text:
      Court of Common Pleas, Dauphin County,

      September 7th, 1852.
    Commonwealth ex rel. Sheesley v. Martin.
    The act of March 28th, 1806, gives no power to the directors of the poor of Dauphin county to bind a child out as an apprentice, unless he or she is chargeable upon the county. Under the act of 27th September, 1770, the mother of a minor has no power to bind her out as an apprentice when the father is living and competent to act. The court will allow a child fourteen years of age to choose his own place of residence.
   By the Court.

It appears from the evidence that Catherine Sheesley is a daughter of the plaintiff, and is about fourteen years old. The respondent claims the right to hold her in his custody by virtue of indentures entered into between himself and the directors of the poor of this county, made April 22d, 1852, by which the said Catherine was bound to serve him as an apprentice until she should attain the age of eighteen. The relator and his wife separated some two years ago; the former taking with him the most of their children, including Catherine, who was placed by her father with the respondent, under a promise that she should live with him until she attained the age of eighteen; but owing to some disagreement with a member of the respondent’s family, the relator declared .his determination to remove Catherine to another place “ for spite.” She was anxious to remain in the respondent’s family. When her father declared his intention to remove her, she, in company with her mother, went to the house of one of the directors of the poor, who resided in the neighborhood, and declared that she had no home; Avhereupon, the director made out an order for her removal to the poorhouse, and accompanied the mother and child nearly to that institution. On the following day, the director, together with the mother, the child Catherine, and the respondent Martin, met at the poorhouse. The indentures were drawn up, signed by the one director, sent to the other some miles distant, and executed by him and'carried to two magistrates in this town, who approved thereof. This whole proceeding was unknown to the relator, and appears to have been kept concealed from him until consummated. Is this a binding of Catherine ? By section 5 of the act of March 28th, 1806, establishing the poorhouse in Dauphin county, the directors of the poor are authorized “ to bind out such poor children as shall come under their notiee, or may now be bound as apprentices by the directors of the poor.” By section 8 of the act of March 9th, 1771, then in force on this subject, the overseers of the poor were authorized, “with the approbation and consent of two justices, to put out as apprentices all such poor children v/hose parents are dead, or shall by the said magistrates, justices, or managers, be found unable to maintain them.”

Section 8 of the act of June 13th, 1836, contains precisely the same provisions, excepting the omission of the word “ managers.” Under it the magistrates alone are to judge of the ability of the parents to maintain their children. The first question to be solved is the meaning of the act of 1806. We understand the expression “ come under their notice,” to mean the same as come under their cognizance or jurisdiction. Such as the law places under their charge. The word “or” w' consider should be construed “ and.” They must be such poor clnMren as the law places under their charge, and such as the law permits to be bound out by the overseers of the poor. To give this act any other construction would leave the directors of the poor without rule or guide, as the act does not pretend to declare what children shall be bound out by them, but refers to another act to find the criterion and define the power of action. The poor laws declare that they must be “such poor children whose parents are dead, or shall by the said magistrates or justices and managers be found unable to maintain them.” In the present case the parents are both living, and there is no proof of their inability to maintain their offspring. In fact, the father had made arrangements for the maintenance of this child. She was not chargeable on the county of Dauphin until improperly made so by the order of one of the directors of the poor. No two magistrates ever determined or adjudged that the parents were unable to maintain her. This we consider indispensable under the acts of Assembly. Generally a decision to that effect takes place, when two justices make an order of maintenance, after which it would require no other adjudication; but the binding must be with.the approbation of two justices. But where the person is committed to the poorhouse on the order of one of the directors, there must be the adjudication by two magistrates of the inability of the parents to maintain the child, before it can be bound out as an apprentice. This is not mere form, but grave substance, requiring the consultation and judicial action of two justices, else any man’s child might be bound out without his consent, although the parent was áble and willing to maintain it. Nor does this determination come in conflict with the provisions of the act of September 27th, 1770, in relation to apprentices, which declares that the indentures shall be good when made “with the assent of the parent, guardian, or next friend, or with the assent of the overseers of the poor and approbation of any two justices.” That is, the assent of the parents, if living, and competent to act, must be had. The assent of the mother is not valid, when the father is living (5 W. & S. 339), unless he is legally incompetent to act (1 Ash. 71), or absent and taking no charge of the child (1 S. & R. 367). The overseers can only bind when the child becomes legally chargeable (1 S. & R. 250). The assent of the overseers or parents cannot be taken indiscriminately, but it must be of the one or the other, according to the nature of the case (1 S. & B. 250). When there is no parent or guardian the overseers can act, provided the child becomes legally chargeable. In the present case the father was legally competent to act, was living in the immediate neighborhood, and although probably not a very prudent or judicious person, was exercising a superintending control over his child, and attending to her maintenance; ■therefore, we are constrained to say that the indentures produced were not executed according to law. We are also of opinion, from all the evidence, that they were obtained improperly and surreptitiously. The father had declared his intention to change the residence of his child; that was known to the master, the child, and her mother. The director of the poor is resorted to for instruction, or to devise some means to prevent the father from effecting this object. The plan of sending the child to the poorhouse is concocted. They all meet there, and the binding takes place. Now there is no pretence that the child was chargeable upon the county, nor was it determined by the justices that the parents were unable to maintain her. In fact, the justices never met, never conferred, nor made inquiry; were not even acquainted with any of the facts; but gave their assent separately and as a matter of course. The whole proceeding appears to have been a scheme to obtain what they considered a legal right to hold their child from her father. The indentures, in our opinion, are utterly null and of no effect as regards that parent, and equally so as to the minor. Either can avoid them at pleasure. It becomes our duty in the present case to declare them void as to the father, and to confer no right on the respondent to hold Catherine Sheesley. The next point to be determined is, whether the child shall be delivered up to her father on this writ? As a general rule, the father is entitled to the custody of his children; and it is frequently the duty of courts to furnish him with the means to coerce that custody. Does this case form an exception ? It seems that the father and mother have separated by mutual consent; that the father is of intemperate habits, though not an habitual drunkard; that he has no place of residence, or the means of maintaining his children under his own eye; but his object is to place this daughter under the charge of another person no more worthy of trust nor competent to maintain her than the respondent, whom the father had previously selected as a suitable person to bring up his daughter, and with whom he had agreed to leave her until she was eighteen years of age. The projected change is not because of any ill-treatment or neglect of the child by the respondent, but to gratify the ill-feeling of the father towards his own wife and the respondent’s family. The anxious wish of Catherine is to remain with the respondent, and her mother also desires it. The mother has an equal interest with the father in the welfare of this child; and in the present case, we cannot help feeling, has consulted that interest with equal judgment and more regard to the girl’s feeling; although she resorted to an improper and illegal course to secure the respondent in withholding her from her father by means of the indenture. If this was a controversy between these parents for the custody of their daughter, we should not hesitate to award her to the care of her mother, under all the circumstances; and as the mother desires her to remain with Martin, and it is the wish of the child, and as we also believe it to be for dier welfare, we decline awarding the possession to the relator as prayed, but leave the child at liberty to remain with the respondent. She is under no illegal restraint, and we do not feel ourselves bound to restrain her actions, but will permit her to exercise her own free will in returning with the respondent as she has desired. A similar case has been adjudged and determined in the same manner by the courts of Schuylkill county; and although their decision on a habeas corpus is not conclusive, yet a spirit of comity, as well as a conviction of the correctness of the decision, should induce us to leave it undisturbed. We shall make an order as to costs in the present case, except as to the writ and service thereof, which the relator is ordered to pay.

Brown, for plaintiff.

Fisher, for defendant.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      May 15th, 1854.
    The Emaus Orphan House v. Kendig’s Administrator.
    An executor or administrator can pay a debt barred by the statute of limitations, except when forbidden by a devisee or other party in interest.
    The retaining by an executor or administrator of a sum of money as security to himself against a claim, does not so far make him a trastee, in respect to the person to whom the claim was due, as to prevent the running of the statute of limitations.
   By the Court.

