text:
    Dowling, Administratrix, versus McGregor.
    The only defence in the trial of a scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof. 1.
    2. If one of several joint defendants in a judgment dies, a scire facias may issue against the survivors and the executor or administrator of the decedent. As the real and personal estate of a deceased joint debtor are assets for the payment of his debts, in the hands of his personal representatives, no sound reason exists why his representatives shall not be joined with the surviving defendants in a scire facias on the judgment.
    October 23d 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1879, No. 27.

      Scire facias quare executionem non on a judgment by Daniel McGregor against W. S. Craft and Sarah Dowling, administratrix of Hugh Dowling, deceased. The original judgment was entered by the prothonotary on a judgment-note signed by Craft, who was the principal debtor, and Dowling, who was surety, for $175, payable ten months from date. The scire facias in this suit was on this judgment against Craft and Sarah Dowling, administratrix of the estate of Hugh Dowling, and judgment was entered against both defendants for want of an affidavit of defence. Afterwards this judgment as to Sarah Dowling, administratrix, was stricken off, and as to her plaintiff entered a rule to arbitrate, and an award was filed finding for plaintiff in the .sum of $181.35, from which the administratrix appealed. At the trial before Jenks, P. J., the defendant proposed to prove: “ That McGregor, the plaintiff, and Craft, the defendant, conspired together to make Hugh Dow-ling drunk, to defraud him, and when in a state of utter drunkenness, without one dollar of consideration, obtained his signature to the note on which judgment is entered.” Also to prove, “that from 1870 till the date of the death of Dr. Hugh Dowling, he was utterly unfit from intemperate habits to do business, to be followed by proof that McGregor was present when the note was signed, and that Craft, the co-defendant, had been and was plying Dowling with whiskey to get him to sign the note, and that Dowling was only bail and Craft utterly insolvent at the time. Also, that Craft and McGregor obtained the signature of Dowling to two other notes as security for large amounts, and that no sufficient consideration was paid by McGregor to Craft for the note.”
    Both offers objected to for the reason that in no case or under any circumstances can the merits of an original judgment .be inquired into for the purpose of furnishing a defence to a scire facias.
    The court rejected both offers.
    Verdict for plaintiff, and after judgment, Sarah Dowling took this writ and alleged that the court erred in rejecting the above offers of evidence and in entering judgment on a seire facias quare exeeutionem non, in the usual form against Sarah Dowling, she being an administratrix; and in entering judgment against Sarah Dowling, administratrix of Hugh Dowling.

      Jenks & Clark, for plaintiff in error.
    The original note was fraudulently obtained, and all the subsequent proceedings thereon were pervaded by the fraud, and are therefore void. The plaintiff had no right to a joint judgment generally against the survivor and the administratrix of the decedent: Commonwealth v. Miller, 8 S. & R. 451; Strover v. Shuman, 9 W. & S. 85.

      White & Scott, for defendant in error.
    A seire facias will lie against survivors and the executors or administrators of a decedent: Bellas v. Vanderslice, 8 S. & R. 451; Huston v. Mateer, 16 S. & R. 416; Bressler v. Miller et al., 1 Leg. Ch. Rep. 128. Under no circumstances can the merits of the original judgment be inquired into for the purpose of furnishing a defence to a scire facias: Cardesa v. Humes, 5 S. & R. 67; Lysle v. Williams, adm’x., 15 S. & R. 135; Davidson v. Thornton, 7 Barr 131; P., C. & St. L. Railway Co. v. Marshall, 4 Norris 190.
    January 5th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a scire facias on a judgment recovered against Craft and Dowling jointly. After its rendition, Dowling died, and this scire facias issued against the survivor, Craft, and the plaintiff in error, as administratrix of Dowling, deceased. Judgment by default was taken against Craft. A verdict was afterwards rendered against the plaintiff in error, and judgment entered thereon. To this last judgment this writ of error was taken.

The first and second assignments are to the rejection of evidence. The offers show an attempt on this trial to inquire into the merits of the original judgment. That such an inquiry cannot be entered into on the trial of a scire facias on the judgment, is settled by numerous authorities: Cardesa v. Humes, 5 S. & R. 68; Lysle v. Williams, 15 Id. 135; Davidson v. Thornton, 7 Barr 128; McVeagh v. Little, Id. 279; Stewart v. Colwell, 12 Harris 67; Pittsburgh, Cincinnati & St. Louis Railway Co. v. Marshall, 4 Norris 190. The only defence in the trial of a scire facias on a judgment is a denial of the existence of the judgment, or proof of a subsequent satisfaction or discharge thereof. The fact that usurious interest had been paid prior to the recovery of the judgment, places a defendant in the trial of the scire facias on no higher ground, and does not change the rule: Rutherford v. Boyer, 3 Norris 347. The evidence was properly rejected.

The third assignment was withdrawn. The fourth and fifth are without merit, and require no discussion.

The sixth and seventh relate to the form of the scire facias, and judgment against the plaintiff in error. It was formerly held in case of a judgment against joint defendants, and one of them dies, his personal property was discharged from execution; but the plaintiff therein might have execution of the lands and tenements of the deceased party which were bound by the judgment at the time it was obtained. In such case, it was held error for the writ of scire facias to call on the administrator of the deceased party to show cause why the plaintiff should not have execution against the “ goods and effects ” of the deceased in his hands: Stiles et al. v. Brock et al., 1 Barr 215. The statute of Westminster II. made the remedy against the land bound by the lien, effective by scire facias against the survivor and the heirs and terre-tenants of those who had died. Under our practice, the executor or administrator is substituted for the heir: Commonwealth v. Miller’s Adm’rs, 8 S. & R. 452. Hence, if one of several joint defendants in a judgment dies, a scire facias may issue against the survivors and the executor or administrator of the deceased: Commonwealth for use of Huston et al. v. Mateer et al., 16 S. & R. 416.

The error pointed out in Stiles v. Brock, supra, in seeking execution against the “ goods and effects ” of the deceased in the hands of the administrator, was cured by the Act of 11th April 1848, Pamph L. 536. It declares, “when a judgment shall hereafter be obtained against two or more co-partners, or joint or several obligors, promissors, or contractors, the death of one or more of the defendants shall not discharge his or their estate or estates, real or personal, from the payment thereof; hut the same shall he payable by his or their executors or administrators as if the judgment had been several against the deceased alone.” The right to prosecute a claim founded on a joint contract against the survivor and the personal representatives of the decedent, when one or more of the defendants dies during the pendency of the action, is given by the first section of the Act of 22d March 1861, Purd. Dig. 39, pi. 12. It declares, “ the same shall be proceeded in to judgment and execution against the estate of said decedent, as though the said suit or suits had been commenced against their decedent or decedents alone:” In Dingman v. Amsink, 27 P. F. Smith 114, it was held proper under this act to substitute the personal representatives of the decedent, and for the suit to proceed to trial, and judgment against them and the surviving defendants jointly.

As, therefore, both the real and personal estate of a deceased joint debtor are assets for the payment of his debts, in the hands of his personal representatives, no sound reason exists why the representatives shall not be joined with the surviving defendants in a scire facias on the judgment. In the present case, the scire facias recited the recovery of the judgment during the life of the defendants therein and the death of Dowling. It called on the plaintiff in error as his administratrix, and the survivor, to appear and show cause why said judgment “ ought not to be revived and continue a lien on their real estate during another term of five years, and why the said McGregor ought not to have execution against them for the debt, interest and costs thereof, according to the form and effect of the recovery aforesaid.” The unmistakable purpose of the writ was to keep the judgment good against all the property then chargeable with its payment. The form of the judgment cannot prejudice the rights of the plaintiff in error. The court can so restrain and direct the execution as to do her no injury. The spirit of the act has been followed, and we discover no such irregularity in the judgment as to call for its reversal.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Shaw versus Bowman.
    1. The right of the outgoing tenant to the way-going crop is settled law in Pennsylvania. It follows that he may dispose of it as he may of any article of personal property.
    2. A tenant sold his right to a way-going crop, and the purchaser so notified the landlord. Subsequently the lessee and the lessor concluded a settlement, whereby the lease was cancelled, and possession of the premises surrendered. The purchaser of the crop was not a party to this settlement. Reid, that he was not thereby precluded from claiming the crop.
    October 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Stbrrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1879, No. 26.
    Trover and conversion by J. H. Bowman, to the use of J. W. Bowman, against A. A. Shaw.
    Shaw, the defendant, owned a farm in Erie county, and on March 23d 1873 leased it to J. H. Bowman for a term of two years from April 1st 1873. The lease contained the following condition:—
    “ The party of the first part furnishes one-half of all seed, except grass seed, and receives one-half the proceeds; and further, he pays all taxes on Said farm, except road tax. He also leaves on farm (certain horses, cattle, wagons, &c.), for which the party of the second part agrees to pay to the party of the first part 6 per cent, interest on one-half the above valuation; and the party of the second part further agrees that if, at any time during the term of said lease, any of the above-named live-stock should die he will" pay to the party of the first part one-half the above valuation of said stock; and further, that at the expiration of said lease, he leaves on farm the same amount of stock that he receives, except what may have died and not been replaced or sold by consent of both parties. All repairs to be borne equally by both parties. The party of the second part further agrees that the party of the first part shall receive one-half the proceeds for pasturing and for feeding droves at the barn out of undivided provender. The party of the first part shall furnish all grass seed needed for farm.”
    In the fall of 1874, Bowman sowed five acres of this farm with wheat, and in the following January sold, his interest in this wheat to his brother, J. W. Bowman, for whose use the above suit was brought. On the 1st of February thereafter, J. W. Bowman saw Shaw, and notified him that he had bought his brother’s interest in the wheat.
    In March 1875, Shaw and J. H. Bowman concluded a settlement, which was reduced to writing, as follows:—

