author: Williams, J.

text:
    State Bank versus McCoy.
    1. The total drunkenness of the maker when he executes a note, if known to the payee, makes it void as to him.
    2. The contract of an insane man is not under all circumstances an absolute nullity.
    3. A drunken man is responsible to an innocent party for acts he commits in that condition ; although an insane man would not be.
    o. On grounds of public policy and the necessities of commerce, the defence of drunkenness in the maker cannot be set up against the innocent holder of a negotiable note.
    4. Drunkenness is a temporary disability voluntarily produced: insanity is permanent and Providential.
    6. McCoy whilst drunk made a negotiable note; it was bought by a bank with a large amount of other notes at half its value: the bank was informed that it had been given for a patent hay-fork, and required a guaranty for its payment. Held, that the bank was not guilty of gross negligence in taking the note without inquiry of the maker.
    7. Even gross negligence would not have defeated the bank’s title, without proof the bank took it maid fide, or with notice of the fraud.
    8. Whether the bank could lawfully purchase notes at so great a rate of discount, not decided.
    May 19th'1871.
    Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common, Pleas of Juniata county: No. 62, to May Term 1871.
    This was an action of assumpsit, brought to September Term 1870, by the State Bank, endorsee, against Neal McCoy, on a note for $225, dated March 11th 1870, and payable July 1st 1870, to J. J. Wilhelm & Co., or bearer.
    The defence was, that the defendant had been fraudulently induced to execute the note when he was so much intoxicated as to be incapable of making a contract.
    The case was tried before Graham, P. J.
    For the plaintiff Henry A. Sturgeon testified:—

      “ I am cashier of State Bank at Harrisburg. On 20th June 1870, J. J. Wilhelm, of firm of Wilhelm & Co., called on me to sell a number of that same kind of notes; I consulted two or three of our directors, and we agreed to purchase the lot at the price he asked for them — Mr. Wilhelm being well known to Mr. Mumma, one of our directors. Mr. Wilhelm resides in Lebanon, Pennsylvania. We paid for them on the 20th June; I sent the note to Juniata Yalley Bank, 21st June, for collection. Protested on the 2d July. We paid him 50 cents on the dollar. We bought same kind of notes at same time, but on different parties. We had a guaranty from Mr. Moyer for payment of all these notes; I would not have taken them without a guaranty; Mr. Wilhelm said these notes were given for patent hay-forks.”
    The defendant testified : — ■

      “ I have no recollection of ever giving this note. I think I signed it; it looks like my handwriting; I am sure I did not know a hate about it when I did sign it; I would have had some wit if I had known what I was about, to sign that note. The first I knew of it was when it was left in bank for collection. The day before I came to Patterson with a load of ties and forgot to go home. The next morning I got two or three drinks and a bottle and went home- — I can mind to Johnstown. I took a drink at top of every hill, from Johnstown I can’t remember anything ; I have no recollection of any one treating me, or taking me to get a drink. I don’t know Wilhelm & Co., or any of their agents; I have no recollection of meeting any one wanting to sell a patent hay-fork; no one ever sent me a scrape of a pen, or fork or anything ; I never saw any of those forks to best of my knowledge. This is my signature to this paper. I never got anything for this note.”
    William Young testified:—
    “ I know Mr. McCoy well; a man brought him into my hotel in Mifflin. They came to bar, each took a glass of ale; McCoy had a good load on; they sat half an hour; the man was trying to sell him a right of hay-fork; McCoy came up to bar, said, ‘ give more ale.’ I refused ; he started out, said ‘ he would go some place else.’ The man went with him; it was beginning of last March. He was drunk, not able to do any kind of business.”
    The plaintiff submitted points, which with their answers are as follows, viz.:—
    1. The fraud practised by Wilhelm & Co., or their agents, on McCoy in obtaining the note in suit, must be brought home to the plaintiff; the present holder or bearer, by positive and actual notice as to the particular note in suit, and such notice must be given by the maker (McCoy), or some one authorized by him to give it; and such notice must be actual, and not by implication. That in this case there is no evidence of any actual notice.
    Answer: “ I cannot answer this point as requested, except to say there is no evidence of actual notice.”
    2. The discounting, or rather the purchasing of this note at a heavy discount, where there is an absolute sale (as in this case), is not evidence of knowledge of fraud, and was a lawful purchase, for there is no money loaned to be repaid, and therefore is no violation of the laws against usury.
    Answer: “ The discounting or purchasing this note at a heavy discount, would not of itself, be evidence of knowledge of fraud; but it is evidence, which in connection with the other circumstances attending the purchase of the note, the jury may consider in determining whether the plaintiff was guilty of gross negligence in not making inquiry before it made the purchase.”

      3. The plaintiff in this case has shown by uncontradicted evidence that it is a bopfi fide purchaser for value, and before a recovery can be defeated, the defendant must prove that the plaintiff had notice of the fraudulent manner in which the note had been obtained, and of this there is no evidence.
    Answer: “Before the defendant can defeat a recovery, he must show that the plaintiff had notice of the fraudulent manner in which the note had been obtained. But actual notice is not required. The plaintiff may be affected by constructive notice; and if you believe from the evidence in reference to the purchase of this note, as stated by Mr. Sturgeon, the cashier, that the plaintiff was grossly negligent in not making inquiry how the note was obtained, this will affect plaintiff with notice of the fraud, and permit you to inquire whether the note was actually procured by fraud from the defendant.”
    5. The fact of plaintiff having taken a guaranty to the extent of 50 per cent, on this note has no legal significance, is without any material bearing in this case, and is no impediment in the way of plaintiff’s recovery.
    Answer: “ The guaranty of 50 per cent, taken by the plaintiff from the holder of the note to recover the amount paid for it by the bank, would not, standing alone and unsupported by other evidence, be sufficient to affect the bank with knowledge or notice of the fraud. But I cannot say to you ‘ that it has no legal significance, is without any material bearing in this case, and is no impediment in the way of plaintiff’s recovery.’ You may consider the fact that a guaranty was given to the bank to cover the whole amount it paid for the note, in connection with the other evidence in the case, in determining the question of gross negligence — combined circumstances may be sufficient to put the plaintiff upon inquiry, though no one was decisive. And the guaranty, in connection with the evidence of Mr. Sturgeon, may be some evidence tending to show that the note was purchased more upon the faith of the guaranty than the credit of the defendant.”
    6. On the whole facts of the case the plaintiff is, entitled to recover.
    Answer: “ I will not answer this point in the affirmative. The question presented by this point, whether upon all the facts of this ease the plaintiff is not entitled to recover, is a question of law for the court, and I will reserve the point.”
    The verdict was for the defendant, and the court entered judgment on the verdict on the reserved point.
    The plaintiff took a writ of error, and assigned for error the answers to the points.

      B. F. Junkin (with whom was J. Lyons), for plaintiff in error,
    cited Phelan v. Moss, 17 P. F. Smith 59.

      J. Alexander, for the defendant in error.
    Drunkenness is a defence to a contract: Story on Contracts, §§ 27, 28, and cases cited; Pitt v. Smith, 3 Campb. 33; Pothier on Obligations, P. 1, art. 4, § 49. Notice may be inferred from circumstances sufficiently strong to cast a shade on the transaction, and put the holder on inquiry: Story on Notes, § 198; Commonwealth v. Baldwin, 12 Pick. 151; Id. 545.
   The opinion of the court was delivered, July 3d 1872, by

Williams, J.