The release given in evidence shows that either Christian Spayd or John Cassell, or both, received the money from the Union Canal Company for the use of the plaintiff. From the statement of Kendig, executor of Spayd, we may fairly infer that he knew the whole fund came into Spayd’s hands, and that he was liable to account therefor. The release is not dated, but it was acknowledged May 27th, 1835. On September 3d, 1844, Kendig settled his account before the register, as executor of Christian Spayd, who died between June 30th and September 2d, 1841. The account was finally confirmed December 3d, 1841; and in it the accountant prays credit for the following item: “No. 78; also the unsettled claim of the present trustee of the estate of George Fry, deceased, for the amount which C. Spayd received, as alleged, after his dismissal as trustee of the Union Canal Company for damages done to said estate. $300.” This entirely established the fact that Ilendig retained in his hands three hundred dollars to cover the claim of the Emaus Orphan House against Spayd’s estate, if any should be presented. It by no means establishes the validity of that claim, as is decided in 10 Barr, 240; Rittenhouse v. Levering, 6 W. & S. 190. We do not understand that the plaintiff invokes its aid for that purpose, which it says is shown .sufficiently by the release; and this entry is used to prove that the whole sum came into the hands of Spayd, to prevent the running of the statute of limitations, and establish the personal liability of Kendig, by showing that he retained, and still held, the money for plaintiff’s use. We think that it proves the first and last positions satisfactorily. The only question in the case worthy of further examination arises under the plea of the statute of limitations, as more than six years had run before the account was stated, and a still greater period between that time and the bringing of this suit. It is very clear, that had any distributee under Spayd’s will made any objection, this money could not have been retained to meet plaintiff’s debt, which was barred at the time of stating the account; although an executor or administrator may lawfully pay a debt, which he believes to be just, even if barred by the statute, or revive the claim against the estate, when it is already barred. If this claim have legal existence, it must be against the executor personally (Fritz v. Thomas, 1 Wh. 66). There can be no pretence that Spayd was a trustee, as he received this money after his removal. No one interested in the estate of Spayd objected, or, as far as we have seen, now objects, to the retention of this money by Kendig, who kept it for the use of the plaintiff, as appears by his statement of record, provided it should appear that the money was due and owing to it. From the moment of such retention the defendant became liable to the plaintiff for this money, in his individual capacity, if the same was due; and the right of action immediately accrued. As the plaintiff could have sustained a civil suit at once on the defendant’s receiving the money, the limitation of time began to run at once from that period, and the claim is barred, unless some other matter exists to take the case out of the influence of the statute. It is averred that the defendant holds the money as a trustee for the plaintiff; and even if this is not such a trust as comes within the saving of the act, yet notice must be given to the plaintiff of the receipt of the money for its use, before the time begins to run. This is not that kind of a direct continuing trust which comes precisely within the jurisdiction of a Court of Chancery; but is the ordinary case of one man receiving money for another’s use, which is cognizable in a court of law. It is that kind of an every-day transaction which occurs constantly in society, and no more comes' within the jurisdiction of chancery than any common action of assumpsit, or an ordinary case of bailment (7 John. Ch. 110; 1 W. & S. 118; 1 Spin. S. C. Eq. Rep. 375). In reality it is not as strong a case for the plaintiff as that of a person receiving money wrongfully for the use of another, as here the money was received by the deceased without authority, and in apparent hostility to the plaintiff, and was retained by the defendant, not to benefit him, but for his own protection. There is no express trust, but one is raised by implication. Against such a claim the statute always ran (Angelí on Limitations, 173). The trust being out of the question, the other point is fairly presented; that the plaintiff had no notice that the defendant had received this money. From aught that appears in the case, the trustees of this institution knew as well the day after the account was confirmed that this money was retained by the defendant, as they did the day before the suit was brought. The release was on record, and showed in June, 1835, that Spayd had the money. The account was filed of record in 1844, and proved that the defendant had retained it. There is no evidence of any fraud or concealment. Nor has the plaintiff showed when or how the fact come to his knowledge. It is entirely unlike the case of an agent or attorney, whose duty it is to notify his principal or client that a debt has been collected. Especial trust and confidence is reposed there; none exists here. No connection is shown between the parties, except that raised by legal implication, which gives an action by one party against another, who has money in his hands which in equo et bono should be paid over. We consider this claim barred by the statute of limitations. We therefore enter judgment on the verdict in favor of the defendant.

McCormich and Brown, for plaintiff.

Detwiler and Roberts, for defendant.


author: By the Coukt.

text:
      Court of Common Pleas, Dauphin County,

      May 20th, 1853.
    Kunkel v. Snoddy. Landis v. Snoddy.
    A justice of tlie peace cannot alter his docket after giving judgment. If a judgment is void, as for want of jurisdiction, it is bad as to all the world, and may be set aside on the motion of any one interested; if it is merely irregular, it can only be set aside on the application of one of the parties.
   By the Coukt.

Motions have been made in these cases by subsequent judgment creditors to set aside the judgments and executions issued thereon, on the ground of 'want of jurisdiction in the justice of the peace before whom they were entered; the amount in each case exceeding one hundred dollars, and the transcript on file not showing that both parties appeared before the justice at the time of confession. The plaintiffs have also obtained rules on the justice to return a more perfect copy of his record in each case. We have for answer to those rules, not a full return of an existing record, but an alteration of his docket made by the justice, as he imagines, according to the mandate of the court. Such alteration is unauthorized, and must be treated as a nullity. We can give no sanction to such proceedings. If it is competent to show that, in point of fact, both parties voluntarily appeared before the justice, when the judgments were respectively confessed, that must be done by proof, not by altering the record. Whether such evidence is or is not competent, we do not now decide. If the justice had not jurisdiction in this case his judgments are nullities, and may be treated as such by the present applicant and all the world. If only irregular or defective, they may be avoided by the defendant, but no other person has a right to interfere with them, either by a motion to strike off the transcripts, or by suing out a certiorari to the justice, or writ of error to this court. If any principle may be treated as settled in Pennsylvania, it is that no person but the party to a judgment can take advantage of irregularity in its entry. The point was variously decided for some time according to the supposed hardship of the case, but of late the principle has not been questioned. Actual fraud in the concoction of a judgment, or want of jurisdiction in the court can be taken advantage of by third persons, whose interests are affected, by questioning its validity collaterally in the first case, and, treating it as a nullity in the second. It is also said that writs of fi. fa. issued on these judgments without an execution and return of nulla bona before the justice. That is at most an irregularity, which the defendant could waive, and of which others cannot complain. The motions to strike off the judgments and set aside the executions are refused in both cases, without prejudice to those making them, who can, if they see proper, take other and legal courses to contest the right to the money raised from the defendant’s property if sold, or to sell the same and claim the proceeds if it remains in his hands undisposed of.

Carson, for plaintiff.

Brown, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      February 13th, 1854.
    In the matter of Abraham Martin’s Estate.
    Money arising from the sale of the estate of the principal debtor should be paid to the creditor in discharge of the surety rather than to the latter himself- The creditor is entitled to all the securities given by the principal debtor to his surety.
   By the Court.

The report of the auditor shows that Abraham Martin owed Peter Myers a debt of five hundred dollars. John Martin became his security for its payment by signing a joint and several bond March 31st, 1843. Abraham Martin paid the. interest due on the obligation down to April 10th, 1851. On March 30th, 1853, Abraham Martin, being in failing circumstances, gave his brother, John Martin, a bond for $560, the amount of debt and interest- due Myers, on which was entered judgment (151, January Term, 1853).

We are perfectly satisfied that the bond was for the purpose of indemnity, both from the evidence of Mr. Seiler, who is disinterested, and from that of Abner Crull. The administrator of John Martin now claims the money which was raised by the sale of Abraham Martin’s property. The administrator of Peter Myers also claims it. There is no pretence that John Martin ever paid the debt for which he was surety to Myers. The consequence of permitting Martin’s administrator to take this money is that it goes into a course of administration and general distribution among his creditors, by which the debt of Myers may remain unpaid, and consequently Abraham Martin left liable for its payment. This would be manifestly unjust towards him. The court must take care that the debt due by the principal is fully discharged before suffering a surety to take the money out of court on a mere judgment of indemnity. How then is justice to be done between all these parties? The answer is obvious: by directing the money to be paid to Myers, the original creditor. Thus John Martin is indemnified and saved harmless, and Abraham Martin’s debt is discharged. Besides it is a well-settled principle that the creditor is entitled to all the securities given by the principal debtor to his surety, as well as those which have been given by the debtor himself to his principal (11 Ves. 22; 4 John Ch. 530; Idem, 130; 8 W. & S. 298; Idem, 305; 9 Barr, 366). Independent then of our duty to see that the money in court shall be so distributed that no injustice shall be done to any one, the administrator of Myers is entitled to the fund according to the above stated principle, leaving out of view the promise or declaration of John Martin as proved by Crull. Abraham Martin is not a competent witness, being directly interested to have this fund applied in payment of his debt, but the facts are clearly proved by the other witnesses and the papers without his testimony. Therefore, it is ordered that the money be paid over to the administrator of Peter Myers in discharge of the bond of Abraham and John Martin.


author: By ti-ie Court.

text:
      Court of Common Pleas, Dauphin County,

      December 9th, 1853.
    Elliott v. Brinzer.
    The laws granting stays of execution were only intended for the benefit of the debtor, not of his judgment creditor. The violation of an agreement to give a stay of execution by a creditor is not such a fraud upon other judgment creditors as will entitle them to have the execution set aside. The court will not direct an issue to try facts, unless they shall be such as appear to the judge to require one.
   By ti-ie Court.

