author: Mr. Justice Trunkbv

text:
    Strock versus Commonwealth, to use of Zeigler.
    1. The Act of February 26th 1872, relating to the administration of justice in Cumberland county, provides that before judgment is taken, for want of an affidavit of defence in an action, brought on an instrument for the payment of money, the plaintiff must file with his declaration a copy of the instrument of writing on which the action is founded. The bond pf the committee of a lunatic was conditioned that the committee “shall and do well and faithfully execute and perform, all and singular, the duties appertaining to said trust, and duly account according to law for all property and funds that may come into his hands.” In a suit upon the bond, the court entered-judgment for want of an affidavit of defence, under the terms of the above act. Held, that this was error, as the bond was not an instrument for the payment of money within the meaning of said act.
    2. The plaintiff did not file with his declaration an affidavit, “stating.the amount he verily believes to be due,” or file with his praecipe a reference to the place where the bond could be found, as required :by rules of the court. Held, that without compliance with these requirements of the rules of the court, the judgment was erroneously entered.

      May 14th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Trunicey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 96.
    Debt by the ■ Commonwealth *to the use of Philip Zeigler, committee of David Bife, a lunatic, against George Strock, co-obligor with Moses Bricker, in a joint and several bond, conditioned for the faithful performance by Bricker of the duties of committee of said lunatic. The condition of the bond is recited in the opinion of this court.
    The narr., in the usual form, declares that “ George Strock, together with Moses Bricker, on the 27th August 1862, by their writing obligatory, with their seal sealed and filed in the office of the prothonotary of the Court of Common Pleas in and for the county of Cumberland, which said writing obligatory is herewith produced and exhibited to the court, and is of the tenor and effect following, to wit: “Know all men,” &c. Then follows a bond in the usual form for $5000, conditioned for the faithful performance by Bricker of “ all and singular the duties relating to” his trust as committee of David Bife, a lunatic. Then follow recitals of proceedings, and averments of fact to show that Bricker was unfaithful; that he was dismissed; that Philip Zeigler was appointed in his place; that an account had been previously filed, which on final settlement showed a balance in the hands of Bricker, as committee, of $3932.71; that he was ordered to pay, and did not pay the said sum, “nor any part thereof, although often requested,” &c., whereby the said bond “became forfeited,” &c., concluding, in the usual form, with the averment of demand on Strock, and his refusal; and the whole signed by plaintiff’s attorney.
    Buies of court in Cumberland county provided, inter alia, as follows:
    § 14. In actions on recognisances, judgments, mortgages, liens of mechanics and material men, municipal claims, transcripts from the Orphans’ Court, policies of insurance, book accounts, bonds, bills, notes and other instruments of writing for the payment of money, * * * if the plaintiff shall, ten days before the return day of the writ, with his declaration or statement, when necessary, * * * file an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, * * * he shall be entitled to judgment, &c.
    § 15. In lieu of a copy of the instrument required by the preceding rule to be filed by the plaintiff, when the action is upon a record of this court, or upon a mortgage, mechanic’s lien, or recognisance in the Orphans’ Court, Oyer and Terminer or Quarter Sessions, it shall be sufficient if the plaintiff file, with his praecipe or otherwise a reference to the place where such record or other instrument may be readily found by the defendant, should he desire an inspection of the same. In any such case plaintiff’s affidavit is not required.
    No affidavit was attached to the declaration stating the amount which the plaintiff really believed to be due, was filed as required by this rule, nor was any reference made to the place where the bond could be found. No copy of the bond was filed, but it was set forth as an exact copy in the declaration and at the argument of the rule, the bond was produced to prove that the recitals were copied literally from it. The Act of Assembly of February 26th 1872, “relating to the administration of justice in Cumberland county:” Purd. Dig. 1165, Pamph. L. 6, provides that in all actions to be brought in the Court of Common Pleas, on bills, •notes, bonds and other instruments of writing for the payment of money, * * * before judgment shall be taken for want of an affidavit of defence, the plaintiff must file “with his statement or declaration * * * a copy of the instrument of writing,” &c. The court, Herman, P. J., entered judgment for the plaintiff, for want of an affidavit of defence. A rule was afterwards taken, to strike off this judgment because entered improvidently, which the court discharged in an opinion, saying:
    “ It appears that there is set forth in the declaration in this case an exact copy of the instrument of writing sued on, and which was signed by Moses Bricker and the defendant, George Strock. This the plaintiff verified on the argument by producing the bond itself on which the action is founded. It is true, that it is made a part of the declaration, and is set forth as being, in ‘ tenor and effect, following, to wit: ’ But then follows an exact copy of the bond, which it is declared was signed and sealed by Moses Bricker and George Strock, the defendant. Their signatures are not copied to the copied writing, but then it is so clearly stated that they did sign and seal the bond, that the omission to copy them is immaterial. I do not see how the defendant, after reading the declaration, could have suspected that it did not contain an exact copy of the instrument of writing which he had executed with Moses Bricker, or had any doubt in his mind as to the identical instrument of writing upon which the action was founded. I think the plaintiff had done everything that was necessary under our affidavit of defence law to impose upon the defendant the duty of'filing an affidavit of defence, and the defendant having failed to file such an affidavit on or before the second Saturday succeeding the return-day of the writ, was in default, and the plaintiff was entitled to his judgment.”
    The defendant took this writ, and assigned for error the discharge of the rule.

      S. Hepburn, Jr., and S. Hepburn, for plaintiff in error.
    This bond was not within the Affidavit of Defence Law. It is not for the payment of any sum of money. There is no fixed amount in it. It is like an official bond. A scire facias should have been sued out, and the amount of damages ascertained: Sands v. Fritz, 3 Norris 18; Kortle v. Engbert, 4 W. N. C. 202. The bond -itself furnishes no guide for the direction of the prothonotary in ascertaining the amount of the judgment to be entered. For this he must look to the other averments in the narr.

    It is only by a compliance, on part of the plaintiff, with the rules as to filing of a copy, giving clear reference to the place where a “record may be readily found,” or by filing an affidavit of the amount of his claim, that the other party has notice of the intention to take judgment, and a strict compliance on his part is necessary to entitle him to take it: Gottman v. Shoemaker et al., 5 W. N. C. 381. A copy, “as near as can be ascertained,” of the original is not sufficient: Jordan v. Keller, 5 W. N. C. 341.

      John Hays, for defendant in error.
    The Act of February 26th 1872 is similar to the act of March 28th 1835: Purd. Dig. 495, Pamph. L. 89, relating to the District Court, which was extended to the Common Pleas of Philadelphia by the Act April 14th 1846, Purd. Dig. 1165, Pamph. L. 328. In the act for the District Court the words are, “Shall * * * have filed in the office of the prothonotary of the court a copy of the instrument of writing.” By the Cumberland county act, the copy is to be filed with the declaration or statement, it may be part of it;- and the language implies that it is to be filed as part of it. In the other cases it is simply to be filed in the prothonotary’s office. It need not be with or as part of the declaration. That it is filed is sufficient.
    The decree of the court against Bricker was conclusive against Stroek, his surety, and fixed his liability on the bond. This decree, fixing the principal in the bond, and being conclusive upon the surety rendered the bond, “ prima facie, at least an instrument for the payment of money,” as the forfeiture of the recognisance in Harres v. Commonwealth, 11 Casey 416. The Commonwealth, as in that case, was entitled to judgment for the penalty of the bond, under Act of 14th June 1836, Purd. Dig. 163, Pamph. L. 639, regulating actions on official bonds. See also, Bank of United States v. Thayer, 2 W. & S. 447. The averment of the decree was therefore proper to conclude Strock: Montayne v. Carey, 1 W. N. C. 311. The bond, therefore, coupled with the decree, was clearly within the Affidavit of Defence Law.
    The bond being exactly copied in the narr. it follows that it was filed with the declaration according to the very words of the act and rule of the court.
    May 26th 1879.
   Mr. Justice Trunkbv

delivered the opinion of the court,

The condition of the bond is that Moses Bricker, committee of a lunatic, “shall, and do well and faithfully, execute and perform all and singular the duties appertaining to said trust, and duly account according to law, for all property and funds that may come into his hands.” This demands much more than receiving and paying over money. Neglect and waste of the lunatic’s estate, excessive expenditures for his support, refusal to surrender possession of his lands and goods when lawfully required, as well as embezzlement of his funds, are violations of the duties of the trust. He is liable to be charged with all damages which directly result from his breaches of the condition. The penalty "limits the amount of recovery in an action on the • bond, but is no measure of the sum which may be decreed against him in the settlement of his accounts; that may be more or less than the penal sum. This bond presents as little appearance of a writing for the payment of money, as does the bond or recognisance of a sheriff. It is unlike any of the cases which have been held to authorize judgment- in default of affidavit of defence, under the statutes, cited by defendant in error. In Harres v. Commonwealth, 11 Casey 416, judgment was entered in the Quarter Sessions under a rule of court which expressly and singly related to forfeited recognisances. A recognisance conditioned for appearance to answer a criminal charge, is in a sum for payment of which, the parties are fixed upon forfeiture, and it matters not, as respects the nature of the obligation, that for equitable cause, it may be remitted in whole or part by a statutory proceeding. The case of Montayne v. Carey, 1 W. N. C. 311, is where Carey agreed in writing to pay the amount which Montayne might recover in his action against Wheat — a promise to pay money — and averments were competent to show the recovery and for how much. So in Bank v. Thayer, 2 W. & S. 443, the notes entitled the plaintiff to recover the sums therein named with simple interest, and averment of facts was admissible to show a statutory right to interest at 12 per centum. The test is, whether the agreement is for payment of money, if so, averments dehors the writing may be made to show it has become due. But if the obligation be for faithful performance of duties as a trustee, or as an officer, or to deliver goods, or render services, it is not within the statute. The plaintiff may have a complete right to recover judgment for damages; that is not the question — it is, does the statute authorize judgment by default? His case will not be brought within the statute or rule, when suit is on the original obligation, if the amount of damages has been determined by agreement or otherwise. To illustrate, a written contract is made for sale of a horse, for $100; if delivered accordingly, the seller, in an action for the price, may file a copy of the instrument, aver his performance and have judgment in default; but if he refused to.deliver the horse, and the buyer brought suit on the contract, he could not by averments, bring his case within the statute, even if the damages were agreed upon. We are of opinion that the bond in suit is not for “payment of money” in the sense of the Act of February 26th 1872, or the rule of court. The action is on the bond, not .upon the decree of the court.

