text:
    Fourth Avenue Baptist Church et al. versus Schreiner.
    1. While it may be taken for granted that after the expiration of the six months allowed by the Act of Assembly for the filing of a mechanic’s lien, no material amendment of the claim filed will be admitted, yet where the amendments were immaterial and unnecessary they will not invalidate the claim.
    2. A mechanic may file his lien against the person who holds the legal title when the work was commenced, and he is not bound to inquire further or take notice of any subsequent conveyance of the property.
    November 15th 1878.
    Before Sharswood, Mercur, Gordon,' Paxson and Trunkby, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 248.
    Scire facias sur mechanic’s lien by John Schreiner against the Fourth Avenue Regular Baptist Church of Pittsburgh, owners, &c., and Henry Murphy and T. J. Hamilton, copartners, as Murphy & Hamilton, contractors, and the Smithfield National Bank of Pittsburgh.
    The facts, in substance, were these: By a written agreement dated October 10th 1872, and by virtue of an Act of Assembly approved January 31st 1873, the “ Union Regular Baptist Church of Pittsburgh,” and the “First Baptist Church and congregation of the city of Pittsburgh,” two different corporate bodies, having rights and properties in different parts of the city, being desirous to effect the consolidation of the same, were united under the name of the “ Fourth Regular Baptist Church of Pittsburgh.” Both congregations accepted the Act of Assembly on the same day, the 3d of March 1873.
    Said congregations having so come together, agreed, from the common funds of both, to erect for themselves a new church edifice on the lot formerly occupied by the latter congregation, on the northern'.corner of Ross street and Fourth avenue, and for this purpose had plans and specifications made and approved, and on the 5th day of August 1874, agreed with Murphy & Hamilton, contractors and builders, to build and complete said building at a cost of $55,000, which contract was made by the said Murphy & Hamilton with the building committee of the new corporation under their new corporate name.
    Murphy & Hamilton afterwards sub-let the stone work and masonry to the plaintiff, who commenced his work July 14th 1874, and after the completion of the building filed his mechanic’s lien, May 1st 1876, against “ The First Baptist Church and Congregation of the City of Pittsburgh,” as owners or reputed owners, and Murphy & Hamilton, contractors, and attached thereto a bill against “ The Fourth Avenue Baptist Church.” The scire facias issued thereon July 13th 1877, was served upon the officers of “ The Fourth Avenue Regular Baptist Church of Pittsburgh.” On the 20th October 1877, nearly eighteen months after the lien was filed, the plaintiff' asked leave to amend the record so' as to read, “ The Fourth Avenue Regular Baptist Church of Pittsburgh,” instead of “The First Baptist Church and Congregation of Pittsburgh.” Whereupon the court granted a rule on defendants to show cause why the same should not be amended as prayed for, filing therewith the consent in writing of Murphy & Hamilton, the contractors, to said amendment, when the court, February 28th 1878, against the argument and protest of the said “ Fourth Avenue Regular Baptist Church of Pittsburgh,” allowed the same.
    At the time tho plaintiff filed his lien the said Fourth Avenue Regular Baptist Church was indebted to their contractors, Murphy & Hamilton, in about §6000, which was before any amendment was made or asked for attached in their hands, to wit, on July 10th 1877, under an execution attachment on judgments against said Murphy & Hamilton, in favor of tho Smithfield National Bank, when, on March 13th 1878, the said bank was by the court permitted to appear in this case and defend pro interesse suo. The said new church corporation, April 16th 1878, with said bank, each moved the court to rescind their order, allowing the lien to be amended, for the reason that more than six months had elapsed between the filing of said lien and the making the application for the order, and because the interest of said attaching creditor was affected thereby; whereupon the court refused the same and sealed a bill, &c.
    Then, during tho trial, to wit, on April 17th 1878, the plaintiff's again asked leave and were permitted to amend the mechanic’s lien and record so as to read, “The First Baptist Church and Congregation of the city of Pittsburgh,” otherwise The Fourth Avenue Regular Baptist Church of Pittsburgh.
    Thereupon the said now church corporation entered the following pleas:
    “ 1. That there is no lien filed against them within six months from the completion of the work and labor done and materials furnished, as claimed for in the case.
    “ 2. That the amendments of the names of the party defendant allowed by the court is contrary to law.
    “3. Non assumpsit.”
    When immediately thereafter the case went to the jury, and the court was asked by defendants to charge the jury, that because the lien, as originally filed, was defective, and the amendment allowed was unavailing, as it had not been applied for until more than six months had elapsed since the completion of the building, and because, in the meantime, the balance due by the owner to Murphy & Hamilton, the contractors, had been attached by said bank, the court below refused so to charge, and ruled that said amendment was good and valid, and such as the court had power to allow. A verdict was rendered for the plaintiff for the amount of his claim, viz., for f>7945.91; An application for a new trial was refused, and the Fourth Avenue Regular Baptist Church of Pittsburgh, and the Smithfield National Bank of Pittsburgh both sued out writs of error, assigning for error the allowance of the amendment and the refusal to charge as requested.

      Bruce $ JSfegley, W. 0. Friend and John Barton, for plaintiffs in error.
    It was too late to amend after the statutory period of six months allowed for filing the claim : Dearie et ux. v. Martin, 28 P. F. Smith 57.

      Fetterman $ Johnson, for defendants in error.
    It was not essential in order to bind the property in the possession of the new corporation to have amended the lien at all, but having done so, it does no injury to the present owner of the property: Jones v. Shawhan, 4 W. & S. 257; Sullivan et al. v. Jones, 5 Whart. 366.
   The judgment of the Supreme Court was entered November 25th 1878, .

Per Curiam.

It may be granted that after the expiration of the six months allowed by the Act of Assembly for the filing of a mechanic’s claim, no material amendment of the claim filed is admissible. But the amendments allowed in this case by the court below, which form the only matters complained of in the five assignments- of error, were immaterial and unnecessary. When the work of the plaintiff below was commenced, the legal title of the lot upon which the building was erected was in the First Baptist Church, against which the claim was filed. He was not bound to inquire further, or to take notice of any subsequent conveyance of the property. Doubtless he might have named the party owning the ground at the time of filing, but he was not bound to do so. Jones v. Shawhan, 1 W. & S. 257, is in point.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sharswoojo

license: Public Domain

text:
    Hope versus Rusha et al.
    W. by his will dated prior to 1833, gave and bequeathed, inter alia, “ to my Bon Aaron, the plantation whereon 1 now live, absolutely * * * subject to the maintenance of my wife and my son Aquilia during their natural lives * * * my son Aaron having the entire use and control of the said plantation, as well during the life of my wife as afterwards * * * and if either of my sons James, Aaron or Joseph, should die without lawful issue, then the portion of the deceased one to bo equally divided between the survivors of them.” Held, that Aaron took an estate tail with contingent remainder in fee to his brothers if they should survive him.
    November 15th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 240.
    Ejectment by Martha A. Hope against Nicholas Rusha and others to recover the one undivided sixth part of a tract of land in Allegheny county, containing 180 acres. Plaintiff claimed title to this land as one of the heirs at law of Aaron Whitaker, the younger, deceased. James Whitaker died seised in fee of a large tract of land, situated in Mifflin township, and devised the tract of land, embraced in the present action of ejectment in fee to his son Aaron Whitaker the elder, grandfather of the plaintiff in error. Aaron Whitaker the elder died seised in fee of the same in the year 1883 or thereabouts, having first made his last will and testament, wherein he divided his real estate, including said plantation, between his three sons, James, Aaron and Joseph W. The parts of said will devising said lands are as follows, viz.:
    “ First. I give and bequeath unto my son James Whitaker, the plantation whereon he lives, purchased by me from Francis Hays, and further, I discharge him from all debts which may be due from him to me, whether by notes, bonds or otherwise.
    “ Secondly. I give and bequeath unto my son Aaron the plantation whereon I now live, absolutely, and further, I give unto my said son Aaron any two horses which he may choose from those in my possession at the time of my decease, together with my wagons and other farming utensils, absolutely, and the balance of all my cattle and stock, during the natural life of my wife Martha, shall be at her disposal — the last said plantation nevertheless to be subject to the maintenance and support of my son Aquilia Thompson Whitaker during his natural life.
    “ Thirdly. I give and bequeath unto my son Joseph W. Whitaker my house and lots in the town of Birmingham, together with my stock in the Bank of Pittsburgh, and also a horse, saddle and bridle, the value of which shall not exceed $90, together with one good bed, bedding and bedstead.