This case came before the court originally on an application by the defendant to set aside the execution, open the judgment, and let him in to a defence; and could the averments contained in his affidavit have been sustained by proof, there would have been ample ground to set aside the execution and order a stay for one year, as agreed upon by the parties at the time of making the contract. But, unfortunately for the applicant, there was not a tittle of evidence to show the agreement for a stay, except his own affidavit; consequently, it was rejected. Abram C. Brinzer, a judgment creditor, now applies for an issue to establish, “ that the judgment was fraudulently obtained from the defendant and collusive as to creditors,” and relies on the affidavit of the defendant, on file in the former application, to establish the fraud and collusion. Does it prove it? As we understand the case, it shows that the property was purchased under a promise that there should be a stay of execution for one year. There is no pretence that the goods did not come to the hands of the defendant; nor is it shown that there was any con-r trivance between plaintiff and defendant to defraud the creditors of the latter, but merely that a promised stay was not granted. We consider that it is clearly established on principle and authority, in Pennsylvania, that the stay of execution was intended for the benefit of the debtor, not for his other creditors; that the defendant in the execution above can take advantage of the agreement for a stay; and that an execution issued in violation of such restraint is not such a fraud upon creditors as is contemplated by law to justify or require the execution to be set aside (13 S. & R. 199; 1 Watts, 135; 8 W. & S. 389). The kind of case in which a creditor can be heard is, where there is collusion between his debtor and a third person to practice a fraud to his injury by entering a judgment, or issuing an execution, where there is no debt due. This is not that kind of case. There is no fraud intended against creditors; nor collusive judgments; but a bare violation of an agreement on the part of the creditor in ordering out an execution, when he had promised a stay for one year. The creditor cannot complain and has no right to be heard. By section 87 of the act of June 16th, 1836, the court was required to direct an issue in cases like this, on the application in writing of any person interested in the money to be distributed. But that is now changed by section 2d of the act of April 20th, 1846, which requires that the act shall be verified by affidavit, and shall appear to the court to be of such a character as to require an issue. In the present case, if all the facts averred were established by the clearest evidence, we do not consider that the creditor could be relieved; therefore, we refuse to grant an issue.

Fox, for plaintiff.

Mumma,for defendant.


text:
      Court of Common Pleas, Dauphin County,

      January 16th, 1854.
    The Commissioners of Dauphin County v. Banks.
    Taxes upon public officers must be assessed at their places of residence, not . where they perform the duties of their offices. A tax laid upon money at interest, the profits of a trade or occupation, or personal property, is payable at the owner’s domicile, not where the money is at interest, the trade or occupation is carried on, or the personal property is. Domicile is a question of fact dependent on all the circumstances of the case. The question of domicile may be often determined by the place where the person exercises the right of suffrage.
   By the Court.

Ephraim Banks was auditor-general of the State of Pennsylvania, and resided in Lewistown, Mifflin county, Penna. The controversy in this case, although in form between the above-stated parties, is in substance between the counties of Dauphin and Mifflin, and the boroughs of Harrisburg and Lewis-town, as to the other taxes imposed upon this office, except that coming to the State, which must be paid in any event. The case stated raises two questions. Must the tax on an office be imposed at the place where it is required by law to be exercised, or at the place where the officer resides ? And, secondly, where is the residence of the defendant ? It is very certain that the official duties of the auditor-general can be performed at no other place than at the seat of government. There he must keep his office; but in our opinion that alone will not designate the place of taxation. By our whole system of jurisprudence real estate is to be taxed at the place of its location; personal property, including all offices and posts of profit, professions, trades and occupations, together with money at interest, at the residence of the owner or person to be taxed. The 2d section of the act of 1834 requires the county commissioners to issue their precepts to the assessors of the respectivo townships, wards, and districts, requiring them to make and return a list of the names of all the taxable persons residing ■within their wards, townships, and districts respectively, and of all property taxable by law, together with a just valuation of the same. The 6th section of the act of May 15th, 1841, contains a provision almost identical, which is made the basis of the triennial assessment; for upon that list being returned, the commissioners are required to issue their precepts to the assessors and their assistants in the respective wards, townships, and districts, requiring them to assess all real property situated therein, certain personal property designated, and all offices and posts of profit, professions, trades, occupations, etc.

Thus far it appears very clearly that the assessments of all personal property, trades, and occupations must be made at the place of residence of the party proposed to be taxed. The 32d section of the act of April 29th, 1844, which points out theobject of taxation for State purposes, makes no change in this particular that we can perceive. It does not declare where or how the assessment shall be made, but merely designates the object of taxation; and such is also the substance of all the laws on the subject. We cannot believe that the laws contemplate the assessment of an individual in one township for his occupation, because it is there carried on; for his office in another, because it is there exercised; for his money at interest in a third, because it is there payable; and for his personal property in a fourth, because it is there situated; but on ascertaining his residence, that is the place of taxation. There might possibly be cases where the situs of personal property would fix the place of taxation; as where the owner resides at a distance or out of the State; but the exercise of an office, profession, trade, or occupation is so purely and entirely personal in its character, that a tax cannot be imposed on account of either, except where the party to be taxed resides. There might possibly be cases where a man performs the duties of an office at Harrisburg, pursues the occupation of an iron-master in Perry county, has large sums of money at interest in Northumberland, and resides in Cumberland county. In such a case the law does not contemplate an assessment for taxes on each object in the several counties respectively, but that he shall be taxed for all at the place of residence. To the State treasurer it is a matter of indifference where the taxes are imposed, and if the counties lose in one instance, they are presumed to gain in another. We may further add, that in nearly every State in the Union it has been decided that a personal tax must be assessed in the place of residence, where the pariy to be taxed is domiciled at the time of the assessment. Residence, domicile, and place of abode, when applied to taxation, right of suffrage, and some other cases, have been always held to be synonymous terms. It is well settled that for such purposes, and for the succession of personal property, a.man can have but one residence or domicile at the same time. Before taking upon himself the duties of the office proposed to be taxed, Mr. Banks resided at Lewis-town, in his own house; he never removed his family, which continues to reside in the same.place; he himself boarded at a hotel in this town, and visited them occasionally. He has never exercised nor offered to exercise the right of suffrage here. Domicile or residence is a question of fact depending on no single circumstance, but upon all taken in connection. We cannot doubt in the present case, from the circumstances declared in the ease stated, that the continuance of the defendant here is temporary; that he always possessed the animus revertendi; did not intend to forsake his house or family, and consequently Lewistown continued to be his place of residence. It is very true that, in many cases, the domicile of the husband will draw to it that of the wife, when he notoriously removed from his former residence, and settled elsewhere. But when a man leaves his wife, family, and home, without any intention of separating from them, but evidences his design to return by all his acts, their continued residence would still be presumed to be his domicile. Had Mr. Banks exercised the right of suffrage here, it would have been a strong circumstance to show that this was his place of residence; in fact, he would probably have been estopped from denying it, as the Constitution requires a residence of ten days in the district immediately pending election at which he offers to vote, and a person has no right, under any circumstance, to vote in any district except where he is resident at the time, and has resided for ten days next preceding. But it is conceded that the defendant made no attempt or offer to exercise this privilege. From all the facts conceded, we are of opinion that Mr. Banks did not change his domicile, but the same continued, and still continues unaltered. That the State and county tax on account of this office are properly assessed at his place of residence in Lewistown. Therefore, we give judgment in favor of the defendant in the case stated.....


text:
      Court of Common Pleas, Dauphin County,

      April 7th, 1853.
    The Distribution of the Money from the Sale of the Real Estate of McGee and Martin.
    When upon the dissolution of a firm, one of the partners assumes a particular debt, he is bound to pay it. If another partner discharges it, he is entitled to be subrogated to the claims of the creditor against the one who assumed it.
   By the Court.

The judgment in favor of the Middletown Bank is a lien on the real estate of both debtors, and the bank could claim its money from either. The only question arising on the auditor’s report is between McGee and Martin, and their creditors, which should pay it. If this was the proper debt of McGee, and Martin stood in the light of a surety, and the latter was obliged to pay the debt, he would be entitled to subrogation. This equity is still more readily enforced in the present case, where the money is raised and in court for distribution. The evidence of McGee shows that this money was originally borrowed by himself and Reed; for although he states that it went into the business in which Martin was a partner, yet the latter was in no wise bound for it to any one, and the same could have been claimed by McGee as an advancement of cash out of his own pocket. The note was renewed from time to time for several years, before the name of Martin appeared on it. Down to that time it was the debt of McGee. When the settlement took place between the members of the firm, it was agreed that McGee should pay this debt; he took it upon himself, and from that time, as between him and Martin, the latter was discharged from its obligations. We cannot doubt from the whole evidence but that the money for which this debt Avas contracted was always treated as belonging to McGee, and by him put into the partnership as his stock, and drawn out again on the settlement, or at previous times, when funds came into his hands. If it had even been the original debt of the firm, but on a settlement of the business had been assumed by McGee, from that moment the latter would be the responsible party in equity. When a partnership is dissolved, and on final settlement one of the partners agrees for value to pay the debts, if another is obliged to make payments, he is entitled to subrogation. It is true that before this is ordered, it must appear that the accounts have been settled; but for the present case that sufficiently appears, as McGee testified that they were settled, so far as regards this claim, and, as I would infer, as to all things, unless it may be as to some stock spoken of, and even as to that he appears indefinite. Therefore, we consider that both on the grounds of the original creation of this debt and the subsequent arrangements for its payment, equity requires that it should be discharged by McGee. The auditor has taken a correct vieAV of the laAV and the facts in his report. It is ordered that the report of distribution of the moneys arising from the sale of James Martin’s property be confirmed. That the debt due to the Middletown Bank be paid out of the money raised from the sale of Rody McGee’s property, if the same has not already been paid, and the balance applied to the judgment of James Freeland, as reported by the auditor.


text:
      Court of Common Pleas, Dauphin County,

      July 3d, 1856.
    Short Mountain Coal Company v. Boas et al.
    Tho absence of a party in attending the sessions of Congress or the State legislature is a good cause for continuing a case; but that of counsel is not, and the court will enter a nonsuit.
   By the Court.

