author: Mr. Justice Sharswood

text:
    Gordonier versus Billings.
    1. In an ejectment the defence was equitable arising from a parol exchange of land, the verdict was for the plaintiff, “to be taken off and entered for.defendant,” if he filed a deed for the land claimed, and paid the costs on or before April 1st, the plaintiff to file a deed for defendant’s land, before he should receive the other title. The defendant not having filed his deed, &c., the plaintiff on the 2d of April issued an habere. A rule was granted to set the habere aside ; the rule was discharged. Held, that the Supreme Court could not review the decision.
    2. In such conditional verdict time is of the essence of the contract.
    3. Quaere. Whether when the delay has been occasioned by unavoidable accident or misfortune, and not through the party’s supineness or neglect, equity will not relieve.
    4. The time named is nob so absolute that it cannot be varied by the power of the court.
    5. The defendant has a remedy by audita querela to obtain a decision as to his rights if his defence to the execution be legal: a writ of error lies to a judgment in such proceeding.
    6. If the ground of defence be purely equitable, such as rvould entitle him to an injunction, upon bill filed and proceedings thereon, an appeal would lie to the Supreme Court. ,
    7. Chew v. Phillippi, 8 Casey 205 ; Creigh v. Shatto, 9 IV. & S. 584, referred to.
    March 9th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas" of Wyoming county: Of January Term 1874, No. 3.
    This was an action of ejectment-, commenced November 22d 1870, by I. W. Billings against Andrew Gordonier, for a lot of land in Nicholson township. "The legal title was in the plaintiff. The defence was, that Ezra Colvin was the owner of a lot of land near the plaintiff’s house, and some time in 1868, he entered into a parol contract with the plaintiff, to exchange his (Colvin’s) lot for the land in dispute; in addition, Colvin was to procure a deed to be made to the plaintiff’ by I. S. Little, for a small piece of land over which a building of the plaintiff had been erected. That in pursuance of the contract, the plaintiff took possession of Colvin’s lot, and Colvin took possession of the land in dispute and made valuable improvements. Judgments having been recovered against Colvin, executions were issued upon them, and the land in dispute sold by the sheriff to John Wilson, who afterwards sold and conveyed it to the defendant.
    Evidence was given in support of the defence, and the defendant submitted points on which he asked the court to charge. The view taken of the case by the Supreme Court, renders it unnecessary to give them.
    Under the charge of the court, the jury, on the 31st of January 1873, found the following verdict:
    “ The jury find for the plaintiff the land described in the writ in this case, to he taken off and entered for the defendant, upon condition that the defendant file in the office of the prothonotary, on or before April 1st 1873, a title to the plaintiff for all the following described lot or piece of land, situate in the village of Nicholson, county of Wyoming, and state of Pennsylvania, bounded as follows, to wit: Beginning, &c. * * * And thence easterly along the north line of said Billings’ land, and including all lands in dispute under said Billings’ drug store, to the place of beginning; and that before the plaintiff shall take or receive said title, he shall file in the prothonotary’s office, a title to the defendant for all lands described in said writ.
    “Defendant to pay the costs by the 1st of April 1873.”
    On the 2d of April 1873, the plaintiff paid the verdict-fee into the prothonotary’s office, and judgment was entered on the verdict. On the same day, plaintiff issued a habere facias possessionem with fi. fa. for costs.
    On the 3d of April, defendant made an affidavit setting out that the plaintiff had issued the habere without having filed the sheriff’s receipt for the verdict-fee; that the plaintiff had not filed in the prothonotary’s office the deed to the defendant, as required by the verdict; that on the 2d of April, the defendant filed his deeds in the office of the prothonotary, and “ on this day has paid to prothonotary, all the costs in the suit.” He asked that the writ should be stayed, and a rule awarded to show cause why the plaintiff should not be required to file his deed as required by the verdict, and that the writ be set aside, having been issued without payment of the jury-fee.

      Upon this affidavit, Judge Gearhart, associate judge, ordered the execution to he stayed until the first day of the next term.
    On the 21st of April, the court granted a rule to show cause why the writ should not be stricken off.
    On the 29th of April, the defendant made an affidavit that in pursuance of the verdict, he immediately procured a title for the land from I. S. Little and wife, and caused a deed for the same to be made to I. W. Billings, which was executed by defendant and wife, and sent to defendant’s attorney at Tunkhannock, some days before the 1st of April; on the 31st of March, he procured a draft on New York, payable to his order, for the costs, but he, before sending to his attorney, forgot to endorse it; it was returned to defendant to be endorsed; he did not receive it till the 2d of April, and immediately started with it to Tunkhannock ; it was his intention to comply with the verdict of the jury, but the delay was caused by the failure to endorse the draft, as he supposed the costs should be paid when the deed was filed.
    On this affidavit, on May 3d 1873, court grant a rule returnable at the Argument Court, in June, to show cause why the plaintiff shall not be enjoined from issuing a writ of habere facias, the defendant alleging he has substantially complied with the verdict.
    The record showed that the costs were paid by the defendant to the prothonotary on the 3d of April 1873, and that they were taken out and receipted for by the plaintiff and his attorney. '
    A number of depositions were taken by the'defendant, which, with other matters, were given in evidence at the hearing of the rule.
    On the 23d of August 1873, the Court of Common Pleas (Elw’ell, P. J.) dischai’ged the rule, he saying, amongst other things:
    “ The plaintiff had the legal title to the land in question. The defendant wished the aid of equity. The condition attached to the verdict was the aid which it offered. The time fixed was of the essence of the finding of the jury, and the failure to perform within the time so fixed is, according to the Act of 1846, conclusive between the parties. * * * The depositions on file show preparation on the part of the defendant to comply with the verdict; but as he was not prevented by any legal proceedings, nor by any act or consent of the plaintiff, from complying,,while wre regret that his failure imposes upon him serious loss, we are constrained, by reason of want of power, to release him from its consequences. But we will further stay proceedings in order to give time for a writ of error.”
    The defendant took a writ of error, and assigned six errors.
    The fourth and fifth were that the court erred in not restraining the plaintiff from issuing a writ of habere facias, and not setting it aside because judgment was entered before the jury-fee was paid to the sheriff.
    The other assignments related to the trial, &c.

      S. W. Patrick and P. Smith, for plaintiff in error.
    The rule of court provides that no judgment shall be entered on a verdict until the verdict-fee be paid to the sheriff. Defendant was not bound to pay the costs until judgment was legally entered; and having filed his deed and paid the costs before that was done, he complied with the verdict: Harmar v. Holton, 1 Casey 249; Ferguson v. Staver, 4 Wright 216; Amick v. Oyler, 1 Casey 508.

      McQollum and R. R. Little, for defendant in error.
    The decision of the court on the rule to set aside the habere is not reviewable on error: Moyer v. Germantown Railroad, 3 W. & S. 92. The time fixed by the jury in a conditional verdict .is conclusive : Treaster v. Fleisher, 7 W. & S. 139; Chew v. Phillippi, 8 Casey 206; Hewitt v. Huling, 1 Jones 35; Gable v. Hain, 1 Penna. R. 264; Brown v. Nickle, 8 Barr 391.
    May 10th 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

We discover no error in the rulings of the learned court on the trial below, and the judgment must therefore be affirmed.

It was an action of ejectment founded on the legal title of the plaintiff below, to which the defence set up was an equity growing-out of a parol exchange of land, followed by an exchange of possession and valuable improvements, which were held sufficient to take the case out of the operation of the Statute of Frauds and Perjuries. The jury found a conditional verdict, establishing the defendant’s equity and fixing a certain day on or before which the parties respectively were to file a deed, and the defendant to pay the costs.

This then, was in effect, a bill in equity by the defendant to restrain the plaintiff from proceeding at law, and a decree thereon in the defendant’s favor. The defendant not having complied with the conditions named, the plaintiff issued a habere facias posssessionem.

The defendant took a rule to set aside this writ, under which depositions were taken, which have been returned with this record. The court below discharged the rule.

The question which is presented is, whether upon a writ of error this court have the right to review the determination of the court upon the motion to set aside the execution. This has been settled by an uniform current of decisions in this court adversely to the plaintiff in error. Even before the Acts of Assembly conferring separate equity jurisdiction upon the courts, the determinations of the lower courts upon motion for summary relief on purely equitable grounds were considered as matters of discretion not subject to review. As in Shortz v. Quigley, 1 Binn. 222, where there was a motion to open a judgment on bond and warrant of attorney, given for the purchase-money of land, on the ground of a defect of title, and the court below rejected the defendant’s testimony and refused his motion, it was held that no bill of exceptions lay, though one had been tendered and sealed. So in Righter v. Rittenhouse, 3 Rawle 273, when the regularity of an execution depends upon matter of fact de hors the record, it was said by Mr. Justice Kennedy, “ whether the court below decided the law correctly or not in relation to this matter, must depend upon how they found the facts involved in it; and how is it possible for this court to review the decision of the court below as to the facts ? It appears to me that it cannot be done, because that court is deemed in law to be as competent to ascertain and decide upon the facts in such a case as thisIn Moyer v. The Germantown Railroad Co., 3 W. & S. 91, which was an action of covenant (though erroneously stated in the report to have been an action an the case), there was a conditional verdict, requiring the defendants to do certain things before a day named, the court below had set aside the execution as it appeared by their order, on the ground that the defendants had, before the day named, in good faith made an effort to comply with the verdict, and had, with the knowledge of the plaintiff, actually done what they in good faith believed to be a substantial compliance therewith. “ Who,” says Mr. Justice Sergeant, “ is to judge whether the defendants have complied with the terms imposed by the verdict and to mould the judgment accordingly ? The court only can do this, in the exercise of a power over the process on summary application on motion, in which they are for the most part obliged to decide on affidavits and depositions, whether the terms have been fulfilled or not; and these constitute no part of the record on which a writ of error lies to this court, nor do the reasons given by the court below. As this court cannot look into the depositions taken, or the reasons of the court, in order to ascertain whether the court below did right or not in rendering judgment, it is impossible for us to settle that dispute ; and like the granting of a new trial, it is a matter which must rest in the sound discretion of the court below.”