This was an action brought by the State Bank, as endorsee, against the defendant as maker of the promissory note sued on, and the defence was that it had been fraudulently obtained from the defendant when he was drunk, and that the bank took it under such circumstances of suspicion that it was not a boná fide holder for value, without notice of the fraud. Under the charge of the court, the jury found that the defendant received no consideration for the note; that he was so intoxicated at the time he signed it, as to be wholly unconscious of what he was doing; and that the bank was guilty of gross negligence in taking it. Waiving for the present the question as to the sufficiency of the evidence to justify the jury in finding that the bank was guilty of gross negligence in taking the note; the first matter to be considered is, whether the intoxication of the defendant, at the time he signed it, is a valid defence to the action, if the bank is a bonfi fide holder of the note for value, without notice of the fraudulent circumstances under which it was obtained. Undoubtedly, the total drunkenness of the maker when he executed the note, if known to the payee, rendered it void as to the latter: Gore v. Gibson, 13 M. & W. 623. The old rule that a man should be held liable upon a contract made by him when in a state of intoxication, on the ground that,he should not he allowed to stultify himself, has been long since exploded, and it is now settled according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency he produced by intoxication, is void as between the parties : 2 Kent’s Com. 452. As was said by Parke, B., in Gore v. Gibson: Where the party, when he enters into the contract, is in such a state of drunkenness as not to know what he is doing, and particularly when it appears that this was known to the other party, the contract is void, and he cannot be compelled to perform it.” But if the drunkenness of the maker, when known to the payee and taken advantage of by him; or when so complete as to suspend the use of the reason and understanding, renders the note void in the hands of the payee, the question recurs whether it avoids it in the hands of an endorsee for value without notice of the maker’s condition when he gave the note and of the fraudulent circumstances under which it was obtained ? There is no case which so decides. But it is contended that drunkenness is a species of insanity, and, therefore, a contract made by one when in such a state of drunkenness as not to know what he was doing, should, like the contract of an insane person, be regarded as absolutely void. But the contract of an insane man is not, under all circumstances, an absolute nullity. As was said in La Rue v. Gilkyson, 4 Barr 375, an insane man like an infant is liable on his executed contract for necessaries; and it was more than intimated in Beals v. See, 10 Barr 56, that he would be liable for merchandise innocently furnished to his order by a person unapprised of his infirmity.. But if, as ruled by Lord Tenterden, C. J., at Nisi Prius, in Sentance v. Pool, 3 C. & P. 1 (14 Eng. Com. Law 419), the note of an insane person, or of one perfectly imbecile, which he has been induced to sign by fraud and imposition, is void in the hands of an innocent endorsee; it does not follow that a note given by a person in a state of intoxication is void in the hands of a holder for value, without notice of the maker’s condition when it was given. There is this difference between the cases. Insanity or total imbecility is a permanent state or condition of the mind, disabling one from taking care of himself. Drunkenness is a temporary disability, voluntarily produced. ‘Insanity is a misfortune — drunkenness is a vice. No man voluntarily does an act necessarily producing madness in order that he may become insane. But men drink in order that they may get drunk. And when they thus temporarily deprive themselves of the use of their reason, and voluntarily expose themselves to fraud and imposition, the law may wisely refuse to treat them with the same tenderness that it does those unfortunate beings who are deprived of their understanding, by some Providential dispensation; and it may properly hold them to a different measure of responsibility for the consequences of their acts. If a man voluntarily deprives himself/ of the use of his reason by strong drink, why should he not be responsible to an innocent party for the acts which he performs when in that condition ? It seems to me that he ought, on the principle that whei’e a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it. As between the contracting parties, where one of them is so drunk as not to know what he is doing, the contract is doubtless void, especially if the other is apprised of his condition, and, if not wilfully or culpably blind, he must know it. As was said by Parke, B., in the case already quoted: “ A person wh<\takes an obligation from -another under such circumstances is guilty of actual fraud.” But if there is nothing to give notice of the intoxication, or to put one upon inquiry, as where a contract is made by letter or message sent by post or telegraph, and is executed in good faith by the party receiving the order, if the other party should refuse to perform the contract on the ground that he was totally drunk when he sent the order or entered into the contract, it is clear that, on the principle already stated, the defence ought not to avail. Why then should the maker of a note be allowed to set up against an innocent holder the defence of drunkenness ? But there is another and controlling reason for holding the maker liable to the endorsee in such case, founded on principles of public policy and the necessities of commerce. The exigencies of trade require that there should be no unnecessary impediments to the ready circulation and currency of negotiable paper, but that it should be left free to pass from hand to hand like bank-notes, and perform the functions of money, untrammelled by any equities or defences between the original parties. If then, it should be held that the drunkenness of the maker avoids his note in the hands of the endorsee, it is obvious that such a rule would greatly clog and embarrass the circulation of commercial paper, for no man could safely take it without ascertaining the condition of the maker or drawer when it was given, although there might be nothing suspicious in its appearance or unusual in the character of the signature. It is evident that it would be a less evil to exclude the defence of drunkenness, though it might occasionally work individual hardship, than to clog the circulation of commercial paper, to the great inconvenience of the public, by admitting such a defence. If fraud and imposition in obtaining a note will not avoid it in the hands of an innocent endorsee' — because such a rule would render commercial paper less valuable and convenient as a medium of exchange — why should the drunkenness of the maker ? Why should drunkenness be a defence if there has been no fraud or imposition ? And if there has, and this is the ground of the defence, why should it not avoid the note in the one case as well as in the other ? If then drunkenness is no defence as against the endorsee without notice of the maker’s condition, was the bank guilty of gross negligence in taking the note, under the circumstances, without inquiry of the maker? There was nothing suspicious in the appearance' of the note, or in the character of the signature — nothing to indicate that it was the note of a drunken man. So far as appears frcrm the evidence, the signature was the usual and ordinary one of the maker. If it had the appearance of being written by a drunken man, the bank might have been put upon inquiry. The fact that the bank was informed that the note was given for a patent hay-fork and purchased it, with other notes, amounting in the. aggregate to about $3000, for fifty cents on the dollar, and took from the payees a guaranty that it should realize that amount out of the notes; was no evidence that the bank was guilty of gross negligence in taking the note without inquiry. But if the evidence had made out a case of gross negligence on the part of the bank, that alone would not have been sufficient to defeat its title to the note. As shown by Mr. Justice Read in Phelan v. Moss, IT P. F. Smith 59, there must have been proof that the bank took the note malfi fide or with notice of the fraud. As there was no such evidence the court erred in not affirming the plaintiff’s second, third and fifth points.

The question whether it was lawful for the bank to purchase the notes at so great a rate of discount; and if not, whether there can be a recovery on the note in suit, does not arise on this writ of error, and therefore we express no opinion upon it. Where the verdict is for the defendant no question of law can be properly reserved, for no judgment can be entered in favor of the plaintiffs non obstante veredicto in case of a decision in his favor: Robinson v. Myers, 17 P. F. Smith 9. We must therefore revei’se the judgment and remit the record to the court below for a new trial.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Flower and Wife versus The Pennsylvania Railroad Co.
    1. A tram of defendants coming into a city, the engine, tender and one car were detached from the remainder, and run undeqthe charge of the fireman in the engineer’s place, to a water-station belonging to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn on the water : whilst he was climbing on the tender to put in the hose, the remainder of the train came down with their ordinary force, struck the car attached to the engine; the jar threw the boy under the wheel and he was killed. In an action by the parents for his death, Held, that it not being in the scope of the engineer’s or fireman’s employment to ask any one to come on the engine, the defendants were not liable.
    2. The boy in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him.
    3. Assuming that he was an employee of defendants, at the request of the fireman; this relation would destroy the right of action.
    4. Kay v. Pennsylvania Railroad, 15 P. F. Smith 269, distinguished.
    May 19th 1872.
    Before Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lebanon county: No. 57, to May Term 1871.
    This was an action on the case, commenced May 9th 1868, in the Court of ‘Common Pleas of Lancaster county, by John M. Elower and Wife against the Pennsylvania Railroad Company, to recover damages for the death of the plaintiffs’ son, Phares Elower, a child about ten years old, occasioned, as they alleged, by the negligence of the defendants’ servants. On the 31st of August 1869, the cause was removed by the defendants to- the Court of Common Pleas of Lebanon county, where it was tried November 16th 1870, before Pearson, P. J.
    The undisputed facts appeared to be the following:—
    The plaintiffs lived in the city of Lancaster, the father, a shoe maker, occupying a shop on the line of the defendants’ track, about half-way between James and Lemon streets, the distance between them being about 600 feet, and opposite a water-station of the' defendants ; a door from his shop opening on the platform of the station, which is in an excavation about six feet deep. About 8 or 9 o’clock in the morning of the 2d of May 1868, the son went on the platform; whilst there an engine and tender, with one car of the defendants, under the charge of the fireman only, came up to the station for the purpose of taking water. While the engine was standing, the boy was climbing on the tender, and at the moment some detached cars from above struck the car attached to the tender; the shock caused the boy to fall; he was run over and killed.
    The evidence of the plaintiffs was from several witnesses.
    The father testified that he heard some one ask the boy to put on the hose and turn on the water, just after that he heard a noise, went out and found his son with his neck under a wheel, killed.
    Greorge Babel, a boy about thirteen years old, testified that he was standing on the water-station and heard the fireman tell the boy to put the water into the tank; whilst the boy was getting over the tender to do so, a car ran down the track, jarred the engine and threw the boy off, the car went over him and killed him. This witness and the deceased were the -only persons on the platform.
    For the defendants: — The fireman denied that he had asked the deceased to put water into the engine; he testified that he had no power to ask any one to do it; if he had, he would have violated his duty.
    The conductor testified that he had cut the engine and car, it ran down to get water; he ran the other cars to the water-station to couple them; he got on to the foremost car, and in attempting to apply the brake the chain broke; he went on to the other car for the same purpose, but before he reached the brake on that, the cars came together and the accident occurred; his cars came down at about the rate of three miles an hour.
    Black, the foreman of engines, testified that he selected the engineers from the firemen; engineers are not permitted to carry any one but the conductors and witness; it is the duty of firemen to supply the engines with water, and they have no power to invite another to put it on; in the absence of the engineer the fireman acts as engineer for the time being; they have printed instructions to that effect.

      The engineer of the train testified, that as he was coming through Lancaster with his train he was necessitated to leave it, and told the fireman to run to the station and take in water.
    The place where the station was, was used exclusively for the passage of trains; the water-station was on a piece of ground held by the company under a long lease; it was not at any public crossing.
    The plaintiffs’ first point was:—
    “ If the jury believe that plaintiffs’ minor son was induced by the defendants’ agent, engaged in his proper employment upon a place of danger, such agent at the time neglecting his own duty, and imposing it upon said minor, and the said minor was there killed by the negligence of said agent, or other agents of the company, plaintiffs are entitled to recover.
    To this point the court answered :—
    “ This point is negatived, as it applies to the facts of the present case; as the person who invited the deceased on the engine or tank had no authority in law so to do, and therefore as relates t.o the defendants the deceased was a trespasser in getting on the engine or tank’ — was there without authority.”
    The court, after referring to the evidence, charged:—
    * * * “ On this contradictory evidence, it would be left to the jury to determine the disputed facts, and whether there was or was not negligence on the part of the, company’s servants, which caused the death of this boy, provided the case turned on that question, which in our opinion it does not, but on whether he was on the engine by lawful authority or as a mere intruder and trespasser.
    “ If the person injured is on the train as a mere trespasser, without authority from any one having power to give it, he cannot recover damages unless injured intentionally or through very gross negligence, and even then probably not from the company, but from the person causing the damage. The same rule prevails where parents sue for the loss of service of the child. If a person is invited on the train by some employee of the company not having the superior control in that department of the company’s business, but is at the time out of the range of his employment, and the person invited is-injured whilst so on the train, the company is not liable. The injured person is a mere trespasser. The principal may be always considered present when the servant acts within the general scope of his employment. If he travels entirely out of it the principal cannot be affected. * * *
    “ Where by the rules of the company the engineer and fireman are prohibited from taking any one on the engine except the conductor of the train, or the agent having general control of that branch of the company’s business, and the servant (engineer or fireman) permit a man to ride, or invite him on the engine, it is out of the usual course of the servant’s employment, and if the person so invited is injured through carelessness, the company is not responsible. The party is there without authority, for it is not the general business of the engineer or fireman to carry passengers, therefore no one can be misled by their situation on the train, nor have they any right, as against the company, to suppose that the engineer or fireman had authority to invite them on the engine or train. The person inviting would be answerable in damages, but not the company. It is precisely the same in law as if rñen or boys should climb on the cars without invitation or request from any one. Both men and boys are in the practice of intruding on the track of the road, and getting on the cars without justification or excuse, and the company is not responsible in such cases unless for intentional injury by their employees, or for very gross carelessness. * * * The engineer had no authority by virtue of his office, to invite this boy, or any other outsider, on his engine. This particular act was prohibited, and it was entirely beyond the general scope of his employment; therefore, if he did say to the boy, ‘Put on the hose and turn on the water,’ it was no lawful authority for the boy to get on the engine. So far as it affects the railroad company, it is the same as if the boy had volunteered to do the act, or climbed on the tender without request from any one.” * * *
    The verdict was for the defendants.
    The plaintiffs took a writ of error, and assigned for error the answer to their 1st point and the charge of the court.

