author: Gordon, J.

text:
    October and November Term, 1881,
    No. 189.
    Leonard versus Fuller.
    An affidavit of claim set forth a bond, executed by one defendant as principal and the other as surety, to indemnify plaintiff against certain claims of a third person, the bond reciting that the liability of the plaintiff'for these claims, by reason of acts done by the principal, was the basis of an equity suit brought before the date of the bond by the plaintiff against the principal. It further set forth that, in order to save his property from sale on execution issued upon a judgment obtained on one of these claims, plaintiff was obliged to pay the judgment; that a final decree had been obtained in the equity proceedings against the principal, in which proceedings the surety had notice and intervened ; that the decree was based on the claim upon which judgment had been obtained, and against which the bond was intended to secure plaintiff; and that aü execution upon the decree had. been returned nulla bona.

    The affidavit of defence of the surety denied that any breach of the condition of the bond appeared in the affidavit of claim, or in the record of the equity proceedings, and affirmed that the legal effect of the decree was only to fix the indebtedness of the principal. It averred that the acts of the principal before the filing of the bill were not within the personal knowledge of the affiant, but that she was informed, believed, and expected to be able to prove that no liability devolved upon plaintiff by reason of any act done by the principal. It denied that the acts specified in the bill, and referred to in the bond, were done by the principal, and denied that the sum decreed was the claim against which the bond was intended to secure plaintiff.

      Held, that the affidavit of defence was insufficient.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

    Debt by Sidney Fuller against Robert M. Leonard and Mary A. Leonard to recover the penalty in a bond.
    In the Court below plaintiff filed an affidavit of claim setting forth that the defendants were indebted to him in the surn of fifty-four hundred dollars upon a bond for that amount, executed September 22d, 1877, reciting a bill in equity, October Term, 1877, No. 424, the condition of which bond was as follows:
    “ Whereas, the said Sidney Fuller bas filed bis said bill in equity against the said Robert M. Leonard, at the above number and term of the said Court of Common Pleas, alleging a certain liability and indebtedness from him, the said Sidney Fuller, to one John Dubois, and to a certain firm known as J. B. Shaffer & Co., by reason of certain acts heretofore done by the said Robert M. Leonard (as alleged by the said Fuller) under an alleged partnership between the said Sidney Fuller and Robert M. Leonard, as fully set forth in said bill. Now, if the said Robert M. Leonard shall now, and at all times, indemnify and save harmless the said Sidney Fuller against tbe payment of all moneys and costs of collection recoverable by law to the said John Dubois and J. B. Shaffer & Co., by reason of any act or thing heretofore done by the said Robez’t M. Leonard, as charged in the said bill of complaint, then this obligation to be void, or else to be and remain in full force and virtue.”
    The affidavit further set forth that suit was brought by Dubois upon his claizn against the affiant and R. M. Leonard as late partners; that he recovered judgment thereon for $6005.99 and costs ; that he issued a fi.fa on the judgment, and levied upon a laz’ge quantity of lumber, the property of the affiant, whereupon, in order to prevent sale, the affiant was compelled to pay Dubois $6021; that affiant obtained a final decree in the equity proceeding, No. 424, October Term, 1879, against Robert M. Leonard for the payment of about $6000, in which proceedings, after due notice, Mary A. Leonard intervened ; “that said decree was based upon the-claim of John Dubois aforesaid, and that the sum so decreed was, and is, the claim of John Dubois against which it was intended to secure affiant by the bond aforesaidand that execution on this decree against R. M. Leonard has been returned hulla bona.

    The defendant, Mary A. Leonard, filed an affidavit of defence setting forth.
    “ That the bond sued on was executed by her for the accommodation of the said Robert M. Leonard, and was without consideration as to deponent; she denies that any breach of the condition of said bond appears in the said plaintiffs’ affidavit of claim, and denies also that in the record at No. 424, October Terrh, 1877, any breach of the condition of said bond appears, or was attempted to be proved ; and this deponent is advised and believes that the legal effect of the said decree at No. 424, October Term, 1877, was only to fix the indebtedness of the said Robert M. Leonard to the said plaintiff, and not to charge this deponent upon the said bond. And deponent further says that the acts and things done by the said Robert M. Leonard before the filing of said bill are not within her personal knowledge, but she is informed and believes and expects to be able to prove that no liability was devolved upon the said Sidney Fuller by reason of any act or thing done by the said Robert M. Leonard as alleged in said bill.
    “ And the deponent denies that the acts and things specified in said bill, and referred to in said bond, were done by the said Robert M. Leonard.
    “ And deponent further says that in the year 1879 she paid on account of the debt mentioned in said bond, the sum of $232, with interest and costs, amounting to, at least, the sum of $272, which payment in any case should be credited upon the debt mentioned in said bond.
    “ And this deponent denies that the sum decreed against the said Robert M. Leonard, as alleged by the said plaintiff', is or was the claim against, which it was intended by said bond to secure the said Sidney Fuller.”
    Plaintiff took a rule for judgment for want of a sufficient affidavit of defence, whereupon the Court, June 8th, 1881, made the rule absolute except as to the sum of $272, allowed by plaintiff, and entered judgment for $5400, to be released on payment of $5128.

      Mary A. Leonard took a writ of error, assigning as error the entry of the judgment.

      George Shiras, Jr., and C. C. Dickey for plaintiff in error.
    Mary A. Leonard was a surety. The “ acts and things ” done by Robert M. Leonard being the whole basis of the claim, a denial of knowledge, with the allegation that she was informed, believed, and expected to be able to prove that no liability devolved upon plaintiff was sufficient to prevent judgment: Hogg v. Orgill, 10 Casey, 344.
    If an affidavit avers an expectation of ability to prove the allegation, the presumption is it can be proved: Reznor v. Supplee, 31 P. F. Smith, 180; Moeck v. Littell, 1 Norris, 354; Black v. Halstead, 3 Wr., 64.
    It was denied that the acts and things specified in the bill were done by R. M. Leonard. An affidavit may be brief if it contain the elements of a good defence: Selden v. Neemes, 7 Wr., 421 ; Twitchell v. McMurtrie, 27 P. F. Smith, 383.
    It was denied that the sum decreed was the claim against which the bond was intended to secure plaintiff: Hunter v. Reilly, 12 Casey, 509; Purves v. Corfield, 1 Phila., 174; Feust v. Fell, 6 W. N. C., 43.

      J. S. Ferguson and J. C. Dicken for defendants in error.
    Where a person has become surety for a plaintiff in a suit in equity by signing an injunction bond, he has voluntarily assumed such a connection with that suit as to be concluded by the decree therein, and will be prohibited from contesting the matters therein decided in a subsequent action at law upon the bond : Towle v. Towle, 46 N. H., 432 ; Huzzard v. Nagle, 40 Penna. State, 178 ; Evans v. Com., 8 Watts, 398 ; Eagles v. Kern, 5 Wh., 144; Masser v. Strickland, 17 S. & R., 354.
   The opinion of the Court was delivered November 7, 1881, by

Gordon, J.

The affidavit of defence, in this case, is wholly defective; it answers nothing which is set forth in the plaintiff’s affidavit of claim, and raises no question but one which is at once determined adversely to the affidavit by an inspection of that paper.

The claim sets forth the bond executed by Robert M. Leonard and the defendant to indemnify the plaintiff against the claims of John Dubois and Shaffer & Company. It further alleges that, in order to save the property of the firm of Fuller & Leonard from sale on execution, issped on a judgment recovered against said firm by Dubois, he, the plaintiff, was obliged to pay that judgment, and that a final decree was made in his favor, and against Robert M. Leonard, for the payment of six thousand dollars, in proceedings iu equity then pending, of which the defendant had notice, and in which she intervened. The affidavit of defence denies nothing of all this, but affirms that no breach of the condition of the bond, appears in the plaintiff’s affidavit of claim; that the decree in equity only fixed the indebtedness of Robert M. Leonard to the plaintiff, but did not charge the affiant on the said bond, and finally that she believes and expects to be able to prove, that no liability devolved upon the said Fuller by reason of any act or thing done by the said Robert M. Leonard as alleged in said bill.*

But as the affidavit of claim sets forth that Dubois did obtain judgment against both Fuller and Leonard, on the claim recited in the bond, which judgment Fuller was obliged to pay, certainly a breach of the bond does appear.

Ajs to the second paragraph of the affidavit, it may be admitted that the decree only fixed the indebtedness of Robert M. Leonard to the plaintiffs and “ did not charge the defendant on the bond,” yet this admission comes to nothing, for the inquiry, in this case, is not as to the character of the decree but the breach of the bond, neither was it to be expected that she should be charged, on account of a breach of the bond, under a bill between the plaintiff and her brother. As to the last paragraph of her affidavit, there is but the allegation that no liability devolved upon Fuller by reason of any act or thing done by Robert M. Leonard as alleged in the bill.

This is entirely too general; no particulars are given; the allegations of the bill are not set forth and denied, and it would be to no purpose if they were, for she could not, in the present case, have a retrial of what was finally settled by the decree in equity.

