author: Mr. Justice Trunkey

text:
    Commonwealth versus Erie Railway Co. Same versus Same.
    Section 6 of the Act of March 26, 1846 (P. L. 179), providing that the stock of the New York and Erie Railroad Co. shall be subject to taxation to an amount equal to the cost of constructing that part of the road situate in Pennsylvania, is not repealed by the provisions of the General Revenue Act of April 24, 1874 (P. L. 68), providing that every railroad company doing business in this Commonwealth, shall bo subject to a certain tax upon its capital stock. The former act fixes the amount of capital stock to be assessed ; the latter act. fixes the rate of taxation.
    May 20th 1881. Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, Jj.
    " Error to the Court of Common Pleas of JDatvpMn county : Two cases. Of May term 1881, Nos. 170, 171.
    These were appeals by the Erie Railway Company, a corporation of the state of New York, from the settlements of the auditor-general and state treasurer against the said company, for a tax on capital stock for the years ending the first Monday of November 1876, and the first Monday of November 1877. There was no dispute as to the facts, and by agreement, the cases were tried by the court without the intervention of a jury.
    The material facts were as follows: The Erie Railway Company passes through the counties of Susquehanna and Pike, in the state of Pennsylvania. It obtained the right of way through Susquehanna county by the Act of February 16th 1841 (Pamph. L. 28). There is no mention made of taxation in this statute. The right of way through the county of Pike was secured to it by the Act of March 26th 1846 (Pamph. L. 179). Section 5 of this-act makes it the duty of the officers of said company, as soon as the railroad shall have been completed through Susquehanna and Pike counties, to file with the auditor-general a sworn statement of the cost of that portion of the said road within the state; and after the completion of the railroad to its western connections, to pay into the state treasury annually, in the month of January, $10,000. In pursuance of the above direction, the cost of that part of the Erie Railroad in Pennsylvania, was appraised and reported at the sum of $2,170,501.89.
    Section 6 of the said Act of 1846 is as follows: “ That the stock of said company, toan amount equal to the cost of the construction of that part of their road situated in Pennsylvania, shall be subject to taxation by this Commonwealth in the same manner, at the same rate as.othe^ similar property is or may be subject; and it shall be the duty of the said company to cause their treasurer to pay into the treasury of this state any tax to which said proportion of stock is liable, and the said company shall annually, in the month of January, make a statement to the legislature, under oath or affirmation of the president thereof, of its affairs, and the business done upon said road during the previous year; said statement to contain a full and accurate account of the number of passengers, amount and weight of produce, merchandise, timber, coal, and mineral transported on said road east of Dunkirk and west of Piennont.”
    The General Revenue Act of April 24th 1874, section 4 (Paraph. L. 68), enacted that every railroad company, incorporated under any law of this Commonwealth, or incorporated in any other state and doing business in this Co mmonwealth, shall pay a tax into the state treasury annually at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend declared, and in case of no dividend being declared, then six mills upon a true valuation of the capital stock.
    The accounting officers were of the opinion that the act of 1874 repealed the method of taxing the capital stock of this company, mentioned in the Act of 1846, and rendered it liable to tax in the same manuer as the stock of other railroad companies is taxed, according to the ratio sustained by the portion of the road in this state to its entire length. They therefore, in order to make a settlement of the tax, procured from the company a report and appraisement, by which it appeared that the company declared no dividends during the years ending November 1876 and November 1877; that the actual value of the capital stock was appraised for the year ending November 1876, at $13,980,-801, and for the year ending the first Monday of November 1877, at $8,465,578.
    The accounting officers therefore settled the tax for the year 1876 on the proportion of the capital stock represented by of road, being tbe proportion in Pennsylvania, with interest and penalty amounting to $9,745.02.
    A similar settlement was made for the year ending November 1877, upon the appraised value of the eajfital stock for that year, viz.: $8,465,578, except that for the portion of the year after March 20th 1877, the tax was at the rate of three mills, as fixed by the act of March 20th 1877 (Pamph. L. 6). The tax for the latter year, with interest on the said proportion of the road in Pennsylvania, was $3,333.70.
    The company appealed from these settlements on the ground inter cilia that the tax should have been levied according to the provisions of sections 5 and 6 of said Act of March 26th 1846, which constituted a contract between the state of Pennsylvania and said railway company, and because the settlement of tax under the said acts of 1874 and 1877 impairs the obligation of said contract, and said last mentioned acts, so far as they may apply to the Erie Railway Company, are unconstitutional and void.
    The court sustained the exceptions, and entered judgment in favor of the Erie Railway Company, Pearson, P. J., filing the following opinion:

      “ The defendant company showed the grant of a franchise from Pennsylvania for this company to lay a track of its road through two counties of this state for about forty-two miles, for which it was to pay $10,000 per annum. It was by a later statute required to have the cost of the road in Pennsylvania appraised and a report made of the cost thereof, in this State, to the auditor-general’s office, which was done, and the cost thereof was appraised at $2,170,501.89. We find these to be the undis-. puted facts in the case.
    “ The question presented is, how is the tax to be assessed ? The Commonwealth claims that it should be done under the 4th section of the Act of the 24th of April 1874, by apportioning it to the number of miles within this state. The defendant, that it must be taxed under the 5th and 6th sections of the Act of March 26th 1846, according to which it was appraised. If computed by that data, then a question arises as to whether it should be taken at its face, or by estimating the value of the. stock ? The 5th section directs the appraisement; the 6th'‘that the amount equal to the cost of construction in this state shall be subject to taxation by the Commonwealth in the same manner, at the same rate, as other similar property is or may be subject.’ IIow is the stock taxed? The answer is obvious. If it will make a dividend of six per cent', or over, at a rate fixed by the statutes from time to time; if under that rate then at a valuation, generally to be made under oath by the company officers. The expense of construction, or cost of that part of the road in Pennsylvania is valued, and thenceforth well known, and the computation by the mile is seldom resorted to when this better and more certain method exists. In fact, it has been held by several decisions of the Supreme Court, that when a valuation or account of the expense of constructing a portion of the road has been ordered by statute, made and returned to the auditor-general’s office, there could be no change in the valuation. This was first decided by myself in 1849 in the case of £ The Delaware and Hudson Canal Co. v. The Commonwealth,’ and was affirmed in the Supreme Court the same summer (not 1859, as stated in 7 Wright 230), but brought up a second time in 1862, between the same parties, when I had decided that for new and extensive improvements, additional taxes might be laid on the new part, for which the judgment was reversed; the judge delivering the opinion declaring that there could be no increase of this valuation, but this state, being the owner, could only take its share in dividends. This, of course, was in lieu of taxes. I am inclined to doubt the soundness of that part of the opinion which makes the state a partner in this road, but believe the road within this state must be taxed by the proportion fixed against other roads in the state by its valuation, and not by its length. The first of the cases cited was best considered, but has never been reported. I do not deny the power of the legislature to impose additional tax on this company when the wants of the state require it, but it must be imposed by express direc-, tion. There is no presumption that the legislature intended to depart from a valuation, and adopta new system, unless expressly required. There is no doubt but that the 4th section of the Act of 1874 most carefully, and in clear language, imposed taxes on this, as on all other railroads within this Commonwealth, but in what way was it to be imposed % If to be computed by the mile, it would be much greater than if on the value of the stock as returned. There is nothing in the words of the Act of 1874 which should cause a change in the method of assessing the faxes in this case, which has been pursued invariably from 1846.
    “ On examination, it is found that on the principles laid down in the foregoing opinion, and the production of the receipt of the state treasurer, there is nothing due to the Commonwealth. We, therefore, find in favor of the defendant.”
    Exceptions filed to the above decision were overruled by the court; whereupon the Commonwealth took this writ of error, and filed the following specifications of error:
    1. The court erred in deciding as follows: “ There is nothing in the words of the Act of 1874, which should cause a change in the method of assessing the taxes in this case, which had been pursued invariably from 1846.”
    2. The court erred in entering judgment against the Commonwealth and in favor of the Erie Eailway Company.