      “Now, March 11th 1875, on the settlement of all accounts between A. A. Shaw and J. H. Bowman, there is due to A. A. Shaw to this date $38.17, as shown by J. II. Bowman’s books and agreed to by both parties; and this day the lease between them of the matter of the farm is cancelled, and Mr. Shaw takes possession of the same, together with the stock thereon, and says that he is satisfied with the conditions in which the said stock is delivered to him.”
    In the summer of 1875, J. W. Bowman hired the necessary men to cut the wheat, and went to the field for that purpose, but was not permitted by Shaw to cut it.
    This suit was brought for the purpose of recovering the value of one-half of the wheat, less the expense of harvesting and threshing it.
    At the trial, before McDermitt, P. J., the plaintiff submitted the following points, to which are appended the answers of the court:
    1. If the jury believe from the evidence that previous to the settlement between Shaw and Bowman, of March 11th 1875, Shaw was informed that J. W. Bowman had bought the interest of J. H. Bowman in the wheat, and that said wheat, or the value of it, did not enter into said settlement, then the plaintiff in this case is entitled to recover the value of the one-half of the wheat and interest on same, less one-half the expense of harvesting, &c.
    Ans. “ This point is affirmed; but such notice must have been given Shaw by J. W. Bowman himself, for there is no evidence that he authorized any other person to communicate the fact to Shaw.”
    2. If the wheat in dispute did not form part of the settlement of March 11th 1875, and the jury believe from the evidence that Shaw has not paid plaintiff fo‘r said wheat, then the cancelling of the lease by the parties to it does not in any manner affect the right of the plaintiff to recover.
    Ans. “ Whether the lease was cancelled as between Shaw and J. H. Bowman is immaterial to this issue, provided the evidence satisfies you that J. H. Bowman assigned the wheat to J. W. Bowman prior to the settlement of 11th of March 1875, and that the latter notified Shaw of the same prior to said settlement. Thus explained, this point is affirmed.”
    The first and second points of defendant, with the answers of the court thereto, were as follows :—
    1. That the equitable plaintiff’s right or ownership, if any, in the way-going crop, the property in controversy in this suit, grew out of the relation of landlord and tenant between the defendant, A. A. Shaw, and the legal plaintiff, J. H. Bowman, created by the lease put in evidence, dated March 26th 1873, and the said lease having been cancelled by the written consent of the parties thereto, and the possession of the premises surrendered to the landlord before the expiration of the term, the relation of landlord and tenant thereby became extinguished, and with it all right of re-entry for the way-going crop by the tenant, or other person in his right, and therefore this action cannot be maintained, and the verdict must be for defendant.
    Ans. “ So far as J. H. Bowman is concerned, this point is affirmed; but as to J. W. Bowman, is refused, as explained in the general charge.”
    2. That the right of a tenant to the way-going crop depends (in the absence of express stipulations) upon the continued relation of landlord and tenant to the end of the term, and that any extinguishment of such relation before the end of the* term by release, cancellation, surrender of the premises or otherwise, destroys any right of re-entry for the way-going crop, and the tenant in this case having cancelled the lease and surrendered the premises to the landlord, lost all right to the way-going crop and of re-entry for the same, and J. W. Bowman, his assignee, could not have any better or greater right of re-entry than he had, and therefore this action cannot be maintained, and the verdict must be for the defendant.
    Ans. “ The law is well stated in the point as between Shaw and J. H. Bowman, but is answered in the negative as to J. W. Bowman.”
    In the general charge, the court, inter alia, said:—
    “ The lease between the original parties to it contains no stipulation prohibiting J. H. Bowman from assigning all or any portion of his interest in it to any person he saw fit. He could, therefore, without the consent of Shaw, sell or assign his entire interest, or any part of it, to J. W. Bowman, and the latter thereby became jointly liable with the former, at least to the extent of his interest so acquired, to Shaw, for the fulfilment of the lease with Shaw. * * * If J. H. Bowman assigned to J. W. Bowman his interest in the wheat before the 11th day of March 1875, as he claims his evidence shows, and if it also shows that he notified Shaw of the same prior to said date, then the relation of landlord and tenant between them began to run as to said wheat field, and would continue to run until the wheat was harvested and a reasonable time thereafter for threshing and removing J. W. Bowman’s share of the wheat and straw from the premises.”
    Verdict for plaintiff, when defendant took this writ, and alleged that the court erred in the answers to the foregoing points and the portions of the charge noted above.
    G. A. Allen and L. Rosenzweig, for plaintiff in error.
    The tenant, in order to hold his initiate right to the way-going crop, must continue the tenancy to the end of the term, or rather must see to it that the tenancy be not merged or destroyed before its natural termination by the terms of the deed creating it. Any act or thing done that will extinguish the estate will likewise totally extinguish any right of the tenant to the way-going crop: Greider’s Appeal, 5 Barr 422.
    The effect of a surrender operates alike upon the rights of both landlord and tenant. It extinguishes all rights of the landlord and all rights of the tenant issuing out of the estate surrendered.

      Davenport & Griffith, for defendant in error.
    November 10th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The right of the outgoing tenant to the way-going crop is settled law in Pennsylvania. It follows that he may dispose of it as he may of any other article of personal property. To deny this right would, in many instances, deprive the tenant of any beneficial use of his crop. He may die between the expiration of his term and the succeeding harvest. No one doubts in such case the crop would pass to his executor or administrator as a part of the assets of his estate, and may be gathered by him under the conditions of the lease, or sold to a stranger as any other chattel. Or the tenant may move away to a point so distant that the expense of returning to harvest it would equal the value of the crop. In such case if he may not sell it, and the purchaser be entitled to gather it, the tenant would be practically deprived of it. Such is not the law.

In this case J. H. Bowman, the tenant, sold his interest in the wheat crop to his brother, J. W. Bowman, and the latter gave the landlord notice thereof. After this notice, and a few days prior to the expiration of the term, J. H. Bowman settled with his landlord ; cancelled the lease, and surrendered the possession of the demised premises. It was contended that because of this settlement to which J. W. Bowman was not a party, the latter lost his right to the crop. The reason given is that the surrender extinguished the estate of the tenant, and that the right to the way-going crop fell with it. Grreider’s Appeal, 5 Barr 422, was cited in support of this view. That case decided that after a surrender by the tenant to his landlord, the latter cannot claim rent. It may be that the settlement by J. H. Bowman with his landlord ; the cancellation of the lease, and the surrender of the possession without any reservation of the wheat crop, would have prevented him from claiming it. But even if this be so why should .not J. W. Bowman, the purchaser of the wheat crop, be entitled to take it away ? When he bought it J. H. Bowman had full control and dominion over it. It was his property and the sale of it was forbidden by no rule of law or public policy. The landlord was notified of the sale prior to the settlement referred to. The wheat belonged to J. W. Bowman at the time the settlement was made. It was a matter therefore which could not have been affected by that settlement had the parties wished or intended it. It does not appear, however, to have been referred to or considered. This was probably owing to the fact that the parties both knew they had nothing to do with it.

I concede the relation of landlord and tenant did not exist between Shaw and J. W. Bowman. This is not material to the point in controversy. The relation of landlord and tenant always ceases with the expiration of the term and surrender of possession. The tenant comes back for his way-going crop after his term has expired. He does so not by virtue of his lease, for no such right is usually reserved therein, but by the custom of the country. It is a part of the common law. The lease shows that he was formerly a tenant, and the proportions in which the crop is to be divided, or his right to the whole, as the case may be. He ploughs and sows by virtue of the lease, but it is the common law that assures to him the harvest.