Nor is the defendant in the position of the plaintiff in error, without a form of remedy, which will enable him regularly to obtain the decision of the court of the last resort. If his defence to the execution be legal, such as payment, release, or as we have lately held, bankruptcy, his proper remedy is by audita querela: Witherow v. Keller, 11 S. & R. 271; Keen v. Vaughan’s Executrix, 12 Wright 477. To the judgment upon this writ, error lies. But if the ground of his defence be purely equitable, and such as would entitle him to an injunction in a Court of Chancery, then upon bill filed, and proceedings thereon, he will be entitled to an appeal to the Supreme Court. Thus, in Springer’s Adm. v. Springer, 7 Wright 518, where the court below had made a decree of subrogation, it was held that it cou-ld not be reviewed by a writ of error. “A writ of error,” says Mr. Justice Lowrie, “cannot, without a change of its nature, become an adequate form of review of equitable remedies, because it brings up only what is properly record, in order to assign error in that, and never brings up the evidence, except by bill of exceptions, which is a form not practised in equity. It is by appeal that equity remedies are reviewed in a higher court, an do that brings up the whole case, and. not merely the record of it.”

It is very clear, then, that upon a writ of error we cannot review the order of the court below upon the motion to set aside the execution. The habere facias possessionem was regular upon its face. The time limited in the verdict had expired, and the record showed no compliance by the defendant with its terms. .We give no opinion upon the merits of the case. It is settled beyond a question, that in such a conditional verdict, time is of the essence of the decree : Gable v. Hain, 1 Penna. Rep. 264 ; Treaster v. Fleisher, 7 W. & S. 137 ; Creigh v. Shatto, 9 Id. 84; Hewitt v. Huling, 1 Jones 35; Chew v. Phillippi, 8 Casey 205. But admitting this proposition to the fullest extent, it by no means follows that a court of equity cannot relieve in a plain case of accident or mistake.

Every one of the cases cited above go upon the mere fact that the time had expired through the supineness or neglect of the party, or at most his inability to comply. No one of them has gone the length of holding, that if the delay has been occasioned by unavoidable accident or misfortune, the party shall not be relieved, even though time is of the'essence of the contract or decree: Adams on Equity 89. That the time named is not so absolute, that it cannot be varied by the power of the court, is shown by Creigh v. Shatto, supra, where it was said that in case a writ of error is sued out, and the time expires before it is disposed of by the Supreme Court, this court, in affirming the judgment, will give further time for compliance with the conditions of the verdict. Nor does the Act of 21st April 1846, Pamph. L. 424, stand in the way, for that act was held in Chew v. Phillippi, supra, to be only declaratory of the existing law upon the subject. We pronounce no opinion upon the question,- whether the plaintiff in error by his depositions laid any sufficient ground for equitable relief.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Von Storch versus Griffin.
    1. In an action for breach of promise of marriage, the defendant’s point was: “if the jury believe that the plaintiff is, and was, a person of lewd and immoral character, she is not entitled to recover unless they find that the defendant, with a knowledge that such was her character, expressly agreed to marry her.” Held, that the point should have been affirmed.
    2. An agreement to marry may bo established by evidence of a formal undertaking by positive words, or of circumstances from which it may be inferred.
    3. A man is not bound by a contract to marry a lewd woman, if he has entered into it in ignorance of her character. „
    4. The sufficiency and legality of the consideration of a contract are put in issue by the plea of non-assumpsit, and the defence that a woman with whom a contract of marriage is made was lewd, directly reached the consideration.
    March 9th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1874, No. 817.
    This was an action of assumpsit, brought August 16th 1869, by Adelia Griffin against William Yan Storch. It was to recover damages for breach of promise of marriage. The plea wras nonassumpsit. The case was before tried, aud the judgment of the court below reversed by the Supreme Court; it is reported in 21 P. F. Smith 243. It was tried the second time before Dana, J., on the 11th of February 1873.
    The plaintiff gave evidence of an express promise of marriage, and of deportment of plaintiff and defendant when together, such as is exhibited between persons under an engagement of marriage.
    The defendant testified that there had been no promise, nor engagement of marriage. He gave evidence, also, by a number of witnesses, tending to show the want of chastity, and of lewd and immoral conduct on the part of the plaintiff; and that her character in these respects was bad.
    The defendant submitted several points; his third was :
    “ If the jury believe that the plaintiff is, and was, a woman of lewd and immoral character, she is not entitled to recover, unless they find that the defendant, with the knowledge that such was her character, expressly agreed to marry her.”
    In connection with this point and in answer to it, the court charged:
    * * * “ The evidence as to the character and conduct of the plaintiff, relates chiefly to a period prior to the alleged promise. We are not called upon, under the pleadings, or by the points submitted, to declare the legal effect of acts of lewdness, or of the prostitution of her person by the plaintiff after the engagement. If, upon all the evidence, the jury find a promise of marriage and its breach by the defendant, whether the promise was express, or evinced by such unequivocal conduct, attentions, acts, and intercourse, as clearly imply a reciprocal understanding and agreement of marriage, the plaintiff may recover, and the defendant’s third point, which was read to the jury, is answered in the negative; If the jury find, as stated in this point, that the plaintiff is, and was, a woman of lewd and immoral character, it is of weight, and entitled to consideration in determining the amount of damages to be recovered, but does not go to the extent of defeating the action. * * *
    The verdict was for the plaintiff for $3000.
    The defendant, on the removal of the case to the Supreme Court, by writ of error, assigned, amongst other errors, the refusal to affirm his third point.

      A. Picketts (with whom were P. Mahon and A. P. Winter), for plaintiff in error.
    As to whether the question in the point could be raised under the plea of non-assumpsit, cited Darby v. Boucher, 1 Salk. 279; Marlow v. Pitfield, 1 P. Wms. 559; Harrison v. Cage, 12 Mod. 214; Master v. Miller, 2 H. Black. 141; Heck v. Shener, 4 S. & R. 249; Kennedy v. Ferris, 5 Id. 394; Gaw v. Wolcott, 10 Barr 43.

      H. W. Palmer (with whom was J. Sandly), for defendant in error.
    May 10th 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

Under the evidence given on behalf of the defendant below, a different verdict from that rendered would have seemed the obvious and natural result of the trial of this cause. The jury, however, were the exclusive judges of the value of the testimony, and that they fixed that value justly is to be presumed. On the part of the court, the record exhibits entire accuracy except in a single particular.

In the defendant’s third point, instruction was asked that u if the jury believe that the plaintiff is and was a person of lewd and immoral character, she is not entitled to recover, unless they find that the defendant, with a knowledge that such was her character, expressly agreed to marry her.” The language of the point, in one respect, was perhaps ill-chosen. It seems to have been selected under the idea of a distinction between a contract made out by direct testimony, and one which a jury'may find by implication from proof of the relations and intercourse of the parties. But an agreement to marry, whatever the proof offered to support it, is at last neither more nor less than an agreement to marry. It may be established by evidence of a formal undertaking by positive words, or by evidence of circumstances from which its existence may be inferred. In either case, the contract is of the same obligation, is attended with the same incidents, and involves the same consequences. The point, therefore, may be 'treated here, as it was apparently treated in the court below, as if the word “ expressly” had not been used. And thus treated, it should have been distinctly affirmed. The relation of which this contract was designed to be the beginning, would, if consummated, have affected the parties throughout their lives. It is a relation on which the . most important of the rights of property — the whole happiness and prosperity of families — social order and social morals — the whole structure of our civilization, indeed, finally rest. A man has a right to require that his wife shall come to him with an unstained name. If he is inveigled into an engagement by a harlot, he is the victim of a sheer, bald fraud. Elaboration of a subject like this would be simple platitude. It is enough to say, that the law will not enforce a contract of marriage in favor of a party to it who is not fit to. be married at all. A man is not bound by such a contract if, in ignorance of her true character, he has entered into it with a woman who has earned an evil reputation by a vicious or reckless life.

The objection that this question could not be raised under the plea of non-assumpsit, is unfounded. The sufficiency and legality of the consideration of a contract are fairly put in issue by this plea (1 Chit. Pl. 116), and the defence reached directly to the consideration here. “ Assumpsit is an equitable action, and the party claiming performance of the promise must show that everything is fair and honest on his part:” Heck v. Shener, 4 S. & R. 249. In that case the plaintiff sued for wages claimed to be due her as the housekeeper of the defendant. Evidence had been offered in the Common Pleas to show malfeasance in her discharge of the trust, and had been rejected. In this court Gibson, J., said: “ The evidence was strictly admissible, for it went to the consideration, which is the gist of the action.” In Hussey v. Jacobs, 12 Mod. 97, it was ruled that where a man admits the action, were it not for special matter, it is at his option to plead that matter specially, or give it in evidence on the general issue. It was held by Holt, C. J., in Harrison v. Cage, 12 Mod. 214, that in a suit by a man against a woman, for breach of promise of marriage, “if the man were incapable to perform, by reason of consanguinity, &c., it would then be a void promise, whereof she might discharge herself by giving special matter in evidence on non-assumpsit.” The pleadings and evidence in the present case made this ground of defence entirely legitimate.