      Jjymcm D. Gilbert, deputy attorney-general, and Henry W. Palmer, attorney-general, for the plaintiff in error.
    It is a general principle that no surrender of the general power of taxation by any legislative act can be implied. The Erie Eailway Company first obtained a right to pass through a portion of Pennsylvania in 1841, under an act which was silent on the subject of taxation. The Act of 1846, extending this right to another county, provided a special mode of taxation, but it contains no contract limiting the taxing powers of this Commonwealth, and we contend that its provisions for taxation are supplied and repealed by the Acts of 1874 and 1877. This has virtually been already decided by this court in the Erie Railway Co. v. Commonwealth, 16 P. F. Smith 84, and Erie Railway Co. v. Pennsylvania, 21 Wallace 492, in both of which cases a new order of tax was sustained against this company, which could not have been done if the Act of 1846 liad'contained any contract restricting taxation. A corporation, chartered under an act which prescribes the payment of a certain tax in a certain mode, is subject to a subsequent general law, which increases the rate of taxation: Commonwealth v. Easton Bank, 10 Barr 442. A general tax law repeals an earlier special tax law unless it is protected, as the Act of 1846 is not, by a legislative contract: Iron City Bank v. Pittsburg, 1 Wright 340; Commonwealth v. Payette Co. R. R. Co., 5 P. P. Smith 452; Union Improvement Co. v. Commonwealth, 19 Id. 140. Mileage ratio is a proper admeasurement of the tax : Delaware Railroad Tax, 18 Wallace 208 ; Erie Railway Co. v. Pennsylvania, 21 Wallace 492; State Railroad Tax Cases, 2 Otto 611. Our position is in harmony with the above decisions and with sections 1 and 2 of article IX. of the Constitution, relating to uniformity of taxation.

      J. W. Simonton, for the defendant in error.
    Our position is that the special Act of 1846 is not repealed by the several subsequent taxing acts, not so much because they would impair our contract with the state, as because they do not relate to the same subject. The former deals with the rate of taxation and the manner of its collection, the latter fix a proportion of a larger quantity, which shall be subject to the tax, it being admitted that the whole is not. There is no repugnancy between them, and therefore the former is not repealed by the latter. So far as the Acts of Í871 and 1877 change the rate of taxation, they bind the defendant as as well as all other companies, but as they enact nothing about the proportion of the taxable subject, the proportion, as fixed by the Act of 1816, remains in force. The legislature might, no doubt, change the proportion of capital stock subject to tax, or adopt a mileage ratio as the basis of a proportion, but it has not done so. The cases cited on the other side either do’ not touch the question of ratio and proportion, or were decided under acts which expressly prescribe the mileage ratio, which the Acts of 1871 and 1877 do not. In this case the mileage ratio basis would be unjust, as the portion of defendant’s road in Pennsylvania runs through a comparatively sparsely settled disti’iet, the cost per mile being less than that of many other parts of the line, and all the expensive improvements and terminal works are outside of the state.
    June 2d 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

Section 6 of the Act of March 26th 1816, P. L. 179, relating to the New York and Erie Railroad Company, provides, “ That the stock of said company, to an amount equal to the costs of the construction of that part o'f their road situated in Pennsylvania, shall be subject to taxation by this Commonwealth in the same manner, at the same rate, as other similar property is or may be subject.”

¡Section 1 of the Act of April 21th 1874, P. L. 68, declares that every railroad company “ in any way engaged in the transportation of freight or passengers, shall be subject to and pay a tax into the treasury of the Commonwealth, annually, at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend made or declared by such company, and in case of no dividend being made or declared by such company, upon either its common or preferred stock, then six mills upon a true valuation of the capital stock of the same, ' upon which no dividend has been made or declared, made in accordance with the provisions of the 3d section of this act.”

The only question now to consider is, whether the 6th section Of the Act of 1846 is repealed by the Act of 1871. It is conceded that the Act of 1871 does not impose a tax upon the entire stock of the Erie Railway Company; only upon a fair proportion with reference to so much of the road as is located in Pennsylvania. It is silent as to the mode of ascertaining this proportion. Rut the Act of 1846, special as to this company, directs that the stock to an amount equal to the costs of construction of that part of the road situated in Pennsylvania, shall be subject to taxation in the same manner and at the same rate as other similar property. By the later statute a rate is fixed, if there be a dividend; if no dividend, then a rate upon a true valuation of the capital stock. The prior statute fixes the amount of that stock. One fixes the rate for all railroad companies, the other determines the assessment of the stock of this company. The alleged inconsistency is not clear. There is no difficulty in the way of both having effect. One does not repeal the other, unless there be a clear and strong inconsistency between them : Street v. Commonwealth, 6 W. & S. 209; Kilgore v. Commonwealth, 9 W. N. C. 184. Had it been the intention to place an undefined and arbitrary discretion in the public officers, to fix the proportion of the capital stock, the repeal of the 6th section of the Act of 1846 would be plainly expressed.

We think the learned judge of the Common Pleas was right in his conclusion that the Act of 1846 settles the method of ascertaining the amount of capital stock which shall be assessed, and that the Act of 1874 fixes the rate of taxation.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Smith et al. versus Walker.
    1. In an ejectment for unseated land plaintiff claimed under a warrant issued to R. M. on April 10th 1794, surveyed September 23d 1849, and returned to the Land Office and accepted three days later. He next proved from, the “Old Purchase Blotter” that said warrant was, on September 17th 1794, paid for in behalf of “Ingersoll, &c.” He then putin evidence the will of Jared Ingersoll, proved December 30th 1322, and that of Alex. James Dallas, proved January 28d 1817, whereby they devised all their real estate to their respective wives, but without specifically mentioning the tract in controversy. He then gave in evidence a deed from said wives for said tract, in 1833, and deduced title from the vendee to himself, showing also that a patent for said tract had been issued to his immediate vendor in 1874. Defendants objected to the admission of the wills of Ingersoll and Dallas in evidence, and to all the offers of proof of devolution of the title from them, because there was nothing in the case to show that Jared Ingersoll was the person who paid the purchase-money, or to connect him or Dallas in any way .with the title. Held, that, there was no presumption that Jared Ingersoll was not the Ingersoll mentioned in the blotter, but that, on the contrary, the undisputed claim to the warrant for the land in question by the devisees of Jared Ingersoll and Dallas and their vendees subsequent to 1833, was presumptive evidence in favor of the identity of said Jared with the person paying the purchase-money. Held, further, that although there was nothing to show any connection of Dallas with the title, plaintiff had nevertheless deduced a valid title to the whole of the tract to himself, for he held the interest of Jared Ingersoll, who, assuming that Dallas had no claim to the warrant, must have been possessed of the whole warrantee title to the tract. Held, therefore, that the admission of the evidence did not constitute ground for reversal.
    2. Whore a return of survey on a shifted warrant is accepted by the Land Office, and subsequently a caveat is iiled in said office to prevent the issuing of a patent until a question of interference with land already occupied is settled, the Board of Property has jurisdiction only to settle the conflicting claims, and cannot set aside and reject the return of survey on the shifted warrant so as to render the same invalid against subsequent warrantees.
    3. A shifted survey, if fairly made, returned and accepted by the proper authorities, will, where there is no intervening and opposing right, hold and secure the land from the time of acceptance.
    4. Where a deputy surveyor surveys more land than is called for by a warrant, the surveyor-general may accept such survey without a special warrant of acceptance, provided that the warrantee pays for the surplus at the time of such acceptance.
    5. Where the surveyor-general has accepted a survey embracing more land than is called for in the warrant, the presumption is, in the absence of evidence, that he has received the additional cost of the surplus from the warrantee.
    May 23d 1881. Before Mercur, Gordon, Paxson, Trunket, Sterrett, and Green, JJ. -Sharswood, O. J., absent.
    Error to tbe Court of Common Pleas of Huntingdon country: Of May Term 1880, No. 147.
    Trespass quare clausum fregit, et de bonis asportatis, by David Walker, against George L. Smith and others. Plea, not guilty.
    On the trial, before ■ Dean, P. J., the following facts appeared : The alleged trespass was committed on a tract of
    mountain land on which the defendants entered and cut and carried away timber. The plaintiff claimed title and the right to possession under articles of agreement of sale from one George W. Steever. He showed title out of the Commonwealth, and to his vendor, as follows : — •
    1794, April 10th. "Warrant to Robert Miller for “400 acres of land adjoining land this day granted to John Miller, in the county of Bedford.”
    1849, September 28tk. Survey returned, in which it is certified, “ Re-surveyed the 23d day of September 1849, in pursuance of a warrant granted to Robert Miller 10th April 1794.” Indorsed “ Accepted.”
    • The plaintiff showed, by the “ Old Purchase Blotter,” that on September 17th 1794, John Hall, on behalf of “Ingersoll, &c.,” (sic) paid purchase-money in specie, £2890, and fees, £144 10s., on 289 warrants of 400 A. each, including the Robert Miller.