The rulings of the learned judge are free from error, and his judgment therefore is Affirmed.


author: Mr. Justice Trunkey

text:
    Gloss et al. versus Black.
    1. Where goods of a stranger to an execution are seized and held under it, they are in the custody of the law, and while so held the owner cannot take possession nor maintain replevin.
    2. The law does not attribute constructive possession to the owner of property which it has in its own control by means of an officer. A mere purchaser at a sale by the officer, who receives from him immediate possession, is not responsible in trespass. His purchase does not of itself make him a participant in the wrongful seizure, and he is not made a trespasser by relation.
    October 23d 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1879, No. 122.
    Trespass vi et armis, de bonis asportatis, by Jacob Black, against Philip Gloss, Joseph Hoofnagle, John H. Walker and John Young.
    The facts were these:
    On the 10th of May 1877, R. J. Dahle obtained a judgment, before Justice Adam Black, against R. M. Shaw, and soon after issued an execution to John Young, a constable, who, by virtue thereof, regularly levied upon and sold, as the property of Shaw, certain rig timbers, about thirty-two pieces, to Philip Gloss, for $40. Gloss immediately gave the property in charge of a man he had hired to watch it, and the same day, or the next, began to have it hauled to his home, which he accomplished within a few days. No notice of any adverse claim was given at the constable’s sale, nor did Gloss have any knowledge of any such claim till after he had hauled a considerable part of his purchase away. Hoofnagle and Walker were Gloss’s hands who did the hauling; John Young was the constable who sold the property. After he had delivered the timber to Gloss he had nothing to do with it. On part of Black, the plaintiff, it was claimed that he had bought the timber of Rockwell and McCool on the 16th of April 1877, who, .he claimed, had owned it. On part of defendant it was alleged the property had been cut off Shaw’s land, taken out and hauled by himself and Peters, Rockwell and McCool, as his employees, and that the property belonged to Shaw at the time of the levy. At the time of the levy and sale of the timber by the constable, it was lying at the side of the public road where it had been dropped as it had been hauled out of the woods — the public road at that place running over lands of Black, the plaintiff. The constable’s sale of the timber was made at the place where it was lying, the constable standing on the timber at the time, and immediately after the sale he delivered possession to Gloss, the purchaser, and gave him a bill of sale and receipt for the money.
    At the trial the court, Jenks, P. J., charged the jury, inter, alia, as follows:
    “It will be remembered that there was no change in the possession of the property — by no change I mean no manual taking hold of the property and removing it — by the constable from the place where he found it; nor is there any evidence to show that the constable, when he sold it, manually delivered it into the possession of Gloss, by changing it from the possession of the land in whose possession he found it, save the change was to simply turn it over to him and simply mark his name. Under these facts, it is said there can be no recovery against Gloss and his hands. Plaintiff replies that there can be a recovery against all, for the reason set forth in his points as follows:
    “First. The issuing of an attachment, under the Act of 1874, without a bond being filed by the plaintiff, as required by the act, was without authority, and proceedings under it were void, and Young, and all persons aiding or assisting in the seizure and removal of the plaintiff’s property, were trespassers, and liable in this suit: Paxton v. Steckel, 2 Barr 93.
    “ We decline to answer this point as requested.
    “ Second. There is no evidence of what the execution was, not even its contents, nor what the advertisement contained, nor is it in evidence that the constable had an execution issued by the justice at all. It may have been, for all that appears, a blank piece of paper; and a sale made under such circumstances would be no defence to the constable, and all participating in the taking and carrying away of the property of the plaintiff would be trespassers.
    “We answer that, in the absence of the execution, and the uncertain character of the testimony, we confess our inability to exactly declare the rights of the parties under it. If there was an execution, and the constable levied upon and sold the property under it to Gloss, and Gloss did no more than purchase the property, he would not be a trespasser. It would be different with the constable if he seized the property under an execution on a judgment obtained against another. For further answer we refer to the answer to defendant’s point.
    “ Third. There is no proceeding on the justice’s docket authorizing him to enter a judgment against defendant, and the judgment entered by him, and the execution issued thereon, are nullities, and would not justify the constable in attaching the property, or the other defendants in removing it, and all are trespassers.
    “ We decline to answer this as requested, and for further answer refer to answer to defendant’s point.
    “ You will see there is a difference between the parties. ■ As to the constable, if he levied on the property of Jacob Black, he is responsible, and as to him, we instruct you, that if it was Black’s property the execution would be no justification, and as to him we would have to give a verdict in favor of the plaintiff for the full value of the property; so we leave him out. Then is Gloss, as well as the others responsible ? The defendant says not; they say;
    “ First. That if the defendant, Gloss, purchased the timbers in dispute at constable’s sale on an execution under a regular levy and sale, and the constable delivered him possession thereof in pursuance of such sale, their verdict should be, as to Philip Gloss, Joseph Hoofnagle and John H. Walker, for defendants.
    “ They do not pretend that the verdict should not be against the constable, but say it should be against the constable alone — in favor of Jacob Black for the lumber proved against the constable— that it should not include the others. As to that point we answer as follows:
    “ If the property belonged to the plaintiff, and the constable had removed it and delivered it, off the premises to Gloss, the constable alone would be responsible as a trespasser: but if he levied on it while on the plaintiff’s premises, permitted it to remain there, sold it there, and the lumber remained there unremoved, and there was no other delivery than the simple turning of it over to the defendant, and Gloss, and he and the other defendants afterwards enterejl and, against the consent of the plaintiff, took it away, they would all be responsible for such amount of timber as was lying upon the plaintiff’s premises.
    “We say there seems to be but little controversy that as to the constable there could be a recovery for the value of the timber. As to the others, there should be a recovery against them also, for so much timber as was found on the plaintiff’s premises, if the following facts be found by the jury: That the property belonged to Jacob Black. If the property belonged to the plaintiff, and the constable had removed it, and delivered it off the premises to Gloss, the constable alone would be liable as a trespasser; but if he levied on it while on the plaintiff’s premises, permitted it to remain there, sold it there, and the lumber remained unremoved, and no other delivery than a simple turning of it over to the defendant, Gloss, and he and the other defendants afterwards entered, against the consent of Black and took it away, all would be responsible for the value of the timber thus interfered with on his premises.”
    Verdict for plaintiff against all the defendants for the value of the timber and interest, when the latter took this writ and alleged that the court erred in the answer to defendant’s first point, and in the portions of the above charge.

      Wilson & Jenks, for plaintiff in error.
    Trespass can only be maintained when the plaintiff has the actual or legal possession of the property. When the constable made the levy the plaintiff’s constructive possession was gone, and that without an actual manual possession by the constable: Paxton v. Steckel, 2 Barr 93.
    The possession and charge of the watchman, put there by Gloss, was a continuance of the possession the constable gave him when on the timber. A purchaser at a sheriff’s or constable’s sale, who participates in the transaction only by purchasing the goods, is liable to the owner in replevin, but not in trespass : Ward et al. v. Taylor, 1 Barr 238.
    An owner whose property is wrongfully seized and sold by the sheriff cannot maintain trespass against the purchaser for taking the property away; Hammon v. Fisher, 2 Grant 330; Talmadge v. Scudder, 2 Wright 518.

      James Campbell, for defendant in error.
    November 17th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

To maintain this action it is absolutely necessary that the plaintiff, at the time of the trespass, had the actual possession or the right of taking it. Where goods of a stranger to an execution, are seized and held under it, they are in the custody of the law, and while so held the owner cannot take possession, nor maintain replevin. The law does not attribute constructive possession to the owner of property which it has in its own control by means of an officer. A mere purchaser at a sale by the officer, who receives from him immediate possession, is not responsible in trespass. His purchase does not of itself make him a participant in the wrongful seizure, and he is not made a trespasser by relation: Hammon v. Fisher, 2 Grant 330; Ward v. Taylor, 1 Barr 238; Talmadge v. Scudder, 2 Wright 517. Young, the constable, seized and sold the timber. After such turning over and delivery as he immediately made to the purchaser, he did nothing. He had no interest in the timber and was not liable on an implied warranty of title. Before the sale, Gloss and his employees had in nowise participated in the acts of the constable. There is no evidence that Young and the other defendants acted in concert at any time. Can it be pretended that a public sale of goods in custody of the law, by its officer, without more, makes the officer and the purchaser joint trespassers ? Were this so then in all cases where the officer had committed a trespass in the seizure, the purchaser would be jointly responsible; but it is settled, as we have seen, that he is not. “ Separate acts of trespass where there is no concert will not authorize a joint recovery, although the injury be common and produced in part by each of the acts complained of:” Bard v. Yohn, 2 Casey 482.

We think the defendants’ point should have been affirmed, for there was some evidence of the facts therein assumed. The timber was alongside the public road and on the plaintiff’s land. Gloss testified that the constable delivered it into his possession at the time of sale; that he hired a man to watch it, soon as bought; that he commenced hauling it the same or the next day, and had it nearly all away before he knew Black claimed it, and then Black permitted him to haul the rest. If this be the whole truth he was not a trespasser. Bidders at a sheriff’s or constable’s sale, made on the land of the owner of the goods, are not trespassers. Nor are buyers who take away their purchases as they leave. Nor is the purchaser of timber, situate as this was in reference to a public road, who, without violence, continuously holds possession for the necessary time for bringing teams to haul it away. But in another view of the facts, which the jury might well have found and to which their attention was directed in the charge, Gloss and his employees were trespassers. What the learned judge said, in answer to the point, was entirely fitting to this view, applied to all the defendants except Young, and just what ought to have been said, even if he had granted the instruction prayed for.

There was no error in the charge as to the matter referred to in the second assignment.

The question respecting the proof of the execution, urged in argument by defendant in error, is not before us.