If it be conceded that a copy of the bond was properly filed, and the bond within the act, judgment was erroneously entered. The plaintiff failed to file an affidavit stating the amount he verily believed to be due. The rule of court, directing that, is most salutary and fit to be observed. To say the affidavit was unnecessary, because the action is upon a record, is to run against another rule, which directs; with the praecipe or otherwise, a reference to the place where such record may be readily found, which reference was not filed: Gottman v. Shoemaker, 5 Norris 81; Brennan’s Estate, 15 P. F. Smith 16.

A perfect declaration was filed, and an alleged copy of the bond forms an essential part. The point was pressed that this fails to meet the requirements of the statute and rule, because the signatures and seals are omitted, though the names are stated in the pleadings; the direction to file with, does not mean to bury in the verbiage of a declaration; and in the body is not with it, in the intendment of the statute. Our rulings upon other points decide the case, and remark upon this would be a mere dictum.

Judgment reversed, and a procedendo awarded.

Mercur, J., dissents.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    McClure versus Watertown Fire Insurance Co. of New York.
    1. Where the condition of a policy of insurance is unambiguous and | reasonable, the insured cannot escape compliance with its terms, by showing good faith and an honest although unsuccessful effort to comply therewith. | f
    2. A policy of insurance provided, that if without the written consent of the company the insured premises should become vacant or cease to be occupied, the policy should be void. The proofs of loss in regard to a certain property insured showed that it had been vacant a few days before the fire by which it was destroyed. In an action upon the policy the insured offered to show that the tenant had vacated the premises without the insured’s knowledge, and that he had at once endeavored to obtain* another tenant, and notified the company’s agent. Held, affirming the court below, that the question of the good faith of the insured could not enter into the casé, as the obligation to keep the building insured by the terms of the policy was absolute.
    May 15th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, °JJ., absent.

      Error to the Court of Common Pleas of Cumberland county : Of May Term 1878, No. 140.
    Debt by William H. McClure,' in his own right and for use of the First National Bank of Shippensburg, against the Watertown Fire Insurance Company of New York, on a policy of insurance in said company.
    McClure insured his dwelling-house in the defendant company on the 13th of November 1876. At the time the house was leased to one Hefflefinger, whose lease Avas for one year from April 18th 1876. The policy contained the following clause: “If without written consent of the company first had and obtained, the dwelling-house or houses hereby insured, become vacant by the removal of OAvner or occupant; or cease to be occupied in the usual and ordinary manner that dwelling-houses are occupied; or if the building be unoccupied at the time of effecting this insurance and not so stated to the company and so expressed in the application; or if the risk shall be increased and the company not notified and Avritten consent obtained thereto. * * * then this policy shall be null and void.”
    The application for insurance embraced the following questions and answers: For what occupied? Dwelling. By whom? Tenant. The house Avas burned December 2d 1876, and it appeared from the proofs of loss that it had been vacant for several days before the fire.
    At the trial before Herman, P. J., the plaintiff made the following offer:
    . Plaintiff offers lease of himself to Hefflefinger, dated 18th April 1876, for one year of the insured premises, to be followed by proof that at the time the buildings were insured, Hefflefinger was in possession of the premises; that he vacated the same without the knoAvledge or consent of the plaintiff, retaining the key to the premises ; that a few days before his vacation of the premises, plaintiff having heard that Hefflefinger intended to leave, had an intervieAv with him, and as a result of the interview, Hefflefinger agreed to stay until .the 1st of April 1877, and that plaintiff left Shippensburg under the belief that Hefflefinger intended remaining on the premises, and that the premises were vacated in his absence ; that he returned before the fire, and on his return he immediately made efforts to secure another occupant, and notified the agent, Blair, of the fact of Hefflefinger’s leaving; and this to show good faith on the part of the plaintiff, and that there has been no breach of the contract of insurance.
    The court, upon objection, rejected the offer, on the ground that the question of the good faith of the plaintiff did not enter into the case, and that the evidence offered could not release the assured from his obligation to keep the dAvelling-house occupied.
    The defendant offered no evidence, and the court instructed the jury to find for the company. The plaintiff then took this writ, and assigned for error the rejection of the aboye offer and the instruction of the court.

      W. Triehett, J.A. O. McOune and W. F. Sadler, for plaintiff in error.
    The time for which the house remained empty, under the circumstances, ought not to avoid the policy, and the plaintiff should recover: Gamwell v. Merchants’ and Farmers’ Mut. Ins. Co., 12 Cush. 169. See also Loud v. Citizens’ Mut. Ins. Co., 2 Gray 222; Hall v. Peoples’ Fire Ins. Co., 6 Id. 187; Houghton v. Manuf. Ins. Co., 8 Metc. 123; Mickey v. Burlington Ins. Co., 2 L. J. 15.

      S. Hepburn, Jr., and S. Hepburn, for defendant in error,
    cited Harrison v. City Fire Ins. Co., 9 Allen 232; Keely v. Quincy Fire Ins. Co., 10 Id. 228; Ashworth v. Builders’ Mutual Fire Ins. Co., 112 Mass. 422; Corrigan v. Connecticut Fire Ins. Co., 122 Id. 298. “ The only question is, has the warranty been kept? There is no room for construction; no latitude; no equity. If the warranty be a statement of facts, it must he literally true; if a stipulation that a certain act shall or shall not be done, it must be literally performed:” May on Insurance 161, citing Ripley v. Ætna Ins. Co., 30 N. Y. 163; Anderson v. Fitzgerald, 4 H. L. Cas. 484; s. c. 24 Eng. L. & Eq. 1. Substantially the same in principle is ruled in Birmingham Fire Ins. Co. v. Kroegher, 2 Norris 64.
    June 23d 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

William H. McClure, the plaintiff below, accepted the policy which is the subject of the present contention, subject to the express condition that it should be null and void, “if without the written consent of the company first had and obtained, the dwelling-house or houses hereby insured, become vacant by the removal of the owner or occupant, or cease to be occupied in the usual and ordinary manner that dwelling-houses are occupied.” This provision became part of the contract of insurance; the company agreed to insure the premises at a certain rate, and the plaintiff, in consideration thereof, on his part, agreed, that the property should be occupied either by himself or his tenants during the running of the policy, and if at any time it became vacant, then, and in that case, this policy should be of no further force or effect.

As this condition is unambiguous and reasonable, and as the plaintiff voluntarily accepted it, prima facie it would seem to be obligatory. What reason, then, has the plaintiff to give why it should not be so ? The property certainly became vacant without the assent of the company first being had and obtained, and during that vacancy it was burned.

Now, in the case of the- Birmingham Eire Insurance Co. v. Kroeger, 2 Norris 64, this court held, that a provision, in the policy, providing against the use of carbon oil in and about the insured building, was good and binding upon the insured, and this notwithstanding the knowledge of the company’s agent, at the time of insurance, that carbon oil was kept upon the premises. It is therefore certain that provisions, of the character of that now under discussion, are obligatory, and that their violation will avoid a policy of insurance. It will be observed that the case cited and the one in hand are similar, excepting, only the objects embraced by the conditions. In the one case, there was a prohibition of the use of carbon oil upon the premises, in the other, a prohibition of the vacancy of the insured building; but on both, confessedly, the non-observance of the conditions increased the risk. Why, then, should the ruling of the one not apply to the other ?

It is urged that the plaintiff’s tenant left the premises without his knowledge and consent, and that, as soon as he discovered that fact he endeavored to procure a new one. All this may be admitted as true, but then, who was to bear the risk in the meantime? Not the company, for it had expressly provided that it would assume no such risk. What then mattered the good intentions of the plaintiff? The fact remained that the loss occurred during the vacancy of the property. Had McClure taken the pains to have notified the company of the vacation of the building, and obtained its assent thereto, he would have saved his policy; he did not choose so to do, and hence relieved the defendant of its responsibility. It but comes to this, the plaintiff did not live up to his contract, and so lost the advantages of it.

It is true, as is said in the Western Insurance Co. v. Cropper, 8 Casey 351, that the stipulations in a policy are intended for the benefit of the underwriters, and where they are obscure, they must be interpreted most favorably to the assured; but, on the other hand, to refuse their enforcement when they are not obscure, w’ould be a denial of justice. Then again, it is not quite correct to say that such stipulations operate wholly to the advantage of the underwriters, since, in consequence thereof, the assured obtains his policy at lower rates than would be the case were that policy unconditional.

Our attention has been directed to the case of Gamwell v. The Merchants’ and Farmers’ Mutual Fire Insurance Co., 12 Cush. 167; but it is not in point. The defence there was, not upon any condition in the policy, but upon an alleged increase of risk, occasioned by the vacation of the insured building, and, also, upon the further allegation that the loss occurred through the culpable negligence of the assured. These were, of course, questions for a jury, and involved, among other things, the good faith of the plaintiff in his alleged endeavors to procure a new tenant as soon possible after the vacancy had occurred. Such, however, is not the question which we have now to consider; it is not whether the risk was increased, or whether the plaintiff acted in good faith, but whether he complied with the condition which he had adopted by accepting the policy.