      He then offered in evidence the will of Jared Ingersoll, dated October 17th 1822, proved December 30th 1822, whereby he devised his real estate to his wife Elizabeth. Objected to, because there is nothing to show that Jared, Ingersoll was the Ingersoll who paid the purchase-money. Objection overruled. . Exception (1st assignment of error).
    Plaintiff then offered will of Alexander James Dallas, dated August 10th 1804, proved January 23d 1817, whereby he devised his real estate to his wife, to be followed by deed for the Bobert Miller tract from the widows of Ingersoll and Dallas to Abraham Kerns. Objected to as irrelevant, nothing having been shown to connect Dallas with the title. Objection overruled. Exception.
    Deed, February 26th 1833, Elizabeth Ingersoll and Arabella Maria Dallas to Abraham Kerns, for, inter alia, the Bobert Miller tract. Becorded June 18th 1833, in Bedford county.'
    Deed, August 19th 1834, Abraham Kerns and wife to Samuel Barclay, for the undivided one-half part of the lands surveyed on 259 warrants, dated April 10th 1794, the warrantee names and locations particularly described' in deed from Elizabeth Ingersoll and Maria Dallas to said Kerns. Objected to, as the Bobert Miller warrant is not specifically named in the deed. Objection overruled. Exception.
    The plaintiff then gave in evidence mesne conveyances from Samuel Barclay and the devisees of Abraham Kerns to George W. Steever, for said tract; Patent to Steever, et al., January 2d 1874, and the articles of agreement from Steever to the ■plaintiff, dated March 6th 1874.
    The evidence of surveyors, and documentary evidence, showed the following facts: The Bobert Miller warrant was a ‘£ shifted ” warrant, and really called for the survey of land thirty miles south of where the survey was made; nevertheless, the survey was l£ accepted ” and the purchase-money paid, except for an excess of thirty-eight acres, for which the purchase-money was paid January 2d 1874, when the patent issued.
    On the survey on file is also ■ the following indorsement: ££ April oth 1852. Bejected. See minutes of Board of Property.” These minutes show that at a meeting of the Board of Property, in the matter of a suit between Bobert Miller and one Mierly, the following- entry was made: — •“ A warrant issued to Bobert Miller for four hundred acres of land in Bed-ford county, dated 10th day of April, 1794, adjoining lands granted to John Miller, same day. The 'defendant claims on a warrant in his own name, dated the 29th day of January, 1850. The warrant to Bobert Miller being a descriptive warrant, and located more than ten miles from the John Miller warrant, for which it calls as the only adjoiner, and located in direct violation of the general instructions given to every deputy and county surveyor. The return of survey on the warrant to Robert Miller calls for John Miller as an adjoiner,but it appears that John Miller was settled on adjoining lands and had no warrant, but was calculated to mislead the officers of the Land Office, and was the cause of the .acceptance of the survey.
    “ In view of the above facts the board reject the survey of Robert Miller, it being a settled and established practice not to accept surveys located different from the original call in the warrant.”
    Subsequent minutes of the Board of Property show that, on petition of George W. Steever and others, presented at a meeting held December 17th 1873, asking “that the Robert Miller survey (inter alia) may be reinstated am'ong the accepted surveys on file in the Land Office, to enable them to procure a patent therefor,” the board made the following order: — -“And now, to wit: Dec. 17th 1873, after consideration of the petition and certifícales thereto attached, the surveys made and returned in pursuance of warrants in the names of Robert and William Miller, Nos. 646 and 647 Bedford, are hereby restored to the regular liles, and patents directed to issue to the owners on payment of any arrearages and the fees.”
    The patent was thereupon issued to Steever.
    The defendants claimed, under the following title, a tract of iand which it was admitted interferes with the Robert Miller, tract as claimed by plaintiff:
    1852, April 20th. Warrant to John Crotsley 300 A. of unimproved land in Cass township, Huntingdon county.
    1852, May 4th and 5th. Survey, 302 A. 108 p. and allowance. June 17th 1852. Excess paid, and survey accepted.
    1873. Patent to John Crotsley for said tract.
    Title from Crotsley to defendants for the locus in quo.

    The defendants presented, inter alia, the following points:—
    1. That the plaintiff’s claim being founded on a warrant dated in 1794, in the name of Robert Miller, and no conveyance or assurance from Robert Miller or any other person who paid the purchase-money having been made to the plaintiff or any other person, predecessors in his alleged title, so far as the evidence shows, the plaintiff has not title and cannot recover. Answer. This point is denied.
    2. That there being no proof that “ Ingersoll,” named in the old purchase voucher, as having paid the purchase-money on 258 warrants, of which the Robert Miller is one, was Jared Ingersoll, the plaintiff has failed to show that he is the owner of any part of the land surveyed on the Robert Miller warrant or the land surveyed on the same, and he cannot recover. Answer. This point is denied.
    3. That the warrant in the name of Robert Miller being a descriptive warrant and calling “ for land this day granted to John Miller,” and the survey thereon in 1849 having been shifted from its true location, and not calling for any land granted to John Miller, and the said survey having been on April 5th 1852, rejected by the “ Board of Property,” the warrant issued on April 20th 1S52, to John Crotsley, followed by a survey made on April 26th 1852, and a patent issued to him on August 26th 1873, whilst the Robert Miller survey was lying in the rejected files of the Land Office, vested in John Crotsley a good title as against the Robert Miller, and the plaintiff canuofc recover. Answer. Our answer to this point is reserved, with the right to enter judgment on verdict non obstante veredicto, should there be a verdict for plaintiff.
    4. That as against the John Crotsley title, perfected, while the Robert Miller survey laid in the Land Office a rejected survey, the Robert Miller title cannot prevail. Answer. Our answer to 3d point is our answer to this point.
    7. That the evidence does not show any such possession in the plaintiff, actual or constructive, as to entitle him to recover in trespass. Answer. This point is denied.
    The court, in the general charge, said, inter alia: “We instruct you that the facts shown from the Old Purchase Blotter, and the fact that the devisees of Ingersoll and Dallas, as early as 1833, openly and notoriously treated the warrants as theirs by conveying them, are sufficient, after this lapse of time, to warrant you in presuming that Ingersoll- and Dallas were the owners of these warrants. They are sufficient to warrant you in inferring that Jared Ingersoll and Alexander M. Dallas were meant by ‘ Ingersoll,’ in so far as the records of the Land Office showAn whose behalf the purchase-money was paid.”
    "V erdiet for the plaintiff for $130, subject to the opinion of the court on the points reserved (defendant’s 3d and 4th points, supra). The court subsequently entered judgment on the verdict, Dean, P. J., filing the following opinion on the points reserved:
    “ I am of the opinion that the action of the Board of Property, after the acceptance of the survey, in having it marked rejected, was without authority of law, and therefore void, in so far as it is sought to affect the title of the owner of the survey thereby: Cassiday v. Conway, 1 Casey, 240; Chew v. Morton, 10 Watts, 321, and other authorities to the same point. When the Commonwealth undertook to grant the same land to John Orotsley by accepting the survey to him of 17th June 1852, it attempted to vest in him a title which she did not own, except for the purposes of alien to enforce payment of the purchase-money on the original granttherefore, defendants’ 3d and 4th points should have been denied, which is now accordingly done, and it is, ordered that judgment be entered on the verdict for plaintiff, March 15th 1880.”
    The defendants thereupon took this writ of error, assigning for ei-ror, inter alia, the admission of the evidence objected to, as above recited, and the answers to their points.

      W. H. Woods and R. B. Petrrikin, for the plaintiffs in error.
    The plaintiff did not claim to be in aoimal possession at the time of the entry by defendants, and his alleged oonsi^uotive possession depended wholly on his title, which he was bound to make out affirmatively. The failure to identify the “ Jared Ingersoll,” through whom he claimed, with the “ Ingersoll, &c.” who paid the purchase-money, was a missing link, and fatal to his recovery. The court erred in admitting the will of Jared Ingersoll without such identification. There was even less to warrant the admission of the.will of Dallas, as nothing had been shown to connect any one of that name with the title: Burford v. McCue, 3 P. F. Smith, 431; Sailor v. Hertzogg, 2 Barr 182; Sewall v. Evans, 4 Ad. & Ellis, 632; Brotherline v. Hammond, 19 P. F. Smith, 133.
    The Bobert Miller wan-ant was a descriptive one, and called for land “ this day granted to John Miller.” There was no attempt to locate it until 1849, when it was “shifted” from its true location thirty miles, and returned to the Land Office, with a false call, and with 3S acres of excess. The indorsing of this survey “ accepted,” was irregular and illegal, for two reasons:
    1st. Because the warrant was for 400 acres. The survey as returned is for 438 acres. The excess was not previously paid, and the survey could not legally be accepted: Act 13th March 1817, § 1, Purdon Digest, 915 ; Act 6th April 1830, § 2, Dunlop, 444; Act 21st April 1869, § 1, Purdon Digest, 916; Raush v. Miller, 12 Harris, 281.
    2d. Because it was not located according to the call “ adjoining land this day granted to John Miller,” but was “shifted” some thirty miles, and the false call of John Miller was written in the draft of survey. See instructions to county surveyors, issued from 1701 to 1833, printed in Annual Beport of Secre'tary of Internal Affairs, for 1877, p. 50.

