Of May Term 1875, No. 27.
    This was an issue under the Sheriffs’ Interpleader Act of 1848, extended to proceedings by attachment by Act of January 30th 1871, sect. 1, Pamph. L. 12, 1 Br. Purd. 54,'pi. 76.
    The issue was framed September 4th 1878, between George Chestnut, plaintiff, and James H. Harbaugh and Joseph Cessna, defendants.
    The question in this issue arose under the following facts: James G. Lyon and John W. Lyon, residing in Fulton county in 1873, and being the owners of a number of mules, with their harness, &c., used them in their business in Bedford county. In July 1873, they removed their mules, &c., from Bedford county to their residence in Fulton county, which was with Chestnut, on premises belonging to him. At that time, they were indebted to Harbaugh and Cessna, the defendants. After the mules came to their residence, on the premises of the plaintiff, he selected two mules; they sold them and their gears to him for $300, and on Sunday, July 27th 1873, Chestnut gave his note to John W. Lyon for that sum, payable in twelve months. On the same day Lyon removed the rest of the mules from plaintiff’s premises and sold them to one of his creditors. On the 30th of July 1873, the defendants, alleging that the sales by the Lyons wore fraudulent, issued' an attachment out of the Common Pleas of Fulton county, under the Act of March 17th 1869, Pamph. L. 8, 1 Br. Purd, 53, pi. 71, et seq., and attached the mules and gears, which had been bought by the plaintiff from Lyons. This issue was then framed. The questions raised upon the trial, were whether the sale to plaintiff was fraudulent and void as against the creditors of the Lyons, and whether it was void as having been made on Sunday. The latter question only is considered in the decision of the Supreme Court.
    On the trial, August 5th 1874, before Rowe, P. J., the plaintiff testified that he bought the mules and harness at his home, about July 25th 1872, they were in his possession at the time; the note for the price, $300, was dated July 25th 1873, which was Sunday, and had been paid by him. He bought the mules three or four days before the day on which the note was dated; he signed the note on that day; it was witnessed on that day, but was not delivered on Sunday. The plaintiff’s first and second points were:—
    1. Whether the contract for the mules was made on Sunday or not, is immaterial in this issue between the parties thereto, and cannot avail the defendants to defeat the plaintiff’s recovery.
    2. If the jury believe, from the evidence, that the mules were determined upon, the price fixed, and delivery made to Chestnut, prior to Sunday the 27th day of July 1873, the mere fact that the note for the price was given on that day, would not avoid the contract.
    The court refused the first point, and affirmed the second.
    The defendants’ second and third points were :—
    2. If the jury believe, from the evidence, that the contract or bargain between the Lyons and the plaintiff was not fully consummated until Sunday, the 27th day of July, and that then the note for the mules and harness was signed and delivered, and that the bargain was consummated on that day, then the bargain or contract of purchase and sale of mules and harness was absolutely void, and the said property would stand, so far as creditors were concerned, as if thei’e had been no sale of it to Chestnut, and the defendants having seized the property by their attachment on the 30th of July, their verdict must be for the defendants.
    3. In the absence of other and better evidence that the contract or bargain for the sale of mules and harness was made previously to Sunday, the 27th of July, the fact that .the note was signed and delivered on Sunday, if proven to the satisfaction of the jury, would be conclusive evidence that the contract or bargain was made on Sunday.
    The court affirmed the second point, and in answer to the third said :—
    “ If you find the note was given on Sunday, that fact is one tending to show that the sale was consummated on Sunday, but there is other evidence in the case on this point, and upon a consideration of all of it you will determine how the fact was.”
    The court, in the general charge, said :— * * *
    “But further, we are to consider the effect of the making of the note on Sunday, if so made, and the effect of the consummation of the bargain on Sunday, if so consummated.
    “ If the note was delivered on Sunday it was void, but though the note was void if so made, and no recovery could be had on it, yet still the contract may be good, for the contract created the debt, and the note was only written evidence of the debt, and a debt may be good and enforcable in law when the note by which it is evidenced is not good. You will observe the distinction between the debt and tbe evidence of it. If the contract was made on Sunday, that is, if the bargaining about the purchase was ended and concluded on Sunday, and an agreement finally reached on that day, then the contract was void, and no property passed by means of it to George Chestnut, and so the property was not his on Wednesday after when the creditors laid the attachment. But if the contract was consummated on a week day, a bargain struck and concluded, the fact that the,note was given on Sunday would not vitiate the contract.-
    [“ But if you believe the sale was not consummated' until the giving of the note, and that that was the last act in the negotiations, until which they were not concluded, and that the note was given on Sunday, then the sale was void. The contract may be void, whether the mules were delivered on Sunday or not. There is no positive evidence that they were delivered on Sunday, nor is it clear when they were delivered; the jury must ascertain. But the question is not when the mules were delivered but when the contract of sale was consummated. If you believe this contract of purchase and sale between Lyon and Chestnut was consummated on Sunday, it was a void contract, whereby no property passed to Chestnut, and there was none in him at the time of the attachment, and if so, your verdict ought to be for the defendants, for the issue is to try in whom the right of property to the mules and harness was at the time the property was attached.] * * * If there was a bonfi fide sale to him, not made on Sunday, and on actual delivery of the property, your verdict ought to be for plaintiff, otherwise, for defendants.”
    The verdict was for the defendants. The plaintiff took a writ of error and assigned for error the answers to the plaintiff’s first point and the defendants’ second point; also, the part of the charge in brackets.

      J. MeD. Sharpe (with whom was W. S. Alexander), for plaintiff in error.
    Contracts, although made on Sunday, if executed, will not be avoided : Shuman v. Shuman, 3 Casey 90; Bartlett v. Viner, Carthew 252; Fox v. Cash, 1 Jones 212; Baker v. Lukens, 11 Casey 146; Sherman v. Roberts, 1 Grant 261; Beitenman’s Appeal, 5 P. F. Smith 183; Foreman v. Ahl, Id. 326; Kauffman’s Appeal, 20 Id. 261; Smith v. Bean, 15 N. H. 577.

      JF. Jordan (with whom were Smith and Robinson), for defendants in error.
    A contract in violation of the Lord’s-day is absolutely void, and no subsequent recognition of it can give it validity: Bradley v. Rea, 14 Allen 20 ; Frim v. Donahoe, 35 Conn. 216 ; Pate v. Wright, 30 Ind. 476: Ryno v. Darby, 20 New Jersey Eq. 231. Ro property can pass by means of a void contract: Dodson v. Harris, 10 Ala. 566; Ladd v. Rogers, 11 Allen 209 ; Woodman v. Hubbard, 5 Foster 67; Adams v. Gray, 19 Vermont 358 ; Williams v. Paul, 6 Bing. 653. A party cannot set up his own breach of the law against an innocent person : Fennell v. Ridler, 5 B. & C. 406; Bloxsome v. Williams, 3. Id. 232.
   Mr. Justice Gordon

delivered the opinion of the court, May 24th 1875.

We think the court erred in instructing the jury that if the contract of sale between Lyon and Chestnut was consummated on Sunday it was void, and no property in the mules passed to Chestnut, and there was none in him at the time of the service of attachment. We have many authorities, among others, Baker v. Lukens, 11 Casey 146, and Shuman v. Shuman, 3 Id. 90, which rule that an executed contract is not void because made on Sunday. The Sunday law does not pronounce such contracts void, but because they are contra bonos mores the law will not lend its aid to execute such as are executory. Where, however, as in the present case, they have been executed by the parties, the law leaves them as it finds them. From this it follows, that Chestnut having obtained the possession of the property in dispute, by a voluntary delivery from Lyon; as against him and all claiming through him, the title passed to and vested in Chestnut; for the contract, though immoral, is irrevocable, inasmuch as the courts will not aid either party in its revocation, but will leave him to reap the fruits of his own wrong. Such then being the situation of affairs, it follows that Chestnut’s possession was primá facie title, and if the transaction between him and the Lyons was not in fraud of, or designed to hinder or delay, creditors in the collection of their just dues, there is no reason why he should not recover in this suit. We may say, in passing, that this Sunday contract may be given in evidence as part of the history of the transactions between the parties, and may in this way bear upon the question of fraud. All other questions in the case were rightly ruled.