      “ Fourthly. * * * and further, it is my will that my said wife Martha, so long as she shall remain my widow, shall have her living and decent support where I now live, and from off the plantation and personal property now in my possession, or which may be in my possession at the time of my decease; my son Aaron having the entire use and control of the said plantation as well during the life of my said wife as afterwards. It is my further will in regard to him that he shall have one good feather bed, bedding and bedstead, and further, if he should marry, or if my said wife should choose to live separate from his family, then she shall have the entire use of the kitchen and other rooms adjoining, both above and below, west of the entry, with the use of the said entry, during her natural life ; and lastly, if either of my said sons, James, Aaron or Joseph, should die without lawful issue, then the portion of the deceased one to be equally divided between the survivors of them.”
    The said Aaron Whitaker, the younger, to whom was devised by said will the home plantation, became possessed thereof under said will and died seised thereof, in 1847, intestate, leaving issue six children, of whom the plaintiff is one, and as one of his heirs at law, she claims title to the one-sixth of said home plantation. Defendants claimed that Aaron Whitaker, the younger, took an entailed estate in said home plantation, which passed on his death to his eldest son, Christopher D. Whitaker.
    These facts, together with said will being proven and given in evidence with proof of the service of the writ on defendants, the plaintiffs rested their case, and the defendants moved for judgment of compulsory nonsuit, “ for that the evidence does not show either title or right of possession in the plaintiff to the premises or any part thereof described in the writ.” Whereupon the court, on June 3d 1878, entered a judgment of compulsory nonsuit, and upon the same day the plaintiff filed a motion to have said nonsuit taken off, alleging that the court erred in entering the nonsuit as a matter of law. This motion, on July 13th 1878, was argued, and on July 27th 1878 the motion to take off the nonsuit was overruled and an opinion filed by the court, Ewing, P. J., as follows:
    “ If Aaron Whitaker, the second, under the will of his father, took a fee simple in the land in dispute, subject to be divested on the contingency of his dying without issue living at the time of his death, the plaintiff is entitled to recover, otherwise .she has no title to the land in dispute.
    “ Assuming that the first clause of this will devising the land would (standing alone) vest in Aaron Whitaker the second a fee simple absolute, what is the effect of the limitation over ?
    “ ‘ If either of my sons, James, Aaron or Joseph, should die without lawful issue, then the portion of the deceased one to be equally divided between the survivors of them.’
    Should die without lawful issue.’ Is it a definite or indefinite failure of issue that is intended ?

      “ That such words standing alono are to be construed as intending an indefinite failure of issue, is too well settled law in Pennsylvania to require the citation of authorities in support of this rule of construction.
    “We are unable to discover anything in the nature of the devise over or in any subsequent expression of the will, or in the numerous authorities cited by the plaintiff’s counsel to modify in this case the authorized interpretation of the words, ‘ should die without lawful issue.’ The phrase must be construed to mean an indefinite failure of issue.
    “ It follows therefore [that Aaron Whitaker the second took an estate tail, which descended to his eldest son, Aaron Whitaker the third, and that the plaintiff has no title to the land.”]
    The court in banc subsequently refused to take off this nonsuit; when plaintiff took this writ, alleging that the court erred in this action and in deciding as above in brackets.

      11. §• S. Woods, Emmett E. Gotton and R. 8. Qrawford, for plaintiff in error,
    cited: Richardson v. Noyes, 2 Mass. 56; Burke v. Annis, 11 Hare 230; Bradford v. Perkins, 23 Pick. 183; Packkard v. Packard, 16 Id. 191; Annable v. Patch, 3 Id. 360; Anderson v. Jackson, 16 Johns. 382; Fosdick et al. v. Cornell, 1 Id. 440; Hall v. Chaffee, 14 N. H. 216; Bell v. Scammon, 15 Id. 381; Barnfield et al. v. Wetton, 2 Bos. & Pull. 324; Jessup v. Smuck, 4 Harris 327; Sheets’s Estate, 2 P. F. Smith 257; Eby v. Eby, 5 Barr 461; McCullough v. Fenton, 15 P. F. Smith 418; Rupp v. Eberly, 29 Id. 141; Middleswarth’s Admr. v. Blackmore et al., 24 Id. 414; Grenawalt’s Appeal, 1 Wright 95, 482; Greenawalt v. Greenawalt, 21 P. F. Smith 483; Taylor v. Taylor, 13 Id. 483; Price v. Taylor, 4 Casey 95; Edwards v. Barnard, 3 Norris 186; Ferguson’s Appeal, 6 P. F. Smith 487 ; Swisshelm’s Appeal, 6 Id. 475; Gulliver v. Wickett, 1 Wilson 105; Massey v. Hudson, 2 Merivale 180; Pinbury v. Elkin, 1 P. Wms. 563; Walter v. Drew, 1 Com. R. 372; Pells v. Brown, Cro. Jac. 590.

      George P. Hamilton, for defendant in error.
   Mr. Justice Sharswoojo

delivered the opinion of the court, January 6th 1879.

There is but one question presented for consideration on this record. Whether Aaron Whitaker the younger, the ancestor of the plaintiff, took under the will of his father Aaron Whitaker the elder, an estate in fee-simple subject to an executory devise to his brothers if they should survive him in case he should die without issue living at the time of his death, or whether he took an estate tail with a contingent remainder to his surviving brothers. The learned court below being of the opinion that the devise over was to take place on an indefinite failure of issue of Aaron Whitaker the younger held that he took an estate tail, and entered a compulsory nonsuit.

That the nature of the devise over is a very important element in determining whether the words “dying without issue” are to be construed in a will as importing a definite or indefinite failure of issue has been settled in many cases: Taylor v. Taylor, 13 P. F. Smith 485, and the authorities there cited. If the devise over be for life it necessarily implies that the devisee may outlive the first estate. It is necessary to determine, therefore, whether the limita-' tion over to the survivors in this case gave a fee or a life estate. To ascertain this it will be quite important to consider whether the first limitation was for life or in fee. Both the first and the ulterior limitations are wanting in technical words to carry a fee — and the will is dated prior to the year 1838, when the Act of Assembly, Pamph. L. 249, changed the rule of construction of wills. Still, as to wills executed prior to that act if there is enough to indicate the intention of the testator to give a fee — no technical words are required. We must construe the language of a will as we would a letter or any other communication by the rules which determine the meaning of the ordinary language of the intercourse of people. The testator was not a lawyer and is presumed to have been inops oonsilii. “I give and bequeath to my son Aaron the plantation whereon I now live' absolutely.” This is immediately followed by a bequest to the same person of certain articles of personal property absolutely. Now it may be that strictly in legal technology absolute is used to distinguish unconditional from conditional or qualified estates; but that the testator did not use it in this sense is manifest from his subjecting the plantation devised to Aaron to the maintenance and support of his son Aquilla during his natural life. In Loveacre v. Blight, Cowp. 352, there was a devise of land “ freely to be enjoyed.” Lord Mansfield remarked: “The testator has charged the estate with the payment of an annuity to his wife, so that he could not mean by the word ‘ freely’ to give it free of encumbrance. The free enjoyment, therefore, must mean, free from all limitations ; that it is the absolute property of the estate.” In the will before us it is clear that the testator meant to give to Aaron the same interest in the plantation as in the personal estate bequeathed to him. In its ordinary sense it means the full and entire property. In that sense we have just seen that Lord Mansfield uses the words. So also Chief Justice Tilghman. He says in Morrison v. Semple, 6 Binn. 97: “No technical words are necessary to pass a fee simple. Any expressions which show an intent to give an absolute estate are sufficient.” Now the ulterior limitation over was of the portion of the deceased son, and that portion as vre have seen was a fee. “Portion” according to the lexicographers has for one of the meanings “the part of an inheritance given to a child:” Johnson, Webster, Wharton. Upon failure of issue of Aaron at any time, the heirs of the survivors would be entitled to possession. There is nothing, therefore, in the will which indicates an intention to confine the dying without issue to the period of the death of Aaron. He took an estate tail with a contingent remainder in fee to his brothers if they should survive him. The nonsuit entered was therefore right. Judgment affirmed.


author: Per Curiam.

text:
    Barry’s Appeal. Foster’s Estate.
    In the ease of an ancillary administration in this state of the estate of a decedent, whose domicile was in another state or country, the Orphans’ Court after having paid all lawful claimants on the fund, who are citizens and residents of Pennsylvania, must direct the balance to be paid to the administrator of the domicile, and a creditor who has the same domicile as was that of decedent, cannot make claim to the fund in this jurisdiction but must resort to that of his domicile.
    November 15th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Asnew, C. J., and Woodward, J., absent.
    Certiorari to and appeal from the decree of the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 292.
    Margaret Foster died in Iowa in 1875. In her lifetime she had sold certain real estate in Allegheny county, Pennsylvania, and had taken a mortgage thereon upon which there was due, at the time of her death, a balance of $485. The register of Allegheny county granted letters of administration to James Evans, who collected this balance, and duly accounted therefor. On the 20th of September 1876, this account was taken to the Orphans’ Court for audit, the balance for distribution being $380. Before the auditor, Ellen Barry, a resident of Iowa, presented a claim founded upon two promissory notes given by the decedent, Margaret Foster, which aggregated $500. A commission was issued and testimony taken in Iowa, and the cause was continued until 3878, when it was heard and held under advisement. No other claims were presented to the court. On the 2d day of February 1878, after the hearing, and without notice to the claimant or her counsel, the court allowed to be filed a certificate that letters of administration had been granted on the decedent’s estate, on the 8th of April 1875, at Dubuque, Iowa, to A. K. Foster.' It appeared from this certificate that the claim of appellant under the law of Iowa was barred by reason of its not having been presented to the administrator in Iowa, within the prescribed time after his appointment. The promissory notes, which were made in Iowa, were valid under the laws of that state.

      The court (Hawkins, P. J.), entered the following decree: “And now, to wit: February 2d 1878, this matter came on for hearing, audit and distribution at this term and testimony taken, and thereupon it appearing to the court that the domicile of decedent was in the state of Iowa, and that there are no domestic claimants to the fund here for distribution, either creditors, heirs, or legatees, and it further appearing that letters of administration have been issued at the domicile of decedent to Alexander R. Foster, it is ordered, adjudged and decreed that the fund in the hands of James Evans, administrator, after deducting costs of audit, &c., be paid to Alexander R. Foster, administrator of the domicile as aforesaid, upon his giving an additional bond in the sum of $700 to be approved according to the laws of Iowa, and a certificate of same being filed in this court.”
    From this decree this appeal was taken.