The ruling of the court below is supported by the case of Harrison v. The City Insurance Co., 9 Allen 231, in which it was held that where the policy contained a condition similar to that now under consideration, the company was relieved from responsibility where the loss occurred during the vacancy of the insured premises. Substantially the same ruling may be found in Keith v. The Quincy Fire Insurance Co., 10 Allen 228, and in Corrigan v. The Connecticut Fire Insurance Co., 122 Mass. 298. The conclusion at'which the court below arrived, being thus abundantly supported by reason and authority, must be affirmed.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    The Pennsylvania Canal Co. versus Burd.
    The Pennsylvania Canal Company is neither liable as a common carrier nor an insurer. As owner and operator of a public water highway, it is bound to so maintain and manage the canal, that it can be used with reasonable safety and convenience by the public, but it is not liable for an injury resulting from an unknown obstruction, which could not have been guarded against without the exercise of extraordinary and unreasonable care.
    May l"5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Perry county: Of May Term 1879, No. 81.
    Case by A. J. Burd against the Pennsylvania Canal Company.
    The declaration set forth that the Pennsylvania Canal Company, being the owner of the main line of the canal from Columbia to Wikesbarre, and having the authority to charge tolls on boats navigating their canal, are bound to keep the same filled with water, and to use due and reasonable care, skill and diligence in the management thereof, and that the defendants neglected to do so, but permitted the same to get out of order, and suffered logs and other debris to accumulate in the channel, and that in consequence thereof, when the water was drawn off, on the 14th day of May 1876, by order of the supervisor, in the sixteen-mile level, in Luzerne county, plaintiff’s boat, “The Two Brothers,” loaded with stone-coal, sunk upon a log in the bottom of the canal, and was destroyed; further, the plaintiff charges, that the'said boat was tied up at a place designated by the agent of the defendants.
    The defendants pleaded, not guilty.
    It appeared, that about 10th May 1876, the plaintiff’s boat, loaded with one hundred and ten tons of coal, himself the master, was coming down the sixteen-mile level, and, when opposite Shickshinny, stopped, in consequence of a sunken boat considerably lower down. Other 'boats were also stopped in front of plaintiff’s. It became necessary to draw off the water from this level, in order to raise the obstructing sunken boat. Orders were given to the boats in front of plaintiff’s to move to a certain point below, but the plaintiff was directed to remain where he was, place his boat in the centre of the canal, throw out lines to berme and tow-path from bow and stern, and await the withdrawal of the water. The boat was an old one. Where she laid there were eight feet of water, and this particular section of the canal had been thoroughly cleaned and repaired the previous winter.
    After the water had been taken out of the level, it was discovered that a green hemlock log, about, thirty feet long, about twelve inches at the butt and six inches at the top, was lying in the bottom of the deep place where the plaintiff’s boat had settled. This log could not be seen from the banks of the canal. Its existence was not known to the defendants. It was not there when the water was let into the division in the spring of 1876. No knowledge of it was brought home to the defendants, but, on the contrary, all the canal employees testified that it was there without their knowledge, and that the canal was daily inspected and watched, and the utmost diligence exercised to keep the works in good, safe and proper condition.
    After the plaintiff’s evidence was in, the defendants moved for a nonsuit, on the ground that no negligence was disclosed thereby, which was refused.
    The plaintiff, inter alia, submitted the following point: •
    1. That if the jury believe that when the water was drawn from the canal of defendant the boat of plaintiff rested upon the log spoken of by all the witnesses in such a manner as that they are satisfied that the plaintiff’s boat was injured by the resting upon the log, and thereby sunk, and that no other examination was made on part of defendant than that detailed by defendant’s witnesses, to wit: observation from the tow-path at a distance of from twenty to twenty-five feet, immediately before the water was let into the canal, and with the knowledge on the part of defendant, that during the entire winter, or from the close of navigation in the fall of 1875, water to the depth of two feet nine inches was in that part of the level running along and by Shickshinny, where the boat of plaintiff lay, then this would be such negligence on part of defendant, as makes her liable in damages to thé value of the plaintiff’s boat.
    The court, Jun'kin, P. J., answered as follows: “ If the jury believe that the log sunk the boat, that this log had floated there on the surface of the water in the canal until waterlogged, it would be strong evidence of a want of care on the part of the company from which you could and should infer negligence.
    “But we cannot say that the inspection of the canal by the company in the spring of 1876, in the manner indicated in this point, was insufficient, or amounted to negligence in the company. Such inspection under the authority cited in the charge (Insurance Co. v. Delaware Canal Co., 10 Bosworth 180,) seems sufficient, if it was carefully done; if carelessly done, so that the log if visible to the eye was overlooked, then it was negligence, and the company would be liable.”
    The defendants submitted the following point, to which is subjoined the answer of the court:
    The fact of the plaintiff’s boat having been injured by the log sunken in the bottom of the canal so as not to be visible or known to the defendants’ employees, even should the jury so believe, does not show such negligence as to make the defendants responsible for the injury, and your verdict should be for the defendants.
    Ans. “We answer, that we affirm this point except in this: that the company would be liable notwithstanding, if this sunken log floated to its place on the surface of the canal until waterlogged, because of the fact of its floating long enough to become so, could not have escaped the most ordinary vigilance. The company would also be liable if its employees were negligent in failing to see the log if it was there and visible in the spring before the water was in.”
    In the general charge the court, inter alia, said: “ When the plaintiff was directed by the foreman and watcher to stand fast and go down to the bed of the canal where his boat then lay, he was not only bound to obey the order, but had the right to believe that the location was safe, and if in fact his boat was sunk in settling on a log, there would be a prima facie ease of negligence made out against the company, because a log unlike a stone would float along before it would sink, and if a floating log escaped the attention of the company for any considerable time, long enough, to become waterlogged and sink, the fact of negligence could hardly be denied. * * * In determining this question, should it be found by you that this log floated on the surface of the canal at any point and was not taken.out, but permitted to float until it sunk, then it would be negligence in the company, and the plaintiff should recover the value of his boat.”
    The verdict was for plaintiff for $200, and after judgment the defendants took this writ, assigning for error the answers to. the above points, and the portion of the charge noted.

      Francis Jordan and O. J. T. 'MeIntire, for plaintiffs in error.
    J. G. MeQallister and TP. A. Sponsler, for defendant in error.

      October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

In its relation to the defendant in error, the Pennsylvania Canal Company was neither a common carrier nor an insurer, nor liable as such. As owner and operator of a public water highway, formerly owned by the state, it was bound to so maintain and manage the canal that it could be used with reasonable safety and convenience by the public, for whose benefit it was constructed. To this end the duty of the company to the public demanded the exercise of reasonable and ordinary care; and it is by this standard its liability to the plaintiff below must be measured.

It follows from this that the company is not liable for injuries arising from unforeseen and unexpected contingencies, such as great freshets and tempests, or other events which, in the exercise of reasonable and ordinary care, would not be anticipated, or could not be provided against.' An injury resulting from an unknown obstruction, which could not be guarded against, without the exercise of extraordinary or unreasonable care, must be considered an accident for which no one is specially to blame, and for which the company is not liable. It would be unreasonable to require a canal company to sound and drag the whole length of its canal continually, to ascertain what obstructions might lie at the bottom, or to keep guards along the banks, to prevent the commission of injuries by careless or designing persons. But it is bound, annually at least, when the water is out of the canal, to inspect the bed and remove obstructions: Exchange Insurance Co. v. The Delaware Canal Co., 10 Bosworth 180.

As the basis of his claim, the plaintiff below charged that the company was guilty of negligence in permitting a sunken log to lie in the bottom of the canal, on which his boat settled and was destroyed. It may be conceded, that if the company knew, or, by exercising reasonable care and diligence, might have known, that the obstruction existed, and neglected to remove it, a clear case of liability would be presented; but it is claimed that there was no evidence of either knowledge or culpable ignorance on the part of the company, and that the learned judge erred, not only in submitting the question of negligence' to the jury, on wholly insufficient testimony, but in suggesting a state of facts not arising out of the evidence, and thereby gave the jury an unwarrantable license to speculate as to how the log came there, and to infer therefrom that the company knew, or.should have been aware, of its presence, as a dangerous obstruction to navigation.

An examination of the testimony before us fails to disclose any evidence upon which the jury could reasonably and properly conclude there was negligence. In the concluding part of his charge, the learned judge says, There is no evidence that the company had any knowledge of this log being there until the water was drawn off, in May 1876, and Burd’s boat was sunk. The case thus stands on very narrow ground, * * * and you must, in order to find for the plaintiff, be satisfied that the persons whose duty it was to inspect the canal in the spring of 1876 did not perform that duty in a careful manner, and overlooked the log if it was then visible in this deep part of the canal. These inspecting parties say it was not visible then, and we have said, if it was not, or i-f there and invisible, the plaintiff cannot recover; and if it floated from Hen-lock creek, waterlogged and unseen after the navigation opened, in the spring of 1876, the company is not liable.” While the question of knowledge on the part of the company is thus practically set at rest, for want of evidence thereof, the jury could not fail to understand that it was still incumbent on them to inquire whether the duty of inspection was carelessly or negligently performed. We discover nothing in the testimony to justify the court in submitting this question to the jury.

While refusal to enter judgment of nonsuit is not assignable for error, it may not be amiss to say that the court would have been justified in entertaining the motion. Viewing the testimony in the most favorable light, it was manifestly insufficient to sustain the allegation of negligence on which his claim is founded; in other words, there was no evidence from which the jury might reasonably and properly conclude there was negligence.