Judgment affirmed.


source: Caselaw Access Project

author: Sterrett, J.:

license: Public Domain

text:
    October and November Term, 1881,
    No. 128.
    Hare versus Bedell.
    1. A defaulting purchaser at a sheriff's sale of real estate is not liable to respond in damages for loss on resale of the property, if it appears that under the former sale he would have acquired a more valuable title than that which passed to the purchaser at the latter sale.
    2. Where, therefore, the latter sale was made under a writ issued upon a judgment entered subsequently to the entry of the judgment under which the former sale took place, and between the dates of the entries of the two judgments defendant had conveyed the property to his wife, the defaulting purchaser at the former sale was held not liable.
    3. It is not competent to contradict the return on a writ to the effect that a sale had been made under that writ, by showing by parol that in fact there were two writs in the hands of the sheriff at the same time, and that the sale was made under both.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Assumpsit by John IT. Hare, late sheriff, for use of Joel Bedell, for use of Margaret J. Bedell, against A. W. Bedell, to recover the difference between the amount produced by the sheriff’s sale of certain real estate and costs, and the amount bid by defendant at a previous sale with its costs, which bid he had failed to pay.
    Upon the trial in the Court below, before Stowe, J., the following facts appeared:
    W. & R. Caughey to use obtained a judgment against Joel Bedell, September 25th, 1874, for $600, with waiver of inquisition, condemnation, and exemption. Upon this judgment a ft. fa. was issued to October Term, 1875, No. 539, and levy made upon certain tracts of coal lands belonging to the defendant in Jefferson township. The sheriff made return to this writ that he had sold the premises October 9th, 1875, to A. W. Bedell, for $5050, and that the purchaser had failed to comply with the terms of the sale.
    After the entry of the above judgment and before the sale Joel Bedell conveyed the premises by deed, dated November 19th, 1874, recorded November 30th, 1874, to his wife, Margaret J. Bedell.
    A judgment was entered in favor of "William Whigham to use against Joel Bedell, December 16th, 1874, with waiver of inquisition, condemnation, and exemption, upon which judgment a ft. fa. was issued, No. 205 of July Term, 1876. A pluries ft. fa. was also issued upon the Caughey judgment, No. 206 of July Term, 1876. The sheriff levied upon the land above described under both of these writs. Upon writ No. 206 he made return : “ Eor return of this writ see ft. fa. No. 205, July Term, 1876.” Upon writ No. 205 he made a special return, setting forth that he had made sale July 7th, 1876, “by virtue of this writ,” of the within described premises to “William Bedell for $4500, he being the highest and best bidder and that being the highest and best price, and further setting forth the application of the purchase-money, which included the Caughey judgment, and, “To costs on this writ and on fi.fa. No. 206, July Term, 1876, $283.10.”
    The deed from the sheriff to William Bedell, the purchaser, acknowledged October 7th, 1876, and duly recorded, recited a sale only under the writ issued upon the Whigham judgment.
    The plaintiff called the sheriff and asked him:
    “ Q,. Will you look at those returns to executions, Nos. 205 and 206, July Term, 1876, and state whether the property was sold on both of those writs ?”
    Objected to as incompetent, irrelevant, and that the record is the best evidence. The Court sustained the objection under exception.
    Counsel for defendant asked the Court to charge, inter alia :

    “ 2. That the first sale, at which defendant bid $5050, was made on execution No. 539, October Term, 1875, issued on the judgment of William and Robert Caughey against Joel Bedell, No. 311, November Term, 1874, entered September 25th, 1874, and this judgment being prior in date to the deed to Margaret J. Bedell (November 19th, 1874), that sale, if completed, would have extinguished the title of Margaret J. Bedell, as well as the lien of all judgments against Joel Bedell prior to her deed. And the last sale to W illiam Be-dell for $4500 appearing by the sheriff’s return and deed to him to have been made on execution No. 205, July Term, 1876, at the suit of Whigham, for use, on judgment No. 183, January Term, 1875, entered December 16th, 1874, after the date and record of the deed from Joel Bedell to his wife, Margaret J. Bedell, that sale would only pass a right to the purchaser to contest her title under her deed on the ground of fraud, and would not discharge the lien of any judgments against Joel Bedell prior to the date of her deed. And if she consented to treat this last sale as if it had been made on execution No. 206, July Term, 1876, then in the sheriff’s hands at suit of W. & B. Caughey, on judgment No. 311, November Term, 1874, and claimed and received by virtue of her deed the balance of the purchase-money after prior liens, such distribution would not bind this defendant, who was not a party thereto. But the amount thus applied to liens prior to her deed, $788.40, added to the price bid at the last sale, $4500, would make $5288.40, an amount greater than the defendant’s bid at the first sale, $5050. And if sbe chose to relinquish her claim of title to the land after this last sale and to take the proceeds of this sale after discharging prior liens ($788.40) she cannot recover against this defendant in this action, for if she had not chosen to participate in the distribution of the proceeds of the last sale she would not have been affected by it if her title was not fraudulent as to the creditors of her husband.

      “ 3. This defendant, not being a party to the controversy about the distribution of the money arising from the last sale, is not affected in any way nor bound by the decree of the Court therein, and the last sale on execution No. 205, July Term, being of a different and less valuable title than that on, execution 5*39, October Term, 1875, on which defendant bid, he cannot be charged with the difference between them for npt making his bid gpod.”
    The Court affirmed these points and charged the jury that under the evidence the defendant was entitled to their verdict.
    Plaintiff excepted to the answers, and the charge.
    January 5th, 1880, verdict for the defendant, upon which judgment was entered.
    Plaintiff then took a writ of error, assigning as errors the answers to the points, the charge, and the rejection of the testimony as above set forth.
    Subsequently, on the 23d of December, 1880, upon the petition of William Bedell, the purchaser, it having been shown that the sheriff’s sale was made upon writ No. 206 as well as upon writ No. 205, the Court ordered and decreed that the return to writ No. 206 should be amended accordingly, and directed the sheriff to execute a deed to the said 'William Bedell reciting a sale under both writs.

      Joseph Forsythe for plaintiff in error.
    If this judgment is not reversed the plaintiff is without remedy. The defendant was a defaulting bidder, and if the last sale was made under writ No. 206 he is undoubtedly liable for the difference between the bids. In fact the sheriff' sold on both writs. The Court held that the return on No. 206 imported nothing or was void for uncertainty. Id cerium est quod ccrtmn reddi potest. If instruments are connected together by a reference one to the other they are to be construed together: Clippinger v. Miller, 1 P. & W., 72; Kennedy v. Ross, 1 Casey, 256 ; 2 Parsons on Con., 503.
    .If the return is ambiguous such construction will be put on it as will conform to the presumption that he has done .his duty : Phillips 'a. Kuhn, 7 Phila., 146.

      The Court plainly erred in rejecting evidence explanatory of the return. A sheriff’s sale may be proved otherwise than by the production of the return : Emley v. Drum, 12 Casey, 123; Scott v. Sheakly, 3 Watts, 50 ; Hoffman v. Danner, 2 Harris, 25.
    Parol evidence is admissible to explain ambiguity in the return: Shoemaker v. Ballard, 3 Harris, 92; Titusville Novelty Iron Works’ Appeal, 27 P. F. Smith, 103.
    It has been a custom where a sale was made upon two writs to make return in extenso on one, and refer to it on the other. At most it -was amendable.

      C. Hasbrouck for defendant in error.
    The parol evidence offered was incompetent to contradict' or change the effect of the sheriff’s return of sale of real; estate on the writ. His return is the best evidence. If defective it must be corrected in the manner provided by the-statute with notice to all parties: Act of June 16th, 1836, sec. 94 ; Act of April 21st, 1846, sec. 1.
    The question was, whether a sale was made or not, and on that depended the quantum of the estate sold at the last sale.
    Whether a sale was made on that writ, to whom, at what time, or for what price, was not indorsed on it or annexed to it. .
   The opinion of the Court was delivered, November 7th, 1881, by

Sterrett, J.:

It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on resale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the resale. The obvious reason of this is, that the inferior quality of title, or the less advantageous terms of sale would naturally effect a reduction of price, and we would be left without any reliable standard by which to measure the loss* sustained by the refusal of the purchaser at the first sale to: make good his bid.

The main ground of defence in this case was, that the title sold and conveyed at the last sale was far inferior in quality* to that which would have passed to the defendant by the first sale, if he had paid his bid and received a deed. The. first sale was by virtue of an execution based on the Caughey judgment against Joel Bedell, entered September 25th, 1874; prior to the conveyance of the property by the defendant in. that judgment to his wife. It is, therefore, clear that if the sale had been consummated, it would have extinguished the title of Mrs. Bedell as well as the lien of all judgments against her husband, entered prior to the date of his conveyance to her. If the last sale was made solely on the Whigham judgment, entered December 14th, 1874, after the conveyance to Mrs. Bedell, it would pass to the purchaser only the right to contest her title, under the deed from her husband, on the ground of fraud, and would not discharge the lien of any judgments entered against him prior to the date of the conveyance: Byrod’s Appeal, 7 Casey, 241; Fisher’s Appeal, 9 Casey, 294, and Hoffman’s Appeal, 8 Wright, 95. The following special return is indorsed on the Whigham writ, viz.: “ I do certify that by virtue of this writ, to me directed, etc., I did expose the premises within described to sale by public vendue or outcry and .... sold the same to William Bedell for $4500,” etc. His deed to the purchaser also recites the Whigham judgment, execution, and sale by virtue thereof, and makes no mention of any other judgment or execution. Upon this state of facts, it caunot be doubted that the quality of the title acquired by the purchaser is far inferior to that which would have passed to the defendant if the sale to him had been consummated. To meet the difficulty thus presented the plaintiff relied on the fact that there was in the sheriff’s hands, at the same time, a pluries writ on the Caughey judgment, above mentioned, on which the following return was indorsed : “ For return of this writ, see fi. fa., No. 205, July Term, 1876.”

The execution thus referred to is the Whigham writ. In connection with this, the plaintiff offered to prove by the sheriff that the sale was in fact made on both writs, but the learned judge excluded the testimony as incompetent, and in so doing we think he was clearly right. When the return of the sheriff and the recitals in his deed show a sale on one writ only, it would be a dangerous precedent to permit him or any one else to come in on the trial of a cause and prove that the sale was also made on another -writ at the same time; to do so would greatly impair the security of titles based on sheriff’s sales, and at the same time encourage official carelessness, of which there is quite enough alreacly.

The act of June 16th, 1836, prescribing the manner in which judicial sales of real estate shall be evidenced, requires that “ the officer making sale of any real estate under execution . . . shall make return thereof, indorsed on or annexed to such writ, and give the buyer a deed duly executed and acknowledged:” Purdon, 658, pl. 119. In thus requiring that the return shall not only be in writing, but also indorsecl on or annexed to the writ, and that the sale shall be further evidepced by a deed to the purchaser, it was surely not contemplated that the return so made might afterwards be explained by parol testimony to mean something else. The act of April 21st, 1846, makes ample provision for the correction or amendment of defective or informal returns: Purdon, 6, 59, pi. 130. After the trial of this case, the return in question was amended, in the regular and orderly way, at the iustanee of the defendant; but that cannot affect the question under consideration. It was not amended at the time of the resale. The state of the record as it then stood was such as to admonish bidders that the quality of the title then offered was inferior to that which would have passed by the first sale, and consequently the property would bring less than it did at the first sale.