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


text:
    Commonwealth, to the use of Roddy’s Administrator, versus Kreager et al.

    1. The estate of a decedent under proceedings in partition in the Orphans’ Court was adjudged to one of the heirs ; Kreager, her attorney in fact, with sureties, entered into recognisance for the payment of the shares of the other heirs. On scire facias by one of the heirs on the recognisance, the defence was that Kreager took it as trustee for that heir and the others. Declarations of the heir, not in presence of Kreager, nor the other heirs that he was to take it for her and the others, were not evidence of the trust.
    2: There being no evidence that the other heirs or Kreager agreed to become parties to the arrangement, it did not become a contract.
    3. Kreager having no interest in the estate had no power to accept for any of'the heirs except his constituent.
    May 12th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Somerset county: Of May Term 1875, No. 109.
    This was a scire facias sur recognisance, in the Orphans’ Court of Somerset county, issued November 28th 1878, by the Commonwealth, to the use of the administrator of Anne Roddy, deceased, against Frederick Kreager, “ agent of Rachel Kreager” and others his sureties, with notice to the terre tenants.
    Sarah McNeal died previously to March 3d 1871, intestate, leaving as her heirs at law three sons and five daughters; and seised of a tract of land containing about 300 acres. One of the daughters was Anne Blubaugh, a widow, another Rachel Kreager, wife of H. C. Kreager; one of the sons was James McNeal. On the 3d of March 1871, on the petition of James McNeal, the Orphans’ Court awarded an inquest for the partition of the real estate of the decedent. The inquest finding that the real estate could not be divided, valued it; the inquisition was confirmed in May 1871 and on the 13th of September 1871, the land was adjudged to Rachel Kreager; on the same day, “ Rachel Kreager by her agent in fact Frederick Kreager” and sureties entered into recognisance to the Commonwealth in the sum $8034.32, conditioned for the payment of $1147.75 to each of the heirs of Sarah McNeal, deceased. Anne Blubaugh married William Roddy on the 23d of November 1871 and died March 2d 1872.
    On the trial, April 8th 1875, before Hall, P. J., the plaintiff gave the above facts in evidence and rested.
    Under objéction and exception the defendants gave evidence as •follows:—
    Elizabeth King testified that in 1871, Mrs. Roddy told her that she wanted Kreager to take the farm for the benefit of the daughters ; she often said she had agreed that Frederick Kreager should take it, and wanted him to take it for the heirs ; Mr. Roddy was not present at these conversations.

      Elias Griffith testified that Mr. Roddy said Mr. Kreager was going to take the farm and she was agreed to it; he was to take it for the heirs and hold it till they saw fit to sell it. She spoke to the same effect frequently; she afterwards said he had taken it; no one was present at the conversation.
    A. H. Coffroth, Esq., testified to about the same effect, and also that Mrs. Roddy said she would have an agreement drawn under his directions and Kreager would take the property. He could not say that he drew the agreement.
    The plaintiff’s second point which was negatived was:—
    “ As between vendor and vendee, parol evidence cannot establish a trust in the vendee for the use of the vendor in the face of a record giving the vendee an absolute title.”
    The court charged :—
    • * * * “ The record offered in evidence does not give Mrs. Roddy any title to the land ; on the contrary, it divests her title and gives her a right to a sum of money secured by a recognisance. The defence set up to the payment of this recognisance is by the party to whom the land was decreed. He alleges a parol agreement between certain of the heirs, of whom Mrs. Roddy was one, and himself, by which he was to take the land in right of Rachel Kreager and hold it in trust for the five sisters, of whom Mrs. Roddy was one. If such a bargain was entered into by Mrs. Roddy, and the land was taken by Kreager at the appraisement in pursuance of it, and if Mrs. Roddy ratified and approved it afterwards, such contract may be established by parol evidence, and Mrs. Roddy can be held to her bargain, although it was not reduced to writing. But the burden of proving this agreement is on the defendants, and the evidence must be clear and satisfactory.”
    The verdict was for the defendants.
    The plaintiff took a writ of error.
    The errors assigned were the admission of the evidence objected to ; the refusal of the plaintiff’s point and the charge.

      A. J. Qolborn (with whom was J. R. JEdie), for plaintiff in error.

      W. H. Koontz (with whom was Baer $ Baer), for defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, May 24th 1875.

Kreager and his co-recognisors defend on the ground that, at the time of the partition in 1871, by an arrangement with Anne Roddy, for herself and her sisters, he was induced to accept the property at the appraisement as a trustee for these parties, and that, whilst by the records, the property appears to be vested in Rachel Kreager, for whom he acted under a power of attorney, yet in fact he accepted for all the sisters, including Anne Roddy, whose administrator issued the sci. fa. in this case, and hence the estate was equitably vested in them, and therefore, as to them, he and his co-sureties ought not to be held on their recognisance. To support this position the declarations of Anne Roddy made, not to or in Kreager’s presence, but to strangers, about the time of and after the partition, were introduced, and tended to prove that she expressed a desire that Kreager should accept the farm at the appraisement for herself and sisters, that she was willing to execute an agreement in order to carry out that desire, and that she subsequently said that Kreager had so accepted.

The first difficulty that occurs in this proposition as an available defence, saying nothing about the Act of 1856, is that it contains nothing tending to show that either her sisters or Kreager ever agreed to become parties to such an arrangement. Hence it never assumed the form of a contract and could therefore bind no one. The second trouble is, that Kreager having no interest in the estate of Sarah McNeal, had no power to accept for any one except his daughter-in-law, Rachel Kreager, who had executed a power of attorney to him for that purpose. So, if we suppose such a contract as that alleged, it came to naught through the want of power in Kreager to execute it. Finally, the property was accepted for and solemnly awarded to Rachel Kreager, in whom the title then and there vested, if there is any virtue in the decree and records of a Pennsylvania orphans’ court. Kreager, on this showing, holds nothing in the premises either for himself or any one else, and it follows, that were we to permit this judgment to stand, Anne Roddy’s estate would get neither money nor land. A result hardly warranted by strict justice.

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


author: Mr. Justice Mercur,

text:
    Saxton et al. versus Mitchell.
    1. A devise was: “ After the decease of my wife, I order all my real estate to he sold, * * * except such portions of it as are specifically devised or reserved hereafter, and the proceeds from the sale: of 130 acres in Upper Allen, &c. (except 20 acres of woodland of said tract adjoining, &c., which I hereby reserve for ever for the use of the members of the Methodist Episcopal Church to hold their camp-meetings on), shall be equally divided between my nephews and nieces who shall he living at my wife’s decease.” Held, that the provision for the church members was a perpetual easement, the use being limited for camp-meetings, and the 20 acres passed to testator’s heirs subject to the easement.
    2. The church members acquired such rights only as were reasonably necessary for the enjoyment and protection of their worship.