      Greorge Shims, Jr., for appellant.
    In Parker’s Appeal, 11 P. F. Smith 484, it was decided that assets in Pennsylvania “ are not to be transmitted to the administrator or executor of the domicile when there are domestic claimants, or claimants within the jurisdiction of. the ancillary administration.” In the present case Ellen Barry has placed herself, and is within the jurisdiction of the courts of this Commonwealth with a claim admittedly meritorious, and justice was only refused her in the court below upon a technicality.
    In Dent’s Appeal, 10 Harris 514, it was intimated that not only creditors but even legatees residing in other states were entitled to present their claims here and receive distribution, and that foreign creditors by so presenting their claims became domestic creditors.
    Again, it was decided in Stokely’s Estate, 7 Harris 476, that debts are to be paid before the fund is transmitted to the administrator of the domicile.

      P. B. Petty, for appellee.
    The usual course is to transmit the assets, after payment of domestic claimants, to the domicile for further distribution: Kent’s Com. 429, 433, 434; Williams on Executors 1664, and notes.
    The same rule is laid down in Pennsylvania, in Miller’s Estate, 3 Rawle 319; Mothland v. Wireman, 3 P. & W. 185; McKeen v. Northampton Co., 13 Wright 525; Stokely’s Estate, supra. In all these cases it is said that where there are no resident claimants, either in the character of creditors, legatees or next of kin, assets .will be transmitted to the domicile for further administration.
    In Dent’s Appeal this rule was recognised, but in that case the .fund arose from sales of real estate, and the distribution was .amongst heirs. All the distributees appeared and desired distribution in Pennsylvania, and therefore distribution was made.
    In Parker’s Appeal, cited by appellant, there were claimants residing in Pennsylvania who desired distribution here.
   The judgment of the Supreme Court was entered November 25th 1878,

Per Curiam.

It is well settled that in the case of an ancillary administration in this state of the estate of a decedent whose domicile was in another state or country, the Orphans’ Court, after having paid all lawful claimants on the fund who are citizess and residents of Pennsylvania, must direct the balance to be paid to the administrator of the domicile. This may sometimes operate hardly, as it seems to do on the appellant in this case, who fears that she is barred by not having put in her claim in time to the foreign administrator. That she must impute to her own mistake or neglect. But the general rule is a just and wise one. On any other we might give preference to one creditor over another, and debar, perhaps, those interested in the decedent’s estate from availing themselves of a legal defence to the claim. The matter of the first assignment does not seem to have been made an exception in the court below ; if it had been, no doubt the required authentication of the record of the grant of administration in Iowa could have been obtained.

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


text:
    McCrickart versus The City of Pittsburgh.
    1. Whei-e there is no mistake or fraud a voluntary payment cannot be recovered back on the more ground that the one party was under no obligation to pay and the other had no right to receive.
    2. Where a party would recover back taxes he is under no legal obligation to pay he must protest or give notice of his intention to reclaim them.
    3. Whore one resident files a bill to have an Act of Assembly declared void, such proceeding can have no effect as notice or claim by other citizens not parties to said bill.
    November 16th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 169.
    Case by Samuel McCrickart, for himself and in trust for a number of others, to recover back from the city of Pittsburgh certain taxes paid by him to said city. A case in the nature of a special verdict was stated for the opinion of the eourt, of which the following is the substance: “ That in pursuance of the Act of 10th May 1871, Pamph. L. 718, the councils of the city of Pittsburgh passed an ordinance to admit a portion of Wilkins township into the city of Pittsburgh, and that by virtue of said ordinance, on May 12th 1873, said portion was annexed to said city and incorporated therein as the Thirty-seventh ward of said city; that by virtue of an ordinance for levying taxes and providing for the appropriations for 1874, various taxes for municipal purposes were levied upon the taxable inhabitants of said Thirty-seventh ward ; that in pursuance of said ordinance, the city treasurer gave notice of the assessment :>f these taxes, and that five per cent, deduction would be allowed, if they were paid before the 1st of August 1874, and ten per cent, addition after that time; that under this notice, a portion of those persons represented by the plaintiff paid their taxes into the city treasurer’s ofiice, and that others paid them to the ward collector, who had the warrant of the city treasurer to collect them for the said Thirty-seventh ward.
    That on the 29th day of November 1873, James Kelly, a resident of the said Thirty-seventh Ward, filed a bill in equity, in the Court of Common Pleas, No. 2, of Allegheny county, alleging that the incorporation of the said portion of Wilkins township, as the Thirty-seventh Ward, of the city of Pittsburgh, was irregular and void, and the same was so proceeded in, that the Supreme Court of Pennsylvania, at October and November Term 1875, decreed as follows: “ That the ordinance of the city of Pittsburgh, entitled an ordinance to provide for the admission into the city of a portion of Wilkins township, passed by the councils thereof, on the 12th day of May, A. D. 1873, is null, void, and of no effect; that a writ of injunction issue against the defendant, the city of Pittsburgh, perpetually restraining the said city from levying taxes upon the lands of the plaintiffs mentioned in the bill, and situated in that part of the township of Wilkins, described in the bill, and from collecting any city taxes assessed thereon, and restraining the city of Pittsburgh from exercising corporate or municipal authority, in pursuanee of the aforesaid ordinance over any part of the said Wilkins township, described in the plaintiffs’ bill; that the bill be dismissed as to all the defendants, other than the city of Pittsburgh, and that the defendants, the city of Pittsburgh, pay the costs of suit, &c.,” affirming the decree of the court below.
    That the plaintiff in this suit, and his eestuis que trustent, were all taxable inhabitants of the said Thirty-seventh Ward, being the same territory as that mentioned in the decree above recited, at the time when these taxes were levied and collected.
    That the said Samuel McCrickart, the plaintiff in this suit, is authorized and empowered to sue as trustee for these persons.
    If the court shall be of opinion, that under the facts of the case as stated, the plaintiffs are entitled to recover, then judgment shall be entered generally for the plaintiffs in the sum of $4118.21, with interest on the amount paid by each from the date of payment. But if the court shall be of opinion that the plaintiffs are not entitled to recover for the “City School,” “Ward School,” and “Poor” taxes paid, then judgment shall be entered for the plaintiffs in the sum of $2301.40, with interest as above.

      But if the court shall be of opinion that the plaintiffs are not entitled to recover in this action, then judgment shall be entered for the defendant.
    The costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon.
    The court, Stowe, P. J., on March 8th 1878, entered the following decree: “Being of the opinion that under the facts sot out in the case stated, the plaintiff'is not entitled to recover in this action, either for himself or any other person for whose use the suit is brought, wo therefore direct judgment to be entered in favor of defendant.”
    This entry of judgment was assigned for error.

      8. Schoyer, Jr., and O. U. Kloman, for plaintiff in error.—
    This was not the case of a general authority to tax, and a void and irregular assessment under it, upon persons and property subject to the jurisdiction of the city; in such cases, the authorities seem to require that the payment should have been made under protest, or under such circumstances as amount to duress; but that is not this case. The city was a wrongdoer and trespasser from the very beginning; there was a total want of any authority whatever to tax. The persons and property upon whom and which the tax was assessed were not, and never had been subject to its jurisdiction, and were at the time subject to another jurisdiction and another taxing power. The persons so taxed could not have any benefit in any way by the application of their money for any other municipal purpose.
    It is therefore contended, that such taxes so paid under such circumstances, whether paid voluntarily or involuntarily, with or without protest, cannot be retained by the city: Amesbury Manufacturing Co. v. The Inhabitants of Amesbury, 17 Mass. 460; Hubbard v. Brainard, 35 Conn. 567: Louisville v. Henning, 1 Bush (Ky.) 381; Mayor &c. of Jersey City v. Riker, 38 N. J. L. 225; Wilson v. City of Allegheny, 29 P. F. Smith 273; Beckert v. City of Allegheny, 4 Norris 191; Breed v. City of Allegheny, Id. 214. But none of these payments were voluntary, because the treasurer’s notice contains such a threat, that it, together with the tax laws, makes the payment compulsory: Preston v. Boston, 12 Pick. 13; Boston Water-power Co. v. Boston, 9 Met. 199; Atwell v. Zeluff, 26 Mich. 118; Lincoln v. Worcester, 8 Cush. 60; Hospital v. Phila. County, 12 Harris 229.
    Payment of taxes to a collector, who has a tax bill and warrant in the form prescribed by law, is to be regarded as a compulsory payment; and if such taxes were assessed without authority, they may be recovered back iñ an action for money had and received, although the party made no protest before payment. The fact of protest being made is immaterial except as to the question of interest: The Boston Glass Co. v. Boston, 4 Metc. 181; Vermont Central Railroad Co. v. Burlington, 28 Vt. 193.

      Thomas S. Bigelow, City Solicitor, contra.

    The taxes in this case were collected and expended, as it is expressly admitted by the case stated, for the ordinary purposes of the municipal government, and it is fair to presume that the benefits arising from the performance of the functions of government by the city of Pittsburgh, while its jurisdiction in point of fact extended over the territory embraced in what was known as the Thirty-seventh Ward, was equally as advantageous to the citizens and tax-payers of that ward as to any other portion of the city, and that they having enjoyed the benefits without any protest or warning upon their part to the city or its officers of an intention to dispute the legality of the tax, it is submitted that they must now be precluded from a recovery of the amount of taxes paid under such circumstances : Taylor v. Board of Health, 7 Casey 73; Borough of Allentown v. Saeger, 8 Harris 4 12; Wharton v. Borough of Birmingham, 1 Wright 371; Lester v. City of Baltimore, 29 Md. 415.
    James Kelly did not represent the plaintiffs in his bill in equity, and the proceedings therein can have no bearing on this case.
   The judgment of the Supreme Court was entered November 25th 1878,

Per Curiam.

