author: Agnbw, J.

text:
    Van Ohlen’s Appeal.
    1. B., the owner of a tract of land, conveyed part of it to H. by metes and bounds, a parenthesis in the deed, saying the north “ line' to be the centre of a public road not more than 40 feet wide to be laid out and opened, diverging towards the valley of Snyder’s run, or to run on said line as a centre up the hill as far, &c., provided, required by said B., his heirs or assigns.” Held, that this was not a fixed and certain reservation, nor absolute in its nature.

      2. The reservation was a power preserved, by B. to himself to lay out a road along or near the line.
    3. B. afterwards conveyed to 0, part of the same tract on the north of the line and adjoining it; and to M. another part east of the first tract and of the end of the line: Held, 1. That M. could not enforce the opening of the road; 2. That H. could not enforce.the opening on the north side of the line.
    4. The reservation is governed by the property described in it as the property of B.; not by the fact that he was at the time owner of other property outside of that thus described.
    5. An obscure reservation in a deed construed.
    6. Jamison v. McCredy, 5 W. & S. 129; Kirkham v. Sharp, 1 Whart. 323, considered.
    October 31st 1871.
    Before Thompson, C. J., Read, Agnew, Sharswoód and Williams, JJ.
    Appeal from the decree of the District Court of Allegheny county: In Equity: No. 197, to October and November Term 1870.
    The bill in this case was filed, December 9th 1869, by William McOreery and John H. McCreery against John Van Ohlen; it set out:
    1-4. That George Breed, owning 40 acres of land, on the 25th of May 1857 conveyed 10 acres, part of the tract, to Louisa Hartupee; that one of the boundary lines of the tract was from-a stone in the centre of Strawberry lane and Sarah street, to a post in centre of Pasture lane, “ the line thus described from the stone in Strawberry lane and Sarah street, to be the centre line of a public road, not more than 40 feet wide, to be laid out and opened, diverging towards the valley of Snyder’s run, or to run on said line as a centre, along up the hill as far eastwardly as this last point in Pasture lane, provided it be required by said Breed, his heirs or assignsthat all the land abutting on the said Hartupee line, between the stone in the centre of Strawberry lane and Sarah street, to the post in Pasture lane, at the time of the making the said deed, belonged to Breed; that William McCreery, one of plaintiffs, became owner of the 10 acres; that Breed’s executors, on the 6th of July 1867, conveyed to Jonathan Gallagher 26 acres of the 40 acres, and Gallagher, in September 1868, conveyed 6 acres of the 26 acres to John H. McCreery.
    5. That John H. McCreery had laid out a plan of lots of the 6 acres, one of the streets laid out in the plan and opened follows the line of Pasture lane, and ends at the post in the lane mentioned in the Hartupee deed as the terminus of said public road; that John H. McCreery owns divers parcels of lands fronting on the street, and situate near the point of intersection of his street with the road, mentioned in the Hartupee deed, the lots being part of the 6 acres.
    6. That in the fall of 1868, John H. McCreery being about to begin the sale of this 6 acres, notified William McCreery, that as an assign of Breed he required the road to be opened “for its width of 40 feet;” and in pursuance of the notice, William McCreery removed his fence 20 feet back from the line of the road.
    7. That in September 1869, John H. McCreery posted in a public place along the line of the street, that the road was a public road, and was required by him as one of the assigns of Breed as a public road for the width of 40 feet.
    8 and 9. That the defendant owned a lot abutting on the public road mentioned in the Hartupee deed, and the lot was part of the original 40 acres of Breed at the time of the conveyance to' Hartupee; that since the public notice, defendant had commenced excavating for the erection of a house on the road and within 20 feet of the centre line, and continued to make the erection and build walls within the line of the road.
    The prayer was for an injunction to restrain the defendant from proceeding with the excavation and building, and for general relief.
    The defendant by his answer, not denying any of the allegations of the bill, averred as follows :— ¡1
    That he was the owner in fee of the lot; that neither of the plaintiffs had any right to declare his land a public road; that the reservation of the road, not more than .40 feet wide, “ was a reservation to Breed and his heirs, or those to whom he should thereafter assign the reservation, and against the grantee in the deed and his assigns; that if the reservation were good in favor of John H. McOreery, as an assign of Breed, it could be only in common with all the assigns of Breed and the requirement of the 40 foot road must be by a majority in interest of those assigns ; that William M. Claney, a grantee of Breed, required and¿ received from Breed a street of 20 feet, along the “ centre line” mentioned in the Hartupee deed, which is laid down in Claney’s plan of lots, which estops any further demand from Breed’s heirs or assigns.
    The deed from Breed to Mrs. Hartupee was for “ All that certain tract or parcel of land situated in reserve tract opposite Pittsburg, being part of the out-lots, numbers 222,223 and 241, described as follows, to wit: Beginning at a stone at the centre or junction of Ann and Mary streets, on a plan of lots laid out by said Breed, on parts of the out-lots Nos. 240 and 241, in said tract; running thence north, &c., to a post in the centre of Sarah street; thence north, &c., east, along the centre of Sarah street, &c., to a stone in Strawberry lane; thence north, &c., east, (by various courses) to a post in the centre of Pasture lane (the line thus described from stone in Strawberry lane and Sarah street to be the centre line of a public road not more than 40 feet wide to be laid out and opened diverging toward the valley of Snyder’s run, or to run on said line as a centre along up the hill as far eastwardly as this last point in Pasture lane, provided it be required by said Breed, his heirs or assigns); thence south, &e., along the centre of Pasture lane, now vacated, and along the centre of a street on the top of the hill, called West street, and again along another vacated part of Pasture lane to the centre of Ann street; thence, &c., to the place of beginning; containing ten acres, three roods and fourteen perches, subject, however, to the roads, streets or lanes, except the vacated parts as aforesaid.” * * *
    On the 8th of July 1869, the heirs of Breed conveyed to William M. Claney, “ all that parcel of ground situated in the Reserve tract, opposite Pittsburg, in the county of Allegheny, being Block 2, in George Breed’s plan, subdividing a part of said tract as recorded, &c., and is bounded and described as follows, viz.: Beginning at a locust post in the centre of Pasture lane, on the southerly side of Sarah street; thence along said centre line, &c.; thence along property formerly of L. D. Hartupee, &c., to Sarah street; thence along the line of Sarah street, &c., to the point of beginning, containing three roods and twenty-one perches,” &c.
    On these premises Claney laid out a plan of lots of 20 feet each fronting on Sarah street, and “ extending back to the line of property formerly of L. D. Hartupee,” and on the 30th of October 1869, conveyed lots No. 15 and 16 in the plan to George Leppert, who afterwards conveyed these lots to Yan Ohlen, the defendant.

      The annexed draft, which exhibits the location of different lots, &c., is necessary for an understanding of the case.
    The court, on the 18th of August 1870, “ decreed that the said defendant John Yan Ohlen, his agents and servants, be perpetually enjoined and restrained from proceeding with the making of the excavation or the erection of the building or buildings complained of. And that said defendant be ordered and directed, within ninety days from this date, to abate and remove any building or buildings already erected by him, his agents or servants, within twenty feet of the centre-line of said public road mentioned in the bill, and within said line to fill up the excavation within the said twenty feet, made for the erection of such building or buildings.”
    The defendant appealed, and assigned the decree for error.

      T. B. Patterson (with whom was T. M. Marshall), for appellants.
    The clause in question contains no requisite of a dedication of a road: 1 Washburn on Easements, ch. 1, § 5, parts 10, 39; Darlington v. Commonwealth, 5 Wright 63; Schenley v. Commonwealth, 12 Casey 29. The reservation is adverse to Mrs. Hartupee: Bell v. Ohio and Penna. Railroad, 1 Id. 161. The owners of the Claney lots only could demand the opening of the road: Holliday v. Ward, 7 Harris 485. The defendant is owner of the land on which the alleged nuisance is being erected ; it is not a nuisance per se, and irreparable damage is not alleged: Sparhawk v. Union Pass. Railroad, 4 P. F. Smith 401; Hilliard on Injunction, ch. 9, p. 269; Rhea v. Forsyth, 1 Wright 503; Riddle v. Ash, 2 Ashmead R. 211.

      M. W. Acheson (with whom was W. B. Bodgers),

    cited Clark v. Martin, 13 Wright 289; Jamison v. McCredy, 5 W. & S. 129; Washburn on Easements 217, 86; Washburn on Real Property, book 2, 28; Watson v. Bioren, 1 S. & R. 227.
   The opinion of the court was delivered, January 9th 1872, by

Agnbw, J.