      A. C. Reinoehl and O. J. Dickey, for plaintiffs in error,
    cited 1 Redfield on Railways 512, 513, pl. 6-9.

      H. M. North and L. W. Nall (with whom was G. F. Breneman), for defendants in error.
    The deceased being where he had no right to be, the plaintiffs cannot recover: Philadelphia and Reading Railroad v. Hummel, 8 Wright 375; Same v. Spearen, 11 Id. 300; Gillis v. Penna. Railroad, 9 P. F. Smith 129. The employer is not responsible for his servant’s acts, not in the scope of his employment : Potter v. Faulkner, 1 Best & Smith 800; Lygo v. Newbold, 9 Exchequer (W., H. & G.) 302; Wilson v. Peverly, 2 New Hampshire R. 548; Thames Steamboat Co. v. Housatonic Railroad, 22 Conn. R. 40; Satterlee v. Groat, 1 Wendell 272; Goodman v. Kennell, 3 Car. & P. 167. If properly called to assist, the deceased was in the condition of a fellow-servant and the defendants would not be liable for the other servant’s negligence: Shearman and Redfield on Negligence 122.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

It is proper this case should be examined in the light of the evidence of the plaintiffs. According to that view the engine, tender and one freight-car ran down to the water-tank to take in water. They were in charge of the fireman, the engineer having necessarily stopped off till their return. At the water-station the fireman in charge asked the son of the plaintiffs, a boy ten and a half years old, standing on the platform of the water-tank, to put in the hose and turn on the water; and then turned to clean out the ash-pan of the engine. The boy climbed up the side of the tender to put in the hose, and as he did, some detached freight-cars belonging to the train, came down without a brakes-man, and struck the car behind the tender, driving the tender and engine forward from six to ten feet. The boy fell from the tender and was crushed to death. Is the railroad company responsible to the parents ? The case involves no public right. The accident happened at no crossing, or place where the public had a right to be. The boy was not a passenger, or one to whom the company owed a special duty. The platform of the water-tank was the private property of the company, and was used for its own purposes. The engine and tender were where they had a right to be. The track itself was the property of the company, and the detached cars were not the cause of injury in any sense which affected the public rights or even those of the employees of the company. They came against the car and tender with no great force, and did no injury to the property or employees of the company. They were the cause of injury to the boy, only in so much that he had placed himself in a position of'danger, where ordinarily he had no right to be. It is evident therefore that the case turns wholly on the effect of the request of the fireman, who was temporary engineer, to put in the hose, and turn on the water. Did that request involve the company in the consequences ? This is a very hard case. A willing bright boy not arrived at years of discretion has lost his life in simply trying to oblige the fireman. But we must not suffer our sympathies to do injustice to others, by overriding those fixed principles which underlie the rights of all men, and are essential to justice. It is natural justice that one man should not be held liable for the act of another, without his participation, his privity or his authority. It is clear that the fireman, through his indolence, or haste, was the cause of the boy’s loss of life. Unless his act can be legally attributable to the company, it is equally clear the company was not the cause of the injury. The maxim, Quifacit per alium facit per se, can apply only where there is an authority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman’s request' to the boy to fill the engine-tank with water ? This seems to be equally plain without resorting to the evidence given, that engineers are not permitted to receive any one on the engine but the conductor, and the foreman or superintendent, that it is the duty of the fireman to supply the engine with water, that he has no power to invite others to do it, and can leave his post only on a necessity. The business of an engineer requires skill and constant attention and watchfulness ; and that of a fireman requires some skill and much attention. They are in charge of a machine of vast power, and large capacity for mischief. The responsibility resting on them and especially on the engineer is great, and neither should be permitted to delegate the performance of his duties to others. In doing so without permission they transcend their powers. .There cannot, therefore, be any general authority in the engineer and fireman which can embrace a request to perform the fireman’s duty. Even an adult to whom no injury would be likely to ensue could not justify under the fireman’s request. Much less can- there be any presumption of authority to invite a boy of tender years to perform a service, which required him to clamber up the side of the engine or tender. It was a wrong on part of the fireman to ask such a youth to do it. Whether the boy could be treated as a mere trespasser is scarcely the question. His youth might possibly excuse concurrent negligence where there is clear negligence on part of. the company. Such were the cases of Lynch v. Nurdin, 1 A. & E. N. S. 29 (41 E. C. L. 422;) Rauch v. Loyd & Hill, 7 Casey 358; Smith v. O’Connor, 12 Wright 218. See also Railroad Co. v. Spearen, 11 Wright 300, and Oakland Railway Co. v. Fielding, 12 Id. 320. The true poimt of this case is, that in climbing the side of the tender or engine at the request of the fireman, to perform the fireman’s duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. Viewing him as an employee at the request of the fireman, the relation itself would destroy his right of action: Caldwell v. Brown, 3 P. F. Smith 453; Weger v. Penna. Railroad Co., 5 Id. 460; C. V. Railroad Co. v. Myers, 5 Id. 288. Had the fireman himself fallen in place of the boy, he could have had no remedy. It does not seem to be reasonable that his request to the boy to take his place, without any authority, general or special, can elevate the boy to a higher position than his own, and create a liability where none would attach had he performed the service himself. It is not like the case of one injured while on board a train by the sufferance of the conductor, whose general authority extends to receiving and discharging persons to and from the train: Penna. Railroad v. Books, 7 P. F. Smith 339. It is not like those cases where an injury happened to boys crawling under the cars to get through a train occupying a public street, which they had a right to cross : Rauch v. Loyd & Hill; Penna. Railroad Co. v. Kelly, 7 Casey 358 & 372. Nor does it resemble the case of Lizzie Kay v. Penna. Railroad Co., 15 P. F. Smith 269, decided at Philadelphia last year, where detached cars were sent around a curve, without a brakesman in charge, upon a track which the public had been in the habit of travelling over constantly for a long time with the knowledge of the company, from one part of the city of Williamsport to another. Here the boy was voluntarily where he had no right to be, and where he had no right to claim protection; where the company was in the use of its private ground, and was not abusing its privileges, ,or trespassing on the rights or immunities of the public. The only apology for his presence there, is the unauthorized request of one who could not delegate his duty, and had no excuse for visiting his principal with his own thoughtless and foolish act. Nor can the mere youth of the boy change the relations of the case. That might excuse him from concurring negligence, but cannot supply the place of negligence on part of the company, or confer an authority on one who has none. It may excite our sympathy, but cannot create rights or duties which have no other foundation.

Upon the whole case, finding no error in the record, the judgment is affirmed.


text:
    Erb versus Brown et al.

    1. A parol agreement between the owners of the servient and dominant tenements, will not extinguish a servitude created by deed; this can be only by deed or note in writing or operation of law.
    2. A servitude by grant will not become extinguished by disuse unless accompanied by denial or other act to quicken its owner to assert his right.
    3. The owner of a servient tenement by his will ordered it to be sold, and appointed the owner of the dominant tenement his executor, who sold the land at public sale with notice of the servitude: Held, that evidence that the purchaser afterwards, when the deed was about to be executed, refused to take or pay for the land with the servitude, and that the executor therefore abandoned it, was inadmissible in a suit as to the servitude.
    4. The agreement to abandon being when the purchaser was bound to take the land, was without consideration, and not being an inducement to purchase held out by the executor, was not an estoppel.
    May 24th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 85, to May Term 1871.
    This was an action of trespass q. c. f., brought August 18th 1868, by Jacob L. Erb against Daniel Gr. Brown and Martin Kline."
    The defendants pleaded that there was a right in John R. Buch, whose land adjoined the plaintiff’s close, to maintain and repair water-pipes through the plaintiff’s close to convey water on to the said Buch’s land, and they justified as his servants, that they had entered the plaintiff’s close to repair the pipes which were decayed, obstructed, &c.
    On the 2d of April 1803, Jacob Withers, owning thé locus in quo, granted by deed to John Withers, who owned the land now owned by John It. Buch, the water of a spring on Jacob’s land “ with the free right and privilege to carry and convey the same by pipes and trunks to be laid under ground through the said Jacob Withers’s land, from the said spring into and upon the said John Withers’s land * * * together with free ingress, &c., for the said John Withers, his heirs and assigns, and his and their servants and workmen, for the purpose of laying and repairing the pipes and clearing out the channel,” &c. On the 25th of May 1809, Jacob Withers conveyed to Adam Stock in fee, “ excepting and reserving out of the present grant for John Withers, his heirs and assigns,” the water-right above mentioned.
    On the same day John Withers conveyed his land to Daniel Royer in fee together with the water-right. Royer, on the 3d of April 1810, conveyed to George Buch in fee together with the right; both in the same terms as in the original grant from- Jacob Withers.
    On the 2dvof July 1825, Adam Stock devised the Jacob Withers tract to his son George Stock in fee. George Stock, by his will, proved August 28th-1832, directed this land to be sold by his executor after his youngest child came of age. In the fall of 1852, George Buch, who was the executor, sold the land at public sale to Jacob S. Shirk, with notice of the servitude. The deed was made to him on the 2d of April 1853. On the 31st of March 1857, Shirk conveyed to Erb the plaintiff.
    George Buch, by his will proved August 17th 1863, devised the John Withers tract to his son John R. Buch, under whom the defendants justify, in fee.
    On the trial, February 22d 1870, before Long, P. J., the respective titles of the parties as above stated were given in evidence..
    The plaintiff proved the alleged trespass.
    The defendants gave evidence that in digging, pipes were found between the spring and Buch’s land, the water was running through them. They gave evidence by William Rattew, who was present at the sale by Stock’s executor, that Buch gave written notice that he claimed a right to a spring on Stock’s premises, and to carry the water from the spring in pipes through them, and that witness afterwards told Erb of this notice.
    A number of other witnesses testified that notice of Buch’s claim to the water-right had been given at the sale.
    They also gave evidence by a scrivener, that when he was drawing the articles between Shirk and the plaintiff for the sale of his land, the existence of the water-right was discussed between them; that Shirk said it was dead, and should be left out of the articles, and it was left out.