      3. A devise of the use for ever is equivalent to a devise in foe.
    4. All rights in the land not in conflict with the worship designated by the testator remained in his heirs.
    5. An Act of Assembly authorized the court to direct the sale of the land, the proceeds to be appropriated to the purchase of a more suitable place for camp-meetings. Held, that the act was unconstitutional.
    May 12th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 10.
    This was an amicable action and case stated, in which Thompson Mitchell, presiding elder of the Methodist Episcopal Church for the Carlisle District of Pennsylvania, was plaintiff, and John 0. Saxton and Mary Ellen, his wife, in her right, and James M. Ralston and Margaret J., his wife, in her right, representing themselves and the other heirs at law and legatees of John Dunlap, late of Harrisburg, deceased, were defendants.
    The case showed the following facts:—
    John Dunlap, of Harrisburg, by his will, dated February 22d 1856, and proved April 14th 1857, devised, as follows, viz.: “ I give and devise unto my beloved wife Catharine all my personal property, &c.; I also give and bequeath unto my wife Catharine the- income of all my real estate situated in the borough of Harrisburg, and in Upper Allen township, Cumberland county, for and during her natural life. * * * After the decease of my said wife Catharine, I order and direct that all my real estate shall be sold by my executors, or the survivor of them, except such portions of it as are specifically devised and reserved hereafter, and the proceeds arising from the sale of my tract of land containing about one hundred and thirty acres, situated in Upper Allen township, Cumberland county, on the Lisburn road (except twenty acres of woodland of said tract adjoining Robert Bryson and Longnecker which I hereby reserve for ever for the use of the members of the Methodist Episcopal Church to hold their camp-meetings on), shall be equally divided among all my nephews and nieces who may be living at my wife’s decease.”
    Mary Ellen Saxton and Margaret J. Ralston, defendants, are nieces and heirs at law of the said John Dunlap, deceased, and interested in his estate. The widow of John Dunlap, deceased, is living.
    Prior to the 10th of February 1871, application was made to the Orphans’ Court of Cumberland county for an order appointing a trustee to sell the twenty acres of land referred to in the will of John Dunlap, deceased, and to invest the proceeds of sale in other real estate to be held for the same uses and purposes. The court refused the application, because in their opinion the case did not come within the powers conferred by law for the sale of real property. By an Act of Assembly, approved February 10th 1871, the Court of Common Pleas of Cumberland county, was empowered, upon petition of the presiding elder of the Methodist Episcopal Church for the Carlisle District of the East Pennsylvania Conference, to appoint a trustee to make sale of said tract of land and invest the proceeds in other real estate, to be held for the same purposes and uses as the original. Under this act the plaintiff made application for the appointment of such trustee, and for such order to said court, on March 4th 1871, and a rule was granted upon defendants to show cause why the application should not be granted.
    The plaintiff contends that under the will of John Dunlap, deceased, and the Act of Assembly of February 10th 1871, the application made to said court, on March 4th 1871, should be granted.
    The defendants, for themselves, as heirs and legatees, and for the other heirs and legatees of John Dunlap, deceased, contend:—
    1. That the reservation or devise of the said tract of land is void for uncertainty, and does not vest the title thereto in anybody as against the heirs at law of the said John Dunlap, deceased.
    2. That the Act of February 10th 1871, is judicial in its character, and unconstitutional and void.
    Judgment to be entered accordingly as the court should be of the opinion with the plaintiff or defendants.
    The court, Junkin, P. J., was of opinion:—
    1. That the reservation for the use of the Methodist Episcopal Church was of the land in fee and not merely an easement.
    2. That the devise was not void for uncertainty.
    3. That the twenty acres might be sold and the proceeds applied for the purchase of a more eligible and suitable site for a camp-meeting.
    Judgment was accordingly entered for the plaintiff, and a decree made directing the sale of the land in accordance with the Act of February 10th 1871.
    The defendants took a writ of error, and assigned for error, that the court rendered judgment for the plaintiff and decreed a sale of the land.

      J. Says, for plaintiff in error.
    The gift was only “ a liberty, privilege or advantage” in the testator’s land, and therefore but on easement; Gale & Whatley on Easements 6; Big Mountain Improvement Co.’s Appeal, 4 P. F. Smith 361. The Act of February 10th 1871, assumed to exercise judicial power and divest vested rights, which would be unconstitutional: Baggs’ Appeal, 7 Wright 512; Grim v. School Directors, 7 P. F. Smith 437 ; Dale v. Medcalf, 9 Barr 110; Norman v. Heist, 5 W. & S. 173 ; Shonk v. Brown, 11 P. F. Smith 327; Haley v. Philadelphia, 18 Id. 47.

      W. F. Sadler for defendant in error.
    The gift was of the land and not merely an easement, and a sale for the same uses might be ordered: Griffitts v. Cope, 5 Harris 98; Kerlin v. Campbell, 3 Id. 500 ; Brendle v. German Ref. Ch., 9 Casey 424. The devise of the use for ever is equivalent to devise of the fee : Van Rensselaer v. Dunkin’s Ex., 12 Harris 252; Anderson v. Greble, 1 Ashmead 136 ; Reed v. Reed, 9 Mass. 372. A devise will not fail for want of a trustee: Pickering v. Shotwell, 10 Barr 23; Zimmerman v. Anders, 6 W. & S. 218. The devise is not uncertain : Whicher v. Hume, 1 De Gex, McN. & Gordon 506; Going v. Emery, 16 Pick. 116. The lot being unsuitable for the purposes for which it was designed, an exigency had arisen to authorize a sale: Griffitts v. Cope, supra; Barr v. Weld, 12 Harris 84; Pickle v. McKissick, 9 Harris 233.
   Mr. Justice Mercur,

delivered the opinion of the court, October 12th 1875.

The intention of the testator has always been deemed the first great leading rule in the construction of a will. That intention, drawn from the whole will, must govern its construction, except where the law rules the intention otherwise.

In this case the testator devised to his wife, during her life, the income of all his real estate, situated in the borough of Harrisburg, and in Upper Allen township, Cumberland county. He directed his executors to sell, after the death of his wife, all of his real estate, except such portions .of it as are specifically devised and reserved hereafter, and the proceeds arising from the sale of my tract of land, containing about one hundred and thirty acres, situated in Upper Allen township, Cumberland county, on the Lisburn road, (except twenty acres of woodland, of said tract adjoining Robert Bryson and Longnecker, which I hereby reserve for ever, for the use of the members of the Methodist Episcopal Church, to hold their camp-meetings on) shall be equally divided among all my nephews and nieces who may be living at my wife’s decease.”

There is no devise to the defendants in error in clear and specific terms. Their rights are dependent on the language which we have given. These twenty acres are excepted out of the tract of land which his executors are directed to sell after the decease of his wife. She is yet living. The testator for ever reserved these twenty acres from sale. His expressed object in reserving them was for the members of the Methodist Episcopal Church to hold their camp-meetings on.” We must assume the testator had in his mind the limited time for which the gronnd would be used in each year for camp-meetings. It is well known that such meetings do not usually continue longer than from one to two weeks. He manifestly designed to give to the members of the church to which he was attached, this temporary use each year, for religious worship. So far as was necessary for that purpose, he gave it to tnem. Beyond that he withheld it. They acquired such rights only as were reasonably necessary for the enjoyment and protection of their worship. It is true a devise of the use for ever is equivalent to a devise in fee. Hence, if the testator had given to the members of the church such a use or occupation of the land as would for ever have given them the continuous and exclusive possession thereof, it might in law have given them a fee. But the qualified and restricted use given by the testator passed to the beneficiaries no right wantonly to destroy the timber growing on the land, nor to convert the premises into a beer-garden or race-course, when not occupied for camp-meetings. The land passed to the testator’s heirs, subject to this perpetual easement for the religious worship named. All rights in the land, not in conflict with the worship designated by the testator, remained in his heirs. They were obliged to suffer this land to be used by the persons and for the object stated. They took it thus charged. An easement is said to be “a privilege without profit to the servient owner, which he is obliged to suffer, or not to do something on his own land for the advantage of the dominant owner ” : Gale and Whatley on Easements 6. A right of way may be limited, both as to the intervals at which they may be used, as a way to church, and the actual extent of user authorized, as a foot-way, horse-way, or carriage-way: Id. 199.

The case stated does not set forth the whole will. We are therefore deprived of any light which other portions might throw on the part we are called upon to construe. So far as it is furnished us, we all are of the opinion that an estate in fee, in the whole twenty acres, is not given to the members of the Methodist Episcopal Church, except for the purpose specified; although in fee, the devise may be an easement only: Big Mountain Improvement Co.’s Appeal, 4 P. F. Smith 369.