For these and other reasons that might be added we are of opinion that the testimony offered by the plaintiff was rightly excluded.

Judgment affirmed.

Mercur, J., dissents, as there was amply sufficient to amend by, and the parol evidence should have been received.


author: Per Curiam :

text:
    October and November Term, 1881,
    No. 299.
    Canan versus McCamy.
    1. Where the plaintiff purchased ahorse from the defendant,which was balky, and he relied not upon an express warranty, but upon a representation alleged to be false and fraudulent, the proper remedy was an action on the case for deceit.
    2. In such an action a justice of the peace has no jurisdiction.
    Error to the Court of Common Pleas of Armstrong County.

    Appeal by Samuel MeCamy from the judgment of a justice of the peace, in favor of J. A. Canan for $45.50, in an action brought by the latter against the former to recover back the value of certain articles given in payment for a horse sold and delivered.
    Plaintiff filed a narr in assumpsit, containing the common couuts, and a special count, setting forth that “ the defendant received from him one buggy, of the value of $60, and a harness and other articles of personal property, of the value of $30, for which the said defendant agreed to pay what would be a fair and reasonable price. Defendant gave to the said plaintiff, as consideration for said property, a certain horse, which the defendant warranted to be sound and a good and reliable horse to work in a wagon, either single or double, — which said horse was not sound, nor was it reliable or of any use whatever as a working horse, nor was it in any respect' such property as the defendant represented it to be. The plaintiff could not use said property for the purposes he intended, -when bargaining for the same, nor was it of any use to him. Which said property the plaintiff returned to the defendant, and the plaintiff' has not, therefore, any value for the articles of property he sold and delivered to the defendant.”
    Pleas non assumpsit and payment with leave, etc.
    Upon the trial in the Court below, before Neall, P. J., the plaintiff gave evidence that, on the 14th of August, 1879, accompanied by John Downey, he went to the house of the defendant, to trade a buggy for a work horse. He told defendant he wanted a good horse to make up a team. Defendant pointed out a gray mare that he was -willing to trade. He said that she was a good worker, and that he had done his work with her. He mentioned the horse was lame in front in the foot and shoulders. “ He said there was nothing wrong about her but this lameness.” Plaintiff agreed to give the buggy and harness for the mare, and defendant was to pay $5 in thirty days. On the way home plaintiff discovered that the mare’s wind was not very good. A few days afterward he put her in a team to take a load, and in going down hill she fell at different times, and held back. The other horse pulled her and the load down hill. He could not do anything with her. He could not get to the place he wanted t'o load. He then went to defendant, and told him the mare would not work, and demanded his property. Defendant said that when he made a trade he stood to it. Plaintiff tried her in a team again, and, after going a rod or so, she drew back, and threw her head over the other horse. They put a rope into her jaw, and she threw herself back, and hurt her jaw. She stopped on going down hill, and made a rear-up, and threw herself over into a ditch. They could not push her along, and she would not go under a saddle. She jumped out of a field at night, and went back to the defendant’s, and plaintiff left her there. The value of the buggy, etc., was $55.50.
    One witness testified that, in thirty-three years’ experience with horses, she was the only one he could not do anything with, and another testified that he tried unsuccessfully to lead her in an empty wagon, and that she was of no use to any one. There was evidence that defendant knew she was balky before the trade.
    The defendant, Samuel McCamy, testified:
    “ Mr. Canan came there, and Mr. Downey along with him, to trade with me, and I refused trading with them, would not trade with them at all, and he finally insisted until all the rest of the horses was in the stable, only this one. This one was running loose. After I refused trading, this one came around. I said, there is one if she suits you that I would not stop much to trade you. He asked me if she would work, and I replied that I had worked her. Well, he asked me, if she would haul her share of a ton from the river up here from my house. I told him no, I would not risk’ it. Well, that was all that was said with regard to trading. He said, after my reply, then if you worked her, we can work her, and we finally traded. I worked her for, I think, in the neighborhood of two years, when I had no other horse. I did all my work on the farm. I raised colts with her. The mare worked well when she was worked right. She was very highstrung, and one would have to be very careful with her. I hauled stuff for my farm with her, and we hauled also board, and stone, and the bottom timber with her. After I hauled for myself, I hauled for Mr. Forgie, but I don’t recollect just the time. We hauled timber from the river up around Bear Creek, around several farms. We hauled up the large hill at Bear Creek, and up that steep hill at Lawrenceburg, and over heavy roads. She did not balk with me; I worked her when it was necessary, but did not work her for good. If he had asked me if she would pull a half ton, I would say no, because I didn’t work her. I would not have taken $60 for the mare. The buggy I got went all to pieces. I calculated the harness was worth $10. I gave him $5 for the harness. I was to give it. I offered that to him — tendered it to him the Saturday before, I think. If I recollect right, it came due on Sunday. The mare came back, turned out. I seen her the next morning when I got up. Seen her standing at the gate at Mr. Cruther’s woods. I went up and looked at her. She was what I call blind of one eye. The whole side of her head was black, clear from her ear down. The eye appeared like as if it was out. The under jaw was all cut the whole day. She was skinned between the forelegs, and I think she was lame. I did not take her back. Told him I would have nothing to do with her.”
    There were a number of witnesses who testified that the defendant had worked the mare, and hauled loads with her.
    . Counsel for plaintiff asked the Court to charge:

      “ If the jury believe that the defendant, McCamy, sold the mare in question to Canan, knowing a material defect, but did not disclose it, and if said defect was known to the buyer, and was not such a defect as a buyer of common prudence wmuld be presumed to know, there was such fraud in the transaction as vitiates the contract, and the buyer may recover back the price paid for the mare.”
    The Court refused this point, and charged the jury, inter alia:

    “ It was in the power and it was proper for Mr. Canan, if he desired to buy such a horse as he could rely upon, to have required from him, the seller, a guarantee of that horse, and the seller warrant the horse, because he had a right to demand that, and if he refused to warrant the horse, then he made, as it has been often expressed by the trite expression known to you, ‘that he made his eye his own market,’ because [there is no warranty, no guarantee implied in the purchase of mere personal articles, chattels of that kind that a horse is. That every man has opportunity of inspection for himself, and if he is not satisfied with that inspection he has a further alternative of requiring a warranty that the horse shall come up to what he demands it was to be, and then, in case that it fails to come up to that, he can pursue the seller upon that warranty, and can claim and demand the money back that he pays him ; but in the face of no warranty they take the risk of purchasing themselves. They have a right to know what the goods are that they are buying, because they can see for themselves, and if they are not satisfied with the evidence of their own eyes they have the further right to test the qualities of the articles, — trying the horse either under the saddle or in the -wagón, and could require and could have experimented with that horse before they took him away if they desired so to do. But failing to do that and taking the horse away he took him upon his own responsibility.]
    [“ There might be in this ease a remedy or action arising from mere deception where deception had been practiced, that possibly would not come into consideration in a suit of this kind. If there had been any deception that had misled there is a right of action in what we call action upon the case for deceit, but whether it could come in here in the form of action we have considerable doubt.]
    [“ If it -were an action upon a contract for the sale of a horse, brought by the vendor of the horse, we have no doubt that it could come in by way of defence; but to bring the action for the transaction as fraud, and setting upas a question of that action the deceit of this party, we very considerably doubt, and would so instruct you. That I may be distinctly understood, and that the party may have the full benefit of that instruction, that this is not the place to bring in mere deception.] If there was actual fraud, and if it were a fraud the rule would be different. And a fraud does not consist of mere statements of facts ; but it is — that is a fraud where a man wilfully makes a statement with the purpose of cheating and defrauding. We call it fraud when statements of a deceptive character are made, calculated to defraud arid cheat — as near as we can that is the definition for fraud. Now do you find in this case anything of that kind ? [And it is for you to say, gentlemen, if there was such' practice used by this man, who was sought out at his own home by the purchaser of this horse, and the horse was bought after words were passed between them. The important ones appear to have been whether he would or could pull a ton up a hill, and he answered he would not like to risk him as to that], and you will remember that he said he was all right. That is a question for you to determine whether he was all right, as to the whole soundness of the horse or not.
    “ If the horse was all right — if he got lame — got hurt, or something of that kind, that ruins the whole horse, as a work-horse, it will be for you to determine; because you have to interpret what this meant. And, if you find that there was actual fraud committed on this man, then there comes another question. It was the duty of this person, the plaintiff’in this case, if he returns the articles, the goods, to the person who sold to him, the defendant in this ease, to return them in the condition that he obtained him. Was he in that condition when the horse went to him? You have the testimony of the plaintiff himself in regard to the horse falling over a bank and getting some injury on his head. He does not state in the full manner that the defendant does, and therefore you have to reconcile their testimony as to that. The defendant says the horse was cut on the jaw and bruised and black around the head, and that he did not know whether his eye was out or not, and that it was swollen tight, — and injured about the eye.
    “ If there was a return of the money required in that case or the value of the goods that were given for that horse or the goods, he should have been returned in the condition that he -was obtained from this defendant. You are to determine whether he was returned in that condition or not.”
    Counsel for plaintiff excepted to the answer to his point, and to the charge.

      December 25 th, 1880, verdict for tbe defendant, upon which judgment was entered.
    Plaintiff:' then took out a writ of error, assigning as error the answer to the point as above, and those portions of the charge within brackets.

      J. P. Colter for plaintiff in error.
    Fraud vitiates a contract, and if there was fraud in this sale, Canan had the right to return the property and demand back what he paid.
    The words used and which caused the sale were tantamount to a warranty: Lowry v. McLane’s Administrators, 3 Grant, 333; Babcock v. Case, 11 P. F. Smith, 421 ; Cornelius v. Molloy, 7 Barr, 293 ; Croyle v. Moses, 9 Norris, 250 ; Freyman v. Knecht, 28 P. F. Smith, 141; Esher v. Flagler, 17 S. & R., 141; Bright v. Getz, 32 P. F. Smith, 144.