This case is governed by the construction to be placed upon the deed of George Breed to Louisa Hartupee, referred to in the bill of the plaintiffs. The 10 acres conveyed to Mrs. Hartupee are taken out of the heart of four out-lots of the town of Allegheny, laid out by the state in separate parcels, and numbered 222, 223, 240 and 241. George Breed was the owner of these four lots, and in his deed referred to them only. They lie adjoining to each other, running from a corner common to the four lots, and divided from the land now claimed by John H. MeCreery, by Pasture lane, one of the original lanes laid out by the state in the survey of her plan of out-lots, upon her reservation at the mouth of the Allegheny river. The reservation of a public road, the subject of this dispute, is not referred to in any way or in any part of the deed to Mrs. Hartupee, except as it is found within a parenthesis in the middle of the description of the ground conveyed by the deed. The description beginning at a stone in the centre of the junction of Ann and Mary streets proceeds by metes and bounds to a stone in the junction of Strawberry lane and Sarah street, thence north 8° 55' east 14-$$, perches to a post; thence north 26° 45' east 16T90- perches to a post; thence north 39° 48' east perches to a post; thence north 60|° east fiy3^ to a post in Pasture lane (the line thus described from stone in Strawberry lane and Sarah street to be the centre line of a public road not more than forty feet wide, to be laid out and opened diverging toward the valley of Snyder’s run, or to run on said line as a centre, along up the hill as far eastwardly as this last point in Pasture lane, provided it be required bv said Breed, his heirs or assigns), thence south 13° 10' east, 69T\,3ff perches along the centre of Pasture lane, &c. The plaintiff, in the bill before us, claims that this was a fixed and certain reservation of a public road along a certain boundary line as its centre, which operated as a reservation of twenty feet along this line out of the land sold Mrs. Hartupee from Strawberry lane to Pasture lane, carrying along with it a mutual obligation on part of Breed and his assigns to lay off 20 feet along this boundary upon his own land; and that any one being an assignee of any part of Breed’s land can enforce this obligation, notwithstanding Breed and those claiming under him the other parts of the four out-lots not sold to Mrs. Hartupee never exercised his option, by requiring the road to be opened. We think this is not the true construction of the deed. The reservation was neither certain and fixed in its location and in its measurement, nor was it absolute in its nature. It was not fixed in location, for it was to be laid out and opened either diverging toward the valley of Snyder’s run (which would carry it to the left or westwardly from the line of the deed), or to run upon that line as a centre (so says the deed), along up the hill as far eastwardly as this last point in Pasture lane. It was not certain in its measurement, for it was to be not more than forty feet wide, but how much less depended on the future determination of Breed. Nor was the reservation absolute in its nature, for it was to be only “ provided it be required by said Breed, his heirs or assigns.” That it was the intention of Breed, by this contingent reservation, to preserve to himself the power of laying out a street along or near to the Hartupee line is rendered still more .manifest by the accompanying drafts furnished to us. Sarah street, upon which the rcserration begins at Strawberry lane, bending to the right by three distinct courses, comes out upon Pasture lane, not far from the post on Pasture lane to which the Hartupee line runs, and in its general course is nearly parallel with the Hartupee line, which was to be the centre line of the road. The Hartupee line, beginning at the stone in the centre of Strawberry lane and Sarah street (which is a street of forty feet in width), runs longitudinally and diagonally along Sarah street until it passes out of the latter about two hundred feet from the stone.

The effect of this course would be, that adding the width of the reserved road along the Hartupee line to its point of divergence from Sarah street, the latter would increase in width until at the point of divergence it would be 80 feet wide, and then passing this point it would suddenly relapse to its former width of 40 feet. Viewing this fact and the parallelism of the two roads, and it appears to be pretty evident that Breed, who then owned all the property, intended to do away with Sarah street if he opened the road along the centre line, and for this purpose he reserved the right of diverging from the centre line, at the end of the second course, toward the valley of Snyder’s run, coming out just about where Sarah street comes into Pasture lane; or, if he preferred, to keep on the centre line the whole distance to Pasture lane, and thus preserve the parallelism with Sarah street. But it appears that Sarah street remains as at first located, and it is not alleged that Breed ever gave notice of his intention to open the road along the centre line. It is obvious, therefore, that he must have concluded to suffer Sarah street to remain as it stood, and not to open the road on the centre line. Those to whom his title has descended appear to be of the same mind, for instead of a road required to be opened along the Hartupee or centre line, they have laid out lots between Sarah street and this line coming entirely up to the line. With this view of the reservation in this deed, it is evident that Mrs. Hartupee and her alienees have no power to open a road on the Breed side of this line. William McCreery has no interest, therefore, in this question. John H. McCreery has still less, for his land lies on the east side of Pasture lane and is no part of any of the four out-lots set forth in the deed. The reservation in the deed is governed by the property described in it as the property of Breed, and not’ by the fact that Breed was the owner at the same time of other property outside of the property thus described. On this point Jamison v. McCredy, 5 W. & S. 129, cited by the appellee, is against him; to which may be added Kirkham v. Sharp, 1 Whart. 323. According to these cases, if the reservations in this case were absolute and certain, and extended to the alienees of Breed, it would not reach the alienees of the property outside of the deed. We are of opinion, therefore, that the court below erred in its construction of the deed to Louisa D. Hartupee, and the decree is reversed and the bill dismissed at the costs of the appellees.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Napier et al. versus Darlington.
    1. A lease contained a stipulation that the lessee at the end of the time might have a conveyance of the premises at a specified price; he assigned the lease; held, that the assignee was entitled to a conveyance.
    2. Such stipulation is not merely a personal covenant but a right, which may be transferred to the vendee, and enforced at his election, as if the contract had been absolute.
    8. The stipulation was a continuing offer to sell, and when accepted by the lessee, a contract of sale was completed.
    4. In an ejectment, the plaintiffs recovered a verdict to be released on the defendant paying into court the sum found as purchase-money of the whole tract, to be taken out by the plaintiffs on their filing a deed to the defendant of the premises. The defendant paid in the sum, and the plaintiffs filed a deed purporting to convey the whole tract. It being ascertained that the plaintiffs were the owners but of f, the defendant was allowed to take out f of the money paid in, and the plaintiffs to file a deed conveying but f.
    5. Kerr v. Day, 2 Harris 1.12; Erwin v. Myers, 10 Wright 96, recognised.
    November 2d 1871.
    Before Thompson, C. J., Read, Agnew, SnARSWood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 209, to October and November Term 1870.
    On the 30th of November 1868, Matilda Napier and Mary A. McCracken brought an action of ejectment against William M. Darlington for one and a half acres of land in Indiana township. The plaintiffs’ abstract of title set out that they were lawfully possessed of the property in dispute, and on the 26th of May 1860 demised the same to John Dorrington and others for three years, with the privilege of five years, at an annual rent of $70; that the lessees took possession under the lease, and sub-let the same to the defendant, who refused to surrender possession at the end of the lease; as part of their abstract they filed a copy of the lease. On the trial, April 14th 1870, before Kirkpatrick, J., the plaintiffs gave in evidence the lease as follows:—
    “ Articles of agreement made and concluded this 26th day of May, A. D. 1860, between Mary A. McCracken and Matilda Napier of, &c., of the first part, and John Dorrington, John Wright, Henry Thomas and John McPherson, of, &c., of the second part. Witnesseth, That the said parties of the first part, for the consideration hereinafter mentioned, doth let and lease to the parties of the second part, all that certain lot or piece of ground situate in Indiana township, &c., for and during the term of three years from date, Avith the privilege of five years at the same rent; and at the expiration of said five years the parties of the second part shall have the privilege of purchasing said property for the sum of eight hundred dollars.
    “ The said parties of the second part agree and bind themselves to pay, or cause to be paid, to the parties of the first part, the yearly rent of $70, to be paid semi-annually, and to pay all taxes on said property for and during the term of this lease.
    “ The above-described property belongs to the heirs of James McCracken, deceased, &c.; this lease, if not purchased at the expiration of the term herein mentioned, to deliver up quiet and peaceable possession, without any notice or further delay, and at least in as good condition as at present, reasonable wear and tear alone excepted.”
    They gave in evidence the assignment of the lease, December 26th 1863, by the lessees to William H. Johnston, and assignment by Johnston, January 4th 1864, to the defendant.
    The defendant gave evidence of the payment of the rent up to the expiration of the lease.
    He gave evidence that at the end of the five years he tendered the purchase-money, and demanded a deed for the property.
    He claimed that he was vendee under the agreement for sale in the lease, and was entitled to retain the property upon payment of the $800.
    The court instructed the jury to find for the plaintiffs, with such stay of execution as the jury should fix, to be released upon defendant on or before that time paying into court the amount of • the purchase-money, with interest from the expiration of the lease, with costs, the money to be paid to plaintiffs on their filing in court on or before the time fixed by the jury, a good and sufficient deed for the land described in the lease and writ.
    The record shows as follows :—
    “The jury found for plaintiffs- with six cents damages and six cents costs, with stay of execution for 30 days from this date, and to be released upon defendant, on or before the expiration of that time, paying into court one thousand and thirty-five dollars, with interest from this date and costs; said money to be paid over to plaintiffs upon their filing in court on or before the expiration of said time a good and sufficient deed for the land described in the lease and writ in this ease. May 7th 1870, in compliance with the verdict, and by order of court, defendant pays into court the sum of $1038.45 debt and interest, and $19.06 costs, which amount of $1038.45 is to be paid to plaintiffs after they shall have filed a deed to the defendant in accordance with the verdict, which deed, upon notice to defendant, shall have been adjudged by the court to be such as plaintiffs are bound to make, said deed to be filed and notice of it given within the time limited by the verdict. May 7th 1870, defendant, William M. Darlington,, pays into court the sum of $1038.45 (and $5.18 commission), which sum I have deposited subject to the further order of court. May 16th 1870, deed of plaintiff to defendants filed.”
    The deed was dated May 7th 1870, from the plaintiffs to the defendant, and purported to convey all the premises mentioned in the lease (describing them by metes and bonds) to the defendant, being land which had belonged to James McCracken at the time of his death, and which “ became vested in his children and heirs, the parties of the first part hereto.”
    The defendant filed exceptions to the deed, the 3d of which in substance was: That the deed purported to convey the entirety of the tract; that McCracken left five children, on all whom the land descended, and that, besides the plaintiffs, three of these children or their representatives, are still living; and before accepting the deed the defendant had the right to have the proper evidence to show, whether the titles of those three had been vested in the plaintiffs.
    On filing the exceptions, the court granted a rule on plaintiffs to show cause” why they should not make or exhibit to defendant a more perfect title; and why, in default of exhibiting and making a title to the entirety of the property, an amount of the money in court proportionate to the interests not conveyed, should not be refunded to defendant, upon his acceptance of their deed, for the interests which appear to be held by them.” The rule was made absolute, and it was adjudged “ that upon the acceptance by the defendant of the deed so filed, he be allowed to take out of court three-fifths of the money paid into court by him, exclusive of the costs of the cause.”
    The plaintiffs took a writ of error, and assigned for error:
    2. The charge of the court.
    3. Sustaining the defendant’s exception to the deed.
    4. Allowing defendant to take out three-fifths of the money paid into court by him.

