author: Chief Justice Read

text:
    Lynch versus Commonwealth.
    1. Precepts for selecting grand jurors and jurors were dii'eeted to “the sheriff and commissioners of said county S' the certificate to the return was that the list was “ drawn by the sheriff and jury commissioners," and it was signed by the sheriff and A. II. & J, Y., “ jury commissioners." Held, that if an error, it was but clerical, and was cured by 53d sect, of Criminal Procedure Act, March 31st 186p.
    2. Lynch, suspecting that his sister was in the act of adultery, listened at the door of her chamber, and being confirmed in his suspicions, took his knife from his pocket, opened it, and forced the door in. He found her rising from the bed, undressed, and a man in bed; he stabbed the man three times with the knife ; of one of the strokes the man died. Held, that the provocation was not sufficient to reduce the killing to voluntary manslaughter. Per Starrett,. P. J.
    3. Where the killing is admitted and insanity is alleged, the prisoner must satisfy the jury that insanity existed when he did the act, a doubt as to insanity will not justify an acquittal. Id.

    4. The law presumes sanity; if no insanity is shown, and the person was sane shortly before and afterwards, the presumption is of sanity at the time of the act. Id.

    5. Murder of the first and of the second degree, and voluntary manslaughter defined in this case. Id.

    November 3d, 1873.
    Before Read, O. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1873, No. 31.
    In this case Ambrose E. Lynch was indicted at the June Sessions 1872, of the Oyer and Terminer of Allegheny county, for the murder of William Hadfield.
    The precept of the Judges of the Court of Oyer and Terminer, to the clerk of the court, &c., commanded him to “ issue a venire facias to the sheriff and commissioners of the county aforesaid,” to proceed to select twenty-four persons to serve as grand jurors, &c. The precept was dated April 2d 1872, and signed by the three judges.
    The venire bearing the same date was directed “ to the sheriff and commissioners of said county.” To the return to the venire, to which was annexed a list of the jurors, was the following certificate :—
    “ We do hereby certify that the foregoing is an accurate list of persons drawn by the sheriff and jury commissioners to serve as grand jurors,” &c.
    This was signed “ Hugh S. Fleming, Sheriff.
    ‘■'A. B. Hayden, John Young, Jr., Jury Commissioners.”
    The precept of the judges to the clerk to issue a venire for traverse jurors, the venire, the return to the venire, and the certificate, were all in a similar form.
    The jury to try the indictment was empannelled on the 8th of July 1872, and the cause proceeded to trial before Starrett, P. J. and Stowe J., no objection having been made to the precepts, &c., in relation to the jurors.
    The evidence was that the prisoner lived with his sister, who was a married woman, in Allegheny city; that on the 11th or 12th of June 1872, about midnight, the deceased was found by George Smithson, in a street in Allegheny city, wounded; shortly after-wards the defendant came up with a knife in his hand; said he had killed that man, he had cut him; he saidif he had had a larger knife he would have put him through faster.” To an officer of the peace who took him to the mayor’s office, the prisoner said whilst going there, “ I was only at home a few minutes when I heard a noise, I listened and heard a creaking, took out my knife and said that they can’t fool me on that business.” Prisoner said he then took out his knife and opened it; he put his shoulder to the door and shoved it; it did not go in the first time; he put his shoulder to it the second time and it went in; just as the door went open, his sister was getting out of bed undressed; he struck the deceased twice with the knife whilst on the bed; deceased got up and “ went for me on the floor,” and prisoner gave him another stroke in the breast. To another witness prisoner said, he had “ given it to him twice in the bed and once afterwards;” he said he had found the deceased in his sister’s bed.
    These statements were all made oh the night of the killing. The deceased was taken to the mayor’s office, and died about 1 o’clock of the same night.
    The sister, examined by the Commonwealth, testified that her husband had been away about five weeks; that she and the deceased were sitting in the room together, but denied that there was any impropriety between them. Whilst sitting there the prisoner bursted into the room and knocked her down; when she came to, the deceased was gone. Her brother asked her if she was in "bed with a man; her brother “ was clear crazy; he acted more like a crazy man than a drunken one.”
    The defendant’s points were:—
    1. If on the night of the killing the defendant found or supposed he found, the deceased in bed with defendant’s married sister, and was thereby so much excited as for the time to overwhelm his reason, conscience and judgment, and cause him to act from an uncontrollable and irresistible impulse, the law will not hold him responsible.
    The court, Starrett, P. J., answered:—
    “ As this point seems to amount to the proposition, that if the prisoner was temporarily insane at the time he did the cutting, he is not guilty of any legal offence, it is affirmed as an abstract proposition of law. If the defendant was actually insane at the time, this, of course, relieves him from criminal responsibility from whatever cause the insanity arose. But the jury must not confound anger or wrath with actual insanity, because however absurdly or unreasonably a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned, it is no legal excuse for the violation of law.”
    2, If the jury have a reasonable doubt as to the condition of defendant’s mind at the time when the act was done, he is entitled to the benefit of such doubt, and they cannot convict.
    The court answered :—
    “ The law presumes sanity when an act is done if no insanity is shown by the evidence; and when it appears that a man was sane shortly preceding the act and shortly after, the presumption exists of sanity at the time of the act; and no jury has a right to assume otherwise, unless the evidence in connection with the act fairly convinces them that the defendant was actually insane at the moment the act was committed.
    “ This point is refused.”
    Judge Starrett, in a charge of great ability, having given instructions to the jury as to their duties, and having defined murder at common law, and under the Acts of Assembly of Pennsylvania, proceeded:—
    * * *■ “ In the case before us we have to deal only with that kind of murder in the first degree described as wilful, deliberate and premeditated. Many cases have been decided under this clause in all of which it has been held that the intention to kill is the essence of the offence; therefore if the intention to kill exists it is wilful; if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and seléct the instrument or to frame the plan to carry the design into execution, it is premeditated. The law fixes no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury from all the facts and circumstances in the evidence. If there be time to'frame in the mind, fully and consciously, the intention to kill and to select the means or weapon of death, and to think and know beforehand the use to be made of it, there is time enough to deliberate and premeditate, though that may be very short. The proof of the intention to kill and the disposition of mind constituting niurder of the first degree, under the Act of Assembly, lies on the Commonwealth; but this proof need not be express or positive ; it may be inferred from the circumstances. If from all the facts attending the killing the jury can reasonably and satisfactorily infer the existence of the intention to kill and the malice of heart with which it was done, they will be warranted in doing so. He who uses on the body of another at some vital part with a manifest intention so to use it, a deadly weapon, such as an axe, a pistol or a knife, must, in the absence of qualifying facts, be presumed to know that his blow is likely to kill; and knowing this, must be presumed to intend death, which is the ordinary and probable consequence of such an act, Hence he who takes the life of another with a deadly weapon and with a manifest design thus to use it upon him, with sufficient time to deliberate and form the conscious purpose of killing, and Avithout any sufficient reason or cause of extenuation, is guilty of murder in the first degree. When the act is done deliberately, Avith a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder Avill be presumed, for the law infers that the natural or probable effect of any act deliberately done, is intended by the actor. When the killing then is malicious and the evidence shows a Avilful, deliberate and premeditated purpose to take life, it is murder in the first degree,