      John Smullin and David Barclay for defendant in error.
    There was no evidence of warranty in the case. Without warranty there could not be want of or failure of consideration. Canan took at his own risk, and could not recover in this action: Eagan v. Call, 10 C., 237.
    There was neither fraud nor warranty or agreement to return the horse, and the vendee could not rescind the contract after it had been executed: Freyman v. Knecht, 28 P. F. Smith, 141.
    The plaintiff says there was an implied warranty in this case, because the mare was said by McCamy to be sound, and a fair price was paid for her. That an implied warranty cannot so arise is settled, by McFarland v. Newman, 9 Watts, 55, Whitaker et al. v. Eastwick, 25 P. F. S., 229.
    Here was an absolute contract of sale or trade without warranty and without any right reserved to return the article. The vendee cannot rescind the contract. Kase v. John, 10 Watts, 107.
    Nov. 7, 1881.
   Per Curiam :

This was an appeal from the judgment of a justice of the peace. The declaration was in assumpsit in the common counts, with a special count — informally drawn — upon the warranty of a horse. It is not pretended there was any express warranty, but the plaintiff relied upon a representation alleged to be false and fraudulent. For that the proper action would be case for deceit, of which the justice had no jurisdiction.

Judgment affirmed.


author: Per Curiam:

text:
    October and November Term, 1881,
    No. 241.
    The Commonwealth ex rel. Crawford County Agricultural Society versus Commissioners of Crawford County.
    1. The act of March 29th, 1851, P. L., 289, directs that, certain prerequisites being complied with, the county agricultural or horticultural society, in any of the counties of the Commonwealth, shall be entitled to receive a sum of money from the county treasurer, “ Provided, that said annual payment, out of the county funds, shall not exceed one hundred dollars. Provided, further, that but one such society in any county shall he entitled to receive such appropriation, in any one year, trader this act.” Held, that the county, having paid one hundred dollars per annum during several years to one of several societies organized under the act, cannot be compelled to pay that amount for those years to another such society, though the latter was prior in organization.
    2. Semble, that the act contemplates the possible existence of more than one such organization in a county, and it is within the discretion of She county commissioners to divide the annual appropriation equally among several societies, or to make equitable alternate payments of that sum to them.
    Error to the Court of Common Pleas of Crawford County.

    Mandamus to the commissioners and treasurer of Crawford County.
    On the 21st of September, 1880, the Crawford County Agricultural Society presented its petition to the Court of Common Pleas setting forth,
    That said society, consisting of a large number of persons, all citizens of Crawford County, was organized in 1852, under and according to the terms of the act of March 29th, 1851.
    That they have adopted a constitution and by-laws for their government, and have elected their officers ; that from the day of their organization they have raised annually by the voluntary contribution of the members of the society over one hundred dollars, which have been each and every year actually paid into their treasury for the purpose of being dispensed for the promotion of agricultural knowledge and improvement; that for each and every the years following, viz., 1861, 1864, 1866, 1872, 1874, 1878, and 1879, they raised by voluntary contribution of the members of the society one hundred dollars and over, which was each and every of said years actually paid into the treasury for these purposes, which fact was each and every of said years attested by the affidavits of their president and treasurer, and filed with the commissioners of Crawford County aforesaid, that they became entitled, under said act, to have and receive from the treasurer of said county the full sum of one hundred dollars ; which facts were each of said years made known to the treasurer of said county, and the money, viz., one hundred dollars for each of the years aforesaid, demanded of him, and. that the treasurer aforesaid has refused, and still refuses, ifco pay to your petitioner the said several sums of money, or any part thereof, and the commissioners of said county have continuously refused, and still do refuse, to draw their order therefor in favor of petitioners.
    It prayed for a mandamus to Joseph Scowden, William J. Kerr, and James Jamison, commissioners of said county, commanding them to issue to the petitioners their order for the said several sums of money-, and to William Nas1 treasurer, to receive and pay the money thereon.
    The answer of the respondents set forth :
    That there are other agricultural societies organized in said county of Crawford, in accordance with the 4th section of the act aforesaid, to wit: The Crawford County Central Agricultural Society, having the place for holding its annual fair in Vernon Township, Crawford County; the French Creek Valley Agricultural Society, having its place for holding its annual fair at Coehranton, said county, and the Oil Creek Valley Agricultural Society, having its place for holding its annual fair at Titusville, said county, each being regularly organized, and being for the promotion of agricultural knowledge and improvement; that each had raised annually,by voluntary contribution of its members, over one hundred dollars for the purposes as aforesaid ; which facts were attested by the affidavits of the presidents and treasurers thereof, and duly filed with your respondents ; that by the provisions of the 4th section of said act but one society in any one year is entitled to such appropriation ; that the respondents having been legally, and in aceor’dance with the 4th section of the act aforesaid, informed that the French Creek Valley Agricultural Society had raised, by voluntary contributions of its members, for the year 1880, a sum of money in amount over one hundred dollars for the purposes aforesaid, by resolution, the 1st day of September, A.D. 1880, agreed to draw an order, and did draw an order, upon the treasurer of Crawford County, the first day of September, A.D. 1880, to pay said French Creek Valley Agricultural Society, for the sum of one hundred dollars; that for the years 1861,1864,1866,1872,1874, and 1878, the respondents, were not at that time and times commissioners nor treasurer, but from examination of the records they find orders have been issued by the then commissioners on the then treasurers, in favor of duly organized and certified agricultural societies, who by proper affidavits, have shown that they had brought themselves within the requirements of the act aforesaid ; and that for the year 1879 the Crawford County Central Agricultural Society aforesaid, having complied with the requirements of said act, the appropriation was drawn in favor of it to the amount of one hundred dollars.
    The relators filed a replication, averring that the several societies named in the answer, viz., the French Creek Valley Agricultural Society and the Oil Creek Valley Agricultural Society are not, nor is either of them, organized under the act of 29th of March, 1851; that each of them is a “joint stock company,” and each, especially the former, having a membership largely comprised of persons who are residents in and citizens of adjacent counties, and are therefore not embraced within the provisions of the act aforesaid, or entitled to its benefits ; that “ The Crawford County Agricultural Society,” being the first, and for many years the only agricultural society organized within Crawford County, under act afoi’esaid, and having always, and from the date of its organization in 1852, complied with the terms of said act, are solely and exclusively entitled to the appropriation or payments of money for which it provides; that the moneys paid by the defendants, as set forth in their answer, to “ The Crawford County Central Agricultural Society,” “The French Creek Valley Agricultural Society,” and “The Oil Creek Valley Agricultural Society,” were paid contrary to and without authority of law, and that saicl several sums of money should have been paid to plaintiffs ; all and each of which allegations and averments they are ready to vei’ify.
    The act of March 29th, 1851 (P. L., 289), provides, section 4:
    “ That when any number of individuals shall organize themselves into an agricultural or horticultural society, or any agricultural or horticultural society, now organized within any of the counties of this Commonwealth, shall have adopted a constitution and by-laws for their goveimment, elected their offieei’s, and raised annually, by the voluntary contribution of its members, any sum of money which shall have actually been paid into their treasury, for the purpose of being disbursed for the promotion of agricultural knowledge and improvement, and that fact be attested by the affidavit of their president and treasurer, filed with the commissioners of the county, the said county society shall be entitled to i’eceive annually a like sum from the treasurer of their said county. Provided, that said annual payment out of the county funds shall not exceed one hundred dollars. Provided further, that but one such society in any county shall be entitled to receive such appropriation in any one year under this act.”
    July 14th, 1881, the Court below, Church, P. J., dismissed the petition at the cost of the relators and filed the following opinion:
    “ The relators claim themselves to be organized, and to have for these years brought themselves within the definition in said section. The respondents neither admit nor deny that allegation to be true, but aver that during said years there were other associations of individuals within the county who organized aud brought themselves within the definition and provisions of said section aud act, and to whom the said sum of $600 was paid for said years. The said other associations are averred to be ‘ The Crawford County Central Agricultural Society,’ ‘The French Creek Valley Agricultural Society,’and ‘The Oil Creek Valley Agricultural Society.’
    “ The relators, in their replication, deny that the two last-named societies are organized under the above-named fourth section, but aver them to be joint stock companies, having a membership largely composed of citizens of adjacent counties, and hence are not entitled to the benefit of said section in said recited act. This raised a question of fact, and thereupon a jury trial was waived, and the question of fact submitted to the Court; and thereupon we find that the French Creek Valley Agricultural Society was, in 1877, duly and fully organized under the provisions of said act, and the fourth section thereof, and did, during its existence, comply with the provisions of said section by filing with the commissioners of the county an affidavit, made necessary by that section, to entitle them to the benefits of said section. The said last-named society has members in and receives contributions from persons living in adjacent counties.
    “ This being, therefore, found as a fact, the other questions are raised by the pleadings.
    “ This is, therefore, a claim and demand by the CrawTord County Agricultural Society from the County of Crawford, for the sum of $700, being $100 for each of the years, 1861, 1864, 1866, 1872, 1874,1878, and 1879.
    “ [Tbe answers of respondents averring that the county paid out during these years the sum of $100 per annum to some one of the other agricultural societies organized under the act of 1851, is a sufficient reply to the application on the part of the relators for payment for these years.] The«fourth section, under which payment is claimed, provides ‘ that but one such society in any county shall be entitled to receive such appropriation in any one year under the act.’
    “ [The money, therefore, by law appropriated for these societies, is no longer in the' county treasury, and, of course, cannot be reached in this or any other proceeding,] and as the mandamus asked for only extends to these years, it must, of course, be dismissed.
    “ What I say in addition must be treated as extrajudicial, for there is not a word said about the future, nor is a mandamus asked for, for the present or any future year. Inasmuch, however, as counsel on both sides, in their argument adverted to the present and future, and this opinion may prevent further litigation, I deem it proper to say that the Crawford County Agricultural Society, the relator in this case, is, under the fourth section of the act of 1851, before recited, and under the facts in this case, not the only society in this county organized and conducted under the section, and is not the only society in the county which has adopted the constitution and voluntarily raised the contributions for the promotion of agricultural knowledge and improvement, as defined in said section, and has not the exclusive right, by virtue of priority of organization, or otherwise, to the benefits of the said section, or of the money appropriated thereunder. To entitle any such society, however, to this money, the requisite' affidavits and statements must be annually made to the commissioners, and, of course, we cannot say that in the future, any, or if one, more than one such society will, in any one year, or at all, make such statements, attested by affidavit, or required by said act. Without quoting the act in ipsissimis verbis, I construe it to contemplate the fact that there may be in a county more than one such organization. It says: ‘Any number of individuals, etc.,’ not the first set or first number of individuals, etc., and further, ‘ any society now organized ’ may do so and so. The last proviso certainly contemplates that more than one such society may receive the whole or a portion of said appropriation. It says ‘ but one such society in any one county shall receive such appropriation in any one year?