      John Barton (with whom was T. M. Marshall), for plaintiffs in error.

      J. Veeeh (with whom were D. Veeoh and D. Watson), for defendant in error.
    The defendant having elected to take the property at the end of the term, was entitled to a conveyance: Kerr v. Day, 2 Harris 112; Willard v. Taylor, 8 Wall. 557. The deed should convey a valid title: Rawle on Covenants, 559, 560; Clute v. Robison, 2 Johns. 613; Jones v. Gardiner, 10 Johns. 266; Everson v. Kirtland, 4 Paige 638; Pomeroy v. Drury, 14 Barb. 424; Colwell v. Hamilton, 10 Watts 413; Dearth v. Welsh, 2 S. & R. 498; Speakman v. Forepaugh, 8 Wright 363; Lloyd v. Farrell, 12 Id. 73; Erwin v. Myers, 10 Id. 96.
   The opinion of the court was delivered, July 3d 1872, by

Williams, J.

There are but two questions in this case:

1. Whether the defendant, as assignee of the lease, is entitled to the right or option given to the lessees of purchasing the demised premises at the expiration of the term ?

2. Whether, if the plaintiffs are not able to convey a valid title to the entire property, the defendant may elect to take a conveyance of their interest or shares on payment of a proportionate part of the purchase-money ?

Both these questions have been decided by this court after the fullest Consideration. The first was determined in Kerr v. Day, 2 Harris 112, where, in the case of a lease with a stipulation that the lessee should have the privilege of purchasing the land during the continuance of the term, it was held, reversing the judgment of the court below, that the agreement giving the option to purchase was not a mere personal covenant, but a right, which, though resting solely with the lessee, might be transferred to his vendee, and enforced, at his election, with the same effect as if the contract had been absolute in its terms. Such a stipulation in a lease is in the nature of a continuing offer to sell, and when accepted by the lessee a contract of sale is completed: Willard v. Taylor, 8 Wall. 557.

The case of Erwin v. Myers, 10 Wright 96, is conclusive of the second question. It was there ruled that if the plaintiff can make title to an undivided part only of the property sold, the defendant, in an ejectment to enforce the payment of the purchase-money, may elect to take such part, and will be entitled to a verdict if he has paid a proportionate part of the purchase-money with interest. If he has paid less, the plaintiff will be entitled to the verdict to be released on payment of the portion which still remains unpaid. As it is conceded that the plaintiffs in this case can make title for only two-fifths of the land, it follows that the defendant is entitled to a conveyance of their shares on payment of a proportionate amount of the purchase-money agreed to be paid for the_entire property. The'ease was tried on these principles in the court below, but through inadvertence in framing the final order it was so drawn as to allow the defendant, upon his acceptance of the deed filed by the plaintiffs for the entire property, to take out of court three-fifths of the whole purchase-money which he had paid into court in compliance with the verdict. If this order is allowed to stand, it will compel the plaintiffs to convey the entire property'to the defendant for two-fifths of the purchase-money agreed to be paid therefor. This would be manifestly unjust. All that the defendant can lawfully require is a conveyance of the plaintiffs’ interests on payment of a proportionate amount of the purchase-money, and therefore the order must be so modified as to allow him to take out of court three-fifths of the amount paid into court, exclusive of costs, upon his acceptance of a deed for the undivided two-fifths of the land for which the plaintiffs can make title.

Judgment reversed, and a modified judgment entered.


author: Thompson, C. J.

text:
    Aronson versus Cleveland and Pittsburg Railroad Company.
    1. Where the error alleged is in arresting judgment, the Supreme Court will not look to the testimony for aid in pronouncing on the judgment of the court below.
    2. If the declaration be sound, the plaintiff is generally entitled to judgment.
    3. A. declaration was against defendants for loss of goods as carriers; after verdict it was to be presumed that this was made out.
    4. In another action for the loss of the.same goods against the defendants as warehousemen, the plaintiff would be estopped by his allegation that they were carriers.
    November 3d 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 98, to October and November Term 1871.
    This was an action of assumpsit by A. Aronson against The Cleveland and Pittsburg Railroad Company, brought to March Term 1869. The plaintiff declared that the defendants were common carriers for hire by railroad and cars from Waynesburg, Ohio, to Alliance, in the same state, and at the request of the defendants, the plaintiff delivered to them, as such carrier, three boxes of goods of the value of $1500, to be carried from Waynesburg to Alliance, there to be safely delivered by them to the plaintiff, for a certain reward, and in consideration thereof they undertook and promised the plaintiff to take care of the said goods, and safely carry the same by the means aforesaid for the plaintiff; and whilst said goods were in the care and custody of the defendants, they as such carriers undertook and promised the plaintiff to reconvey and safely carry the said goods by means of their railroad and cars from Alliance to Pittsburg, and safely deliver them at Pittsburg for the plaintiff for certain other reward, and although the defendants received the goods in the manner and for the purpose aforesaid, and had the care and custody of them at Waynesburg, to be safely delivered at Pittsburg for the plaintiff, yet they did not take care of the goods; and although they delivered two of the boxes of goods, yet they did not safely carry and deliver the third box, nor deliver the same for the plaintiff at Pittsburg; and the defendants, being such carriers, “so carelessly and negligently behaved themselves with respect to the said goods of the plaintiff, that by and through the mere carelessness, negligence and improper conduct of the defendants,” &c., one box of the goods, “ to wit, four overcoats of the value of $500, whilst the defendants as such carriers had charge thereof, * * * became and were and are wholly lost to the plaintiff, * * * and the defendants afterwards, * * * in consideration of the premises promised the plaintiff to pay the said sum of $500,” &c.
    The defendants pleaded non assumpsit.
    The jury found a verdict for the plaintiff for $524.08.
    The defendants moved for a new trial; also in arrest of judgment, for which they assigned the following reasons:—
    1. The declaration in this ease shows no cause of action.
    2. The declaration is inconsistent, and contradictory in itself.
    8. The record shows no evidence to sustain the allegations of the declaration.
    4. The court erred in refusing to charge the jury as requested on the points of defendant.
    5. The declaration alleges no non-delivery therein, as having been shipped from Waynesburg to Alliance, and the record shows that the court charged the jury that the defendants were liable in this action as common carriers for that transit, and were bound to show a delivery of the same at Alliance, or a loss during transit coming under the exceptions in the bill of lading for said boxes contained, or the exceptions of the common law, which charging under the pleadings is assigned as error and cause for arrest of judgment.
    The court denied the motion for a new trial, but arrested the judgment.
    The plaintiff assigned this for error on the removal of the case to the Supreme Court.

      A. M. Brown, for plaintiff in error,
    cited 3 Bl. Com. 393, 394; Stephen on Pl. 117; 1 Tr. & H. Pract. 620; Shoenberger v. Zook, 10 Casey 24; Quinn v. Woodhouse, 2 Id. 333; Roop v. Roop, 11 Id. 59; Bennet v. Bullock, Id. 364; Barnhill v. Haigh, 3 P. F. Smith 165; Wilson v. Gray, 8 Watts 25.

      S. Schoyer, Jr., for defendants in error.
   The opinion of the court was delivered, November 23d 1871, by

Thompson, C. J.

When the error alleged is in arresting judgment we cannot look into the testimony for aid in pronouncing upon the action of the court. The question is upon the sufficiency of the plaintiff’s narr. If that be sound, the plaintiff is in general entitled to judgment on his verdict: Wilson v. Gray, 8 Watts 25.

In the narr. in this ease we see no substantial defect. It does not show that the action should have been against the company as warehousemen. The engagement of the company set forth hy plaintiff is as carriers. We must presume after verdict that this was made out. What possible chance there would be for a suit for the same goods against the company as warehousemen, I do not see. The plaintiff would be estopped hy his allegation that the goods were lost on transit, and not in a warehouse. If it had been shown that the goods were lost by warehousing, then indeed the plaintiff’s nan', would not have been such as to enable him to recover, and it would have been the duty of the court to have charged against him for want of correspondence between his allegata and probata. There is nothing in this suggestion of the defendants in error.

And now, to wit, November 23d 1871, the arrest of judgment in this case by the court below is reversed, and judgment is ordered to be entered on the verdict for the plaintiff for the amount found by the jury, with interest from the date of the verdict, and the record is remitted for that purpose.


author: Sharswood, J.

text:
    Kleppner versus Laverty.
    1. A devise was to my daughter Mary Ann, for and during her natural life, all my real estate; and upon the happening of her death, I devise and bequeath the same to her lawful issue, should she leave any. In default of such lawful issue, I give, devise and bequeath said real estate to my brothers, Edward and Bernard, and to my sisters, Eliza and Rose, and their heirs, subject to the life estate of my said daughter therein. Held an estate-tail in the daughter, which under the Act of 1855 became a fee.