Had the plaintiff and those whom he represents paid their taxes under protest, or with notice that they would reclaim them, they might have had some ground to stand upon. But as it was the city had a right to consider the money as their own and deal with it accordingly — just as an individual would under similar circumstances. Where there is no mistake or fraud a voluntary payment cannot be recovered back on the mere ground that the one party was under no obligation to pay and the other had no right to receive. Taylor v. The Board of Health, 7 Casey 73, and Borough of Allentown v. Saeger, 8 Harris 421, rule this case. James Kelly did not represent the plaintiffs in the bill he filed, and that proceeding can have no effect as notice or claim by them.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Walter versus Commonwealth.
    1. W. was the proprietress of a drinking saloon, in which she employed female waiters, prior to the passage of the Act of March 28th 1878. That act prohibits the employment of any female in such saloon, to sell, vend, offer, procure, furnish or distribute, any intoxicating drinks to any person or persons. After the approval of the act, W. discharged her employees and entered into partnership with them. Held, that this was an infraction of the spirit of the law and was indictable.
    2. By a proviso to the first section of said act, it is provided, “ that nothing in this act shall be so construed as to prevent the wife or daughter, or any person having a license for selling or distributing aforesaid liquors.” It was contended that the indictment should show upon it’s face that none of the female employees came within this proviso. Held, that this was not necessary.
    3. The act of employment being a single offence, there was no misjoinder in not entering a separate indictment for each female so employed. So also in imposing a fine of §800, the minimum punishment prescribed in the act, 8100 for each female employed, there being no misjoinder there'was no error in the sentence.
    November 15th 1878.
    Before Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Agnew, C. J., and Woodward, J., absent.
    Error to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1878, No. 200.
    Indictment of Fanny Walter for misdemeanor. For some time prior to the 28th day of March 1878, Fanny Walter was the keeper and proprietress of a licensed tavern on Diamond street, in the city of Pittsburgh, and had in her employ, in conducting the establishment, a number of females.
    The Act of March 28th 1878, Pamph. L. 9, is as follows:— “ An act relative to the employment of females in hotels, taverns, saloons and eating-houses, or other places, for the sale of intoxicating and other drinks, and the penalty for the violation thereof. Sect. 1. Be it enacted, &c., that it shall not be lawful for any owner, proprietor, keeper or agent of any hotel, tavern, saloon or eating-house, or other places where intoxicating liquors are sold, to employ or permit the employment of any female at any such hotel, tavern, saloon or eating-house, to sell, vend, offer, procure, furnish or distribute any intoxicating drinks or any admixture thereof, ale, wine, beer or cider, to any person or persons, or to employ any female as lady conversationalist, or for the purpose of attracting persons to such places, or to permit the assembling of females at such places as aforesaid, for the purpose of enticing customers or making assignations for improper purposes. Nor shall it be lawful for any female not having a license, as permitted by the laws of this Commonwealth for the sale of intoxicating liquors, to sell at any hotel, tavern, eating-house or saloon, offer, procure, furnish or distribute any intoxicating drinks or any admixture thereof, ale, beer, wine or cider, to any person or persons; provided that nothing in this act shall be so construed as to prevent the wife or daughter of any person having a license for selling or distributing aforesaid liquors.
    “ Sect. 2. Any person violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction of the same, shall be sentenced to pay a fine of not less than one hundred dollars nor more than five hundred dollars for each and every female so employed, or undergo an imprisonment of not less than three months or more than one year, or either or both, at the discretion of the court having jurisdiction of the case.
    “ Sect. 3. That from and after the passage of this act, no license for the sale of intoxicating liquors shall be granted to any person or persons, except upon the express condition that the person or persons so licensed shall and will not employ any female or females, as provided in the first section hereof, and any person or persons so licensed shall, upon conviction for violating the provisions hereof, in addition to the penalties provided in the second section, forfeit his, her or their license.”
    Upon the passage of this act Fanny Walter discharged her female employees. On the 29th day of March 1878, conformably to a previous arrangement, the said Fanny Walter, and Dora Walter, Lizzie Sheriff, Bella Fielding, Clara Bradley, Dolly Feigly, Mary Bernard, Nellie Seidle and Wilhelmiua Mahlman, entered into articles of partnership, in writing, for the purpose of conducting the tavern business, at the place previously occupied by Fanny Walter, under the firm name of Fanny Walter & Co. ‘ On the same day, a tavern license was duly granted and issued to said firm, for the house occupied by the firm in Diamond street, and, subsequently, in May 1878, another license was duly granted to the firm for one year from the termination of the first license. The females composing the firm were a portion of Fanny Walter’s previous employees. On the 10th of April 1878, one Wm. B. Ross, agent of the “law and order” association, made an information• before an alderman of the city of Allegheny, charging Fanny Walter, “on information received,” with having unlawfully employed said women to vend and distribute drinks, and attract persons to said tavern, contrary to the Act of Assembly aforesaid.
    On April 12th 1878, the bill of indictment (containing three counts) was returned a “true bill.”
    The first count charged that Fanny Walter, “on the 8th day of April 1878, at the county of Allegheny, being then and there the owner, proprietress, keeper and agent of a certain hotel, tavern, saloon, eating-house, and place where intoxicating liquors were sold, unlawfully did employ and permit the employment of a certain female and certain females, at said hotel, tavern, saloon and eating-house, to sell, vend, procure, furnish, and distribute intoxicating drinks and admixtures thereof, and ale, beer, wine, and cider, to certain persons whose names are to said inquest unknown, contrary to the form of the Act of the General Assembly,” &c.
    The second count charged the defendant with having, at the same time and place, employed the same females “as lady conversationalists, and for the purpose of attracting persons to said hotel, tavern, saloon and eating-house, contrary to the form of the act,” &c.
    The third count charged that the defendant, at the same time and place, “did then and there permit the assembling of females at said hotel, tavern, saloon and eating-house, for the purpose of enticing customers, contrary to the form of the Act of the General Assembly.”
    The defendant pleaded not guilty.
    The court, Stowe, P. J., charged the jury as follows :
    “If the jury believe that Fanny Walter, the defendant, was sole lessee of the premises occupied by her on Diamond alloy, at the time this article of partnership was made and entered into, then she was the proprietor, owner, or keeper of this saloon or eating-house; and, if so, then, if she did afterwards employ or permit these so-called partners to sell, offer, or furnish beer, wine, or cider to any person or persons on the promises or within the saloon, then she is guilty under this Act of Assembly, and it is no defence that she may have done so by means of an actual or supposed partnership, such as that offered in evidence.
    “To allow one who is a proprietor, lessee, or owner of a saloon, whether male or female, to take, under the cloak of partnership, even an actual one as between the parties themselves, one or more females into his concern, for the purpose of distributing drinks, would be in direct violation of the very language of the act, and is, in my opinion, a criminal offence.”
    Under these instructions a verdict was rendered, pro forma, against the defendant on the first count, and in her favor on the second and third.
    The defendant was then sentenced to pay a fine of §800, pay the costs and stand committed until the sentence was complied with. She then took this writ and assigned for error the foregoing charge, a’nd that the bill of indictment was defective and insufficient, both in form and substance, and that conviction and judgment thereon were erroneous.

      Thomas M. Marshall and A. M. Brown, for plaintiff in error.—
    The Act of March 28th 1878, is a penal statute, and should be interpreted strictly. The act does not forbid females who are proprietors or keepers of licensed taverns from engaging in the management or work incident to such establishments. Fanny Walter & Co. wore such, and engaged in the performance of their own legitimate work. They had no female employees; all were engaged in the management of their own business. An indictment was preferred against Eanny Walter alone, charging her with misdemeanor, in that she had employed certain females, to wit, her copartners and coproprietors, at the tavern kept by the firm, “ to sell, vend, procure, furnish, and distribute intoxicating drinks,” &c. The answer to this charge was that the females named were not employees but owners, proprietors and keepers, engaged with her in carrying on their own business, under a license duly granted by the Commonwealth. The truth of this answer was not and could not be questioned. The license was a matter of record. If one partner could be convicted, all could be separately indicted and convicted.
    The defendant was convicted on the first count and acquitted upon the second and third. The first count charged the defendant with having employed and permitted eight females to sell and distribute liquors, but it contained no averment that the said females had not a license for the sale of intoxicating liquors. The act expressly excepts licensed females, and also the wife and daughter of any hotel-keeper. It seems to us that where, as here, a female is charged with misdemeanor for the doing of an act which, under some circumstances, is lawful, whilst under other circumstances it becomes unlawful and indictable, the indictment should affirmatively state every fact necessary to constitute 'the offence; it should be certain to every intent, and without any intendment to the contrary: Commonwealth v. Corson, 2 Parsons 475; Commonwealth v. Miller, Id. 480; Pennsylvania v. McKee, Add. 33. It is not sufficient, in an indictment for a statutory offence, to charge it in the words of the statute, unless they expressly serve to allege the act, with all the necessary additions, and without the least uncertainty or ambiguity: Commonwealth v. Miller, supra.

    We contend that this joinder of eight alleged distinct offences in one count was a fatal error. We do not claim that these offences could not be joined by separate counts in the indictment, but we do claim that the defendant cannot be charged, convicted or sentenced upon one count for eight separate and distinct misdemeanors. The learned judge imposed a single sentence, namely, a fine of $800. This judgment was unauthorized by the statute; the fine being $300 more than the maximum sum fixed by the statute: Hutchison v. Commonwealth, 1 Norris 472; Wharton’s Crim. Law, sect. 414; Commonwealth v. Gillispie, 7 S. & R. 469.
    No counsel appeared for the Commonwealth.
   Mr. Justice Paxson

delivered the opinion of the court, November 25th 1878.