      “ Manslaughter is defined to be the unlawful killing of another without malice, expressed or implied; which may be voluntary, done in a sudden heat, or involuntary, but in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this *. manslaughter is never attended by legal malice or depravity of heart — that condition or frame of mind, before spoken of, exhibiting Avickedness of disposition, recklessness of consequences or cruelty. Being sometimes a wilful act (as the term voluntary denotes), it is necessary that the circumstances should take away every evidence of cool depravity of heart or Avanton cruelty. Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion Avithout time to cool, placing the accused beyond the control of his reason and suddenly impelling to the deed. If any of these be wanting, if there be provocation without passion or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing Avill be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a light and trivial kind. Whenever the act evidences a deadly revenge and not the mere heat of blood; whenever it is the result of a devilish disposition and not merely the phrensyof rage, it is not manslaughter but murder. Passion arising from sufficient legal provocation is evidence of the absence of malice.
    “ [It is claimed by the prisoner in this case that on going to his sister’s house at a late hour in the night, he heard a noise in his sister’s room, and thought that something wrong was going on there; listened aAvhile and becoming convinced that his suspicions Avere well founded, he took out his knife and opened it, put his shoulder to the door, forced it in and found his sister there in her night-dress and the deceased in the room with her; that he was greatly excited and enraged, and in the heat of passion thus generated, he stabbed the deceased twice m the back and once in the breast. Assuming all this to be true, does it amount in law to sufficient cause of provocation to reduce ■ the killing to manslaughter ? We are of opinion that it does not; that there is nothing in these circumstances, as they are claimed to exist by the prisoner, that would reduce the grade of the offence to'voluntary manslaughter.] It is the duty of the court to say, as matter of ¡aw, what fact or facts will amount to sufficient legal provocation, if they are found by the jury. In other words, it is for the jury to find what the facts are and for the court to say what effect shall be given them. Assuming then the facts to be as claimed by the prisoner in this regard, we say, that they do not amount to sufficient or legal provocation, such as would reduce the grade of a felonious homicide to manslaughter. * * *
    “ It is not denied, nor could it be successfully, that the prisoner inflicted the wounds which were found on the body of the deceased, William Hadfield, and which caused his death. There is no serious conflict as to the time, place and circumstances under which the mortal stab was inflicted. There is no evidence to show and we do not understand that it is claimed by the prisoner, that the mortal wound was inflicted in self-defence. Instead of being attacked he himself was the assailant. It is proven by his own admissions, that he suspected the infidelity of his sister, and after listening at her door a few minutes, he took out his knife, opened it, and broke the door leading into her room, and then'thrice stabbed the deceased. What did he open his knife for before he forced open the door ? Was it for the purpose of aggression or defence ? What did he intend to do with the open knife? What did he do with it ? These are all pertinent inquiries, and doubtless you will find answers to all of them in the evidence before you. We have no means of judging as to the motives of men except by their actions and declarations. What then did the acts of the prisoner m taking out and opening his knife, and then forcing open the door of his sister’s room, and then burying the knife almost to the hilt in the body of Hadfield, indicate as his intent and purpose ? In the same connection his declaration to the witness Smithson, soon after the cutting, that if he had had a larger knife he would haye put him through faster, should be considered as bearing upon the intent with which the stabbing was done; and in the same.connection also you will remember the impious and blasphemous expression of the prisoner when he was informed Hadfield was dead. It is from these and other circumstances in evidence to which I have not referred, that you are to determine the state of his mind at the time the stabbing was done; whether he was actuated by malice and whether he intended to do what he actually did accomplish, viz.: take the life of Hadfield.
    “ The general rule is that all homicide is presumed to be malicious —that is, murder of some kind — until the contrary appears in evidence. Hence the burden of reducing the crime from murder to manslaughter, where it is shown that the prisoner committed the deed, lies on him. He' must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to a milder kind of homicide, unless indeed where the facts already in evidence show it. But though the homicide without the circumstances of alleviation or excuse is presumed to be murder, it is not always presumed to be murder of the first degree: it must be shown by the Commonwealth to be murder of the first degree. The jury must be satisfied as to the facts and circumstances which indicate the intention to kill, and the depravity of heart and conscious purpose which constitute, as already explained, the crime of murder of the first degree.
    “It is said that immediately after the commission of the deed, the prisoner looked like a crazy man. Is there anything remarkable in this ? When a man permits his angry passions to become aroused; when he resolves upon deeds of violence and carries them into exécution, even to the taking of the life of a fellow being, it would be singular indeed if the vengeance that rankled in his breast would not clearly manifest itself by outward expressions. If such manifestations of a wicked heart, bent upon vengeance and the gratification of malicious passion, are to be seriously considered as sufficient evidence of insanity, how are deeds of violence and bloodshed ever to be punished ? A learned author has said that the mind is always greatly troubled when it is agitated by anger, bewildered by jealousy, or corrupted by an unconquerable desire for vengeance. Then, as is commonly said, a man is no longer master of himself; his reason is affected; his ideas are in disorder; he is like a madman. But in all these cases the man does not-lose his knowledge of the real relation of things; he may exaggerate his misfortune, but this misfortune is nevertheless real, and if it carry him to commit a criminal act, this act is perfectly well motived. In such case it will generally be found that revenge, anger and kindred emotions of the mind, constitute the real motive which’ has occasioned the homicidal act, if such act has been committed.” * *
    The court then read and answered the defendant’s points, as before stated; and instructed the jury as to the character and effect of “a reasonable doubt.”
    The jury, July 10th 1872, found the prisoner guilty of murder in the first degree.
    After a motion for a new trial, which was overruled, the prisoner was, on the 18th of January 1873, sentenced to be hung.

      The prisoner removed the record to the Supreme Court by writ of error, and there assigned for error:—
    1, 2. The alleged irregularities in the precepts, return, &c., of the venires.
    2, 3. The answers to his points.
    5. The part of the charge in brackets.
    6. The ingredients necessary to constitute murder in the first degree were not proved to exist.

      Ferguson $ Murray, for plaintiff in error,
    as to the 5th assignment, cited Brooks v. Commonwealth, 11 P. F. Smith 352; Drum v. Commonwealth, 8 Id. 9.

      T. M. Bayne, District Attorney, and W. B. Moore, for Commonwealth, defendant in error,
    cited Wharton on Homicide 177, 178; 1 Wharton’s Crim. Law, §§ 55, 711.
    November 22d 1873.
   Chief Justice Read

delivered the opinion of the court,

By the 2d sect, of the Act of 10th April 1867, it is made the duty of the jury commissioners, president judges, or additional law judges of the respective district, to meet at the seat of justice of the county, at least thirty days before the first term of the Court of Common Pleas in every year, and select the jurors agreeably to the provisions of said section, who are to serve as jurors in the several courts of such county, during that year. The names of the persons so selected shall be placed by them, or a majority of them, in the proper wheel, in the mode and manner directed by law. The 3d sect, describes how the jury commissioners and sheriff shall draw from the proper jury-wheel the different panels of jurors.

The precepts in this case, and the venires for the grand and petit or traverse jurors, were issued on the 2d April 187 2, and on the 15th of the same month were returned in due form by the sheriff and jury commissioners, by whom the names of the grand and traverse jurors were drawn from the jury-wheel in due form of law. The error assigned in both cases is the same; the clerical error of using the w'ords “ commissioners of said county,” instead of “jury commissioners.” Everything else in the whole proceeding was right, and the alleged error was not discovered until several months after the trial.

These alleged defects or errors are cured by the 53d sect, of the Criminal Procedure Act of the 31st March 1860, which enacts that no verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed, nor sentence delayed for any defect or error in the praecipe issued from any court, or the venire issued for the summoning and returning of jurors, or any defect or error in drawing or returning any juror or panel of jurors, but a trial or agreement to try on the merits, or pleading guilty, or the general issue in any case, shall be a waiver of all error and defects in or relative or appertaining to the said precept, venire, drawing or summoning and returning of jurors.” .

Ambrose E. Lynch was indicted for the murder of William Had-field, on the night of the 12th June 1872, by stabbing him with a knife, and was tried in July of the same year, and convicted of murder in the first degree. The circumstances attending the murder are few, and may be told very briefly. The sister of the plaintiff in error lived in a small house in Allegheny city, of whom the defendant, Lynch, was a guest. Late at night Lynch came in by a side door, and was in only a few minutes when he heard a noise, listened and heard a creaking, took out hjs knife and opened it. He put his shoulder to the door and shoved it; it did not go in the first time; put his shoulder to it the second time and it went in, and he saw his sister getting out of bed. He struck the deceased twice in the back, in the bed, with his knife, and a third time when on the floor in the breast. This last was the mortal wound, of which Hadfield died between twelve and one o’clock the same night. We have omitted the profane and blasphemous language made use of by the defendant Lynch.

We have read over with great care the very able charge of Judge Starrett, who explains very fully to the jury the different degrees of felonious homicide, murder in the first degree, murder in the second degree, voluntary and involuntary manslaughter.

This brings us naturally to a part of the charge following this explanation, which is assigned as the fifth error. It is evident from the language used that the prisoner’s counsel was endeavoring to reduce the crime to that of voluntary manslaughter, with which the court certainly did not agree. “ It is claimed,” says the learned judge, “by the prisoner in this case, that on going'to his sister’s house at a late hour in the night he heard a noise in her room — suspected that something wrong wras going on there— listened awhile, and becoming convinced that his suspicions were well founded, he took out his knife and opened it, put his shoulder to the door, forced it’ in, and found his sister there in her night dress, and the deceased in the room with her ; that he was greatly excited and enraged, and in the heat of passion thus generated, he stabbed the deceased twice in the back and once in the breast. Assuming all this to be true, does it amount in law to sufficient cause of provocation to reduce the killing to manslaughter. We are of opinion that it does not, that there is nothing in these circumstances, as they are claimed to exist' by the prisoner, that ■would reduce the grade of the offence to voluntary manslaughter. It is the duty of the court to say, as matter of law, what fact or facts will amount to sufficient legal provocation if they are found by the jury. In other words, it is for the jury to find what the facts are, and for the court to say what effect shall be given them. Assuming, then, the facts to be as claimed by the prisoner in this regard, we say that they do not amount to sufficient or legal provocation, such as would reduce the grade of a felonious homicide to manslaughter.

In all this there was clearly no error.

The third error assigned is to the answer of the court to the defendant’s first point, which was, “ that if on the night of the killing defendant found, or supposed he found, the deceased in bed with defendant’s married sister, and was thereby so much excited as for the time to overwhelm his reason, conscience and judgment, and cause him to act from an uncontrollable and irresistible impulse, the law will not hold him responsible.”

This seems very vague and uncertain, but the court say, “ as the point seems to amount to the proposition, that if the prisoner was temporarily insane at the time he did the cutting, he is not guilty of any legal offence, it is affirmed as an abstract principle of law. If the defendant was actually insane at the time, this of course relieves him from criminal responsibility, from whatever cause the insanity arose. But the jury must not confound anger or wrath with actual insanity ; because, however absurd or unreasonable a man may act when exceedingly angry, either with or without cause, if his reason is not actually dethroned, it is no legal excuse for violation of law.” There is no error in this answer.