Such being our view of the case, it follows that the defendants in error are limited to an occupancy of the land for the religious worship named. The legislature then had no power to authorize the title of the heirs to be divested: Grim v. School Directors, 7 P. F. Smith 437: Shonk v. Brown, 11 Id. 327; Haley v. The City of Philadelphia, 18 Id. 47.

The learned judge, therefore, erred in decreeing a sale of the twenty acres of land, and it must be reversed.

Decree reversed and judgment entered in favor of the plaintiffs in error, with costs.


author: Mr. Justice Woodward

text:
    Snively’s Executors versus Stover and Wife.
    1. Snively leaving six children, devised to each of four of them a tract of land at a value which he fixed, their respective shares of his estate to remain in the land, as provided in his will, and the balance to be paid in annual instalments without interest, covering a number of years, the devisees to take possesssion shortly after his death ; he gave to the other two children, daughters, all the payments to be made by the devisees and directed that within one year from the 1st of April after his death a distribution of his estate should be made, the amount including advancements to his children being ascertained, his debts, &e., paid, the residue should be equally divided amongst all his children, the advancements, &c., to be accounted for without interest “ so that each of my children shall share and share aliko.” By a codicil he directed when the amount of his estate should be ascertained, $1500 should be deducted from it and divided between the two daughters and the remainder equally divided among all his children so that the daughters, “will apparently receive each $750 more than my other children.” Held, that $1500 was not payable presently, but in a due proportion with the legatees’ proportion of the annual instalments for which the will had made provision.
    2. Under the will the shares of the two daughters were payable out of the valuation of the land as the payments by the devisees accrued.
    3. If two clauses in a will are irreconcilable the latter is to be adopted ; but not if effect can be given to both consistently with the main design of the testator; nor if the clauses have not relation to the same subject-matter.
    May 12th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Franklin county: May Term 1875, No. 61.
    This was an amicable action of debt, instituted April 15th 1874, by Andrew S. Stover, and Ann Elizabeth, his wife, in her right, against Lemuel Snively, Jacob S. Snively and J. P. Bishop, executors, &c., of Samuel Snively, deceased. It was subsequently agreed that William H. Snively and Almira Bishop (wife of the said J. P. Bishop), with the other named executors, be made parties to this suit as devisees of the land of the decedent, charged with the legacies which are hereafter stated, and which are in controversy in this suit. ■
    A case was stated containing these facts:—
    Samuel Snively, of Antrim township, Franklin county, died on or about the 20th day of December 1872, leaving six children, to wit: Lemuel, Jacob S., Almira, intermarried with J. Philip Bishop, William Henry, Ann Elizabeth, intermarried with Andrew S. Stover, and Susan Snively; and seised of several tracts of land, situate, &c., and possessed of a small personal estate. He made a will dated July 15th 1872, and proved December 20th 1872, devising, amongst other things, as follows:—
    “ 2. I will and devise to my son Lemuel, his heirs and assigns for ever, the tract of land * * * containing one hundred and thirty acres and fourteen perches, neat measure, * * * which I value to him at sixty dollars per acre, to he paid as follows, to wit: after deducting advancements heretofore made to him from his share of my estate, the balance of his share to remain in the land, and the remainder to be paid in ten equal annual payments, without interest, until they become due, the first payment to be made in one year from the 1st day of April next after my decease.”
    3. He devised to his son, Jacob Samuel, in fee another farm, containing one hundred acres, at sixty dollars per acre, subject to precisely similar provisions, except that the balance of the valuation was to be paid in eight annual payments.
    4. He devised to his daughter, Almira, wife of J. P. Bishop, in fee, another farm, containing eighty-one acres, at sixty dollars per acre, subject to precisely similar provisions, except that the balance of the valuation was to be paid in four annual payments.
    5. He devised to his son William H., in fee, “ that part of my lands without buildings,” containing one hundred and one acres, at fifty dollars per acre, under precisely similar provisions, except that the balance of the valuation was to be paid in six annual payments, the first to be made in three years from the 1st day of April after the testator’s death.”
    “ 6. I will and devise to my daughters Susan and Ann Elizabeth all the payments (except so much thereof as may be necessary to be appropriated to the payment of my just debts and funeral expenses in case of a deficiency of means to pay the same from my personal estate), to be made by my sons Lemuel, Jacob, Samuel and William Henry, and my daughter. Almira, said payments to be made to them or their legal representatives, to each of them in equal proportions as the payments become due; and further, I devise to my daughter. Susan one half dozen cane-bottom chairs, now in my possession; and further, I devise to my daughter Ann Elizabeth, her mother’s sideboard, all of which is' to be accounted for at a fair valuation, together with advancements heretofore made to each of them as part of their share of my estate at the distribution thereof.”
    7 and 8. He directed that the payments to be made by his devisees, should continue to be liens on their respective devises until paid, and the devisees should have possession of their tracts on the 1st day of April after his death.
    ‡*********
    10. “It is my will and I hereby order and direct that my sons Lemuel and Jacob Samuel shall each supply Andrew Snively with six bushels of wheat, annually, in payment of my part of the annuity of wheat devised to him by Andrew Snively, deceased, * * * and for and in consideration of the payment of said annuity of wheat by them, I hereby order and direct that one hundred and fifty dollars shall remain in each of the tracts of land devised to Lemuel and Jacob Samuel, respectively, and at the expiration of said annuity, the amount so ordered to remain in said tract of land, and to be theirs respectively and exclusively, and not to he included in the aggregate amount of my estate at the distribution thereof.
    * % * ‡ *.* * * *
    12. “ It is my will, and I hereby order and direct, that within one year from the 1st day of April next, after my decease, a distribution of my estate may or shall be made, the amount of my real and personal estate, including the advancements heretofore or hereafter made and the bequest herein made out of my personal estate to my children being ascertained, my just debts and funeral expenses being fully paid and satisfied, the residue of said amount shall be equally divided among all my children, share and share alike; all the advancements which are charged on my books against my sons and daughters, and the amount of personal property devised to either of them, respectively, shall he accounted for by them, without interest, as so much of their respective shares of my estate, so that each of my children shall share and share alike.”
    He appointed his sons Lemuel, Jacob Samuel, and his son-in-law, J. Philip Bishop, executors of his will.
    By a codicil, dated August 19th 1872, the testator further provided : * * * “ That when the aggregate amount of my real and personal estate is fully ascertained and established, that one thousand five hundred dollars shall be deducted from the same, which amount shall be equally divided between my daughters Susan and Ann Elizabeth, and the remainder thereof shall be equally divided among all my children, so that Susan and Ann Elizabeth will apparently receive each, respectively, seven hundred and fifty dollars more than any other of my children.”
    The aggregate of the real and personal estate of the said testator has been ascertained in the manner directed by his last will. His executors filed a final account of the personal estate, which was confirmed *on the 10th day of March 1874, exhibiting a balance in their hands of two hundred and seventy-four dollars and ninety-three cents, after the payment of debts and funeral expenses. An auditor to distribute the said balance reported that the same was payable to Susan Snively, a single daughter of the testator, who resided with him at the time of his decease, .under the provisions of the Act of the 14th of April A. D. 1851, sect. 5, Pamph. L. 618, 1 Br. Purd. 416, pi. 60, which report was confirmed on the 13th of April A. d. 1874.
    The plaintiffs claim that the sum of fifteen hundred dollars bequeathed in the codicil to Susan and Ann Elizabeth, is now due and payable, and that they are entitled to recover the one-half of said sum. The defendants deny that said sum is now due and payable, but say that it is to be paid in the same manner and at the same times mentioned by tbe testator for payment of the instalments of the valuation-money of his real estate by the devisees thereof, in his said last will and testament. If the court be of the opinion, on this state of facts, that said sum of fifteen hundred dollars is now due and payable, then judgment to he entered in favor of the plaintiffs for seven hundred and fifty dollars, with interest from the 1st day of April A. D. 1874; but if not, then judgment to he entered for the defendants.
    The court, Hall, P. J., entered judgmeut on the case stated for the plaintiffs for seven hundred and fifty dollars, with interest from the 1st day of April 1874.
    The defendants took out a writ of error and assigned the judgment so entered for error.