The plaintiff in error was indicted and convicted of a violation of the Act of 28th of March 1878, entitled “ Am act relative to the employment of females in hotels, taverns, saloons and eating-houses or other places for the sale of intoxicating and other drinks, and the penalty for violation thereofPamph. L. 9. We learn from “ the history of the case,” that Fanny Walter, the plaintiff in error, for a considerable time prior to the 28th day of March 1878, had been the keeper of a licensed tavern on Diamond street, in the city of Pittsburgh, and had in her employ in conducting the establishment a number of females. Upon the passage of said act she discharged her female employees. On the next day, 29th of March 1878, in pursuance of a previous arrangement, she entered into articles of copartnership with eight of the employees, discharged the previous day, for the purpose of conducting the same business at the place then and previously occupied by her, under the name of Fanny Walter & Co. On the same day a tavern license was duly granted and issued to said firm for the said house on Diamond street, and subsequently, in May 1878, another license was duly granted to the firm for one year from the termination of the first license. On the 10th of April 1878, the said Fanny Walter was arrested and bound over for her appearance in the Quarter Sessions to answer the charge of violating the Act of Assembly aforesaid. A true bill was found by the grand jury at the March sessions, and in the month of Juno last she was tried, convicted and sentenced to pay a fine of f>800.

The assignments of error, from one to five inclusive, relate to the rulings of the court upon the law, a,nd may be considered together. The learned judge charged the jury that if they believed “ that Fanny Walter, the defendant, was sole lessee of the premises occupied by her on Diamond street at the time this article of partnership was made and entered into, then she was the proprietor, owner or keeper of tills saloon or eating-house, and if so, then if she did afterwards employ or permit these so-called partners to sell, offer or furnish beer, wine or cider, to any person or persons on the premises or within the saloon, then she is guilty under the Act of Assembly, and it is no defence that she may have done so by reason of a supposed or an actual partnership, such as that offered in evidence. To allow one Avho is proprietor, lessee or owner of a saloon, whether male or female, to take under the cloak of partnership, oven an actual one as between the parties themselves, one or more females into his concern for the purpose of distributing drinks, would be in direct violation of the very language of the act, and is, in my opinion, a criminal offence.”

We are unable to see any error in this ruling. The plaintiff in error-Avas the proprietor or keeper of this saloon when the act was passed. By its terms she Avas prohibited from employing or permitting the employment of any female at such saloon, to “sell, vend, offer, procure, furnish or distribute any intoxicating drinks or admixture thereof, ale, Avine, beer or cider, to any person or persons.” For the purpose of avoiding the penalties prescribed in the act she discharged her female employees, and the next day, in pursuance of a previously formed design, entered into articles of copartnership with them, and the business is then carried on as before. In what respect were the relations of the parties changed by this copartnership ? The articles provided that: The said Fanny Walter shall furnish all the capital, stock, premises, supplies and materials for carrying on the said business, and shall also be the business manager of the firm ; shall keep the books, receive all moneys, pay all bills and expenses, and make all contracts and purchases for carrying on the business of said firm.” It was further provided that each of the said eight females should receive one-twentieth of the profits, and bear an equal proportion of the losses. The effect of this is, that the plaintiff in error retains the entire control of the business as she had before. The capital, stock and premises still belonged to her. Her new partners put in nothing and get nothing beyond a share of the profits by way of compensation.. A more palpable evasion of the law could Pot well be devised.

It was further objected (sixth assignment) that the indictment is defective and the judgment erroneous. The above recited Act of Assembly contains the proviso, “ that nothing in this act shall be so construed as to prevent the wife or daughter, or any person having a license for selling or distributing aforesaid liquors,” from which it was argued that the indictment should show upon its face that none of the female employees came within the proviso. A careful reading of the first section of the act will show that this objection is not well taken. The proviso has no application to the first part of said section defining the offence for which the plaintiff in error was convicted. It manifestly relates to the offence set forth in the concluding part of the section, which is as follows: “ Nor shall it be lawful for any female not having a license, as permitted by the laws of this Commonwealth, for the sale of intoxicating liquors, to sell in any hotel, tavern, eating-house or saloon, offer, procure, furnish, or distribute any intoxicating drink or any admixture thereof, ale, beer, wine or cider, to any person or persons provided, that nothing in this act shall be so construed as to prevent the wife or daughter of any person having a license for selling or distributing aforesaid liquors.” Here is an offence distinct from the one for which the plaintiff in error was indicted. The section was evidently intended to punish, first, the proprietor or keeper of a saloon for employing females to sell liquor, and second, all females not having a license, who shall sell liquors in such saloons. It is to the latter offence the proviso refers. Had the females, employed by the plaintiff, been indicted under this last clause of the section there would have been more force in the argument that the indictment should set forth that the offending parties were not licensed, and that they did not come within the terms of the proviso. But the offence for which the plaintiff in error was convicted is sufficiently charged in the words of the statute.

It was also urged tbat there was a misjoinder ; that there should have been a separate indictment, or at least a separate count for the employment of each of the said females. If there were separate offences this would be so. It needs, however, but a moment’s reflection to see that but a single offence was committed. That offence was the employment, and it was one act. While the evidence has not been sent up, yet there is enough in the record and history of the case to show that all of these females were employed on the same day. On the 29th of March, the plaintiff in error employed a certain number of females in her saloon in violation of the Act of Assembly. It is wholly immaterial how many she employed, except for the single purpose of ascertaining the amount of the fine. For her offence on that day she cannot be twice tried and'convicted. Tt cannot be split up into eight, offences, involving a corresponding number of indictments and trials. It might as well be said that if the Act of Assembly had prohibited the keeping of billiard tables in the saloon of the plaintiff in error, and imposed a fine for each table so kept, that she would have been liable for a separate indictment for each table. In such case the number of tables would have no significance, except in the matter of the penalty, just as in the case in hand the number of females employed guides the court in imposing the fine, but is valueless for other purposes. It may be that if upon a day subsequent to the indictment the plaintiff had taken another female into her employ for a like purpose, an indictment would lie for such subsequent act. But we have not that question before us. It is conceded that if she had committed an assault and battery upon each of said females on the 29th day of March an indictment would lie for each assault. The reason is plain. In such case the offence would have been against the person of each female respectively, as well as against the Commonwealth. Here there is no offence charged against the eight females employed, or any of them, nor have they been indicted under the act. It is an offence against the Commonwealth solely, and consists of the employment of females in a position and for certain purposes which the law' wisely forbids as being against public morals.

The court imposed the minimum punishment prescribed in the act, $100 fine for each female employed. There being no misjoinder, there is no error in the sentence. Judgment affirmed.


author: • Mr. Justice Sharswood

text:
    Frisbee’s Appeal. Frisbee versus Irvin et. al.
    A court of equity has no jurisdiction of a bill for an account of profits brought by one, out of possession, who claims tobe a joint owner of an oil well against his alleged co-tenants, until the question of title is first determined in a court of law.
    November 18th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 187. In Equity.
    This was a bill in equity filed by J. C. Frisbee, which, in substance, set forth, that on May 6th 1873, John Hemphill owned in fee seventy-five acres of land in Butler county, which on that day he conveyed by deed of general warranty to J. C. McKinney; that on June 25th 1873, McKinney, by articles of agreement, leased a portion of said tract to D. C. Scott; that on August 13th 1873, Scott, by articles of agreement, sold to Frisbee one-fourth interest in said lease, with an oil-well and fixtures thereon, of which one-fourth complainant took possession, enjoying the profits thereof until October 28th 1874; that upon that day the interest of Scott in the well and lease aforesaid was sold at sheriff’s sale, and purchased by the defendants, R. L. Irvin and Samuel P., Alexander and - Brown, partners as Brown Brothers & Irvin; that previous to and at the time of sale complainant 'gave notice that he owned the one-fourth of said well and lease; that shortly after complainant went into possession of his fourth interest in 187 3, the oil commenced to flow at the rate of about two hundred and fifty barrels per day, and continued to produce largely until the day of the sheriff’s sale, at which date said well was producing fifty or more barrels daily, and continued to produce at the same rate until the filing of the bill; that at the time of the sheriff’s sale complainant held his undivided one-fourth interest in said well, and is entitled to his share of the oil therefrom; that defendants refused to recognise complainant as part owner of said leasehold and oil-well, and unjustly deprived him of his share of the oil; that complainant has always been willing to contribute to the expenses of running said well, but defendants gave him no notice of what would be required, and refused to recognise his title to contribute; and that defendants have not accounted for complainant’s share of the oil, and refuse to account. The bill then prayed that defendants should be required to account to complainant for one-fourth of the oil produced; that they be restrained from receiving this one-fourth of said oil, or from making any sale of oil that would affect complainant’s rights.
    The defendants answered, admitting that a sale was made by Scott to Frisbee, but claiming that the interest thus sold was re-conveyed to Scott by Frisbee some time during the spring of 1874, probably during the month of April; denying that Frisbee had possession of said lease or well, and received the profit accruing therefrom up to October 28th 1874, as alleged, but admitting that said Frisbee may have received his portion of the said profits up to the time that the interest was resold to said Sc.ott; averring that the interest of Scott was sold at sheriff's sale on the 28th of October 1874, upon a judgment of It. L. Irvin, Samuel Q. Brown, partners as Samuel Q. Brown & Irvin, and not by the parties whose names are recited in this bill, and that the interest of Scott in said property was purchased at said sale by Samuel Q. Brown and It. L. Irvin, partners as Samuel Q. Brown & Irvin, who answer the plaintiff’s bill and claim to be the legal and rightful owners of said interest and of the working interest in said well, lease, machinery, fixtures, &c.; that no notice of claim of said Frisbee in said property was given to defendants prior to said day of sale, as alleged. Defendants do not know what the daily production of said well was prior to said sale, but that since that time it has not averaged above twenty-five barrels per day, and that the well aforesaid has been diligently worked; that the production of said well prior to said sale can be readily ascertained from the books of the pipe companies ; that complainant, at the'time of the sheriff’s sale, did not own an interest in said leasehold and oil-well, and that defendants did not unjustly deprive complainant of his share therein, as they did not recognise him as the owner thereof, and therefore did not give him notice in regard to the expenses or account for the proceeds of the well. The bill and answer were referred to a master to take testimony and report, and before any testimony was taken, the defendant’s counsel requested the master to report to the court without taking any testimony, recommending a dismissal of the plaintiffs bill for -want of jurisdiction. The motion was argued at a time fixed by the master. The defendants, in their pleadings, did not plead to the jurisdiction, but answered the bill. The master reported that while it was not too late to plead to the jurisdiction of the court, yet he was of the opinion that it was not within his province to pass upon the question.
    , After the testimony was taken and the same reviewed, the master made a further report, recommending a decree that the defendants account for the one-fourth of the oil produced, and that they should be restrained from receiving one-fourth of the production thereafter.
    The defendants filed a number of exceptions to the report of the master, the first being as follows :
    “ That a dismissal of the plaintiff’s bill should have been recommended in his report, on the ground that sufficient reasons or grievances are not alleged and set forth in said bill to give a court of equity jurisdiction, the chief question raised by the bill being one of title, which question should have been settled by ejectment at law and not in equity..' To sustain such bill, answered as it has been, would be to. interfere with the right of'trial by jury.”
    The master overruled the exceptions, but the court sustained them and dismissed the plaintiff’s bill, with costs. From- this decree, this appeal was taken. ■■■■.■