Judgment reversed, and venire facias de novo awarded.


author: Per Curiam.

text:
    Van Buskirk et al. versus Dawley.
    The Road Commissioners of Erie County have not, under the provisions of the General Road Law, or the special Acts of Assembly relating to Erie county, the authority to re-locate an old road, and if in the pursuit of such purpose they remove a fence, they are liable to the owner thereof in trespass.
    October 23d 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Mric county: Of October and November Term 1879, No. 40.
    Trespass by John W. Dawley against Marcus Yan Buskirk and others.
    The defendants, Marcus Yan Buskirk and O. Peiffer, were, at the time of the alleged trespass, two of the three road commissioners of the township of Franklin, in the county of Erie. The action was brought against them for the removal of the plaintiff’s fence, whilst acting in their official capacity. The other defendants were doing the work under the direction of the road commissioners.
    The trespass was alleged in the narr. to have been committed on the 15th of September 1875.
    The defendants claimed that all that was done by them was within the scope of their jurisdiction and authority as commissioners of roads and highways under the provisions of the road laws of Erie county.
    There was, in 1838, a public highway established upon the whole length of what is now the west line of Franklin township. The townships of Girard and of Elk Creek were on the west side of the line. Its centre line being said township line, was recorded together with an order for opening it fifty feet wide.
    In 1833 nearly the whole distance was an unbroken wilderness. Its limited use was by a winding path or track amongst trees and stumps, for several years thereafter.
    At a later period the owners on either side began to fence in their lands as they cleared and occupied them, placing their fences wherever it suited their convenience, in some places making the road but little more than half its recorded width. The fences were frequently moved by the land-owners in or out of the road as suited their convenience. The plaintiff, Dawley, about four years before the act complained of, moved his fences back into his fields on both sides of the road, he being the owner on both sides. If he had removed them back into his fields on the east side of the road only, to a line fifty feet east of where the west line fence then stood, the centre of this fifty feet would have been the true centre of the road, or nearly so. But as the fences were placed by him in moving them, the greater part of the road was thrown into Girard township. The wagon track, at that time, was mostly in Girard township.

      , In May 1874, the commissioners of Franklin and Girard directed George Platt, the county surveyor, to survey the road and report to them. This he did, and on the 28th of May 1874, they adopted his survey, and it was entered on the town book, and on the 12th of June 1874, it was regularly recorded in the record of roads in the office of the county commissioners. Immediately after this the road commissioners caused a written notice to be served upon all the owners whose fences were found to be in the road, requesting them to remove the same out of the bounds of the fifty feet. This was done by all such land-owners excepting the plaintiff. In 1875, the commissioners again personally notified Dawley to remove his fence, which he refused to do.
    On September 15th 1875, the commissioners' moved the fence in dispute back about six feet, so that it would be out of the highway as surveyed and recorded in 1874. On the 22d of September 1875, Dawley brought this suit of trespass against the road commissioners and their workmen, as individuals, and declared in trespass.
    As shown by the maps and geography of Erie county, the township of Franklin is an exact parallelogram, and nearly a square. Its boundaries are straight lines upon the cardinal points of compass. It has a system of roads running from north to south, one mile apart, six in number. One of these public roads forms the eastern boundary of the township, and one the western. This latter was the one in controversy. All these roads are laid upon the tract lines,’ these tracts being the original surveys’ of the' Population Land Company. The township has a very level surface, and the straight lines of these roads are carefully maintained in working the roads, except at the deep gulf cut through this level surface by the waters of a small creek. These six parallel roads are one mile apart, rendering it impossible for any one to be mistaken as to the true location of the roads. These straight lines upon this level surface the inhabitants have been anxious to maintain, both for utility, uniformity and beauty. Every obtruding fence, tree or other structure, interferes with the view of the traveller for miles.
    A reference to the various Acts of Assembly under which the commissioners claimed the authority for their action will be found in the opinion of this court.
    The following were among the points of the defendants, with the answers of the court thereto:
    3. That, if the defendants being such commissioners, caused the public road in front of the plaintiff’s house to be surveyed on the first day of June 1874, and recorded in the commissioners’ office of Erie county on the twelfth day of the same month of June 1874, according to the provisions of the third section of said.Act of 1857, they were acting within the scope of the powers and jurisdiction conferred upon them by the said several Acts of Assembly, and are not liable in their personal and individual capacity, in this form of action, unless they acted maliciously.
    Ans. “ This point is refused. The commissioners could not lawfully change the road from the location on which the road-bed had been and was travelled for some forty years, unless by the regular proceeding to alter the road as provided by law. A resurvey in order to ascertain where the road ought to have been originally placed, as appears to have been the purpose here, does not constitute an alteration such as meant by the use of that term in the road law, and which would require parties aggrieved to appeal as provided in said act.”
    4. That having, as aforesaid, established the road and marked its boundaries, the commissioners had the power, and their duty to the public required them, to remove the plaintiff’s fence and any other obstructions of the road.
    Ans. “ Refused.”
    6. That if this act of the commissioners made an alteration in the road, the recording of the same was notice to the plaintiff and all others ; and the only redress that the plaintiff had for an injury or damage suffered by him in consequence of such alteration, was against the township, as provided by the sixth, eighth, ninth, tenth, eleventh and twelfth sections of the Act of the 26th of March 1846, Pamph. L., pp. 176, 177.
    Ans. “Refused.”
    7. That the provisions of said act supersede and take away the common-law remedy, as provided by the thirteenth section of the Act of the 21st of March 1806, Purd. Dig. 58, pi. 5.
    Ans. “ This point is affirmed in case there was an alteration of the road such as contemplated by the act. But we charge you that there was no such alteration as meant by the act.”
    10. That the centre line of the road being a township line, thus making it a road to be maintained at the joint expense of the townships of Franklin and Girard, it requires clear evidence to show that it is not in fact on the township line.
    Ans. “Refused.”
    16. That if the jury find that the plaintiff did so change the fence before the commission of the acts complained of in the plaintiff’s declaration, then the record of the road must be their guide in determining its location, in default of evidence showing where the supervisors opened it.
    Ans. “ The road as built and travelled over by the public, in the absence of proof of just where the original location was made, is conclusive. The point as put is refused.” ^
    In the general charge, the court, Galbraith, P. J., inter alia, said:—
    “ If the fence removed was within the highway, the defendants would be justified and plaintiff cannot maintain his action. On the contrary, if the plaintiff’s fence was not within the limits of the road, the defendants would have no more right to interfere with it than any other citizen, and they are liable to the plaintiff in damages.
    “ There is, therefore, as you will see, but one question to be decided by the jury, namely, where was the highway as relates to the fence in question; and this fact you will determine under the rules of law as given to you by the court.
    “When a road has been once located and opened,-the road commissioners have no right to re-locate it in order to place on what they may suppose to be its recorded site, even should the original opening and laying out on the ground be entirely away from the paper-line as recorded. When the road-bed is fixed and used and travelled by the public, there it must remain until it is changed by due process of law.
    “ There seems to be little room for question as to the location of this road on the ground, and that it is now just about where it has been for more than a generation past; and the testimony shows that through the land of plaintiff, and opposite the place where the alleged trespass ivas committed, the road-bed has always been pretty nearly straight.
    “ Having determined where the road-bed was originally opened, you will determine whether the fence in question was within twenty-five feet of the centre of the road-bed. If you find that any portion of plaintiff’s fence was within that distance of the middle of the travelled road as it has been always used, then so far as such portion of plaintiff’s fence is concerned defendants would be justified ; but the fact of some portion of the fence being within the line would not justify the defendants in going beyond that and interfering with the remainder of plaintiff’s fence not so within said highway, and if they did do so, they are answerable in damages for such trespass.”
    Verdict for plaintiff, when defendants took this writ, and alleged that the court erred in the answers to the above points.

      S. E. & T. S. Woodruff, for plaintiffs in error.
    Township officers are not personally liable for acts done honestly in the exercise of a discretion, even if injury result therefrom: Yealy v. Fink, 7 Wright 212. Public officers are not answerable personally, unless their acts are malicious: Burton v. Fulton, 13 Wright 151; Weckerly v. Geyer, 11 S. & R. 39. An officer is protected when he decides he has jurisdiction, even though he had none: 2 Hilliard on Torts 192; Gray v. Cookson, 16 E. 13.
    The proceedings under these road laws of Erie county are conclusive and binding on every citizen of the township, whether a party to them or not: Millcreek Township v. Fickinger, 1 P. F. Smith 48. Adjoining owners who put their fences on the highway cannot claim immunity or prescriptive right by lapse of time. To have sustained this action of trespass the plaintiff should have clearly shown his right to possession as against the Commonwealth, and that the title she had under the record of 1833 had been divested by some agent authorized to act for her.

