text:
    Daly et al. versus Commonwealth, to the use of Hackenburg.
    1. The commission of an auctioneer under the Acts of April 2d 1822 and April 9th 1859, does not necessarily expire at the end of one year, but may continue for at least three years without a renewal of his bond.
    2. Martin having applied for appointment as auctioneer, gave bond conditioned that he should perform all the duties of an auctioneer, &e., “ during the period he shall continue to act as auctioneer under the commission that may be granted him.” He was afterwards commissioned for one year. Held, that the liability of himself and sureties did not expire in one year, but continued while he acted as auctioneer.
    3. In a suit on an auctioneer’s bond for breach of its condition after the first year, but whilst he was acting as auctioneer, it was not necessary for plaintiff’s recovery to show that the auctioneer had paid the license fees for years subsequent to the first.
    4. The continuance of the auctioneer in the business was sufficient to support a suit on the bond.
    February 19tb 1874.
    Before Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 61, to July Term 1872.
    This was an action of debt on an auctioneer’s official bond, brought to the March Term 1871 of the court below by the Commonwealth to the use of W. B. Hackenburg against Thomas H. Martin, Henry M. Daly and John Daly.
    The bond was dated June 17th 1868 ; it was as follows:—
    “ Know all men by these presents: That we, Thomas H. Martin, John Daly and Henry M. Daly, are held and firmly bound unto the Commonwealth of Pennsylvania in the sum of $3000, lawful money, to be paid to the said Commonwealth, &e. * * *
    • ‘ Whereas, the said Thomas H. Martin has applied to the governor of this Commonwealth, to be appointed an auctioneer to make sales by auction, according to law, at any convenient place in the city of Philadelphia. The condition of this obligation is such, that if the above bounden Thomas H. Martin shall and does, well, truly and faithfully perform all the duties of an auctioneer, and pay all duties and taxes which may become due to the state, in consequence of his exercising the trade or occupation of an auctioneer, to the state treasurer; and shall from time to time faithfully account for and pay over to the authority aforesaid all public moneys which shall come to his hands during the period he shall continue to act as an auctioneer under the commission that may be granted to him, and accruing to the Commonwealth by reason of any duties and taxes that now are, or may be hereafter imposed on sales at auction, well and faithfully observing and performing the terms of payment, and all the duties required of him as an auctioneer directed and required by law, then the obligation to be void,” &c.
    .The Act of April 2d 1822, sect. 1, 7 Smith’s L. 593, provided, that upon a citizen of Pennsylvania, resident in Philadelphia, giving bond as therein provided, the governor shall issue to him a commission to make sales by auction according to law for the term of one year, his bond to be renewed every three years.
    Sect. 2, 1 Br. Purd. 105, pi. 15, provided, “for each succeeding year during which the holder of any commission shall continue to exercise the business of auctioneer, he shall pay in advance to the state treasurer a like sum to that which he paid in obtaining said commission,” &c.
    By the Act of 9th of April 1859, Pamph. L. 435, 1 Br. Purd. 102, &c., auctioneers in Philadelphia were distributed into five classes, each to give bond in different sums according to the amount of their sales respectively.
    The 12th section of this act, 1 Br. Purd. 105, pi. 12, enacted, that all former auction laws, or parts of law’s, relating to auctions and auctioneers in Philadelphia, conflicting with' the provisions of this act be and the same are hereby repealed.
    A commission, dated July 18th 1868, was issued to Martin, viz.:
    “ Reposing especial trust and confidence, &c., I have appointed you, the said Thomas H. Martin, to be an auctioneer of the fourth class, in and for the city of Philadelphia, to make sales by auction, &c. * * * You are therefore, by these presents, appointed and commissioned to be an auctioneer as aforesaid. To have and to hold the said office of auctioneer, together with all the rights, &c., for the term of one year, to be computed from the day of the date hereof, unless this appointment and commission shall be by me or other lawful authority superseded or annulled.”
    The cause was tried December 19th 1871, before Mitchell, J.
    Under objection and exception by the defendants W. B. Hackenburg testified that he had known Martin as an auctioneer for five or six years; his last place of business was704 Chestnut street; previously to that his place of business was in Chestnut street below Sixth. Whilst he was auctioneer witness had employed him to sell goods for him ; Martin sold the goods and witness received part of the money; there was a balance of $903.41 due him which he never had received.
    The court charged:—
    “ That the evidence was sufficient if they believed it to prove the facts necessary for a recovery by the plaintiff, and that if they believed the evidence they should find a verdict for the plaintiff for the amount claimed.”
    The verdict was for the Commonwealth for $3000 and for Hackenburg for $945.90.
    The defendants took out a writ of error and assigned for error the admission of Hackenburg’s testimony and the charge of the court.