      The defendants having rested, the plaintiffs in rebuttal offered to prove five different matters, of which it is important to state only the 8d, viz.:—
    That George Buch (the executor of the will of George Stock), under whom John R. Buch now claims, in the year 1858, when he executed the deed to Jacob S. Shirk (under whom Jacob L. Erb now claims), desired to renew this claim of a water-right, and have it inserted in said deed. And the purchaser, Jacob, S. Shirk, refused to take or pay for this property with such an encumbrance upon it, and that George Buch then and there abandoned and gave up said claim, and agreed that Mr. Shirk should have the property clear of such encumbrance, and it was not inserted in said deed.
    The court refused the offer and sealed a bill of exceptions.
    The court directed the jury to find for the defendants; the jury found accordingly.
    The plaintiff took out a writ of error, and in the Supreme Court assigned six errors; the 3d of which was rejecting that part of the offer above stated.

      S. H. Reynolds and J. H. Amweg (with whom was J. B. Livingston), for plaintiff in error.
    What George Buch said when about making the deed to Shirk would operate as an estoppel to him, and John R. Buch claiming under him would be bound by his declarations: Gratz v. Beates, 9 Wright 495; Willing v. Brown, 7 S. & R. 467; Maple v. Kussart, 3 P. F. Smith 348. Although selling as executor, he was owner of the dominant tract; his declarations were an abandonment of the servitude, and he was bound by them: Heard v. Hall, 16 Pickering 457; Washburne on Easements 542.

      T. F. Franklin, for defendant in error.
    An easement by grant is not lost by non-user: Angell on Waters, § 252; White v. Crawford, 10 Mass. 183; Arnold v. Stevens, 24 Pickering 106; Dyer v. Sandford, 9 Met. 395; Butts v. Ihrie, 1 Rawle 218; Nitzell v. Paschall, 3 Rawle 82; Kidder v. Kidder, 9 Casey 268.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

All the assignments of error have been abandoned with the exception of the third, and there is nothing of substance in this assignment. The servitude imposed on the plaintiff’s land for the benefit of the defendant’s estate was created by deed, and under the Statute of Frauds could not be assigned, granted or surrendered unless by deed or note in writing, or by act and operation of law. It could not be extinguished or renounced by a parol agreement between the owners of the dominant and the servient tenement: Dyer v. Sandford, 9 Met. 395.

Nor would it become extinguished by disuse, or lost by nonuser : Curtis v. Keesler, 14 Barb. 511; Smiles v. Hastings, 24 Id. 44; unless there were a denial of the title, or other act on the adverse part to quicken the owner in the assertion of his right: Nitzell v. Paschall, 8 Rawle 82. Here the offer was to show not an extinguishment or surrender of the easement by deed, but a parol agreement by the defendant’s ancestor that he would give up his claim to the easement, and that Shirk, the plaintiff’s vendor, should have the property clear of the encumbrance. No consideration for the agreement to abandon or release the easement was offered to be shown; and without a consideration a parol release of the right would not be binding, and could not be enforced: Kidder v. Kidder, 9 Casey 268.

Nor are the facts stated in the offer sufficient to make out a case of estoppel. If the offer had been to show that Shirk was induced to bid for the servient tenement by the representations or agreement of Buch, the owner of the dominant tenement, that he would give up his claim to the easement, and that Shirk should have the property clear of the encumbrance, then Buch, and the defendant claiming under him, would be estopped from asserting title to the easement. But the evidence shows that Shirk had notice of the existence of the easement, and that he purchased the property at the executor’s sale expressly subject to it. He could not, therefore, have been injured or prejudiced by the representation or agreement recited in the offer as having been made by Buch when he executed the deed, if any such representation or agreement was made, for he was only induced thereby to do what by his contract of purchase he was bound to do. As the offer, if proved, would not have availed the plaintiff, it was rightly-rejected.

Judgment affirmed.


author: Read, J.

text:
    Kann’s Estate. Lefever’s Appeal.
    1. One died seised of real estate, leaving a widow, and a daughter and son minors. On the application of the widow and the guardians of the minors, the land was sold under proceedings in partition in the Orphans’ Court. The administrator settled his account and paid the daughter’s share to her guardian. She afterwards married, and died in her minority without issue, her husband surviving. Held, that he was entitled to her share as personal estate.
    2. The minor’s share of the proceeds of the real estate, when paid to her guardian was in her hands as money.
    3. Whether the Married Woman’s Act of 1848 has not abrogated the 48th sect, of Act of March 29th 1832, authorizing the payment of the proceeds of the wife’s real estate to the husband on giving security, Quaere ?

    4. The 48th sect, of Act of 1832 does not apply to a woman unmarried when the proceeds of the real estate vested in her, but married before its payment.
    5. Dyer v. Cornell, 4 Barr 359; Walker v. De Haven, 14 Wright 101, approved.
    May 24th 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the Orphans’ Court of York county: Of May Term 1871, No. 101.
    The facts of this case are as follows, viz.: — ■
    Jacob Kann, Jr., died in October 1866, leaving a widow, and two children, Sarah and William, both of whom were minors. On the 13th of April 1867, C. S. Gerber was appointed guardian, &c., of Sarah, and Wendell Gross guardian, &c., of William. The decedent having died seised of certain real estate, upon the petition of the widow and the guardians, the Orphans’ Court, on the 15th of June 1867, appointed commissioners to make partition. On the 23d of the same month the commissioners reported, that the land could not be parted without prejudice, &c., and valued it at $3826. On the same day the heirs having refused to accept the land at the valuation, an order was issued to the administrator of the decedent to sell the same on the following conditions: One-third of the purchase-money to be paid on the’ 1st of April 1868, one-third on the 1st of April 1869, and the remaining third to be secured on the land for the use of the widow and to be paid at her death to the parties entitled. On the 2d of September 1867, the administrator returned that he had sold the land for $3998.61, and the sale was confirmed. On the 1st of April 1868, the purchaser paid all the purchase-money, except the widow’s share. On the 4th of April, the administrator filed his account showing in his hands a balance of $2023.44; about the same time he paid to Gerber as guardian of Sarah, $1011.72, being the whole amount of the purchase-money of the real estate due to her before the death of the widow. Afterwards on the 27th of August 1868, she married George Lefever, and died on the 8th of November 1868, a minor and without issue. Administration of her estate was granted to her husband, George Lefever. The guardian filed his account on the 9th of December 1868, showing in his hands a balance of $997.98, which was referred to D. J. Williams, Estp, as auditor for distribution.
    Before the auditor this balance was claimed by Lefever as administrator, and in his own right as his wife’s next of kin, as personal property. The guardian of William Kann, her brother, claimed it as still bearing the character of real estate and as having descended to him, subject to the life interest of his sister’s husband.
    The auditor in an exhaustive report decided that the fund was personal property and awarded it to Lefever.
    The guardian of William Kann filed exceptions to the report. On the 27th of September 1870, the Orphans’ Court (Fisher, P. J.) sustained the exceptions and decreed that the fund “ be paid to the said George Lefever, upon his giving bond with surety, to be approved by this court, that the said amount, less the said costs, shall be paid at his death to William Kann, the heir of the said Sarah Lefever, deceased, or to his heirs or legal representatives,
    should he not survive the said George Lefever, and if such security be not given within thirty days from the date of this decree, the said money shall be paid over to a trustee to be appointed by this court, who shall invest the same under the direction of this court, and pay the interest thereof to the said George Lefever’ during his life, and pay the principal at his death to the said William Kann or his heirs or legal representatives, should he not survive the said George Lefever.”
    George Lefever, as administrator and in his own right as husband, appealed to the Supreme Court, and assigned the decree for error.

      V. Keasy (with whom was E. H. Weiser), for appellant.
    The 48th section of the Act of 29th of March 1882, Purd. 298, pi. 156, which enables the Orphans’ Court to require security from a husband before money payable to his wife under' proceedings in partition is paid to him, does not apply to the case of a female unmarried at the time of the partition: Quigley v. Commonwealth, 4 Harris 353.
    After the surplus money of land sold for a specific purpose has vested in the party entitled, it is treated as personalty, and in case of his death goes to the next of kin: Pennock’s Appeal, 8 Harris 268; Grider v. McClay, 11 S. & R. 224; Biggert v. Biggert, 7 Watts 563; Dyer v. Cornell, 4 Barr 359; Large’s Appeal, 4 P. F. Smith 383.
    They also cited an unreported case where the fund arose as this, and was paid to the guardian of a minor daughter; she afterwards married and died in 1847 a minor, leaving her husband and a child. It was held that the husband was entitled to the fund as administrator of his wife: Gilbert v. Garber, decided May Term 1848.