      2.1 “ Issue” in a will means “heirs of the body,” and in general is a word of limitation: but this construction will yield to an intention apparent on the face of the instrument, that it was to have a less extended meaning to be applied only to children or descendants of a particular class or at a particular time.
    3. The rule in Shelley’s Case is not one of construction, but an inexorable rule of law, that where the ancestor takes a preceding freehold, a remainder shall not be limited to his heirs as purchasers.
    4. Doebler’s Appeal, 14 P. E. Smith 9; Paxson v. Lefferts, 3 Rawle 59; Taylor v. Taylor, 13 P. E. Smith 481, recognised.
    November 3d 1871.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 128, to October and November Term 1871.
    This was an action of debt brought, April 1st 1871, by Mary A. Laverty against John Kleppner, in which there was the following case stated:—
    Felix Laverty died March 30th 1869. By his will and codicil dated March 28th and 29th 1869, and proved April 1st 1869, he provided as follows:—

      “ I hereby devise and bequeath to my daughter Mary Ann, for , and during her natural life, all my real estate; and upon the happening of her death, I devise and bequeath the same to her lawful issue, should she leave any. In default of such lawful issue, I give, devise and bequeath said real estate to my brothers, Edward and Bernard, and to my sisters, Eliza and Bose, and their heirs, subject to the life estate of my said daughter therein.* * *
    “As to my personal property and estate, I direct my executors to convert the same into money, and hold the same in trust, investing the residue thereof, after payment of any debts I may owe, in such judicious manner as to yield an annual interest. And I order and direct that the interest or increase thereof be paid over to my said daughter, Mary Ann, for her own use; and upon her death, the principal to be paid to any lawful issue she may leave surviving her; and in default of such issue, and upon the happening of her death, and not before, the said principal moneys to be divided equally among my aforesaid brothers and sisters and their heirs.* * *
    “ It is my intention, and I hereby will and direct that all my personal or mixed estate, of whatever kind, whether consisting of moneys now on deposit, ground-rents, notes, bonds or mortgages, or other securities, shall be held by my said executor in trust, and the interest or increase arising annually from the investments thereof, shall be paid to my daughter Mary Ann, as provided by said will, and the principal be distributed, upon her death, as therein provided ; and I do hereby ratify and confirm my said will, in all other respects.”
    On the 6th of July 1870, Mary A. Laverty, the devisee, by articles, contracted to sell to Kleppner, the defendant, the real estate devised to her, and convey it in fee, on or before the 1st of October then next, in consideration of which Kleppner agreed to pay her $20,000, of which $5000 was to be paid on the 1st of October 1870, and the remainder in three equal annual payments, to be secured by mortgage with interest.
    On the 1st of October 1870, the plaintiff tendered to the defendant a deed for the premises, and demanded the payment of the first instalment of the purchase-money ; the defendant refused to accept the deed and pay the first' instalment, on the ground that she did not take a fee by the devise, and therefore could not convey such title. The plaintiff was of full age, unmarried and without issue. The suit was for the recovery of the first instalment of $5000. It was agreed by the parties as follows:—
    “ Judgment is to be entered herein for the plaintiff for $5000, with interest from the 1st day of October 1870, and costs, if upon the facts herein stated the court shall be of opinion that the plaintiff, under and by virtue of the said will of her father, Felix Laverty, took and is seised of, and can convey to the defendant, his heirs and assigns, an estate in fee in and to said lot of ground and premises. Otherwise, judgment is to be entered for the defendant, with costs.”
    The court entered judgment for the plaintiff on the case stated for $5215.83.
    The defendant took a writ of error, and assigned the entry of the judgment for error.

      John Mellon, for plaintiff in error,
    cited Williams on Real Property 291; 4 Kent’s Com. 269.

      M. W. Acheson, for defendant in error,
    cited 2 Jarman on Wills 246; George v. Morgan, 4 Harris 95; Doebler’s Appeal, 14 P. F. Smith 9; Eichelberger v. Barnitz, 9 Watts 447; Criley v. Chamberlain, 6 Casey 161; Clark v. Baker, 3 S. & R. 470; Kay v. Scates, 1 Wright 31; Carter v. McMichael, 10 S. & R. 429; Paxson v. Lefferts, 3 Rawle 59; Wynn v. Story, 2 Wright 166; Potts’s Appeal, 6 Casey 168; Curtis v. Longstreth, 8 Wright 297; 4 Kent’s Com. 273; Price v. Taylor, 4 Casey 95; Gast v. Baer, 12 P. F. Smith 35; Act of April 27th 1855, § 1, Pamph. L. 868, 1 Brightly Purd. Dig. 620, pl. 8.
   The opinion of the court was delivered, November 9th 1871, by

Sharswood, J.

The word “ issue” in a will means primá facie the same thing as “ heirs of the body,” and in general is to be construed as a word of limitation; but this construction will give way, if there be on the face of the instrument sufficient to show that the word was intended to have a less extended meaning and to be applied only to children, or to descendants of a particular class or at a particular time. The authorities in support of this general rule are cited in Taylor v. Taylor, 13 P. F. Smith 484, to which may be added Gast v. Baer, 12 P. F. Smith 35, and Angle v. Brosius, 7 Wright 187. “ The word ‘ issue,’ ” says Mr. Justice Strong, “is well adapted for a word of limitation, having much more aptitude for such an use than it has to designate the objects of a gift. In signification it very nearly resembles the technical phrase ‘heirs of the body,’ and indeed the two were used as synonyms in the statute de donis. Hence it has long been settled, that,when real estate is devised by one or more limitations in the same will to a person and his issue, the word issue will be construed as a word of limitation so as to give the ancestor an estate tail, unless there are expressions in the will unequivocally indicative of a contrary intention.” Even, therefore, though there should be an estate for life in express terms, and a devise to issue in remainder on the death of the tenant for life, either expressly or by implication only, as by a devise over for want or in default of issue, unless there is something to contradict unequivocally the presumed intention that the devise over shall not take effect until the whole line of issue is extinct, the rule of law is an unbending one, which vests the inheritance in tail in the first taker. The particular intent must give way to the general one. The rule in Shelley’s Case is not a rule of construction— not a means of ascertaining the intention of the testator. It presupposes that intention to be ascertained. It is a rule of law which declares inexorably that where the ancestor takes a preceding freehold by the same instrument,, whether deed or will, a remainder shall not be limited to his heirs as purchasers. When we determine that by “issue” he means heirs of the body — the entire line taking in succession by descent — the rule has the same application. If given as an immediate remainder after the freehold it shall vest as an executed estate of inheritance in the ancestor; if mediately after some other interposed estate, then it shall vest in him as a remainder: Doebler’s Appeal, 14 P. F. Smith 17. In Paxson v. Lefferts, 3 Rawle 59, where a testator devised his plantation to his son during his natural life, and if he shall leave lawful issue, then to them, their heirs and assigns for ever, but for want of such lawful issue then over, it was held clearly to be an estate tail in the son. The principal difficulty in that case was in the superadded words of limitation to the devise to the issue — “to them, their heirs and assigns for ever,” from which it was argued that these words showed that the issues were not intended to take “ qua heirs,” but to be root of a new succession. Mr. Justice Kennedy, who delivered the opinion of the court, shows by authority that this makes no difference, and that according to the doctrine of Mr. Fearne, in his Treatise on Contingent Remainders, even words of limitation superadded, if not inconsistent with the nature of the descent (pointed out by the first words) will not convert them into words of purchase; and he cites in illustration the case of Dodson v. Grew, 2 Wils. 322, where the word “issue” was the term employed by the testator. There the devise was “to A. for life, remainder to the issue male of his body lawfully to be begotten, and the heirs male of the body of such issue male, and for want of such issue male over,” and held that A. took an estate tail.

It is not easy to perceive any difference between the words of the will in Paxson v. Lefferts and those of the will of Felix Laverty, now before us, which ought to be received as indicative of a different intention. There was there a devise for life; then if the devisee should leave lawful issue, to such issue, and for want of such issue, over. Here it is to Mary Ann for life; upon the happening of her death, to her lawful issue, if she should leave any — in default of such issue, over. There are no words of superadded limitation in the will of Felix Laverty as there was in that of John Knight; but this only makes the caso stronger in favor of the defendant in error. There is nothing to indicate that by issue Eelix Laverty meant “ children,” or only such issue as should be living at the period of his daughter’s death — nothing to show that he did not mean that which the words primá facie and naturally import, that the estate was not to go over to his brothers and sisters until the whole line of his descendants through his daughter Mary Ann was extinct. Indeed when he comes, in a subsequent part of his will, to make a disposition of his personal estate, he indicates pretty clearly by the introduction of other words besides those used in the disposition of his real estate, that he intended a difference. After directing the interest of his personal estate to be paid over to his daughter Mary Ann for her own use, he provides that “ upon her death the principal to be paid to any lawful issue she may leave surviving her, and in default of such issue, and upon the happening of her death, and not before, the said principal moneys to be divided equally among my aforesaid brothers and sisters, and their heirs.” Had these words “surviving her” been found in the disposition of his real estate it would have been some indication of an intention that he meant “ children” or “ issue then living.” That he omitted them there and inserted them here, shows that he had not that intention as to his real estate. The issue of the daughter Mary Ann were to take her real estate upon the happening of her death as heirs of her body — qua heirs, and the rule in Shelley’s Case must be held to apply. The consequence is that Mary Ann took an estate tail, which, by the Act' of April 27th 1855 (Pamph. L. 368), shall be taken and construed to be an estate in fee simple, and as such shall be inheritable and freely alienable.

Judgment affirmed.


author: Read, J.

text:
    Caldwell versus Hartupee & Co. for use.
    A trust-mortgage was made to Caldwell to secure, amongst others, a debt due Hartupee, who owed a firm of which Caldwell was a partner. Hartupee gave an order on Caldwell in favor of Cuthbert; on presentation Caldwell, refused to pay Cuthbert, saying he would pay Hartupee’s debt to his firm from what he was entitled to under the mortgage. At the trial Caldwell’s partner consented that the firm’s claim might be set off to Hartupee’s claim against Caldwell. Held, that the order was an equitable assignment to Cuthbert, and he might recover from Caldwell.
    November 3d 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county : No. 210, to October and November Term 1870.
    This was an action of assumpsit brought, August 21st 1869, by “Hartupee & Co., for the use of John Cuthbert, now for the use of John Morrow,” against William A. Caldwell.