In this case a motion was made for a continuance at January Term, 1856. The cause was immediately placed by the defendant on the trial list for an adjourned court in March, 1856. During both of these terms Mr. Tyson, president of the coal company, was absent at Washington, attending to his duties as a member of Congress. At the last-mentioned term the court refused to continue the cause, and the plaintiff’s counsel was obliged to suffer a nonsuit. An application has been made to take it off, on the ground that Mr. Tyson was necessarily absent, both on account of his public duties, and because he was too much indisposed to attend with safety; the latter fact is testified to both by himself and his attending physician. We have been compelled, from a sense of duty to suitors in our courts, to decide and inflexibly adhere to the rule, that absence of counsel in attendance on Congress or the State legislature, is no reason for continuing a case. Without such a rule one-half of the cases pending would, be postponed during the winter months, when our courts are generally held, as it very often happens that some prominent member of the bar is engaged in the councils of the State or nation, and it is the duty of the parties in such cases to employ other counsel. The rule is otherwise in regard to parties. If the party to a suit is absent in such public capacity, and therefore has been unable to prepare his case, or his personal attendance is necessary at the trial, and cannot be obtained consistently with his public duties, it is a good cause for a continuance. In which capacity Mr. Tyson stood is a little difficult to determine from the affidavits. He was president of the company, and the only person acquainted with the title. He had sold the land to the company, whether with or without warranty does not appear. Had it been established that he was a party in interest, having sole charge of the case in that capacity, we would have continued the cause. If he were merely acting as counsel, it was properly refused. When the court forces a case to a nonsuit, as a means of compelling promptness of action in preparing, it is rarely intended to subject the party to an entiie loss of his claim, but merely to the costs of the suit; and we find the distinction frequently taken between cases where the statute will or will not operate as a bar (1 Penna. Practice, 526; Idem, 539, note (a)). Numerous other authorities might be cited to the same effect. It does not clearly appear in which capacity Mr. Tyson acted, or whether the statute will or will not bar the plaintiff’s claim; but we deem it our duty to take such a course as will be least likely to do injustice. If the statute will deprive the plaintiff of its rights, it is not our wish to turn it out of court, as our intention is to place the parties in the same situation as if a new suit were now brought, which can be effected by taking off the nonsuit on terms. Therefore, it is ordered that the nonsuit in this case be taken off, on condition that the plaintiff pays all the costs of the suit, and of all the collateral proceedings depending thereon, down to the present time, to be taxed in every particular as though this nonsuit had not been taken off. Neither the costs of suit, nor of the writs of estrepement, are at any time, or in any form of action, to be recovered by the plaintiff.

MeCormiek and Aldrichs, for plaintiff.

Lamberton and Fisher, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1854.
    Poffenberger v. The Susquehanna Railroad Company.
    Assessors, appointed under the act of February 19th, 1849, to assess damages to property caused by the building of a railroad, must find the value of the land taken. A report containing a lumping charge of all the injury done will be set aside. The court will not refer a report back to viewers for correction when their previous one seemed partial.
   By the Court.

The only point on which we consider it necessary to express an opinion in deciding the legal question in this case is presented in the fourth exception, and arises under the eleventh section of the act of February 19th, 1849, Regulating railroad companies,” which provides for the appointment of viewers to assess damages when the owner and the company cannot agree upon the amount thereof; and the viewers so appointed are required to view the premises and estimate and determine the quantity and value of the land so taken or occupied, or to be so taken or occupied, or the materials used or taken away; and after making just allowance for the advantages which may have resulted, or which may seem likely to result to such owner, in consequence of the making or opening of said railroad, and also considering the disadvantages, estimate and determine, whether any damages, and if any, what amount shall be paid by said company. It is complained that the viewers, in assessing damages, have omitted to determine tire value of the land as required by law, but have lumped it with many other alleged injuries, throwing all together into one general sum, and in this particular have violated the provisions of the act. The report shows very clearly the quantity and quality of the land taken, but nowhere states its value; but determines that the owner has or may sustain injury by reason of the construction of the railroad through his premises, for materials taken and used, for fencing, for damages done to the growing grass, crops, fences, gardens, fruit trees, and timber; and also the liability for future damages by fire to fences, crops, and buildings ; and estimates his damages from all these causes at $1400. The report does not very clearly show that any amount whatever was allowed for the land, or that it was of any value; but we cannot help believing, from the whole tenor of the instrument, that it was esteemed valuable, and was thrown in with the many other articles to swell the damages to $1400. It is impossible to collect from the writing the value of the land; it is included in the damages, present and presumptive, done to the growing crops, likely to inure to the buildings from fire, and the fencing of the fields. Independent of the depositions, the question is fairly presented on the face of the report, that the value of the land and all the other damages were consolidated so as to render it impossible to ascertain the amount allowed for either. In Reitenburgh v. The Chester Valley Railroad Company (9 H. 100), it is declared to be essential for the viewers to state the value as well as the quantity and quality of the land taken. But we are told that this is a mere dictum of the judge who delivered the opinion, and is not the point of the cause. It is one of tl^e errors assigned to the report, on which the Supreme Court is required by law to give an opinion, and in that sense is more than a mere dictum. It is also most emphatically a dictum of the act of Assembly. In the Ohio and Pennsylvania Railroad v. Wallace (2 H. 245), we find a similar opinion from the Supreme Court, expressed on an act of Assembly worded almost precisely like the one under consideration. Judge Rogers there declares that the act is not directory merely, but is as mandatory as the legislature can make it. That the object is to put an end to lumping estimates of compensation, by requiring the viewers to report to the court the means by which they arrived at their conclusions. This is both for the .purpose of showing at an after time what was passed upon, and also the better to enable the court, having a supervisory power over their appraisement, to determine whether injustice has been done by their award. These two decisions we consider rule the present case. They determine this report to be invalid. It has been strongly urged that the form adopted here is that which has been pursued in all other cases under the various laws enacted from time to time; and that those laws are all worded in substance like the one under consideration. We have not examined the numerous reports for damages done by the Pennsylvania Canal, which are said to be in the form now pursued; but when we turn to those laws we find the provisions essentially different. It is true that the act of February 25th, 1826, required the jury, selected by a justice of the peace, to be sworn to justly and impartially value the land and all damages the owner might have sustained, etc.; but it did not require that such value should be reported to the court, but the entire damages are to be returned, although they are directed to report the quantity of land and the duration of the estate therein. This act was soon superseded by that of April 9th, 1827, Avhich neither directed the value or description of the premises to be inserted, but required the viewers to take into consideration the advantages and disadvantages of the canal to the petitioner, and report the damages, if any. This law continued in force until 1830, and under its provisions a large number of assessments were made throughout the State. From the time of its repeal the damages have been determined by the canal board, with an appeal to certain appraisers appointed by the governor. No argument can be fairly draAvn from the practice under those laws. In Heister v. The Railroad Company, the land was valued in the report, and returned as a separate item; and such was the form generally pursued, so far as we have been able to ascertain, in .the cases against the Pennsylvania Railroad Company. Therefore we consider that there is nothing in precedent or principle Ayhich will justify us in permitting viewers to depart from the plain mandate of the act of Assembly. We are also bound by the decisions of the Supreme Court already referred to; and think it highly important that viewers should, in every case, report the damages in detail, so as to shoAV at all times to come Avhat they had passed on, and also thus the better to enable the court to judge of the legality and correctness of their decisions. A question of great nloment has been mooted in the argument of this cause. Does the act of 1849 authorize the vieAvers to assess consequential damages, or are they confined to the value of the land and materials ? The point is not by any means clear of difficulty, and, as it has not been fully argued, Ave forbear to give an opinion upon it, as the point already referred to is decisive of the. case. In coming to the conclusion to which Ave have been driven, the depositions have been left out of view, though we have no doubt that they are competent evidence. Since the argument of the cause the petitioner’s counsel have requested us to refer the report back to the same vieAvers for amendment. This we have power to do in a suitable case; but we have great doubt as to the correctness of the jurors’ conclusion in regard to the damages. Four hundred dollars appears to be a very high price for rather less than two acres of land, not taken out of the body of a farm, but alongside of a public road, especially as all the damages and inconvenience to which the OAvner is subject are otherwise compensated by an. allowance in the report. One hundred and seventy-five dollars appears high for making or rather removing eighty-seven pieces of fence. At present the owner of the land has to keep up his fence alongside the turnpike and railroad; the same fence will protect Mr. Poffenberger’s land that did before, as there is no vacant ground between the turnpike and railroad. No allowance appears to have been made for the benefits conferred by this road, the construction of which, we cannot help believing, will greatly enhance the value of the property. For these reasons we decline referring the report to the viewers for amendment. It is ordered by the court that-the report of the viewers be set aside on the fourth exception filed.