      Kennedy Stewart for plaintiffs in error.

      J. MeD. Sharpe for defendants in error.
   Mr. Justice Woodward

delivered the opinion1 of the court, October 11th 1875.

Samuel Snively died on tbe 20th of December 1872, leaving six children, three sons and three daughters. Apart from some personal property, which was exhausted in the process of administration, his estate consisted of 412 acres of land, in Antrim township, in the county of Franklin. By his will, executed on the 15th of July 1872, he devised his real estate in four separate parcels to his sons, Lemuel, Jacob Samuel, and William Henry, and his daughter Almira. He gave to Lemuel 130 acres and 14 perches, to Jacob Samuel 100 acres and 13 perches, and to Almira 81 acres and 9 perches, the land in each case being valued at $60 per acre, and the will providing that after deducting advancements made in the testator’s lifetime, the balance of the shares of the devisees should remain in the land devised to each. The remainder of the valuation was directed to be paid by Lemuel in ten equal annual payments ; by Jacob Samuel in eight; and by Almira in four. The payments were to bear no interest until they became due, and tthe first instalment in each case was required to be paid in one year from the first day of April next after the testator’s decease. The devise to William Henry was of 101 acres and 40 perches, at a valuation of $50 per acre. After deducting advancements and a bequest of personal property, it was directed that the balance of his share should remain in the land, and that the remainder of the valuation should be paid in six annual payments, without interest, the first of which should be made in three years from the 1st day of April after the testator’s death.

By the sixth section of the will, all the payments on account of the lands devised, were bequeathed to the testator’s daughters, Susan and Ann Elizabeth, in equal shares. And by the twelfth section, it was provided, that within one year from the first day of April after the testator’s decease, a distribution of his estate should be made, and after the adjustment and allowance of advancements and bequests, and the payment of debts and funeral expenses, the residue should be divided between all his children in equal shares.

On the 19th of August 1872, the following codicil was executed by the testator: “ I do hereby further order and direct, that when the aggregate amount of my real and personal estate is fully ascertained and established, one thousand five hundred dollars shall be deducted from the same, which amount shall be equally divided between my daughters Susan and Ann Elizabeth, and the remainder thereof shall be equally divided among all my children, so that Susan and Ann Elszabeth will apparently receive, each respectively, seven hundred and fifty dollars more than any other of my children.”

Upon the theory that the effect of the codicil was to render the bequest of $1500 contained in it, payable on the first day of April 1874, this proceeding was instituted by Mrs. Ann Elizabeth Stover, one of the daughters, and her husband, for the recovery of the $750, to which she was entitled under that bequest. This theory was sustained by the court below, and judgment was entered for the plaintiffs.

On the 1st day of April 1874, the entire estate of the testator, upon which the provisions of the will and codicil could operate, consisted of the lands devised and the payments directed to be made out of the valuation placed upon them. Debts, funeral expenses, costs of administration, and the specific bequests contained in the will, had exhausted the personal property. If the view of the plaintiffs and the court below is accurate, it follows that to the extent of $1500, the time fixed by the will for the payments by the devisees of the lands was materially hastened by the terms of the codicil. This is inevitable, for there is no fund outside of these payments from which the $1500 can be realized. Was it the intention of thé testator to produce such a result ? He did not say so, and the implication that this was his purpose, must be founded on language that is unmistakable and distinct. No doubt would have arisen upon the provisions of the will alone. The amount of the estate being ascertained under the directions of the twelfth section, the shares in it of Susan and Ann Elizabeth would have been payable out of the valuation charged on the lands as the payments by the devisees accrued.

But how can it be said the codicil has produced a change so significant ? Its object was to increase the amount two of the testator’s daughters were to receive out of his estate, and to diminish, in the same proportion, the money amounts to which, under the twelfth section of the will, the devisees of the land were entitled; and the reason was stated to be that Susan and Ann Elizabeth should “ apparently receive $750 more than any other of the children.” There is nothing to indicate that any idea of accelerating any period of payment was in the testator’s mind. If two clauses in a Avill are irreconcilable, the latter is tobe adopted as the latest expression of the testator’s mind; but this is not to be done, if it be possible to give effect to both consistently with the main design of the testator ; nor is it to be done unless the apparently repugnant clauses have relation to the same subject-matter: Newbold v. Boone, 2 P. F. Smith 167. The main design of Samuel Snively in framing his will was to secure equality to his children in the distribution of his estate. The design of the codicil was to cure an inequality which it was apparent the terms of the will itself would inevitably produce. The devisees were to have immediate possession and enjoyment of their lands, and the money charged upon them was the fund to be distributed. This money was payable without interest, during vai'ying periods, running five, nine,- ten and eleven years. Upon the assumption that the testator designed that his children should be equal participants in the enjoyment of his property, it is manifest that his object could not be effected by the will as it was drawn, for a preference would be given to the four devisees, to the extent of the advantage they would derive from the immediate possession of their lands, and injustice would be worked to the two daughters to the extent of the whole interest on their shares of the estate, so long as the payments of the instalments should be withheld. It was to meet this obvious wrong that the codicil was drawn. That this was so may be satisfactorily implied from the testator’s statement, that Susan and Ann Elizabeth would each “apparently receive $750 more than any other of the children.” To treat the $1500 as payable at the time fixed for the settlement of the estate, would not only subvert the entire plan of the will, but would create in the opposite direction, and in favor of the daughters, the inequality against which, as they stood affected by the will, it was the design of the codicil to guard.

The construction that would enforce the payment of $1500 on the 1st of April 1874, out of the appraised valuation of the lands, would seem’ to require that a final settlement between the testator’s children should be made at the same time. The same clause that directs “ that when the aggregate amount of the real and personal estate is fully ascertained and established, $1500 shall be deducted from the same, which amount shall be equally divided between my daughters, Susan and Ann Elizabeth,” directs also, that “ the remainder thereof shall be equally divided between my children.” Now, not a dollar could be made available under the will before the 1st of April 1875. The codicil was executed just four months before Mr. Snively’s death. The administration account, confirmed on the 10th of March 1874, showed the balance of his personal estate to be $274.93, which'was distributed to his unmarried daughter, Susan Snively, under the Act of the 14th of April 1851. It is a fair presumption that he knew, when the codicil was framed, that it was only from the fund charged on the lands devised that so significant a sum as $1500 could be derived. If, in order to raise that sum, he designed that the dates of payment which he had fixed should be anticipated, he would have so directed. Upon the theory of the plaintiffs, it would be necessary to hold that, under the terms of the codicil, ■ the payment not only of the $1500, but of the entire volume of the valuation money was accelerated, and that the 1st of April 1874, was the date for the liquidation as well as for the ascertainment of the shares of the children in their father’s estate. Unquestionably, there was no such intention in the testator’s mind. He had no design to impair the efficiency of the twelfth section of the will. He had no other view than to increase the shares of his two daughters $750 each, a due proportion of which was to be paid to them with their due proportion of the several successive annual instalments, for which the will had made provision. Any other construction would create absurd confusion in testamentary provisions that were intelligently conceived and accurately drafted, and which appear to be equitable, fair and just.

Judgment reversed, and judgment on the case stated for defendants.


author: Chief Justice Agnew

text:
    Rauch versus Commonwealth.
    1. The Local Option Act and Supplement, — March 27th 1872, and March 6th 1873, — repealed the right to grant a brewer’s license under former laws.
    2. The proviso of the special Act of March 27th 1866 (prohibiting the sale of liquors in Blair county, &c., except to licensed innkeepers), that manufacturers might sell by the cask, &c., did not, after the passage of the Local Option Law, save from prosecution a brewer selling in that county under a treasurer’s license.
    3. In an indictment against abrewer in Blair county, — which had, adopted the Local Option Law, — for selling beer without license, he pleaded specially the provisio in the Act of 1866 and his treasurer’s license ; the Local Option law being a general law the .Commonwealth need not reply the act; nor that Blair county had adopted it.
    4. A court will take judicial notice of things which are public in their effects and relations and ought to be known within their jurisdiction.
    5. A law required the imposition of a fine upon conviction for the first offence in unlawfully selling liquor, and imprisonment for a second similar offence. Reid, that in order to subject the defendant to imprisonment it must be charged in the indictment that he had before been convicted of such offence ; the rule applies to misdemeanors as well as felonies.
    6. A defendant was “ convicted of unlawfully selling liquor; and immediately afterwards, before the same judges, was convicted of a second sale ; on an indictment not charging that it was a second offence, the court sentenced him to imprisonment as for a second offence.” Held, to be error, and the sentence was reversed.