      The circumstances were, that Henry T. Dexter, being the owner of the steamboat “ Quickstep,” which was largely in debt, made a trust-mortgage of the boat to the defendant and George W. Coffin as trustees to secure $15,000 for the benefit of creditors of the boat named in schedule annexed to the mortgage, amongst whom were the plaintiffs. The plaintiffs drew upon the defendant in favor of John Cuthbert for part of the money coming to them. The defendant declined to accept or pay the order on the ground that Hartupee & Co., were indebted to the firm of which he was a member. Cuthbert endorsed the draft to Morrow, for whose use the suit was brought. On the bond Caldwell’s partner had consented that their debt might be set off.
    The case was tried June 8th 1870, before Kirkpatrick, J.
    The plaintiffs gave in evidence a trust-deed or mortgage, dated March 24th 1868, from Henry T. Dexter, owner of the steamboat “ Quickstep,” conveying the boat to William A. Caldwell (defendant) and George W. Coffin, for the consideration of $15,000. The deed recited that Dexter had bought the steamboat, and that it was liable for sundry debts which were liens upon it, “ and the parties have agreed that the same shall be paid out of the proceeds of the saleand after specifying in a schedule the creditors of the vessel and the amounts due them, it provided that Dexter should pay $5000 in six months, and like amounts in twelve and sixteen months, and upon the payment of the $15,000 with interest, the deed should be void. For these sums Dexter gave his notes with interest.
    The deed contained this stipulation :—
    “And the payments aforesaid, as received by said trustees, shall be applied first to the payment of the creditors above named, excluding Morrow and Barnhill, — next, to the claim of said Morrow and Barnhill, and the balance to said D. W. C. Carroll, assignee of said Hartupee & Morrow, for the use of general creditors.”
    The amount of debts specified in schedule was $15,000 ; Morrow and Barnhill’s debt was stated to be $2940, and “ D. W. C. Carroll, assignee,” as $5349.36. The notes of Dexter were paid to Caldwell at maturity. Before the deed of trust of Dexter to Caldwell, Hartupee & Co. had assigned to D. W. C. Carroll, who declined to accept the trust, and, as was admitted on the trial, that claim then belonged to Hartupee & Co.
    The plaintiffs further gave in evidence the following draft:— “Mr. W. A. Caldwell.
    “ Dear Sir: Please pay Mr. John Cuthbert fifteen hundred dollars out of the proceeds of the last note coming to us from the steamer Quickstep, with interest from date of said note.
    “ Hartupee & Co.
    “ Pitts., October 10th 1868.

      “ Endorsed:
    “ Mr. Caldwell: Please pay John Morrow the within money.
    John Cuthbert.”
    Cuthbert testified that he presented the draft to Caldwell, who refused to accept it, saying that “ Hartupee & Co. owed them that money, and he was going to apply it to pay that on their book account.”. Witness presented the draft to Caldwell the dayit bore date. “ It was a good while afterwards that I transferred this order to John Morrow; the order was left with A. H. Miller, Esq., as' collateral security for a debt for which I was bail; transferred to Morrow in August 10th 1869 ; at the time I transferred this order to John Morrow, he paid to Mr. Miller the debt for which I was bail, and for which this order was collateral.”
    It was admitted that Caldwell, as acting trustee, had paid on orders of Hartupee & Co. $3920.40, leaving a balance of about $1700 in his hands.
    The defendant gave evidence as to his trouble, &c., as trustee; also that he had refused to accept the draft in favor of Cuthbert, having in his hands at that time only about $30. Hartupee & Co. were then indebted to Caldwell & Brother, the defendant being one of the firm, — about $2581.62, with interest.
    John Caldwell, a partner of the firm of Caldwell & Brother, testified that as a partner in the firm, he was willing that the defendant should appropriate the indebtedness of Hartupee & Co. to the firm as a set-off to the claim of the plaintiffs in this case against the defendant.
    The court instructed the jury proformd to find for the plaintiffs, subject to the question reserved, which is stated in the verdict of the jury, to wit:—
    “We find the amount in the hands of the defendant, W. A. Caldwell, to be $2278.96. We allow the trustees as compensation $375, which, deducted from the above amount, leaves a balance in his hands of $1903.96.
    “We find the claim of this plaintiff this day, in principal and interest, to be $1698.75; and we find in his favor and against the defendant for that amount, viz., $1698.75, he having that amount in his hands, unless the court shall be of opinion that under all the evidence in this case the plaintiff is not entitled to recover; and if the court shall be of opinion that the plaintiff is not entitled to recover, and that the defendant is entitled to set off the claim of Caldwell & Brother against Hartupee & Co., under the two notes given in evidence by the defendant, then verdict to be entered for the defendant, non obstante veredicto.”

    The court afterwards entered judgment for the plaintiff on the verdict, on the reserved question.

      The defendant removed the ease to the Supreme Court, and there assigned for error, the entering judgment for the plaintiff.

      John H. Hampton (with whom was Dalzell), for plaintiff in error.
    The debt due Caldwell & Brother by Hartupee & Co., could be set off against plaintiffs’ claim on the consent of Caldwell’s partner: Smith v. Myler, 10 Harris 36; Wrenshall v. Cook, 7 Watts 464; Tustin v. Cameron, 5 Whart. 379; Craig v. Henderson, 2 Barr 261; Solliday v. Bissey, 2 Jones 347; Relf v. Bk. of Mobile, 8 Harris 435; Ryall v. Rowles, 1 Ves. 348; Waln v. Bk. of N. America, 8 S. & R. 73; although this assent be given after action brought: Hart v. Porter, 5 S. & R. 201.
    The use-plaintiff was bound to show affirmatively that he had given a valuable consideration: Prescott v. Prescott, 17 Johns. R. 284; Perkins v. Parker, 1 Mass. 117; Antrobus v. Smith, 12 Ves. 39; Sutton v. Lord Chatwood, 3 Merivale 289; Meek v. Kettlewell, 1 Hare 464; Kennedy v. W are, 1 Barr 445; Mark v. Clark, 11 B. Monroe 44; Duval v. Wilson, 9 Barb. 202; Kennady v. Shepard, 2 Jones Eq. 224; Cox v. Sprigg, 6 Md. 274.
    The order was not an assignment, because it undertook to transfer only a portion of the fund in Caldwell’s hands: Mandeville v. Welch, 5 Wheat. 277.

      John Barton, for defendants in error.
    Caldwell’s right to claim the set-off was acquired only on the day of trial, after other rights had intervened; it may therefore not be available: Smith v. Myler, 10 Harris 36.
   The opinion of the court was delivered, May 13th 1872, by

Read, J.

On the 24th day of March 1868, Henry T. Dexter being the owner of a one-third interest in the steamboat “ Quickstep,” purchased the remaining two-thirds from Hartupee & Co., the then owners thereof, for $15,000, which, as the boat was in debt in that amount to various persons, and to secure the payment of the same, said Dexter made and executed a deed, dated the same day, for said boat to William A. Caldwell and George W. Coffin, in trust for her lien-creditors, a list of whom is given in said deed. The said $15,000 were to be paid to said trustees with interest from the date of the deed, in manner following, viz.: one promissory note for the sum of $5000, with interest, six months after this date, and two similar notes of the same amounts, payable respectively at 12 and 16 months after date. These notes were all paid at maturity.

The last on the list of creditors was D. W. C. Carroll, assignee, which, as the assignment was inoperative, he having declined to accept, was really Hartupee & Co., to whom it belonged, as was admitted on the trial. The payments as received were to be applied first to the payment of the creditors above named, excluding Morrow and Barnhill, next to the claim of said Morrow and Barn-hill, and the balance really to Hartupee & Co., who were creditors to the amount of $5349.36.

In April 1868, W. A. Caldwell, acting assignee, accepted and paid two orders, drawn by Hartupee & Co. against their interest, as creditors in said deed, amounting to $3920.40.

On the 10th October 1868, Hartupee & Co., being the owners, of the balance of the debt due them under the deed of trust, drew the following order on W. A. Caldwell:—

“ Dear Sir: Please pay Mr. John Cuthbert $1500 out of the proceeds of the last note coming to us from the steamer ‘ Quickstep,’ with interest from date of said note.
“ Pittsburg, October 10th 1868.
“Hartupee & Co.”

This order on the same day was taken by Cuthbert to Caldwell, one of the trustees,'who refused to accept it, and told him Hartupee & Co. were indebted to his firm in a sum exceeding the amount coming to them under the trust deed, and he intended to appropriate whatever they might be entitled to, to the payment of that debt.

This order was an equitable assignment of so much of the money which Hartupee & Co. were entitled to receive from the trustees under the deed of trust out of the proceeds of the last note which they had the full power to make. The order was properly admitted in evidence by the court, and it was proved by Cuthbert that he went bail for Hartupee & Co. on a judgment held by A. H. Miller, Esq., and when it came due John Morrow raised and paid the money to Miller, and this order which had been given as collateral for the judgment was then assigned to John Morrow, who paid the money. It was, therefore, not simply an assignment, but an assignment for a valuable consideration, and John Morrow was entitled to receive the money. This suit was brought on the 21st August 1869, and was tried on the 9th June 1870, and in the course of it John Caldwell, Jr., a partner in the firm of Caldwell & Bro., was examined by the defendant, and two notes offered in evidence were shown witness. “ I am willing,” said he, “ as a partner, that my brother, W. A. Caldwell, should use the amount of each note as an offset in this case against the claim of plaintiffs in this case against W. A. Caldwell; I am content he should so appropriate.”

Under this state of facts the plaintiffs were entitled to the full amount of the order, with interest, and whatever balance remained of Hartupee & Co.’s interest under the deed of trust belonged to the defendant under his offset of the two notes above stated.

This really practically answers Mandeville v. Welch, which was in a court of common law, and the same assignment would have been held good on the equity side of the same. In Pennsylvania, in the present liberal state of the law, as to equitable assignments, there can be no hesitation in recognising this assignment in a common-law form of action, and in saying in such a case it is not necessary to resort to a court of equity.