    “ [In short, the whole question, within the limit, of course, of the two provisos, is altogether within the discretion of the custodians of the county funds, to wit, the county commissioners. The latter might, if they saw fit, probably divide the appropriation equally and annually between the several agricultural societies, or might, as I understand they have heretofore done, and intend in the future to do, equitably make alternate appropriations of the said $100 among the several societies who bring themselves within the act. This discretion of the county commissioners has been, and as we believe, rightly exercised, and we cannot control it if we would, and. we would not control it if we could.”]
    The relators then took a writ of error, assigning as errors those portions of the opinion within brackets, and that the law of the opinion was wrong and its conclusions erroneous.

      H. L. Richmond & Son for plaintiff in error.
    The very names of the “French Creek Valley” and the “Oil Creek Valley” societies, show that they are not county societies, and their membership is divided among several counties. The relators are entitled to the money by virtue of priority of organization: To dissipate the money
    among a score of societies, or to pay it to them alternately, is to defeat the object of the act: Commonwealth v. Fraim, 4 Harris, 169; The People v. Utica Ins. Co., 15 Johnson, 380.

      Thomas Roddy for defendant in error.
    The accounts of the former commissioners and treasurers having been officially passed upon without appeal, the relators are estopped: Blackmore v. Allegheny County, 51 Penna. State, 160.
    The act intended that the commissioners should be the judges as to who should receive the money.
    January 2d, 1882.
   Per Curiam:

This judgment is affirmed upon the opinion of the learned president of the Court below.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 238.
    Overseers of Plum Creek versus Overseers of South Bend.
    1. The hiring as a servant, hy which a pauper may gain a settlement under section 9, of the act of June 13, 1836, must be upon such an agreement to pay wages or bargain as could be enforced in a suit at Jaw.
    2. Where the pauper went to live with his uncle for an indeterminate period of service, and the latter took him into his family partly from benevolent motives, expecting to take care of him, and in return receiving the benefit of his labor, it was not sufficient to give him a settlement.
    Error to the Court of Quarter Sessions of Armstrong County.

    Appeal of the overseers of the poor of South Bend township, from an order of removal made by two justices, removing Stephen Linsenbigler, a pauper, from Plum Creek township, to the said South Bend township.

      From the depositions taken in support of and against the appeal, the following facts appeared.
    Stephen Linsenbigler, the pauper, was twenty-two years of age, January 17,1879. His parents had a settlement in Plum Creek township. About July 6,1876, Stephen, while still a minor, went to live with his uncle, Daniel Rupert, in South Bend township. He came of age, January 17, 1878, and remained there until the following October.
    W. A. Hannah testified : “ There was no contract at all, whatever, that I knew of.”
    Daniel Rupert testified: “I never had a bargain to keep Stephen Linsenbigler; I never had hired him, I only kept him here to keep him olf the township, as long as 1 could attend to him ; when I could not attend to him I sent him home. We clothed him and kept him as one of my own 'family. Sent him home with good clothes, got him a pair of new boots and sent them with him.”
    Daniel Liusenbigler testified: “ Stephen Linsenbigler was not hired at Daniel Rupert’s by my knowledge. He was there something over two years; he never received anything but his victuals and clothes. He went there from William Hannah’s. Stephen Linsenbigler was twenty-two years old the 17th day of January, 1879; he went to Daniel Rupert’s in July, 1876. They said he was a good boy to work. He got his boarding and clothes and his washing done there. They never gave me anything as pay for his work. I do not mind of Stephen saying Mr. Rupert wanted him to stay there. He is subject to some kind of spasms. Mr. Rupert told me in October last to come and take him away.”
    W. A. Hannah testified: “ I was there on the 4th day of July, and they, Mrs. Daniel Rupert said she would like if he would come and stay there. They said they would use him as one of their own family if he would come.
    “ There was nothing said about wages, only they would use him as one of their own; were afraid he would get hurt among the horses.
    “ I understood that should be his home while they could take care of him.”
    Christina Wise testified: “ The article of flour and other things -were given or offered as presents, and not in payment of any debt.”
    Catharine Linsenbigler testified: “ Mrs. Rupert told me that since Stephen liked to stay there, she would take him and keep him as her own boy. The boy made that his home from the time he commenced there, pretty much. I think that the boy made his home at Mr. Daniel Rupert’s about one year and six months.”
    E. S. Linsenbigler testified: “ My aunt, Mrs. Rupert, told me he was to get so much, I do not know what amount. She told me she would keep him there, and board and clothfe him and wash for him as one of her own. After he would become of age,-she was to give him a cow and bed, •and whatever he would need. I understood by Stephen and Mrs. Rupert both that that was to be his home, lie was to stay there till he was of age or got married, and that he was to get these things for his labor. I think he was about twenty--two years of age in January. I do not know how long he was there, but am certain it was over two years. He told me this was the contract after he became of age. I have this from my aunt and uncle Daniel, that this was the contract after he became of age.
    “ 1 suppose the contract was made between the old folks. He certainly received wages.”
    Counsel for the overseers of Plum Creek asked the Court to decide as follows:
    “ The Court is respectfully requested to hold and decide, that if the father of Stephen Linsenbigler consented to his living with his uncle Daniel Rupert, in South Bend township, as one of his, Rupert’s, family, and Rupert so received him, and he remained with him for over a year, in that event he would gain the residence of Daniel Rupert, and as a pauper would be chargeable to the township of-South Bend.”
    The Court, Neale, P. J., refused this point, on request sealing a bill of exceptions, and filed an opinion, inter alia, as follows:
    “From the testimony it is clear that the pauper went to live with his uncle, Daniel Rupert, before he was of age, and continued with him some nine months after reaching majority. A contract made by the minor, unless he was emancipated from his father, or ratified by the father, would not be a contract in law, but it might be such an agreement as would meet the requirements of the act of 13th June, 1836, which only contemplates a hiring for the recovery of wages. Suit could be maintained, and the price fixed would stand as the measure of damages. The law does not require that money wages shall be stipulated for, but it is a corollary plainly deducible that if there should be a hiring there should be payment or agreement to pay wages, a bargain, .something that could be enforced in law. Could anything under the evidence in this case be recovered from Daniel Rupert if suit had been brought by the pauper or the father of the pauper in his behalf ? The law holds that as between near relations a contract for service must be clearly established and will not be implied. We think in this case the weight of evidence would be against a recovery.
    “ And we think the same result would follow if suit were brought to enforce a contract even for maintenance, as the evidence scarcely establishes any certain and determinate period of service.
    “ Viewing the whole case from such light as the evidence sheds upon it, it would seem that the boy Stephen Linsenbigler was subject to spasms, and had been living with his sister, Mrs. líannah, and was by her transferred to his uncle, Daniel Rupert, who took him into his family partly from benevolent motives, expecting to take care of him, and in return receiving the benefit of his labor. His father not being of sufficient ability to provide for him, a service without hiring would not be sufficient to establish or gain a settlement : Overseers of Lewistown v. Overseers of Granville, 5 Barr, 283-84. Mere taking one in charity will not gain a settlement: Ibid. In the ease of Overseers of Tioga v. Overseers of Lawrence, 2 Watts, 43, very slight evidence was accepted to establish a contract of hiring. ‘ To constitute such a contract any declarations or acts of the parties which evince their assent to an agreement expressed at the time is sufficient/ Both Rupert and Linseubigler disclaim any such fact in this case, and none is shown by the evidence of Mrs. Hannah. This case has the distinguishing feature also of being between near relatives, which is recognized as raising no implied promises, as would be in the case between strangers: See Moreland Township v. Davidson Township, 21 P. F. S., p. 377. In the case of Heidleberg v. Lynn, 5 Wharton, 432, the contract of hiring was expressly shown, and it was there held that the hiring was only necessary as evidence that the service was valuable.
    “As it is clear that the father had his settlement in Plum Creek township, which became the settlement of the children till by such acts as the statute prescribed a new settlement should be acquired, we think that the evidence of such acts should be free from uncertainty.
    “Therefore, this 1st August, 1881, the Township of Plum Creek is declared to be the place of the last legal settlement of said Stephen Linsenbigler. The appeal of the overseers of South Bend Township is sustained, and it is ordered that the Township of Plum Creek pay the costs of these proceedings.”
    The Township of Plum Creek excepted to this ruling and decree, and took out a writ of error, assigning as errors the refusal to affirm the point submitted and the making of the decree.

      E. S. Golden for plaintiff in error.
    Had the question in this case been one of contract, there was enough evidence from which to infer a hiring. But this was not really the point in the case. The question was one of quasi adoption by Daniel Rupert, and of emancipation by the father of the pauper. This was the effect of the point submitted by the Township of Plum Creek, which was refused by the Court. I think the case is clearly within the rule announced in the following decision:
    “ If a father gives away his child to a person living in another town, with whom he afterwards lives as their own child, without interference or assistance on the part of the father, the child is emancipated, and may gain a settlement for himself while a minor:” Portland v. New Gloucester, 4 Shep., 427.
    This ruling is sustained by the authorities cited in Burns’s Justice, vol. 3, 11th edition, pp. 317, 352.