      Cutler & Hinds, for defendant in error.
    The powers and duties of the road commissioners of Erie county are both judicial and ministerial; in their judicial capacity exercising the powers formerly vested in the Court of Quarter Sessions, in laying out, vacating and altering roads. In all other respects their powers and duties are ministerial, and the same as were vested in the supervisors under the General Road Law; and they had no more authority to tear down the plaintiff’s fence to make it correspond with Platt’s survey than the supervisors had under the general law : Holden v. Cole, 1 Barr 303; McMurtrie v. Stewart, 9 Harris 322; Ross v. Malcom, 4 Wright 285.
    If those who have a limited authority transcend their powers, they subject themselves to an action of trespass: 2 Hilliard on Torts 186.
    The act, too, was unnecessary and wanton. Here was a straight and well-worked road, fifty feet in width, which had been opened and travelled by the public for over forty years. The motive, therefore, of the commissioners must be looked for outside of the public interest or their duty to the community.
    November 3d 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

The road in question was simply surveyed to ascertain the original location. This it was decided by this court in Holden v. Cole, 1 Barr 303, cannot be done by supervisors under the General Road Law — and if in doing so they remove a fence they are liable in trespass. It is contended, however, that the removal of the fence of the plaintiff was a lawful exercise of the powers conferred on the road commissioners of Erie county by the special Acts of Assembly of 13th April 1843, Pamph. L. 217; 26th March 1846, Pamph. L. 175; 15th April 1857, Pamph. L. 205, and 2d March 1858, Pamph. L. 63. We cannot, however, find in those acts any power to re-locate an old road. Their power is to alter, vacate or lay out a new road. It is for this that an appeal and proceeding for damages are provided for any one aggrieved by their proceedings. The plaintiff below is given no appeal or redress for re-locating an old road. The answer to his complaint would have been, this is but marking the true lines of an existing road, for which you or your predecessors in title have already had their opportunity to obtain redress. There was a defect of power in the defendants as commissioners, and they were therefore individually liable to the plaintiff in damages.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Smith versus Crisman.
    1. Nothing is better settled in this state than that the purchaser of personal property at sherilf’s or constable!s sale may leave it in the possession of the defendant as whose property it was sold under any lawful contract of bailment.
    2. Upon a sale of personal property only such delivery is required as the nature of the property is susceptible of.
    3. As a general rule there cannot be concurrent possession of the vendor and vendee of a chattel which is susceptible of actual delivery.
    4. McKibbin v. Martin, 14 P. F. Smith 352, and Clow v. Woods, 5 S. & R. 275, followed.
    October 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1879, No. 272.
    Trespass vi et armis by George Smith against E. Crisman.
    O. L. Wolf, being embarrassed, on the 9th day of February, 1872, his real estate was sold by the sheriff of Jefferson county, and purchased by John Wilson, of Pittsburgh, all of his personal property having been sold prior to that date, which real estate was subsequently sold by said Wilson to George Smith, O. L. Wolf and family remaining on the land and farming, &c., without lease, at the will o.f and under the instructions of Smith, the owner. Smith subsequently became the owner of certain personal property, to wit: one cow, four hogs, two pair bob sleds, one saddle, one set of harness, &c.; also, one hemlock raft. On the 22d day of October 1877, F. Crisman, sheriff of Jefferson county, by virtue of a writ of fi. fa., sold said articles as the property of O. L. Wolf, and for which this action of trespass was brought by Smith against Crisman.
    It appeared that Wolf being indebted to one Martin, in order to pay him agreed to take out a raft for Martin, Smith becoming-security for Wolf. The timber was taken out and Martin’s mark placed thereon and it was hauled to and rafted in a certain dam, when Martin refused to take the raft and proceeded to collect from Smith the amount due from Wolf. Wolf then asked Smith to take the raft, which the latter agreed to do, and ha-d his own name marked thereon, and ran it to the mouth of Canoe creek, where it was frozen up and laid until the following spring. Smith then employed Wolf to run the raft down the river to Perryville, where it was tied up until October, when it was sold by Crisman, as set forth above.

      At the trial, the plaintiff submitted the following points, all of which the court refused:— •
    1. That upon sale of personal property only such delivery is required as the nature of the property is susceptible of.
    2. That if the jui’y believe that George Smith took the raft for a debt .due by Wolf to Martin, upon which Smith was bail, and had paid, or was to pay, and return the overplus, if any, to Wolf, after payment of the amount due Martin and expenses, and in pursuance of such an arrangement, had his name marked on the raft, put his cable on the raft, furnished the money for running the same, and paid the hands, he is entitled to recover.
    8. That possession of personal property is not absolute evidence of title. Personal property may be sold and delivered, and the possession be joint; it is a matter of fact for the jury, from the evidence, to say who is the owner of the property.
    The defendant submitted the following points, to which are appended the answers of the court: — •
    1. That under the evidence in this case, there was no such delivery of possession, and retention of the same, by George Smith, the plaintiff, as would be sufficient to constitute a valid sale, as to creditors, and the alleged sale to Smith was a fraud in law, regardless of the intent of the parties, and the verdict of the jury should be for the defendant.
    Ans. “ Affirmed.”
    2. That under the evidence in this case the verdict of the jury should be for the defendant.
    Ans. “ Under the law of the case it is our duty to instruct you that the plaintiff cannot recover in this action.”
    Verdict for defendant accordingly, when plaintiff took this writ, and alleged that the court erred in the answers to the above points,' and in taking the case from the jury, as there was such testimony as to the ownership and possession of the property as should have been left to the jury.

      Hastings & Brewer, A. J. Monks and White & Scott, for plaintiff in error.
    The subject of a sale is not always capable of an actual delivery and then a constructive delivery will be sufficient, and in such cases it is only necessary that the vendee should assume control of the subject so as to reasonably indicate the change of ownership: McKibbin v. Martin, 14 P. F. Smith 352. Whether on a sale of personal property there is such a delivery and change of possession as the nature of the property is capable of, is properly left to the jury as a question of fact: Chase v. Ralston, 6 Casey 539 ; Forsyth v. Matthews, 2 Harris 100; Loucheim Bros. v. Henszey, 27 P. F. Smith 308; Ehrisman v. Roberts, 18 Id. 308.

      A. L. Gordon, for defendant in error.
    There never was a sale or delivery of possession.

      November 3d 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

Upon a careful examination of the confused mass of testimony in this case, we are of opinion that the learned judge committed an error in talcing it from the jury. There were questions of fact which it was their province to decide.

They might reasonably have inferred from the testimony that O. L. Wolf had been sold out by the sheriff, both his real and personal estate, that George Smith became the purchaser, either directly from the sheriff or from the sheriff’s vendee. That Wolf remained in possession, either as tenant at will or simply by the permission of Smith, of the farm and of the few articles of personal property upon it, to take care of it and work it under his control. The bona fides of the transaction was questioned, but that certainly was for the jury. Nothing is better settled in this state than that the purchaser of personal property at sheriff’s or constable’s sale, may leave it in the possession of the -defendant, as whose property it was sold, under any lawful contract of bailment: Myers v. Harvey, 2 P. & W. 478; Walter v. Gernant, 1 Harris 515; Craig’s Appeal, 27 P. F. Smith 448. As to. the cow, hogs, sleds and saddle, the case should have gone to the jury. There was some evidence that there had been a sale or gift of these articles by Smith to Wolf, but that was evidently a question for them.

As to the raft it was earnestly contended that there was no evidence of a sale by Wolf to Smith, or of any title in him. The facts as to the raft appear to be these: It had been got out by Wolf, under some arrangement with one Martin, to whom he was indebted, who was to take it, and, if he could, make his money out of it. Martin, however, refused to take the raft. Thereupon it was delivered to Smith, who was security for Wolf s debt to Martin, under an agreement that he was to run it, make what money-he could out of it, and, if there was any surplus after paying the debt to Martin, Wolf was to have it. The raft was lying in Findlay’s dam on Canoe creek. Smith sent a young man to mark the raft with his name, which he did accordingly, and Wolf was employed by Smith to run the raft to market. He procured on Smith’s credit a rope for the use of the raft, ran it to the mouth of the creek where it was frozen up, and remained until the spring following, when it was run to Perryville, where it was seized and sold on an execution against Wolf by the defendant. We are not to be understood as saying that these facts were all proved, but there was evidence of them for the jury. Under these circumstances we think that the plaintiff was entitled to an affirmance of his first and second points, which were, First. That upon a sale of personal property only such delivery is required as the nature of the property is susceptible of. Second. That if the jury believe that George Smith took the raft for a debt due by Wolf to Martin, upon which he (Smith) was bail, and had paid, or was to pay and return the overplus, if any, to Wolf, after payment of the amount paid Martin and expenses, and in pursuance of such an arrangement had his name marked on the raft, put his cable on the raft, furnished the money for running the same, and paid the hands, he is entitled to recover. These points the learned judge below negatived. The third point was too broadly put; for though there may be some cases in which a concurrent possession is lawful, and this would seem to be one of them, yet, undoubtedly, as a general rule, there cannot be concurrent possession of the vendor and vendee of a chattel, which is susceptible of actual delivery. The principles governing this case are very fully considered in McKibbin v. Martin, 14 P. F. Smith 352, in which it was held that, where the subject of the sale is not reasonably capable of an actual delivery, a constructive delivery will be sufficient, and that in such case it is only necessary that the vendee should assume the control of the subject, so as reasonably to indicate to all concerned the change of ownership; and that where there has been a suflicient delivery, actual or constructive, and the vendee is in possession, the fact that the vendor is employed about the same in a capacity holding out no indicia of ownership, is not such a concurrent possession as the law condemns, and that these questions are for the jury. It is hardly necessary to add that a mortgage of personal property, or a delivery of it to hold as security for a debt or liability, falls within the same principles as govern absolute sales: Clow v. Woods, 5 S. & R. 275.