Judgment affirmed.


author: Agnew, J.

text:
    Ebbert’s Appeal.
    1. A deed to persons as tenants in common, who are partners, must, as to purchasers of the title and creditors having liens on it, stand as the foundation of their rights and govern in distributing the proceeds of a sale of the title.
    2. As to creditors, the effect of such deed cannot be changed by parol evidence, and the land converted into partnership assets, so as to affect the liens of otherwise preferred creditors.
    3. As between the partners, a trust may result to the firm and the proceeds of the land be assets of the partnership, when they so treated the title and paid for it from partnership funds.
    4. Partners can direct the application of the firm funds, and secure their identity in the kind of title they take for them.
    5. If they take the title as tenants in common, they give character to the title as to those who afterwards deal with them.
    6. It is the duty of counsel to furnish to the court an argument, with authorities.
    7. Cumming’s Appeal, 1 Casey 268; Erwin’s Appeal, 3 Wright 535 ; Hale r>. Henrie, 2 Watts 143 ; Kramer v. Arthurs, 7 Barr 165 ; Lancaster Bank v. Myley, 1 Harris 544; McDermott v. Laurence, 7 S. & R. 438 ; Ridgway’s Appeal, 3 Harris 177, approved; Abbott’s Appeal, 14 Wright 234, distinguished.
    November 3d 1871.
    Before Thompson, C. J.,' Bead, Asnew, Sharswood and Williams, JJ.
    Appeal from the decree of the District Court of Allegheny county: No. 78, to October and November Term 1871.
    The decree in the court below was in the distribution of the proceeds of the sale of real estate under,an execution against “ G. L. Ebbert and Ardel Maclind, partners trading as Ebbert & Maclind.” The sheriff returned the land sold for $2650, which was referred for distribution to D. T. Watson, Esq., as auditor.
    He reported that the defendants in the execution were partners in Allegheny county. On the 31st of March 1868, Andrew Kloman and Henry Phipps conveyed to “ Goddard L. Ebbert and Ardel Maclind” two lots of land adjoining their place of business : The grant was in the usual form: “ Do grant, bargain, sell * * * unto the party of the ^second part, their heirs and assigns * * * to have and to hold the said two described lots * * * unto tbe said party of the second part, their heirs and assigns,” &c. The lots were bought for partnership purposes; they were paid for by partnership property, being castings manufactured by the firm, and they were used for partnership purposes; but it nowhere appeared in the deed, nor could it be discovered in any way from it, that the lots were so paid for or so to be used.
    On the 15th of April 1870, G. L. Ebbert recovered a judgment for $1852.61 against his partner, Ardel Maclind, on a settlement of their partnership accounts.
    Ebbert before the auditor claimed that this judgment should be paid out of the proceeds of the lots, on the ground that the lots were partnership property, and this judgment was a partnership debt.
    The auditor decided that the judgment was a partnership debt, but that the lots being conveyed to the partners as tenants in common, could not, as to creditors, be shown by parol to be partnership property. He therefore refused to award to Ebberts anything on account of his judgment out of the fund for distribution.
    The court, after exceptions, confirmed the auditor’s report.
    Ebbert appealed to the Supreme Court, and assigned the decree of confirmation for error.

      M. A. Woodward, for appellant.
    As between the partners and their real and personal representatives, real estate, bought with partnership funds for partnership purposes, is to be treated as partnership and not individual property, although the partners do hold the legal title as tenants in common: Abbott’s Appeal, 14 Wright 234; Kramer v. Arthurs, 7 Barr 165. A judgment-creditor is not within the protection of the recording acts: Cover v. Black, 1 Id. 493; Rodgers v. Gibson, 4 Yeates 111; Heister v. Fortner, 2 Binn. 46; Britton’s Appeal, 9 Wright 176; Stewart v. Freeman, 10 Harris 120; Dougan v. Blocher, 12 Id. 28; Hale v. Henrie, 2 Watts 143; Ridgway, Budd & Co.’s Appeal, 3 Harris 177. The fact of purchase with partnership funds for partnership purposes is sufficient evidence that the land was partnership property: Abbott’s Appeal, Kramer v. Arthurs, supra; Dyer v. Clark, 5 Met. 562; Hoxie v. Carr, 1 Sum. 173; 3 Kent’s Com. 41, note; Parsons on Contracts 364, et seq.; Shryock v. Waggoner, 4 Casey 430; Fillman v. Divers, 7 Id. 429; Lancaster Bank v. Myley, 1 Harris 544.
    The ownership of the money which purchased, draws to itself the beneficial or equitable interest in the estate. And such equitable title, though resting in parol proof, is exempted from the Statute of Frauds and Perjuries: Edwards v. Edwards, 3 Wright 369; Beck v. Graybill, 4 Casey 66. In a purchase with partnership funds, although the deed be to the partners as tenants in common, a trust results to the firm as if the conveyance was to one partner: Erwin’s Appeal, 3 Wright 535; Moderwell v. Mullison, 9 Harris 257; Brightly’s Eq. 180; Kramer v. Arthurs, 7 Barr 165; Allison v. Wilson, 13 S. & R. 330; Morrow v. Brenizer, 2 Rawle 185; Sigourney v. Munn, 7 Conn. 11; Buchan v. Suman, 2 Barb. Ch. 165; Purce v. Triggs, 10 Leigh 406; Kendal v. Rider, 35 Barb. 100; Buffum v. Buffum, 49 Me. 108; Willis v. Freeman, 35 Vt. 44; Fowler v. Bailey, 14 Wis. 125; Dupuy v. Leavenworth, 17 Cal. 262; Lacy v. Waring, 26 Ala. 625; Holland v. Fuller, 13 Ind. 195; Collyer on Part. 127; Parsons on Part. 364, 346; Lynch v. Cox, 11 Harris 265.
    There was no paper-book for appellee.
   The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

We are pressed by the able argument for the appellant, and also by the doubt intimated by the auditor, to reverse this decree. But we cannot, without overruling a number of decisions heretofore made. The principle of stare decisis is too valuable, and the equity set up to overturn it too subtle to induce us to override so many cases. It is certainly determined, in a long train of decisions, that as to purchasers of the title and creditors having liens on it, a deed to persons who are in fact partners, but who take the title to themselves as tenants in common, must stand as the'foundation of their rights, and govern in the distribution of the proceeds of a sale of the title. Partnership creditors cannot by parol evidence change the effect of the deed, and convert lands so individually held into assets of the partnership, and thereby dislodge and postpone the otherwise preferred liens of individual creditors. The following decisions sustain these propositions : Hale v. Henrie, 2 Watts 143; McDermot v. Laurence, 7 S. & R. 438; Ridgway, Budd & Co.’s Appeal, 3 Harris 177; Kramer v. Arthurs, 7 Barr 170; Lancaster Bank v. Myley, 1 Harris 544; Cumming’s Appeal, 1 Casey 268; Erwin’s Appeal, 3 Wright 535. Reliance has been placed upon Abbott’s Appeal, 14 Id. 234. But in that case our Brother Read cites these cases without disapprobation, and distinguishes them from the case before him on the ground|that they related to pur-chasers and creditors, while the case he was determining was one between the partners themselves. The distinction is just, and was fitly taken in Abbott’s Appeal. As between the partners themselves, it is perfectly proper to infer a resulting trust for the firm, and to treat the, proceeds of the land as assets of the partnership, where it is clearly shown that they so regarded the title themselves, and had paid for it out of the partnership funds. But partners who take a deed in their individual right as tenants in common, stand in a very different relation to the public. Their act tends to mislead both purchasers and creditors trusting the apparent state of the title. It is unlike a resulting trust for* a third party, whom it would be a fraud to deprive of his estate. Hence the trust for him, if valid, will be protected against all persons, except when affected by the recording acts, or a want of notice. But partners being the owners of the money which pays for the title, have the power of directing its application to suit their own purposes, and can, if they choose, always secure the identity of its character in the kind of title they take for it. If, therefore, they take the title to themselves as tenants in common, instead of as partners, they by their own election stamp the character of the title taken as to those who afterwards deal with them. Hence it is that Judge Sergeant, in Hale v. Henrie, puts the case in part on the ground that it would be contrary to the Statute of Frauds, in stamping a character on the title inconsistent with that appearing on the deed and record, to the prejudice of third persons. He refers to the recording acts also, but evidently in view only of their spirit, which forbids secret conveyances. It is contended by the appellant that a creditor is not within the recording acts, and not entitled to notice of the true character of the title, and cites for this Rodgers v. Gibson, 4 Yeates 111; Lessee of Heister v. Fortner, 2 Binn. 46; Cover v. Black, 1 Barr 498, and Beilton’s Appeal, 9 Wright 176. It is true, that the recording acts extend only to purchasers and mortgagees, and their effect is to defeat an unrecorded deed as to subsequent purchasers and mortgagees without notice of it, while [a creditor is not protected against the unrecorded deed, but must stand on the title as it was in fact when his lien attached. This is very different, however, from the use of parol evidence to alter the effect of the deed itself which displays the title. To alter a deed so as to make it of different import, offends against the spirit of all those laws made to protect the public against fraud and secret titles, and prevent a change of right to the prejudice of those who deal upon the apparent legal operation of the instrument. The covinous character of the change in the title in such case is of a kind with that forbidden by the statutes of 13 and 27 Elizabeth, and the Statute against Frauds and Perjuries. Of the merits of the debts of the respective claimants in this case we know nothing ; but it is very clear that honest creditors, who are led to give credit to the individual partners on the apparent state of the title in them individually, ought not to be met afterwards by a uhange of face in the deed by which it takes a partnership aspect contrary to its terms.

Before leaving this ease, we must express our disapprobation of the omission to give us a paper-book on part of the appellee. Under the influence of the able argument and array of authorities presented by the appellant, the appellee was in danger of a reversal of his decree. The pressure of business upon this bench demands all the aid we can receive from counsel, who owe a duty to their client and to the court to furnish an argument and all the authorities within reach.