In that part of the charge, covered by the fourth assignment, the learned judge said to the jury, that if plaintiff’s “ boat was sunk in settling on a log, there would be a prima facie case of negligence made out against the company, because a log, unlike a stone, would float along before it would sink, and if a floating log escaped the attention of the company for any considerable time, long enough, say, to become waterlogged and sink, the fact of negligence could hardly be denied.” * * * “In determining this question, should it be found by you that this log floated on the surface of the canal at any point, and was not taken out, but permitted to float until it sank, then it would be negligence in the company, and the plaintiff should recover the value of his boat.”

If there had been any testimony to prove such a state of facts as is here suggested to the jury, the principles of law applicable to them would perhaps not be disputed, but the vice of this portion of the charge, as well as the answers complained of in the second and third assignments, is that there is no testimony tending to prove where the log came from, or that it “ floated on the surface of the canal at any point, and was not taken out,-but permitted to sink,” &c. The suggestion of these as possible or probable facts, was wholly unwarranted by the testimony, and could only tend to lead the jury into a field of vague speculation, resulting in a verdict unsupported by the evidence.

Judgment reversed.


text:
    Zacharias versus Totton, Sheriff, and the Harrisburg National Bank.
    1. Where a sheriff by the direction of an execution-creditor, and under the shield of indemnity furnished by him, seizes and holds the goods of a third party until the execution-creditor institutes proceedings under the Inter-pleader Act, the sheriff cannot, after the claimant has established his title to the goods, invoke these proceedings, as a complete protection against the demands of the injured party, based on acts of trespass committed before these proceedings were commenced.
    2. In an action of trespass de bonis asportatis, it appeared that the sheriff found the goods in the possession of the plaintiff, knew that he had advertised them for sale and was fully notified of his claim as owner. Without asking for a rule on the parties to interplead, ho took an indemnity-bond from the execution-creditor, levied upon and took possession of the goods on November 15th 1876. No application for a rule to interplead was made until the 4th of December following. Held, that neither the sheriff nor the execution-creditor could justify under the Interpleader Act, for anything done prior to the inception of the proceedings thereunder, but so far as they or either of them acted under the direction of the court, or in accordance with the interpleader proceedings they were entitled to claim protection.
    May 15th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 123.
    Trespass de bonis asportatis by George A. Zacharias against Joseph Totton, sheriff, and the Harrisburg National Bank.
    As appears in the abstract of proceedings a joint appearance was entered for the defendants, and they jointly pleaded “not guilty.” Afterwards, when the case ivas called for trial, they severally, by leave of court, filed special pleas, both of which are, however, as to the averments of fact in them, identical.
    The narr. is in the usual form. The special pleas set up: That Totton, one of defendants, was at the time of the alleged trespass sheriff of Cumberland county; that on the 14th November 1876, he received a writ of fieri facias in which the Harrisburg National Bank, the other defendant, was plaintiff, and Samuel Zacharias and Samuel M. Zacharias were defendants; that under said writhe levied on the property set out in the narr. and took it as the property of said defendants; that he was notified that it belonged to George A. Zacharias, whereupon, on the 21st November 1876, he asked the court for a rule to interplead; that an issue was made between Zacharias and the Harrisburg Bank, which was finally determined in favor of Zacharias; that meanwhile, pending the issue, the plaintiff having failed to give a bond as required by the order of the court, the court made an order to sell the property and to bring the money into court; that on the final determination of the interpleader proceedings, the fund in court (less the sheriff’s costs, &c.,) was paid to the attorney of the plaintiff; that, therefore, there could be no recovery in this action.
    The plaintiff replied that prior to the beginning of the inter-pleader proceedings, the defendants well knowing that the goods, &c., were the property of George A. Zaeharias, and that they were then actually in his possession, that he had advertised them extensively to be sold at a public sale on a fixed day, and that on that day, when all was in readiness for the sale, and the bidders were present, they wilfully and maliciously seized upon the goods and broke up the sale; that the defendants had special notice before the levy of the ownership and possession of this plaintiff; that the sheriff refused to make the levy until indemnified by the bank, and he was thereupon indemnified by a bond.in the sum of $40,000 ; that the trespass and injury were done on the 15th November 1876, while the rule for an interpleader was not obtained until the 4th of December following; and that it was then asked for at the instance and request of the said bank after the giving the said bond of indemnity.
    To this there was a rejoinder, denying the fact, averred in the replication, that the proceedings were begun at the instance and request of the Harrisburg Bank, and averring generally, that the orders and decrees, recited in the pleas, relieved both defendants from all liability to plaintiff for any loss or damage that he might have suffered “ by reason of anything done by the sheriff under the writ of execution in said plea mentioned.”
    On these pleadings the court, Herman, P. J., delivered the following opinion:
    “Upon the issue raised by the special pleadings in this case a question of law is presented for the decision of the court. It appears by the pleadings and the records and proceedings of this court laid before us by the defendants in support of their motion, that the goods and chattels, declared by the plaintiff to have been taken and carried away to his damage, were on the 15th of November 1876, levied upon by the sheriif, Joseph Totton, under an execution issued by the Harrisburg National Bank against Zaeharias & Co. et al., to No. 1 January Term 1877; that the property thus levied upon was claimed by George A. Zaeharias, and on the petition of the sheriff setting forth the facts of the levy and adverse claim of Zaeharias, the court awarded an issue, under the Sheriff’s Interpleader Act, wherein Zaeharias was plaintiff, and the Harrisburg National Bank was defendant, to determine the claimant’s right to the property. The first order on the sheriff’s petition was made by the'court on the 4th December 1876, by which a rule was granted upon the parties to appear and show cause, &c., and having appeared the feigned issue was awarded the 9th December 1876. Zacharias appeared and filed his declaration as directed by the court but failed to give the required bond, and the property, excepting one hundred and six barrels of whiskey, was under an order of the court sold by the sheriff and the proceeds brought into court to await the determination of the feigned- issue. Afterwards the trial of the feigned issue resulted in a verdict and judgment in favor of Zacharias, and thereupon he took out of court the proceeds of the sale of the property. The question is, whethe'r the sheriff and execution-creditor are now liable to the claimant’s action for this seizure and sale of his property.
    “The Interpleader Act, as the preamble shows, was passed for the relief of the sheriff, and was intended to exempt him from the hazard and expense of actions that might otherwise be brought against him by persons claiming the goods upon which he had levied, who were not the parties against whom the process issued.There is nothing in the act which makes it imperative on the court to grant an issue when applied for by the sheriff. Its award or refusal is not a matter of right, but of sound discretion under all the circumstances of the case: Bain v. Funk, 11 P. F. Smith 185. But when the court, upon consideration of the circumstances of the case, has in the exercise of this discretion granted the issue for the relief and protection of the sheriff, and that issue has been determined between the claimant and the execution-creditor, I think, the sheriff’s liability, to the claimant’s action for a trespass in the seizure and sale of the goods, is at an end. If it were otherwise, the act would be of but little use. And if the sheriff is relieved from liability to the claimant's action of trespass, it follows that the execution-creditor is also relieved. If any just cause existed why the relief prayed for by the sheriff in this case should not have been granted the claimant should have shown it in answer to the rule upon him to appear and show cause. It is now too late. I am of the opinion that the proceedings and determination of the issue under the Interpleader Act constitutes a complete bar to the claimant’s action of trespass against the sheriff as well as the execution-creditor for the seizure- or sale of the property, and that the defendants in this action aré entitled to judgment on the issue raised by the special pleadings.
    “And now, to wit, March 7th 1879, upon the issue raised by the special pleadings in this case, judgment is rendered for the defendants.”
    This action of the court was assigned for error by plaintiff, who took this writ.

      8. Hepburn, Jr., L. Todd and 8. Hepburn, for plaintiff in error.
    If the law is as held by the court below, the sheriff can commit no trespass in the execution of a writ of fieri facias, which will not be cured by the granting of a rule to interplead. The Interpleader Law has never been construed to authorize the court to assess damages suffered up to the time of filing the petition. In England the protection of the court begins only with the granting of the rule to interplead, and liability remains for all damage done before that time: Walker v. Olding, 1 H. & C. 621. Nor was it necessary to make a levy under fiie circumstances. The property was in the actual possession of the plaintiff in this case; had been extensively advertised for sale at a public sale, to be held on the 15th November; the bidders were actually present, and the sale about to begin, when the sheriff made his levy; he had refused to make the seizure because of the open and apparent possession and ownership of the plaintiff, and demanded a bond of indemnity before doing so. Instead of demanding this bond, he could have applied for his rule before proceeding: Philips v. Reagan, 25 P. F. Smith 381. He assumed the risk of levy without the protection of the Interpleader Act, and the evidence alone could show whether he acted in such a way as to make himself liable for damages. We submit, therefore, that defendants were liable,
    1. For all damage done by the seizure and detention, prior to the granting of the rule on December 4th 1876.
    . 2. For all damage if there was collusion and an indemnity, concealed from the court, at the time of presenting the petition.
    The question of damages was for the jury, and the court had no-right to pass upon the plaintiff’s right thereto. Even if the law is as held by the court below', as to the sheriff, we contend that the same protection does not extend to the execution-creditor.