      MeCandless $ Greer, for plaintiff in error.
    This suit was not in the nature of a suit in ejectment, but in the'nature of a suit for an account in which it was perfectly proper for us to invoke relief. We claim that wherever account render would lie, there a bill in equity for an account will lie : Shriver v. Nimick, 5 Wright 80 ; Perch v. Quiggle, 7 P. F. Smith 247.

      McJunlrin Campbell, for appellees.
    The controversy in this case involves a question of title, and for a court of equity to undertake to determine a disputed question of title, dependent upon contradictory proof, would certainly be a. proceeding without precedent.
   • Mr. Justice Sharswood

delivered the opinion of the court, January 6th 1879.

It is unquestionably true that the Courts of Common Pleas, by the Act of October 18th 1840, Pamph. L. 7, have all the powers and jurisdiction of courts of chancery, in settling partnership accounts, and such other accounts and claims as by the.common law and usages of this Commonwealth have heretofore been settled by account-render. These words' are-broad enough to include accounts between tenants in common,' though this remedy was first given to them by statute 4 Ann., c. 16, sect. 27, reported by the judges to be in force in this state: 3 Binn. 625. It seems, however, very well settled that account will not lie against a.- disseisor or other wrongdoer.' To maintain an action of account, said Lord Coke, before the statute, there must be either a privity in. .deed by the consent of the party, for. against a disseisor or other wrongdoer no account doth lie, or a privity in law ex provisione legis-, made by the law as against a guardian: Co. Litt. 172 a. So if .a joint tenant takes all the profits to his own use, account will not lie: 1 Rol. 117, l. 30. At common law indeed no action of account .lay by one tenant in common against another, unless the latter had been specially constituted the bailiff of the other:. Co. Litt. 172 a. This the statute was intended to remedy: 2 Bl. Com. 194. Yet there is nothing which would seem to change- the well-settled • rule, that one out. of possession has no right to an account against the tenant holding adversely, whether the plaintiff claim the whole or a part. Such an action is not the proper action for trying title. ■ The same principle has been recognised in equity. In Tilly v. Bridges, Prec. Ch. 252, it was held, that when one has title to the possession of land, and makes an entry whereby he becomes entitled to recover damages at law for the time the. possession ..was detained from him after such entry, he shall not turn that suit at law into a suit of equity and bring a bill for an account of the profits, except in case of an infant or some very particular circumstances: So in Norton v. Frecker, 1 Atk. 524, Lord Hardwicke said: “ The proceedings in equity are the same as at law where trespass will not lie for mesne .profits till the possession is recovered by ejectment.” So in Sayer v. Pierce, 1 Ves. Sr. 232, where an account of the profits of coalmines was not decreed, but the bill was retained with liberty to bring ejectment, but that was because there was a prayer to ascertain boundaries, and the plaintiff, if he recovered in ejectment, might want that relief. See also 1 Story’s Eq. Jur., § 511. The question, however, has been put at rest in this state by the North Pennsylvania Coal Co. v. Snowden, 6 Wright 488, where it was held, that a court of equity has no jurisdiction of a bill brought by one tenant in common .against an .alleged co-tenant to obtain the possession and enjoyment of mining rights and privileges, founded on legal title, until those rights have been, established at law. “It has- never been held,” says Mr. Justice Strong, “that equity courts have jurisdiction of actions, founded on legal title, brought by one tenant in common against an alleged co-tenant to obtain possession or enjoyment of land.” See also Norris’s Appeal, 14 P. F. Smith 275; Tillmes v. Marsh, 17 Id. 507; Christie & Scott’s Appeal, 4 Norris 465. That there was in this case an ouster óf the plaintiff by the defendants, on the 28th day of October 1874, by the sheriff’s sale on that day, is substantially admitted by the bill. Certain it is that the plaintiff deemed it necessary then to give notice of his claim. Since then the defendants have refused ,to recognise his title; he so alleges in his bill. We think, in every view of the case, the decree of the court below was right..

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


author: Per Curiam.-

text:
    Sneathen et al. versus Grubbs et al.
    Gr. & Go. agreed in writing that they wonld deliver to S. & W. at their ing «‘Pittsburgh two barges of coal, “price to be4f cents per bushel, Cincinnati or Louisville guage. Terms,cash, when delivered in Pittsburgh free of all charges.” S. & IV. furnished the barges, and the coal was placed therein by G. & Co., but owing to the low water in the river they could not be taken to Pittsburgh. While thus lying at the works the.coal was levied upon by creditors of G. A Co. S. & W. brought an action of replevin. Held, that as the delivery of the coal had nqt taken place and the terms of the contract of sale had not been performed, no title to the coal passed which could be enforced in replevin by the purchasers.
    November 18th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Trunkey, JJ. ' Woodward, J., absent.

      Error to the Court' of Common Pleas of Washington county: Of October and November Term 1878, No.- 141.
    Replevin by J. B. Sneathen and B. F. Wilson, partners, trading as J. B. Sneathen & Co., against J. W. Grubbs & Co..
    The facts) in, substance, were these: In August 1875, the defendants made with plaintiffs the following agreement in writing;
    “Pittsburgh, August 10th 1875.
    “We have this day agreed to load for Sneathen & Wilson, and deliver in their landing at the Point, two (2) barges coal from our mines near Greenfield, Washington county, Pa., price to be four and one-quarter (4J) cents per bushel, Cincinnati or' Louisville gauge. Terms cash when delivered in Pittsburgh free; of all charges.. (Signed), J. W.' Grubbs & C6.”
    It appeared that the coal was to be delivered at the first rise of the river. The barges were delivered to defendants, who took them to their- works and loaded them, but could not return them to Pittsburgh -on account of the low stage of water. On the 21st of September 1875, while the loaded barges were lying at .defendants’ works, J. W. Grubbs, one of the defendants, filed his petition in bankruptcy; a few days prior, however, a number of creditors who had judgments before justices of the peace, had executions issued thereon and levied on the barges' of coal, but were restrained from proceeding therein by an injunction issued by the United States District Court. The barges not having been returned to plaintiffs, they, on the 16th November 1875, issued a writ of replevin and.the barges, with the coal therein, were delivered to them. Afterwards the execution creditors presented their petition to the court, praying leave to intervene, which was allowed.
    In their general charge the court, inter alia, said :
    “ Now from the forms of this contract and the undisputed fact that the coal had not been delivered in whole or in part to the plaintiffs when they brought their action, I feel bound to instruct you, as a matter of law, that, as to the coal, the property therein had not passed to the plaintiffs, and consequently that, they are not entitled to damages for'its detention. As to the coal, therefore, you should find that the property was in the defendants, and you will assess damages to the defendants for the detention of the coal by the plaintiffs from the 16th of November 1875, to the date of your verdict, and the measure of the damages will be the interest on what you may estimate as the value of the coal from November 16 th 1875, to the present time.
    “This instruction may seem to you to be a hardship to the plaintiffs, but it fesfilts logically from the rule of law that in a sale of personal goods and chattels the property therein doeá not pass to the • buyer so long as anything remains to be done to it by the seller.” .-
    Verdict for plaintiffs for damages for detention of barges $120, and for defendants $522.98 interest on the value of the coal. Plaintiffs took this writ, and for error, inter alia, assigned the above portions of the charge.

      Johnston $ Fetterman, for plaintiffs in error.
    The facts do not present the case of a simple contract for the sale of a chattel and non-delivery thereof by the vendor, but do show that the defendant •agreed to load a barge, to be furnished by plaintiffs, with coal for the plaintiffs, and afterwards to return or deliver the barges with the coal to plaintiffs at a place designated, and the aggregate value thereof to be dependent upon the sale thereof in one of two markets.
    It is conceded that by the mere agreement to load the barges with coal no property in the coal vested in plaintiffs, but after the coal was mined and separated from the other coal by defendants and loaded into the barges of plaintiffs there was such an appropriation of it to the contract by the defendants that the property therein became vested in the plaintiffs, subject only to the right of the defendants to be paid therefor as soon as the quantity was ascertained. The position we assume is fully sustained by authority: Rugg v. Minett, 11 East 210; Langton v. Higgins, 4 Hurlst. & N. 402; Aldridge v. Johnson, 7 E. & B. 885; Benjamin on Sales, sects. 358, 359, 370; Dennis v. Alexander, 3 Barr 50; Golder v. Ogden, 3 Harris 528; Winslow v. Leonard, 12 Id. 14; Hutchinson v. Hunter, 7 Barr 140; Records & Co. v. P., W. & B. Railway Co., 9 Phila. 55.