      J. L. Mayer, for appellee.
    The 48th section of the Act of 1832 is independent of the character of the fund, whether con-. sidered as converted into personalty or not: Hay’s Appeal, 2 P. F. Smith 449; Commonwealth v. Haffey, 6 Barr 348. This section receives a strict construction against the claim of the husband: Beyer v. Reesor, 5 W. & S. 501, 503; Walter’s Estate, 2 Wharton 246; Ferree v. Commonwealth, 8 S. & R. 315. The distribution of the fund by the court is an essential part of the proceeding: Robinson’s Appeal, 12 P. F. Smith 213; Brooks v. Smyser, 12 Wright 86. That the money was handed over to the guardian before it was due, was an irregularity which could not alter the succession: Davis’s Appeal, 10 P. E. Smith 118; Troutman’s Appeal, 11 Harris 491; Williams’s Appeal, 9 Barr 267. Under a sale of a minor’s property in partition, there is no conversion into personalty to affect the succession: Holmes’s Appeal, 8 P. E. Smith 339; Hill on Trustees, *396 n. 1, 4th edition; 2 Story’s Equity, § 1357; Forman v. March, 1 Kernan 544,
   The opinion of the court was delivered, October 9th 1871, by

Read, J.

In Yohe v. Barnet, 1 Binney 358, a bond given for the purpart of the valuation of real estate, in a partition in the Orphans’ Court, was held to be personal property, and as such became the property of the husband as the owner of his wife’s share. “ There is no ground for saying,” said Chief Justice Tilghman, “ that the share thus directed to be paid in money remains for any intent or purpose of the nature of real estate. It is converted completely into personal property.”

The injustice of such a state of the law was strongly depicted by the revisers, and they reported what now forms the 48th section of the Act of the 29th March 1832, then a step in advance, but which would now be a retrograde one in the present condition of married women in relation to their personal property. This section provides, when, upon any proceedings in the Orphans’ Court, a sum of money shall be awarded by the court, for the share or portion to which a married woman may be entitled, such money shall not be paid to her husband, until he shall have given security to the satisfaction of the court, that the amount thereof, or so much thereof as the court shall deem proper, be paid after his death to his wife, or if she shall not survive him, to her heirs, as if the same were real estate.” The remaining portion of this section is not material for our present purpose. At that day, the object was to prevent its becoming the property of the husband 'entirely, by making the payment to him conditional, giving him only the same interest as if it had remained real estate. It is a question whether the Married Woman’s Act, and all our present legislation, have not virtually abrogated this provision. To-day the money would not be the property of the husband and to be paid to him, but the property of the wife and to be paid to her. If this entire change of policy has not affected this section it should be repealed by the legislature, as inconsistent with our present rules as to the property of married women. Be this as it may, it is clear the provision should not be carried beyond its express letter.

It does not apply to an unmarried female, which was the condition of Mrs. Lefever when this personal property vested in her.

The sale of the real estate of Jacob Kann, Jr., who died in October 1866, was made under proceedings in partition in the Orphans’ Court, which was completed by the confirmation of the sale by the court, the execution and delivery of the deed to the purchase and the receipt of the purchase-money by the administrator, who filed an account of his administration in the register’s office, under the Act of 11th April 1863, which was duly confirmed by the Orphans’ Court, and the money actually paid over to the guardians of the infant heirs and releases executed. The money now in dispute was in the hands of C. S. Gerber, guardian of Sarah Kann, in April 1868, and of course in her hands really as money and not real estate. If she had been of age it would have been paid directly to her. Several months afterwards, on the 27th August 1868, she was married to George Lefever, and this personal property continued to be her property as fully after her marriage as before, and upon her death without issue on the 8th November 1868 her husband became entitled to it absolutely.

Three Acts of Assembly are however interposed to show that no conversion has taken place, but that the money paid over to the two guardians is not personal but real estate. The 19th section of the Act of 24th February 1834;, was originally reported by the revisers as the 20th section of their bill relating to executors, administrators, &e., and was passed with a modification. “ The 20th section,” say the revisers, “is new to our jurisprudence, and we are not aware that a similar provision exists in any other code, although inconvenience, have been experienced from the present situation of the law, which seem to require some legislative interposition.

“ It is a rule in equity which has been recognised and adopted in this state (see Grant v. Hook, 13 S. & R. 269), that the purchaser of real estate from an executor or other trustee, is bound under certain circumstances to look to the application of the purchase-money ; consequently a vendee who has paid the money to such trustee, may, unless he has attended to this rule, be compelled to pay the money a second time to the parties interested in the trust. The result is often injurious to all parties, since the risk of liability for the improper application of the money tends to lessen the number of purchasers, and to reduce the value of the property. Yet we think it would not be safe to abolish the rule altogether, as it might endanger the security of infants and other beneficiaries, and we have suggested the payment of the money into the Orphans’ Court, as a means of relief to the purchaser, while it sufficiently provides for the safety of the fund, and its due application according to the directions of the court, who will have the power to require the necessary security from the executor or administrator before authorizing him to receive the money.”

“ Under the impression that this provision will be advantageous to the community in a class of cases of frequent occurrence, by removing impediments in the way of the transfer of real estate, it is respectfully submitted to the legislature.”

The section as reported was in these words: “ Whenever any sale shall be made of any real estate by any executor in pursuance of any authority, power or direction contained in a will or by force thereof, and of this act, either for the payment of debts, or of legacies, or for the support of children, or for distribution of, the proceeds or other purpose — the purchaser of such estate may pay the purchase-money or consideration of such sale into the Orphans’ Court having jurisdiction of the accounts of such executor or executors, to be disposed of under the direction of such court according to the uses and trusts contained in such will, and such payment shall be deemed valid against all persons having or who may have an interest therein.”

It will be observed that the object of the revisers was to protect the purchaser, who alone could put the machinery in motion. Besides, it would have been very inconvenient if not dangerous in many counties, to have in all such applications obliged the money to he paid into court — where there were neither banks nor institutions in which it could be deposited with safety, and in many cases it might not be necessary thus to lock up the fund, and the legislature therefore introduced after “ executors” this clause or with the leave of such court to such executor or executors,” which gave the same protection to the purchaser as its payment into court.

By the Act of the 27th March 1865, the provisions of this section were extended to all sales of real estate of a decedent made by virtue of an order of the Orphans’ Court under proceedings in partition, “ and that the moneys arising from such sales shall he paid into court and distributed according to law.”

The inconvenience of this enactment was soon discovered, and by the Act of the 28th April 1868 so much of the Act of 1865 “ as requires the money arising from such sales to be paid into court be and the same is hereby modified, so that the court may in its discretion require such payment or may make such order as may be just in the premises.”

If, therefore, the provisions of the 19th section have any operation under these two acts extending them to Orphans’ Court sales under proceedings in partition, the purchaser must be the actor, which he was not in the case before us.

If, however, this construction be not adopted and it is not necessary that the purchaser should be the applicant, still these payments all made by the direct sanction of the court, and the money having reached its legal owner, and it being impossible by any retrograde movement to restore things to their pristine condition, the court will not interfere to do injustice where real justice has been done. The cases of Dyer v. Cornell, 4 Barr 359; Gilbert’s Adm. v. Garber, in appellant’s paper-book, and Walker v. De Haven, 14 Wright 101, are in point.

Decree reversed and report of auditor confirmed.


author: Sharswood, J.

text:
    Burkholder's Executor versus Plank.
    1. Want of consideration is not a defence to a bond.
    2. If fraud on the obligor is set up as a defence, the want of consideration or its adequacy is material to the inquiry.
    3. Where the obligor with a capable will, without fraud or duress executes and delivers a bond to the obligee, it is a gift of the money mentioned in it and its payment may be enforced.
    4. A decedent in his lifetime delivered to his son-in-law a bond, in which it was expressed that it was “for services.” Proof that there had been no services rendered by the obligee, or that they had been previously settled for, would not avoid the bond.
    5. In an action on the bond after the obligor’s death, the defence was that its execution had been procured by fraud. Held, that evidence that no services had been rendered, or that they were entirely inadequate for the amount of the bond or had been fully paid, was relevant.
    6. 1'he plaintiff gave evidence of the services rendered by him in boarding decedent and attending to him in sickness, and that the decedent had spoken with kindness of himself and family in connection with them: in answer the defendant gave evidence of the incapacity of the obligor, with other evidence bearing on the question of fraud. Held, that the defendant might give evidence of declarations of the decedent whilst the services were being rendered, that he was not well treated; that he was not friendly with the plaintiff, although not made in plaintiff’s presence, as tending to show that the decedent did not intend to make a gift to the plaintiff.
    7. A witness testified that she had seen the execution of the note, and the circumstances attending it; evidence of the declarations of decedent was admissible on the question of her credibility.
    8. After evidence has been given on the subject of handwriting, the testimony of experts is admissible in corroboration.
    May 24tk 1871.
    Before Thompson, O. J., Bead, A&new, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Oumberland county: No. 80, to May Term 1871.
    On the 4th of October 1869, J. B. Plank brought an action of debt against Samuel Diller, executor, &c., of Jacob Burkholder, deceased, on the following note :—
    “ Carlisle, March 15th 1869.
    . “ $3500.00. Six months after date I promise to pay to the order of J. B. Plank, at the Carlisle Deposit Bank, thirty-five hundred dollars, for services, and with interest, without defalcation for value received.
    Jacob Burkholder, [seal.]

      In addition to the count in the declaration on the note, the common counts were added. The pleas were: “ Non assumpsit ” and “ Non est factum.”