      F. F Beltzhoover, Jo Tin Says and Fleming McOarrell, for defendants in error.
    The sole question was as to the effect of the interpleader. The replication of the plaintiff, by claiming damages, for the seizure of the goods under the circumstances attending it between the levy on November 15th 1876, and the first order made under the interpleader on December 4th 1876, virtually admits that all claim to damages for the sale of the goods was barred by the interpleader.
    The rejoinder of the defendants confined the issue to the effect of the interpleader, and this was exclusively a question of law.That it was for the court to determine, and not for the jury; requires no citation of authorities.
    In none of the English cases is the sheriff liable for a trespass, in taking and seizing goods, but only where there is a trespass separate and apart from the seizure. No such allegation is made here. When an issue is framed to try the right to . the property, under the order of court, all questions as t.o the relief of th.e sheriff are concluded by the order : Philips v. Reagan, supra. The act is for the relief of the sheriff, and to exempt him from hazard and expense: Bain v. Lyle, 18 P. F. Smith 60; Hess v. Beates, 28 Id. 429. The protection of the law runs from his seizure of the goods, not from the time he applies for the benefit of the act. It does not confine relief to the time subsequent to his application therefor.
    There is nothing in the act which makes it imperative on the court to grant an issue when applied for by the sheriff. Its award or refusal is not a matter of right, but of sound discretion under all circumstances of the case. The Interpleader Act makes no provision for a writ of error, whether the court grants or refuses an issue: Bain v. Funk, 11 P. F. Smith 187.
    . We conclude, therefore: 1. The relief afforded is against any action for the seizure and sale of goods under an execution. 2. This relief is discretionary with the court, and upon cause shown will not be granted. 8. The grant of it is conclusive upon all parties.
    October 6th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The procedings under the Interpleader Act, resulting in a verdict and judgment in favor of the plaintiff, conclusively established his title to the goods seized by the sheriff as the property of Zacharias & Co., on the execution of the bank against that firm. In the present action against the sheriff and execution-creditor for the wrongful seizure and sale of the goods, the question is whether the defendants were protected by those proceedings, and if so, to what extent.

The learned president of the Common Pleas being of opinion that the main facts, admitted by the pleadings, presented a question of law for his decision, held that the proceedings were a complete protection to both defendants, and a bar to the action of trespass. He accordingly entered judgment against the plaintiff; and this has been assigned for error.

The Interpleader Act, as appears by the preamble, was designed for the relief of the sheriff, and intended to exempt him from the hazard and expense of actions that might otherwise be brought against him by person, sclaiming the goods upon which he had levied, who were not parties against whom the process issued. There is nothing in the act which makes it imperative on the court to grant an issue when applied for by the sheriff. Its award or refusal is not a matter of right, but of sound discretion, under all the circumstances of the case. No provision is made for a writ of error, whether the issue is granted or refused: Bain v. Funk, 11 P. F. Smith 185.

It was never intended by the framers of the act that the sheriff, b.y direction of the execution-creditor, and under the shield of indemnity furnished by him,-might seize and hold the goods of a stranger until he saw fit to institute proceedings under the Inter-pleader Act, and in the end, after the claimant succeeded in establishing his title to the goods, invoke these proceedings as a complete protection against the demands of the injured party, based on acts of trespass committed before the proceedings were commenced. Such a construction of the act was never contemplated; nor is the sheriff required to incur any such risk. In Day v. Carr, 7 Exch. 883, it is said, “ In many cases he will be justified in applying to the court before he perils himself by an actual seizure, under circumstances which might perhaps subject him not only to an action for the value of the goods, but also for damages for taking them.” After quoting this sentence with approbation, the present chief justice, in Phillips v. Reagan, 25 P. F. Smith 381, says, There is great reason, when the goods of one man may be taken under an execution against another, why an actual levy should not be necessary. Every purpose of the act may be accomplished without it. Especially is this so when the goods are in the actual possession, not of the defendant in the execution, but of an adverse claimant. A very serious injury might be done to such a party by closing his store and putting a watchman in charge, even for the short period of time necessary to procure- the order of court for the interpleader.”

Our act is made even broader than the English statute, from which it appears to have been copied, by substituting the word “ entitled ” for the word “ intended.” It provides that the sheriff may apply to the court or a judge at chambers for a rule on the parties whenever adverse claim has been or shall .be made to any goods or chattels taken, or “ entitled to be taken in execution.”

In the present case, the sheriff found the goods in the possession of the plaintiff; knew that he had advertised them for sale, and was fully notified of his claim as owner. Under these circumstances he was not required to incur the risk of an actual levy and seizure of the goods. He might have presented his petition to the court or judge at chambers, setting forth the facts and asking a rule on the parties. If the court thought proper to entertain the application, it had full power to make all necessary orders in the premises. The sheriff might thus have acted from the beginning under the protection of the court, without committing any actual trespass; but instead of doing so, he disregarded the plaintiff’s claim, levied on and took possession of the goods, on November 15th 1877. Although his petition for the rule on the parties is dated six days thereafter, it was not presented until the fourth day of December following. In the absence of explanation this delay was uncalled for. When the court was applied to it acted promptly in granting the rule, and subsequently, in awarding the issue; but no other order was either made or applied for. All that took place subsequently to the granting of the rule appears to have been done under the direction of the court, and for everything ,so done, the sheriff may justly claim protection and plead the fact in justification; buffer anything done before his petition was presented, he is not within the protection of the act.

' The extent of the protection afforded by the English Interpleader Statute, which is almost identical with our own, was discussed in Walker v. Olding, 1 H. & C. 621, in which Pollock, C. B. says: “We think the plaintiff is entitled to damages only up to the time of the interpleader order. The verdict establishes that the defendants are trespassers and wrongdoers, as stated in the declaration, and the only question is, what is the damage caused to the plaintiff by the trespasses and wrongful acts so established'( Now, up to the time of interpleader order, all the damage sustained by the plaintiff is caused by the defendants, who, up to that time, are with the sheriff joint.trespassers and wrongdoers. But, on the making of the interpleader order the case is different.”

The bank was not responsible for anything done by the sheriff, unless he acted by its direction. It is very clear, however, that if it indemnified the sheriff and directed the seizure of plaintiff’s goods as averred in the pleading, it is liable to the same extent, at least, as the sheriff; but, we are of opinion that both defendants are fully protected by the interpleader proceedings in all that was done in pursuance thereof or under the direction of the court. The act provides a mode by which the title to personal property, and consequently its liability to execution ás between the claimant and execution-creditor may be judicially determined; and, in the absence of proper averment and proof of malicious abuse of civil process, the parties to the proceeding cannot be considered trespassers while pursuing, in good faith, the remedy provided by law.

Upon the facts of the case, as presented, we are of opinion that neither of the defendants can justify under the Interpleader Act for anything done prior to the inception of the proceedings thereunder, but so far as they or either of them afterwards acted under the ■direction of the court, or in accordance with the interpleader proceedings, they are entitled to claim protection.

Judgment reversed, and a procedendo awarded. ■


text:
    Harlan et al. versus Maglaughlin et al.

    1. The Statute of 13th Elizabeth does not make a voluntary conveyance void as to future creditors, because of an existing indebtedness, which might thereby be hindered, delayed or defeated, unless there is evidence to indicate that the grantor intended to withdraw his property from the reach of such creditors. A subsequent creditor can only avail himself of the fraud which is practised against him. Snyder v. Christ, 3 Wright 499, and Monroe v. Smith, 29 P. P. Smith 457, followed.
    2. The court below instructed the jury, that where there were debts existing at the time of the conveyance and their recovery was thereby hindered, delayed or defeated, this circumstance raises a suspicion of fraud from which an intent to defraud subsequent as well as existing creditors may be inferred. Held, that this instruction was erroneous.
    May 16th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxsok and Woodward, JJ., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 89.
    Ejectment by Maud Maglaughlin and Wilmer K. Maglaughlin, by their guardian, William A. Coffey, against Anne Harlan and David Sipe for two lots in Carlisle, Pennsylvania.
    On March 31st 1859, John Mell conveyed by a deed a lot of ground to Isabella'Noble, wife of John B. Noble, for $50. This deed was duly recorded August 27th 1859. To the same grantee William Blair conveyed, by deed, a lot of ground on March 20th 1865, for $200, which deed was recorded March 28th 1868. On March 5th 1869, John B. Noble made a note payable to Christ. Kindler, upon which suit was brought, and judgment recovered for $129.47, with interest from 22d September 1869. A fi. fa. and vend. ex. issued upon this judgment and the above-mentioned lots were sold, as the property of John B. Noble, in 1870, to Charles E. Maglaughlin, whose heirs bring this ejectment. Isabella Noble, dying about 28th June 1875, letters of administration on her estate were issued to J. J. Good, who, under an order of the Orphans’ Court of Cumberland county, sold the above lots, October 31st 1877, to David Sipe, one of the defendants.
    At the trial, before Herman, P. J., the plaintiff gave evidence tending to show that John B. Noble paid for these lots, and directed the name of his wife to be used as that'of the grantee therein. There was also evidence that, when the first deed was made, Noble w'as indebted to different parties, in the sums of $3.37, and $60, payment of which was not shown; that, in the year 1859, after the Mell deed was made, debts were contracted to the following amounts: May 10th, $18, May 20th, $45, November 29th, $39 (reduced .October 14th 1861, to' $35.49); in the year 1860, as follows: January 13th, $60, which was paid; February 22d, $21.92, likewise paid; judgment April 14th 1860, for $5 penalty, for use of scales at suit of Borough of Carlisle; and in 1862, May 14th, $4.02, which was paid; another, originally $65, but, 26th November 1862, reduced to $6.50.
    As evidence of fraudulent intent on the part of Noble in having these conveyances made to his wife, one Foote testified that Noble “ told me before the war, in 1859, that he was in a good bit of trouble, and that he was going to put what he had, his property, over into Belle’s hands. He called his wife Belle.”
    Among the points submitted by the defendants were the following to which are appended the answers of the court:
    1. To render a voluntary conveyance void as to subsequent creditors, it must appear that it was made in contemplation of future indebtedness, and until this was shown the plaintiffs could not call upon the defendants to prove the consideration for the conveyances to Isabella Noble through whom he derives title.
    Ans. “This would be so if, at the time of the voluntary conveyance, no debts of the grantor existed, the recovery of which would be thereby delayed, hindered or defeated. Where there are debts existing at the time, and the conveyance has delayed, hindered or defeated their recovery, this circumstance raises a suspicion of fraud from which an intent to defraud subsequent as well as existing creditors may be inferred.”
    2. Of the deeds under which defendants claim, one was made 31st March 1859, and recorded 27th August 1859., and the other was made 20th March 1865, and recorded 23d March 1868, while the debt, which was the foundation of the sheriff’s sale, 'was not contracted until 5th March 1869, nearly ten years after first conveyance, and nearly three years after second conveyance, and there being no evidence that the said deeds were made in contemplation of future indebtedness, the plaintiff cannot recover.
    Ans. “ The principle invoked in this point would be correct in its application to this case if no indebtedness prior to the dates of the deeds existed to raise the suspicion of fraud. Whether the deeds were made in contemplation of future indebtedness or not is a question for the jury under all the evidence, and we submit it to them. If the deeds were made to defraud subsequent creditors, then they would be fraudulent and void and the defendants claiming title through Mrs. Noble, would have no title whatever.”
    8. Even if the conveyances to Mrs. Noble were void as to existing creditors of John B. Noble, at the dates of the said conveyances, they were not fraudulent and void as to subsequent creditors, unless the conveyances were intended to defraud them, or that Noble, at that time, was about engaging in some hazardous business, which would necessarily involve the capital, credit or labor of others, and no such circumstances have been shown by plaintiffs which Avould raise such a presumption.