Fisher, for plaintiff.

Fhmhel,for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 13th, 1854.
    Patten v. The Susquehanna Railroad Company.
    The court lias power to set aside the report of viewers to assess the damages caused by the building of a railroad, when the sum allowed was exorbitant; but this error must be clearly made out. The State has the right to take the-property of individuals, or may commit to others that power, but they must make compensation for the property so taken. In assessing the damages caused by the building of a railroad, the inquest is only to take into consideration those that will result from the ordinary use of the road, not those arising from unskilfulness, carelessness, or wantonness on the part of the company or its agents. A juror upon an inquest may be examined to show the grounds upon which they made their report; all the jurors need not be called. Parol testimony may be received to explain a report of viewers. In assessing damages, the jurors should not consider probable future legislation. Viewers may be appointed to assess damages before the actual building of a railroad, as soon as any entrance is made, or damage, however slight, is done to a person’s property. A man seized of real estate in right of his wife is not a freeholder, and cannot be a viewer to assess damages caused by the building of a railroad; this objection should be made before the viewers reported, if known at that time.
   By the Court.

Although numerous exceptions have been filed to the report of the inquest in the present case, only five have been relied on in the argument. We shall treat of these in the order in which they arise.

1st. Complaint is made that the sum awarded is excessive, and exceeds the amount of damages sustained, or likely to be sustained from the construction and use of the road. We are told in reply that this court has no authority to set aside the award on that account. It must be conceded, that some of the decisions seem to countenance the idea that no such power is by law vested in the courts, and that the question is exclusively for the jury, without control. We consider that the weight of authority is to the contrary, particularly Railroad Company v. Hiester et al. (8 Barr, 445); where all the prior decisions are reviewed. Why require the confirmation of the court, if it has no power to reverse the action of the viewers ? The language of the act is, “If any damage be awarded, and the report be confirmed by the said court, judgment shall be entered thereon.” This was certainly not intended as a mere form, but is a matter of grave substance; and the court has the power, and it is its imperative duty, to refuse confirmation in every case where the viewers have decided illegally, acted on improper principles, or committed a clear mistake, by allowing too much or too little damages. To justify the court in setting aside a report on account of an error in the amount of damages, the case must be clearly made out. The inquest has had the advantage of a view, which the court has not, and is the tribunal fixed by law to ascertain the damages. It must, therefore, be a clear ease to justify the intervention of the court. We have no evidence here of such gross error as would, on account of the amount of damages alone, authorize us to refuse confirmation. From the form of the report it is difficult to ascertain from what data the award was made out; but the evidence of one of the viewers shows, that they gave for one acre one hundred and fifty-two perches the sum of $2550. If the value of the property was not enhanced by the railroad, this appears to be a most extraordinary price to fix on land, embracing no buildings of any kind; and rf it derives its value from that source, nothing whatever should have been given, as the residue retained by the petitioner must have been increased in equal proportion. We have no evidence before us of the previous value of this property, except the assessment, in which the whole fifty acres, including all the buildings, is valued at $12,000. The true question for the viewers in every case is, What was the property worth before the railroad was projected or contemplated, and what is it worth now? The sum of $1500 is allowed for removing a bark shed, or rendering it fire-proof, and $4125 for the risk to the tannery from fire. The inquest received evidence to show that the additional charge for insurance of $16,000 on the establishment would be 1J per cent., on account of the increased risk, and computed the amount of interest on a sum of money sufficient to pay for, and keep up that insurance, without making any allowance in the computation for the return of the money in case of loss by fire, and payment of the insurance; whereas, in such an event, the payment of the annual premium would cease. In that case the money should have been refunded to the railroad company, and as the viewers probably could not have so awarded, a smaller sum should have been taken as the data. In that part of the report there is manifest error.