Jndgment reversed and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Directors of the Poor of Blair County versus Overseers of the Poor of Clarion Borough.
    1. A pauper having a legal settlement in the borough of Clarion became a charge on the county of Blair. ' He was duly removed to and accepted by the borough of Clarion, and the order of removal was served on the overseers of the poor of said borough, and no appeal was taken therefrom. A bill of expenses incurred by the county of Blair for the relief and removal of said pauper was duly proved and demand for its payment made upon the overseers of said borough. They denied their liability and refused to pay, and a rule to show cause why they should not pay granted by the Quarter Sessions of Clarion county was, after hearing, discharged. Held, that this was error, and that under the Acts of June 13th 1836, and April 15th 1867, the accepting district was liable for reasonable costs and charges, and the manner of enforcing that liability is in and through the Quarter Sessions.
    2. Renovo Overseers v. Half-Moon Overseers, 28 P. F. Smith 301, distinguished.
    October 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Certiorari to the Court of Quarter Sessions of Clarion county: Of October and November Term 1879, No. 184.
    This was a petition by the directors of the poor of Blair county for a rule on the overseers of the poor of Clarion borough, to show-cause why the latter should not pay the costs and expenses incurred by said county of Blair in removing George W. Conard, a pauper, to the said borough of Clarion, and for his relief. The court discharged the rule on the ground that, as the order of removal was unappealed from, and the pauper had been accepted, there could be no recovery. The directors of' the poor of Blair county took this appeal and assigned this action for error. The other material facts will be found in the opinion of this court.

      J. H. Patrick and B. J. Reid, for plaintiffs in error.
    The correctness of the bill of charges is not disputed, but as there was no appeal from the order of removal, the liability of the accepting district is denied on the authority of Renovo Overseers v. Half-Moon Overseers, 28 P. F. Smith 301. That case merely adopted the ruling of Directors of Schuylkill v. Directors of Montour, 8 Wright 484, which was decided before the passage of the Act of 1867, which act was not cited by counsel nor noticed by the court in the argument or decision of the later case. Had the act been brought to the notice of the Supreme Court we apprehend that the case would have been decided differently. The act referred to is the law that must govern in this case.
    We may add, however, that the case of Overseers of Williamsport v. Board of Guardians of Philadelphia, 7 W. N. C. 222, rules that under the Act of 1867, the application to enforce payment of costs and expenses of removal, must be made as in this case, to the court having jurisdiction over the accepting district, recognising the Act of 1867 as the law.

      W. A. Hindman and Knox & Maffett, contra.

    An order of removal unappealed from is conclusive upon all parties, and where, under such order the pauper has been accepted, there can be no recovery from the accepting district for costs and charges: Renovo Overseers v. Half-Moon Overseers, 28 P. F. Smith 301; Bradford Township v. Keating Township, 3 Casey 275; Directors of Schuylkill v. Directors of Montour, 8 Wright 484.
    If the Act of 1867 can have any application to the facts in this case it would merely create an indebtedness on part of the accepting district, without any statutory provisions giving jurisdiction to the Court of Quarter Sessions. And there being no disputed questions of any kind as to settlement, and nothing but a mere liability, if there is any liability, to pay a sum of money when properly liquidated, the appellants in this case could have only a common-law action to recover such indebtedness.

      November 28th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

The Act of 13th June 1836 gave to the Quarter Sessions of the proper county jurisdiction to determine disputed questions between different districts of the Commonwealth, as to the settlement of paupers. Power was also thereby given to it to impose the costs and expenses of maintaining the pauper on the district properly chargeable with the support of the same.

Thus, if a poor person fell sick or died in a district in which he had not gained a settlement, so that he could not be removed therefrom, and on notice thereof, as prescribed by the act, to the overseers of the district in which he had last gained a settlement, they refused to pay the money expended for such poor person or for burying him, the 23d sect, provided that the Court of Quarter Sessions of the county in which such poor person was last settled, on complaint made, should compel the payment of all such sums of money as were thus necessarily expended.

In case a person has or is likely to become chargeable to any district into which he has come, before gaining a settlement therein, the 16th sect, provides for his removal to the district in which he was last legally settled. The 17th sect, makes it the duty of the overseers of said last district to receive him. The 19th sect, gives to any person aggrieved by such order of removal a right of appeal to the next Court of Quarter Sessions of the county from which the person was removed. In case of appeal, the 20th sect, authorizes the Court of Quarter Sessions to award to the party in whose behalf it shall be determined such costs and charges as may be reasonable and just, to be paid by the other party. The act failed to make any specific provision for the payment of costs and charges incurred by the district from which such poor person was removed, when the. district which the magistrates adjudged to be the place of his last settlement accepted him and did not appeal from the order of removal. The Quarter Sessions could not order the payment of the costs and expenses incurred by the district from which the person was removed; and no implied promise arose from such acceptance to support an action of assumpsit: Directors of Schuylkill v. Overseers of Montour, 8 Wright 484.

To provide a remedy, the Act of 15th April 1867 was passed. It declares “ it is the true intent and meaning of the existing laws of this Commonwealth that the district so accepting said poor person shall be liable to the district removing said poor person for costs and charges, in the same manner and to the same extent that they would -have been had the case been determined against said district by the Court of Quarter Sessions upon an appeal from said order of removal.” In Overseers of Williamsport v. Board of Guardians of Philadelphia, 7 W. N. C. 222, it was held that an application for payment under this act must be made to the court having jurisdiction over the accepting district.

We have shown on an appeal the Act of 1836 expressly authorized the Court of Quarter Sessions to award such costs and charges as may be reasonable and just against the district in which the pauper was legálly settled. The Act of 1867 imposes a liability to the same extent and in the same manner. It therefore follows that the accepting district is liable for reasonable costs and charges, and the manner of enforcing that liability is in and through the Quarter Sessions.

The admitted facts in this case are, that while the pauper had a legal settlement in the borough of Clarion, he became a charge on the county of Blair; that he was duly removed to and accepted by the borough of Clarion; that the order of removal -was duly served on the overseers of the poor of said borough, and no appeal was taken therefrom. It also appears that a bill of the expenses incurred by the county of Blair for relieving and removing the pauper was duly proved, and demand for its payment made of the overseers of the poor of said borough, before application made to the Quarter Sessions to order payment thereof. The borough denied its liability and refused to pay. It will, therefore, be seen the facts are unlike those in Renovo Overseers v. Half-Moon Overseers, 28 P. F. Smith 301. There the record did not show any acceptance of the pauper, nor any demand for payment of the expenses incurred. It therefore follows the learned judge erred in discharging the rule to show cause w'hich had been granted.

Decree reversed, and now rule reinstated and a procedendo awarded.


text:
    Foll’s Appeal.
    1. For reasons of public policy equity will not decree specific performance of a contract to sell certain shares of stock of a bank where such shares are sought for to control the bank.
    2. F. in writing agreed to sell and G. to purchase fifteen shares of the stock of a national bank. G. and his friends owned sufficient stock to give them, with these fifteen shares, the control of the bank. The avowed object of the proposed purchase of the fifteen shares was to obtain control 0£ bank. j'- refused to deliver the stock, when G. filed a bill in equity to compel its delivery. Eeld, that for reasons of public policy equity will not enforce such a contract by decree for specific performance.
    3. McGowin v. Remington, 2 Jones 61, distinguished.
    October 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas of Erie county: Of October and November Term 1879, No. 273. In Equity.

      Bill in equity filed by R. M. Greer against John W. Foil, to compel the specific performance of a contract for the sale and delivery of fifteen shares of stock in the First National Bank of North East, Pennsylvania.
    The material facts are stated in the opinion of this court.
    C. B. Curtis and John P. Vincent, for appellant.
    The general rule is that equity will not enforce the specific execution of, a contract relating to personal chattels: 3 Pars, on Cont. 364.
    Neither the counsel for the complainant nor the Court of Common Pleas have been able to refer to any Pennsylvania case in which specific performance of a contract for the sale of stock has been enforced. The case of McGowin v. Remington, 2 Jones 56, relied upon by the court and by the master to sustain such a decree, was a clear and almost undisputed case of a trust.
    Brown v. Brown, 2 Casey 77, decides that an act on contract which creates an interest adverse to the interest of the cestui que trust is against public policy.
    To give control of this bank to the plaintiff and his friends who seek io obtain control with borrowed capital, would be to endanger the interests of the stockholders and encourage speculation. Every contract is illegal which contravenes public policy, and if there be a probability that it will contravene public policy, the equity powers of our courts certainly cannot be invoked to aid its specific enforcement. If this contract is a legal one, the plaintiff has an adequate remedy at law.