      Ans. “ We'cannot charge you exactly as requested in this point, but say to you that even if the conveyances to Mrs. Noble were void as to existing creditors of John B. Noble, at the dates of the said conveyances, they were not therefore necessarily void as to Kindler, whose debt, it seems, was not contracted until 5th March 1869, unless the conveyances were intended to defraud future, as well as existing, creditors, or that Noble at the time was about engaging in some hazardous business, which would necessarily involve the capital, credit or labor of others. Does the evidence satisfy your minds that the conveyances were made with the intention of defrauding future creditors ? We submit the question to the jury.”
    4. There could be no legal fraud, except as to creditors at time of conveyances and such subsequent creditors as might have been contemplated by Noble at those times, and as there is no evidence shown from which it can be inferred that he w'as about engaging in a hazardous business, or had in contemplation future indebtedness, the plaintiff cannot recover.
    Ans. “ There can be no legal fraud, except as to existing or subsequent creditors. To be a fraud as to subsequent creditors, there must have been an intention in the mind of Noble, at the time of the conveyances, to defraud his future creditors. We cannot say to you that there is no evidence in the case from which it can be inferred that he had in contemplation his future indebtedness. There is some evidence on the question, and it is for the jury. We cannot withdraw the case from ,their consideration. But, unless the evidence satisfies the jury that the conveyances were made for the purpose of defrauding the future creditors of Noble, the deeds to Mrs. Noble would not be fraudulent and void as to Kindler, on whose execution the property was sold by the sheriff; and if not fraudulent and void as to him, the plaintiffs cannot recover.” .
    The verdict was for the plaintiffs. Defendants took this writ, and, inter alia, assigned for error the answers to the above points.

      W. TrieJcett, J. W. Wetzel and W. F. Sadler, for plaintiffs in error.
    The broad form of the instruction with respect to future creditors, in the answers which are assigned as errors, left the jury open to a misapprehension of the meaning of the word “ defraud,” when applied to remotely future creditors. The only conceivable sens.e in which the facts enumerated .would make it inferable that Noble, in 1859, intended to hinder and defraud a debt which began in 1869, is that of the bare purpose to put the property in his wife, so that it should not be in danger of being taken from her by debts at any time in the future to be contracted. But this is the purpose of all settlements on wives.
    The jury were in substance told that if the effect of the conveyance to the wife was to hinder and delay creditors to whom the grantor subsequently became indebted, and that the grantor, in making it, contemplated that it might have that effect, it would bé 'fraudulent and void. This was clearly erroneous: Snyder v. Christ, 3 Wright 507; Williams v. Davis, 19 P. F. Smith 28.
    When future creditors are deemed defrauded, it is invariably 'where the debts arise soon after the transfer, when the circumstances warrant the presumption of the injury to the creditor by a dependance on the continued ownership of the debtor: Williams v. Davis, supra; Nippe’s Appeal, 25 P. F. Smith 478; Snyder v. Christ, supra. Or when some new or hazardous business is contemplated : Black v. Nease, 1 Wright 433; Monroe v. Smith, 29 P. F. Smith 462. The deeds here were also of record. The jury were in substance told that from the bare fact of debts, when the Mell deed was made, which in fact were hindered, &c., they can find an expressly fraudulent intent with respect to a debt not contracted ■until ten years after the recording of the Mell deed. Under this instruction, fraud in law, is made sufficient evidence of fraud in fact. Cotemporaneous debts, in fact delayed, show fraud in law; and from this fraud in law alone, the jury are permitted to infer fraud in fact, in respect to debt originating ten years later.

      S. Hepburn, Jr., and 8. Hepburn, for defendants in error.
    The Statute of 13 Elizabeth protects creditors whose debts accrue subsequent to the fraudulent conveyance, equally as well as those whose debts were due when it was made: Twyne’s Case, 1 Sm. L. Cas. 5; Townshend v. Windham, 2 Vesey 11; Taylor v. Jones, 2 Atk. 600; Anderson v. Roberts, 18 Johns. 526.
    Where there is a voluntary settlement, and indebtedness at the .time, and the recovery of these debts is delayed, hindered or defeated, such settlement is fraudulent and void, and the avoidance of it, on account of such indebtedness, lets in the subsequent creditors on the property to satisfy their debts: Thompson v. Dougherty, 12 S. & R. 455. The intent with which a conveyance was made, is for the jury to determine.
    October 6th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

The court below fell into an error which pervades every part of •this case. A single point and answer will serve to develop this , error, and determine the material questions involved in this controversy. The counsel for the defendants below, plaintiffs in error, ■ asked the court to say to the jury that “to render a voluntary conveyance void, as to subsequent creditors, it must appear that it was made in contemplation of future indebtedness, and, until thjs was shown, the plaintiffs could not call upon the defendants to prove the consideration for the conveyance to Isabella Noble ■through whom they claim title.” The court answered: “This would be so, if, at the time of the voluntary conveyance, no debts of the grantor existed, the recovery of which would be thereby delayed, hindered or defeated. Where there are existing debts at the time, and the conveyance has delayed, hindered or defeated their recovery, this circumstance raises a suspicion of fraud from which an intent to defraud subsequent as well as existing creditors may be inferred.”

■ This language is borrowed from the case of Thompson v. Dougherty, 12 S. & R. 448, where it is applied, as in the case in hand, •to debts contracted after the execution of the voluntary grant. It Is, however, mere obiter dicta, not called for by the facts in the 'case, and not true in law. Notwithstanding the many loose declarations in the books to the contrary, the Statute 18 Elizabeth does not make voluntary conveyances void as to future creditors, unless there is some evidence to indicate that the grantor intended to withdraw his property from the reach of such creditors: Snyder v. Christ, 3 Wright 499. And it is properly said in Williams v. Davis, 19 P. F. Smith 21, that even an expectation of future indebtedness will not render a voluntary conveyance void where there is no frand intended by such conveyance. And so, also, in Thompson v. Dougherty, Mr. Justice Duncan, citing Saxton v. Wheaton, 8 Wheat. 229, says, “Chief Justice Marshall decided that a post-nuptial settlement on a wife and children by a man who is not indebted at the time, was valid against subsequent creditors, and that the statute does not apply to such creditors if the conveyance be not made with a fraudulent intent.” A similar ruling will be found in Townsend v. Maynard, 9 Wright 198, and in Greenfield’s Estate, 2 Harris 489. In the latter case, which involved a deed of trust of all the grantor’s property, it was alleged by Mr. Justice Bell, to be a sound rule of law that subsequent indebtedness cannot be invoked to invalidate a voluntary settlement made by •one not indebted at the time, or who reserves sufficient to pay all existing debts, unless there be something to show that the settle•ment was made in anticipation of future indebtedness. It is further said that though some doubt was thrown on this principle by Thompson v. Dougherty, it was afterwards dissipated by Mateer v. Hissim, 3 P. & W. 161. Furthermore, the case of Snyder v. Christ, above mentioned, which is very like the case in hand, settled any doubts that may previously have existed as to the effect of subsequent indebtedness. For though it seems to have been .generally admitted, that the statute is not operative as to such indebtedness, yet the admission has been so beclouded by apparently inconsistent dicta and qualifications, as to render its meaning ■obscure and unintelligible.- The settlement is good against after contracted debts if the settlor is unindébt.ed at the time, or if .he has made provision for existing debts, and so on. But how, if there be existing debts not provided for, and how if the settlement is fraudulent as to such debts? Will the settlement, in such case, be void as to all future indebtedness ? Is there no place for repentance and atonement by the after payment of existing debts, or may after creditors, notwithstanding such payment, avoid the deed ? Justice Duncan answers these questions by saying: “If the jury' find a prior indebtedness and any of that class of creditors is defeated by the settlement, then, my opinion is, that the property conveyed is to be considered as part of the estate of the debtor for the benefit of all his creditors. I know no midway. When a statute declares a matter void it thrusts all to destruction like a tyrant, while the common law, like a nursing father, makes that void where the fault is and preserves the rest.” In this, singularly enough, the fact is overlooked that the statute makes the gift or deed void, only, as to those who may be hindered, delayed or defrauded thereby, and that in this it follows the common law. This oversight, however, would seem to be accounted for by the fact that the opinion of Chief Justice Spencer in Anderson v. Eoberts, 18 Johns. 526, is adopted, wherein it is said, that the Statute of 13 Elizabeth protects creditors whose debts accrue subsequently to the fraudulent conveyance equally as those whose debts were due when it was made.