Judgment reversed, and a venire facias de novo awarded.


text:
    American Life Insurance and Trust Company versus Rosenagle and Wife.
    1. The stringency of the rule requiring search for documents and pi’oof of their loss to admit evidence of their contents, is proportioned to their character and value.
    2. Slight proof of such loss, &c., is sufficient where the documents from their nature would have only transitory interest and there was no rational motive for keeping them.
    3. A deposition will not be rejected because the witness speaks of papers not produced, if it appear they were received a long time before the deposition was taken, and are such as would not probably be preserved for so long, or are not in the power of the witness or the party; especially if family letters, received by the witness in a foreign country.
    4. The law of a foreign country on a given subject may be proved by any person, though not a lawyer, or not having filled a public office, who has been in a position to render it probable he would make himself acquainted with it.
    5. A pastor of a church in a foreign country testified, that church records of marriages, births, &e., had been kept according to the laws of the country, and he was the proper custodian of them and received by him from his predecessor. Held, that extracts from the records giving the genealogy of a family, sworn by him to be correct, were evidence in a question of identity.
    6. Where proof is by a copy, an examined copy duly made and sworn to by any competent witness, is always admissible.
    7. Pedigree includes not only descent and relationship, but also the facts of birth, marriage and death, and the times these events happened.
    8. Such facts may be established by general report in the family, proved by a surviving member of it, where they occur incidentally and in relation to pedigree.
    9. Evidence in this case by foreign depositions and documents of pedigree, to prove identity.
    March 9th 1875.
    Before Agnew, O. J., ShaIrswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1874, No. 293.
    This'was an action of debt, brought July 26th 1867, by Valentine Rosenagle and Maria his wife, in her right, against the American Life Insurance and Trust Company. The action was on a policy of insurance, dated January 9th 1867, issued by the defendants to Maria Ann Rosenagle, on the life of Maria Catharine Kring, who died April 19th 1867.
    The case was tried April 10th 1873, before Dana, J.
    The plaintiff gave in evidence the policy, which was accompanied by interrogatories propounded by the company to the applicant, with their answers and the applicant’s declaration.
    The third interrogatory and its answer were: “ Place and date of birth of the life proposed for insurance.” Answer: “Born at Baden, Germany, on the 2d day of February 1807.”
    The answers were signed “ Maria Catharine Kring by Maria Ann Rosenagle.”

      The declaration was:
    ' “T do hereby declare that the age of Mary Catharine Kring does not exceed sixty years; that she is now in good health, and does ordinarily enjoy good health, and in the foregoing proposal I have not withheld any material circumstance or information touching the past or present state of the health or habits of her life with which the American Life Insurance and Trust Company ought to be made acquainted.
    “ And I do hereby agree that this declaration, and the foregoing proposal, shall be the basis and conditions of the contract between myself and the said company; and that if any fraudulent or untrue allegation be contained herein, or in-the proposal, all moneys which shall he paid on account of such insurance shall be forfeited to the said company, and the policy of insurance made on the faith of this declaration and proposal, shall become null, void, and of none effect.
    “ Dated at Scranton, Pa., this 9th day of January, A. D. 1867.
    Maria Katharina Kring,
    by Maria Anna Rosenagle.”

      “ £I, Mary Ann Rosenagle, do declare that I have an interest in the life of the aforesaid Mary Katharine Kring to the full amount of the sum to be insured.’ Maria Anna Rosenagle.”
    After giving evidence of the time and circumstances of Mrs. Kring’s death, the plaintiff rested.
    The defendant gave in evidence the deposition of Francis J. Dehold, taken on commission, at Raden, Germany.
    He stated that Mrs. Rosenagle was his cousin-German.
    To the sixth interrogatory he said:
    “ I wms acquainted with Maria Catharine Hermann. She was the sister of my mother. Firstly she was married to the master locksmith Kring, of Odenheim. From this marriage the daughter Mary Ann Rosenagle is descended. Mr. Kring, master locksmith, and his wife, were generally known at Odenheim as duly married, man and wife, and living in legal matrimony. I was acquainted personally with the daughter, Mary Ann Rosenagle, before she was married. She came into my house with Valentine Rosenagle, her bridegroom, then being. About the age of Maria Catharine Hermann, I cannot give any nearer information, nor about the time of her marrying.”
    To the first cross-interrogatory he said:
    ££ As I said already, I was personally acquainted with Maria Catharine Hermann. I saw her for the last time at Odenheim, but cannot now say when it was.”
    To the second cross-interrogatory he said:
    ££ I repeat that I was personally acquainted with Maria Catharine Hermann, [and by the letters which Rosenagle and his wife addressed to me from Scranton, I came to know that she died in the said town. Rosenagle and his wife did write to me many times, but have not more their letters.”]
    The plaintiff objected to the part of the answer in brackets; it was rejected by the court and a bill of exceptions sealed.
    They gave in evidence the deposition of Alexander Bauer, also taken at Baden on commission. He said he was Catholic dean and parson at Odenheim ; he did not know either of the parties to the present suit.
    The second interrogatory was:
    “Are there any church or parish records kept, showing the births, baptisms, marriages and deaths in Odenheim, and by authority of what law are they kept? State particularly what law, when the law was enacted, and by what authority.”
    He answered : “ There are kept at Odenheim, as well as in the whole Grand Duchy, church records, showing the births, baptismals, marriages and deaths.
    “ [They are now kept by authority of the Badish common law, established since the year 1810, and enacted by the Grand Duke then being, and of the edict of the 29th May 1811. Before this time they were kept according to the laws of the country then established.”]
    The plaintiff objected to the part of the answer in brackets; it was rejected by the court and a bill of exceptions sealed.
    He proceeded:
    “ These records have already existed many centuries, and each parson receives the church books from his predecessor, which all together form one continued series. I am the proper keeper and custodian of said records. There are among these records indeed, records of the birth, baptism and marriage of Maria Catharine Hermann. The papers here produced contain a duly legalized extract thereof (No. 1 Exhibit).
    “ The record contains also the birth of the children of Joseph Hermann and his wife Elizabeth, born Riedel. I here produce an extract of the same (Exhibit No. 2).”
    He said, also, that he did not know Maria Catharine Hermann, and did not know that she was the identical woman who died in Scranton, and whose life was insured by defendants.
    Exhibit No. 1 was :
    [Seal.]
    [Stamp.]
    “ Extract. Page 254, § 48, Anno 1798.
    “ 1. In the year of our Lord 1798, on the 17th day of the month October, I the undersigned, Joannes Bapt. Brennig, pastor, baptized an infant, born on the same day, about the fifth morning hour, of Joseph Hermann, citizen, and Elizabeth, born Riedel, lawful consorts of this parish, to which was given the name Maria Cathrina. * * * Therefore the undersigned, in their own hand, attest with me. Joseph: Hermann,
    Karl Romele, School Teacher, and I, Joannes Bapt: Brenniu,
    Pastor to St. Michael, the Archangel, of the place Odenheim.”
    The defendants then offered in evidence Exhibit No. 2, viz.:
    The'consorts Joseph Hermann and Elizabeth, born Riedel, begot during their marriage the following children : Maria Franziska, born 21st April 1788; Eranz Peter, born 20th October 1790; Eranz Joseph, born 26th April 1793; Theresia, born 27th December 1795; Maria Kathrina, born 17th October 1798; Karl, born 12th June 1800; Johan Baptist, born 30th October 1805.
    Transcribed from the book of births of the parish of Odenheim. 'Odenheim, the 17th September 1868. Bauer, Pastor.
    Eor the correctness of this transcript and the signature of the official pastor Bauer.
    Bruchsal, the 17th September 1868.
    [Seal] The Grand District Court.
    Fischer, vide Schneider.
    This exhibit was at first admitted, and afterwards stricken out on demurrer by the plaintiff and a bill of exceptions sealed.
    The defendant then gave in evidence a second deposition of Francis J. Debold.
    To the third interrogatory, of which he said : ,
    [“ My mother, who is dead, was born Frances Hermann, of Odenheim and had the following brothers and sisters : Francis Peter Hermann, born 20th October 1790; Francis Joseph Hermann, born 26th April 1793; Charles Hermann, born 12th June 1800; Frances Hermann, born 21st April 1788; Theresa Hermann, born 27th December 1795.”]
    The plaintiffs objected to the part in brackets ; it was rejected by the court and a bill of exceptions sealed.
    “Mary Catharine Herman, born 17th October 1798. Here it is to be remarked that Frances Hermann is my mother. Of all these none is yet living except Theresa Hermann.” * * *
    To the fourth interrogatory he said:
    “ I was acquainted with Mary Ann Rosenagle in her infancy, and, indeed, when she was at the age of three or four years. Then she lived with her parents at Odenheim, or properly, only with her mother, who was the above-named Mary Catharine Hermann. The latter was said, at the time when I became acquainted with the female plaintiff, to have been a widow already, and to have been married formerly to the master locksmith, Kring, of Odenheim. When the female plaintiff was at the age of four years, her mother removed with her to Schriesheim, and there she remarried, but I do not know to whom. From Schriesheim they emigrated then to America. In the time when I was acquainted with the female plaintiff, she had no brothers or sisters. The female plaintiff was born, I think, about the year 1830. I do not know it exactly; I can but remember that I am a few years older than she.”
    The defendant offered “authenticated copies of the laws of Baden and of the edict of 29th of May 1811,” to which certificates were attached as follows:
    “ No. 3251.
    “It is hereby certified that the sections of the Common Law of the Grand Duchy of Baden and of the Statute of the Grand Duke passed on the 29th day of May, eighteen hundred and eleven, contained in the above extracts, agree verbally with the copies of these laws as they are recognised by the courts, and that these laws are now in full force and power for the whole Grand Duchy, and that Mr. Wolf, counsellor-at-law, who has signed the extracts and the translation thereof, has been sworn as interpreter of the English language.
    Carlsruhe, the eighth day of October 1868.
    The Circuit and Supreme Court of the Grand Duchy: section of the Common Pleas.
    [Court Seal.] Berger.”
    “No. 584.
    “ I certify the above document.
    Carlsruhe, October 31st 1868.
    Ministerium of the Exterior, Grand Duchy of Baden.
    (Signed) Borkh.
    Yost.”
    {Seal of the Secretary of Foreign Affairs, Grand Duchy of Baden.
    Attached was the consulate seal of the United States, as follows:
    “ No. 357.
    Consulate of the United States of America for the Grand Duchy of Baden:
    “ I, G. F. Kettell, consul of the United States of America, do hereby certify that Mr. Leopold Yost, whose name is subscribed to the paper hereunto annexed, was at the time of subscribing the same, Chief Clerk of the Department of Foreign Affairs for the Grand Duchy of Baden, duly commissioned to execute such acts, and that his signature thereto is genuine.
    In testimony whereof, I have hereunto subscribed my name and affixed the seal of the consulate aforenamed, in the city of Carlsruhe, the 31st day of October, a. d. 1868, and of the Independence of the United States of America the 93d.
    Seal of the Consulate of the U. S. at Badén. J
    Geo. F. Kettell, Consul of the United States.”,