      Gilpin and McCain for defendant in error.
    The reasoning of the learned judge in the Court below, as also the opinion of this court in Lewistown. v. Granville, 5 Barr, 283, and in Moreland Township case, reported in 21 Smith, 377, 3 W. N. C., 20, and 7 W. N. C., 12, would seem, aside from the plaintiff’s admissions, to settle beyond question that the mere fact of Daniel Rupert, of South Bend Township, receiving and supporting merely as a charity his imbecile nephew, who was minor and settled in Plum Creek Township, would not be sufficient to give to said nephew a settlement in South Bend Township, and that the action of the Court below in sustaining the appeal of the overseers of South Bend Township, etc., was right.
    Nov. 7th, 1881.
   Per Curiam :

The order and decree in this case is affirmed upon the opinion of the learned judge in the Court below.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 217.
    Wilson versus Hubbell.
    1. In proceedings under the act of June 16th, 1836, by the purchaser at a sheriff's sale to recover possession of the land, the tenant in possession under a lease from the defendant in the judgment cannot set up an adverse title in himself.
    _ 2. He has nothing to do hut give up his possession, and if he has a better title proceed upon it in another ejectment.
    Error, to the Court of Common Pleas of Erie County.

    Proceedings under the act of June 16th, 1836, were commenced by James A. McCullough and M. V. Blare, committee of J. G. Hubbell, before an alderman, against' John Wilson, to recover possession of one hundred and fifty acres of land in Greenfield township, Erie County, which land the plaintiff had purchased at sheriff’s sale.
    Upon affidavit of defendant, claiming to own the one undivided half of the lands, and recognizance being filed, the alderman certified the case to the Court of Common Pleas. The plaintiff filed a narr in ejectment, and the defendant pleaded not guilty. Harriet Hubbell was afterward substituted as plaintiff of record.
    Upon the trial in the Court below, before Galbraith, P. J., the counsel for plaintiff offered in evidence the record of a judgment of R. C. Robertson & Co., to the use of Jabez G. Hubbell, against J. M. Brown, entered March 19th, 1874, for $148.88, and a fi.fa. issued thereon to February Term, 1879.
    Also a deed from the sheriff of Erie County to Jabez G. Hubbell for the land in controversy, sold as the property of J. M. Brown, under the above fi. fa., for $600, which deed was .acknowledged February 6th, 1879.
    Also notice served upon John Wilson, the person in possession, on April 7th, 1879, requiring him to vacate within three months, and proceedings before a justice of the peace to recover possession.
    Also a lease from James M. Brown, the defendant in the above judgment, to John Wilson, the defendant in the present suit, dated March 16th, 1875, for the term of five years, at the rent of $125 per year for the land in question. It was admitted that Jabez G. Hubbell died since the commencement of the suit, and that by divers conveyances and under his will his rights had devolved upon his wife, the plaintiff’.
    The plaintiff then rested.
    Counsel for defendant then showed title in William Wilson, and his death, intestate, November 8th, 1846, leaving two sons, James and John. He further showed that John Wilson died intestate and left surviving him three sons, James H. Wilson, Thomas S. Wilson, and John Wilson.
    He then offered in evidence a deed, dated February 5th, 1879, from James- Ii. Wilson et ux., Thomas Wilson, and John Wilson et ux., to John Wilson, the defendant, and Nancy Brown, his sister, for “one hundred and fifty acres of land, more or less, known as the old William Wilson- farm; the interest hereby conveyed is the undivided half of the said farm, descended from William Wilson to his sons John and James Wilson, and the said undivided half interest hereby conveyed, descended to the vendors from their said father, John Wilson.” This deed was acknowledged February 15th and 19th, and August 14th, 1879.
    The offer was objected to, and the evidence was rejected under exception, the Court saying: “ The insurmountable obstacle in the way of the defendant’s claim is the settled rule that a tenant may not dispute his landlord’s title.”
    The Court charged the jury as follows:
    “The main question in this case, as you will have apprehended from what has occurred in your hearing, is a question of law. That question has been determined by the Court, on the offer and rejection of evidence, and if there is error in our view of the law, the defendant has his ample remedy by a review in the Supreme Court. The only question for you is the question of the amount of damages you will assess for the detention of this place. That is entirely a question of fact. You have heard the evidence. The witnesses range from a hundred dollars to a hundred and twenty-five dollars,and you can judge of that as well as I can, or better, and it is your province entirely to settle that question.
    “ Your verdict, then, will be for the plaintiff, assessing the damages at such sum as you deem proper under the evidence to fix. That is, you will find for the plaintiff and assess the damages.”
    Counsel for defendant excepted to the charge. April 5th, 1881, verdict for the plaintiff for the land and $200, upon which judgment was subsequently entered.
    Defendant then took a writ of error, assigning as errors the rejection of the evidence as above, and the charge of the Court.

      Benson and Brainerd for plaintiff in error.
    The question and relation of landlord and tenant does not and cannot arise in this case. The purchaser at sheriff’s sale bought in hostility to both the defendant in the execution and the tenant. He purchased an interest in the land— what title the defendant in the execution had, if any, and nothing more; he took free from all leases made after the incumbrance commenced. In this case he could not have purchased more than an undivided half of the land, for J. M. Brown, if he had any title, could not have had more than an undivided half, and it don’t appear in evidence that he had any title whatever.
    In these proceedings the defendant may give in evidence any title that he set up in his affidavit: Walker v. Bush, 6 Casey, 352; Brownfield v. Braddee, 9 Watts, 149; Dean v. Connelly, 6 Barr, 239.

      G. A. Allen and L. Rosenweig for defendant in error.
    A tenant is estopped from setting up against his landlord an adverse title acquired during the term: Cooper v. Smith, 3 Watts, 536; Jackson v. Harder, 4 Johns, 292 ; Jackson v. Whitford, 2 Caines Rep., 215 ; Brant v. Livermore, 10 Johns., 358 ; Balls v. Westwood, 2 Camp, 12 ; Jackson v. Hinman, 10 Johns Rep., 292 ; Jackson v. McLeod, 12 Johns., 182; Dimond v. Enoch, 1 Addison, 356 ; Galloway v. Ogle, 2 Binn., 468 ; Cooper v. Smith, 8 Watts, 536 ; Eister v. Paul, 54 Penna. St., 196 ; Morey v. Rogers, 8 Phila., 297 ; Caffery v. McFarland, 1st Phila., 555.
    To enable a tenant to contest his landlord’s title there must be first a bona jid,e surrender of the possession: Graham v. Moore, 4 S. & R., 467 ; Boyer v. Smith, 3 Watts, 449.
    The purchaser at sheriff’s sale bought the title and right of possession of J. M. Brown, and while the action of ejectment is a possessory action, the act of Assembly of 1836 to enable the sheriff’s vendee to recover possession is peculiarly a possessory remedy. The proceedings commenced before the justice was to recover possession, and the proceedings in Court are a continuation of the action commenced before the justice.
    October 3d, 1881.
   Per Curiam:

There is certainly no point better settled than that a tenant cannot controvert the title of his landlord, or defend the possession against him or any one claiming title under him. The purchaser at the sheriff’s sale succeeds to all the title and rights of the defendant in the judgment under which the premises were sold. A lease was produced from Brown, the defendant in the judgment, to John Wilson, against whom the proceedings were instituted. He had nothing to do but give up his possession, and if he had a better title than Brown proceed upon it in another ejectment.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 123.
    Appeal of James H. Bell.
    Where the assignee of an instalment, payable under a mortgage, has a guarantee from his assignor, the mortgagee, of its payment at maturity, and he assigns the instalment, and his assignee agrees with him, in the interest of the mortgagee, that the instalment shall be postponed to subsequent instalments, the effect of this agreement is to release the mortgagee from thé guarantee.
    Appeal of James H. Bell from tbe decree of tbe Court of Common Pleas of Armstrong County, making distribution of tbe proceeds of the sheriff sale of the real estate of P. L. Hall.