It would seem to be on this that Justice Duncan founds the assertion, already referred to, that the existence of prior debts creates a suspicion of fraud, which can only be repelled by showing that the subsequent creditors were provided for in the settlement. This, as it stands, is unintelligible; for one cannot provide for what he does not anticipate ; if he has no future debts in contemplation, how is it possible to make provision for them ? It, in fact, simply amounts to saying that the statute is operative upon subsequent, as well' as present, indebtedness. In like manner, it has been said, the settlor must not only retain property enough to satisfy present debts, but also to answer the reasonable probabilities of the future. But this rule is unreasonable in this, that it prevents men of limited means from making any settlement whatever upon their wives and children, a result certainly not contemplated by the statute. Besides this, the attempt to keep men and women in judicial leading strings all their lives, to direct what they shall or shall not do with their own property, is a matter which commends itself neither to sound legal reason nor to common sense. If a man is in debt, he may not give away his property until he has paid or provided for such debt; the reason for this is found in the principles of common honesty. If he contemplates future indebtedness, he must, for a like reason, provide for it, but he must not provide for what he does not anticipate, and for what may never occur. And if, without concealment, a man chooses to give away all his estate, or settle it upon his wife and children, what right has a subsequent creditor to complain ? It did him no harm; he gave the grantor no credit because of such property; he is, therefore, neither cheated nor impoverished by such gift. Furthermore, if A, by a voluntary conveyance, defrauds B this year, how is C, whose debt has no existence until ten years after, defrauded by that same conveyance ? It certainly will not do to say that because B was cheated therefore C is cheated, for between B and C there is no possible connection or privity. But if C has not been defrauded b} the grant, then, if the statute means what it most expressly says, he cannot impeach it..

We turn, therefore, with satisfaction to the case of Snyder v. Christ, where we have the plain and unambiguous declaration, that the subsequent creditor can avail himself only of that fraud which is practised against himself. The doctrine thus announced is made the more positive in that it is said, if the creditor knew of the voluntary conveyance w'hen he gave the credit, he could not be defrauded thereby, and, hence, could not impeach it.

This case, not only from the direct manner in which the principal subject of discussion is treated, but also by reason of the facts upon which it depends, must be regarded as a final determination of the question in hand.

These facts are briefly as follows: John Snyder, being the owner of a ti’act of one hundred acres of land, conveyed, it to one John Reger, in trust for the use of himself and wife for their joint lives and the life of the survivor of them, with remainder to two children of the wife, and to such children as the grantors might have. This was all the real estate Snyder owned, and it was in proof, that at the date of the deed, his debts amounted to some $200, and that his personal property did not exceed in value $150. Furthermore, he had expressed apprehensions of a claim for damages for a breach of promise suit of marriage, and, within a few days after the making of the deed, he had borrowed $200, and had also contracted the debt, on a judgment for which the property in suit was sold.

Here, then, we have every element necessary for a test case. A voluntary deed in trust of all the grantor’s real estate, providing, inter alia, for himself for life; existing debts unprovided for, and as to which this deed was undoubtedly fraudulent; no property reserved for the reasonable' probabilities of the future, an immediate contraction of subsequent debts, and an expressed apprehension of a pending claim for damages. It was, nevertheless, held, that of these facts the subsequent creditor could not avail himself, unless he could further show that a fraud was intended against himself. In other words, these facts standing alone, did not make for him even a prima facie case.

Snyder v. Christ was followed in Monroe v. Smith, 29 P. F. Smith 459, in which it was said that a deed, void as to existing creditors, by reason of the grantor’s fraud, is not necessarily void as to subsequent creditors; that it is bad only as to those it is intended to defraud.

It is scarcely necessary to say that these cases rule the one now under consideration. The deed of John Mell to Isabella Noble was executed on the 31st of March 1859, and was recorded in August.of the same year. The deed of William Blair to Mrs. Noble was made March 20th 1865, and was recorded 28th of March 1868. The judgment of Kindler v. John B.. Noble, upon which the property in dispute was sold, was founded on a note dated March 5th 1869, ten years after the date of the first deed, and nearly three years after the date of the second. When, in addition to this, we reflect that Noble’s debts at no time were large; that the testimony of- Foote relates to declarations made by Noble ten years before Kindler’s debt had an existence; that there is not one particle of evidence, direct or indirect, that a fraud was intended on future creditors, we must certainly conclude that the plaintiffs had no case,. and that the court should so have instructed the jury.

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


author: Mr. Justice Mercur

text:
    The Northern Central Railway Co. versus Commonwealth.
    . 1. An indictment will lie against a railroad company for the creation and . maintenance of a public nuisance.
    ■ 2. A turnpike is a public highway, in so far that an indictment will lie against one obstructing it, as for a public nuisance.
    3. A railroad company may construct its railway across any established road or way wherever it may be necessary to cross or intersect it, hut it must so construct it that it will not impede the passage or transportation of persons or property over said road or way. If it so construct its railway as to be a serious inconvenience and dangerous. obstruction to travel along the road or way, it may be indicted therefor.
    4. 'The fact that the Act of Assembly, incorporating a turnpike company gives it a specific remedy for an injury to'its rights, does not impair the separate right of the Commonwealth to indict.
    May 16th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Woodward, J.J., absent.
    Error to the Court of Quarter Sessions of Cumberland county : .Of May Term 1879, No. 178.
    Indictment of the Northern Centi-al Railway by the Commonwealth, for nuisance in obstructing a turnpike road by the construetion of its railroad over said turnpike. The defendant pleaded specially that the turnpike was not a public road or highway within' the meaning of the act authorizing an indictment for the obstruction of travel on highways ; that the railroad, jas now constructed, has been in use for twenty-four years, and that an indictment would not lie as by the Act of February 24th 1806, whereby the company was incorporated, a remedy was provided against the defendant for the non-repair of the road.
    The court overruled these special pleas, when the case was put' at issue, and a jury returned the following special verdict:
    “ That the road set out in the indictment as a public highway is a portion of the Harrisburg, Carlisle and Chambersburg turnpike, built by and belonging to the Harrisburg, Carlisle and Chambers-burg Turnpike Company, incorporated under the Acts of February" 24th 1806 and March 9th 1814, and other supplements thereto.
    “ That the defendant is the Northern Central Railway Company,' incorporated, as to the portion crossing the said turnpike, by the ■ name of ‘ The Susquehanna Railroad Company,’ ‘by Act of April 14th 1851, which, with other railroads, under Act of May 3d 1854, was consolidated into the Northern Central Railway Company.
    “ That the dirt, clay, stones and embankment mentioned in the indictment as an obstruction to travel and complained of as a nuisance, make the road-bed of said railroad where it crosses said turn-pike at Bridgeport.
    “ That the said road-bed is raised two feet on the west side and1 four feet on the east side above the natural line of descent of the turnpike at the point of crossing.
    “ -If the ground did not descend naturally, the mound occasioned by the construction of the railroad at the crossing would not produce more obstruction to public travel than necessarily results from' a railroad crossing, with a mound of that size and kind on a level-road ; - but from the nature of the ground, the mound caused by the railroad crossing amounts to a serious inconvenience and a dangerous obstruction to travel.
    “The elevation and level of the Northern Central Railway at the crossing is necessary in order to cross the Cumberland Yalley Railroad at grade, as now constructed, near the west end of its bridge over the Susquehanna river, the centre of the track of the Cumberland Yalley Railroad Company being but sixty-two feet from the centre of the turnpike crossing, and the charter of that company being senior to that of the Northern Central Railway Company.
    “ To lower the bed of the turnpike so as to allow it to pass under the railroad, would require an expenditure of from $5000 to $8000.
    "“ If the turnpike road made by said turnpike company is a public highway within the contemplation of the law, permitting an indictment for the obstruction of travel on highways, and if the railroad company is liable to indictment for obstructing tbe road in the manner in which they have done in the construction of their road over said turnpike, as herein before set out, then w.e find defendant. guilty in manner and form as it stands indicted; otherwise, not guilty.”
    * The court, Herman, P. J., delivered the following opinion.
    • “ Two questions are presented, by the special verdict in this case, for the opinion of the court. 1. Is the Harrisburg, Carlisle and Chambersburg Turnpike road a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways ? 2. Is the Northern Central Railway Company liable to indictment for obstructing this turnpike road in the manner in which it has done in the construction of its railroad over it ?
    “ 1. To sustain an indictment, at common law, for nuisance in obstructing a road, the road must first be shown to be public and not private, since, no indictment lies for a nuisance unless the offence be to the public generally, as distinguished from a special and limited class of persons. A public road, however, to be thus protected, needs not have been formally accepted by the municipal authorities. It is enough if over it the public have a right to pass and repass, whether freely, or on payment of a fixed toll. Nor does it matter that the road is owned by a private corporation. Supposing that the public has a right, on payment of fixed toll, to. travel on it, an indictment for nuisance lies for its obstruction: Whart. Crim. Law, 7th ed., sect. 2414. A turnpike road is a public highway, and an indictment -will lie as for a public nuisance against any person placing obstructions thereon: Commonwealth v. Wilkinson, 16 Pick. 176. That was an indictment against Wilkinson for obstructing a turnpike road in Pawtucket, by continuing within the limits of such road certain buildings which had been previously erected thereon, and the principal question in the case was, whether a turnpike road is a highway, and whether an indictment will lie against any person, for an obstruction thereon as a public nuisance. Chief Justice Shaw, delivering the opinion of the court, said: ‘ We think, that a turnpike road is a public highway, established by public authority for public use, and is to be regarded as a public easement, and not as private property. The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by public authority, and made at the expense of individuals in the first instance, and the cost of construction and maintenance is reimbursed by a toll, levied by public authority for the purpose. Every traveller has the same right to use it, paying the toll established by law, as he would have to use any other public highway.’ This language will apply with equal force to the case now under con sideration. The Harrisburg, Carlisle and Chambersburg Turnpike road was laid out and constructed by public authority for public use, under a charter granted by the legislature in pursuance of a system of public improvement adopted by the state at an early day, and must be regarded as a public easement and not as private property. The costs of its construction and maintenance is reimbursed by a toll levied by public authority for the purpose. The.company caunot close it to the public nor discriminate in favor of any particular person or class of persons. All have the right, upon payment of the toll regulated by law, to use it as common highway. I am very clearly of the opinion that it is a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways.
    “ 2. Is the Northern Central Railway Company liable to indictment for obstructing this turnpike road in the manner in which it has done in the construction of its railroad over it? * * * The Susquehanna Railroad Company, incorporated by the Act of 14th April 1851, was by the provisions of its charter made subject to all the provisions and restrictions of the General Railroad Act, approved 19th February 1849. The Consolidation Act of 3d May 1854, consolidating this and other railroad companies into the Northern Central Railway Company, provides, likewise, that such consolidation company shall be subject to the provisions of the General Railroad Act of 19th February 1849. The 12th section of the Act of 19th February 1849, very clearly points out the duty of the company in the construction of its railroad whenever it shall be necessary to cross or intersect any established road or way. It provides: ‘ That whenever, in the construction of such road or roads, it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of the said company, so to construct the said road across such established road or way, as not to. impede the passage or transportation of persons or property along the same.’ The meaning of this language is plain.; there can be no uncertainty about it. The company may construct its railroad across any established road or way, whenever it may be necessary to cross or intersect it; but, in doing so, it must so construct its road across such established road or way as not to impede the passage or transportation of persons or property along the same. If the company so constructs its railway, across any established road or way, as to impede the passage or transportation of person or property over the same, it does, not only, what it has no right to do, but, what the law prohibits it from doing. The Northern Central Railway Company, at this crossing, has so constructed its road as to be a serious inconvenience and dangerous obstruction to travel along the turnpike road, which is an established road or way, and thus has committed an act wholly unauthorized and illegal, and that this is an indictable nuisance, cannot, I think, be seriously doubted. The offence consists, not in crossing the turnpike road, but in the manner in which the crossing is constructed. The company has the right to cross it, but in doing so, it must so construct its railroad as not to obstruct the public travel or transportation of property over it.
    “ Corporations, other than municipal, may become amenable to the criminal law for public nuisance and may be indicted therefor: Canal Co. v. The Commonwealth, 10 P. F. Smith ,867.
    “It is the opinion of the court upon the facts found by the special verdict: 1st. That the turnpike road, made by the Harrisburg, Carlisle and Chambersburg Turnpike Road Company, is a public highway within the contemplation of the law permitting an indictment for the obstruction of travel on highways. 2d. That the Northern Central Railway Company is liable to indictment for' obstructing the said turnpike road in the manner in which it has done in the construction of its railroad upon it. Therefore, the verdict of the jury must be entered against the Northern Central Railway Company, finding it guilty in manner and form as it stands indicted.
    “ And now it is entered as the verdict of the jury, that the Northern Central Railway Company, the defendant in this case, is guilty in manner and form as it stands indicted, and thereupon, the sentence of the court is, that the Northern Central Railway Company abate the nuisance set forth in the indictment on or before the first day of April next, and pay a fine of one dollar and the costs of prosecution.”
    The defendant took this writ, assigning for error the overruling of the special pleas, and in entering the verdict as above.