      Then followed the sections of the law offered in evidence; they did not appear in the paper book.
    This was objected to by the plaintiff, rejected by the court, and a bill of exceptions sealed.
    Herman Eromberger was called by the plaintiff in rebuttal; he testified that he had an interview with Mrs. Kring in 1856. On cross-exapiination, he said that she told him where she was born. On re-examination, plaintiff proposed to ask witness what she said as to the time when she was born, and to give the whole conversation of which, on cross-examination, he has given a part. The defendants objected to the offer on the ground that Mrs. Kring’s declarations were not originally evidence, and have not been made evidence by the course of the cross-examination. It was admitted, and a bill of exceptions sealed. Witness said that she said, she was born 2d of February 1807, in Germany, in Manheim; her father’s second name was Hermann.
    There was other evidence, by plaintiff, tending to show that Mrs. Kring was not the person referred to in the depositions, and generally to answer defendants’ case.
    The verdict was for the plaintiff for $5167.49.
    The defendants took a writ of error, and assigned for error:
    1. Eejecting the portion of the testimony of Debold as to the letters addressed to him by plaintiff.
    2. Eejecting the portion of the testimony of Bauer as to the keeping of the church record of Odenheim.
    3. Eejecting “ Exhibit No. 2,” attached to Bauer’s deposition.
    4. Eejecting the portion of Debold’s second deposition included in brackets.
    5. Eejecting the copies of the laws of Baden, &c.
    6. Admitting the testimony of Fromberger as to Mrs. Kring’s statement of her age.

      H. M. Hoyt and Hazlehwrst (with whom was H. N. Willard).

    —The identity of the person is inferred from the identity of name: 1 Greenl. Ev., sect. 278 d. The testimony of Debold as to the pedigree of his relations, was admissible: 1 Greenl. Ev., sects. 103, 104, 134. Exhibit No.' 2, as an extract from a church register, was admissible: Kingston v. Lesley, 10 S. & R. 383; Douglass v. Sanderson, 2 Dall. 117; Dussert v. Roe, 1 Wallace Jr. 39 ; Stoever v. Whitman, 6 Binn. 416; 1 Greenl. Ev., sects. 91, 128, 483, 484; 1 Stark. Ev. 195; Noyes v. White, 19 Conn. 250. The original, being a document of a public nature, a sworn copy is admissible: 1 Greenl. Ev., sects. 91, 483, 484; 1 Stark. Ev. 181; People v. Denison, 17 Wendell 312.

      H. W. Palmer and -Abbott (with whom was J. Handley), for defendants in error.
    Hearsay testimony of pedigree is restricted to deceased persons, related to the person whose pedigree is in question: 1 Greenl. Ev., sect. 103, 486; McCauslandu. Fleming, 13 P. F. Smith 36. Foreign laws must be proved either by authenticated copies, or testimony of competent witnesses : 1 Greenl. Ev., sect. 486. A church register is not proof of identity: 1 Stark. Ev. 299. The written evidence establishes no more than that which took place between persons bearing the same name, &c.: Brown v. Petre, 2 Swanst. 235; Draycott v. Talbot, 3 Brown P. C. 564; 1 Phillips Ev. 233; 2 Id. 111; Birt v. Barlow, 1 Doug. 162. There was not sufficient evidence of loss of the letters spoken of by Debold: Simpson v. Dall, 3 Wallace 474. The admissibility of evidence of entries in a register, depends on the public duty of the person keeping it to make the entries: France v. Andrews, 65 Eng. C. L. Rep. 759; Ennis v. Smith, 14 Howard 427; Wilcocks v. Phillips, 1 Wallace Jr. 47.
    May 10th 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

The first error assigned in this record is based on the rejection of that part of the deposition of Francis Joseph Debold in which he said : “ By the lettersAvhieh Rosenagle and his wife addressed to me from Scranton, I came to know that she (Mrs. Maria Katharine Kring) died in the said town. Rosenagle and his wife did write to me many times, but I have not more their letters.” The decision of the court below was apparently controlled by the rule stated in 1 Greenl. Ev., sect. 88, that “ if a witness, being examined in a foreign country upon interrogatories sent out with a commission for that purpose, in one of his answers states the contents of a letter not produced, that part of the deposition will be suppressed, notwithstanding, he being out of the jurisdiction, there may be no means of compelling him to produce the letter.” The authority for the text in Greenleaf was the case of Steinkeller v. Newton, 9 C. & P. 313. In rejecting the statement of the witness, Tindal, C. J., said : - “ I think it would be a most inconvenient and a most dangerous rule to hold, that it should rest in the option of the party examined, whether he will produce the document or not. We have no poAver to compel the witness to give any evidence at all, but if he does give an ansAver, that answer must be taken in relation to the rules of our law on the subject of evidence.” It is to be observed that in that case, no explanation Avhatever was given of the absence of the paper. Here, the witness said he had not preserved the letters of which he spoke — in his own Avords, he had “not more their letters.” The defendants beloAV were resisting a recovery on a policy of insurance on the life of Maria Katharine Kring, which, it was alleged, had been obtained by false and fraudulent representations by the plaintiffs. The immediate question related to the identity of Mrs. Kring, who had been represented in the application as having been born in 1807, and who was alleged by the defendants to have been born in 1798. The actual date of her birth was offered to be shown by other proof, and the establishment of the identity of the Maria Katharine Hermann who was born in the parish of Odenheim on the 17th of October 1798, with the Maria Katharine Kring who died in Scranton on the 19th of April 1867, was of vital importance to the defence. The fact stated was one which the witness had learned through a correspondence with his cousin Mary Ann Rosenagle and her husband, who were the plaintiffs. No question was made as to the authenticity of the letters. The witness had personally known both Mrs. Rosenagle and Mrs. Kring. The stringency of the rule requiring search for documents and proof of their loss, in order to make parol evidence of their contents admissible, is proportioned always to the character and value of the documents themselves. These letters were between relatives, and do not appear to have had any such obvious importance as to require care for their preservation. Slight proof of loss, therefore, was sufficient. This principle has uniformly been applied where documents, which from their very nature would have only transitory interest, have been in question. In the United States v. Doebler, 1 Bald. 519, on the trial of an indictment for forging and delivering bank-notes, after proof of the fact of forging a large quantity and the delivery of one note, it was held that parol evidence of the contents of a letter from the defendant to an accomplice on the subject of counterfeit notes, for which the accomplice could not account and had not searched, but believed to be lost, was admitted. The principle extends to documents of more grave significance, if it appears, when the witness is examined, that no rational motive for keeping them existed. A deposition will not be rejected because the witness speaks of papers not produced, if it appear that the papers are such as would not probably be preserved for so great a length of time as had elapsed when the testimony was taken, or are not in the possession or power of the witness or the party offering the deposition : Tilghman v. Fisher, 9 Watts 441. The principle is especially applicable to the contents of family letters received by a witness in a foreign country. The evidence should have been admitted.