      The Board of Property had full power to reject the survey : Act of April 5th 1782, § 2, Purdon Digest, 890; Hubley v. White, 2 Yeates, 140; Dunning v. Washmudt, 2 Yeates, 86; Eddy v. Faulkner, 3 Yeates, 580; Bryson v. Howe, 8 S. & R. 409 ; Dixon’s Exrs. v. Crist, 17 S. & R. 58. The owners not having brought ejectment within six months after the rejection of the survey, were forever barred, and their application to have the survey reinstated, after their abandonment for more than twenty-one years, was illegal: Shoenberger v. Becht, 5 Watts 194; French v. Seely, 6 Watts 292; Wilson v. Altemus, 2 W. & S. 260. The Crotsley warrant, survey and patent were issued,after the Bobert Miller survey was rejected, and before it was reinstated, and created a good title : Hoffman v. Bell, 11 P. F. Smyth 454; Chambers v. Mifflin, 1 P. & W. 74; Star v. Bradford, 2 P. R. 397 ; Foust v. Ross, 1 W. & S. 506 ; Adams v. Jackson, 4 W. & S. 74-84; Emery v. Spenser, 11 Harris, 275-277. The judgment of the court on the reserved points was erroneous, and the cases relied on in the opinion do not sustain it.

      E. M. Speer (JS. S. MeMuririe with him), for defendant in error.
    June 13th 1881.
   Mr. Justice Gordon

delivered the opinion of the court,

Prima facie the title of the plaintiff was good. He claimed some sixty acres and ninety-nine perches of a certain tract warranted to one Bobert Miller, on the 10th of April 1794, which was surveyed on the 23d of September 1849, and returned to the Land Cffice and accepted three days thereafter. As appears from the “ Old Purchase Blotter,” this warrant, with 288 others, was paid for by John Hall, in behalf of Ingersoll, &c.,” on the 17th of September 1794. This payment of purchase-money vested the title to these warrants in Ingersoll and his associate, if any such he had. The plaintiff then, further, in order to connect himself with this title, offered the will of Jared Ingersoll, proved December 30th 1822, devising his estate to his wife Elizabeth, and also the will of Alexander James Dallas, proved January 23d 1817, devising his estate to his wife Arabella Maria. These were followed by the deed of these devisees to Abraham Kerns, dated February 26th 1833, conveying •the whole of the warrants above recited, including the Bobert Miller. Then followed the offer of the deed of Abraham Kerns, dated 19th of August 1834, to Samuel M. Barclay, conveying the one-half part of 259 warrants, and referring to the deed above recited for a more particular description.

All tlae above mentioned offers were objected to on the fround, first, that there was nothing in the case to show that ared Ingersoll was the “Ingersoll” who paid the purchase money as above stated; second, that no title was shown in either Ingersoll or Dallas to the Miller survey. We think, however, with the learned judge of the court below, that this objection cannot be sustained. It is true that Ingersoll is a family name, but it does not follow, in the absence of proof to the contrary, that there was at that time any other bearing that family name except Jared, who claimed these warrants, or who professed to have an interest in them. Then, again, .the letters, “ &e.,” without explanation, mean nothing, and may be disregarded. We may, therefore, exclude Dallas from the title altogether, and yet vest title in the plaintiff, for if Mrs. Ingersoll, who, in that case, would be the sole owner of the Miller warrant, chose to join in a deed with Mrs. Dallas, conveying the whole of this land to Kerns, she would be estopped from denying his title. We also agree with the court below, that the notorious and undisputed claim to these warrants by the devisees of Ingersoll and Dallas, and their vendees, from 1833 down to the location of the warrant in 1849, was presumptive evidence in favor of the fact that Jared Ingersoll was identical with the “Ingersoll” whose name is found on the “Old Purchase Blotter.” This disposes of the 1st, 2d, 3d, 4th, 6th and 7th assignments of error.

The only remaining assignments which we consider of sufficient importance for notice are the 8th and 9 th, which except to the court’s refusal to affirm the defendants’ 3d and 4th points. Those points are as follows': — “That the warrant in the name of Robert Miller being a descriptive warrant, and calling for land ‘this day granted to John Miller,’ and the survey thereon, in 1849, having been shifted from its true location, and not calling for any land granted to John Miller, and the said survey having been, on the 5th of April 1852, rejected by the Board of Property, the warrant issued on the 20th of April 1852, to John Crotsley, followed by a survey made 4th and 5th of May 1852, and a patent issued to him on the 26th of August 1873, while the Robert Miller was lying on the rejected files of the Land Office, vested in John Crotsley a good title, as against the Robert Miller, and the plaintiff cannot recover.”

2. “ That as against the John Crotsley title, perfected while the .Robert Miller lay in the Land Office, a rejected survey, the. Robert Miller title cannot prevail.”

We -think the affirmance of these points was well refused.

In the first place, there was but a-single question before the Board of Property, and that was whether the Myerly warrant was well laid upon the land already occupied by the Miller survey. The object of the caveat was to settle this question and this alone, and when the board went beyond this and attempted to set aside and reject the whole of the Miller survey, which had been returned and accepted some two years before the date of the meeting of that board, it exceeded its jurisdiction, and its judgment was, to that extent, void. So far as the Myerly location was concerned, no doubt, the sentence of that body was operative, and as no attempt was made, within the six months prescribed by the Act of 1792, to impeach it, it must now be regarded as final and conclusive. But we cannot see what this warrant has to do with this case. The defendants do not claim under it, but under the Crotsley warrant of May 5th 1852, and as the evidence nowhere shows whether the Myerly warrant embraced four, or four hundred, acres of land, it was good for nothing as an outstanding title.

But, in the second place, the reasons given by the Board of Property for the rejection of the Miller warrant, and which are now relied upon to reverse the court below and defeat the plaintiff, are not sound. I find it ruled as early as 1Y97, in the case of Irwin v. Moore, per Y bates, J., reported in 2 Smith’s Laws, 187, that a shifted survey, if fairly made, returned and accepted by the proper authority, when there is no intervening opposing right, will hold and secure the lands. And it was said, in Funston v. McMahon, Idem 188, that the practice of all deputy surveyors to shift lost locations was perfectly1- familiar to the whole country, and was never questioned before the revolution, but that it was necessary that a return should be made thereof to the office of the surveyor-general, in order to operate as constructive notice to other applicants. And in McKinney v. Houser, Idem 190, it was said, by Smiths J., that the acceptance of such surveys was never refused by the Land Office, though the surveyor had no direct authority for making them. Kyle v. White, 1 Binn. 246, is another case in point, as are also Miles v. Potter, 2 Binn. 65; Fox v. Lyon, 9 Ca. 474; Mix v. Smith, 7 Barr 75, and many other authorities, which it would be useless to cite.

It will thus be found that the reasons given by the board for the rejection of the Miller warrant were altogether unsound, and opposed to the whole current of authority, and we must, therefore, consider the Miller warrant effective, as against the Crotsley survey.

During the argument objection was taken to the Miller survey, because it embraced an excess of thirty-eight acres over the amount called for by the warrant. But an objection such as this cannot be sustained, since the Act of 1819, which authorizes the surveyor-general to accept such surveys without a warrant of acceptance.

All that is now required is that the surplus be paid for at the time of acceptance. This, however, is a matter for the surveyor-general, for the neglect of which he must answer to the Commonwealth, and as' the legal presumption is that that officer has done his duty (Burford v. McCue, 3 P. F. S. 427), a question of this kind has no standing in the case in hand.

Judgment affirmed.


author: Mr. Justice Merour

text:
    Fries versus Pennsylvania Railroad Company.
    1. Where a case has been tried upon its merits and a verdict and judgment entered for plaintiff, and afterwards on error the judgment is reversed. but no venire facias de novo is awarded, that judgment of reversal constitutes no bar to another suit for the same cause of action.
    2. The exercise by the Supreme Court of the power to award a venire facias da novo in cases where it has reversed the judgment of the court below is controlled by the character of the case and the sound discretion of the court. ■
    May 24th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, J J. Sharswood, O. J., absent.
    Error to the Court of Common Pleas of JBlavr cownty: Of May Term 1881,-No. 141.
    Case, by Samuel I. Pries, trading as the Union Hardware Company, against the Pennsylvania Nailroad Company, to recover damages for certain hardware nmd personal property lost or destroyed while in transit in the cars of the defendant company. The defendant pleaded specially that the plaintiff had brought a former suit for the same cause of action in the Court of Common Pleas of Blair county, to October Term 1875, No. 191, wherein the plaintiff recovered a verdict and judgment for $1836.46; that the defendants sued out a writ of error to the Supreme Court, whereupon the said judgment was reversed and the said Supreme Court subsequently discharged a rule to show cause why a venire facias de novo should not be awarded (see Peuna. N. N. Co. v. Fries, 6 Norris 234). The plaintiff demurred to the said plea, and the Court of Common Fleas entered judgment for the -defendant on the demurrer.
    The plaintiff took this writ of error, assigning for error the entering of judgment for the defendant on the demurrer.