      John Hays and A. B. Sharpe, for plaintiff in error.
    This turnpike is not a public highway : Act June 13th 1836, Purd. Dig. 1284, pl. 99; 73d sect. of Criminal Code, March 31st 1860, Purd. Dig. 336, pl. 108; Harding v. Inhabitants of Medway, 10 Metc. 469; 3 Bac. Abr. 493, Highways; Wood’s Law of Nuisance, sect. 235; Clark v. Commonwealth, 9 Casey 114. Where an indictment lies for nuisance in obstructing a public highway, it means a highway laid out under the Act of June 13th 1836. This is not a highway, because it is not so declared by its act of incorporation ; the legislature cannot vacate it; it is a contract which a subsequent legislature cannot impair; the duty of keeping it in repair is not imposed upon supervisors, as in the Act of 1836; it is required to pay all damages for land taken; it is not open and free to every one ; it has the right to take toll. Granting this to be a public highway, the railroad company had a right to obstruct it as they did, provided they did not unnecessarily interfere therewith : Act of February 19th 1849, Purd. Dig. 1290, pl. 38; Commonwealth v. Erie and North-east Railroad Co;, 3 Casey 355; Little Miami Railroad Co. v. Commonwealth, 16 American Railway Reports 285; Nashville and Decatur Railroad Co. v. State, 15 Id. 234; Town Council v. Providence and Springfield Railroad Co., 6 Id. 139. The remedy for the turnpike company is provided in its charter, and this indictment, therefore, will not lie.

      Q-eorge S. Fmig, F. F. Beltzhoover and S. Hepburn, Jr., for the Commonwealth.
    This is a public road. It is open to all people who pay a toll. There is no difference between a road laid out by the authority of the legislature and one laid out by a township under a decree of court. The public pays to pass over either; on the.one a toll and on the other a tax, and both are equally public highways: Commonwealth v. Wilkinson, 16 Pick. 175.
    The finding of the jury is that the crossing as made is a serious inconvenience and a dangerous obstruction to travel. Surely this impedes the passage or transportation of persons or property along the road, within the meaning of the Act of Assembly.
    No matter what remedies there may be for individuals against the turnpike company, the common-law remedy against a party obstructing a'public highway remains. Time does not run against the state.
    October 6th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

It is well recognised law, that an indictment will lie against a corporation, not municipal, for the creation and maintenance of a public nuisance: Reg v. Great North of England Railway, 9 Q. B. 315; Duter v. Troy Railroad Co., 2 Hill 629; Chestnut Hill Turnpike v. Rutter, 4 S. & R.. 6; Delaware Div. Canal Co. v. Commonwealth, 10 P. F. Smith 367. This indictment charges the plaintiff in error with having, unlawfully and injuriously, obstructed a public highway. The obstruction in question is in a turnpike, and caused by the manner in which the railroad crosses the same. The special verdict finds the mound, caused by the railroad crossing the turnpike, “amounts to a serious inconvenience and a dangerous obstruction to travel.” The mere construction of a railroad track across a public highway, in pursuance of law, is no nuisance: Danville Railroad Co. v. Commonwealth, 23 P. F. Smith 29. But it must be constructed in such a manner as “ not to impede the passage or transportation of persons or property along the same:” Act of 19th February 1849, Purd. Dig. 1220. The necessary running of trains across the highway is not the cause of complaint here; it is the construction of a permanent obstacle in the highway, which is “ a dangerous obstruction to travel,” and the maintenance of it there. Such an obstruction of a public highway is clearly a nuisance. It is contended, however, that a turnpike, constructed by a corporation, is not a public highway.

The main object and purpose of a-turnpike is to provide a public highway of a superior quality. That it is not a private road or way is very clear. It is not constructed under the supervision of municipal officers; yet it is by virtue of public authority, and for public purposes. It is for the use of every person desiring to pass over it, on payment of the toll established by law. It differs from a common highway in the fact that it is not constructed, in the first instance, at the public expense, and the cost of construction is reimbursed by the payment of toll imposed by authority of law. Its use is common to all who comply with the law. The same public annoyance and injury arises from its obstruction as if it was a common highway. Hence, in Lancaster Turnpike Co. v. Rogers, 2 Barr 114, it was said, that when the turnpike company ceased to use a building erected, in part on the turnpike, as a toll-house, it ceased to be there for a lawful purpose, and became a public nuisance. Common understanding and public policy unite in requiring us to hold that a turnpike is a public highway, in so far that an indictment will lie against one obstructing it, as for a public nuisance. It was so held in Commonwealth v. Wilkinson, 16 Pick. 175.

The Statute of Limitations runs not against the Commonwealth. Twenty-four years of continued nuisance create no presumption of a grant therefrom to maintain the same. Nor does the fact that the Act of Assembly gives the turnpike company a specific remedy for an injury to its rights, impair the separate rights of the Commonwealth. The owner of the fee of land over which a common highway passes may maintain trespass against one who deposits and maintains materials thereon: Lewis v. Jones, 1 Barr 336. Yet this in no wise bars the right of the Commonwealth to indict for the same act. So in the present case, the right of the Commonwealth to redress a public wrong is very clear. It is no sufficient answer to the wrong committed by the plaintiff in error to prove that it would require an expenditure of from $5000 to $8000, to so lower the bed of.the turnpike as to allow it to pass under the railroad. Whether that is the least expensive manner of removing the dangerous obstruction, we are not informed; but if it be, the sum is not so great as to absolve the railroad company from its duty of so making the crossing that it shall not endanger the reasonable passage of persors and transportation of property over the turnpike. The learned judge committed no error.

Judgment affirmed.