      P. Archer, Jr., (with whom was T. J. Barger), for the plaintiffs in error.

      M. Sulzerherger and T. JR. JEleoeh, for defendant in error.
   The opinion of the court was delivered, February 24th 1874, by

Agnew, C. J.

—The learned judge of the District Court has shown satisfactorily that the commission of an auctioneer under the Acts of 2d of April 1822 and 9th of April 1859 does not necessarily expire at the end of one year and may continue for at least three years without a renewal of the bond. The condition of the bond is therefore not limited, and the sureties cannot claim exemption from liability on the ground that their suretyship is restricted to a year. The condition was that Martin should well and faithfully perform all the duties of an auctioneer, would pay all duties and taxes which may become due to the state in consequence of his exercising the trade or occupation of an auctioneer, and account for and pay over all public moneys which shall come to his hands during the period he shall continue to act as an auctioneer under the commission that may be granted to him, and finally, well and faithfully observing and performing the terms of payment, and all the duties required of him as an auctioneer, directed and required by law, &c. It is evident this condition did not restrict the liability of the obligors to any precise period, but extended it to all the time during which he continued in the trade or occupation of an auctioneer. The evidence shows that Martin continued in the business of an auctioneer, and was so acting when he sold the goods of the plaintiff at auction, and absconded with the proceeds, and that this was within the three years during which a renewal of the bond was not to be called for under the Act of 1822. This act is not repealed by the Act of 1859, in those respects in which it does not conflict with the latter. There is no reason, therefore, to hold that the bond expired with the first year of the commission, though the term named in the commission was one year, the intent of the law being to extend the term on payment of the license fee. Nor does the fact that there was no direct evidence of the payment of the license fee for the second and third years, defeat the plaintiff’s recovery. The continuance of Martin in the business of an auctioneer was sufficient evidence to support the action. If he failed to pay it, and yet held himself out to the public as a licensed auctioneer, and obtained credit as such, it was a fraud on th.e public and on the state, of which neither he nor his sureties could avail themselves. Having the power to continue to act under his commission, certainly for three years, without a renewal of his bond, he must be regarded as an auctioneer, in respect to the public who so consider and credit him. It would be an intolerable mischief if one having a lawful commission and a power to continue it by payment of the license fee, were to be exonerated from his bond, and his sureties discharged, by his mere omission to pay the license fee to the state treasurer, a matter unknown to the public. No one could be safe in employing him in the second and third years without an inquiry at the treasury department. The sureties were bound to know the law of his appointment, and that they were liable for the continuance of his occupation, as much as for its primary term ; and they cannot escape on the ground that he has omitted to perform one of the very duties for which they bound themselves, well and faithfully to perform the terms of payment and all the duties required of him as an auctioneer, directed and required by law.