      S. 8. Blair (Alexander c& Herr with him), for the plaintiff in error.
    The effect of the judgment in the Supreme Court of “ judgment reversed ” without the award of a new venire is only to ease the defendant from the result of an erroneous judgment in the court below, and leaves the parties in statu quo ante helium. The judgment of reversal cannot be pleaded as an estoppel in a new suit for the same cause of action. The judgment qicorl judicium reversetur is only conclusive of the fact that the court below committed an error : 3 Bac. Ab. 387, tit. Error; Smith v. Sharp, 5 Watts 292; Coleman’s Appeal, 12 P. F. Smith 252; Aurora v. West, 7 Wall. 82. If the court below had granted a nonsuit, the plaintiff could have brought a new action. What is the difference, where the court below submitted the case to the jury, and a verdict and judgment was had for the plaintiff, but the judgment was reversed by the Supreme Court without a new venire 1 In England, it was always the practice under the statute 21 James I., to bring a new action in such cases; and our Act of March 27th 1713, § 2, Purd. Dig. 932, pi. 20, which is copied from that of 21 James I., expressly authorized a plaintiff in such case to commence a new suit within a year after the judgment of reversal. In order to expedite business, the Supreme Court adopted the practice of allowing a new venire, but it is always a matter of discretion. Sterrett v. Bull, 1 Binney 238, is the first precedent in this state for allowing a venire facias de novo : Mercer v. Watson, 1 Watts 330, 333-34.
    It may be that for some purposes, a judgment of reversal is a final judgment, e. g., to support a writ of error to the Supreme Court of the United States, or in replevin to fix the liability on the bond, as in Gibbs v. Bartlett, 2 W. & S. 29. But as res judicata between the parties in a suit of this character, it is no judgment at all.

      L. W. Hall and D. J. Neff, for the defendant m error.—
    The Act of 1713 is a statute of limitation, and its only effect is to declare that in cases where the plaintiff has a good light to sue, he must bring his suit within one year. The act refers only to cases where there was no trial on the merits, and the authorities cited were cases where the merits were not decided. But this case was fully tried and reviewed on the merits, and this court decided that the plaintiff had no cause of action, because the damage was caused by the act of God (6 Norris 234). A.nd because the plaintiff had no cause of action, this court overruled his motion for a venire de novo, and that judgment was final: Mayer v. Walter, 14 P. F. Smith 283 ; Bellas v. Hays, 5 S. & R. 445 ; Griffith v. Eshelman, 4 Watts 51; 1 Tr. & H. Prac. 72 (Ed. 1880); Freeman on Judgment, § 247.
    October 3d 1881.
   Mr. Justice Merour

delivered the opinion of the court

This contention arises on what effect is to be given to a former judgment between the same parties and for the same cause of action ? In the former case a general verdict was found in favor of the plaintiff, and judgment was entered thereon. On error by the defendant to this court, that judgment was reserved, but a venire facias de novo was refused. This suit was brought in less than one year thereafter, for the same cause of action. The question is, whether the former judgment is a bar to this last action ? The court beiow held it was, and on demurrer to a plea thereof, entered judgment in favor of the defendant.

In 3 Bac. Abr. 386 it is said, “ If judgment be given against the defendant, and he bring a writ of error upon which the judgment is reversed, the judgment shall only be quod judicivm reversetur: for the writ of error is brought only to be eased and discharged from that judgment.”

The power of this court to award a venire in the case of a reversal of the judgment is now settled. It was so held in Sterrett v. Bull, 1 Binn. 238, and we are not aware that the power has since been questioned. The exercise thereof is controlled by by the character of the case, and the sound discretion of the court.

A judgment of reversal without a venire is not such a final judgment that an execution can issue thereon for the collection of costs: Smith v. Sharp, 5 Watts 292. The effect of such a judgment was considered in Mercer v. Watson, 1 Watts 330. It was a judgment by this court, in case of a general verdict and judgment, on error by one who had recovered a previous verdict and judgment against the same party for the same land and on the same title ; yet the two judgments were held insufficient to bar another action of ejectment by the other party. In delivering the opinion of the court Mr. Justice Kennedy said, “A judgment merely reversing the judgment of the court below rendered on a general verdict, may be, and often is, for a cause that does not ultimately vary or change the final determination of the ease.....It may furnish some ground to presume, that the party against whom the writ of error was sued out, or the court, or both, if you please, thought that from the nature of the case that had been declared, a veni/re facias de novo would not be likely to be available to the defendant in error : but not to prevent absolutely his bringing a new action, in case he should afterwards change his mind, or discover that he can supply what was wanting before, or in any way overcome the difficulty or objection then interposed to his recovery.”

In personal actions the right of a party to commence a new suit, after the reversal of a prior judgment in his favor for the same cause of action, is distinctly recognized by the Act of March 27th 1713, 1 Smith’s Laws 76. Section 2 declares: “ If in any of the said actions or suits, judgment be given for the plaintiff, and the same be reversed by error, or a verdict passed for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, then and in every such case, the party plaintiff, his heirs, executors or administrators, as the case may require, may commence a new action or suit, from time to time, within a year after such judgment reversed or given against the plaintiff as aforesaid, and not after.” The present action is of the kind referred to in the statute, and it was brought within a year after the reversal of the former judgment.

It is true in Gibbs v. Bartlett, 2 W. & S. 29, it was held, the reversal of a judgment in replevin, without a venire, was con elusive as to the liability of the surety in the replevin bond, conditioned that the plaintiff “ prosecute the suit with effect and without delay yet as said by the present chief justice in commenting on that case in Coleman’s Appeal, 12 P. F. Smith 252, “ It is by no means clear that a simple judgment of reversal in a court of error is such a final judgment as to have the effect of an estoppelciting Aurora City v. West, 7 Wallace 92. Neither the Act of 1713,. nor the case of Mercer v. Watson were noticed. We think the case of Mayer v. Walter, 14 P. F. Smith 283, properly understood, is not in conflict with the conclusion at which we have arrived. When the case between these parties was previously here, we held the facts proved gave no cause of action. The judgment of reversal then rendered, was a declaration of the law on that evidence. If on another trial the evidence shall be substantially the same, it will be the duty of the court to apply the law as we then declared it. That judgment, however, is not a legal bar to the present action. '.

Judgment reversed and a procedendo awarded.


text:
    In re Road in Cherry Grove Township.
    1. The Act of April 9th 1844 (P. L. 280), as amended by the Act of March 15th 1848 (P. L. 163), relative to the laying out and altering of roads in Warren and other counties, does not require the road commissioners, in case they refuse an application to lay out a road, to make re" turn of that fact to the Court of Quarter Sessions.
    2. A refusal on the part of the road commissioners to lay out the road is final, and even if they do make a return to that effect to the Court of Quarter Sessions, no jurisdiction of the proceeding vests therein.
    3. If said court, after the making of said return, grant a re-view, and subsequently a report favorable to tbs laying out of the road is made by the reviewers, which the court confirms, the proceedings will, on certiorari, be set aside for irregularity.
    May 24th 1881. Before Mercur,.Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Certiorari to the Court of Quarter Sessions of Warren county: Of May Term 1881, No. 35.
    The record showed the following facts : Nineteen citizens of Cherry Grove Township presented a petition to the road.commissioners of said township for the laying out of a new road between termini therein mentioned, and to report a survey thereof to the next Court of Quarter Sessions of Warren county. The commissioners subsequently, on June 5th 1879, filed a report in the Court of Quarter Sessions setting forth that, having given due notice to all parties interested, and having viewed the ground for the proposed new road, they decided that such road was unnecessary, and would be .inconvenient and burdensome; and they asked that the court might confirm their report.
    The petitioners thereupon prayed the court for a re-view, which was granted, and the re-viewers subsequently filed their report setting forth that the road was necessary, and returning a survey thereof. The court thereupon ordered the road to be opened fifty feet wide.
    The road commissioners filed exceptions to the report of the re-viewers and the said .order of the court, because, (1) the road commissioners having rejected the original petition to lay out the road, their action is by law final and conclusive upon that subject; (2) there is nothing in the road laws applicable to Warren county authorizing, requiring or permitting the commissioners, having once rejected a petition for a road, to make any report of their action to the court, and any action of the court based upon such a report is unauthorized by law and beyond its jurisdiction.
    The court overruled these exceptions and confirmed the report of the re-viewers. The commissioners thereupon took this certiorari, assigning for error, the order of court overruling their exceptions as above.