      Orumrine & Donnan, for defendants in error.
    To determine this question of the passing of title, well settled rules of law have long since been established and are constantly applied by the courts; two of which rules, as stated by Blackburn 151, 152, and discussed by Benjamin, sect. 318 et. seq., are as follows:—
    1st. Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall in the absence of Circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property.
    2d. Where anything remains to be done to the goods, for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend upon the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in a state in which they ought to be accepted.
    The contract imposed a further duty upon the defendants after the coals had been loaded in the barges, to wit: to transport them into plaintiffs’ landing, which was the only place where plaintiffs were bound, to- accept them, as in' a deliverable state; property in them had not passed to plaintiffs When’ they were seized and delivered under the writ of replevin. This position 'is fully sustained by .the following authorities: Acraman v. Morrice, 8 C. B. 449; 1 Langdell L. C. on Sales 676, 681; Logan v. Le Mesurier, 6 Moore P. C. 116; 1 Smith’s Leading Cases 148 ; Shaw v. Nudd, 8 Pick. 9; McCandlish v. Newman, 10 Harris 460; Lester v. McDowell, 6 Id. 91; Nesbit v. Burry, 1 Casey 208 ; Nicholson v. Taylor, 7 Id. 128; Thompson v. Franks, 1 Wright 327 ; Rochester Oil Co. v. Hughey, 6 P. F. Smith 322;. Bigley v. Risher, 13 Id. 152; Mitchell v. Commonwealth, 1 Wright 187.
   The judgment of the' Supreme Court was entered November 25th 1878,

Per Curiam.-

Delivery of the coal'in these cases had not taken place, and all the terms of the contract of sale .had not been performed. No. title to the coal passed Which could • be enforced in replevin by.the purchasers. The remedy in breaeh of the-contract of sale was in a different áctioñ. ' " ' ■

Judgment affirmed in each case.


author: Mr. Justice Gordon

text:
    McCall et al. versus Webb et al., Overseers, &c., in right of Elizabeth McCandless.
    B.. a settler, sold a tract of land to M. by a deed which contained the following clause, “ provided that I, the said B., am entitled to hold thesaid tract of land by my settlement.’" The title of B. by settlement proved worthless by reason of a precedent warrant and survey. Two of the heirs of M., the grantee, entered the premises under a grant from another person, arid by' themselves: their heirs and vendees, for thirty-seven years, had exclusive' and- undisputed possession, clearing, fencing and'farming the land,-paying the taxes; and receiving the rents, issues and profits. Held, that even if there .was an implied or resulting trust in favor of their, co-heirs, the Statute of Limitations applied.
    November 19th 1878.
    Before Agnew, - C. J., -. Sharswood* Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent. .
    Error to the Coúrt of Common Pleas, of Butler county.: Of October and November Term 1876, No. 125.
    Ejectment by John Webb -and John R. MeJunkin,- overseers of the poor of Clay township, in right'of Elizabeth McCandless,.a pauper ..of said 'district, against Samuel' R: McCall, Charles Cránffier and Mary Ann his' wife, William Miller and' Melissa ..-his wife, John Brown, John Brown, Jr., Christopher ■ Bortmas, Dr. Jpsiah McCandless and George Timblin, for the undivided sixth part of five hundred and sixty acres of land in Clay Township, Butler county, Pa., said land consisting of three tracts, one of four hundred acres and allowance, settled by John McCandless, Sr.; one adjoining, of twenty acres of the Timblin tract, and one of seventy acres, purchased by said John McCandless, Sr., from John Brackney.
    The plaintiff, Elizabeth McCandless, was a daughter of John McCandless, Sr., deceased, who died in 1810, leaving a widow, Mary Ann, and six children, viz.: Mary Turner, Jane Thompson, Nancy Patterson, George W. McCandless, Elizabeth McCandless and John S. McCandless, to whom by his will his lands were devised share and share alike.
    The defendants are the heirs and vendees of John S. and George W. McCandless, deceased.
    The deed from John Brackney to John McCandless, Sr., for the seventy acres, bearing date April 7th, 1804, contained the following clause; “ provided, that I, the said John Brackney, am entitled to hold said tract of land by my settlement.” Brackney was a settler of a larger tract, embracing seventy acres on the south side of Muddy Creek (the piece in dispute), for John Woods, the legal owner, and expected to get from Woods one hundred acres of the tract as his compensation for settling it, and with such anticipations the deed was executed with said provision.
    Subsequently, -however, a -settlement was made between S. A. Gilmore, agent of John Woods, and said Brackney, in pursuance of which the latter received a deed for one hundred acres on the north end of the tract in full of his claim as settler of the said tract, and said one hundred acres embraced no part of the seventy acres by him with said provision conveyed to said John McCandless, Sr.
    Thirty-seven years before suit brought, John S. and George W. McCandless were in possession of said land, claiming to hold it as their own, under articles of agreement with Samuel A. Gilmore, surveying and dividing it between them in 1885, and in 1889 taking a deed for it pursuant to the articles of agreement, and placing the same on record, and continuing to the date of the action, by themselves, their heirs and vendees, the defendants, in exclusive possession, use and enjoyment; clearing, fencing, and farming the land, paying the taxes, and receiving the rents, issues and profits.
    The defendants gave in evidence the records of proceedings in partition of the real estate of the said John McCandless, Sr., in which said Brackney tract was not claimed as part of the estate, and which showed the division of the homestead and Timblin tracts and the receipt of G. W. McCandless, committee of Elizabeth Mc-Candless, for her full distributive share of the lands claimed and partitioned, and made several offers to prove that Brackney had no title, and that it had been abandoned by the widow and heirs of the decedent. The court, McDermitt, P. J., overrule^ the offers and .instructed the jury that as to the homestead and Timblin tracts, their verdict must be for the defendants; as to the Braekney tract, the decedent was in possession of it at the time of his death, when it passed by his will to his children as tenants in common; and that the purchase of the legal title by John S. and George W. McCandless on January 5th 1839, from Samuel A. Gilmore, enured to the benefit of all their co-heirs; that in the absence of clear and distinct testimony that the trustees notified their eestuis que trust that the possession was adverse, the trustees’ possession of the trust property was prima facie the possession of the eestuis que trust, and finder the law and the evidence the Statute of Limitations could not have commenced running against plaintiff prior to the Act of 22d April 1856, and twenty-one years of adverse possession could not have been completed before suit brought in 1872, and peremptorily instructed them that their verdict must be in favor of the plaintiff.
    Yerdict accordingly, and the rulings and those parts of the charge to the effect that the plaintiff had sufficient title to recover on, and the peremptory direction of a verdict for plaintiff, assigned for error.

      Thompson if* Scott and McCandless Cb'eer, for plaintiffs in error.

      Lewis Z. Mitchell, for defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1879.

If we are to give credence to the uncontradicted testimony in this case, some thirty-seven years before the bringing of this suit, John S. and George W. McCandless, under whom the defendants below claim, are found in possession of the land in controversy, claiming it as their own; claiming to hold it under articles of agreement with Samuel A. Gilmore, and not in right of any title' of their father, John McCandless. In the summer of 1835, they had a survey made of this land, which was known as the Braekney tract, and had it divided between themselves, each one taking his several purpart. In 1839, Gilmore executed to them a deed for- these premises, which was duly recorded the same year. That from the time of their entry, they had the exclusive possession of, and cleared, fenced and farmed the land, paid the taxes assessed upon it, received the rents, issues and profits accruing therefrom, up to the time of their several deaths, and that they transmitted their possession and title, unchallenged, to their heirs and vendees, is not disputed. From the beginning we hear nothing of any interference, in word or act, on part of the heirs of John McCandless or any one else, with the title and possession of John S. & George W. McCandless, but they, their heirs and assigns, have now for over forty years, with title unquestioned, except by, the present suit, quietly and peaceably .possessed and enjoyed the land in dispute. Moreover, in 1851, partition was made of the real estate of John McCandless, in which all his heirs wore represented, but in that process the Brackney tract was not included, nor do we, at that time, hear of its being claimed as part of that estate. This is the more significant, from the fact that John S. and George W. McCandless were then in the possession of the Brackney tract, and so had been for many years previously. The attention of those interested in the estate being thus, by the process in partition, called to the value and extent of it, we would naturally suppose that, had there been any pretence of title to the land in controversy, attention would have been called to it, and the more so, that two of the heirs were claiming it by title adverse to that of the estate.

Admitting, then, that John McCandless had, in his lifetime, title to this land, and that when John S. & George W. entered upon it, in 1835, they were but joint-tenants, as to the title, with their coheirs, there was, nevertheless, sufficient evidence of an adverse and exclusive holding and possession, by these two, to have carried the case to the jury. For it is said, in Frederick v. Grey, 10 S. & R. 182, the leading case on this branch of the law, that where one tenant in common enters upon the whole tract of land, covered by the joint title, and takes the profits and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster though none be proved.