The fourth error assigned is to the answer to the defendant’s second point, which is. “ That if the jury have a reasonable doubt as to the condition of defendant’s mind, at the time the act was done, he is entitled to the benefit of such doubt, and they cannot convict.”

As to the second point the court said “ the law of the state is, that where the killing is admitted and insanity or want of legal responsibility is alleged as an excuse, it is the duty of the defendant to satisfy the jury that insanity actually existed at the time of the act, and a doubt as to such insanity will not justify the jury in acquitting upon that ground. The law presumes sanity when an act is done, if no insanity is shown by the evidence, and when it appears a man was sane shortly preceding the act, and shortly after, the presumption of sanity exists at the time of the act, and no jury have a right to assume otherwise, unless evidence in connection with the act convinces them that the defendant was actually insane at the moment the act was committed. This point is refused,” and rightly, and it needs no argument to show that the court were entirely correct in their ruling and answer.

The sixth error is not sustained, for it is clear the ingredients necessary to constitute murder in the first degree were proved to exist, and in determining this to be the case we have reviewed both the law and the evidence.

Sentence affirmed and record remitted.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Poor et al. versus McClure.
    1. The lines fixed under the Act of April 16th 1858, “ to establish high and low-water lines on the Allegheny,” &c., were not to settle private boundaries, but to define and fix the boundaries of high and low-water between riparian owners and the Commonwealth, for the benefit of those exercising the public right of navigation.
    2. The beds, gravel and sand-bars of the navigable rivers of Pennsylvania, are not subject to private appropriation under the ordinary land laws.
    3. Surveys on navigable streams do not give the riparian owner title beyond the ordinary low-water line; between it and ordinary high-water line, the ownership is subject to the public right of navigation.
    4. A channel between an island in the Allegheny river and the mainland, was filled up by reason of a dam across it and a street also, made under an Act of Assembly ; the land where the channel had been was susceptible of cultivation. Reid, such land could not be appropriated by warrant and survey in the ordinary forms of the Land Office, the legal presumption being that the land is still part of the bed of the river.
    5. Lands within the ordinary jurisdiction of the Land Office, are those granted upon application, according to the forms of the office, and fit for settlement and cultivation, and not within the navigable rivers.
    6. Surveys along the margin of the smaller streams extend title ad JUum aquce.

      7. Stover v. Jack, 10 P. P. Smith 340, adopted. Wainwright v. McCullough, 13 Id. 66, re-affirmed.
    November 14th 1873.
    Before Read, O. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of ' October and November Term 1873, No. 97.
    This was an action of trespass, q. c. f., brought January 2d 1373, by Levi Poor, John W. Dunn and W. J. Poor, against W. G. McClure.
    The plaintiffs declared for tearing down a fence, &c., on the locus in quo.

    The defendant pleaded not guilty, and pleaded specially, that at the time of the committing of the alleged trespasses, the title to the locus in quo was not in the plaintiffs, but in the city of Pittsburg.
    On the trial, January 22d 1872, before Starrett, P. J., it appeared : — •
    That on the 31st of December 1787, a patent was issued by the Commonwealth to Conrad Winebiddle, for a tract of land containing 121 acres, on the Allegheny river, in Pitt township, Westmoreland county (now in Allegheny county). On the 22d of July 1806, a patent issued to George Wallace, for an island called “ Cork’s Island,” in the Allegheny river, opposite the tract granted to Winebiddle. This island was afterwards also known as “ Wainwright’s Island.” In 1806, Wallace conveyed “ Cork’s Island ” to Wainwright. Wainwright became the owner also of part of the Winebiddle tract on the mainland; the remainder of that tract had in 1814 become vested in W. B. Foster. On the 12th of August 1844, McCullough obtained an equitable title under articles of agreement, to Cork’s or Wainwright’s Island. McCullough then constructed a dam across the channel between the island and the mainland, to give him mill power. Prior to this time there had been a navigable channel betwmen the island and the mainland; there was evidence that this channel before,' and especially after the erection of the dam, had gradually been filling up.
    On the 11th of May 1853, an Act of Assembly was passed authorizing McCullough to raise his dam three feet. Under this act McCullough raised his dam; it obstructed the navigation of that branch of the river, and caused a more rapid filling up of the channel, until there was very little channel left.
    The locus in quo was the filled-up channel between the mainland and the island, &c.; it was at that time in the borough of Lawrenceville (afterwards incorporated into the city of Pittsburg).
    On the 16th of April 1858, an Act of Assembly was passed, authorizing the District Court of Allegheny to appoint commissioners to examine the shores, to survey and make thereon lines of ordinary low-water and lines of ordinary high-water along the Monongahela, Allegheny and Ohio rivers; the lines to be such as would secure and perpetuate the navigable channels of those rivers, &c., and as would be most suitable for the benefit of the public at large. The commissioners to return their survey to the District Court of Allegheny county. The act further enacted that all riparian rights then vested in the Commonwealth, between the high-water lines and the rivers should be vested “ in the several corporations within whose limits the same now is or hereafter shall lie.”
    Under the authority of this act, the commissioners ran the lines and made report according to law.
    On the 12th of April 1867, the burgesses and council of Lawrenceville were authorized by Act of Assembly to extend certain streets “ across that portion of the Allegheny river lying between Wainwright’s Island and the main shore, and fill up or embank that portion of said river occupied by the extension of the aforesaid streets so as to make a uniform grade.” The streets were accordingly extended and filled up from the mainland to the island; this closed the channel altogether, and the locus in quo had ceased to be part of the bed of the river.
    On the 6th of April 1867, by virtue of an Act of Assembly, the borough of Lawrenceville became part of the city of Pittsburg.
    On the 16th of March 1868, Dunn and W. J. Poor, two of the plaintiffs, obtained a warrant for 15 acres of land, being the locus in quo.

    A survey was made and patent issued to the warrantees, December 8th 1868.
    On the 8th of April 1870, an Act of Assembly was passed, •which recited the grant by the Commonwealth of Wainwright’s Island and of the land on the mainland; and the making of high and low-water lines on the Allegheny and the other rivers, by virtue of the Act of April 16th 1858; and the Act of April 12th 1867, authorizing the municipal authorities of the borough of Lawrence-ville to extend their streets across the Allegheny river to Wainwright’s Island, &c., “ and by means thereof, the said portion or branch of said river between the said island and the main shore, has been vacated, and has ceased to be a part of said river.” The act then enacted that the bed, &c., of the river so vacated, should be vested in the city of Pittsburg, “the boundaries of said bed on each side * * * are the low-water lines established, &c., under the Act of April 16th 1858, and the same shall be held and improved by said city for public purposes as a street, in the same manner as other streets are held and improved by said city, and the rights of the owners of land on each side thereof shall extend to said low-water lines severally, and said owners shall hold up to said low-water lines without any let, &c., by the Commonwealth, the public, or the city of Pittsburg,” &c.
    The plaintiifs erected a' fence on the locus in quo ; the defendants, acting under the city of Pittsburg, took the fence down; this was the trespass complained of.
    The folloAving are points of the plaintiffs:—
    3. If the channel of the Allegheny river between Wainright’s Island and the southern shore was filled up, not by natural causes, but wholly or mainly in consequence of the erection of the dam and bridges across the same, the ground thus made belonged neither to the owner of the island nor to the owners of the mainland, but the title to the same remained in the Commonwealth.
    4. If at the dates respectively of the Avarrant to Dunn and Poor, the survey made pursuant thereto and patent to them, the waters of the Allegheny river flowed Avholty northwardly of Avhat was formerly Wainwright’s Island, and the space betAfeen the said former_ island and the main shore was filled up from the causes mentioned in the third point, and at said dates was dry land and had a soil susceptible of cultivation, and in point of fact had ceased to be a part of the bed of the river, it was subject to appropriation, survey and patent.
    The court instructed the jury if they believed the facts to be as stated in plaintiffs’ third and fourth points, to find a verdict in their favor, and requested that the damages be assessed separately for the trespass committed on the land between the low-Avater lines as fixed by the commissioners, and that betAveen the original low-water lines of the Wmebiddle and the island patents; subject to the opinion of the court on the question of law reserved, to wit, whether, under the facts established by the verdict, the plaintiffs acquired any title at all under the patent to Dunn and Poor.

      The jury found for plaintiffs, subject to the opinion of the court on the reserved question.
    The court afterwards entered judgment for the defendant on the reserved question non obstante veredicto.

    The plaintiffs took a writ of error, .and assigned for error that the court entered judgment for the defendant non obstante veredicto.

      E. E. McGormick and M. W. Acheson, for plaintiff in error.—
    This ground belonged to the Commonwealth: Wainwright v. McCullough, 13 P. F. Smith 66. The Act of April 12th 1867, Pamph. L. 1204, vacated that part of the channel of the river; and the vacation did not give the owners of the island or main shore anything between the low-water lines: Bailey v. Miltenberger, 7 Casey 37. The new formation being from artificial causes, it did not vest in the owner of either shore as an accretion : Angel on Watercourses, sect. 53, et seq.; Hopkins’ Academy v. Dickinson, 9 Cushing 544.