Decree affirmed, with costs.


text:
    Peck et al. versus Jones.
    1. An affidavit of defence should aver distinctly every fact necessary to constitute a defence; nothing should be left to inference.
    2. When land is sold with general warranty, the opening of a public highway in virtue of eminent domain, is not an eviction which will entitle the vendee to maintain an action for breach of the covenant.
    3. A defect or encumbrance not known to the vendee when he accepts the deed, is a defence to a bond for purchase-money, although there be a general warranty.
    4. Knowledge or ignorance of an encumbrance, or of a defect not appearing on the face of the title, is immaterial.
    5. In an action on an agreement of sale, the vendee cannot defalk from the purchase-money on account of a public road upon land which the owner covenanted to sell and convey.
    6. Peterson v. Arthurs, 9 Watts 152, adopted.
    November 4th 1871.
    Before Thompson, C. J., Bead, Agnew, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 27.
    This was a scire facias sur mortgage, issued July 8th 1870 by Thomas Jones against John Peck and others.
    The mortgage was dated June 1st 1866, to secure the payment of $1000, part of the purchase-money of a lot of 5| acres of land purchased from the plaintiff by the defendants. The defendants filed an affidavit of defence, viz.:—
    “ The defendants purchased the grounds covered by said mortgage, from plaintiff for the purposes of a cemetery, and made that fact known to plaintiff. Plaintiff made to defendants a general warranty deed for said lands, bearing the same date as said mortgage, and defendants gave said mortgage for the unpaid purchase-money. Defendants then procured a charter of incorporation at November Term, Court of Common Pleas of said county, and, in pursuance of their original purpose, and as a corporation, have sold lots for burial purposes, and such lots have been since used for said purpose. Within a short time past, defendants learned that a street, called Bedford avenue, had been laid out, over said grounds, in 1840, and they, defendants, have received notice from the city engineer, that the city of Pittsburg, within whose territory said cemetery grounds are situated (being formerly in Pitt township, hut, since consolidation, in the city), is about to open said Bedford avenue, over and through said cemetery grounds, and is taking steps toward doing so, having served notice, &c., of such intention upon defendants. Defendants say, that the opening of said Bedford avenue over their grounds would destroy them for cemetery purposes, and they are advised, and believe that said Bedford avenue was and is an easement and encumbrance, against which the said general warranty deed of plaintiff provided. And they say that if said street should be opened over their grounds, that the damage and injury they would thereby sustain would and will greatly exceed the amount claimed in this suit; and further 'say not.”
    The court entered judgment against the defendants for $1146.24 for want of a sufficient affidavit of defence.
    The defendants took out a writ of error, and assigned for error the entering of the judgment.

      T. M. Bayne (with whom was A. M. Brown), for plaintiffs in error,
    cited Kellogg v. Ingersoll, 2 Mass. 97; Rawle on Cov. for Title 118; Patterson v. Arthurs, 9 Watts 152; Dobbins v. Brown, 2 Jones 75.

      C. C. Taylor (with whom was E. P. Jones), for defendants in error,
    cited Wilson v. Cochran, 10 Wright 229; Rawle on Cov. for Title 83; Knepper v. Kurtz, 8 P. F. Smith 480; Kincaid’s Appeal, 16 Id. 411; Furman St., 17 Wend. 649; Philips v. Scott, 2 Watts 318.
   The opinion of the court was delivered, November 8th 1871, by

Sharswood, J.

An affidavit of defence, which is required by law or rule of court, to set out the nature and character of the same, ought to aver distinctly either upon knowledge or information and belief, every fact necessary to constitute a defence. Nothing should be left to mere inference. The affidavit in this case does not for this reason sustain the contention of the plaintiffs in error. It does not allege that the plaintiff below knew at the time of the contract of sale of the lot, the fact that Bedford avenue as laid out in the recorded general plan of the district, passed over it, or that he concealed that fact from the defendants. There is no greater presumption that he knew it than that they knew it. The 'record in the public office was open to the inspection of all who might have an interest in it. Indeed the affidavit does not allege •except inferentially that the defendants were ignorant of it. They say merely that within a short time past they have learned the fact, but that might well be though they were told it at the time. 'That they were not informed of it before is a mere inference. There is then absolutely nothing upon which to base the argument drawn from the intentional concealment by the vendor of a material fact from ignorant vendees.

We have then the bare case of a sale of a lot of ground in a district, of which there is a public recorded plan, accessible to everybody, upon which a street is laid out but not yet opened, which will pass over the lot. That the actual opening of a public street or highway in virtue of the eminent domain of the state, would not be such an eviction as to entitle the vendee to maintain an action for the breach of his covenant of general warranty, is conclusively settled by the judgment of this court in Dobbins v. Brown, 2 Jones 75. On what principle then can it be a good defence to an action for the purchase-money? In England, after the execution of the conveyance, the purchaser, in case of a defect of title subsequently coming to light, is thrown exclusively upon his covenants, and cannot detain any part of the purchase-money to compensate it. Of course on his covenants of general or special warranty he has no remedy until an actual eviction ; which is one reason why the covenant that the grantor is seised in fee simple clear of encumbrances, is generally used in that country. But in Pennsylvania nothing is better settled than that a defect or encumbrance upon land not known to the vendee when he accepted the conveyance of it, may be set up as a defence to the payment of a bond given for the purchase-money, although the deed contains a covenant of general warranty: Roland v. Miller, 3 W. & S. 390. Indeed it was afterwards held in Wolbert v. Lucas, 10 Barr 73, that a purchaser who has received his deed, and given a mortgage for the purchase-money, may deduct therefrom encumbrances known to him at the time he made the contract — the previous ease of Lighty v. Shorb, 3 Penna. 447, which was supposed to establish a different doctrine, being confined, as was said in Wolbert v. Lucas, to defects appearing on the face of the title. Knowledge or ignorance of an encumbrance or a defect not appearing on the face of the title, is therefore now immaterial. The case of Patterson v. Arthurs, 9 Watts 152, then expressly decides that a public road upon lots of ground which the owner had covenanted to sell and convey, is not such an encumbrance as will entitle the vendee to defalk from the amount of the purchase-money, in an action of covenant upon the agreement of sale.

It may be true, as Mr. Justice Kennedy, who was perhaps rather fond of obiter dicta, says in that case, “ that if a person purchase land, without having seen it, upon the representation of the vendor, where its value is materially lessened by a public highway being located upon it, which circumstance is concealed or not made known by the seller to the purchaser, the latter might obtain redress by an action on the case in the nature of a deceit, or in an action brought against him for the purchase-money, might have compensation made by a deduction therefrom. But it will lie upon him, before he can claim compensation on such account, to remove, by the proof of circumstances at least, the presumption that he knew of the existence of the highway at the time he bought, and that the seller concealed it from or did not disclose it to him.” But as we have seen, there is nothing appearing on the face of the affidavit of defence in this case to raise the question thus mooted by Mr. Justice Kennedy.

Judgment affirmed.


text:
    Fairbanks versus Kerr & Smith.
    1. As a general rule, one is answerable for the consequences of his fault
    only so far as they are natural and proximate, and may therefore be foreseen by ordinary forecast: not for those arising from a conjunction of his fault with circumstances of an extraordinary nature.
    2. A man mounted a pile of flagstones in a street to make a public speech; a crowd of hearers gathered about him, some of whom also got on the stones and broke them. Held, it was not a legal conclusion that the speaker was liable for the breaking of the stone by the bystanders.
    3. It was a question for the jury, whether the defendant’s making the speech in the street was the proximate or remote cause of the injury.,
    4. Making a speech in the street is not per se a nuisance.
    5. The maxim causa próxima, non remota spectatur, discussed and illustrated.
    6. Fleming v. Beck, 12 Wright 309 ; McGrew v. Stone, 3 P. F. Smith 436, remarked on.
    November — 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1871, No. 215.
    This was an action on the case brought, May 2d 1868, by John D. Kerr and Christian Smith against C. A. Fairbanks.
    The facts on which the action was founded are the following:— The evidence was not in the paper-book.
    On April 27th 1868, the plaintiffs below had a contract to pave the side-walk in the town of New Castle, with flag-stones, and had provided flag-stones for that purpose. These stones were placed in the public street near the curbstone in three or four piles; each pile containing eight or ten stones laid one on the top of another, but with the ends of some of them projecting beyond the stones below and unsupported.
    On the same day the defendant, C. A. Fairbanks, standing on one of the stones projecting from the end of one of the piles, commenced making a speech. No persons were near him when he commenced; but people attracted by his speaking, gathered on the street around him, and as he continued, a crowd collected, and persons from the crowd, without any direction or invitation from the defendant, got upon the pile of stones where he was standing, and also on the other piles in considerable numbers, and some five or six of these persons from the crowd standing on the end of one of the stones which projected beyond the one below it and was unsupported, broke it; and the unsupported end falling on a stone beneath, it, with the weight of the persons on it, broke that stone also. The defendant, Fairbanks, was not on either of the stones broken, but was on another of the piles a few feet distant. This suit was brought to recover the value of the stones so broken.
    The defendant submitted these points:—
    4. If the jury believe that the defendant was simply making a speech in an orderly and peaceable manner, and that the persons who collected to hear the speech, without any direction or request of the defendant, got upon the stones and thereby broke them, the defendant is not responsible.
    5. If the evidence in this case be believed, the breaking of the stones is too remote a consequence for the plaintiffs to recover.
    The court charged:—
    “ * * * Does the evidence satisfy the jury that the plaintiffs were contractors at the time engaged in constructing a stone pavement for the owners of the bank building ? If so, they had a right to place their materials for that purpose upon the public street to that extent and no more, that was necessary for that purpose; impeding the public use of the street for the purpose of travel no more than reasonably and fairly occupied, or became necessary to enable them so to do, and are not responsible for such, and would not be wrongdoers in so doing.
    “ The extent of this use, is one entirely for you to determine. Every case must be judged of from its own nature and the character of the materials being used and are necessary to accomplish the purpose; not so using the same to a greater extent, and for a longer period, than necessary to construct the pavément.
    “ It is claimed by the defendant he was not the proximate cause of the injury to the plaintiffs; and the plaintiffs claim that he was the propelling power which produced the result,’either by his own weight upon the flag-stones, or in making a speech on the public street which gathered around him a crowd of persons who took possession of the plaintiffs’ property, whose weight thereon produced the injury. And we have had quite an elaborate discussion upon the question.
    “We understand a proximate cause is one which is a first and direct power producing the result. By a remote cause is one removed from the direct cause and may be called a secondary cause, not the propelling power in the first instance.
    “ Your inquiry will then be, was there such injury done as claimed by the plaintiffs ? If so, was the defendant upon the stone with others at the time it was injured ? If he was, he would be directly responsible for the act, and the remedy would be trespass vi et armis for the direct injury.
    “ [If, however, he was not upon the stone himself which was broken, but by others who gathered around him; collected together by the act of the defendant in making the speech in the street, who at the time had taken possession of the plaintiffs’ property, and by their combined weight produced the injury, he would be responsible in an action on the case for consequential damages, which action the plaintiffs have brought in this case.]”
    The points were answered as follows:—
    “ 4. This depends upon whether he was rightfully in the position as to the property of the plaintiffs to make the speech. He would not be responsible for the result of the action of others for merely making the speech. But if he commenced to make his speech by taking the possession of the property of the plaintiffs then in the public street, and thereby attracted the attention of a number of persons who also got upon the said property, and thereby placing more weight on it than the flag-stones would bear; and while so engaged the injury resulted to the plaintiffs, the defendant would be liable for the result of the injury produced to the plaintiffs in this case.
    “ 5. This is a question of fact for the jury to determine from the evidence in the case before them, under the instructions we have given them as to the difference between proximate and remote cause, as applicable to the injury complained of and shown by the proof to the property of the plaintiffs,”
    The verdict was for the plaintiffs for $56.40.
    The defendant took out a writ of error, and assigned the answers to the points and the part of the charge in brackets for error.