      Davenport & Griffith and Benson & Brainerd, for appellee.
    —A court of equity will decree the specific performance of a contract to transfer railway shares upon the ground that railway shares are not always obtainable in the market: 1 Redf. on Law of Railways 132; Fry on Specific Performance of Contracts 53 ; 1 Story’s Equity 690; Duncuft v. Albrecht, 12 Simons 189.
    A specific performance will be decreed “ when the party wants the thing in specie and cannot be otherwise compensated; that is, when an award of damages would not put him in a situation as beneficial as if the agreement were specifically performed; or where the compensation in damages would fall short of the redress to which he is entitled:” Phillips v. Berger, 2 Barbour 610; Stuyvesant v. The Mayor et al., 11 Paige Ch. 415; 1 Story’s Equity 680; Pomeroy on Specific Performance 9; Weir v. Mendell, 3 Brewster 594; Bank of Kentucky v. Schuylkill Bank, 1 Parsons Equity Cases 220; Sank v. The Union Steamship Co. et al., 5 Phila. 499; Todd v. Taft, 7 Allen 371.
    In McGowin v. Remington, 2 Jones 56, this court recognised and established the broad principle that a court of equity will decree specific performance of a contract when the law ¿affords no practical or adequate remedy for its violation. No argument can limit the scope of the opinion in that case to a simple case of trust. The appellant cannot shield himself under the cloak of public policy. He must answer the terms of his contract specifically.
    November 17th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This case presents some extraordinary features. We have nothing like it in this state since equity powers were conferred upon the courts. It was a bill to compel specific performance of a contract for the sale and delivery of fifteen shares of the stock of The First National Bank of North East, under the following circumstances: The bank in question is situated at North East, Erie county, Pennsylvania, and has a capital of $50,000, divided into five hundred shares of $100 each. R. M. Greer, complainant below, and appellee, is a merchant in North East, and at the commencement of the year 1877, owned ten shares of the stock of the bank in question. His mother owned sixty-five shares and his brother owned forty. About that time, R. M. Greer conceived the idea of getting enough of the capital of the bank to control it, and to carry out this plan, made an arrangement with his uncle, E. C. Custard, and E. E. Chambers, an operator in oil, to raise sufficient money to buy a controlling interest. They succeeded in buying a considerable amount of the stock, mostly upon borrowed capital, but still lacked the full shares necessary for control. John W. Foil, the appellant, had the requisite number, and on March 7th 1877, Greer and Foil entered into the following contract: “I hereby agree to purchase fifteen shares of The First National Bank of North East, from John W. Foil. The price to be paid is to be $2110.55, and interest from July 20th, at ten per cent.; said stock to be delivered before the second Tuesday of January 1878.” This contract was in writing and signed by the parties. Before the time arrived for delivering the stock, Foil informed Greer that he would not deliver it. Foil then made a tender of the money specified in the contract. This bill was then filed and referred to a master, who made his report recommending a decree for specific performance. Exceptions were filed to the report by Foil, which, after a hearing, were dismissed by the court below, the master’s report was confirmed, and a decree entered commanding Foil to transfer to Greer the shares of stock referred to. From this decree Foil entered an appeal to this court.

The avowed object of the purchase of the stock and the filing of this bill was to get the control of the bank for Greer and his friends. This appears upon the face of the bill, and is the main ground upon which equitable relief is asked. While the primary object was to obtain the.control of the bank, there were, at the same time, secondary objects. As a part of the plan, the said R. M. Greer was to be made cashier, and Custard and Chambers, before mentioned, were to be directors.

The general rule is, that equity will not enforce specific execution of a contract relating to personal chattels: 3 Parsons on Contracts 364. This is so even in England, where the equity jurisdiction is much broader than in this state. The reason for the rule is, that for the breaoh of a contract of sale of personal chattels, there is an adequate remedy at law. A jury can be in no doubt as to the proper measure of damages. This is especially true of stocks and public securities which have a known market value. The disappointed purchaser can go into the market and purchase a corresponding number of shares of the same stock.

To this general rule, however, there are exceptions. An article of personal property may have certain qualities not common to other articles of like description, or may have an especial value by reason of its antiquity, family association, or the like. A number of instances are collected in McGowin v. Remington, 2 Jones 61. They are title deeds of an estate and other muniments of property; an antique silver altar-piece: Duke of Somerset v. Cookson, 3 P. Wms. 389; an ancient horn, the symbol of tenure by which an estate is held: Pusey v. Pusey, 1 Ves. 273; heir-looms, 3 Ves. & B. 18, and even a finely-carved cherry stone: Ambler 77.

I know of no instance in this state in which a court of equity has decreed specific performance of a sale of stock. McGowin v. Remington, supra, which was cited on behalf of the appellee, is not in point. The specific chattels in that case whose return was sought to be enforced, consisted of a surveyor’s maps, plans, and papers of like character. They manifestly came within the exceptions noted, and besides it was a clear case of trust. But we need not pursue this subject further, as the case in hand turns upon a different principle.

While the legal right of the complainant to buy up sufficient of the stock of this bank to control it in the interest of himself and friends may be conceded, it is by no means clear that a court of equity will lend its aid to help him. A national bank is a quasi public institution. While it is the property of its stockholders and its profits enure to their benefit, it was nevertheless intended by the law creating it that it should be for the public accommodation. It furnishes a place, supposed to be safe, in which the general public may deposit their moneys, and where they can obtain temporary loans upon giving the proper security. There are three classes of persons to be protected, the depositors, the noteholders, and the stockholders. We have no intimation that the bank, as at present organized, is not prudently and carefully managed. The stock, as now held, is scattered among a variety of people and held in greater or lesser amounts. It is difficult to see how the small stockholders, who have their modest earnings invested in it, the depositors who use it for the safe-keeping of their moneys, or the business public who look to it for accommodation in the way of loans, are to be benefited by the concentration of a majority of its stock in the hands of one man, or in such way that one man and his friends shall control it. Especially is this so when an attempt is made to control it by the use of borrowed capital. The temptation to use it for personal ends in such case are very strong. It is a fact to which we cannot close our eyes, that the financial wrecks of such institutions with which the pathway of the last few years is so thickly strewn, are the result, in a great measure, of personal management. This purchase has not even the merit of being an investment on the part of the plaintiff. When a man buys and pays for stock with his own money, it may be regarded as an investment. When he buys it upon credit, or pays for it .with borrowed money, it is a mere speculation.

Were we to affirm this decree, I see no reason why we may not be called upon to use the extraordinary powers of a court of equity to assist in miscellaneous stock-jobbing operations. A party who is attempting to make a “ corner” in stock or in any article of merchandise, who had made his contracts with that end in view, might, with equal propriety, call upon us to decree specific performance thereof. But the decree of a chancellor is the exercise of a sound discretion; it is of grace, not of right, and will never be made where the equity and justice of a case is not clear.

We are in no doubt as to our duty in the premises. We are of opinion that the end sought to be attained by this bill is against public policy, and for that reason we refuse our aid.

The decree is reversed and the bill dismissed at the cost of the appellee.


text:
    Beaty versus Bordwell.
    A tenant in common is liable to his co-tenant for repairs that are absolutely necessary to houses and mills already erected and in being, which fall into decay, but the rule does not apply to woodland or arable land.
    2. The mere fact that a person has a debt against his judgment-creditor gives no right, against the will of the one holding the judgment, to apply the debt as a payment on the same.
    3. When a judgment is opened it does not thereby become subject to set-off generally. If the defendant has a valid claim against the plaintiff exceeding the amount of the judgment, he cannot recover a verdict for the excess. I-Ie may be permitted to attack the validity of the claim on which the judgment is founded; the good faith of the transaction connected with the consideration; subsequent payment of. the debt or equitable discharge therefrom. In some manner, either in law or equity, the subject-matter of defence must have attached to the judgment,or the consideration on which it rests.

      October 24tb 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Fríe county: Of October and November Term 1879, No. 36.
    Feigned issue wherein David Beaty was plaintiff and Enoch Bordwell defendant, to ascertain the amount due on a judgment-note of defendant’s for $3500. The material facts will be found in the Opinion .of this court. Yerdict for plaintiff for $1545.50, and after judgment the plaintiff took this writ and alleged that the court erred:—
    1. In charging: “ There is no parol evidence from which a jury should find, that any part of the contract agreed upon by the parties prior to the written agreement was omitted by the scrivener, Mr. Marshall, in writing the contract of • 28th August 1871. You will therefore take the written agreement of that date as embodying their agreement down to that time. Although the note is for $3500, yet, when construed as part of the contract, we instruct you that the plaintiff, in the absence of testimony to the contrary, liad no legal right to receive a note from the defendant in excess of $2500.”
    2. In charging: “One tenant in common cannot recover against his co-tenant for ordinary repairs or improvements without the consent of the latter, but he may for those that were absolutely necessary for the enjoyment of the property. As to this point of the case, your first question is, did the plaintiff agree to pay his proportion, one-half of the costs, of the improvements claimed by the defendant ? If he did not so agree, then was the stumping of the ground absolutely necessary for the reasonable enjoyment of the eighty acres.”
    3. In charging: “You start out in your investigations with the plaintiff entitled to recover $2500 from the defendant.”
    4. In charging: “ Again the defendant claims he sold a piece of of land for $135, $35 of which he paid the plaintiff. Whatever amount he paid the plaintiff in excess of the amount he should have paid him according to their article of agreement, he is entitled to a credit for. The amount he should have received from this source, you must determine from the proportion in which they were to pay the $7000 of the bid.”
    5. In charging: “ If you find the defendant purchased and paid for the stump-machine at the request or with the subsequent ratification of the plaintiff, deduct one-half the cost from the note.”
    6. In charging: “Any payments or credits the defendant is entitled to, not enumerated by us, you must remember.”