Finding no error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    Wickersham’s Appeal.
    1. It is not obligatory on the register to send a precept to the Common Pleas, directing an issue to be formed upon facts touching the validity of a testamentary writing offered for probate.
    2. In the exercise of a sound legal discretion he may decide upon the matters of fact or direct an issue to the Common Pleas.
    3. On a proper request for a Register’s Court the register has no such discretion ; the requirements of the law are imperative whenever matters difficult to determine come before him.
    4. A register heard testimony, upon admitting a will to probate after a caveat; upon request for a Register’s Court, being of opinion that no difficult matter had come before him, he refused the request and decreed that the writing should be admitted to probate, and issued letters testamentary to the executor named in the writing. The Register’s Court on appeal decreed that the register’s decree be set aside and vacated the letters, and ordered the register to call a Register’s Court. Held to be error, that upon the appeal the merits of the case were before the Register’s Court, and they should have taken testimony and decided the difficult matters in the case.
    5. The Register’s Court had no power to order the register to call a Register’s Court and summarily to set aside the decree-of the register.
    February 19th 1874.
    Before' Agnew, C. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Register’s Court of Philadelphia: No. 45, to July Term 1872. In the matter of the probate, &c., of the will of Eliza C. Wickersham, deceased.
    On the 13th of September 1871, Morris S. Wickersham, by his attorney, Samuel Hood, Esq., filed with the register of wills, &c., of Philadelphia, a caveat to the will of Eliza C. Wickersham, deceased. On the 28th of the same month, a paper writing purporting to be the will of Eliza C. Wickersham, was presented to the register for probate. On that day the testimony of the subscribing witnesses was taken.
    The testimony of the subscribing witnesses was further taken by the register on different days, from October 3d 1871, to November 20th 1871. On the 20th of December 1871, Morris S. Wickersham and Samuel M. Wickersham filed their request in writing that the register would appoint a Register’s Court. Testimony of the subscribing witnesses Ayas afterAYards taken on cross-examination from time to time, until January 31st 1872, when the register declined to hear any more testimony of the subscribing witnesses.
    On the 2d of February 1872, the register delivered the following opinion and decree:—
    * * * “ The request for a precept to the Court of Common Pleas, directing an issue to be formed for the purpose before mentioned, is not complied with, because there is no conflict of evidence before the register, and he is clear in his opinion that the court would not permit a verdict against the will to stand upon the testimony before him; they would not permit a judgment to be signed upon such a verdict if rendered, and it would therefore be improper to put the estate and the parties in interest to the expense of a trial, which in his opinion would be without results. Having disposed of the application, it only remains to determine the question of the admission or rejection of the said paper"writing to probate, which the register proceeds to do by the entry of the following decree: ‘ And now, it is ordered and decreed that the said paper writing be and is hereby admitted to probate as the last will and testament of Eliza C. Wickersham, deceased, and that letters testamentary be granted thereon to Cadwalader Wicker-sham, the executor therein named.’ ”
    On February 2d 1872, Morris S. Wickersham and Samuel M. Wickersham appealed from the decree of the register to the Register’s Court, and gave notice to the register not to grant letters testamentary to Cadwalader Wickersham until the decision of the Register’s Court has been made in the matter of the appeal.
    On the 4th of May 1872, the Register’s Court “ordered that the order and decree of the register of wills, entered by him on the 2d day of February 1872, be set aside, and the letters testamentary then granted to Cadwalader Wickersham be revoked; that all acts and orders made by the register in said matter, after the request made by the caveator of the register to appoint a Register’s Court, are vacated and set aside; that the register forthwith appoint a Register’s Court.”
    Cadwalader Wickersham appealed to the Supreme Court, and assigned for error—
    1. The revoking of the letters testamentary issued by the register to him.
    2. Not dismissing the caveator’s appeal from the register.

      D. W. Sellers and Gr. W. Biddle, for appellants,
    referred to Act of March 15th 1832, sects. 5, 7, 8, 13, 25, 31, 41, Pamph. L. 135, 2 Br. Purd. 1253 et seq., pi. 5,19, 20, 22; 1 Id. 405 et seq., pi. 2, 3, 8. Under the provisions of these sections the register may proceed to judgment where there are no questions disputable and difficult on the testimony of the subscribing witnesses: Estate of Herron, 6 Phila. R. 86; Cozzens’s Will, 11 P. F. Smith 196.

      S. Hood and N. M. Phillips (with whom was G. Northrop), for appellees,
    cited Winpenny’s Appeal, 21 P. F. Smith 405.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

It is not obligatory upon the register to issue a precept to the Court of Common Pleas, directing an issue to be formed upon the facts touching the validity of a testamentary writing offered for probate. The language, “it shall be lawful,” contained in the thirteenth section of the Act of 15th April 1832, Purd. Dig. 406, pi. 8, is not mandatory upon the register. It does not take from him the exercise of a sound legal discretion. In the exercise of that discretion he may determine whether he will decide upon the matters of fact, or will direct the desired issue to the Common Pleas: Wikoff’s Appeal, 3 Harris 281; Cozzens’s Will, 11 P. F. Smith 196; Commonwealth ex rel. Winpenny v. Bunn, 21 Id. 405.

Upon a proper request for a Register’s Court, the register has no such discretion. The twenty-fifth section of said act, Purd. Dig. 1255, pi. 20, declares, “where objections are made, or a caveat is entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid; or where objections are made to the granting of letters of administration to any person applying therefor; or where any questions of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of any person interested, appoint a Register’s Court for the decision thereof.” The word shall” is imperative upon the register, whenever disputed facts, involving matters difficult to determine, come before him for decision: Commonwealth ex rel. Winpenny v. Bunn, supra.

It is shown that much testimony was taken both before and after the request was made for a Register’s Court. Finally'the register declined to hear any more. Concluding that no difficult matter had come into controversy before him, so as to require the assistance of the court, he refused to call a Register’s Court. He thereupon proceeded and decreed that the instrument be admitted to probate, and that letters testamentary thereon be issued to the appellant, the executor therein named. From that decree the caveators appealed to the Register’s Court.