      E. T. Watson and R. Woods (with whom were T. 8. Bigelow and B. F. Lucas), for defendant in error.
    The riparian owner holds title to the accretions called “ alluvion,” which adhere to the shore and thus increases the land he owns: Washburne on Easements 319, 320; Yates v. Milwaukee, 10 Wall. 504; Cook v. City of Burlington, 30 Iowa 94 ; New Orleans v. United States, 10 Peters 662; Zug v. Commonwealth, 20 P. F. Smith 141. The Acts of Assembly give no authority to the Land Office to issue patents for the bed of a river except to mine: Brandt v. McKeever, 6 Harris 70. There being no authority by Act of Assembly to -issue patents for land made by filling the channel, the patent to plaintiff was void: Bagley v. Wallace, 16 S. & R. 245; Carson v. Blazer, 2 Binn. 477; Hunter v. Howard, 10 S. & R. 243; Fisher v. Cader, 1 Wall. Jr. 69; Freytag v. Powell, 1 Wharton 536. The beds of the river being navigable, were the highways held by the state for the use of the public. At the time of the revolution the people of each state acquired the absolute right to all their navigable waters and the soil under them; Martin v. Waddell, 16 Peters 307 ; Russell v. Jersey Co., 15 Howard 426; Bennett v. Boggs, Baldwin 60. This right became vested in the state, but in trust for the public use: Rundle v. Delaware Canal Company, 14 Howard 80. The state could not dispose of property so held to a private individual for private use. The Act of 1870 does not So dispose of the land, but vests it in' the city, within whose limits it lay, for the public use.
    January 5th 1874.
   Chief Justice Agnew

delivered the opinion of the court,

That the Allegheny river is a navigable stream, and was so recognised before the year 1798, has been shown in Wainwright v. McCullough, 13 P. F. Smith 66. The Act of 21st March 1798 was but declarative of the fact, as to the Ohio and Allegheny; its manifest purpose being to reach and declare the large tributaries of these rivers navigable streams, viz.: the Rig Beaver, emptying into the Ohio, and French creek, Conewango, Cassawanga, Little Conneaut, Toby’s, Oil, Brokenstraw and Red Bank creeks, tributaries of the Allegheny. In the early history of the state, the Allegheny was known as the Ohio, and was so described in the treaty with the Indians made at Fort Stanwix, November 6th 1768, and also in the treaty made at Fort Stanwix in October 1784, 2 Sm. Laws 122, 123. Part of the western and southern boundary lines are thus described in the treaty of 1768: “ to the said west branch of the Susquehanna, then crossing the said river and running up the same on the south side thereof, the several courses thereof to the fork of the same river, which lies nearest to a place on the river Ohio called the Kittanning, and from the said fork by a straight line to Kittanning aforesaid, and then down the said river Ohio by the several courses thereof, to where the western bounds of said province crosses the same river, and then with the said western bounds to the south boundary thereof, and with the south boundary aforesaid to the east side of the Allegheny hills, &c.” The treaty of October 1784 is for the land within the state lying west and north of the purchase of 1768, and is bounded eastward by the line of the treaty of 1768, reciting it by quotation in the language just given. The treaties were not adverted to in Wainwright v. McCullough. They throw light on the 13th sect, of the Act of 8th April 1785, excepting islands in the Ohio, Allegheny and Delaware from ordinary appropriation.

The bed, bars and shoals of the Allegheny are governed, therefore, by the laws relating to the beds, &c., of navigable streams. This brings us to the question as to the validity of the warrant from the Commonwealth to John W. Dunn and Wm. G-. Poor, for fifteen acres of unimproved land, dated 16th March 1868, and the survey and patent thereupon. The land taken up under the warrant is admitted to be the old channel of the Allegheny river between Wainwright’s Island and the main shore on the southeastern side of the river, lying also between the patent to Conrad Winebiddle, dated December 31st 1787, and the patent to George Wallace, July 22d 1806, surveyed on an order of April 7th 1798, for the island then known as Cork’s Island, three miles above Pittsburg. A special verdict for the plaintiff was rendered, subject to the reserved questions whether any title passed under the patent to Dunn and Poor, and if so, whether it extended to the original low-water lines of the Winebiddle and Wallace patents, or to the low-water lines established by the commissioners under the Act of 16th April 1858, Pamph. L. 326. The decision of the first question in the negative will render any decision on the second question unnecessary. But as the case has been argued with reference to the low-water lines of the commissioners, it will be proper to say we adhere to the interpretation given to the effect of the lines of the commissioners in Wainwright v. McCullough. These lines were not to settle questions of private boundary, but to define and fix permanently the boundaries of high and low-water between the riparian owners and the state, for the benefit of those exercising the public right of navigation. As said in that case, the subject itself is incompatible with a regulation of boundaries between land owners, for the bed of the stream belongs to the state and necessarily lies between and excludes controversy with an opposite owner, while the act itself refers to no other lines than those of high and low water. Another consideration exhibiting this is, that the high-water line, standing precisely on the same basis with the low-water line, as to defining and fixing it, being wholly within the lines of the owner’s survey, could by no possibility have any reference to the boundaries of other persons. The purpose of the legislature evidently was so to define and fix these lines with accuracy, in and near to Pittsburg, as to prevent encroachments on the public right of navigation, either by building beyond the low-water line into the stream, or by placing obstructions to navigation between high and low-water mark. How far the line of the commissioners, when differing from the natural low-water line, will bind the riparian owner in a question of title to the soil, was not a question decided in Wainwright v. Wallace, and is not intended now to be determined, holding as we do in this case that the appropriation of the channel of the river by Dunn and Poor was without authority of law.

The beds, gravel and sand-bars of the navigable rivers of this state are not subject to private appropriation under the ordinary system of land laws: Allegheny City v. Read, 12 Harris 39; City of Allegheny v. Nelson, 1 Casey 332; Brandt v. McKeever, 6 Harris 70. This rule grew out of the interests of the state in preserving the navigation of her great rivers, and as a consequence it has always been held that the surveys on navigable streams do not extend the title of the riparian owner beyond the ordinary low-water line, and between it and ordinary high-water line the ownership of the land is subject to the public right of navigation. These lines were considered and their extent defined in Stover v. Jack, 10 P. F. Smith 340; see also Wood v. Appal, 13 P. F. Smith 210; Grant v. White, Id. 271. These positions bring us to the precise question before us, to wit, whether a warrant can be taken out in the ordinary forms of the Land Office to appropriate land made in the channel by filling up, caused by damming up the water in one place and making a street across it in another, raised by embankment under authority of an Act of Assembly. No precedent for such an appropriation has been shown or is known to us, while it is contrary to the practice of the Land Office since the extinction of the rights of the proprietaries of the province by the Act of 27th November 1779, 1 Sm. Laws 479. The sixth section of that act subjected the “said soil and lands” to such disposal, alienation and appropriation as the legislature then or thereafter should deem meet and expedient. The first act establishing a land office under the Commonwealth, was passed April 9th 1781,1 Sm. Laws 529. The twelfth section provided that no grant, warrant or location, after the 4th of July 1776, should be valid for lands or lots within ten miles of Philadelphia, within three miles of a county town, or for a greater quantity than five hundred acres, or any lands or lots not granted in the usual form-s of the Land Office, or lands not within the Indian purchase.” The next general act for opening the Land Office for granting and disposing of the unappropriated lands within the state, passed April 1st 1784, 2 Sm. Laws 102. The second section confined the acts of the officers of the Land Office, as to locations, warrants, patents, &c., to doing and performing these functions, “ agreeable to the former customs and usages of the said offices.” The sixth section directed that when the Indians should be satisfied for the unpurchased lands within the state, the surveyor-general should appoint district surveyors, “ for laying out all such lands wdthin the said purchase as shall be found fit for the purpose of cultivation,” &c. This was followed by the Act of 3d April 1792, granting the lands north and west of the Ohio and Allegheny rivers and Conewango creek, to settlers and to warrant holders. The ninth section provides that the holders of warrants shall cause them to be settled and improved within two years after the date of the warrant. Two years later came the Act 22d April 1794, forbidding applications for unimproved lands in the new purchase. It was followed by the Act of 22d September 1794, prohibiting applications for lands, except for such as had been or should be settled, grain raised and a person residing thereon. This current of legislation shows that the lands within the ordinary jurisdiction of the Land Office, were those granted upon application according to the usual forms of the office, and such as were fit for settlement and cultivation, and were not within the navigable streams. This is evidenced also by the exception of islands in the Susquehanna, Ohio, Allegheny and Delaware, in the 13th section of the Act of 8th April 1795, 2 Sm. Laws 317, and by the description in the Act of 3d April 1792; the first section of which describes the land for appropriation as lying east of the Allegheny river, and the second section describes the land as lying west of the Allegheny river ; in both instances excluding the river itself. In all this legislation we discover a fixed intent to open to general appropriation ordinary land outside of the navigable streams, and as a consequence no surveys were made across these streams. As to the smaller streams, it was different, the surveys often crossing them, and when laid along the margin, the law extended the title ad ftlum aquce: Coovert v. O’Conner, 8 Watts 470.