      Scire facias sur mortgage given by the said P. L. Hall to Ezekiel Gordon, dated April 2d, 1873, and recorded the same day.
    The facts as found by the auditor appointed to make distribution of the fund in Court, and by the Court below, Bredin, J., were as follows:
    The above mortgage was payable in seven instalments, the interest to be paid annually upon the whole sum unpaid.
    1st instalment, $1435.72, due April 1st, ’74.
    2d 1435.72, ’75.
    3d 785.72, ’76.
    4th 5th 785.72, 785.72, ’77. ’78.
    6th 785.72, ’79.
    7th 785.72, ’80.
    Upon the day of the execution of the mortgage, the mortgagee, Gordon, assigned- to John Gilpin $1154.91 of the instalment falling due April 1st, 1874, and a like portion of the bond, and guaranteed the payment of the instalment at maturity. This assignment was recorded the same day.
    August 7th, 1873, Gordon assigned to Gilpin the w'hole of the residue of this instalment and the interest, and guaranteed that said instalment- and interest would be paid on the 2d of A.pril then next. The assignment was recorded the same day.
    On the 20th of April, 1874, Gilpin executed a receipt to James H. Bell for $1848.72, “the first instalment of this mortgage and the interest due the second instant,” and assigned “ the said instalment and interest ” to Bell. This instrument was recorded the same day. Contemporaneously Bell executed the following paper:
    “ Whereas John Gilpin has this day assigned to me the first instalment of said mortgage and the interest due upon the mortgage debt up until the 2d inst. Now this writing witnesseth that in consideration thereof I do agree and consent that the said instalment and interest shall be postponed to the instalments which shall fall due prior to the 3d day of April, ’76. Witness- my hand and seal this 20th day of April, ’74.”
    On the 22d of January, 1874, Gordon assigned to John H. Hare, in trust for the firm of Hare & Son, $500 of the second instalment of the mortgage, payable April 1st, 1875, by an instrument recorded the same day. This portion of the second instalment was subsequently assigned by Piare to James H. Bell.
    On the 28th of May, 1874, Gordon assigned to G. C. Orr the balance of the instalment due April 1st, 1875, being $935.72, and the instalment due April 1st, 1876, being $785.82, together with all the interest on the whole amount unpaid up to April 1st, 1876, and guaranteed payment of the same. This assignment was recorded the same day.
    On the 10th of April, 1875, Gordon transferred to Orr the instalment due April 1st, 1877, with the interest on the whole sum then due and payable, and guaranteed the payment.
    Judgment was obtained upon the scire facias issued on the mortgage June 20th, 1877, and under a levari facias the sheriff sold the real estate to Bell, September, 3d, 1877, for $6000.
    Pending these proceedings, Gordon, July 11th, 1877, assigned to Orr, for the better securing the payment to him of the full amount previously assigned, “ all the rest and residue of the said mortgage not held or assigned,.....the surplus thereof, after sale of the property, if any, to be paid to me.”
    The fund in Court for distribution after payment of the costs, etc., was $5568.73. The auditor made a pro rata distribution among all of the instalments.
    Upon exceptions to this distribution being filed, the Court found, inter alia, as follows :
    “ Bell, owner of first instalment and of interest due April, ’74, claims priority of payment over the other instalments, because said instalment and interest was assigned to Gilpin, his assignor, and payment thereof guaranteed by the mortgagee, of which assignment and guarantee Orr had notice on the record before his purchase of the second and third instalments, and as sustaining this position quotes Erb’s Appeal, 2 Penna. Rep., 296 ; Himes v. Barnitz, 8 Watts, 39, and Datesman’s Appeal, 27 P. F. Smith, 243. He claims that Gordon being a guarantor of the amount now owed by Bell, it is against equity for him or Orr, his subsequent assignee with notice, to take out of Court money realized on the judgment while any part of the first instalment and interest due So guaranteed remains unpaid, alleging the insolvency of Gordon. On the question of Gordon’s insolvency, the auditor refused to hear proof. If we took the view entertained by Bell, we would require proof of the insolvency of both Gordon and Hall. A guarantor agrees to pay if the debtor cannot, a surety if the debtor does not. “ A contract of suretyship being a direct liability to the creditor for the act to be performed by the debtor, a guarantee being a liability only for his ability to perform this-act.”
    Reigart v. White, 2 P. F. Smith, 440. A guarantee of payment at maturity of a debt is an agreement^to pay if the debtor does not; it is a direct liability and rather an undertaking of suretyship than of technical strict guarantee. See same case, page 441.
    If, therefore, Gilpin was the owner of the first instalment and interest, having made no surrender of his rights either against the mortgagor or mortgagee, we think the equity claimed might be successful. As it is, however, the arrangement between Gilpin and Bell has entirely changed the position of the parties, and instead of the first instalment being entitled to priority, it is postponed to the second and third instalments. This arrangement was evidently made for the benefit of the mortgagee, as Mr. Gilpin had no further interest in the mortgage ; its effect was to release Gordon from his guarantee altogether, and to postpone the first so as to enable Gordon to make advantageous sales of the second and third instalments. If Gordon had been absolutely bound as a surety on the record, such an arrangement would have released him, which position we think so plain as to require no citation of authorities.
    Hall was no doubt the person who procured Bell to pay and take the assignment from Gilpin, and Gilpin.acted for the benefit of his guarantor. The effect of this, as Gordon must accept it cum onere, is to give Hare & Son a priority also.
    We therefore hold that the fund must be applied first to pay the second and third instalments, and the balance be distributed pro rata.

    The Court decreed distribution:
    To Gr. C. Orr, of 2d instalment, . “ “ 3d $1073.40 853.61
    “ “ 4th “ . 805.87
    _ “ “ interest assigned, 755.33
    Total to Grier O. Orr, Esq., . $3488.21

      Being full amount assigned him and interest, . . . §3488.21
    To S. Hare & Son, of 2d instalment,..... 573.57
    (Now for use of J. H. Bell) being in full of assignment, . -
    To J. H. Bell, as assignee of 1st instalment, . . . -
    And of first year’s interest, pro rata, 50T35 per cent., . . 1074.81
    To E. Gordon, plaintiff, on 5th, 6th, and 7th instalments, . 432.14
    Total fund distributed,......§5568.73
    From this decree James H. Bell appealed, assigning as errors the above findings and the distribution.

      W. D. Patton for appellant.
    When Gordon, the mortgagee, assigned the first instalment and interest, with a guarantee that it would be paid at maturity, it would be against equity to allow him to take the money out of court and thus defeat his own guarantee. Gordon was allowed to participate in the fund to the extent of $432.14: Datesman’s Appeal, 27 P. F. Smith, 248 ; Erb’s Appeal, 2 P. & W., 299.
    Orr had no superior equity to Gordon: Himes v. Barnitz, 8 Watts, 39. He had notice.
    The undertaking of Gordon was that of a surety: Campbell v. Baker, 10 Wr., 243 ; Reigart v. White, 2 P. F. Smith, 440.

      J. Gilpin for the appellees.
    Appellant urges that inasmuch as Gordon guaranteed the payment of the first instalment to Gilpin, the guarantee became an incident, though not expressed, of Gilpin’s assignment to Bell. The form of the receipt or assignment given by Gilpin expressly shows that the position of Bell was that of payer merely, doubtless acting for Hall, and making the payment after maturity of the instalment. As between Bell and Gordon it was an actual payment and liquidation of the first instalment, and no implication or legal deduction can be drawn that the guarantee of Gordon to Gilpin would pass and enure to-the benefit of Bell as against Gordon.
    It is clear that this is not of the character of cases where the payment to Gordon or his assignee would be interfered with or restrained. If the first assignee is not fully paid, hd has his remedy on the guarantee: Hancock’s Appeal, 10 Casey, 156; Donley v. Hays, 17 S. & R., 400 ; Moore’s Appeal, 11 Norris, 309.
    November 7th, 1881.
   Per Curiam :

This decree is affirmed upon the opinion of the learned judge in the Court below.

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


text:
    October and November Term, 1881,
    No. 242.
    City of Oil City versus Morris.
    1. The commission required by the act of March 11th, 1872, “relative to sewers in the city of Oil City,” is such a “board of viewers” as is contemplated by the act of May 1st, 1876, P. L., p. 94, which provides that councils of cities shall not pass any ordinance authorizing grading or paving or the construction of any sewer or bridge before they have caused “the board of viewers or other officers upon whom the duty may, by law, be imposed, to view the property included in the map or plan of the property liable to such assessment, and make a schedule showing the total cost value of the same as nearly as can be ascertained, and the amount each property-owner will be liable to pay for such improvement.”
    2. It is imperative that the commission provided for in the act of March II th, 1872, should view the property liable to assessment for the cost of construction of sewers.
    Error to the Court of Common Pleas of Venango County.

      Scire facias sur municipal claim filed by the city of Oil City against Louis Morris, owner or reputed owner of a lot in the said city, for the construction of a sewer. ,
    The act relative to sewers in the city of Oil City, approved March 11th, 1872, provides, inter alia:

    “Section 1. That the civil engineer of said city and the committee of the city council on streets shall form a commission to make and adopt a general plan dividing the whole city into sewer districts, to be submitted to council for approval ; each district to have one or main sewer, with necessary branches, connections, and inlets; said districts to be approved by council, and a plot or plots correctly delineating the said general plan of sewer districts, main sewers, connections, etcetera, to be filed in the office of the city engineer before any sewers shall be constructed in pursuance of this act.
    “ Sect. 2. It shall be the duty of said commission to designate the district or districts in which sewerage is necessary, and prepare plans and specifications for the construction 'of sewers, showing location, inclination, and size of the same, and depth below street grades; when said specifications and plans are prepared, notice thereof shall be given to all parties in interest, in such manner as the council shall determine by ordinance, for their inspection ; and the plans and speeifications finally adopted by the commission shall be submitted to the council for approval, and when approved, shall be and remain the correct plan of sewerage for the designated districts or parts thereof, subject, however, to alteration in case of opening new streets, or other causes which may render an alteration necessary; and the council, when they deem the same necessary, may cause to be constructed any sewer or sewers specified in said approved plans, and direct contracts to be made for tbe construction of the same.
    “Sect. 8. That as soon as the construction of any sewer is authorized by the council, and before entering upon the work of construction, it shall be the duty of the commission to ascertain the amount required to cover the cost and expenses of said construction; and to assess the same in the manner hereinafter provided ; and the said commission shall file a schedule of the said assessments with the controller, and shall give notice, by advertisement for ten days, that the city council will sit in appeal on a certain day, when the said schedule of assessments will be presented for the correction of errors and mistakes, and for final approval; and in the meantime all persons interested shall have opportunity to examine the same; and the council shall, after such hearing, finally adopt said schedule, with such amendments as they may see proper to make; and when said schedule shall have been so adopted, the same shall be final and conclusive without exception or appeal.”
    The remaining sections of the act provide for the manner of assessment, the lien and its. enforcement, and authorize councils to establish rules and furnish plans.
    Under this act an ordinance for the construction of a sewer was passed January 29th, 1878, and a lien was filed against the property of the defendant to August Term, 1878.
    The act prescribing the manner in which the councils of cities, other than those of the first class, may pass ordinances authorizing the grading or paving of avenues, streets or alleys, and the construction of sewers and bridges, approved May 1st, 1876, provides:
    “Section 1. That the councils of cities in this commonwealth shall not pass any ordinance authorizing the grading or paving of any avenue, street or alley, or the construction of any sewer or bridge, before they have caused the city engineer to make an estimate of the total cost of such improvement, particularly stating the items and the cost of each, and a map or plan of all the property liable to assessment for the cost of the same, and also caused the board of viewers, or other officers upon whom the duty may by law be imposed, to view the property liable to such assessment, and make a schedule, showing the total cash value of the same as nearly as can be ascertained, and the amount each property-owner will be liable to pay for such improvement, which estimate, map, or plan and schedule shall be attached to the ordinance before its passage, and shall remain on file in the proper office for the benefit of all persons interested; and any ordinances which shall be passed by the councils of any city in tbis commonwealth, authorizing the grading or paving of any avenue, street or alley, or the construction of any sewer or bridge, before the provisions of this act are complied with, shall be null and void and of no effect: Provided, That the provisions of this act do not extend to cities of the first class.
    “ Sect. 2. All acts or parts of acts inconsistent with this act are hereby repealed.”
    Upon the trial in the Court below, W. R. Stevenson testified for the defendant that he was city engineer up to April, 1878 ; that he was one of the sewer commission, and the other members -were the street committee; that he was not sure he did anything with reference to assessing damages; that as a member of the board he got up the plans ; that after they were made out and submitted to the commission, in 1877, there was a movement made for the construction of the sewer; that nobody viewed the property with him ; and that there was no one in connection with him in fixing the schedule of assessment and value of the property.
    Counsel for defendant asked the Court to charge:
    That by the provisions of the act of Assembly, before the ordinance for the construction of a sewer in Spring Street was passed, it was essential that a board of viewers, or some other body officially performing the duties of viewers, should go on and view the property liable to assessment, and make a schedule showing the total cash value of the same and the amount each property will be liable to pay, and unless such view was made by said board, or other official body, such ordinance was invalid, and the plaintiff cannot recover.
    The Court affirmed this point, and charged the jury:
    “ Under our view of the law there is but a single question to submit to you. That this assessment was made and the notice of the amount in accordance with the law duly published, is not controverted. But the defendant says there was no view of the premises as provided for by the act of Assembly of May 1st, 1876. That there having been no view, the ordinance under which the plaintiff' claims to have the authority to do the work and charge the assessment upon the lot was void, and of no effect, and for that reason he saj^s your verdict should be for the defendant.
    “The ordinance providing for the laying of a sewer on Spring Street was passed January 29th, 1878. The date of this ordinance it is material for you to remember, as we will leave the question to you. [It leaves you to find whether the city engineer and the commission viewed these premises as a body before the passage of this ordinance of January 29th, 1878. Viewing afterward would not do. You must decide whether they viewed these premises prior to the passage of the ordinance. In pursuance of that fact, did they make a map, or cause one to be made of the district, showing the different lots and the amount of assessment upon each, made in pursuance of this view and after it. If they did, your verdict should be for the plaintiff. If not, for the defendant.]
    Now, as to who should make this view is an important question. [It is not enough for one of the city commission to go there. All of them may go there on different days, but it is not enough. There must be an official act. They must go in a body. It is not necessary that all be present, but a majority must.] [In order to see who should make this view we refer to Section 1 of the act of March 11th, 1872. The civil engineer and street committee of the city shall form this commission for this purpose. The officers to make such view were the street committee of the city council together with the city engineer.] The plaintiff has given in evidence who they were, and they formed the commission whose duty it was, under the adoption of this ordinance, to have gone on the premises and made view. The first section of the act of May 1st, 1876, is as follows: (Act read.)
    It is alleged by the defendant that there was no view by this commission, as provided by law, before the passage of the ordinance; and that such map and plan was not attached before its adoption, as provided. That there was a draft made by the city engineer, commenced, I believe, in 1876, of the whole of the city districts, and the draft made of all, including this one, attached to the ordinance before the passage is certain. There is evidence here sufficient, perhaps, for you to find that that was adopted by council.
    “ As far as the making of the plan, we think, there is evidence of its being approved by the commission and council, but did they go upon the premises and view them, and then make up the assessment after that ? [The burden of proof is upon the plaintiff; it was thrown upon the defendant and the burden was shifted.]
    [Are you satisfied that such a view was made by this commission as a body before the passage of this ordinance ? If you are so satisfied, then your verdict will be for the plaintiff; if you are not so satisfied, it will be for the defendant.]”
    May 9th, 1881, verdict for the defendant, upon which judgment was entered.
    The plaintiff took a writ of error, assigning as errors the answer to defendant’s points and those portions of the charge within brackets.

      Isaac Ash and F. W. Hays for plaintiff in error.
    The act of May 1st, 1876, is blind legislation, so far as many cities of the State are concerned. By none of the acts by which Oil City has been governed are there constituted any officers known as “ the board of viewers.” The duty of making such view is not-imposed on any officer of the city. All has been done that was required. Township of Ridgway v. Wheeler, 9 Norris, 453. The defence is purely technical.

      J. D. Hancock and McCalmont & Osborn for defendant in error.
    The requirements of the act of May 1st, 1876, were wholly ignored.
    Oct. 31, 1881.
   Per Curiam:

The commission required by the act of March 11th, 1872, relative to sewers in Oil City, was such a board of viewers as was contemplated by the act of May 1st, 1876, and which made it imperative that such board should view the property liable to assessment for the cost of construction of the sewers. It was properly, therefore, submitted by the learned Court to the jury to find whether such a view was made by this commission as a body before the passage of the ordinance. The errors assigned are, therefore, not sustained.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 253.
    Straub versus. City of Allegheny.
    The owner of property, along a street being graded and paved, who petitions the councils of the city against a change from a more expensive to a less expensive grade, admitting that he expects to pay his quota of the cost, and that the road will be a local benefit to him by making the markets easy of access and convenient, is estopped from making defence to a municipal claim for the expenses upon the ground that it is not the subject of local assessment.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

      Scire facias by the City of Allegheny against John N. Straub, sur municipal claim for grading and paving, for the sum of $163 and costs, filed November 24th, 1880, against certain real estate of the defendant.
    By an act of Assembly, approved May 10th, 1871, it was enacted “ that the councils of the city of Allegheny may grade, pave, and set with, curbstones Troy Hill Eoad from Vinial Street to Gardiner Street,” and that “ the said councils may appoint three disinterested freeholders of said city as viewers, whose duty it shall be to assess and apportion the said cost and expenses upon all property in said city and Eeserve Township, which they shall deem benefited thereby.”
    By an act of Assembly, approved April 4th, 1872, that part of Eeserve Township which included the lands owned by the defendant was annexed to the city of Allegheny.
    An ordinance providing for the improvement was passed by the city councils, November 27th, 1872, and work upon the street was commenced in the spring of 1873, and completed November, 1874.
    In August, 1873, the defendant and others presented to councils the following petition:
    “ The petition of the subscribers, property-holders on Troy Hill, in'the Seventh and Eighth wards of the city of Allegheny, respectfully showeth, that whereas they have received information that a petition would be presented to your honorable bodies, asking for a change of grade on Troy Hill Eoad, from seven feet to the hundred, as now established, to eight feet; and whereas, your petitioners live on the plateau of Troy Hill, and will be expected to pay their quota toward the cost of grading and paving said road, and are therefore entitled to a voice in the matter of a change of grade ; and whereas, your petitioners also believe that the proposed change of grade would not be of so great a benefit to them as would entitle them in justice or equity to contribute toward the cost of making said road, for the reason that the ouly benefit they can possibly derive from said road when finished, will be, that with a grade of seven feet a street-car line will be practicable in so far as to make it pay, and thus-render the business-part of the city and the markets easy of access and convenient to your petitioners; and whereas, a large-portion of the road has already been graded, and the filling up thereof would be the means of destroying the road-bed as well as of great expense to the city, and believing, also, that a change of grade would be benefiting but a few to the damage of the many, and also in a great measure detracting from the glory of the enterprising and public-spirited councils of 1872 and 1873, to whom this road will be a lasting monument, it being, in fact, the greatest enterprise as yet undertaken for the benefit of the great public of our enterprising city. Now, therefore, your petitioners would respectfully remonstrate against any change of grade for said Troy Hill Eoad. from that now established, for the reasons hereinbefore set forth ; and your petitioners will ever pray.”
    Upon the trial in the Court below, before Kirkpatrick,!., the defendant offered evidence to prove that the main portion of the property abutting upon that street was unfit for building purposes, and that the improvement was mañnly a mere roadway connecting two districts of the city, for the purpose of showing that it was for general and not local benefit.
    The evidence was rejected under exception. •
    He also offered to prove that the property assessed was used for farming purposes, in order to show that it was rural, and not the subject of local assessment.
    The testimony was rejected under exceptions.
    The defendant asked the Court to charge that it appearing from the testimony that the property, at the time of the adoption of the acts of Assembly, was in Reserve Township, and not under the jurisdiction of the city, the assessments were unauthorized.
    The Court declined the point, and directed a verdict for the plaintiff.
    ■May 25th, 1881, verdict for plaintiff, $281.46, upon which judgment was entered.
    Plaintiff then took a writ of error, assigning as errors, the rejection of the evidence as above, and the refusal of defendant’s points.

      Slagle and Wiley for plaintiff in error.
    Defendant was not estopped by his remonstrance. It shows that the work was of a general and not a local character.
    To constitute an equitable estoppel, it must appear that the party had made an admission clearly inconsistent with the evidence he proposes to give, that the other party has acted upon the admission, and that he will be injured by allowing the truth of the admission to be disproved. One is only estopped from alleging the truth when his assertion of a falsehood or silence has been the inducement to action by the party, which would result in loss but for the estoppel: Patterson v. Lytle, 11 Pa. St., 53 ; Musser v. Oliver, 21 Pa. St., 862; Reel v. Elder, 62 Pa. St., 308.
    The acts of a party done in ignorance of his rights will not operate as an estoppel, unless others have acquired rights on the faith of them: Newman v. Edwards, 34 Pa. St., 32 ; Duncan’s Appeals, 43 Pa. St., 67.
    These rules are distinctly recognized by the case of Bidwell v. Pittsburgh, 85 Pa. St., 417.

      W. B. Rodgers, city solicitor, for defendant in error.
    An estoppel may as well arise by acts done during the progress of a matter as by acts before its inception: Graff v. Pittsburgh and S. R.R. Co., 7 Casey, 489; Cumberland Valley R.R. Co. v. McLanahan, 9 P. F. Smith, 23.
    When a party has acted upon a particular construction of a contract which has been acquiesced in by the other, the latter is estopped from contesting it as the proper construction : Mercer Mining and Manufacturing Co. v. McKee, 27 P. F. Smith, 170.
    November 14th, 1881.
   Per Curiam:

Without entering upon an examination of the several points raised on this record, we think, upon the undisputed evidence, the defendant below was clearly estopped by the petition to the council, in which he united with others, from taking the defence of which he now seeks to avail himself. lie admitted in that petition that he expected to pay his quota towards the cost of grading and paving, and that the road would be a local benefit to him by making “ the markets easy of access and convenient ” to him.

Judgment affirmed.