    Plank was the son-in-law of Jacob Burkholder, who died on the 7th of April 1869, aged about eighty-four, his last illness having been from about February 1st. The defence was that his signature to the note had been obtained by fraud, Burkholder being ignorant of its contents; the defendant also alleged that the services for which the note purported to have been given were of much le'ss value than the amount of the note, and had been paid for in full up to the 1st of April 1869, independently of the note.
    On the trial, February 16th 1871, before Graham, P. J., the plaintiff called Lewis A. Smith, who testified: “ Am teller of the Carlisle Deposit Bank; am accustomed to examine handwriting of parties. I knew Jacob Burkholder. As a general thing I attended to-his business in bank for him, and am familiar with his handwriting. He kept his account in our bank.” The note being shown, witness said: “ I believe that to be the signature of Jacob Burkholder. The body of the note resembles the handwriting of J. B. Plank ; that is my belief. I believe word ‘ seal ’ to be in the same handwriting as the body of the note. I did not see Burkholder write the note.”
    The plaintiff called Emma Meixel, his daughter, who having testified as to the sickness of the decedent, its loathsomeness, the attention rendered to the decedent by the plaintiff, his wife and family, &c., said: “ The first that I heard father say was whether he had made any provision in his will for him ; he said not, that he had made his will three years ago, but I will reward you now; I always said I would reward you well for what you done for me. He said, I can’t give you the money. He said, I have some money, but I don’t know how long I may live, and I may need it yet. He said, I will give you my note. He asked father how much he thought he ought to have, and he said, You know what your children said; they wouldn’t take and come here and take our place for a thousand dollars a year; and then father said he would not ask that much, and then grandfather said he always liked persons to make their charge, and if it was too much he would say so, and if not enough he would say so. Father said would $3000 be too much, and he said, No, I’ll give you $4000, for you have done more for me than all the rest. Then father said, You may make the note thirty-five hundred with interest; father said, If you are satisfied, and grandfather said, Yes, he was satisfied. Grandfather said he should get a note and fill it up; father told me to get ink and pen; I got it for him and father filled up the note, and then father read it to him and handed it to him; he then went to his bureau and put on his glasses and read it, and then signed his name to it. Grandfather said father must get a stamp and put on it or it would not be good. He then gave the note to father.”

      The plaintiff gave evidence by several physicians and others of the condition of'the decedent during his sickness, of the character of his diseases; that the attention bestowed on him by the plaintiff and his family was constant and kind; that their services were so spoken of by the decedent, and that he promised to pay them; also, that the decedent had frequently spoken in kind and affec- ■ tionate terms of the plaintiff, his wife and family; and rested.
    The defendant gave in evidence a number of similar leases, each for one year, the last being from the 1st of April 1869 to the 1st of April 1870, by which the decedent leased to the plaintiff a farm, the plaintiff delivering to him'one-half the produce raised; he also reserved “ the part of the house on said premises he now occupies, to wit: the two east rooms on the first floor, and the south-east rooms on the second floor, and a free and undisturbed passage from one room to the other, as also in the yard; said Plank to furnish boarding, washing and mending for said Burk-holder, for which said Burkholder is to pay the said Plank three dollars and twenty-five cents for each and every week.” By the leases previously to April 1867, the price of the boarding was fixed at $3 per week.
    The defendant gave evidence for the purpose of showing that the plaintiff had been paid for his services; also for the purpose of showing what was the character and value of the services; also, that the eyesight of the decedent was bad; that he could not read, could not recognise his acquaintances by sight, but could by their voice; that the services required were not of so unpleasant a kind nor the condition of the health of the decedent such as the plaintiff alleged; also, that the plaintiff and his family were not so attentive to him as they should have been, but neglected him. There was evidence that the plaintiff was indebted to the decedent; that he and his family were much away from him; that the decedent, by declarations which were known to Plank, expressed dissatisfaction with him; that services were performed by others which Plank and his family should have performed, &c.
    The defendant then offered to prove by Catharine Senseman, “ that during the year 1866, and part of the time for which the plaintiff has given in evidence the declarations of Burkholder as to the treatment of him by the plaintiff and .his family, that Burk-holder complained to her that if he were not treated better he would have to board with somebody else, and that the last year Burkholder lived he complained of Plank, and said if he did not do better he would have to leave.”
    This was objected to by plaintiff, rejected by the court, and a bill of exceptions sealed.
    Gr. D. Craighead testified that he had lived very near the decedent, and was well acquainted with him; that he was with him frequently during his last sickness; that his eyesight was bad, and that he was very feeble; he had seen the decedent write his name; that he doubted whether be could have written bis name during bis sickness, as well as the signature to the note in suit; be did not believe the signature to be the decedent’s.
    The defendant made the following offer of evidence: “ There being evidence given tending to show that the note in suit was not signed by defendant’s testator, and also tending to show that the services claimed for by the plaintiff were not given, the defendant now proposes to prove that prior to and about the time the note purports to have been given, Jacob Burkholder said' he was not well disposed toward the plaintiff, that he said be would not attend to bis business, was running about all the time, that he would never give him anything; that be was not fit to have anything; also, that the plaintiff and his family did not give him what he wanted, and left him alone: this for the purpose of sustaining the evidence that the note was not signed by the testator, as it would be unlikely that with such feelings he would make the note in suit, and to show that be was not in the state of mind the plaintiff alleges him to have been in.”
    The offer was refused, and a bill of exceptions sealed.
    Joseph Sword testified that the plaintiff in speaking to him of the note in suit said, that he (plaintiff) “told Mr. Burkholder that he thought they would better have a witness to this note, and Mr. Burkholder said he did not wish any person to know anything about it but be and Plank.”
    Samuel Layman testified: “ He (plaintiff), said grandpap gave him a note for $3500, and I asked him then if there was any witness, and be said there was not, nobody by when he gave it.” Charles W. Sbeafer testified : “ I asked Plank in particular if be bad a witness to the note, and be said ’there was nobody by, and the old gentleman wanted no one to know it.”
    Joseph Baker testified: “I asked Plank whether be bad witness to the signature of Burkholder, be said he had not; I told him that would be a trouble in bis way. I asked him was anybody present, or in the room at the time; he said there was no person present; he said he wished there had been some person there. I repeated again it would be a trouble in his way, and be said the old man wanted no one in. This conversation occurred repeatedly, I mean at different times.”
    Joseph Walter testified that plaintiff said' “ grandpap bad given him a note for $3500, and I asked him if there was witness, and he said, there was no witness by, and then I told him be ought to have witness on the note; and be said, then, that grandpap didn’t want any witness, be said it would make a dispute among the other heirs. Plank told me Mr. Burkholder had paid him up to the 1st of April 1869.”
    In rebuttal, the plaintiff called a number of witnesses who were acquainted with the handwriting of the decedent, and who testified that in their judgment the signature to the note was genuine.