2d. It is complained that the viewers allowed for the probable injury to the property from the carelessness, negligence, and wilfulness of the railroad company and its employees, in conducting their business thereon. This is an important question to both parties. If a railroad company is to be exonerated from all future liability for damages done on the premises of an individual, through the negligence, unskilfulness, or wilfulness of its agents and employees, it is well calculated to enhance the damages, and might, in the opinion of the viewers, make them responsible for a much larger sum in the assessment than would be charged for the bare use of the road, with the risks necessarily attendant on the mode of user by locomotives, where reasonable care and skill were exercised, accompanied with the best appliances and machinery to guard against fires. The knowledge that no future liability exists is well calculated to produce carelessness and recklessness. If the company is not to pay for it, the risk to property is greatly increased, and a corresponding allowance should be made by the viewers. If the law is otherwise, it should be so understood when the damages are assessed. The commonwealth has the entire control of the property of every citizen, and must judge of the propriety and necessity of talcing it for public use; the only constitutional security is that an equivalent shall be paid. The State, through its legislative councils, must judge when it is for the interest of the whole community to commit the improvement of the country to the care of others, and can confide to such others the same right of taking the property of the citizen for the public good that is vested in it by the Constitution, taking care to secure just compensation therefor; and in the case of corporations, requiring the compensation to be made, or adequate security given, before the property be taken. It is clearly settled in Pennsylvania, by a series of cases too numerous and well considered to be now shaken, that a company, to which is confided the construction of a public work, is not responsible for consequential damages further than is provided for in the act of incorporation. 6 Barr, 379; 8 W. & S. 85; 6 W. & S. 101. A distinction is clearly established, under the Constitution, between talcing property and the mere user, or putting the holder to inconvenience. 4 H. 192; 6 Wh. 25; 6 W. & S. 101. The law incorporating this company refers to the general act of Assembly for the assessment of railroad damages; by which it is provided that the viewers shall estimate the quantity, quality, and value of the lands taken away; and shall consider all the advantages and disadvantages which have resulted, or which may seem likely to result, to the owner of the land from the making and opening of the road, and allow him his damages, if any. It has been already decided that, under an act worded substantially like the present, the viewers must take into consideration the damages or inconvenience likely to result to the owner of the land from the use of locomotives on the road and consequent danger of fire from sparks, and that it will be presumed that they have made an allowance for such risk. There is no doubt that such is their duty in the present ease. It is contended that they have gone farther, and allowed damages for all possible injury, whether arising from the ordinary and proper use of the railroad by locomotive engines, or carelessness, negligence, want of skill, or wilfulness, on the part of the com- , pany or its agents. The position is assumed by the petitioner’s counsel, that if such allowance was made, it Avas right and proper except as to wilfulness ; and to sustain that principle they have referred to the Railroad Company v. Yeizer, 8 Barr, 366; Mifflin et al. v. The Railroad Company, 4 H. 182; Railroad Company v. Skinner, 7 H. 298. After the most attentiAre consideration of all these cases, we are of the opinión that they contain no such principle. The first-named case decides no more than is conceded by the present company, — that it is responsible for the damage likely to result from the ordinary use of the road; and Judge Rogers says in terms: “ That the company is not to be mulcted in damages, unless on proof of negligence on its own part or that of its officers.” The assessment by the viewers was not held in that case to cover more than the damages from the ordinary use of the road; and the plaintiff was defeated in his action, not because he had already received compensation for his injuries arising from negligence, but because there was no proof Avhatever of any carelessness on the part of the defendant or its agents. The point does not arise in 4 Harris; and in the case in 7 Harris, Judge Gibson declares that the irresponsibility of a railway company for all but negligence or wanton injury is a necessity of its creation. It is true that this court said in Forster v. The Bridge Company: that after the assessment of damages, the company is not answerable for any further injury even when caused by negl-i- . gence.” But this Avas stated in the hurry of a jury trial, and was supposed to folloAV the case of The Railroad Company v. Yeizer; it Avas not the point of the case, and was entirely unimportant. The opinion I unhesitatingly retract, as not founded on authority or any sound legal principle. Negligence, carelessness, AArant of skill or wantonness are neither to be presumed nor anticipated, and therefore should not be taken into consideration by vieAvers in assessing the damages done by a railroad to the freehold. If it formed any part of .the assessment in the present case, it is an error fatal to the report. The inquest have not stated for what the damages Avere assessed, except that it “ includes future probable damages by fire from locomotive engines,” and leaves the question of carelessness, or the absence of it unexplained. To show what was included, the deposition of one of the viewers has been read; which proves that the petitioners contended that the viewers should take into consideration all future injury to the property from carelessness or otherwise; and that they did so understand the law, and considered that after the damages were paid, nothing more could be recovered. He states most distinctly that the risk which we took into consideration Avas without distinction between negligence and other causes.” That they did not include a wilful, designed, and malicious burning of the property by the use of locomotives, but allowed damages for carelessness and negligence.” Under this evidence, as we understand it, the viewers did not include that kind of damages for which the man committing the act might be indicted for arson or malicious mischief, but every act arising from carelessness, howeA^er gross. If such were the rule of law, the damages ought to be greatly increased above ordinary cases. The party using the road, knowing that in no event could there be any responsibility, would naturally become utterly reckless, and the damage Avould consequently be greatly increased; an interpretation of the statute which would be fraught with injury and danger to society. If this viewer’s evidence is correct, and there is nothing to contradict it, the jury acted on erroneous principles, and allowed for damages for Avhicli the company will be hereafter responsible notwithstanding the finding, should the event occur, which would be manifestly unjust. From the sum awarded we have no doubt that the viewers did act on the principles stated, as it is the doctrine now contended for by the counsel. It has, hoAveAmr, been assumed that the court cannot look into this deposition. 1st. Because the Avitness is a juror and incapable of impeaching his verdict. 2d. That no depositions can be received according to adjudicated cases. 3d. Because only one viewer was examined, and the others may have acted on different principles. There is no rule better settled than that a juror is not competent to prove his own misconduct. 4 Binn. 150; 5 N. 61. But he has been permitted to prove that another juror told him that the plaintiff had satisfactorily explained an item of his account. 7 S. & N. 458. He may prove that they did not read papers handed to them, 5 Pick. 296, or that a mistake was made in entering their verdict. 15 John. 309. He maybe examined to shoAV the principle on which they found. 5 Cowen, 106; 6 N. H. 356. These were cases tried in court, Avliere the jury acted under legal instructions. It is certainly more important, Avhere they have to determine both the law and the facts, that the court should be informed of the principles on which they acted, and what was included or rejected. Hence the members of a sheriff’s inquest are frequently examined to show what claims Avere laid before them, or how they determined the value of property. Arbitrators have often been examined with the view of setting aside or sustaining their award; and in a recent case an arbitrator was permitted and required to prove the grounds on which he acted, and what transpired on the trial. 9 Barr, 254. This view more nearly resembles the action of a board of arbitrators or road viewers, than that of a jury. It has certainly been customary to examine road viewers and viewers of damages in road cases. In The Railroad Company v. Hiester (9 Barr, 451), 5 Wh. 485, and other cases, some of the viewers were examined. A notary public was permitted to contradict his certificate, 10 S. & R. 377; and required to do it, 12 S. & R. 284. Therefore we are not aware of any principle or authority, which would require us, in a case like the present, to exclude the only source of correct information. And although it may be considered contrary to legal policy to permit a juror to prove his own misconduct, yet here nothing of that kind is alleged; it is only said that the viewers mistook the law, which is frequently done by the courts, both inferior and superior. 1st. The Supreme Court refused to look into depositions to ascertain the facts. 5 Wh. 482. But they did not say in that or in any other case that we are aware of, that the court, which is required by law to examine into the merits of a report, and confirm or set it aside, could not do so. Should that be decided, the confirmation of reports will be an idle form. The Supreme Court refused to look into the evidence given before the viewers, because it was no part of the record, and had been improperly attached thereto, 7 H. 363; nor would we consider it, unless for the mere purpose of seeing whether illegal evidence had been received to influence the viewers, which would more properly be established by proving aliunde what they had received. 2d. We do not consider that the railroad company is required to call all of the viewers to prove the principle on which they acted. Where a matter of that kind is publicly discussed and concurred in generally, any one may prove it; if the petitioner is dissatisfied with the evidence, he can produce the other viewers. We had some doubt as to whether parol evidence could be received to explain the report; but as that exception was not taken, it is unnecessary to decide it. On consideration, we think there is no difficulty on that score, as it does not contradict it; and the present application is unlike an attempt to set it aside in another proceeding. The question goes directly to its validity before confirmation. 3d. It is further objected that the inquest made an allowance for fencing and keeping up the fences, when the company may be called upon hereafter to construct fences along the whole line. That it is sufficiently answered that there is nothing in the present law requiring it, and the viewers have no right to anticipate future legislation. We have no evidence that such an item was included; but if it were it was very proper, and should have been entered in the report, which ought to be drawn up in a more full and formal manner, to show at an after time what it embraced. Where an allowance is made for fencing it should be so stated, that the company might at all times require the owner of the property to keep up the fences, if useful for its convenience, or in case of future laws requiring it to do so. 4th. The road was not constructed when the damages were assessed. From the evidence, it appears that at the time the petition was presented and view made, the railroad had been located by the engineers, and probably the fences removed to the contemplated line of the road. No grading was done. There was a portion of railroad laid from the abutment in the river to the Stony Creek Railway, for the purpose of carrying stone to build the abutment. This was on a portion of the contemplated line of railroad, but formed no part of it, was temporary in its character, and intended, doubtless, to be removed. Many objections exist against having these views to assess damages before the completion of the road through the land of the petitioner. It is almost impossible for ordinary viewers to form a correct opinion as to the extent and nature of the obstruction, when it only exists in imagination. Embankments and excavations, when completed, are frequently much more or less formidable than viewers, unaccustomed to engineering, would suppose. The danger from fire is sometimes found to be illusory or imaginary, at other times very considerable. It not unfrequently happens that after location and before grading, very important changes are made in the route. If as soon as stakes are stuck in by the engineers a view can be had, report made, and the money collected, a change subsequently found necessary, would not authorize the money to be collected back, although the land was entirely avoided; whilst any alteration on to other portions of the premises, however slight, would probably lead to a second view and new assessment. On the other hand, after taking possession of a man’s land and doing it very considerable damage, the labor may be so far suspended as to leave the way unfinished for several years. These matters should all be taken into consideration in construing a statute ambiguously expressed. It is the duty of courts to put such a construction upon an act of Assembly, where the words will admit of different meanings, as to do the least injury and greatest amount of good to the public. But little light can be obtained in this case from former decisions, as they were all founded on acts of Assembly differently worded. Section 10 of the general railroad law provides for tho entry upon land by the company, through its agents, engineers, and workmen, the surveying and location of the route of a road, constructing the same, fixing the worth, etc.; and authorizes land to be taken for depots and water-stations; security being first given, or oayment made before taking possession. Section 11 dedares that where the company cannot agree with the owner as to the compensation for damages done, or likely to be done, application may be made for a view, and the viewers are to meet on the “ premises where the damages are alleged to be sustained; and the viewers having viewed the premises, shall estimate and determine the quantity, quality, and value of said lands, so taken or occupied, or to be so taken or oeewpied,” etc. But for these last words we should declare that the whole scope of these two sections contemplated that the road should be finished through the land of the petitioner, before any damage could be assessed or a view had. They throw a different meaning on the section, and we feel ourselves constrained to say that the owner of land can demand a view as soon as an entry is made on his land, any injury done however slight, and the route of the road surveyed and definitely fixed. This portion of the law we deem impolitic, and it will be found in practice to work badly, as the damages will unavoidably be assessed in a great measure by conjecture. This exception is not sustained. 5th. It is objected that H. W. Hoffman, one of the viewers, was not a freeholder. By section 11 of the general railroad law the court, on application, is required “ to appoint seven discreet and disinterested freeholders of said county as viewers to assess the damages, etc.” It is not for us to conjecture why the legislature required freeholders to be appointed. The act of Assembly is plain and imperative. Hoffman is said by petitioner’s counsel to be possessed of a freehold in right of his wife. It seems that Mrs. Hoffman inherited some real and personal property from her mother, who died early in 1853. Hoffman had possession of this estate at the time of his appointment. ' He is clearly not a tenant by the curtesy, his wife being still alive, is not seized of a life estate in the premises, but is a tenant by the curtesy initiate. He was therefore tenant of the fee simple in right of his icife; not in his own right. By the common law that estate was rejected for many purposes. Lord Coke says: That after issue born the husband could do homage, and an avowry could be made on him by the lord of the fee;” but as we understand it, he would do homage in right of his wife. He is seized of a fee simple estate in right of his wife, with a possibility of a life estate in his own right in case he survives her. This is the nature of his estate after issue born, which probably is now unimportant in Pennsylvania for any purpose. It has been held that the husband had no such estate, as could be forfeited for treason, committed after issue born, but during the lifetime of his wife. In that case the act attainting Joseph Galloway declared all of his estates forfeited of which he was possessed, had an interest in, or was entitled to. Yet the Supreme Court said that he had no estate in the land of his wife. He had therefore no interest to forfeit until after her death. Pemberton v. Hicks, 1 Binn. 1. Thus it stood prior to the act of 1848, which has made a most material change in the rights of married women. Luring the lifetime of the wife the husband has no control over her property, either to incumber it or subject it to his debts; but the act declares, “it shall be owned, used, and enjoyed by such married woman as her own separate property.” It may admit of a question, whether she may not deprive her husband of his curtesy estate by properly executing a will; but that is unimportant to the present decision, as it is the wife who has the estate in her own right during coverture, and not the husband in right of the wife. Judge King says, “ that during tire lifetime of the wife, the husband has no sort of present interest in her estate, nor any future interest other than as a distributee under the intestate law, whose interest in the estate distributable under those laws comes into existence only on the death of the owner, without having made any other disposition of the estate.” 1 Parsons, 493. Therefore Hoffman had no freehold property. He was not a freeholder at the time of his appointment. The arrangement made between him and George Neel gives Hoffman no additional interest. By that writing, dated May 15th, 1853, it appears that some contract was made between Mr. Neel and Mr. Hoffman, by which the former was to take the personal and the latter the real property of their mother-in-law. But it is there stipulated that the release of the real estate be not executed until a certain debt taken by Neel could be secured. From this arrangement it would seem that Hoffman gave his wife’s personal property to secure an additional interest in her real estate. Of course on paying for it with her effects the estate became hers. It is fair to presume that he intended to take the conveyance in her name; but had he taken it in his own, there would have been a resulting trust in favor of the wife, whose personal effects paid for the land. It is urged that this exception should have been taken before the viewers reported; and most certainly, if known, it must be so done. But there is not the slightest reason to believe that the company’s agents or counsel knew that Hoffman was not a freeholder until after the report. The appointment is made by the court ex parte.. Neither side knows who are viewers until their names are placed on the record. The-counsel of the company states that on the ground he inquired of Mr. Hoffman if he was a freeholder, and the gentleman said that he was; which he doubtless believed to be correct. Therefore there is no negligence on the part of the exceptants, who used all the diligence that could be expected to ascertain the fact. For the reasons given the court refuses to sanction and confirm the report in this case, but directs that the same be set aside.