      7. In imposing a sentence, to leave to a judge to determine outside of the record that the offence has been committed, subjects the defendant to an unconstitutional mode of trial; the former conviction is a fact which must be determined by a jury.
    May 8th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of error to the Court of Quarter Sessions of Blair county: Of May Term 1875, No. 18, 19 and 86. The three writs were argued together.
    On the 28th of July 1874, No. 25 to July Sessions of the court below, an indictment was found against Frederick W. Rauch and Charles Rauch “ for selling spirituous, vinous and malt liquors,” &c., to Al. Mulligan and others. The defendants pleaded “not guilty,” and also a special plea, that as to so much of the indictment as charges the defendants with selling malt liquors without license, the defendants ought not to be prosecuted, &c., because Frederick W. Rauch had long owned, used, &c., a brewery in Hollidaysburg, Blair county, during which time, and at the time of the commission of the alleged offence, he manufactured and sold beer, the said Charles Rauch being his servant; that the beer charged as having been sold, was sold by the cask, of not less than five gallons, and was their own manufacture; that the brewery was duly rated by the mercantile appraiser of Blair county, and the said Frederick W. Rauch paid the sum assessed, and received from the treasurer a license to carry on the business of a brewer for one year from the 1st of May 1874 ; that an Act of Assembly of the 27th of March 1866, prohibiting thé licensing of any person to sell vinous, spirituous, malt or brewed liquors in the counties of Blair, &c., enacted that it should not be lawful to license any one to sell such liquors in the county of Blair, &c., ekcept to keepers of hotels, inns and taverns, with the proviso that the act should not be construed to prevent the manufacturers of such liquors from selling the products of their manufactures by the cask or barrel.
    Blair county was one of the counties in which the Act of March 27th 1872, Pamph. L. 49, and March 6th 1873, Pamph. L. 39, known as the “Local Option Law,” was in operation.
    July 29th 1874, the Commonwealth demurred to the special plea, and defendants joined issue on the demurrer. On the same day the court gave judgment for the Commonwealth on the demurrer, and on the 31st day of July sentenced the defendants jointly to pay a fine'of $100.
    The defendants took a writ of error, and assigned for error: entering judgment for the Commonwealth on the demurrer.
    At the same sessions, No. 26, of July Sessions 1874, another indictment was found (July 28th) against the same defendant for selling “spirituous, vinous and malt liquors” to West Athey and others.
    This indictment was in the same form as the first; it did not charge that it was the commission of a second offence. The defendants pleaded as before, and on the 29th of July, the Commonwealth demurred to the special plea. On the 29th of July the court gave judgment for the Commonwealth on the demurrer, and sentenced defendants as follows:—
    31st July 1874. It appearing to the court that this is a second conviction of defendants of a subsequent misdemeanor of selling liquor without license: they are sentenced to pay jointly a fine of one hundred dollars to Commonwealth of Pennsylvania for use of Blair county, and costs of prosecution, and to undergo an imprisonment in the county jail for the term of sixty days.
    The defendants took a writ of error; they assigned for error: — ■
    1. Entering judgment for the Commonwealth on the demurrer.
    2. Sentencing the defendants to imprisonment.
    On the 27th of January 1875 (No. 31, to January Session 1875), an indictment was found against Charles Rauch for selling “ spirituous, vinous and malt liquors ” to John McFarland and others; the indictment was in the same form as the other two indictments, there being no averment that this was a second offence.
    The defendant pleaded “Not guilty.” The jury found him guilty, and the court sentenced him as follows:—
    30th January 1875. Defendant sentenced to pay a fine of one hundred dollars to Commonwealth of Pennsylvania for use of Blair county, and costs of prosecution, and it appearing to the court that the said conviction is for a second and subsequent offence, the said defendant is further sentenced to imprisonment in the county jail for the term of ninety days.
    The Act of March 22d 1867, sect. 4, Pamph. L. 41, 2 Br. Purd. 947, pi. 51, enacts that any person convicted of selling liquors without license shall, for the first offence, be fined not exceeding one hundred dollars, and for the second shall be fined and imprisoned, &c.
    The defendant took a writ of error, and assigned for error that the court sentenced him to imprisonment. In each of the foregoing cases the sentences were suspended.

      S. S. Blair (with whom was F. P. Tierney), for plaintiffs in error.
    The Act of March 31st 1856, sect. 3, Pamph. L. 200, 1 Br. Purd. 176, pi. 4, authorizes the sale of beer in quantities not less than five gallons. The Act of March 27th 1866, sect. 1, Pamph. L. 332, authorizes brewers in Blair county to sell liquor of their own manufacture by the cask or barrel. To authorize imprisonment it should have been charged in the indictment that the offence charged was a second offence: 3 Whart. Crim. Law, sect. 3418; Smith v. Commonwealth, 14 S. & R. 69 ; Reg. v. Page, 9 C. & P. 756; Plumley v. Commonwealth, 2 Metcalf 408.

      A. S. Landis (with whom was J. F. Millihin, District-Attorney), for Commonwealth, defendant in error.
    The Act of 1872 was of a general character, and the vote on license was a public notorious act; the court might, therefore, judicially notice them ex motú suo: 1 Greenl. Ev. sect. 4.
   Chief Justice Agnew

delivered the opinion of the court, October 12th 1875.

These three cases will be considered together.

The plaintiffs in error rest their case on the right of Frederick W. Rauch to sell beer as a licensed brewer, under the Act of 7th of March 1866, Pamph. L. 332. This defence is common to two of the indictments, and is set out in special pleas. But his right to a brewer’s license was not derived from the Act of 1866. The proviso in the first section of the act only saved the right from the prohibition of the act, and thus enabled him to resort to former laws to obtain the license. Hence, the true question is whether the right to a brewer’s license, under former laws, was repealed by the Local Option Act of 1872, and its supplement of 1873, Pamph. L. 1872, p. 49; Pamph. L. 1873, p. 39. This has been settled by the decision of this court in the case of the Commonwealth v. Muller, (opinion by Justice Mercur, Legal Intel., March 6th 1874, p. 78.) By the express terms of the third section of the Act of 27th of March 1872, and the seventh section of the Act of 6th of March 1873, licenses for the sale of malt as well as of other intoxicating liquors were forbidden in every county in which the law went into operation. Nor is the right to the license saved by the proviso, that the act should not be construed to repeal or affect any special law prohibiting the sale of intoxicating liquors or forbidding the granting of licenses. The saving is of special prohibitory laws, but Rauch claims his license as not prohibited at all. His claim rests not on the Act of 1866, but on the former laws providing for licenses to brewers. These former laws are repealed by the Local Option Law wherever it operates.

It is contended, however, that the Act of 1872 not being pleaded or replied the court ought not to have noticed it. But the court having noticed it, the real question is whether it committed error in so doing ? The court having acted under the law, clearly it acted according to law, and it cannot be error when a court acts according to law. But I have no doubt the court was right in taking notice of it. The Act of 1872 is-a general law, applicable to the whole state ;■ the election under it is to be governed by the general election laws ; the result is to be duly certified and returned to the clerk of the Court of Quarter Sessions; the certificate must be laid before tbe judges of the Court of Quarter Sessions at the first meeting of the court after the election, and filed of record, and the judges are then to be governed by the result of the vote upon the question of granting licenses, and must, therefore, take judicial cognisance of the right to have a license. Thus, by the very terms of the law, the court is bound to know judicially whether the treasurer could grant a valid brewers’ license after the result of the vote had been judicially ascertained. Besides, on general principles, a court will take judicial notice of many things which are public in their effects or relations, as seen in Mr. Greenleaf’s Treatise on Evidence, § 4, vol. 1. “ In fine (says he), courts will take notice of whatever ought to be generally known within the limits of their jurisdiction.” § 6, chap. 2.