The court rejected that part of the deposition of Alexander Bauer, in which he said the church records at Odenheim, as well as in the whole of the Grrand Duchy of Baden, “ are now kept by authority of the Badish common law, established since the year 1810, and enacted by the grand duke then being, and of the edict of the 29th of May 1811. Before this time they were kept according to the laws of the country then established.” This ruling is the ground of the second error alleged. As Mrs. Kring was born before 1810, and as the transcript called Exhibit No. 2, which the defendants offered, contained no entry later than 1805, the significant portion of tlie rejected paragraph was the last sentence. Why Avas not the sworn statement, that these records, showing that the births, baptisms, marriages and deaths of the parish, had been kept before the year 1810, “ according to the laAvs of the country then established,” admissible? The witness said he Avas the Catholic dean and parson at Odenheim — that “ these records have already existed many centuries, and each parson receives the church books from his predecessor, Avhich altogether form one continued series,” — and that he was the proper keeper and custodian of the records. The law. of a foreign country on a given subject may be proved by any person, Avho, though not a laAvyer, or not having filled any public office, is or has been in a position to render it probable that he would make himself acquainted with it: Vanderdunk v. Thelluson, 8 Q. B. 812. Here, the witness was the custodian of records which had existed for centuries, and Avhich he SAVore had been kept in accordance with the laws in force when the entries were made. It Avas his duty to know, and he testified that he did know, the law relating to the records in his charge. His knoAvledge was just that which the responsible head of a public office would be assumed to have of the law which had controlled the past operations of his department — just that which would be imputed to a surveyor-general in the year 1875, of the laAV that governed the land-office in the year 1800. His position, and the facts to which he testified, made the rejected evidence competent.

The third error assigned consisted in the striking out, on demurrer, of the transcript made by Parson Bauer from the parish records, showing the dates of the births of Mrs. Kring and her brothers and sisters, the children of Joseph and Elizabeth Hermann. This should have gone to the jury. It Avas manifestly a tabulation of several entries, but the witness had sworn that he had extracted the details from the records. It Avas evidence entirely aside from the meaningless certificate signed “Eischer vide De Seheider,” at the end. If its competency depended upon that, a literal exemplification of each entry would have been requisite; but it depended on the oath of the witness that he had copied the entries in the transcript. Where the proof is by a copy, an examined copy duly made and sworn to by any competent witness is always admissible:” 1 Greenl. Ev., sect. 485. That the facts embodied in the transcript were competent, is clear from the cases of which Hyam v. Edwards, 1 Dall. 2, and Kingston v. Lesley, 10 S. & R. 383, are representative.

The error specified in the fourth assignment was the rejection from the deposition of Erancis Joseph Debold of his statement of the births of his uncles and aunts, with the exception of that of his aunt Mrs. Kring. The purpose of the defendants Avas to show that the facts relating to his uncles and aunts, as stated by the witness, were identical with the facts relating to the children of Joseph and Elizabeth Hermann, as stated by Parson Bauer, the testimony of each fixing the 17th of October 1798, as the date of the birth of Maria Katharine Hermann (Mrs. Kring). The question was one of identity, and it was sought to establish this by proof of Mrs. Kring’s pedigree. The witness was her nephew. The term pedigree includes not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. These facts may be established by general repute in the family, proved by a surviving member of it, in all cases where they occur incidentally and in relation to pedigree: 1 Greenl. Ev., sects. 108, 104. Eor the purposes of this case, this evidence was legitimate.

What is called in the record the “ exemplication of the common and statute laws of Baden,” was properly rejected. The instrument declared “ that the sections of the common and statute laws of the Grand Duchy of Baden, and of the statute of the grand duke, passed on the 29th of May 1811, contained in the above extracts, agree verbally with the copies of these laws as they are recognised by the courts.” The extracts themselves-are not on the paper books. At the foot of the paper are the words, “ The Circuit and Supreme Court of the Grand Duchy: Section of the Common Pleas. Berger;” and the seal of the court is affixed. Another endorsement follows in this form : “ I certify the above document. Carlsruhe, October 31st 1868. Ministerium of the Exterior, Grand Duchy of Baden. Borkh. Yost.” The seal of the secretary of foreign affairs is added to this remarkable paper. And then the United States consul certifies that Mr. Leopold Yost, whose name is subscribed to the paper annexed, is chief clerk of the department of foreign affairs for the Grand Duchy of Baden, duly commissioned to execute such acts, and that his signature is genuine. This answers to fix the status of Mr. Yost, but it does not help to explain the authority of “Berger,” nor what the document which he signed was certified by Yost to be. The exemplication proves nothing except certain peculiarities of official form. The fifth assignment of error is unfounded.

The sixth specification relates to a mere casual detail of the trial, which can have no future significance and requires no remark.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Williams

text:
    Adams Express Co. versus Sharpless & Sons.
    1. A condition in a bill of lading of an express company, was that they were not to be liable for loss by fire in transit unless from, gross negligence of the company or their servants. Held, that they were not responsible to owner of goods for loss by fire unless occasioned by negligence.
    2. In this case goods were placed in a wooden car about five years old, well finished and in good order; having sliding doors in the middle of the sides with a crevice between the doors and the side of the ear through which a spark might pass; the car was placed next to the tender of the engine, which was wood-burning, and the messenger was in the first passenger car, with another car between him and the first car, so that he could not see it, and the engine was omitting a stream of sparks from the time the train started. The court below referred to these facts in their charge and told the jury, if they found “ in view of all the facts and evidence that the defendants omitted to do what a man of reasonable care and caution would have done under the circumstances to protect this car from fire, then it was negligence. Held, to be error.
    3. In answer to a point of defendants, the court, referring to the same facts, said; “ If you find in any of these particulars the absence of such care and precaution as a prudent man would exercise in the business of a common carrier, you will find negligence,” in the defendants. Held, to be error; there being no evidence that it was unsafe and improper to transport the goods in a wooden car, &e., or to use a wood-burning locomotive.
    4. Placing the car next to the tender, or permitting the messenger to ride in the front passenger car, was not evidence of want of reasonable and ordinary care.
    5. Negligence as a general rule is a question of fact for the jury, but they cannot find negligence from facts and circumstances not tending to show want of reasonable and ordinary care.
    6. To charge that negligence as regards a common carrier would be the omission of such reasonable and ordinary care and precaution as would have averted the loss, is error.
    February 27th 1874.
    Before Agnew, O. J., Williams, Merctjr and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 132, of July Term 1872.
    This was an action on the case, brought by Charles S. Sharp-less and Henry W. Sharpless, trading as Sharpless & Sons, against the Adams Express Company, as common carriers, for not safely carrying and delivering a case containing six pieces of black silk.
    The case was tried May 21st 1872, before Lynd, J.
    The plaintiffs gave in evidence a bill of lading, dated “ Philadelphia, Feb’y 9th 187 ,” viz.:
    “ Received of B. B. Tilt & Son, one case, value-, for which this company charges--, marked Sharpless & Son, Philadelphia, Pa.” Part of the conditions on the bill of lading was that the company was not to be liable “ for loss or damage to said property * * * from * * * fire in stores, depots or in transit, * * * or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said company or their servants; nor in any event shall the holder thereof demand beyond the sum of $50, at which the article is hereby valued, unless otherwise herein expressed,” &c.
    They gave evidence by Oscar Seebass, a member of the firm of Tilt & Son, that on the 9th of February 1871, he delivered to the defendants a ease containing six pieces of gros grain silk, containing 373 yards, of the value of $2.25 p.er yard. The case was marked “ Sharpless & Son, Philadelphia.” C. J. Sharpless, one of the plaintiffs, testified that they never received the case, but on the 13th February 1871, they received notice that afire had taken place on the 9th of February 1871, of goods in transitu by the company, amongst which were goods to the address of plaintiffs. The notice requested plaintiff to present his receipt of shipment within thirty days, at the office of the company, accompanied by an invoice of contents, “ and if the value was declared at the time the amount will be paid.” The plaintiff answered on the sixteenth of the same month, enclosing the bill of lading given to Tilt & Son.
    The defendants gave evidence that the charge for expressage was seventy-five cents, being rated according to the size and weight of the case, without reference to the value of the contents. They gave evidence also that the case of plaintiff’s goods was put in express car No. 28. Frank Morris, the messenger of the defendants on their cars, testified that it -was his duty to look after the cars from the time they start until they reach their destination. The cars belonged to the defendants. He was messenger on the car No. 28, which left Jersey City on the 9th of February 1871, at 9.40 p. M. When the train reached “Bergen Cut,” in about ten minutes from Jersey City, it was discovered that No. 28 was on fire. There was another express-car in the train that night. Car 28 was locked before the train started; there was no sign of fire until they reached “Bergen Cut.” “The engine was throwing a regular stream of sparks ” from the time they started; the door of the car opposite to that where the fire was, was opened ; the goods were on fire; about two-thirds of the goods in the car were saved; most of those got out of the car were more or less damaged. The witness testified that, in his judgment, the fire was communicated from sparks from the engine; he was in the first passenger-car, which was his proper place ; the other express-car was between the passenger-car and No. 28.
    On cross-examination, he said that car No. 28 was nearest the engine-tender; he could not see No. 28 from where he sat; the company had some express-cars in which the messengers sat.
    Joseph Tully, brakesman, testified as to the burning, &c., also that car 28 had a sliding door on each side about the middle of the car; there were no end doors; the body of the car was wood; the doors slid outside of the car; the locomotive which ran the train burned wood; the train was running at an ordinary speed; the crack between the door and the body of the car wras very small (about a quarter of an inch); the car was locked and sealed, and the goods were transported in the usual and customary manner of transporting freight.
    There was evidence for the plaintiff that the car was on wooden trucks and had been in use about five years; the crevice between the door and the body of the car was such as is found in all cars where the door slides outside; that the car -was all right to use; it was a lined ear — lined with wood and well finished.
    The evidence as to the origin of the fire generally was that it arose from a spark from the engine passing through the crevice between the door and the body of the car. There was evidence also that the car 28 was a proper one and of the ordinary kind used by defendants.
    There was much other evidence on the question of negligence, and on matters not involved in the decision of the Supreme Court.
    The defendants’ first and second points were:
    1. The defendants’ receipt is the contract; it exempts them from liability from loss by fire while the goods are in transit, which is a valid stipulation; and if the jury believe these goods were in car 28 on the 9th of February 1871, and were burned from a fire arising in the manner described by the witnesses, then the plaintiffs must prove that the fire occurred through defendants’ negligence.
    2. There is no proof of such negligence.
    In his charge, the judge said: * * * “ The plaintiff has referred you in this case to a number of circumstances. He refers you to the fact that it was an old wooden car, five years or more old, and that it was placed in the immediate proximity to the engine, next to the tender, that this locomotive wras a wood-burning locomotive and therefore more apt to scatter sparks than the ordinary coal locomotive, in that way increasing the danger; and that as the danger increased, a common carrier is bound to exercise increased caution and care with a view to avert consequent danger or loss. The plaintiff has also adverted to the fact that there was a messenger on this train, and that he was not in the best place for him to see when the fire broke out or to apply prompt means for its extinguishment. If you find, in view of all the facts in evidence, that the defendants omitted to do that which a man of ordinary and reasonable care and caution would have done under the circumstances to protect this car from fire, then it was negligence, and the defendants must answer accordingly.”
    In answer to the second point, the court said: “ That is a question for you. I must say to you that there is an opinion expressed by some of the witnesses that the car in which the fire occurred was a proper one and the ordinary kind used by the Adams Express Company. This is merely their opinion. It may be; in view of all the circumstances of the case, you will consider the facts themselves in such a light as to form an opinion which may be quite as conclusive as the mere oral expression of opinion of any witness produced ‘before you. If, from the facts in evidence, to which I have already alluded — if the car wras a wooden one, with doors sliding on the outside, and the engine of a -wood-burning character, and that this was not the kind of a car that ought to have been exposed in such close proximity to the engine — -I say to you, if you find in any of these particulars the absence, on the part of the defendants, of such precaution and care as a prudent man would exercise in following the business of a common carrier, then you will, perhaps, find by your verdict negligence on the part of the defendants, notwithstanding the oral expressions of the witnesses.”
    The verdict was for the plaintiffs for $849.65.
    The defendants removed the record to the Supreme Court by writ of error, and assigned several errors. The second was the answer to the defendants’ second point.