The case before us, therefore, does not fall within the ordinary jurisdiction of the Land Office, the land being within the acknowledged channel of the river, and the filling up arising from artificial means, and not by the slow process of natural deposit. The case is exceptional, and therefore requires a particular or special authority of law to open it to general or particular appropriation. No provision is made for such a case. The legal presumption from the locus in quo is that the land is still a part of the bed of the river, until some legal proceeding shall have established the contrary, and a law shall open it to private appropriation. Without this, the land officers, who are ignorant of the peculiar circumstances of the case, may be betrayed into a grant of the river bed prejudicial to the rights of the public. To assume that the land is fast land and not subject to overflow at ordinary high water, might be to make a grant against the fact of the case. Such a ease is not to be governed by the ordinary rule of appropriation, but like an escheat or a forfeiture accruing to the Commonwealth, must be provided for by a law specially applicable to it: Bagley v. Wallace, 16 S. & R. 245; Blaine’s Lessee v. Crawford, 1 Yeates 287; Freytag v. Powell, 1 Wharton 536. The land in question was therefore not subject to be taken up under the warrant to Dunn and Poor, and the judgment must be affirmed.

Affirmed.


author: Mr. Justice Williams

text:
    Allison and Evans’ Appeal. Porterfield and Treat’s Appeal.
    1. Oil land described by metes and bounds with a “ protection” of eight rods on the north side and ten rods' on the east side, was leased to Evans. Held, that the “ protection ” extended to the point where the lines on the respective sides of the land would intersect.
    2. Oil land on the northeast corner of Evans’ lease was leased to Treat, who sunk a well within the “ protection,” injuring Evans’ wells on his land. Held, that Treat could be restrained from operating on the “ protection,” and that in the same proceeding damages could be assessed against him for the injury.
    3. As a general principle, when a court of equity has obtained jurisdiction for one purpose, it may retain it generally for relief; as well in cases of continuing trespass and waste as in cases of fraud, accident, mistake and account.
    4. To prevent multiplicity of suits, a court of equity will decree an account of the damages or waste at the same time with an injunction, and make a decree to settle the entire controversy.
    October 23d 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeals from the Court of Common Pleas of Clarion county:
      In Equity: No. 176 and 179, to October and November Term 1874.
    The bill in this case was filed July 1st 1872 -by J. W. Allison and A. Evans, against R. W. Porterfield and M. C. Treat. ■
    It set out that Joseph Foust, on the 15th of July 1871, leased for twenty years to Philip Foust and William Spencer, by metes and bounds, which were stated in the bill, a lot of ground containing 3 acres and 123 perches of land, “ for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil,” and also a “protection of 10 rods on the east side” of the lot, “and 8 rods on the north side;” the lessees to deliver to the lessor one-eighth of the petroleum, &c., raised on the premises; the lessor to use the premises for tillage, except such part as may be necessary for mining purposes, and a right of way to the places of mining, &c.; that on the 29th of March 1872 the lessees transferred their interest in the lease unto A. Evans, one of the plaintiffs, and on the 19th of July 1872, Evans transferred seven-eighths to J. W. Allison, the other plaintiff; that the defendants had entered on “the protection,” and after notice from the plaintiffs to desist, had erected machinery on “the protection,” and “were boring and drilling thereon for carbon and petroleum, in violation of said notice and the rights of the plaintiffs.”
    The prayers were:—
    1. For an injunction.
    2. For an account of all waste, &c., “and in the event of their obtaining oil prior to the judicial determination of this case, to account for all oil so obtained from the premises.”
    The defendants answered, that they entered on the land mentioned in the bill under a lease from Joseph Foust, the plaintiffs’ lessor, and denied that they were in “the protection” set out in the bill; they averred that the land leased by them from Joseph Foust lies northeast of the northeast corner of the plaintiffs’ leasehold; that their lease from Joseph Foust was bounded by lines which were merely an extension of plaintiffs’ north and east lines beyond their northeast corner; they further averred that they believed that the land leased to them was not covered by “ the protection ” mentioned in the bill, and that they were advised as matter of law that “ the protection ” did not extend to any land included in their lease.
    The question as to the land within “the protection” was, whether the north and east lines of “the protection” were to be extended until they met, or whether “the protection” on the north side extended no farther than to the east line of the leased land, and on the east side no farther than to the north line of the leased land; in the latter case the defendants might sink wells, &c., immediately outside of plaintiffs’ leasehold.
    The annexed diagram may more clearly indicate the respective claims of the parties:—

      James Boggs, Esq., was appointed examiner and master. He took testimony in the case and as master reported, amongst other things, that the plaintiffs commenced sinking an oil-well on the premises leased to them, and completed it on the 14th of January 1872 ; the well produced from 90 to 100 barrels of oil daily; that on the 28th of March 1872, Joseph Foust leased to the defendants a lot lying northeast from plaintiffs’ lot, containing about two acres, and shortly afterwards commenced sinking a well on the disputed part.
    The plaintiffs commenced a second well on their lot, which was completed July 15th 1872, and produced about 50 barrels of oil daily. The defendants’ well was completed about the middle of August 1872, and then produced about 65 barrels of oil daily. The product of oil from the plaintiffs’ wells decreased, and at the hearing before the master the aggregate product of both their wells was about 16 barrels daily. He also reported the amount of oil which the defendants had obtained from their well, its value, &c.; that the sinking of the well was an injury to the plaintiffs, and that the amount of damages was one-half of the whole production of the well.
    He further reported his opinion in the case as follows :—
    * * * “This protection was to prevent-Joseph Foust or any other person under him from putting down an oil-well at any place within the prescribed limits. At no place could Joseph Foust, or any other person under him, put down a well on the north side of this Evans and Allison lease within 8 rods of the actual line thereof, nor on the east side within 10 rods ; nor could Evans and Allison bore at any place within their protection outside of the actual lines of their lease, but could bore up as near their lines as they could erect their buildings for the purpose. The chief object of this protection appeared to be to secure to the lessees the exclusive chance for oil under their lease, or at least in so far as 8 rods additional north and 10 rods on the east would do that. As to whether the protection extended around the corner, the language of the agreement is somewhat ambiguous and doubtful, which ambiguity and doubt are to be taken most strongly against the lessor, Joseph Foust, and his subsequent lessees with notice. * * * It is our opinion that the intention of the parties at the making of the lease was to secure to it the same protection at the corner as at the sides, and that the protection lines at the northeast corner extended until they intersect each other. * * * If we are correct in our interpretation, the well of Porterfield and Treat is within the plaintiffs’ protection.’’ * * *
    The master found also that the entire production from defendants’ well to July 19th 1873 was $18,777.79, and therefore $9388.89 would be the measure of damages to the plaintiffs.
    He therefore recommended a decree in favor of plaintiffs for $9388.89, and for an injunction to restrain defendants from further damage to the plaintiffs’ leasehold.
    The defendants filed exceptions to the report: that the master erred in not holding that the bill laid no ground for equitable relief ; that a bill for an account would not lie, the remedy being at law; and in finding that the defendants’ well was within “ the protection” mentioned in the plaintiffs’ bill. There were exceptions also as to the amount of damages and the mode of computation.
    The court (Jenks, P. J.) overruled the exceptions as to the right of the plaintiffs to an injunction to restrain the defendants from further operations on the premises in dispute, and decreed an injunction accordingly; and sustained the exceptions as to the question of damages as not being cognisable in equity, and as to that; dismissed the bill without prejudice.
    Both parties appealed to the Supreme Court, and assigned for error the portions of the decree against them respectively.

      Knox Moffett and J. Gamjobell, for Allison and Evans. —
    A constantly-recurring trespass may be redressed in equity by injunction : Stewart’s Appeal, 6 P. F. Smith 422; Brightly’s Equity, §§ 294, 295; Scott v. Burton, 2 Ashmead 325. Awarding compensation in damages by a court of equity is incident to the grant of an injunction: Hilliard on Injunction 331, pl. 9; 3 Daniel’s Ch. Pr. 189, pl. 319; Masson’s Appeal, 20 P. F. Smith 26.

      T>. Lawson and W. S. Gorbett, for Porterfield and Treat.—
    The legislature has not given to the courts a general equity jurisdiction, and they cannot exceed that granted: Brightly’s Equity, sect. 25; Gilder v. Merwin, 6 Whart. 522; Cassel v. Jones, 6 W. & S. 553; Hagner v. Heyberger, 7 Id. 106; Commonwealth v. Bank of Pennsylvania, 3 Id. 184. The parties in such cases must be left to their remedy at law ; Dalzell v. Crawford, 1 Parsons 41. The equity powers of our courts extend only to cases where account is sustainable at law: Brightly’s Equity, sect. 120 ; Shriver v. Nimick, 5 Wright 91; Persch v. Quiggle, 7 P. F. Smith 258.
    October 11th 1875.
   Mr. Justice Williams

delivered the opinion of the court,

This was a bill to restrain the defendants from boring for oil, and to account for the damage done to plaintiffs’ leasehold, and for all oil obtained on the premises. The master found that the well bored by the defendants was within the “protection” stipulated for in the plaintiffs’ lease, and that the damages occasioned thereby to the plaintiffs’ leasehold amounted to one-half the entire production of the well from August 20th 1872 to July 19th 1873, the market price or value of which was $9388.89, and accordingly he recommended that a de'cree be entered in favor of the plaintiffs for the amount so found, and that an injunction be granted against the defendants to prevent further damage to the leasehold of the plaintiffs.