The next question is applicable to two of the indictments only, viz., Nos. 26 and 81, January 1874. These indictments set forth no former conviction for selling liquors contrary to law, yet the court, upon its own knowledge of its records, sentenced the defendants to imprisonment in the county jail as upon a conviction of a second offence.

This raises a serious question, whether a defendant can be made to suffer the greater punishment due to a second offence, without a trial, or being called on to answer for a second offence ? That in-cases of felony he cannot is proved by the case of Smith v. Commonwealth, 16 S. & R. 69. There the sentence for a punishment due to a second offence was reversed, on the ground that the fact of judgment for the former offence did not appear in the indictment. It was held that this must be part of the record. But it is contended that this rule does not apply to misdemeanors. It is hard to discover any solid ground of distinction. The right of trial by jury is not confined to felonies, and the fact of identity of person is the same in either case. Clearly, a recently commissioned judge could not tell whether the John Smith or John Jones, before him now, is the same John who was convicted under his predecessor several years ago. So, if the fact of a former conviction does not appear in the record, a court of error would have no means of determining whether the defendant was rightly sentenced as for a second offence, except by sending for the record of the former case and taking proof of the identity of the person defendant.

As a general principle the punishment inflicted upon a citizen for any offence should appear by the record to be the lawful consequence of his conviction of that offence. Now, imprisonment in jail is not a lawful consequence of a mere conviction for an unlawful sale of liquors. It is the lawful consequence of a second sale only after a former conviction. On every principle of personal security and the due administration of justice, the fact which gives rightfulness to the greater punishment should appear in the record. To leave to a judge to determine it outside of the record is to subject the defendant to an unconstitutional mode of trial. The right to a trial of a material fact, to constitute his offence, by his peers, is one of the fundamental rights of the citizen, excepted out of the power of the legislature to impair or destroy. The opposite argument is that the setting forth of the former conviction would prejudice the defendant in his trial. But clearly the substantive offence, which draws to itself the greater punishment, is the unlawful sale after a former conviction. This,' therefore, is the very offence he is called upon to defend against. He cannot complain if, after suffering a former conviction and sentence, he commits a second offence of the same kind. Besides, if he desires no trial upon the question of a former conviction, a court will take care of his interests, and see that he is not unduly prejudiced. The court below therefore erred in passing sentence of imprisonment as for a second offence.

And now, October 12th 1875, the sentence of the Court of Quarter Sessions of Blair county, upon the indictment numbered 25 of January Sessions 1874,is affirmed, and the record ordered to be remitted for execution, in due course of law. The sentences in Nos. 26 and 81, of January Sessions 1874, of the said Court of Quarter Sessions are reversed, and in each case the record is ordered to-be remitted to the same court, with direction to pass sentence upon the defendants in each case, as for the offence set forth in each indict- • ment respectively, and thereupon to proceed according to law.


text:
    Rough versus Commonwealth.
    1. An indictment for unlawfully selling liquor was found, leaving a blank for the name of the person to whom the liquor was sold. On the trial, after a witness had been examined, the court allowed a name to be inserted. Held, to be proper under the 13th sect, of Act of March 31st 1860 (Criminal Procedure).
    2. A sound discretion must be exercised by the court below under this act in each case upon its circumstances.
    3. The defendant, before the jury was sworn, could have moved to quash the indictment, and the court could have sent it to the grand jury for amendment or held the defendant to answer a new indictment.
    4. The indictment after the insertion stood as if the indictment had been found with the name in it.
    ,At the January Term 1875 of the Supreme Court, sitting in Philadelphia, an application for an allocatur was made by Charles Bough, who had been convicted at the January Term of the Court of Quarter Sessions of Blair county for selling liquor without license. The application was heard before the court in banc. The facts and the grounds of the application, are fully stated in the opinion of Chief Justice Ag-new, delivered March 9th 1875.
   The defendant was convicted of the unlawful sale of liquors without license, and was sentenced to pay a fine of $100 and the costs. He prays an allowance of a writ of error, on the ground that during the progress of the trial, and after a witness had testified, leave was given to amend the indictment by inserting the name of William Hewit, as that of the person to whom the liquor was sold. A blank had been left for the name. We are of opinion the amendment was proper and fell within the intent of the 13th section of the Act of 81st March 1860, relating to criminal procedure. Had another name been in the indictment, and evidence offered exhibiting a variance, the case would have fallen within the letter of the act. It seems to us a blank is not so great a variance as the averment of a wrong name. The former merely conveys no information; but the latter actually misleads. The remedy for any supposed hardships in these aspects is found in that provision of the l3th section requiring in all amendments to be allowed that, “it shall and may be lawful for the court before whom the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced in his defence upon such merits, to order such indictment to be amended according to the proof,” &c.

Thus a sound discretion must be exercised by the- court in each case upon its circumstances. We discover no abuse of that discretion in this ease. It was in the power of the defendant, before the jury was sworn, to move to quash the indictment, on the ground that a blank had been left in a material part of it. The court could then have taken care of the interests of the public by sending back the indictment to the grand jury, if in session, for amendment ; or if not, could have held the defendant to answer a fresh indictment. But after going on to trial, when the jury could not be safely discharged, the power to amend comes in aid of justice, to prevent a failure. Then the last provision of the 13th section is, that “ every verdict and judgment which shall be given, after making such amendment, shall be of the same force and effect, in all respects, as if the indictment had originally been in the same form in which it was after such an amendment was made.”

A motion to quash was made in this case before trial, but on a different ground, which was overruled by the court. The amendment, therefore, stands now as if the indictment had been originally drawn and found with the name of William Hewit in it.

The purpose of the revisers of the criminal code was to prevent a failure of justice through too rigid an adherence to forms. The 13th section is a most necessary and useful provision to this end, and ought not to be frittered away by unfriendly interpretation.

Allocatur refused.