      D. Webster and T. Quyler, for- plaintiffs in error.

      P¡. Hunn and J. B. Townsend, for defendants in error.
    January 6th 1876.
   Mr. Justice Williams

delivered the opinion of the court,

If the plaintiffs’ goods were destroyed by fire in transit, the defendants, under the exception in their contract, were not responsible for their loss unless it was occasioned by their negligence. The question of their destruction by fire, was properly left to the jury. But there was error in the manner in which the question of negligence was submitted to their determination. The facts as disclosed by the evidence are briefly these:

The defendants had two express-cars in the passenger tram which left Jersey City for Philadelphia on the night of the 9th of July 1871. They were between the tender and the baggage-car. The plaintiffs’ silks were in the car next the tender, which was filled with goods that were to be delivered in Philadelphia, Wilmington and Baltimore.

The other contained goods which were to be delivered in Pitts-burg and Cincinnati. The cars were made of wood, with doors sliding on the outside, leaving an opening or crevice about a quarter of an inch wide between the doors and the side of the car. The doors were locked up and sealed. The car containing the plaintiffs’ goods had been in use about five years for the transportation of goods by express. It was lined with wood, well-finished, and in good order. The messenger in charge of the goods rode in the forward passenger-car. The locomotive was a wood-burning engine, and according to the testimony of the messenger, threw a regular stream of sparks from the time it left the depot. As the train was passing through “Bergen Out,” about two miles from Jersey City, fire was discovered inside the car containing the plaintiffs’ silks, and before it was extinguished, a large quantity of goods near one of the doors was either greatly damaged or wholly destroyed. These are the material facts, and if they tend to show that the fire was the result of negligence, in what did the negligence consist? Was the fire occasioned by the sparks from the engine, and if so, would it have occurred if the engine and express-car had been in good order and condition ? Doubtless the evidence showing that the engine was throwing a regular stream of sparks from the time the train left the depot, and that there was an opening or crevice between the sliding-doors and the side of the car through which the sparks mfight enter, was proper for the consideration of the jury in determining what was the cause of the fire, and whether it was occasioned by any want of ordinary and reasonable care on the part of the defendants, and if the question had been submitted to them with proper instructions on the evidence touching these facts, the defendants would have had no just cause of complaint. But the court below ignored this aspect of the case, and instructed the jury that “ negligence, applying it to the case of a common carrier, would be the omission of such reasonable and ordinary care and precaution as would have averted the loss. The plaintiff has referred you in this case to a number of circumstances. He refers you to the fact that this was an old wooden car, five years or more old, and that it was placed in immediate proximity to the engine, next to the tender; that this locomotive was a wood-burning locomotive, and therefore more apt to scatter sparks than the ordinary coal-burning locomotive, in that way increasing the danger, and that as the danger increased, a common carrier is bound to exercise increased caution and care, with a view to avert consequent damage or loss. The plaintiff has also ad verted to the fact that there was a messenger on this train, and that he was not in the best place for him to see when the fire broke out, or to apply prompt means for its extinguishment. If you find, in view of all the facts and the evidence, that the defendant omitted to do that which a man of ordinary and reasonable care and caution would have done under the circumstances to protect this car from fire, then it was negligence, and the defendants must answer accordingly.” In answer to the defendants’ second point, the learned judge further said: “I must say to you that there is an opinion expressed by some of the witnesses in their depositions, that the car in which the fire occurred, was a proper one, and of the ordinary kind, that was used by the Adams Express Company. This, gentlemen of the jury, is merely their opinion. It may be, that in view of all the circumstances of the case, you will consider the facts themselves in such a light as to form an opinion which may be quite as conclusive as the mere oral expression of opinion of any witness produced before you. If, from the facts in evidence, to which I have already alluded — if the car was a wooden one, with the doors sliding on the outside, and the engine of a wood-burning character, and this car was not the kind of a car that ought to have been exposed in such close proximity to the engine — I say, if you find in any of these particulars the absence, on the part of the defendants of such precaution and care as a prudent man would exercise in following the business of a common-carrier, then you will find, by your verdict, negligence, notwithstanding the oral expressions of opinion bythese witnesses.” Can there be a doubt that it was error to submit the question of negligence to the jury with such instructions ? There was not a particle of evidence tending to show that it was unsafe and improper to transport the goods in a wooden car, with doors sliding on the outside, or that it was unsafe and improper to use a wood-burning locomotive to propel the train. Nor was there any evidence of want of reasonable and ordinary care in placing the car next to the tender, or in permitting the messenger to ride in the front passenger-car. And yet the court told the jury they might find negligence in any of these particulars. It is true that negligence, as a general rule, is a question of fact for the jury. But the jury cannot find negligence from facts and circumstances which do not tend to show want of reasonable and ordinary care, any more than they can find any other facts, without competent and sufficient evidence. Whether the defendants in this case were guilty of negligence or not, it is clear that the question was submitted to the jury upon facts which were insufficient to justify the finding. It was undoubtedly error, though not assigned as such, to instruct the jury that negligence, applying it to the. case of a common-carrier, would be the omission of such reasonable and ordinary care and precaution as would have averted the loss.

There is nothing in the other assignments of error requiring special notice. The first and third are not assigned in accordance with the rule, and there is nothing in the bill of exceptions to justify the fourth and fifth.

Judgment reversed, and a venire facias de novo awarded.


text:
    Quinn versus Davis.
    1. Davis deposited a piano for storage with Kirby, who bought and sold second-hand furniture at auction and received goods on storage. Kirby had the piano sold at an auction store; Quinn bought it bonfi, fide at a fair sale, without knowing who was its owner. Held, that Davis could recover the piano from Quinn.
    2. The owner of a chattel cannot, apart from legal process, be divested of his title to it except through some unlawful or improvident act of his own ; the transfer of possession to another without more is not such act.
    3. The transfer must be accompanied by something indicating in the custodian a right of property or power of alienation; there must be proof of language or conduct at least equivocal.
    4. McMahon v. Sloan, 2 Jones 229, followed.
    January 5th 1875.
    Before Agnew, 0. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 6, to January-Term 1878.
    This was an action of replevin for a piano, brought 9th August 1870, by Robert S. Davis against John Quinn. The defendant gave a claim-property bond and retained the property.
    The case was tried October 30th 1871, before Hare, P. J.
    ' The plaintiff testified that in the spring of 1870, he wished to store some furniture; he applied to William R. Kirby, who had a store on Eighth street, to take his furniture on storage; plaintiff stored with him, amongst other things, a piano made by Gould and paid him $50 in advance for storage for nine months.