      Johnson (Lindsey & Parmlee and Dismoor & Cable with him), for the appellants.
    The Court of Quarter Sessions has no jurisdiction of road cases, except such as is conferred by statute: liberty Alley, 8 Barr 381; Church Road, 5 W. & S. 200. By the local road laws in force in Warren county, where the road commissioners have disallowed and rejected a petition for a new road, their action is final, and jurisdiction is in such cases expressly withheld from the court. The act of April 9th 1844 (Pamph. L. 230) relating to roads in the counties of Warren, Venango and McKean, makes it the duty of the road commissioners of the several townships to take general charge and supervision of the roads and to lay out and alter the same on the petition of citizens, if they shall deem the same necessary, and shall furnish the township cleric with a return of roads so laid out or altered, in the same manner as viewers now make report to the Court of Quarter Sessions, and said clerk shall keep a record of all such roads so laid out or altered. By the 14th section of said act, the existing road laws, of the Commonwealth, so far as they are supplied or altered by said act, are repealed as to Warren, Venango and McKean counties. The supplement of March 15th 1848, providing that whenever the road commissioners shall lay out, alter or vacate any road under the provisions of the original act of 1844, they shall report to the Court of Quarter Sessions, in the same manner as viewers were required to do by the act of June 13th 1836, does not apply to the case where the commissioners do not lay out a proposed road, but expressly refuse to do so. That the commissioners erroneously filed their report in the Quarter Sessions, did not give that Court jurisdiction. The re-view granted was, therefore, without jurisdiction, and the dismissal of our exceptions erroneous.

      Wilbur (Schnur with him), for the appellees.
    Prior to the Act of 1844, the general road law of 1836 was in force in Warren county. It required that viewers should report to the Court of Quarter Sessions, whether they allowed or rejected a petition for a new road. The Act of 1844 only repeals the Act of 1836 so far as it was thereby supplied or altered. The intention of the Act of 1844, was, that road commissioners should .perform, the same duties as viewers under the Act of 1836 ; if the Act of 1844 makes no provision with reference to a report by the commissioners when they refuse to lay out a proposed road, then to this extent the act of 1836 is not altered or supplied, but is still in force. The commissioners evidently took this view, as they filed their report in the Quarter Sessions. So, also, the provision of tbs Act of 1836, that the court shall, on petition of any person interested, direct a re-view, is not altered or supplied by the Act of 1844 or its supplement of 1848. It would certainly be an incongruous construction of the several acts to hold, that while the commissioners are bound to file a report in the Quarter Sessions, when they lay out, alter or vacate a road, they are prohibited from doing so when they reject a petition for a new road. The general policy of the road laws is, that all matters connected with roads or proposed roads should be made matter of record in the Court of Quarter Sessions, so that the public and future road commissioners may at any time obtain certain infonnation respecting the same. Where two acts appear, by a literal constrrrction, to be incongruous, they must be so construed as to harmonize with the general intent of the system of road laws. Commonwealth v. Conyngham, 16 P. E. Smith 99. With respect to filing a report in the Quarter Sessions, a decision of the commissioners against laying out, altering or vacating a road was as much in contemplation of the Legislature, as a report in favor of such action.
    June 20th 1881.
   Mr. Justice Trunkey

delivered the opinion of the court

Section 6 of the Act of April 9th 1844, P. L. 230, authorizes the road commissioners of the township, upon - written request of citizens, to lay out and alter roads, and they shall furnish the township clerk with a return of such roads so laid out or altered, and the clerk shall keep a record thereof; and when any road is wanting through two or more townships thp same shall be laid out and agreed upon by a majority of the commissioners in the townships through which said road passes. Section 12 provides that grievances from the laying out or altering of roads, shall be finally settled before two justices of the peace. Another section repeals all existing laws so far as supplied or altered by this act.

This statute gave full power to the road commissioners to lay out or alter township roads in the county of Warren. The only return of the laying out of a new road or the altering of an old one, was to the township clerk, and he kept the only record. No return was required when the commissioners rejected the citizens’ request. All jurisdiction in the Court of Quarter Sessions relative to the laying out or altering roads in said county, was taken away.

Such was the law when the supplement of March 15th 1848, P. L. 163, was enacted, providing in the 1st section, that when the commissioners shall lay out, alter, or vacate any road, they shall report the same to the next Court of Quarter Sessions, in the same manner as viewers were required to do by the Act of June 13th 1836, relating to roads, highways and bridges, “ and the report so made, shall be subject to the approval of said court; and all other proceedings upon said report, and all further action upon said road shall be in conformity with the provisions of the act last referred to.” Section 3 repeals so much of section 6 of the Act of 1844 as requires the township clerk to keep a record of roads in the county of Warren, and section 4 repeals section 12 of said act. This supplement precisely expresses what was supplied and repealed. None of the jurisdiction which had been taken from the Court of Quarter Sessions is restored, except the further proceedings after a road shall have been laid out, altered or vacated, and reported by the commissioners to said court. Both the road commissioners and the court have just the powers vested in them by statute, and none other. In all cases the request or petition for a road, or alteration, or vacation, is to the commissioners; if they reject, that' ends the proceeding. They were not required or authorized to return their negative action to the township clerk, nor are they now to the court. Their refusal to lay out, alter, or vacate a road, is final; but if they do either of these things their report is subject to the approval of the court, which may proceed by reviews and otherwise as directed in the Act of 1836.

It is urged that the Act of 1844 does not repeal section 25 of the Act of 1836, which provides that in all cases of views the court shall, on petition of any person interested, direct a review for same purpose. This position is not tenable. As already seen, the Act of 1844 gave exclusive jurisdiction to the commissioners, and their action was not entered of record in the court. Even the complaints of persons aggrieved were finally adjudicated bv justices of the pease, for their decision was not subject to writ of error or appeal: the party could sue out a writ of certiorari which would avail nothing if the record had been properly made. A more complete divestiture of jurisdiction in the Quarter Sessions, could not be imagined. Whatever, was not restored by the supplement of 1848 remains as it was under the Act of 1844. When the road commissioners reject an application, or refuse to lay out a road, it is not their duty to report to the court, and if they do, no jurisdiction of the proceeding attaches. If the law is defective the legislature must be appealed to for remedy.

The petition in this case was for a new road in the township of Cherry Grove^ and clearly within the provisions of the local statute in force in Warren county. We are of opinion that the two assignments of error must be sustained.

Order reversed, and all proceedings in the Court of QuarteiqSessions set aside.'


author: Mr. Justice Green

text:
    Appeal of the Mifflin County National Bank.
    1. The assignee of a judgment takes it subject to all defenses of the defendant against the plaintiff, but not subject to the secret equities of third parties.

      %. The bona fide assignee for valuable consideration of a judgment confessed to indemnify the plaintiff ns surety on cenain notes given by the defendant to a third party, takes free and discharged of the equity of 'that third parly to have the fruits of the judgment applied ou account of the payment of the notes.
    3. There is no obligation on the part of such assignee to make inquiry as to the existence of such an equity.
    May 24th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrbtt aitd Green, JJ. Siiarswood, C. J., absent.
    Appeal from a decree of the Court of Common Pleas of Mifflin Coimty: Of May Term 1881, No. 160.
    This was an appeal by the Mifflin. County National Bank from a decree of the said court making distribution of tlie fund in court arising from the sale of the personal property of the Screw, Mower and Reaper Company under several writs of execution.
    Before the auditor, to whom the matter was referred for distribution, the fund was claimed, on the one band, by John M. Weldon, as assignee of Andrew J. Farrand of a judgment for $5,000 confessed to Farrand by tbe Lewistown Engine and Brass Company, and, on the other hand, by the Mifflin County National Bank, on the ground that the said judgment was confessed to Farrand to secure or indemnify him as surety on certain notes given by the Lewistown Engine and Brass Company to the bank, amounting to $5,000, for money loaned to said company by the bank. The bank claimed that Weldon took his assignment of the judgment subject to the equity of the bank to have its fruits applied to the payment of the Lewistown Company’s notes, held by the bank.
    The material facts found by the auditor were as follows: The Lewistown Engine and Brass Company was a firm com-' posed of several partners or associates, of whom the “ Screw, Mower and Reaper Company” was one, and Adam R. Reese was another. There were several other partners. All the partners signed the confession of judgment to Farrand, and it was not denied that this judgment was given to indemnify him against his liability as surety on the said notes. This judgment was entered August 24th 1876. On the next day the Lewis-town Engine and Brass Company executed an assignment for the benefit of its creditors.
    On January 1st 1877, Farrand assigned this judgment to "Weldon for a inll and valuable consideration. At the time the negotiations for the purchase of the judgment were had between Farrand and W eldon, there were present John W. Dean, secretary of the Screw, Mower and Reaper Company, and all the other obligors, members of the firm of the Lewistown Engine and Brass Company, except Adam R. Reese. He was absent. Weldon and his counsel inquired of all the obligors present whether the judgment was all right. They were assured by Dean and Farrand, in the hearing of all present, that it was, that the Screw, Mower and Reaper Company and A. R. Reese were each abundantly good, and that the money could be made of them. No inquiry was made, however, as to what was the consideration of the judgment. No one present said or in any way intimated any thing about the judgment having been given to Farrand to secure him on account of bis liability to the Mifflin County National Bank. Upon the faith of these inquiries and declarations Weldon parted with his money and purchased the judgment.
    The Mifflin County National Bank contended before the Auditor that Dean, the secretary of the Screw, Mower and Reaper Company, had no power to bind that company by his declarations; and further that, as Adam R. Reese was not present, and was not inquired of by Weldon, the latter could not claim to hold the judgment as a bona fide assignee for value not subject to the equity of the bank to have its fruits applied to the purpose for which the judgment was given, namely to secure payment of the notes held by the bank.
    The auditor adopted this view, and awarded the fund to the bank. Upon exceptions to his report, the court overruled his distribution, holding, in an opinion filed by Bucher, P. J., that, as the judgment was a partnership judgment, an inquiry by a proposed assignee of any one or more of the partners was sufficient to bind the partnership ; and that the failure of Weldon to inquire of a single one out of five partners could not ■operate to affect him with notice of the secret equity of the bank. Further, that if he had bought the judgment without any inquiry at all, while he would have taken it subject to any existing equities of the obligors, yet he would not be affected by any collateral equities of third parties or strangers, of which he was ignorant. ,
    The court therefore entered a decree awai’ding the fund to Weldon as assignee of the Farrand judgment. The Mifflin County National Bank thereupon took this appeal, assigning for error the said decree.