author: Mr. Justice Paxson

text:
    McKinney versus Snyder.
    1. The object of a point is to obtain a clear and reliable instruction to aid the jury in the formation of an intelligent verdict.
    2. The court should decline to receive a point when it is so obscurely worded as to confuse the jury.
    3. An acknowledgment of a debt to take it out of the Statute of Limitations must be made to the creditor or his agent.
    4. An acknowledgment of a debt made to the agent of the creditor without the knowledge of the debtor that he was such agent has no more force than if made to a stranger.
    5. A promise to pay to take a debt out of the statute ought to be made under circumstances which indicate an actual intention to pay.
    6. The Act of 1869 allowing parties to testify should prevent the relaxing of any of the rules of law under the Statute of Limitations and of Frauds.
    May 12th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1875, No. 95.
    • This was an action of assumpsit, brought November 19th 1872, by Henry Snyder against S. D. McKinney, to recover a balance which the plaintiff alleged was due on account of the purchase-money of a store sold to the defendant on the 3d of May 1860. The only question in the case was raised by the plea of the Statute of Limitations.
    The case was tried January 18th 1875, before Herman, P. J.
    The plaintiff testified that he sold his store to the defendant and W. L. McCullough for $1488.94; McCullough paid the half of this sum in the year 1860 ; the defendant made partial payments on the other half up to the spring of .1862, when a balance was struck, showing $297.84 against him; he continued to occupy plaintiff’s store during that year, at the end of which there was due for rent the further sum of $50, making the whole amount then owing the plaintiff to be $347.84. Plaintiff further said, that he had a conversation with defendant in 1873; he said he owed plaintiff about $350, and thought he would pay him before long; wanted to pay plaintiff as well as other creditors; there had been different conversations about the claim, but in the last defendant was positive he wouldpay before long.
    George Jacoby testified; * * * “ About three years ago I met McKinney on the train going from here to Newville; I urged him to come back to his old place and buy Sherman out; he said he- • didn’t think it would suit, as he and Snyder were not on good terms; he didn’t think he would rent to him; said he owed Snyder, and I said, how much is it ? he said between $300 and $400 ; 1 told him he would better fix it up, that they were both good men,, and they'ought not to be at loggerheads; he said he intended to-pay it, and he would pay it; in his conversation he said the debt he owed Snyder was an old debt on account of the store; Snyder gave me accounts to collect; this account against McKinney was one.”
    On cross.-examination, he said: * * * “ Didn’t go to Mercers-burg to collect this account: didn’t write to him ; met him in cars by accident; had only one conversation with him since he moved ■ away, which was the one on the train ; had conversation about account before he moved away — evening before he went; he told me he was moving next day ; I urged him to stay; said he would like to stay, but that he and Snyder had got at loggerheads, and he would have to go ; that he was afraid he would give him trouble; he gave me to understand the troubles were financial troubles about the balance.”
    The defendant testified in direct contradiction to both the plaintiff and Jacoby.
    The plaintiff’s third point, which was affirmed, was: “ If the jury believe that the testimony is contradictory in itself, and inconsistent with truth, and that the defendant has been contradicted in material facts, the plaintiff is entitled to recover.”
    The following were points of the defendants, with their answers:—
    3. The testimony of Jacoby, even if believed by the jury, does not show a definite, certain, precise, unambiguous admission of a debt due to the plaintiff, and a promise to the plaintiff to pay immediately. It not being proved that McKinney had any knowledge that witness was acting for Snyder, the plaintiff, or that he was Snyder’s agent, nor is it shown that Jacohy communicated to Snyder the conversation of McKinney with him, Jacoby.
    Answer. “We cannot answer this point exactly as'requested,' but say that if Jacoby "were acting as the agent of plaintiff for the collection of this debt, and defendant knew of such agency, then the evidence of Jacoby shows such an acknowledgment of the debt and promise to pay it by the defendant as would remove the bar of the statute. There is, however, no evidence in this case tending to show that the alleged agency of Jacoby was communicated to defendant.”
    5. The plaintiff having failed to prove such an admission of the debt and promise to pay as takes the case out of the Statute of Limitation, he cannot recover.
    Answer. “We cannot answer this point as requested. There is some evidence, though slight, of the acknowledgment of the debt and promise to pay. This evidence, however, is contradicted by the positive denial of defendant, and it becomes a question of fact for you to determine whether there was within six years next preceding the time of bringing this suit, an unqualified and direct admission of the debt and promise to pay it by defendant, and that such admission was made to the plaintiff.
    The verdict was for the plaintiff for $574.48.

      The defendant took a writ of error, and assigned for error the answers to the points.

      W. F. Sadler (with whom was J. M. Weakley), for plaintiff in error.
    Admissions to Jacoby were of no avail to take the case out of the statute, unle'ss defendant knew that he was the agent of the plaintiff: Farmers’ and Mechanics’ Bank v. Wilson, 10 Watts 262 ; Morgan v. Walton, 4 Barr 321; Kyle v. Wells, 5 Harris 290. The admission must be positive, distinct, unqualified, such as would maintain the promise in a declaration : Tanner v. Smart, 6 B. & C. 602; Hart v. Prendergast, 14 M. & W. 741; Laforge v. Jayne, 9 Barr 410.

      A. M. Rhoads, for defendant in error.
    Jacoby’s statement was corroborative of the plaintiff’s testimony: Davis v. Steiner, 2 Harris 279. An unequivocal admission of indebtedness is sufficient to take a case out of the statute: McClelland v. West, 9 P. F. Smith 487. The admission and evidence was for the jury: Barwell v. Wirth, 11 P. F. Smith 133. The promise was certain and within full reach of the statute: Yaw v. Kerr, 11 Wright 333; Wolfensberger v. Young, Id. 516; Hazlebaker v. Reeves, 2 Jones 264; Fries v. Boisselet, 9 S. & R. 128; Eckert v. Wilson, 12 Id. 393; Bailey v. Bailey, 14 Id. 195.
   Mr. Justice Paxson

delivered the opinion of the court, May 24th 1875.

The plaintiff’s third point as submitted was insensible, and ought not to have been affirmed. It is impossible for us to form even a rational guess at the effect, if any, of such a point upon the minds of the jury. It may have misled them ; by no possibility could it have thrown any light upon the questions of fact which they were called upon to determine. The true object of submitting a point to the court is to obtain a clear and reliable instruction to aid the jury in the formation of an intelligent verdict. The court should decline to receive a point, when it is so obscurely worded as to confuse rather than enlighten the jury.

There was error in the answer of the learned judge of the court ■ below to the defendant’s third point. It should have been affirmed. There was not a scintilla of proof to show that the defendant knew that Jacoby was acting as Snyder’s agent. In the absence of such knowledge, the admission has no more force than if made to a stranger.

We are aware that the unbroken current of English authority, with perhaps the exception of a dictum of Baron Parke’s in Rodgers v. Arch, 10 Exchequer 333, in which he dissents from the rest of the court, is full to the point that a promise made to a stranger is sufficient to take the case out of the statute. So too are the deeisions of many of our sister states: Minkler v. Minkler, 16 Verm. 194; Bird v. Adams, 7 Geo. 55; Bloodgood v. Bruer, 4 Sand. 427; Watkins v. Stevens, 4 Barb. 168; Carshore v. Hwyck, 6 Id. 583; Titus v. Ash, 4 Foster 319. But the rule is different in this state. It was distinctly and definitely decided in Kyle v. Wells, 5 Harris 286, that a promise, to take the case out of the statute, must be made to the plaintiff or his agent. Kyle v. Wells was followed by Gillingham v. Gillingham, decided at the same term, and reported in the same volume, at page 302, in which the same principle is reasserted. While our own cases are clearly at variance, upon this point, with the current of authority elsewhere, we prefer to adhere to them, not only because the maxim stare decisis ought not to be departed from unless for weighty reasons, but also because we believe our own rule a sound one. To attempt to reconcile the conflicting decisions upon the Statute of Limitations would be a hopeless task. There is no branch of the law upon which the courts of the different'states have differed more widely, particularly as to what is a sufficient promise to take a case out of the statute. Our own rules being not only well settled, but supported by sound reason, we propose to adhere to them. If the promise bo made to an agent of the plaintiff, we think 'it necessarily follows that the defendant must be aware of the agency at the time of the promise. A promise made to a stranger is a mere declaration of intention, which the promissor may change at pleasure. To ho binding upon him it ought 'to be'made under circumstances which indicate an actual intention to pay the debt; not a mere loose declaration. As was observed in Kyle v. Wells, supra, it is a perversion of the word promise to apply it to a declaration made to one who has no interest in, or connection,with, the subject spoken of.” In the Farmers’ and Mechanics’ Bank v. Wilson, 10 Watts 261, it was held that an acknowledgment, such as will avoid the operation of the statute limiting the time within which an action may be brought for the recovery of lands, must be made to the owner, or his agent known as such. Says Huston, J.: No loose conversations, no inferences from what was said many years ago; no expressions to neighbors, or strangers to the title, will deprive a man of the protection of this most beneficial statute.” We may well apply by analogy this vigorous language to the present case. The practical working of the recent Act of Assembly, allowing the parties in a controversy to be examined as witnesses on their own behalf, admonishes us that it would be unwise to relax any of the rules of law in cases arising under the Statute of Limitations, and of Frauds and Perjuries. We see no .further error in this record. To have answered the defendants’ fifth point affirmatively, would have withdrawn the case from the jury.. This could not have been done under the evidence given by the plaintiff.

Judgment reversed, and a venire facias de novo awarded.