      They then called two witnesses, who both testified that they were experts as to handwriting, and offered as follows to each:— “ Look at the signature on this note, and say, as an expert, what is your opinion as to its being simulated or not, or is it or is it not, in your opinion, a natural signature.”
    The offer was objected to by the defendant, admitted by the court and bills of exception sealed.
    Both testified that in their judgment the signature was ,not simulated.
    The plaintiff then proved by the teller of the bank in which the decedent kept his account, that forty-four checks shown to the witness were signed by the decedent, and had passed through the bank.
    The checks were given in evidence.
    He also gave evidence that during his last illness the decedent’s mind was clear and his eyesight good.
    The plaintiff’s 1st point was: If the jury believed that decedent promised the plaintiff that he would reward him if he would take care of him in his old age, “ and this reward was not intended by Mr. Burkholder to be included in his ordinary agreements and transactions with Plank, but to be held in parol, and in suspense, as an inducement for said Plank and his family to take proper care of him, the plaintiff is entitled to recover for such services (beyond ordinary boarding and care) on the money counts, unless these services were included in the note given. If the note was given by Mr. Burkholder to Mr. Plank for such services, knowing what he was doing, and as a compensation for any kindness or service received, either in the nature of a gift, reward or payment, no one else has any right to dispute the adequacy of the services, if Mr. Burkholder chose to consider them adequate.”
    The court answered: “We answer this in the afiirmative, except that we say to you that if this note was given as a gift by Burkholder to Plank, then Plank cannot recover on this note, nor recover on the money-counts more than the value of the services rendered. But if Burkholder considered himself indebted to his son-in-law for services, kindness and attention to the amount of the note, and gave it in consideration of the debt he considered due from him to Plank, then the plaintiff may reoover the amount of the note,”
    The defendant’s 2d point was: “ Under the conflicting evidence in this case, it is for the jury to determine whether the seal was on this note at the time it was executed. If it is not the seal of Burkholder the plaintiff cannot recover; but if they believe that it is his seal, and that the note was signed by him, then, since the note expressly states that it was given for services rendered by Plank to Burkholder, if the jury are satisfied from the evidence that no such services were rendered by Plank to Burkholder, but on the contrary that all his services were paid for by Burkholder, up until April 1st 1869, independently of and outside of the said note, plaintiff cannot recover.”
    The court answered: “ It is for the jury to determine whether the seal was on the note at the time it was executed. If it was not, but was added afterwards, it would avoid the note, and there would be no recovery upon it. But I can remember no evidence in the case that would justify the inference that the seal was added after the note was executed; on the contrary, the evidence is that the word ‘ seal’ is in the same handwriting as the filling up in the body of the note, and I cannot discover any difference in the color of the ink or characters of the handwriting, but this is a question for the jury. In answer to the latter part of this point we say, if no services were rendered when the note was given but what had been paid for at that time, then the plaintiff cannot recover.”
    His 4th point was: “ Under no circumstances should the verdict of the jury in this case exceed their estimate of the value of the services rendered by Plank to Burkholder’ and remaining unpaid when the note in suit purports to have been given.”
    The court answered: “ We cannot answer this point as requested. If Burkholder promised his son-in-law and daughter that they should be well paid for their services in caring for and attending to his wants and comfort; and upon his last sickness estimated those services at $3500, and gave his note to Plank for that sum, which was his (Burkholder’s) estimate of the value of the services rendered, and the note was executed with a full knowledge and consciousness of what he was doing, under these circumstances the plaintiff may recover the amount of the note, although it may be for more than the jury would estimate the services worth.”
    His 5th point was: “ If the jury believe that Burkholder settled with Plank from time to time, as the written agreements between them would indicate, and that he paid him from time to time up to April 1st 1869, as testified by Sarah Wunderich, &c., or if they believe that no value in services has been shown as the consideration of the note in suit, their verdict should be for the defendant, whether they believe the signature to the note to be genuine or otherwise.”
    The court answered: “ The evidence, we think, satisfactorily shows that the boarding, as stipulated in the written leases of the farm, was paid up to April 1st 1869, and we do not understand that this boarding is now claimed. And if there was no other indebtedness than this at the time the note was given, which was afterwards paid, there would be no consideration for the note. If the evidence satisfies you there was no consideration for the note, there can he no recovery upon it. But if Burkholder considered himself indebted to Plank for services, care and attention to his comforts when sick and unable to attend to himself, for which he promised to pay, and considered that the services were worth, under the circumstances, the amount of the note, and did give the note for the services thus rendered according to his own estimate of their value, then plaintiff may recover upon the note, if he signed it with a knowledge of its import and effect.”
    The court, after referring to most of the testimony, charged: * * * [“ In addition to this you have the evidence of Mrs. Meixel, the daughter of plaintiff, who says that she was present in the room when the note was signed, and details the conversation that occurred at that time. Her evidence, the defendant’s counsel contend, is not reliable, and ought not to be credited, because it is in conflict with the declarations of her father to Mr. Baker and Mr. Lehman. Mr. Lehman states that in a conversation with Mr. Plank about the note, he asked him if there was any witness, and Plank said there was not, nobody when he, Burkholder, gave it. Mr. Baker states that he asked Plank whether he had a witness to the signature of Burkholder. He said he had not. Witness told him that would be a trouble in his way, and asked him was anybody present or in the room at the time, and Plank said there was no person present. Said he wished there had been some person. Witness repeated it would be a trouble in his way, and Plank replied, the old man wanted no one in. This is certainly in conflict with the evidence of Mrs. Meixel, who said she was in the room when the note was signed, and detailed the conversation between her father and Mr. Burkholder. But plaintiff’s counsel contend that this apparent discrepancy is reconcilable without impugning the truth of Mrs. Meixel or her father. That the first inquiry by Mr. Baker was, have you a witness to the signature of Mr. Burkholder ? to which Plank replied he had not. That he was next asked, was there anybody present in the room at the time ? And the question of inquiry being the proof of the note either by a witness to the note or the presence of a witness at the time it was signed, who could prove its execution, Plank replied there was no person present — meaning there was no person present who would be a witness. The impression being, as plaintiff’s counsel allege, with many not conversant with the rules of evidence, that a child cannot be a witness for its parent. This solution of this apparent contradiction between the evidence of Mrs. Meixel and the declarations of her father, is submitted to you, and you will give it such consideration as you may deem it entitled to.]
    “ You will then inquire and determine from the evidence whether Jacob Burkholder signed the note in suit. You will have a number of signatures, admitted to be genuine, out with you, and in addition to the evidence on the subject you can compare the signatures which are genuine with the signature to the note in suit, to aid you in determining whether it is genuine or not. If the evidence satisfies you that the signature is genuine and that Jacob Burkholder signed the note knowing its import and effect and that it was for services rendered in nursing and attending to him the last years of his life, the plaintiff would be entitled to recover the amount of the note and interest. [And although you may consider $3500 a large sum for the services rendered, if decedent intended to repay these services with that sum, and gave his son-in-law, Mr. Plank, a note for that amount as a remuneration for the kindness, attention and unpleasant duties it appears from the evidence Mr. and Mrs. Plank were occasionally required to perform, he had a right to contract and agree for the payment of such sum as he considered right and proper, and to give his note to Mr. Plank as evidence of the debt.]
    “ But should the evidence not satisfy you that the signature to the note is genuine, then there are moneyed counts in the declaration on which the plaintiff claims to recover compensation for his services, over and above his boarding provided for in the several leases. If the signature to the note is not genuine, then you may allow a fair and proper compensation for attendance, trouble and attention required during the sickness of the deceased, taking into consideration the nature and character of the services required. * * *

    “ As to the genuineness of the note the burden of proof is on the plaintiff. If it does not satisfy you the note is genuine, the plaintiff cannot recover on the note. But if you are satisfied from the evidence, that the note in suit was signed by Burkholder, then a further inquiry arises. The defendant alleges that although the signature may be genuine, it was procured by fraud, deceit or misrepresentation. If the note was signed by Jacob Burkholder, the legal presumption is that it was fairly and honestly obtained, and the party alleging fraud must prove it. * * * If the evidence satisfies you that fraud or deceit was practised on Burk-holder in obtaining the note, there can be no recovery upon it. [On the contrary, if the evidence fails to satisfy you, that the note was procured fraudulently, and if you are. satisfied that Burkholder signed the note for services which he considered worth the amount he promised to pay, then, as we have before said, the plaintiff may recover the amount of the note and interest.] But should you find that there can be no recovery on the note either for want of proof of its genuineness, or because you believe from the evidence that it was fraudulently obtained, then you may find such sum as you may believe to be a fair and proper compensation for services rendered which have not been paid for.”
    The verdict was for the plaintiff for $3906.

      The defendant took a writ of error, and assigned errors as follows:—
    1, 2. Rejecting the defendant’s offers of evidence.
    3. Admitting witnesses as experts to testify as to the genuineness of the signature to the note.
    4. The answer to the plaintiff’s point.
    5. 6, 7. The answers to the defendant’s points.
    8, 9, 10. The parts of the charge in brackets.

      S. Hepburn, Jr., Henderson $ Hays, and S. Hepburn, for plaintiff in error.

      W. J. Shearer and W. H. Miller, for defendant in error.
   The opinion of the court was delivered, October 9th 1871, by

Sharswood, J.

In an action upon a bond or note under seal, want of consideration is no defence: Sherk v. Endress, 3 W. & S. 255; Yard v. Patton, 1 Harris 278. The late Chief Justice Lewis very clearly draws the distinction between want and failure of consideration in Candor & Henderson’s Appeal, 3 Casey 119. If fraud or imposition on the obligor or maker is set up as a defence, then not merely whether there was any consideration, but its adequacy, may be very material as an element in that question. If Jacob Burk-holder in the exercise of a capable will — freely and without fraud or duress — sealed and delivered to Jacob B. Plank, the instrument of writing sued upon, it was a gift of the money mentioned in it, and may be enforced against him or his estate after his death.

It appears to have been supposed, that because the note was expressed to be for services, that proof that there were no services rendered by the payee which had not been fully paid and settled, would avoid it. “ If,” said the learned judge in answer to the second point of the defendants, “no services were rendered when the note was given but what had been paid for at that time, then the plaintiff cannot recover.” This was an instruction which'was asked by the defendants, and they have no right to complain of it. We think it was an error, which ran through the whole case, which was tried in all respeGts, so far as this question is concerned, as if it had been on a parol promise. The fact, if the fact was, that no services had been rendered which had not been fully paid for by Burkholder, had a very important bearing upon the questions whether Burkholder had executed the note, and whether it was with a correct knowledge of its contents. If so, he had a right to give it for services however insignificant — even the common office of humanity by the most entiré stranger — monstrare viarn erranti. To show to the jury, in corroboration of the note, that he had no intention to make a gift — that his relations with and expressed opinions in regard to Plank, precluded any such idea — would lead to the inference of fraud if in point of fact there were no services rendered; or services insignificant compared with the compensation contracted to be paid; or that there had been a settlement in full shortly before the transaction.

The plaintiff had given evidence of the services rendered, not as a claim in addition to and independent of the note, but, in case it should not be sustained, to lay ground for a recovery under the common counts of the declaration. He also showed declarations of kind and grateful feelings of Burkholder towards Plank and his wife. The defendants proved that the entire body of the note was in Plank’s handwriting; that Burkholder was very old; had in a great measure lost his eyesight, so as not to be able to read writing; that there was a contract or contracts between the parties by which Plank undertook to furnish boarding, washing and mending for Burkholder, at $3.25 for each and every week; and that there had been a settlement and payment of all that was due on this account. All this was relevant so far as the note was concerned, as tending to sustain the defence of fraud, and only relevant in that aspect. Whether Burkholder intended to give Plank $3500 as a mere gratuity or present, as a grateful return for kind offices performed under no contract expressed or implied to be paid for them, or, besides providing a fair and reasonable compensation, he meant to add a further sum as a present — this certainly was one of the points which fairly arose in the case. The defendants had a right to introduce any competent testimony which bore upon that point. We think the evidence offered by them, the rejection of which is complained of in the first and second assignments of error, did bear upon that point, and ought to have been received. Had the question been under the common counts alone, the ruling of the learned judge would have been correct; for when a case is made out by the admissions of the defendant, it is not competent for him to show other declarations at different times in contradiction of them. But, regarding it as a question of fraud in the plaintiff in obtaining Burkholder’s signature to the note in suit, everything which threw light upon the relation between the parties ought to have been admitted and gone to the jury.