      A. Reed, for the appellant.
    The equity of the bank to have the judgment applied to its debt was admitted as against Ear-rand. The court, in holding that Weldon’s inquiry of Farraud and of some but not all of the obligors relieved him from the effect of such equity, fell into error by failing to distinguish between the law applicable to such case during the continuance of the partnership, when the declarations of one partner may bir.d all, and after its dissolution, when an inquiry of each and every one of the late partners is necessary. In this case the firm made a general assignment for the benefit of creditors on August 25th 1876, which was i/pso facto a dissolution of the partnership: Cochran v. Perry, 8 W. & S. 262 ; McKelvy’s Appeal, 22 P. F. Smith 409 ; Burns v. McKenzie, 23 Cal. 101; Gleason v. Clark, 9 Cowen 59; Baker v. Stackpoole, Id. 434; Robbins v. Willard, 6 Pick. 464; Miller v. Neimerick, 19 Ill. 172 ; Schoneman v. Fegley, 7 Barr 433.

      Woods and McKee, for the appellee.
    The assignee of a judgment, who takes it without inquiring of the debtor, tabes subject to the equities of the debtor, but not .subject to equities of strangers, of which he was ignorant: Mott v. Clark, 9 Barr 399; Taylor v. Gitt, 10 Barr 428; McConnell v. Wenrich, 4 Harris 365 ; Wethrill’s Appeal, 3 Grant 281. And while the principal creditor is entitled in equity to the benefit of a security given by the debtor to a surety of the debt, yet the creditor cannot pursue such security in the hands of a bona fide assignee thereof for value and without notice ; although it is otherwise if he has notice: Hancock’s Appeal, 10 Casey 156; Kramer and Rahm’s Appeal, 1 Wright 71; Heath v. Hand, 1 Paige 329.
    June 20th 1881.
   Mr. Justice Green

delivered the opinion of the court,

It was found as a fact by the learned judge of the court below, and is not denied, that Weldon paid a valuable consideration for the judgment of Farrand against The Lewistowu Engine and Brass Company. It was also found that before or at the time he purchased the judgment, he inquired of several of the parties, who, as partners composing the defendant company, executed the confession of judgment in question, whether the judgment was all right, and was assured by them that it was. It is not pretended that Weldon had any actual notice of any equity existing in the appellant, or in A. R. Reese, to have the judgment applied to the benefit of either of them. In point of fact, neither the company defendant nor any of the parties who signed the confession of judgment, have any defense whatever against its payment. Weldon holds, by valid assignment, the entire title of -the plaintiff in the judgment. The fund in court is the proceeds of an execution issued on this judgment, and it is claimed by, and has been awarded to, Weldon as the assignee of the plaintiff Farrand. Why should he not have it? The only reason urged, is, that the appellant, having discounted certain paper given by the company defendant, indorsed by A. R. Reese, A. J. Farrand and T. B. Reese, had an equity to have the judgment applied to its use, because it was given to indemnify the indorsers against their liability as such. The claim is pressed upon the ground that Weldon made no inquiry of A. R. Reese, when he took the transfer, and that the latter was not bound by the declarations of his co-obligors, because-the partnership was then dissolved. We do not perceive the materiality of this contention. The appellant’s' claim is in no sense whatever a defense against the judgment. On the contrary, it is a claim to have the fruits of the judgment paid over to the appellant. In other words, the appeílaut claims the ownership of the judgment,.not by force of any transfer or assignment, but because of its equitable right as a creditor, to have securities given by the debtor to protect the indorsers, applied in satisfaction of the debt. This would be all very well as between the bank and Farrand, if they only were the parties to the controversy ; but how can such a claim affect an innocent purchaser from Far-rand, for value actually paid, and without any notice of the equity set up by the appellant ? It is very true that the assignee of a judgment or mortgage takes it subject to all the defenses of the obligor against the obligee, but it is equally true that he does not take it subject to the secret equities of third persons. This is very familiar doctrine and has been repeatedly enforced by this court. In Davis v. Barr, 9 S. & R. 140, it was said by Gibson, J., It certainly is not a general principle of equity, that a purchaser for valuable consideration of the legal title to any kind of property, should take it subject to an equity of which he had not notice.” And again, on p. 141: “ But with any agreement between the original parties inconsistent with the purport or legal effect of the instrument, the assignee has nothing to do. No such agreement is within the purview of the act; and the assignee is not bound to call on the obligor for information about matters, the existence of which he has no reason to suspect, the necessity of inquiry being limited, as I have said, to want of consideration and set-off.” In Mott v. Clark, 9 Barr 404, it was said of the assignee of a bond and mortgage: “ He takes it subject to all the equity of the mortgagor, but not to the latent equity of a third person. To subject him to such an equity he must have express or constructive notice at the time of the assignment.” The same doctrine has been held in the cases of Taylor v. Gitt, 10 Barr 428 ; Wetherill’s Appeal, 3 Grant 281; McConnell v. Wenrich, 4 Harr. 365 ; and Twitchell v. McMurtrie, 27 P. F. Smith 383. As A. R. Reese had no defense against the judgment, it was not necessary to apply to him to learn whether he had any secret agreement with the appellant that the judgment was to be held for the benefit of the latter. In any point of view Weldon was not subject to tlie duty of inquiry for such latent equities as it is sought to set up against him, and can stand upon his clear legal' title to the judgment and its fruits.

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


author: Mr. Justice Paxson

text:
    Selheimer versus Elder.
    1. A claim for speculative damages for a tort in a case which presents no fixed standard by which those damages can be liquidated is not liable to attachment execution.
    2. A railroad company entered upon and took part of the land of A. for railroad purposes without making compensation or giving bond according to law. Subsequently, B., having a judgment against A., issued an attachment execution thereon for the amount of A.’s claim against the railroad company for damages, summoning the company as garnishee. A. subsequently instituted proceedings against the company to recover those damages,, assigning his claim at the same time to O. Said proceedings resulted in an award to C. of a certain sum, which the company paid into court. A. feigned issue having been awarded between C. and B. to try whether said sum was subject to be B.’s attachment,- — Held, that the claim of A. against the railroad company, while still unliquidated, was of such a character as was not liable to attachment,. Held, further, that the assignment to O. prevented the attachment binding the damages when they'were liquidated by the award. Held, therefore, that the fund in court was not bound by the attachment.
    May 24th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ. Siiarswood, O. J., absent.
    Error to the Court of Common Pleas of Miffiwi GO'imty: Of May Term 1881, No. 145.
    Eeigned issue, in attachment execution, between John B. Selheimer, assignee of George Saylor, plaintiff, against George W. Elder, assignee of Kirkpatrick, Kinsey & Go., defendants, to try the question whether a sum of money paid into court was subject to an attachment execution which had been issued under the following circumstances:
    The Sunbury and Lewistown Railroad Company in 1870 entered on lands belonging to George -Saylor, without any agreement with Saylor and without having filed a bond as required by Act of Assembly, and constructed their railroad thereon.
    On December 15th 1872, George W. Elder, assignee of a judgment for $205.24, obtained October 25th 1870, by Kirkpatrick, Kinsey & Co., against Saylor, issued an attachment execution against Saylor, defendant, and the Sunbury & Lewistown Railroad Compauy, garnishees.
    On September 1st 1876, Saylor filed his petition to have his damages assessed agaiust the railroad company, and on the same day assigned his' claim for such damages to Selheimer. This proceeding resulted in an award to Selheimer of $493.34, which amount the railway company paid into court; and this feigned issue was awarded to determine whether said fund was bound by the attachment.
    On the trial, the court instructed the jury to find a verdict for the defendants, Junkin, P. J., saying in his charge:

      “ Are damages for taking property by a railroad company which arise by an act of appropriation under the state power of eminent domain, and which do not rest in contract express or implied, the subject of attachment on what is commonly called attachment execution? We are not aware that .this point has been decided. It must, therefoi’e, be solved in the light of the statutes and analogous cases. It is certainly determined that the process of attachment is evidently founded upon and operates upon what must be regarded as demands, although not, technically, debts: Girard Fire Ins. Co. v. Field, 9 Wright, 133. Had Saylor a demand against the Sunbury and Lewistown Railroad Company when the attachment issued ? That company had entered upon his land, appropriated a ptortion to the .uses of its road, and they had giveu no bond. An entry under these circumstances is sometimes spoken of as a trespass and tort, as in McClinton v. Fort Wayne Road, 16 Smith 404. But the company is empowered to enter under the grant from the Commonwealth, first pjaying or securing the price, &c., and the remedy of the owner is to have his damages assessed under the law. [When an entry is made, the owner has a demand for the injury which he sustained, and although this demand is not the result of a contract with the owner, yet it is a demand which the law gives him, because his property lias been taken, not against, but in accordance with law. Something has been taken from him by law, but it must be paid for. It is a legal right which he is authorized to enforce against the company; in substance, is it anything but a debt ? So many acres of land are taken, and they are to be paid for, just as if under a bargain and sale, except the price is not fixed,] and in McClinton v. Railroad, 16 Smith 409, Judge Agnew takes this view when he says that whilst the compensation to the owner is often denominated damages, it is really the price of a purchased privilege. [Now, why should not such a claim and right be the subject of attachment ?]
    “It is contended, however, that the damages are unliquidated, and speculative, and that the machinery provided for their ascertainment is special and exceptional. True, they are unliquidated, but not speculative. There is no such thing as punitive damages; on the contrary, the standard of measurement is severely fixed by law. The viewers are to estimate and determine the quantity, quality and value of the land taken or occupied, or to be taken or occupied, allowing for the advantages or disadvantages which may or have resulted to the owner, and, having weighed all, determine whether- any, and if any, what amount of damages, has been sustained. In Garland '& Bierne v. Cunningham, 1 Wright 228, it is held that foreign attachment will lie for such damages resulting from the breach of a contract as may be reduced to certainty by a definite standard, but not where they are speculative, and it is said, on page 232, that that is all that is required, for id ceri/wm est quod certum reddi potest. [In the case of railroad damages the rule is fixed, the standard certain and known, and they are simpfiy compensation for the injury sustained. There are no contingencies upon which the claim rests, it is a clear recognized right, to be liquidated by a view, which is to be conducted under the direction of positive statutory provisions, and the market value of the land taken is to be given. Eor these reasons we think this demand could be attached.”]
    Yerdict, in accordance with the direction of the court, for the defendant, and judgment thereon. The plaintiff took this writ, assigning for error, inter alia, the portions of the charge inclosed in brackets.

      John A. McKee, for the plaintiff in error.
    The claim in this case being for unliquidated damages is not subject to an attachment execution ; it is not capable of being reduced to certainty by a definite standard; it is a demand, but not definite enough to be classed as “personal estate,” “goods and chattels,” and “ goods and effects ; ” it lacks tangibility, and is not attachable: Carland & Bierne v. Cunningham, 1 Wright 228; Girard Fire Ins. Co. v. Field, 9 Wright 132; Peebles v. Meed, Pittsburgh Legal Journal, January 5th 1881, p. 184. No relation of debtor and creditor existed between George Saylor and the S. & L. & L. Railroad Co. Neither debt, assumpsit, nor covenant would lie to recover in this case ; at most there was only a liability to account according to the special mode prescribed by law, or to surrender the possession of the land occupied, as Saylor might elect, which is a very different thing from a liability for the payment of money: Caldwell v. Klotz, &c., 1 W. N. C. 164. Put suppose Saylor had never applied to have his damages assessed. Then certainly the attachment would take nothing; the attaching creditor could not have applied for the appointment of viewers to assess Saylor’s damages. The owner of the land only can do that.
    The court below admits the claim to be unliquidated, but not speculative. We cannot agree to this. In addition to the compensation allowed for the value of the land taken, the jury are to take into consideration and make just allowance for injuries done to the land not taken; the cutting off the communications of the farm, of the barn-yard and barn; the increased difficulties of access and inconvenience caused by the cuts through the land; the shape and position of the fields; the cutting off of wTater; the inconvenience of crossing the railroad. In assessing damages the whole tract must be considered, not merely the land taken. Dangers and delays, and depreciation from crossings are items of damage; disadvantages to the rest of the property from the manner in which it may be cut, allowing for advantages from the road ; how much the burden of fencing the railroad detracts from the value of the land. While the damages to be recovered may not be exactly speculative, yet the various elements entering into consideration in assessing damages renders the amount recoverable very uncertain. In the very nature of the case, the standard for liquidation must be variable — the amount to be recovered cannot be determined by any fixed rule. What one jury would think a reasonable and fair compensation, under the same facts and evidence another jury might regard as exorbitant. It requires the instituting of* proceedings by Saylor and the judgment of viewers as to whether or not the railroad company was liable to pay him anything. If the advantages were greater than the disadvantages, the viewers would award less damages than if the reverse were true.

      A. Reed, for the defendant in error.
    The claim for damages for land taken by a corporation under the right of eminent domain, though not certain in amount, is capable of being rendered certain; and it is, under the terms of the Act of 1886 and the decisions thereunder, “ a debt due to the defendant.” It has, in fact, been rendered certain and the amount paid into court. Under such circumstances, it would be bound by a foreign attachment, and the Act of Assembly makes attachment in execution subject to the same rules : Franklin Fire Ins. Co. v. West, 8 W. & S. 350 ; Sheetz v. Hobensack, 8 Harris 412. The assignment, made by the defendant after the attachment was levied, was subject to the attachment notwithstanding the debt was not liquidated until after the assignment, although susceptible of liquidation before : Franklin Fire Ins. Co. v. West, supra.

    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

This record presents a number of questions that need not be discussed. The case turns upon the point raised by the second assignment of error, viz.: That the fund in dispute is not the' subject of attachment.

The fund sought to be reached by the attachment was a claim by George Saylor against the Sunbury & Lewistown Railroad Company for entering upon and taking a portion of his land for railroad purposes. The company entered and took the land without any agreement with Savior as to the price, and without having filed a bond as required by Act of Assembly.

We are of opinion that this claim is of such an uncertain and speculative character that it does not come within our attachment laws. There was no contract relation between Saylor and the railroad company ; on the contrary, the claim is for unliquidated damages for a tortious act. Such a claim has never been held to come within the attachment laws. It was said by Thompson, J., in Girard Fire Ins. Co. v. Field, 9 Wright 133: “We cannot come to the conclusion that every unliquidated claim is without the reach of attachment process. The reason for the exception has sufficient ground to operate on in the exclusion from it of such claims as are contingent, and such as possess no fixed standard for liquidation like torts or damages for breach of contract. . . . They want tangibility, and are not .attachable, nor would they be the foundation for the process.” Even when the claim arises from a breach of contract it cannot be attached unless the damages can be reduced to certainty by a definite standard ; nor where they are speculative or incapable of being ascertained by a fixed standard : Carland v. Cunningham, 1 Wr. 228.

In the case in hand there is no. fixed standard by which the damages can be liquidated. They are purely speculative. There are a large number of questions to be taken into consideration in ascertaining the damages in such cases which will readily suggest themselves to the professional mind. Moreover the damages could not be liquidated in this proceeding. The attaching creditor could not try the question of the damage to Saylor in his attachment suit. Such damages can only be assessed in the manner designated by the Act of Assembly. The attaching creditor has no standing to petition for a jury. The owner of the land might not do so. He has his remedy by ejectment, and may prefer to pursue it.

It was said, however, that the attachment bound after the damages had been liquidated by the award of the jury. The obvious answer to this proposition is that Saylor assigned his claim to Selheimer before the award.

We need not pursue the subject further. It is top plain.

Judgment reversed and a venire facias de novo awarded.