      J. C. & F. F. Marshall and Brown & Stone, for plaintiff in error.
    The court confounds the liability of tenants in common for repairs and for improvements. As applied to repairs of houses and mills, the doctrine laid down is correct: Dech’s Appeal, 7 P. F. Smith 467. But this does not apply to woodland or arable land: Gregg v. Patterson, 9 W. & S. 209; 4 Kent’s Com. 370. As to improvements, the doctrine is exactly the reverse: Crest v. Jack, 3 Watts 238; Gregg v. Patterson, 9 W. & S. 197; Dech’s Appeal, 7 P. F. Smith 472; Story’s Equity, sect. 1235. It would seem, on reason and authority well settled, that one tenant in common cannot be held liable for any improvements made by his co-tenant without his authority or consent, and yet in this case the court charged that he could be so held if the improvements were “ absolutely necessary for the enjoyment of the property,” and submitted to the jury the inquiry whether the stumping claimed for was necessary for the reasonable enjoyment of the eighty acres, an inquiry which a jui’y of farmers would naturally and almost inevitably answer in the affirmative. In this there was palpable error.
    The error in the sixth specification is the use of the word “credits,” and is a serious one. It opened the door for the allowance of any matters of set-off sworn to by defendant. It relieved the jury from the obligation to find a direct application as payments. To thus leave a jury to hunt up credits in addition to payments, on a judgment ooened on the single plea of payment, is unprecedented.

      C. O. Bowman, G. A. Allen, and L. Rosenzweig, for defendant in error.
    January 26th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an issue to ascertain the amount due on a judgment entered against the defendant, on a judgment-note executed by him.

The judgment was opened and the issue tried on the plea of payment.

As the evidence is not certified by the judge, and the statements thereof by counsel of the respective parties do not wholly agree, we cannot say there is error in the portions of the charge covered by the first, third and fourth assignments.

The second assignment is, that the court erred in charging “ one tenant in common cannot recover against his co-tenant for ordinary repairs or improvements without the consent of the latter, but he may for those that were absolutely necessary for the enjoyment of the property. As to this point of the case your first question is, did the plaintiff agree to pay his proportion, one-half of the costs, of the improvements claimed by the defendant ? If he did not so agree, then was the stumping of the ground absolutely necessary for the reasonable enjoyment of the eighty acres.”

The parties had purchased and held as tenants in common a farm containing eighty acres. The defendant had 'the .possession thereof and had expended money in pulling and removing stumps. He ■claimed to be allowed on this judgment for one-half of the suri so expended. If he had agreed to pay his proportion, he would undoubtedly have been liable therefor, but whether it should apply on this judgment, presents a different question. The court, however, proceeded to say that if the plaintiff had not so agreed, yet he was liable if the work was absolutely necessary for the reasonable enjoyment of the farm. In so charging, the learned judge overlooked the distinction between buildings and lands. A tenant in common is liable to his co-tenant for repairs that are absolutely necessary to houses and mills already erected and in being, which fall into decay; but the rule does not extend to woodland nor to arable land: Crest v. Jack, 3 Watts 238; Gregg v. Patterson, 9 W. & S. 197; Lech’s Appeal, 7 P. F. Smith 467. It is not, however, sufficient that the defendant may have a claim against the plaintiff which might be enforced by action. That fact alone does not compel the latter to apply it on the judgment. Mutual indebtedness does not work an extinguishment of the respective debts without an application of them to each other by the concurrent acts of the parties: Carmalt v. Post, 8 Watts 406. Nor does the statute of defalcation apply the demand of one party to that of the other, so as to produce either payment, satisfaction or extinguishment of either: Hinkley v. Walters, Id. 260; Same v. Same, 9 Id. 179; Gilmore v. Reed, 26 P. F. Smith 462. The mere fact that a person has a debt against his judgment-creditor, gives no right against the will of the one holding the judgment, to apply the debt as a payment thereon. In actions to which the defalcation act applies, the defendant may, under the plea of payment, give in evidence any claim founded on contract, which he has against the plaintiff, although it has no connection with the claim on which the action is brought, and in case it exceeds the plaintiff's, recover a judgment for the difference. This rule does not apply on a judgment being opened after having been regularly entered. The judgment does not, thereby, become subject to set-off generally. If the defendant has a va-lid claim against the plaintiff exceeding the amount of the judgment, he cannot recover a verdict for the excess. He may be permitted to attack the validity of the claim on which the judgment is founded; the good faith of the transaction connected with the consideration; subsequent payment of the debt or equitable discharge therefrom. In some manner, either at law or in equity, the subject-matter of defence, must have attached to the judgment or the consideration on which it rests : Harper et al. v. Kean, 11 S. & R. 280. No court would open a judgment merely on proof that the defendant had an account against the plaintiff equal to the amount of the judgment. The plaintiff may also have an account against the defendant; but whether he has or not, that is not the proper manner of adjudicating the account. It follows, therefore, the assignment is sustained, and also so much of the remaining assignments as are in conflict with this opinion.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Allegheny Valley Railroad Co. versus McLain.
    1. To maintain an action of trespass vi et armis against an employer, it must appear that the particular injury or act of trespass of the employee was done by his command or with his assent.
    2. Philadelphia, Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey 319, followed.
    October 24th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1879, No. 86.
    Trespass vi et armis by A. B. McLain against the Allegheny Yalley Railroad Company, to recover damages for being ejected from the cars of defendant by one of its conductors.
    The material facts are stated in the opinion of this court.

      Gordon & Corbet, for plaintiff in error.
    There was not a scintilla of evidence in any part of the case going to show that the defendant in any manner or form commanded, authorized, or permitted the act complained of by the plaintiff. Trespass vi et armis will not lie against a railroad corporation for an injury done to the plaintiff, whether such injury be wilful or accidental on the part of the servants of the company, where it does not appear that the particular injurjr was done by the command or with the assent of the corporation: Philadelphia, Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey 319.

      White & Scott and Jenks & Clark, for defendant in error.
    The act of the conductor was in the course of his employment and the company is liable therefor in this form of action : Philadelphia and Reading Railroad Co. v. Derby, 14 Howard 468; Philadelphia, Wilmington and Baltimore Railroad Co. v. Quigley, 21 Id. 202; Pennsylvania Railroad Co. v. Vandiver, 6 Wright 365; Moore v. Fitchburg Railroad Co., 4 Gray 465; McCreary v. Guardians of the Poor, 9 S. & R. 94.
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion, of the court,

The main question in this case is, whether upon the allegations of fact on which the plaintiff in the court below relied, and which must have been found by the jury, the action of trespass vi et armis can be sustained? He contended that the ticket which he purchased and tendered to the conductor was a round trip ticket from Brookville to DuBois; that it was a general ticket, containing no condition limiting its use to trains running between the points named of to a continuous trip from the one point to the other. On the other hand it was contended by the company that the ticket, by conditions printed thereon, was so limited, and therefore not good on the train running only to Reynoldsville. The ticket itself was not produced, but testimony was given by both parties tending to prove, on the one hand, that it was a general, unlimited ticket, and on the other that it was not. The learned judge instructed the jury that if “ the conditions of the ticket were that it could be used by the holder thereof for a continuous trip each way only, and only on such trains as stopped regularly at both stations named in the ticket, and the plaintiff offered such ticket to a conductor of a train that did not stop regularly at both stations, such conductor rvas not bound to take such ticket, and if plaintiff refused to pay his fare on such train, the conductor would have the right to eject him, * * * but, if the plaintiff purchased a ticket which gave him a general right to ride on the defendant’s cars from Brookville to DuBois and return, and plaintiff had no notice of defendant’s regulations, and there was no contract nor conditions printed or written on his ticket, the conductor had no right to eject him, and if he did so against plaintiff’s will, and if the conductor was acting in the scope of his authority plaintiff could recover.”

The case thus hinged upon these questions of fact, and in order to reach a verdict in favor of the plaintiff below the jury must have found that, the ticket he tendered was unlimited and gave him a general right to ride in defendant’s cars. From this it would follow that the conductor was guilty of a trespass if he forcibly ejected the plaintiff' from the cars; but, would his employer, the company, be liable unless there was evidence to show that it directed or authorized the act ? We think not. It will not do to say that the conductor was acting within the scope of his authority in ejecting from the cars a passenger who tendered an unlimited ticket and had a right to be there. Such authority is not to be presumed, and there is not even a scintilla of evidence that he had any such instructions from the company, express or implied. We have then, upon the plaintiff’s own showing, an action of trespass vi et armis brought against the employer for an act done by the servant, without the authority, assent or even knowledge of the former. It is well settled that under such circumstances this form of action will not lie. To maintain trespass vi et armis against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent: Philadelphia, Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey 319. It follows, therefore, that the learned judge erred in not instructing the jury as requested in defendant’s first point, that the plaintiff upon the evidence in the case could not recover in the present form of action.

There is nothing involved in any of the assignments of error that calls for further notice. Judgment reversed.