Nor can it be said that this rejection did the defendants no injury, although the learned judge instructed the jury in the end that if there was no consideration for the note — no services rendered except those which had been settled and paid for — the plaintiff could not recover. The question of whether Burk-holder meant to give $3500 to Plank as a present or gratuity, was not submitted to the jury. Yet the refusal of this offer threw the defendants off their track. The learned judge instructed the jury in answer to a point presented by them — that if Burkholder estimated Plank’s services at $3500, and gave his note to Plank for that sum, which was his, Burkholder’s, estimate of the value of the services rendered, and the note was executed with a full knowledge and consciousness of what he was doing, the plaintiff might recover the amount of the note, though more than the jury would estimate the service worth. This was undoubtedly correct. If Burkholder by his bond or sealed note could, as we have seen, give Plank $3500 for nothing, d fortiori he could give him that sum for one day’s service. The real question in the cause was as the learned judge properly stated it — Did Burkholder execute the note with a full knowledge and consciousness of what he was doing ? To enable the jury to weigh the credibility of the statement testified to by Mrs. Meixel of the circumstances attending the execution of the note, it was quite important that the jury should be able to form a sound opinion as to the true state of Burk-holder’s feelings towards Plank, and whether he would be likely to make either so large a gift, or so handsome a remuneration for his services. We are of the opinion, therefore, that there was error in the rejection of the evidence complained of in the first and second assignments.

It is unnecessary to examine the remaining assignments. We discover no other error in the rulings and instructions of the learned judge than that which has been noticed. It may be considered as well settled in this state by Fulton v. Hood, 10 Casey 365, and Travis v. Brown, 7 Wright 9, that after direct evidence has been given on the subject of handwriting, the evidence of experts is admissible in corroboration.

Judgment reversed, and venire facias de novo awarded.


text:
    Harlan et al. versus Langham and Wife.
    1. Under partition in the Orphans’ Court in 1837, the land was adjudged to Langham, the husband of one of the heirs, in right of his wife. His interest was afterwards sold by the sheriff; the vendee of the sheriff and his successors in title afterwards conveyed the land in distinct lots to a number of other persons. In 1862 Langham and wife recovered her undivided interest in ejectment, and they were put into possession under a hab. fac. Held, that they could maintain partition against all claiming under the sheriff’s vendee as joint defendants.
    2. In order to maintain the joint action it was not necessary that the successors of the sheriff’s vendee should he tenants in common between themselves.
    3. The proceedings in the Orphans’ Court did not divest the title of Langham’s wife.
    4. Partition leaves the title as it finds it: — it dissolves the tenancy in common, hut does not divest the title until payment of the shares of the other owners.
    5. Snyder’s Appeal, 12 Casey 166, distinguished.
    May - 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Blair county: No. 23, to May Term 1871.
    This was an action of partition to April Term 1868, brought by Solomon Langham and Catharine his wife against Otho Harlan and a number of the other defendants.
    A case stated, which exhibited the following facts, was agreed upon and filed in the action:—
    William Dickey being seised in fee of a tract of 208 acres of land, now in Blair county, died intestate prior to 1837, leaving seven children his heirs at law, of whom Catharine, the wife of Solomon Langham, the plaintiff in this suit, was one. One of the children having been advanced his full share of the estate, the interest of each of the others was one-sixth. Under proceedings in partition in the Orphans’ Court, the above tract of land was on the 30th of August 1837 adjudged to Solomon Lang-ham in right of his wife Catharine. On the 21st of April 1843, the interest of Solomon Langham was sold by the sheriff to Jacob Beard, who afterwards was put into possession of the premises. Subsequently, by sundry conveyances from Beard and those claiming under him,, from April 12th 1844 until June 2d 1861, the title of Beard became vested in the defendants, in different parcels, most of them small lots of a few acres each, some of them being lots in a town called “ Marion,” laid out by George Hite, who had been one of the owners of Beard’s title in part of the land.
    To March Term 1853, Solomon Langham and wife brought an ejectment against Otho Harlan and others, then in possession, for an undivided sixth part of the 208 acres, of which Dickey had died seised, and recovered a verdict, upon which judgment was entered. An habere facias was issued, under which the sheriff on the 6th of July 1865, put the plaintiffs, Langham and wife, into possession of the one undivided sixth part of the premises.
    The question submitted to the court was: “ Are the plaintiffs entitled tO/have another partition of said premises in the present suit ? If they are, then judgment for the plaintiffs. If not, then judgment for the defendants.”
    On the 23d of September 1870, the court entered judgment for the plaintiffs on the case stated.
    The defendants sued out a writ of error, and assigned for error the entering of judgment for the plaintiffs.

      T. Banks, for plaintiffs in error.
    The decree in partition being for the same land and between the predecessors in title of the same parties, is a bar to this action: Coleman v. Coleman, 7 Harris 100; Herr v. Herr, 5 Barr 428; Colton v. Smith, 11 Pick. 311. The defendants hold several interests by different conveyances, and the action cannot be sustained against them jointly: Jackson v. Myers, 14 Johns. R. 354; Snyder’s Appeal, 12 Casey 166. The Married Woman’s Act of 1848 does not apply; the husband does not claim under his marital right, but by virtue of the decree of the Orphans’ Court, under which he took a life estate in one-sixth and a fee in the remainder: Stoolfoos v. Jenkins, 8 S. & R. 167; Otto’s Estate, 2 P. F. Smith 434; Stehman v. Huber, 9 Harris 260; Burson’s Appeal, 10 Id. 164.

      S. M. Woodcock, for defendants in error,
    cited Coleman v. Coleman, supra; Kennedy v. Kennedy, 7 Wright 413; 2 Tr. & Haly 276; McMahan v. McMahan, 1 Harris 379; Hawk v. Jones, 12 Id. 127; Longwell v. Bentley, 11 Id. 103.
   The opinion of the court was delivered, July 3d 1872, by

Sharswood, J.

No question as to the title of the plaintiffs below to an undivided sixth part of the premises is presented upon this case stated. By the recovery in ejectment and the writ of habere facias thereon, they were put into possession in common with the defendants. The effect of the former proceedings in the Orphans’ Court did not divest the title of the married woman when her husband took the land at the appraisement, and gave his recognisance to the other heirs: Kean v. Ridgway, 16 S. & R. 60. A partition, whether by action or proceeding in the Orphans’ Court, leaves the title as it found it. It dissolves tenancy in common, but it does not divest title in common until payment of the shares of the other owners: McClure v. McClure, 2 Harris 134.

The only question then is, whether the defendants can be joined in the same action of partition, or each must be proceeded against severally for the tract or parcel of which he is the tenant. It is the case of an original tract held in common, but which one of the tenants in common has carved out into parcels, and conveyed them in severalty. It would be very unfortunate — would work great practical injustice — if the law was as maintained by the plaintiffs in error. To put a- case which will illustrate the practical working of the doctrine. A. and B. are tenants in common of a city square — each being entitled to an undivided moiety. B. divides the square into a hundred lots, which he sells out to as-many different purchasers — A. brings his ejectment against these purchasers, recovers his moiety, and is- put into possession by the sheriff. Whereas before the conveyances made by B., A. had a right to have the lot divided into two equal parts, if it could be without spoiling the whole, he must now, it is said, put up with half of each lot, and be at the cost of one hundred actions of partition in order to secure that: Act of April 11th 1835, § 3, Pamph. L. 200. Provided, however, the defendants are tenants of. the same original tract with the plaintiffs, there is no rule or principle which requires that they should be tenants in common among themselves. It is enough, according to the writ, that “the plaintiffs and the defendants together and undivided do hold.” The writ as between tenants in common depends wholly upon statute. It lay not at common law. There is nothing either in the stat. 31 Henry VIII. c. 1, or the various Acts of Assembly, which has any bearing upon the point. We are not, however, without decisions upon the subject in our sister states. One tenant in common cannot convey any specific part of the land held in common so as to prejudice his co-tenant: Porter v. Hill, 9 Mass. 34; Bartlet v. Harlow, 12 Id. 348; Baldwin v. Whiting, 13 Id. 57; Rising v. Stannard, 17 Id. 282; Varnum v. Abbott, 12 Id. 474; Nichols v. Smith, 22 Pick. 316; Peabody v. Minot, 24 Id. 329; Blossom v. Brightman, 21 Id. 284; Griswold v. Johnson, 5 Conn. 363; Duncan v. Sylvester, 24 Maine 482 ; Robinett v. Preston, 2 Robinson (Va.) 275 ; Jeffers v. Radcliff, 10 N. Hamp. 246; Great Falls Co. v. Worcester, 15 Id. 449. It was accordingly held, in Stark v. Barrett, 15 Cal. 368, that partition could be maintained against the alienees in severalty of one of the tenants in common. “ Neither a joint tenant,” say the court, “ nor a tenant in common, can do any act to the prejudice of his co-tenants in their estates. This is the settled law, and hence a conveyance by one tenant of a parcel of a general tract owned by several is inoperative to impair any of the rights of his co-tenants. The conveyance must be subject to the ultimate determination of their rights, and upon obvious grounds. One tenant cannot appropriate to himself any particular portion of the general tract, as, upon a partition, which may be claimed by the co-tenants at any time, the parcel may be entirely set apart in severalty to a co-tenant. He cannot defeat this possible result, whilst retaining his interest, nor can he defeat it by the transfer of his interest. He cannot, of course, invest his grantee with rights greater than he possesses. The grantee must taie, therefore, subject to the contingency of the loss of the premises, if, on the partition of the general tract, they should not be allotted to the grantor.” So in Gates v. Salmon, 35 Cal. 576, it was held in such case that the whole tract is subject to partition so far as the co-tenants of the grantor are concerned, as it would be had the conveyance of the special tract not been made. To the same effect is Sutter v. San Francisco, 36 Cal. 112. In Whitton v. Whitton, 38 N. Hamp. 127, it was decided that if the owner of an undivided interest in real estate devise his interest in part of the land to one, and in another part to another, both devisees are properly parties to a bill for partition.

Of course this principle must be held applicable only where there has been an original tract held in common, and not to the case of several tracts so held, under different grants. So far as the decision in this case is' concerned, it is confined to the facts of it — when one tenant in common of an original tract has undertaken without right to make conveyances in severalty of different parts. Snyder’s Appeal, 12 Casey 166, where the attempt was made unsuccessfully to obtain in the Orphans’ Court partition of two estates, held in common by the same parties as the heirs of two different persons, has no application-

judgment affirmed;