The court below, on exceptions filed by the defendants to the master’s report, ordered a perpetual injunction to restrain the defendants from further operations upon the premises in dispute, and dismissed the bill as to plaintiffs’ claim for damages without prejudice. Both parties have appealed from the decree; the defendants from the order awarding the injunction, and the plaintiffs from the order dismissing the bill.

The question presented by the defendants’ appeal will be 'first ’considered. Are the plaintiffs then entitled to the injunction ?

If the stipulation in the lease, on which the right to the injunction depends, is to be strictly construed according to the literal meaning of the language, the defendants’ well cannot be regarded as within the protection for which it provides, and if so, the plaintiffs have no legal or equitable right to the relief asked for in the bill. But the agreement must be construed with reference to the subject-matter, and so as to effectuate, if possible, the purpose for which it was intended. The lease was “ for the sole and only purpose of mining and excavating for petroleum coal, rock or carbon oil ” in the tract described therein. The parties probably knew that if oil was found in the demised premises, a well bored within a short distance would draw off more or less of the oil, and that for the same reason a well on the border or side of the tract would draw part of its supply from the adjoining ground. The object of the agreement was therefore twofold: to prevent the lessor or any one under him from mining or boring wells within eight rods of the north and ten rods of the east line of the tract described in the lease, and to give the lessors more ground for the supply of any wells they might drill or bore pn the demised premises in proximity to these linos.

Is it then a reasonable supposition, that the parties intended to leave a gap at the corner where these lines intersect which would render the “protection” valueless and defeat the purpose for which it was intended ? If the north and east lines were to be protected, then every point in these lines must be protected; and if so, why should the parties leave at the corner, when they meet an open area ten rods long and eight rods wide, in which a well could be bored, as it was by the defendants, to the great damage and waste of the leasehold? The master and the court below were of the opinion that it was the intention of the parties to secure the same protection to the corner as to the sides of the demised tract, and that the agreement should be so construed as to carry out their intention. This, as it seems to us, is its reasonable interpretation; and if so, the defendants had no right to construct buildings and machinery and to put down a well within a few feet of the corner of the plaintiffs’ leasehold, and pump therefrom, as they did, large quantities of oil. Nor can there be a doubt that the plaintiffs have a sufficient title to enable them to obtain redress by injunction of the wrong done by the defendants. The trespass of which they complain is of a permanent nature, and, under the facts found by the master, destructive of their leasehold. It is clear then that, under the equitable powers conferred by the statute, the court below had jurisdiction for its prevention or restraint: Stewart’s Appeal, 6 P. F. Smith 413 ; Smith’s Appeal, 19 Id. 474 ; Masson’s Appeal, 20 Id. 26. The defendants’ appeal must therefore be dismissed.

We come now to the question presented by the plaintiffs’ appeal. Are they entitled to a decree for the damages found by the master ? The court below refused to make such decree, on the ground that the plaintiffs’ remedy was in a court of common-law jurisdiction, and not in a court of equity. But it is well settled, as a general principle, that where a court of equity has obtained jurisdiction for one purpose it may retain it generally for relief.

This seems to be the rule, not only when the jurisdiction attaches for discovery in cases of fraud, accident, mistake and account, but where it attaches for injunction in-cases of continuing trespass and waste. In such cases the course is to sustain a bill for the purpose of injunction, connecting it with the account, and not compel the plaintiff to go into a court of law for damages: Thomas v. Oakley, 18 Vesey 184. To prevent multiplicity of suits, the court will decree an account of the damages or waste done at the same time with an injunction, and proceed to make a complete decree, so as to settle the entire controversy between the parties. This is the doctrine not only of courts of equity having general chancery jurisdiction, but of this court, under the equitable powers conferred by the legislature. The principle was asserted and applied in McGowin v. Remington, 2 Jones 56, and it has been recognised and reaffirmed in subsequent cases: Souder’s Appeal, 7 P. F. Smith 498; Coleman’s Appeal, 25 Id. 441; Masson’s Appeal, 20 Id. 26. Why then should we hold that the power of the court for relief ceased with the injunction ? If the statutes giving chancery powers in injunctions and matters of account do not, as contended, expressly give the power to decree damages against tort-feasors, they give, in express terms, “ power and jurisdiction of courts of chancery so far as relates to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the rights of individuals.” If, incident to the right of injunction in such cases, courts of chancery decree an account of the damages or waste done, is it an unreasonable construction of the statute to hold that the legislature, in giving the power and jurisdiction which it confers, intended that it should be exercised as fully and with the same incidents as it is by courts of chancery in like cases ? There is no more difficulty in taking an account of the damages in cases of waste and continuing trespass, than there is in settling a partnership or other account or claim of which equity has jurisdiction. The court below was therefore in error in deciding that it had no jurisdiction in equity of the plaintiffs’ dam-. ages, and dismissing their bill so far as it asks for an account, and in this respect the decree must be reversed.

And now, October 11th 1875, it is ordered, adjudged and decreed, that the defendants’ appeal be dismissed, and that so much of the decree in this case as orders a perpetual injunction to issue to restrain the defendants from further operations, &c., and that they pay the costs of this case, he affirmed; and that the residue of the said decree, dismissing the bill as to the plaintiffs’ right to recover damages for the money complained of, be reversed and set aside. And it is further ordered, adjudged and decreed, that the defendants pay to the plaintiffs the sum of $9388.89, being the amount of the damages to the plaintiffs’ leasehold by the defendants’ well, as found by the master, with interest thereon from the 24th of November 1873, the date of filing his report; and it is further ordered, that the defendants pay the costs of their own and of the plaintiffs’ appeal, to be taxed by the prothonotary, and the record be remitted to the court below for the purpose of enforcing and executing this decree.


text:
    Morgan et al. versus McKee.
    1. Defendant bought 4000 barrels of oil from plaintiff, and eight similar papers of same date were executed by them, each for the delivery of 500 barrels on the last day of consecutive months, payment to he made on each delivery. Held, not to be an entire contract.
    2. The plaintiff, on demand, refused to deliver the oil due on one of the appointed days; the defendant on the next day for delivery, gave notice of rescission, on the ground of the previous default. Held, the plaintiff might recover for refusal of defendant to accept and pay for the oil which was tendered on the days appointed for the subsequent deliveries.
    3. The right to rescind a contract must be exercised within a reasonable time after the breach. What is a reasonable time, is for the court.
    4. Evidence was inadmissible, that at the time of the purchase it was agreed that it was an entire contract, and that the several papers were executed with that understanding and according to the custom of the trade.
    October 9th 1874.
    Before Asnew, O. J., Sharswood, -Williams, Mercur and Gordon, JJ. ,

      Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 7.
    This was an action of assumpsit, brought to February Term 1871, of the court below, by John A. McKee against B. W." Morgan and S. A. Morgan, partners as B. W. Morgan & Co.
    The plaintiffs claim, as set forth in his declaration and affidavit of claim, was on three similar instruments of writing, all dated March 5th 1870, each of which was for the sale by the plaintiff to the defendants of 500 barrels of petroleum; one for the delivery of 500 barrels between the 16th and 31st days of October, at buyer’s option; one for the delivery of 500 barrels between the 16th and 30th days of November; and the third for the delivery of 500 barrels between the 16 th and -31st days of December 1870, to be paid for on each delivery at 30 cents per gallon; with the stipulation in each paper that if no call was made by the defendants, or if the call should be for delivery on the last day, the plaintiff should have the privilege of delivery on either of the last three days. These contracts were accepted by the defendants, and when the plaintiff tendered them the oil on the days stipulated for the delivery, they refused to accept and pay for it.
    On the trial, before Starrett, P. J., February 13th 1873, after the plaintiff’s claim had been read, the defendants offered to prove, that on the 5th of March 1870, the plaintiff and defendants entered into a contract for the sale and purchase of 4000 barrels of petroleum, for the price, &c., as set out in the instruments above given, and deliverable in monthly quantities of 500 barrels; “ that the broker who acted for the parties after the contract was entered into, prepared and had executed eight papers of the tenor of those in evidence, for the delivery of the said monthly instalments; that this was done merely as a matter of convenience and in accordance with the custom of the trade; that said papers were all executed at one time; that the contract for said 4000 barrels was one entire contract, and so understood and agreed on by the parties, and the object in preparing and executing said eight papers was not to sever said contract, or to interfere with its entirety, and this was well understood by both parties at the time said papers were signed and executed; that under said contract the plaintiff delivered, and the defendants accepted and paid for, 500 barrels of said petroleum in the month of May 1870, and the like quantity for each of the months of June, July and August 1870, and upon said oil, so delivered and accepted, the defendants sustained a heavy loss; that the 500 barrels to be delivered by plaintiff to defendants under said contract in the month of September 1870, were not so delivered, but the plaintiff made default in the delivery, and refused to deliver the same, although it was duly demanded; that the defendants subsequently, to wit, when the October delivery .was tendered, notified the plaintiff that by reason of his previous default, the defendants elected to treat the contract as rescinded, and for like reason the defendants declined the subsequent deliveries ; that neither the plaintiff nor the defendants would have entered into separate contracts for monthly deliveries, nor would the former have sold, nor the latter have purchased, less than 4000 barrels of said petroleum, but it was the contemporaneous understanding and agreement when said eight papers were executed, that they constituted one transaction or entire contract for 4000 barrels; that the papers for the months of October, November and December, in evidence, are three of the eight papers mentioned in a previous part of this offer, and they cover but a portion of the aforesaid 4000 barrels.”
    The offer was rejected and a bill of exceptions sealed.
    The verdict was for the plaintiff for $5840.
    The defendants removed the record to the Supreme Court, and there assigned the rejection of their offer for error.