MeCormicIc and Fisher, for plaintiff.

Kwnhel,for defendant.


text:
      Court of Common Pleas, Dauphin County,

      April 7th, 1854.
    Newbecker v. The Susquehanna Railroad Company.
    A report of viewers to assess the damage caused by the building of a railroad, will not be set aside because one of the viewers had a claim against the company for damages for altering a county road so as to pass through his land. Those persons only are disqualified from acting as viewers whose property immediately adjoins the railroad.
    A party, knowing of a legal objection to a viewer, must make it before the report is made.
   By the Court.

Ve are asked to set aside the report in this case, because one of the viewers, Augustus Shammo, owned land in the vicinity of the railroad, and had a claim for damages on account of a change, made by the company, of a county road, and carrying the same through his land. By the evidence it appears that Mr. Shammo had an interest in right of his wife, and also as part owner in a tract of land situated about three-quarters of a mile from the line of the railroad. The company, in locating its road along the river, destroyed a county road by occupying its site; and, in consequence thereof, laid out another road as a substitute through the land of Shammo, partly on the site of an old road, partly through new ground, for which damages are claimed. On the petition of any person whose land is injured, the court is required “ to appoint seven discreet and disinterested freeholders of the county, none of whom shall be residents or owners of property upon or adjoining the line of such railroad,” who are to view and assess the damages. The legality of Mr. Shammo’s appointment depends upon the construction given to the words “ residents or owners of property upon or adjoining the line of such railroad.” The evident intention of the act of Assembly is to exclude those persons from acting as viewers, who reside or own land upon or adjoining the line of railroad. But for the word “adjoining,” we might feel at a loss to properly interpret the meaning of the legislature. The obvious design is to guard against prejudice or predilection; and had the words “upon the line of the railroad” been alone used, we should have felt bound to exclude all such persons from acting as viewers, as resided immediately upon the line, or in such close proximity as probably to be influenced by their location. In common parlance, “ upon the line of the railroad,” might be understood to mean immediately upon, or within the distance of several miles, having in view the general scope of the language, and the abundance or paucity of such improvements in the neighborhood. In a country where railroads abound, a man’s land would not, in common parlance, be spoken of as on the line of railroad, unless immediately upon it. Whilst, where there were no other improvements of that character in the country, it would be spoken of as on the line of railroad when several miles distant. As used in this statute, “ adjoining” clearly qualifies and explains what is meant; and we understand two classes of persons to be embraced in the exclusion. Those residing upon, or whose land is actually cut or passed over by the line of the railroad; and those owning land immediately adjoining the land so passed over. The legislature did not intend to exclude any resident or owner of land at a greater distance. There is no evidence in this case that the land of Mr. Shaimno adjoined any tract through which the railroad passed; and there is no pretence that his land was touched by it. It is said that the viewer was precluded from acting, because his land Avas invaded by a county road, laid out by order of the railroad company in the room of the one occupied; and therefore he comes within the prohibition of the act. It certainly does not come within the letter of the law, which only relates to the resident or property-owner on, or adjoining the line of railroad; not a county road in its vicinity, whether laid out by the railroad company or viewers under an order of court. It does not come within the mischiefs designed to be avoided; as the law presumes that the resident or property-owner would be prepossessed in favor of, or prejudiced against the railroad company, on account of the advantages or disadvantages arising from its proximity. A matter which could scarcely be predicated of any ordinary county road, which this becomes, when laid out. The statute was intended to operate throughout the State; and although in some counties the road might be considered an annoyance and injury, yet in others it would be esteemed a convenience and benefit; in others again it might appear indifferent. We cannot extend the statute by interpretation. Had the situation of this viewer’s property been known to the court, it would very properly have influenced our discretion in making the appointment, but it is no more a legal bar than would have been ■the fact that the viewer claimed damages on account of stone or gravel dug by the company from his premises, where the same were situated many miles from the line of the road. Besides, if an objection was intended to be raised to this viewer acting, it should have been done before the report was made. It is well settled that a-party, knowing of a legal objection to a juror, viewer, or arbitrator, must make it known before the verdict, report, or award is made out, or he is forever precluded from urging it. The legal presumption is, that this objection was known to the company as well before as since the report, unless the party objecting will show that it came to the knowledge of its officers, agents, or attorney since. Therefore, we are of the opinion that the exception is not sustained; and there being none others urged than the one referred to, the report is confirmed.

Mo Gormioh, for plaintiff.

Kwnkel,for defendant.


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      Court of Quarter Sessions, Dauphin County,

      December 16th, 1853.
    In the Matter of the Road from the Susquehanna River to Linglestown, and Vacating a Part thereof.
    Notice of a view to open or vacate a road is only necessary to an adjoining property-owner, when liis land is affected thereby; if he is actually present at the view, no notice is necessary. The viewers have not the power to vacate a road which is the terminus of another public road.
   By the Court.

The first exception to the report is, that John W. Cowden, who owns land adjoining a portion of the road vacated, had no notice of the view. It seems, from the evidence before ns, that at one of the termini of the road asked to be vacated Cowden owned a farm. The road vacated and the one laid out commence. precisely at the corner of his land in a public highway. His soil is not touched in any manner by either road, which terminate just as they reach his corner. Therefore it may admit of great doubt as to whether he was entitled to notice. There may be cases where a man might be seriously affected by the vacation or laying out of a road directly along his line, although his land is not touched by it; as where, in 'a former case, his means of exit was impeded; or in the latter, his privacy intruded upon: in these cases he would be entitled to notice under our rules, although the road did not “pass through his land but this is not such a case. The road vacated and the one laid out commence precisely at Cowden’s corner, and so far as he is concerned, there is no change thereof. He is not affected in the least by the alteration, except in common with the public. Besides, he had notice, 'and attended the view; he toas present, which is all that is required. He could make his objection as fully as though he had received a week’s notice. His case does not come within the words of the rule of court. He is not a “person through whose land the road passes,” and he does not come within the equity of the rule, as his property is not affected by the change, and he was actually present, which the Supreme Court says is all that is required. 17 S. & R. 388. The second exception is of a more serious character. It seems that a public road intersects the one vacated at. right angles, and has no other terminus. The new road laid out passes at a distance of twenty-six perches from the end of this road, and if the viewers have the power to vacate the old one under these circumstances, they will have a public highway terminating at the one end against a fence or in the woods. This is certainly an event never contemplated by the framers of our laws; for although the act of Assembly is general in its expressions, that the viewers may change or vacate the whole, or any part of a public or private road laid out by the authority of law, whenever the same shall become useless, inconvenient, and burdensome ; and where a part only of the road is vacated, supply its place with a new one; yet care has been taken to provide that the road vacated shall not be closed until the new one is opened, so that the public shall not be put to inconvenience. In the present instance we consider that the viewers had the most conclusive evidence before' them that the old road was not useless and inconvenient; for although it might be so in regard to the one proposed to be vacated and supplied, yet it was not so as respects the intersecting road. It was indispensable to its termination, and this subject should have been considered by the viewers. It admits of serious question whether this crossroad would not cease to be a public highway and assume the character of a new private road, as it .does not appear to have any public terminus when the old road is vacated. Such appears to have been the reasoning of the court in several reported cases, particularly in 1 Jones, 186; 9 S. & R. 35. If such is the effect, the viewers, by their action, have changed or vacated a road over which the order gave them no authority. If we had tire power, under the 24th section of the Road Laws, to make an order that this road should not be closed until provision was made for extending the “M. B. Cowden road” to the new one laid out, the change might be unobjectionable; but that section of the.act evidently contemplates keeping open the old road merely until the one made to supply its place can be opened, not until there shall be a view to extend the other road into it. We are aware that there may be inconvenience in the determination that no public road can be vacated, where the same is intersected by other highways, without providing for a change in them also. But on the whole we think that the community mil suffer less from such a decision than' by one which enables viewers to vacate a road which is intersected by, or is tire terminus of numerous others. Possibly the difficulty might be met by authorizing the viewers, in the order, in case of vacation or change, to extend the line of the intersecting roads to the new one laid out. Perhaps that may exceed the power of the court under the Road Law, and require further legislation; but we cannot permit a road to be vacated and changed under the circumstances established in this case. Therefore the report of the viewers must be set aside.