      On cross-examination plaintiff said, Kirby was a dealer in secondhand furniture; plaintiff had known him six years; when he first knew him he had kept a second-hand furniture store at Tenth and Hunter streets, and moved to Market street near Tenth street and carried on the same business there; he also took goods on storage; he then moved to the Eighth street store; he bought and sold goods at auction.
    E. Hart, the cashier of Thomas & Son, auctioneers, testified that Kirby had left a number of pianos with them to be sold; one made by Gould, which was left in July 1870 to be sold by auction and was sold to defendant on the 7th of July.
    On cross-examination, witness said, Kirby’s business was buying and selling goods at auction and he was engaged in no other business so far as witness knew; he was in the habit in sending goods to that store to be sold at auction, sometimes in his own name and sometimes in the name of others ; the piano in question was received in the usual way. Quinn had no knowledge who the owner was; he was an innocent purchaser without knowledge of any kind.
    The plaintiff gave evidence that the piano bought by Quinn at the auction sale was the same left by him with Kirby.
    The defendant testified that he bought the piano for a fair price at public auction, without knowing who the owner was, that he had no knowledge of the dealings between Kirby and the plaintiff, and had never known of Kirby having been Engaged in any other business than attending auctions and buying and selling furniture. There was other similar evidence.
    The defendant’s points were :—
    1. If a man makes a contract with a second-hand furniture dealer to take his goods on storage, and the furniture dealer sells the goods stored, either at his store or by sending them to public auction to be sold, the boná. fide purchaser is protected in his purchase.
    2. If the plaintiff deposited the piano with Kirby, who was a dealer in second-hand furniture, on storage, and the dealer sold it through the auctioneer in the ordinary course of his business, and Quinn, the defendant, purchased the same in good faith and for a valuable consideration, the verdict must be for the defendant.
    The court charged:—

      “ If the piano was placed with Kirby solely for storage, he had no right to sell it, and the purchaser acquired no title against the rightful owner. In*bi\der to protect an innocent purchaser who buys from a bailee, thq-pwner of the thing sold must have conferred some evidence of ownership on the bailee, other than a mere possession ; otherwise no one would be safe in letting a horse, or in leaving ,his watch at a jeweller’s to be repaired.
    “ i^o"áuch,prpof has been offered in this case. Davis put the piano into the hands of Kirby for safe-keeping, but he did no more; and therefore Kirby had no color of right to sell, and his act conferred no title on the purchaser. If you believe the plaintiff’s testimony your verdict should be for the value of the piano. I decline to affirm the points presented by the counsel for the defendant.”
    The verdict was for the plaintiff for $350.
    The defendant removed the record to the Supreme Court by writ of error, and assigned for error, the charge of the court and the refusal of his points.

      A. M. Burton andN. G. Quinn, for plaintiff in error.
    A bond; fide purchaser of property, which has been placed by the owner in the custody of a party whose common business it is to sell, is protected in his purchase: Pickering v. Busk, 15 East 38. Where the owner, by his own indiscretion, clothes a bailee with an apparent authority to sell, or does any other act tending to mislead the public as to the ownership of his property, he cannot recover from an innocent purchaser: Shaw v. Levy, 17 S. & R. 101; Rapp v. Palmer, 3 Watts 178; McMahon v. Sloan, 2 Jones 233; Lecky v. McDermott, 8 S. & R. 500; Rapp v. Palmer, 3 Watts 178.

      J. G. Bedheffer, for defendant in error.
    Where a vendor holds goods in a fiduciary capacity, with no express or implied right from the owner to sell them, he can reclaim them from even a bond fide purchaser: Story on Sales 205, pi. 201; McMahon v. Sloan, 2 Jones 229.
   Mr. Justice Woodward

delivered the opinion of the court, February 1st 1875.

Robert S. Davis, the plaintiff below, deposited his household furniture for storage with William R. Kirby, in the spring of 1870. Kirby was a dealer in second-hand furniture. Included in the articles stored was the piano which is the subject of this suit. Soon after the goods were placed in his hands, Kirby received from tho plaintiff fifty dollars for nine months’ storage in advance. The piano was subsequently removed to the auction store of M. Thomas & Son, who sold it on the 7th of July 1870, under the direction of Kirby, to John Quinn, the defendant below. This action was commenced on the 9th of August 1870, and at the trial, under the instructions of the District Court, a verdict was rendered for the plaintiff. It is now alleged that these instructions were erroneous, and that the judgment entered on the verdict should be reversed, on the general ground that an honest purchaser of property which has been placed by the owner in the custody of a person whose common business is to sell similar property, ought to be protected, in his purchase.

In this state, the owner of a chattel cannot, apart from legal process, be divested of his title to it except as a consequence of some unlawful or improvident act of his own. The transfer of possession to another, without more, is not such an act. It must be accompanied by something to indicate the existence in the custodian of some right of property or some power of alienation. There must be proof of language or conduct that is at least equivocal. The general rule stated in Saltus v. Everett, 20 Wend. 366, that “ the title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law,” was recognised in McMahon v. Sloan, 2 Jones 229, and has been uniformly accepted and applied in the practice of this court.

The arrangement between the plaintiff and Kirby created an •ordinary contract of bailment. It came within none of the exceptions that have been made to the general rule that has been stated. No sale at any time or on any terms was in the view of either party; no evidence of the right of disposition according to any custom of trade or any common understanding of the business community, accompanied the transfer of possession; and no evidence in the record shows that the plaintiff had conferred on Kirby either direct or implied authority to sell his goods. The fact that the piano passed into-the hands of the auctioneers, who sold it on behalf of Kirby in accordance with their usual dealings >vith him, is urged as a reason for the protection of the defendant. It is not apparent how the plaintiff can be legitimately connected with the auctioneers. The deposit of the piano with them was the act of Kirby alone. The sale was made under his directions, and they were given in flagrant violation of the duty he owed under his ^contract to the plaintiff. It was said by Chief Justice Gfibson, in a case where an agreement to sell on stipulated terms was super-added to a lease of personal property, that “ no facility for fraudulent dealing was afforded by it that would not be afforded by the naked contract of bailment.” This is a mere bailment, with no ulterior or subsidiary contract expressed or contemplated by the parties.

The objection is strongly urged that the placing of this property in the hands of a dealer in second-hand furniture, whose employment it was to buy and sell, was an act so improvident on the part of the plaintiff as to throw upon him the consequences of Kirby’s misconduct. The adoption of such a principle, if carried out and acted on in the current business of the community, would produce startling results. In many obvious directions, it would revolutionize the law of bailments in Pennsylvania. There is scarcely room in this record, however, to raise this question. Every witness whose attention was called to the subject, and whose testimony is embraced in the bill of exceptions, stated that the business of Kirby was the buying and selling-of second-hand furniture, not at his store, but at auction. It is true that the plaintiff testified that he bought and sold goods at the store he occupied in Market street near Tenth; but in the same connection he said “he also took goods on storage there.” And in the concluding sentence of his testimony, the plaintiff said that Kirby “ bought and sold goods at auction” — that he “so understood from his conversation.” It is^. apparent from the whole evidence that Kirby’s place of business was a place for the storage rather than for the purchase and sale of goods. There was nothing in the conduct of the plaintiff that was unlawful, negligent or imprudent, and the instructions to the jury by the court below were right. Judgment affirmed. I


author: Per Curiam.

text:
    Royal Insurance Co. versus Roedel et al.

    1. Three companies insured goods in every part of a building; one of the companies took a second insurance on goods in the third and fourth stories only. There was a loss by fire, which, in the first and second stories, exceeded the amount of the first insurance. The loss in the third and fourth stories exceeded the amount of the second insurance. Held, that the second insurance was payable in full, without averaging the loss in the third and fourth stories with the first policies.
    2. Merrick v. Germania Insurance Oo., 4 P. F. Smith 277, criticised; Sloat v. Royal Insurance Oo., 13 Wright 14, adopted.
    1875, January 11th.
    Before Agnew, C. J., Searswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Certificate from the Supreme Court at Nisi Prius : Of January Term 1878, No. 146.
    This was an amicable action and case stated in which George F; Roedel and William H. Fry, trading as' George Roedel & Co., were plaintiffs, and The Royal Insurance Company defendants.
    The facts as they appear by the case stated are as follows :—
    The plaintiffs occupied a building in Third street, Philadelphia, as shoe dealers and manufacturers. The first and second floors were used as salesrooms and the third and fourth as a factory. They had a large stock of boots, shoes, &c., manufactured and unmanufactured, including materials for the same and machinery, tools, fixtures and sewing-machines.
    Insurance had been effected upon this property as follows, to wit:—
    Upon the stock in the whole building, including the third and fourth floors.
    Policy No. 1,002,742. — The Royal Insurance Co., . $10,000
    “ No. 1,325,541. — The London, Liverpool and Globe, 5,000
    “ No. 358,745. — The Franklin Fire Insurance Co., 5,000
    Total on stock in the whole building, . $20,000