      M. W. Aoheson, for plaintiffs in error.
    The entirety of a contract depends on the intention of the parties : Shinn v. Bodine, 10 P. F. Smith 182. The evidence offered not being to vary the contract, but to show the whole transaction, it Avas admissible, although in parol: Miller v. Fichthorn, 7 Casey 252: Barnhart v. Riddle, 5 Id. 92; Chalfant v. Williams, 11 Id. 212; Patterson v. Todd, 6 Harris 426 ; Barclay v. Weaver, 7 Id. 396. While a contract is in fieri, non-performance by one party discharges the other: 2 Parsons on Contracts 678, 679; Wilmhurst v. Bowker, 2 Man. & Gr. 792; Reybold v. Vorhees, 6 Casey 116 ; and if entire, the plaintiff must first show his performance or readiness to perform: Shaw v. Turnpike Co., 2 Penna. R. 454: Roberts v. Beatty, Id. 63; McClurg v. Price, 9 P. F. Smith 420; Martin v. Schoenberger, 8 W. & S. 367. There was no waiver of right to rescind; the plaintiff having refused to perform and persisted in it, the defendants might treat the contract as rescinded when the October tender was made; 2 Parsons on Contracts 678, 679; Story on Sales 451. The question of reasonable time of notifying the rescission was for the jury: Burton v. Griffiths, 11 M. & W. 817; 1 Hilliard on Contracts 210, pl. 35.

      A. M. Brown and T. O. Lazear, for defendants in error.—
    The papers on their face did not show an entire contract: Mavor v. Pyne, 2 Carr. & Payne 91; Withers v. Reynolds, 2 B. & Ad. 882; Lippincott v. Low, 18 P. F. Smith 314; Lucesco Oil Company v. Brewer, 16 Id. 351; Fessler v. Love, 7 Wright 313; 1 Story on Contracts, sect. 25; 1 Hilliard on Contracts 109, 110. A rescission must be made promptly after the breach: Lawrence v. Dale, 1 Johns. Ch. R. 23; Ayres v. Mitchell, 3 S. & M. 683; McKay v. Carrington, 1 McLean 50; Fry on Specific Perf.; Brown v. Davenport, 3 Keyes R. 472; Negley v. Lindsay, 17 P. F. Smith 217.
    October 11th 1875.
   Mr. Justice Williams

delivered the opinion of the court,

The offer of the defendants below was rightly rejected, if the evidence proposed to be given would have constituted no defence to the action. In one respect the offer was self-contradictory. It proposed to show that the contract was entire, when by its very terms, as set out in the offer, it was severable as respects its performance by both parties. The petroleum bought by the defendants was not to be delivered at one time for a single and entire consideration, to be paid when the delivery was complete, but it was deliverable monthly by the plaintiff in specified quantities, and the consideration was apportioned and payable as each delivery was made. The contract therefore was in its very nature sever-able : Lucesco Oil Co. v. Brewer, 16 P. F. Smith 351; and no understanding or agreement of the parties could render it entire so long as its provisions remained unchanged. If it had been entire and not severable, each monthly delivery for which it stipulated could not have been made, as it was, in the papers executed by the parties, the subject of a distinct agreement, as complete in itself as if it had been a separate and independent bargain. If the defendants sustained a heavy loss, as alleged, on each of the four lots of petroleum delivered by the plaintiff, it did not absolve them from their obligation to accept and pay for the residue, if tendered according to the terms of the contract; nor did the plaintiff’s failure to make one of the deliveries operate per se as a dissolution of the contract and put an end to the rights and obligations of the parties under it. Doubtless it gave the defendants the right to recoup or set-off any damages occasioned by the breach, but none were offered to be shown; and if it gave them the right to rescind the contract, they were bound to exercise it without any unreasonable delay. It was their duty to act promptly .on the occurrence or discovery of the breach, and if they were guilty of undue delay, they must be regarded as having waived their right to rescind and elected to treat the contract as still subsisting: Lawrence v. Dale, 3 Johns. Ch. R. 23; Pearsoll v. Chapin, 8 Wright 9; Negley v. Lindsay, 17 P. F. Smith 217; Learning v. Wise, 23 Id. 173. They could not take the chance of a rise in the market-price of petroleum, and then elect to rescind the contract or not as might be most for their advantage. They were bound to make their election within a reasonable time; and what is reasonable time or undue delay where the facts are not disputed, is a question of law to be determined by the court: Learning v. Wise, supra. Reasonableness in such cases belongeth to the knowledge of the law, and is therefore to be decided by the justices: 1 Tho. Coke Litt. 644 (52 b). Did the defendants then elect to rescind the contract in a reasonable time ? The petroleum was deliverable monthly, and the breach of which the complaint was made, was the plaintiff’s failure to make the September delivery. They did not elect or give notice of their intention to rescind the contract until the October delivery was due and tendered by the plaintiff. The court below ruled, and we think rightly, that the delay was unreasonable. When the article is a subject of speculation, and the market-price varies with the demand and supply, if the purchasers, instead of rescinding the contract as soon as it is broken, or within a reasonable time after the occurrence of the breach, take the chance of a rise in the price, it is but equitable and just that they should be treated as having waived the right to rescind. Unquestionably a month’s delay in such a case, where the delivery is to be monthly, must be regarded as unreasonable, and should be construed as an election to treat the contract as still subsisting. This view of the case makes it unnecessary to determine whether there was such a material variance between the offer and the contract declared on as to render the evidence inadmissible. If the contract, as offered to be shown, had been incorporated into one instrument or paper, instead of eight, as executed by the parties, the evidence proposed to be given would have constituted no defence to the action, and therefore its rejection did the defendants no harm.

Judgment affirmed.


text:
    Kelly’s Appeal.
    1. Land paid for by Lafferty was conveyed to his wife; after bis death, a creditor, to whom Lafferty was indebted at the time of the conveyance, obtained judgment against his administrator, with notice to his widow and heirs, and on an execution out of the Common Pleas his interest in the land was sold by the sheriff. Held, that the administrator, and not the judgment-creditor, was entitled to the proceeds of sale ; the wife not having claimed the land either before or after Lafferty’s death.
    2. That Lafferty was indebted at the time of the conveyance to his wife, did not of itself render the conveyance fraudulent.
    3. The judgment having been obtained after Lafferty’s death, was not a lien on his land, and the fund arising from the sheriff’s sale was payable to the administrator and distributable by the Orphans’- Court only.
    October 20th 1874.
    Before Agnew, O. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Crawford county: No. 54, of October and November Term 1878. In the distribution of the proceeds of the sheriff’s sale of the real estate of Robert Lafferty, deceased.
    So far as could be ascertained from the statement in the paper books and the auditor’s report, tlie facts in this case appear to .be as follows:—
    On the 21st of January 1871, Emanuel Ecker commenced an action of assumpsit in the Court of Common Pleas of Allegheny county against James D. Kelly, administrator, &c., of Robert Lafferty, deceased, with notice to Susanna Lafferty, his widow, and James Lafferty and others, his children. The sheriff returned “summoned” as to.Kelly, and “nihil” as to the widow and children. The declaration was on a number of promissory notes, set out in it, made by the decedent, the first dated on the 14th of May 1868, and the last dated July 23d 1868, and also in the common counts. The whole amount due January 1st 1871 on the plaintiff’s claim, as filed, was $1740. The administrator pleaded uplene administravit.” An arbitration was had under the compulsory arbitration law, and on the 10th of March 1871 the arbitrators made an award as follows:—
    “We do find and award in favor of the plaintiff the sum of $1755, and we further find that the sum of $650, part of the above principal sum, was contracted by defendant’s intestate in his lifetime, A. D. 1863. And we further find that the defendant has administered fully all the personal estate of the intestate, and all the real estate standing in the name of said deceased, so far as has come to the knowledge of said defendant. But wTe do find that the defendant’s intestate purchased, in 1864, certain real estate, in the county of Crawford, and the title to the same was placed in the name of his wife, Susanna Lafferty, by deed from R. R. Johnson and wife, dated September 16th 1864, as recorded (&c.). Also, deed from Frederick Wightman, dated October 19th 1864, as recorded (&c.). And that $2000, at least, of the purchase-money thereof was paid by said Lafferty upon one or both of the said tracts of land, out of his own money and estate.”
    Judgment was duly entered on the award; the plaintiff transferred the judgment to Crawford county. In that county, to August Term 1871, a scire facias on the judgment was issued, with notice to the widow and children of decedent. The sheriff returned “scire feci” as to the widow and Mary J. Lafferty, one of the children, and “ nihil ” as to the other children and the administrator.
    An alidg scire facias was issued to the children not served in the original, and the sheriff returned “nihil;” judgment was entered on the scire facias, which was liquidated February 23d 1872 at $1851.56. A fi. fa. was issued against the administrator, widow and children, and the real estate mentioned in the writ, but being in the name of the widow of the decedent, was levied on and condemned. Under a venditioni, the property named in the fi. fa. and the inquisition, was sold on the 5th of August to John Phillips for $2150, the proceeds of sale paid into court, and Thomas Roddy, Esq., appointed auditor to report distribution. Before him the money was claimed by Ecker, the plaintiff in the execution, and by the administrator of Lafferty.
    In connection with the foregoing statements, the auditor found:—
    That in the distribution of the assets which had previously come into the hands of the administrator, and which were insufficient to pay all the decedent’s debts, Ecker received a pro rata dividend as a creditor of the decedent; that in the suit by Ecker against Kelly, as administrator of Lafferty, it had been shown that a large portion of the purchase-money of the land sold under the execution had been furnished by the decedent. The grounds of Ecker’s claim w'ere:—
    1. The administrator claimed to'have settled the whole estate.
    2. The claims of other creditors were barred by the Statute of Limitations, so far as the land sold on Ecker’s judgment is concerned.
    3. The intestate did not die seised of the land from which this fund is raised, nor had he any title ; his administrator, therefore, could not sell the land, and could not control the fund raised from the sale of it by another.
    4. If Lafferty had owned the land, with title in himself, but conveyed it to another in his lifetime, even if he were indebted at the time of the conveyance, his administrator could not sell the laud for the payment of such debts. Under such circumstances the land would be bound only by such debts as were liens at the time of the conveyance.
    The auditor also reported as his opinion, amongst other things, that “ the fund being derived from the sale of the decedent’s interest in the real estate, it must be distributed as such.” He awarded the whole of the fund to Kelly, the administrator, &c., of the decedent.
    One of the exceptions by Ecker was that the fund in court should have been appropriated to his judgment. The court (Lowrie, P. J.) sustained the exceptions and ordered the money in court to be paid to Ecker.
    The administrator appealed to the Supreme Court, and assigned the decree of the court below for error.