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      Court of Quarter Sessions, Dauphin County,

      December 14th, 1853.
    The Commonwealth v. Williams.
    It is illegal for a barber to sbave persons on Sunday: the fact that they were sick on Saturday and the barber shaved them the next day, as a matter of accommodation, without compensation, makes no difference.
   By the Court.

The defendant was convicted before a justice of the peace for laboring in his business as a barber on Sunday, and fined four dollars under the act of Assembly.

The act declares, that if any person shall do or perform any worldly employment or business whatsoever on the Lord’s day, commonly called Sunday, works of necessity and charity only excepted, etc., they shall forfeit and pay four dollars,” etc. The first question presented on the record is, whether the employment of a barber in shaving a man comes within the prohibition of the act? and, secondly, whether the labor performed in this particular case was a work of necessity and charity? I cannot, after the most careful consideration, bring my mind to believe that a barber is any more authorized or permitted by law to keep his shop open and pursue his daily avocation on Sunday than is a blacksmith or cabinet-maker. It is true that the trade is less noisy, and not so likely to disturb the community as the others; but it is no less noisy than that of a tailor or a watchmaker. It is more immediately connected with personal comfort and cleanliness than most other avocations; but not more so than that of the laundress. It will scarcely be contended that any of those trades can be pursued on Sunday except in special cases justified by the exemption in favor of works of necessity and charity. The blacksmith might justify shoeing the horse of a government messenger travelling express, and possibly a stage-horse drawing the United States mail, where the animal could no longer safely pursue the journey. He might possibly justify shoeing the horse of a physician travelling in haste to visit the sick; and other cases of 'equal necessity might be put. So tire cabinet-maker might labor on Sunday at making a coffin, where it was necessary for the interment of the dead on that day, or the sexton of a church or other laborer might justify his occupation in digging a grave; but the law no more authorizes one kind of labor to be pursued than it does another, and the exemption from necessity must be made out in each particular case as it arrives.

It is said that the evidence makes out a case of necessity in this instance; that the persons shaved were sick the night before and unable to remain at the shop; that they were shaved in the morning as a mere matter of accommodation without charge, and the shop was not opened. If it had been made to appear that the men were sick for want of shaving, or that being sick, they or their physician considered that it would add to their health, or was essential to their comfort to be shaved that day, it would present a case of necessity justified by law; but no such proof was made. The work being done gratuitously makes it no less within the inhibition of the act; if it did, a man’s neighbors might justify laboring on Sunday to assist him in raising a house or a barn, as a matter of friendly accommodation; and the shop being open, or otherwise, cannot make the act more legal. Men are as much prohibited from carrying on their daily avocations secretly as openly on that day.

It has doubtless been customary, in many parts of the State, for barbers to pursue their business on Sunday for the accommodation of their customers, as well as for their own emolument; and if it is found to be essential to the convenience of sociely that it should be pursued, the people can call on the legislature to change the law; but so long as it remains in force, the judiciary must give it a fair construction and enforce its provisions.

We do not consider that it is any more illegal for a man to shave than to wash himself on Sunday; but the prohibition is aimed at men pursuing their ordinary labor on that day. It is the worldly employment or business of a barber to shave, and we consider, for the reasons given, that he is prohibited from pursuing it on Sunday except in case of necessity. The judgment of the justice is therefore affirmed.


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      Court of Quarter Sessions, Dauphin County,

      February 2d, 1854.
    The Commonwealth v. Adley.
    Upon a charge of false pretence the indictment must recite the matters stated by the defendant, deny their truth, and aver that they were known to be false by the defendant. It must also slate whether the money was obtained as a loan, gift, or otherwise, and that the false statement was made for the purpose of obtaining it.
   By the Court.

We will in this case consider, in the first place, the motion in arrest of judgment, for if the indictment is defective the commonwealth must commence de novo by preferring a now bill, and the party defendant thereby obtains a reinvestigation of his case, in which any errors committed by the court on the former trial can be corrected, and the alleged newly discovered evidence considered by another jury.

The act of Assembly under which this indictment was framed declares that “ every person who, with intent to cheat or defraud another, «ball designedly, by color of any false token or writing. or by any false pretence whatsoever, obtain from any person any money, personal property, or other valuable things, shall be punished,” etc.

To constitute the offence, the personal property of another must be designedly obtained by color of false pretence or representation, and the intent must be to cheat and defraud, all of which must be substantially set forth in the indictment. It has been held that it is necessary to aver the property was designedly obtained; the word “ designedly” is an important part of the offence. In this bill we do not find it applied to the obtaining of the goods, but to the unlawful intention to cheat, in which particular it does not conform to auy of the precedents, though I am not prepared to say that defect alone ivould vitiate the indictment; but in framing a new bill it is safer to correct it, so as to conform more nearly to the act of Assembly and the precedents.

The alleged false pretences are, “that the defendant was well off;” that he owned a house and lot in Harrisburg worth $3000, and that there was no judgment or lien against the property.” These are three distinct allegations, only one of which is negatived in the indictment. It is clearly settled both on principle and authority that every allegation ruled on as false, must be expressly negatived, else it may be taken to be true. It is not enough to aver that the party falsely pretended, setting forth the pretences, but there must be a statement showing wherein the pretences were false (2 M. & S. 379). In this case there is a sufficient averment that the pretence of there being no liens was false, and an express statement that liens against the property existed, though the same is not very forcibly set forth; but it is essential also to aver that Adley knew of the existence of the liens when he averred there were none. In this indictment the only aveiment is that “ the said Adley then and there well knew the said pretence and pretences to be false.” Which of the pretences? That he was well off? That is averred in a former part of the indictment to be false. That he owned a house and lot in Harrisburg worth $3000 ? Or that there were no liens or judgments against his property ? The allegation is as well applicable to the one as the others. If applied to the two former there are no proper averments of the points wherein the statement was false, and of course those statements of falsehood are not well laid, for want of being negatived in a legal manner. If to the latter, it is properly negatived, but the indictment should show specifically which it was that he knew was false. For aught that appears on the record it may be that he merely knew that he was “ not well off,” and there is no averment in the bill that he was not well off. Whereas here one of several statements is selected and negatived, there ought to be a distinct allegation that the defendant knew it was false. If the indictment had stated that the said Adley well knew that liens and judgments existed against his property, it would have properly charged him with knowing the statement which he made and which was correctly negatived in the indictment was false. There are many cases where from the nature of the charge it may not be necessary to aver that the party knew what he said was false, or where a man is charged with obtaining goods or money by falsely personating another, in that case it need only be averred that he represented himself to be A B, and that he was not the said A B, a fact which from the nature of things he must know, and hence we find precedents for such indictments, but in the present case it was the very essence of the crime that the defendant knew of the existence of the liens against his estate.

I think this indictment is defective in another particular. It avers that by reason of said false pretence, said Adley “did unlawfully obtain from Albert Horner $600 lawful currency of Pennsylvania,” but does not say how he obtained it; whether as a loan, a gift, or that it was confided to his custody to keep, or in what other way or for what purpose it was obtained. . This I consider essential. It is certainly necessary to set forth the evidence relied upon, but the indictment must aver all the essential facts which the prosecution is bound to prove (13 Wend. 311), and in 10 Mit. 521, it is decided that where money was obtained for a watch of base metal, which the vendor falsely averred to be gold, it is essential to state that there was a sale or exchange, and that the false statement was made with a view and for tire purpose of effecting such sale or exchange. In the present indictment there should have been an averment of the loan of the money, and also that the false statement was made for the purpose of obtaining such loan. I also think it would be better to describe it as either “lawful money of Pennsylvania or current money of Pennsylvania,” though it is by no means necessary to describe the money obtained.

For these reasons the judgment is arrested. I am satisfied that the jury should have been instructed that they must believe the controlling inducement to lend the money was the statement that no liens existed against the property. If the lender would have voluntarily parted with his money without such statement, the case does not come within the statute. The jury must also be satisfied that the intention was to cheat and defraud.