But John McCandless had no title to this Brackney tract of land. Brackney conveyed to him subject to the provision that he, Brackney, should be entitled to hold the tract by virtue of his settlement right. It follows,-that if Brackney’s title by settlement failed the title of McCandless fell with it. Now, the defendants offered to prove that Brackney’s title had proved to be invalid and that it had been abandoned, but this offer was erroneously overruled by the court, and we must, therefore, for the present, treat the offer as proved. That is, we must treat Brackney’s settlement as worthless, because of the precedent warrant and survey, and as a consequence the dependent title of McCandless was also worthless. This left him nothing in the land, saving a few years possession, which gave him no standing whatever as against the owner of the title.

How then was a title vested in Elizabeth McCandless which was never in her father under whom she claims ? The learned judge of the court below answers; John S. and George W. McCandless, by entering upon the land, assuming a possession which belonged as well to their co-heirs as to themselves, and buying in the outstanding title, became trustees for those co-heirs. Suppose this to be so, it is but an implied or resulting trust, and there is no doubt about the applicability of the Statute of Limitations to such a trust: Walker v. Walker, 16 S. & R. 379. As was said by Mr. Justice Huston, who delivered the opinion in that case, “the doctrine that the Statute of Limitations does not apply in cases of trust has been much misunderstood. * * * * It never applied to implied trusts; to all these cases, where he who has the legal title denies and disclaims all trusts, claims and acts in all cases and in all respects as sole and exclusive owner; much less does it apply to cases where, along with such occupation and claim, the party has the legal title of record,- and the trust is-to be made out by old hearsays, vague recollections and forgotten or abandoned claims.” This language of the learned justice may be well applied to the case in hand, except that this trust is sought to be established by no “old-hearsays” or “vague recollections” of what John S. or George W. McCandless said or did, but only by a long abandoned claim, originating in a former possession by an ancestor who died nearly seventy years ago.

That Elizabeth was a lunatic, at the time of the entry of her brothers and since, can have no effect in this case, as that, fact would but have the effect, under the first section of the Act of the 22d of April 1856, to extend her right of entry or action from twenty-one years, as in the case of persons sui juris, to thirty years: Hunt v. Wall, 25 P. F. Smith 413. Moreover, the sixth section of the Act above recited, effectually disposes of any claim she might, at one time, have had as the beneficiary of an implied trust. That section prescribes five years as the limitation within which suits may be brought to enforce such trusts, allowing two years after the passage of the act, within which, persons who .would be sooner barred thereby might bring suit. But in this act no saving clause is found, like that in the Act of 1785, in favor of married women, minors and persons of unsound mind.

Making this case, then, to hinge, as the court below did, on the question of an implied-trust, and the plaintiffs have shown no title whatever in Elizabeth McCandless and, so, were not entitled to the verdict which the court directed in their favor.

The judgment is reversed.


author: . Mr.. Justice Trunkey

text:
    Wilcox versus Payne et ux.
    1. In cases of compulsory arbitration the service of the certified copy of the names of the arbitrators and the time and place-of meeting may be made under the provisions of the Act of March 23d 1877, on the party, or his agent, or attorney,'and if he has no attorney, the service may be in a like manner as of a summons in a personal action.
    2. Irregularities in appointing arbitrators, or in their proceedings, when apparent on the record, may be corrected by writ of error. But those which are ma.de so only by extrinsic proof, can be corrected only by the court below. In the Supreme Court every presumption will be made in favor of the award unless flagrant error appears on the record.
    3. While; the proceedings remain in court, that is, until the arbitrators are appointed, it must appear By the record that everything is regular; but after they are appointed, the proceedings aré out of court and need not be reduced to Writing. - '

      October 22d 1878.
    Before Askew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 156.
    Ejectment by John S. Wilcox against Morris Payne and Harriet Payne, his wife.
    In this case the defendants appeared by attorney, and the plaintiff having entered a rule to arbitrate, the respective counsel of the parties chose arbitrators and appointed a time and place for meeting, upon the certificate of which was endorsed the following: “ Served a true copy of this rule on Allen & Kosenweig, defendants’ attorneys; also, on Benson & Brainerd, plaintiff’s attorneys, by handing S. M. Brainerd a true copy of the rule.”
    At the time and place of meeting as appointed, the arbitrators being all present, “ after having been sworn, heard the proofs and allegations of the plaintiff, the defendants not appearing, and now the arbitrators do award for the plaintiff the land described in the writ, or upon defendants paying to the plaintiff’the sum of $196.87 and costs of suit within ten days from this date, then the defendants to have and hold said land.” Thirty-six days after this award, and after a writ of possession had issued, the defendants moved the court to set aside the award and all the proceedings thereunder for the following reasons: 1. That the rule fixing the time and place of hearing was not served upon defendants, they residing in the county. 2. Said rule was not served upon any person. 3. There was no proof before the arbitrators of service.'
    The court (Galbraith, P. J.), set aside the award in an opinion, saying, “ The Act of March 23d 1877 made no change in the existing law regulating the mode of service of notice of time and place of meeting of arbitrators with the names of the arbitrators, except that in the case of the absence of a party resident from the county, the service can be made in the manner pointed out for the service of a summons. It was not meant that in case of a party resident in the county service on his attorney would be sufficient, although a first reading of the Act of 1877 gives that impression. Taking the admitted rules of construction of statutes referred to by Judge Williams (5 W. N. C. 35), it seems clear that this is the proper view, and that service on the attorney is not sufficient. It follows that the choosing of arbitrators by the attorneys and the fixing the time and place of meeting, &c., are not a waiver of further notice. The parties were still entitled to notice, either personally or in some of the modes required for service of summons.”
    To this action of the court the plaintiff took' this writ of error.'

      Benson Brainerd, for plaintiff in error.
    The Act of March 23d 1877, Pamph. L. 28, repeals and supplies the sixteenth section of the Act of June 16th 1836, and authorizes the service to be made upon the attorney of the party. The language is identical with the language of 1836, in which such service is authorized. The service upon the attorney was to avoid delay and inconvenience, by reason of a party who might be absent or difficult to find.

      Allen Posenweig, for defendants in error.
    The Act of 1877 was not intended to repeal the Act of 1836, as to service, but simply to correct a defect in that act by prescribing service to be made as in case of a.summons, where personal service could not be had: Navel v. Elliot, 5 W. N. C. 35. The return of the service was defective, inasmuch as it did not set out upon whom and in what manner the service was made: Weaver v. Springer, 2 Miles 42; Bank v. Perdriaux, Brightly 67. And until proof of the service of the certified copy, in the manner prescribed by law, the arbitrators had no right to proceed with the hearing, and their award was irregular: Act of June 16th 1836, supra.

   . Mr.. Justice Trunkey

delivered the opinion of the court, October 28th 1878.

The provision in section 16th of the Act of 1836, Pamph. L. 715; directing service of the prescribed copy “ on the opposite party, if he reside within the city or county, and if not, upon his agent or attorney,” was .so plain that it needed no construction. Equally clear is the Act of March 23d 1877, Pamph. L. 28, which enacts that the said copy “ shall be served upon the opposite party, his agent or attorney; but .if said party have n.o agent or attorney, then it shall be iawful to serve said certified copy upon the opposite party in the same manner as a writ of.summons.” In this there is no room for interpretation, for there is no “obscurity, ambiguity or other defect of expression.” Nor.does the sense of the law, as it appears in the words, lead to false consequences or unjust decisions. What evil can result from service as directed by the later act ? Like directions for service of notices are not infrequent in statutes and rules of'practice, and have always been understood in one way, namely, that it may be made upon either the party or his agent or attorney. Section-12, Act of 1836, Purd. Dig. 82, pi. 39, directing upon whom the rule for arbitration may be served, works no hardship or injustice. To serve the certified copy, as required by the 16th section of that act, was often difficult and frequently imposed useless trouble and expense upon the party who entered the rule. The,Act,of 1877 gives relief. It makes full provision for service of the certified copy,- which may be on the party, or his agent, or his attorney; and if he have no agent or attorney, the service may be in like manner as, of a summons. How can its terms be reconciled with the 16th section of the Act of 1836, which directs service upon the party “ if he resides within the city or county, and if not, upon his agent or attorney ?” Interpolation of these words into the Act of 1877. leaves..the law precisely as it was before, except only this addition, namely, service of the copy may be made on a party non-resident, and who has no agent or attorney, in the same manner as a writ of summons. This was not the sole intendment of the act. We are of opinion that service was good if made on the defendant’s attorney, and that the first exception should have been overruled.

The second and third exceptions aver that the certified copy was not served, and that proof of service was not made before the arbitrators. These are exclusively for the court below, unless the irregularities appear on the record. Irregularities in appointing arbitrators or in their proceedings, when apparent on the record, may be corrected by writ of error, but those which are made so by extrinsic proof, can be corrected only by the court below: Taggart v. McGinn, 2 Harris 155; McEntire v. McElduff, 1 S. & R. 19; Bemus v. Clark, 5 Casey 251. In this court, and so it ought to be elsewhere, “ every presumption is made in favor of the award, unless flagrant error appears on the record Finch v. Lamberton, 12 P. F. Smith 370. While the proceedings remain in court, that is to say, until the arbitrators are appointed, it must appear by the record that everything is regular, but after they are appointed the proceedings are out of court, and need not be reduced to writing: Oppenheimer v. Comly, 3 S. & R. 3.

This record on its face does not show that due proof of service of the certified copy was made. The endorsement is manifestly defective in showing a legal service. Extrinsic proof might have been made of a legal service and due proof thereof before the arbitrators. What admissions of parties or testimony were before the court we have no means of ascertaining or considering. The opinion of the learned judge is persuasive that he acted solely upon the first exception ; but the other exceptions are on the record, and we cannot say there was error in sustaining them and setting aside the award.

Judgment affirmed