      Roe Reisinger and A. B. Richmond, for appellant.-^-
    No judgment having been obtained against the decedent in his lifetime, his administrator was entitled to the fund : Morrison’s Case, 9 W. & S. 117; Kittera’s Estate, 5 Harris 416 ; Willing v. Yohe, 1 Phila. R. 223 ; Whiteside v. Whiteside, 8 Harris 474; Ashford v. Ewing, 1 Casey 215. The Act of February 24th 1834 must be strictly pursued: Downer v. Downer, 9 Watts 63 ; Craven v. Bleakney, Id. 20 ; Strickler v. Sheaffer, 5 Barr 241. The policy of the law is to carry the settlement of the estates of decedents into the Orphans’ Court: Everman’s Appeal, 17 P. F. Smith 336; Bull’s Appeal, 12 Harris 286.

      D. MoQoy, for appellee.
    Such voluntary conveyances, as in this case, are good between the parties and voidable only to such creditors as were intended to be defrauded: Byrod’s Appeal, 7 Casey 241. Others than Ecker, who claimed that the land was conveyed 'in fraud of his rights, cannot go behind the sale, by assuming a position which assails it and the lawfulness of the conversion : Hutchman’s Appeal, 3 Casey 209 ; Walters v. Pratt, 2 Rawle 265. The decedent not having died seised, the Orphans’ Court had no jurisdiction to sell the land for the payment of his debts: Shontz v. Brown, 3 Casey 123.
    October 11th 1875.
   Mr. Justice Williams

delivered the opinion of the court,

This case comes before us on the appeal of James D. Kelly, administrator of Robert Lafferty, deceased, from the decree of the Court of Common Pleas of Crawford county, distributing the proceeds of the sale of the decedent’s real estate. The sale was made under an execution on a judgment obtained by Emanuel Ecker, against the administrator, with notice to the widow and heirs. The proceeds of sale were claimed by the plaintiff in the execution and also by the administrator, and an auditor was appointed to make distribution. Treating the fund as the product of the sale of the intestate’s interest in the land, the auditor appropriated the money to the administrator, but the court, on exceptions to his report, ordered it to be paid to the plaintiff in the execution. The fund was decreed to the plaintiff on the ground that the intestate did not die seised of the land; that its conveyance to his wife, after a part of the indebtedness had been contracted, for which the judgment against the administrator was obtained, was in fraud of the rights of the plaintiff as a creditor; and as it did not appear that other creditors of the intestate were defrauded by the conveyance, the plaintiff alone had the right to pursue the land for his debt, and was consequently entitled to the proceeds of sale. The difficulty in determining how the fund should be distributed arises from the meagerness of the facts reported by the auditor and disclosed by the record. The land was sold as the property of the intestate, and if it was his, it is clear that under the provisions of the Act of 24th of February 1834, sect. 33, Pamph. L. 77, the administrator is entitled to the fund arising from the sale upon giving security for its distribution, as required by the act: Morrison’s Case, 9 W. & S. 117. If, however, the intestate did not die seised of any interest in the land, if he had no estate in it, which descended to his heirs subject to the payment of his debts, it would seem to follow, as a logical and necessary consequence, that the administrator is not entitled to the proceeds of sale, and has no such standing in court as will enable him to gainsay the plaintiff’s rights to the fruits of his execution. But how does it appear that the intestate had no interest or estate in the land at the time of his death ? The auditor has not so found, nor has he found that the land was conveyed to the intestate’s wife in fraud of his creditors. It is true, the arbitrators on whose award the judgment was obtained, besides finding and awarding in favor of the plaintiff the sum of $1755 with costs, further found that the sum of $650 of the above principal sum was contracted by defendant’s intestate in his lifetime in 1863, and that in 1864 he purchased certain real estate in the county of Crawford, Pennsylvania, and the title to the same was placed in the name of his wife, Susannah Lafferty, by deed from R. R. Johnson and wife, dated September 6th 1864, as recorded in said county, in, &c., and by deed from Frederick Wightman, dated October 4th 1864, as recorded, &c., and that $2000 at least of the purchase-money thereof was paid by said Lafferty upon one or both of said tracts of land, out of his own money and estate. The arbitrators were authorized to find the amount of the intestate’s indebtedness to the plaintiff, but they had no authority to find the other facts set out in the award. So far as their finding is within the terms of the submission, it is conclusive on the parties; but so far as it was not authorized by the submission it is a nullity for want of jurisdiction, and consequently it can have no influence in determining the question of distribution. Whether the auditor intended to endorse the finding of the arbitrators and to make it a part of his report, is not so clear; but conceding that he did, what is the proper and legitimate inference from the facts so found ? Is it that the conveyance was made to the wife for the purpose of defrauding the intestate’s creditors ? In the absence of any other evidence showing the character of the transaction, are we bound to presume that the conveyance was fraudulent because the intestate was indebted to the plaintiff at the time it was made? Or must we presume that it was a gift to the wife and was voidable on account of the husband’s indebtedness ? The statute does not render void a conveyance made by a man simply because he is indebted: Mateer v. Hissim, 3 Penna. R. 164. If it had been shown that the wife claimed the ownership of the land in the' lifetime of her husband or that since his death she had asserted title to it as against his creditors and heirs, then it might be inferred that the conveyance was made with the intent of defrauding the plaintiff. But in the absence of any such claim it seems to me that the presumption is that she took the title in trust for her husband ; not that she took it for the purpose of defrauding his creditors. She had notice by the service of the scire facias, that the plaintiff intended to charge the land with payment of his debt, but she'made no defence to the proceeding. She did not plead that her husband had no estate or interest in the land at the time of his death, and that it was not chargeable with the payment of his debts. She allowed judgment to be entered against her by default, and she made no objection to the sale of the land as the property of her husband, or to the acknowledgment of the sheriff’s deed. Under the circumstances, is she not estopped from denying that her husband had any estate or interest in the land ? and if so, is not the plaintiff equally estopped from denying that he died seised of the land and from averring that the conveyance to the wife was fraudulent and void as to creditors ? But -whether so or not, the burthen of showing that the intestate did not die seised of any interest in the land is on the plaintiff; and it seems to us that under all the circumstances we are bound to presume that the conveyance to the wife was made with an honest and not with a fraudulent intent; that the wife took the legal title in trust for her husband, and consequently that he had such an estate in the land as descended to his heirs and was chargeable with the payment of his debts. If so, the administrator, as already suggested, is entitled to the proceeds of sale. The plaintiff’s judgment having-been obtained since the intestate’s death, is not a lien within the meaning of the act, and therefore, by its express provisions, the money arising from the sale is payable to the administrator, upon his giving security for its legal distribution. Whether the debts of the other creditors have ceased to be liens, is not a question before us. If the administrator is entitled to the fund, the Orphans’ Court has exclusive jurisdiction of its distribution: Kittera’s Estate, 5 Harris 422 ; Whiteside v. Whiteside, 8 Id. 474. Whether therefore the plaintiff is entitled to the whole fund, or whether it is to be distributed pro rata among all the creditors, is a matter for the determination of the court having jurisdiction of the estate out of which the fund for distribution arises.

It is ordered that the decree of the Court of Common Pleas be reversed, and that the fund for distribution be paid to the appellant, as administrator of the estate of Robert Lafferty, deceased, upon his giving bond to the satisfaction of the court conditioned for the legal distribution thereof; and it is further ordered, that the costs of this appeal be paid by the appellee, the plaintiff in the execution.