      Upon the stock on the third and fourth floors.
    Policy No. 754,553. — The Royal Insurance Co., . . $8,000
    Upon the machinery, &c., on the third and fourth floors.
    Policy No. 754,553. — The Royal Insurance Co., . . $2,000
    On the 14th of February 1872, and while all the policies were in force, a loss occurred by fire to the property insured, which was ascertained as follows:
    Loss on stock in the salesrooms, .... $29,986.76 “ “ on the third and fourth floors, . . 8,840.73
    “ machinery, &c., on the third and fourth floors 2,500.00
    The loss on stock in the salesrooms exceeded the amount of the general policies on stock as follows :—
    Loss on stock in salesrooms, ..... $29,986.76 General policies on stock.
    The Royal Insurance Co., . . . . $10,000
    The London, Liverpool and Globe, . . 5,000
    The Franklin Fire Insurance Co., . . 5,000
    - 20,000.00
    Excess of loss, ■ $9,986.76
    The loss on stock on the third and fourth floors exceeding the amount on the special policy as follows:—
    Loss of stock on the third and fourth floors, . . $8,840.73
    Special policy on this stock.
    The Royal Insurance Co., ..... 8,000.00
    Excess of loss, ....... $840.73
    The loss on the machinery exceeded the amount of insurance by
    The policies of The Royal Insurance Company contained the following clauses:—
    “ In case of the assured holding any other policy, in this or any other company, on the property insured hereby, subject to the conditions of average, this policy shall be subject to average in like manner; and it is also hereby further declared and agreed, that in case there be any insurance in any other office, extending to the property hereby insured, then this company, in case of loss, will only be liable to pay its rateable proportion of the damage ascertained in accordance with the conditions of this policy.
    “ Persons insuring property at this office must give notice of any other insurance already made, or which shall hereafter be made elsewhere, on the same property on their behalf, and cause a minute or memorandum of such other insurance to be endorsed on their policies, in which case this company shall only be liable to the payment of a rateable proportion of any loss or damage which may be sustained; and, unless such notice be given, the insured will not be entitled to any benefit under this policy.”
    The adjustment of the loss, under the specific policy for $8000, on stock on the third and fourth floors, upon the principle claimed by defendants to be correct, is as follows :—
    The loss on stock on third and fourth floors was . $8,840.73
    Insurance on stock.
    The Royal Insurance Co., . $10,000, general pays $3,157.40 The London, Liverpool and Globe, 5,000, “ “ 1,578.70
    The Franklin Fire Insurance Co., 5,000, “ “ 1,578.70
    The Royal Insurance Co., 8,000, specific “ 2,525.93
    $8,840.73
    In accordance with this adjustment the defendants have paid on account of the specific policy for $8000 on stock on the third and fourth floors, $2525.93, without prejudice to the plaintiffs’ right to claim any further sum which they might be entitled to against the company for loss on stock on the third and fourth floors, by any other method of adjustment which should be judicially determined to be correct. If the three general policies on the stock, to wit, the Royal Insurance Company $10,000, London, Liverpool and Globe $5000, Franklin Fire Insurance Company $5000, do not, under the circumstances, contribute to the loss on stock on the third and fourth floors, then the whole amount of insurance of policy No. 754,553 of The Royal Insurance Company upon that specific stock, to wit, $8000, was due and payable to plaintiffs.
    If the court shall be of the opinion that the adjustment, on the principle of contribution, under which the above payment was made by The Royal Insurance Company is correct, and that the lawful claim of the plaintiffs only amounted to the sum paid, then judgment shall be entered for the defendants; otherwise, in favor of the plaintiffs for the sum of $5474.07, with interest-from April 1st 1872, or for any other sum not exceeding that amount which, upon a correct adjustment of the loss, the court is of opinion the plaintiffs are entitled to receive.
    The contributing clause of The Franklin Fire Insurance Company was:—
    “ All persons having property insured by this company must, with reasonable diligence, give notice of all additional insurances made in their behalf on the same, whether by this company or by other insurers, and of all changes that may be made in such additional insurances, and cause such notice to be endorsed on their policies — and each company shall be liable to the payment only of a ratable proportion of any loss or damage which may be sustained — and, unless such notice is given, the insured will not be entitled to recover in case of loss.”
    The contributing clause of The London, Liverpool and Globe Insurance Company, was :—
    “ That in all cases of insurance, this company shall be liable for such rateable proportion only of the loss or damage happening to the subject insured as the amount insured by this company shall bear the whole amount insured thereon, without reference to the dates of the different policies, or their invalidity, from want of notice of this or other insurance, or from the violation of any of their conditions, or the insolvency of any or all the other insurance companies.” '
    The judgment was for the plaintiffs on the case stated for $5474.07.
    The defendants took a writ and assigned the entry of judgment for the plaintiffs.

      J. V. Darling and M. P. Henry, for plaintiffs in error,
    cited Merrick v. Germania Fire Ins. Co., 4 P. F. Smith 277 ; Ohio v. Ins. Co., 6 Ohio 467 ; Phillips on Ins., sect. 366; Ogden v. East River Ins. Co., 50 New York 388; Blake v. Exchange M. Ins. Co., 12 Gray 265.

      P. Gr. Platt and 8. Dickson, for defendant in error,
    cited Sloat v. Royal Ins. Co., 13 Wright 14; Howard Ins. Co. v. Scribner, 5 Hill 298; Harris v. Ins. Co., 5 Hammond 466.
   Judgment was entered in the Supreme Court, January 18th 1875,

Per Curiam.

This case is ruled by that of Sloat v. Royal Insurance Co., 13 Wright 14. The loss, in this instance, exceeds the entire insurance in all the policies, general and special. The loss in the first and second stories of the building, which was not covered by the special policy in the subject in the third and fourth stories, largely exceeded the entire amount of the general policies. So the loss in the third and fourth stories exceeded the amount of the special policy, which was confined to the subject in those upper stories. It is clear, therefore, that the general and special policies covered in fact different subjects, and that the loss under each was more than sufficient to exhaust its entire amount. A rule of average which would exempt the general policies from a portion of their peculiar loss below, in order to carry it to the relief of the special policy above, and thus to exonerate each from a portion of a total loss of different subjects, would directly contradict the very spirit and intent of the contract of insurance; the subjects being different, and the loss upon each being greater than the insurance on each specially applicable to it, it is evident that the average would effectuate no equity it was intended to cover. We do not think Merrick v. Ins. Co., 4 P. F. Smith 277, is sufficiently clear on this point to overrule Sloat v. Ins. Co., 13 Wright 14. Judgment affirmed.


text:
    Snyder et al. versus City of Philadelphia.
    1. A vessel laden was lying at a wharf in Philadelphia, within the port warden's line on the Delaware ; it was attempted to move her by a line attached to another wharf, extending to the port warden’s line ; in doing so she grounded on a rook, part of the natural bed of the river, and went to pieces. Held, that under the Act of February 2d 1854, sect. 28, the city was not liable for the injury to the vessel by reason of not removing the rock.
    2. Winpenny v. Philadelphia, 15 P. F. Smith 140, remarked on.
    January 12th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 186, to January Term 1873.
    This was an action on the case, brought July 30th 1870, by W. IP. Snyder and others, owners of the schooner “Amanda Flanagan,” against the city of Philadelphia.
    The case of the plaintiffs was, that on the 5th of May 1870, the schooner was lying at Cramp’s wharf, on the river Delaware, in Philadelphia; the vessel had her cargo aboard. Cramp’s wharf was a short wharf not extending out to the port warden’s line; immediately below it was the Kensington Waterworks wharf, belonging to the city; this wharf extended to the port warden’s line, and was 99 feet further out than Cramp’s wharf. About four o’clock P. M. it was attempted to haul the vessel into the stream; to accomplish this a line was run from her bow to the outer end of the long wharf, and another line from her stern to the end of the short wharf; she was then hauled safely until her bow was a few feet beyond the long wharf, where she went aground; after making efforts unsuccessfully to get her off, about two o’clock in the next morning it was discovered that she had “broken her back ” — as was afterwards ascertained — from having grounded on a rock on which she rested “amidship,” and as the tide fell she settled “fore and aft,” and broke into two pieces.
    The evidence on the trial was substantially as above stated. It also appeared by the plaintiffs’ evidence, that the rock was a natural formation and part of the bed of the river ; before the wharf was built it had been exposed, so that a person might stand on it at low water; the wharf had been partially built on it; since the building of the wharf, the tide does not fall sufficiently to expose it to view.
    After hearing all the plaintiffs’ evidence, the court ordered a judgment of nonsuit.
    This was assigned for error, on the removal of the record to the Supreme Court by writ of error.
    The Act of February 2d 1854 (Consolidation Act), sect. 28, Pamph. L. 37, enacts that “ it shall be the duty of the councils of the city of Philadelphia, after the requisite surveys and soundings shall have been made, to fix lines beyond which no wharf or pier shall be constructed, and to keep the navigable waters within said city for ever open and free from obstruction. The city councils shall authorize the construction of wharves upon a plan and scale to meet the demands of commerce, &c.”
    The Act of May 13th 1856, sect. 12, Pamph. L. 570, enacts “that it shall be lawful for the councils of said city (of Philadelphia) to provide by ordinance for the cleaning of the docks on the Delaware and Schuylkill front of said city, and to require the owners of wharves and piers which surround such docks to cleanse the same ; and after thirty days’ default from the service of notice on them to perform said duty, it shall be lawful for the city to do said work and to apportion the expenses thereof among the owners of wharves and piers adjoining, in proportion to the extent of their wharves, having the privilege or use of such docks, and to collect the same by filing liens therefor, and process thereupon, as in case of claims for paving: Provided, that no dock shall be cleansed to a greater depth than the natural bed of the river.” By ordinance of the councils of Philadelphia, the port warden’s line had been fixed at the line to which the Waterworks wharf had been extended.

      J. B. Roney and M. P. Henry, for plaintiffs in error.
    Every thoroughfare which the public has a right to use, must be kept in such order that it can be safely used; if any one is injured by its bad condition, those bound to repair must answer in damages: Erie v. Schwingle, 10 Harris 388; Pittsburg v. Steamer Mary Ann, Id. 54 ; Thompson v. N. E. Railway Co., 2 B. & S. 106 ; Pittsburg v. Grier, 10 Harris 54. Under the Act of 1854, injury from an obstruction in the river makes the city liable: Winpenny v. City of Philadelphia, 15 P. F. Smith 140.

      R. N. Willson and O. H. T. Oollis (City Solicitor), for defendant in error,
    cited Winpenny v. City, supra.

   Judgment was entered in the Supreme Court, January 18th 1875,

Per Curiam.

We discover no error to be corrected, and the judgment is therefore affirmed.