      D. 8. Morris, J. McMichael and D. B. Kurtz, for plaintiff in error.

      R. B. McComb, for defendants in error.
   The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

Kerr & Smith, the plaintiffs below, were contractors for laying a pavement of flag-stones. They laid up several piles of stones in the street along the curbstone, ready to begin work. The defendant Fairbanks got upon one of these piles, and began to make a political speech. A crowd gathered around, and some of the bystanders mounted another one of the piles, and by their weight caused several of the stones to crack and break. Kerr & Smith sued Fairbanks for this injury. There was no evidence that Fairbanks requested, or in anywise induced these bystanders to stand upon the pile, excepting so far as his speech drew them together, and they mounted the pile to hear and see more conveniently. The court below held that if the persons, whose combined weight broke down the stones, were collected together by the act of the defendant in making the speech in the street, he would be responsible in an action on the case for the consequential damages. This instruction was not qualified. The court told the jury that a proximate cause is one which is a first and direct power producing the result, and a remote cause is one removed from the direct, and may be called the secondary cause; but said nothing upon the character of the act which caused the injury, and gave no instruction to ascertain whether this act was a natural or probable consequence of making the speech in the street, or one which might have been readily foreseen by the defendant. In effect, such an unqualified instruction would expose the defendant to all the consequences of his street-speech— the accidental and even the wilful acts of the .bystanders gathered there by it, as well as the natural and probable consequences which he might have foreseen. Thus, if one of the crowd should by accident thrust his elbow through a window-pane, or inadvertently tread upon and break an article of show beside a do'or, or even if one had his pocket picked, the unfortunate speaker would be held liable for all these consequences of his speech. The court, therefore, really decided as a question of law a matter of fact properly belonging to the jury, to wit: that the mounting of the pile of stones by the bystanders was the natural and probable consequence of the speech in the street, which the defendant ought to have, or might have, foreseen. This was an error: the question was a fact dependent on all the circumstances. For example, had the second pile been two hundred feet or a square away from the speaker, no one could say that by any fair reasoning he might have expected such an accident to happen.

The maxim causa próxima non remota speclatur governs cases of this kind, and yet its application is not always easy. Many cases illustrate, but none define, what is an immediate or what is a remote cause. Indeed, such a cause seems to be incapable of any strict definition which will suit in every case. It was said in Morrison v. Davis & Co., 8 Harris 171, the general rule is, that a man is answerable for the consequences of a fault only so far as the same are natural and proximate, and .as may, on this account, be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances that are of an extraordinary nature. Of the first branch of this proposition, Scott v. Hunter, 10 Wright 192, is an illustration. Therefore a defendant who unnecessarily occupied the passageway to the locks of one of the dams of the Monongahela slack-water, from the afternoon of one day till the afternoon of the following day, holding the boats of the plaintiff into the stream, while it was rising rapidly, until the flood carried them over the dam, was held to be liable for the injury. The court below thought the flood was the proximate cause of the injury, and the occupancy of the access to the locks by the defendant was too remote; but this court reversed the judgment. The question whether the defendant ought not to have apprehended the danger to the plaintiff’s boats when the stream was rising rapidly was not submitted to the jury, and hence, said Mr. Justice Strong, here, we think, the court erred in assuming to decide as a matter of law that the wreck of the boats was not the natural consequence of the wrongful act of the defendant in blocking up the locks and channel of the river, and holding the boats of the plaintiff so long exposed to the force of the current. It was a natural consequence, he says, if it should have been foreseen, or if it would have been guarded against by men of ordinary prudence, using their own rights with proper regard to those of others. On the other hand, Morrison v. Davis & Co., supra, is an illustration of the second branch of the proposition. There the accident happened in consequence of the boat being overtaken and sunk by an extraordinary flood at Piper’s dam, on the Juniata, but which the boat would have passed safely had it not been delayed by the defendants using a lame horse. This court held that the proximate cause destroying the boat and cargo was the flood, and that the use of the lame horse which led to the unforeseen conjunction of the- happening of the flood and of the boats being at the dam at the same time, was too remote a cause to create a liability for the loss of the plaintiff’s goods. Doubtless the delay produced by using the lame horse was a cause pf the accident, but it was not a probable cause, for it could not be foreseen that it would unite with the flood at a place of danger to produce it. In McGrew v. Stone, 3 P. F. Smith 441, it was said by myself, as the result of the cases, that the maxim causa próxima non remota spectatur means but this: We are not to link together, as cause and effect, events having no probable connection in the mind, and which could not, by prudent circumspection and ordinary thought-*" fulness, be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which immediately caused the injury; but we are not justly called to suffer for it, unless the other event was the effect of our act, or was within the probable range of ordinary circumspection when engaged in the act. But when we are engaged in an act which the surrounding circumstances indicate may be dangerous to others or their interests, and when the event whose concurrence is necessary to make our act injurious, is one we can readily see may occur under the circumstances, and unite with the act to inflict an injury, we are culpable if we do not take all the care which prudent circumspection would suggest to avoid the injury.

This subject of near and remote consequences has been largely discussed by the present Chief Justice in the recent case of Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353. It is certain, he says, that in almost every considerable disaster, the result of human agency and dereliction of duty, a train of consequences generally ensues, and so ramify as more or less to affect the whole community. Indemnity cannot reach all these results, although parties suffer who are innocent of blame. In that case the railroad company was held not to be responsible for the ulterior consequences to other houses caused by the negligent burning of a warehouse on the line of their road from the sparks of one of their engines. In Fleming v. Beck, 12 Wright 313, remarks pertinent to this subject may be found. Among other things it was there said, that in strict logic it may be said that he who is the cause of loss should be answerable for all losses which flow from his causation. But in the practical workings of society the law finds in this, as in a variety of othér matters, that the rule of logic is impracticable and unjust. It is impossible to compensate for all losses, and the law, therefore, aims at a just discrimination which will impose upon the party causing them the proportion that a proper view of his acts and the attending circumstances would dictate.

In view of these principles it would be difficult to decide, as a legal conclusion, that the defendant is .liable for the breaking of the stones in question by the bystanders. It cannot be said with judicial certainty, that when he stopped to make his speech in the street he must have foreseen, as the natural and probable consequence of his'act, the persons collecting together to listen to him would mount the pile of stones, and even, if some of them would, that so many would as by their collected weight might break some of the stones. The lowermost stones in the pile were already trusted by the plaintiff with the weight of the uppermost. Height of pile, strength of grain, distance from the speaker, number of bystanders, and perhaps other circumstances, all would enter into the question of the probability of injury. The question was, therefore, one of fact for the jury, and not of law for the court.

Much stress was laid in the argument on the fact that the defendant was guilty of a nuisance, by collecting a crowd, and the case of Barker v. The Commonwealth, 7 Harris 412, is relied on. But, conceding that the defendant might have been indicted for a nuisance, it adds nothing to the civil injury complained of here. The question would still remain, whether the defendant’s making his speech in the street was the probable and proximate cause of the injury. The nuisance and the civil injury are different things. It was not because the crowd obstructed the highway, and was therefore a nuisance, that the plaintiffs’ stones were broken; but because some of the crowd mounted the pile of stones. But it cannot be conceded, in the broad sense in which it was contended, that making a speech in the street is ipso facto and y>er se a public nuisance. The indictment against Barker was for obstructing the streets of Pittsburg, through crowds collected by means of violent, loud and indecent language addressed to those passing by; and by this means collecting assemblages of men, boys, and idle, dissolute and disorderly persons. A street may not be used, in strictness of law, for public speaking: even preaching or public worship, or a pavement before another’s house may not be occupied to annoy him ; but it does not follow that every one who speaks or preaches in the street, or who happens to collect a crowd therein by other means, is therefore guilty of the indictable offence of nuisance. His act may become a nuisance by his obstruction of the public highway, but it will not do to say it is a nuisance per se. Such a stringent interpretation of the case of Barker is scarcely suited to the genius of our people or to the character of their institutions, and would lead to the repression of many usages of the people now tolerated as harmless, if not necessary. Those who draw crowds together in the street by window displays, music, .parades, and the like, might be made answerable for many misfortunes if the doctrine of nuisance be so extensive in its consequences.

Judgment reversed, and a venire facias de novo awarded. -