Instead of proceeding to hear the case upon its merits, in the usual and proper manner, the Register’s Court ordered and decreed that the aforesaid decree of the register be set aside; that the letters issued to the appellant be revoked; that all acts and orders made by the register after the request made by the caveator to the register to appoint a Register’s Court, be vacated, and that the register forthwith appoint a Register’s Court.

In so decreeing, we think the court erred. Conceding that upon the facts shown before the register, he ought to have called a Register’s Court, yet the court wholly mistook its own powers.

It was not reviewing the record of the register upon a certiorari or writ of error; nor was it hearing the case upon a bill in equity. It has not the general powers of a court of equity. It must proceed under and according to the statute. It had no power to order the register to call a Register’s Court; nor, in the summary manner in which it acted, to set aside any decree made by the register. Under the appeal, the merits of the case were before it. Its duty was to take the testimony in writing, and make the same a part of the record therein, and upon this testimony so taken, to render a decision on the disputable and difficult matters arising in the case.

The decree of the Register’s Court must therefore be reversed, and the case be sent back for trial upon its merits.

Decree reversed. And now it is ordered that the Register’s Court proceed to hear and determine the appeal on the merits of the case; and that in the meantime, and until otherwise decreed, the appellant, Cadwalader Wicker-sham, be reinstated in all his rights, powers, duties and obligations as executor of said will, and that the appellees pay the costs of this appeal.


author: Ag-new, C. J.

text:
    De Haven’s Appeal.
    1. An issue is of right, under Act of March 15th 1832, sect. 41, whenever a dispute arises before the Register’s Court, about a fact which is material to the subject in controversy.
    2. The Supreme Court will not reverse the decision of the Register’s Court in refusing an issue after hearing the testimony, if the lower court would have been bound to set aside a verdict as contrary to the manifest weight of evidence.
    3. Cozzen’s Appeal, 11 P. F. Smith 196.; Graham’s Appeal, 11 P. F. Smith 43, followed.
    February 20th 1874.
    Before Agnew, 0. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Register’s Court of Philadelphia: No. 84, to July Term 1872.
    The proceedings in this case were upon admitting to probate a paper writing, dated September 2d, 1859, purporting to be the will of Sophia De Haven, deceased, and also another dated April 2d 1861, a codicil to the will.
    On the 31st of May 1869, the register admitted these papers to be proved, and issued letters testamentary to Emma D. Hampton and Hugh De Haven, Jr., the executors named in the will.
    On the 2d of June 1869, Hugh De Haven and Charles E. De Haven, sons of the decedent, appealed from the decree of the register.
    The appellants, after their appeal, presented a petition to the Register’s Court, representing that they had appealed and “ that in said appeal and the proceedings thereon a dispute upon a matter of fact has arisen, viz.: whether the said paper writings were the last will and testament of said Sophia De Haven; and your petitioners allege that said paper writings are not her last will and testament, for two reasons, viz.:—
    “1. That she was not of sufficient legal capacity at the time of the execution of said paper writings, or either of 'them, to make a valid will and testament.

      “2. Because she was induced to make said paper writings by the undue influence of her daughter, Mrs. Emma D. Hampton, to whom, in and by said paper writing, property was devised and bequeathed largely in excess of what was devised and bequeathed to her brothers, the appellants. Your petitioners therefore pray the court to direct a precept for an issue to the Court of Common Pleas for the city and county of Philadelphia, for the trial of said disputed matter of fact.”
    The Register’s Court appointed an examiner, who took a large amount of testimony on the questions of fact raised by the petition for the issue.
    After the coming in of the examiner’s report, the Register’s Court, May 11th 1872, refused the issue and dismissed the appeal.
    Hugh De Haven and Charles E. De Haven appealed to the Supreme Court, and assigned for error:—
    1. The court erred in refusing the issue prayed for.
    2. The court erred in deciding, in effect, that there was no sufficient evidence to be left to the jury on the questions of testamentary capacity and undue influence.
    3. The court erred in deciding, in effect, that there was no evidence on which the jury could decide against the validity of the paper writings alleged to be’ the last will and testament of said Sophia De Haven on the issue devisavit vel non.

    4. The court erred in dismissing the appeal.

      J. H. Grendell and H. S. Miller, for appellants.
    If the facts in dispute are material the Register’s Court is bound to award an issue if requested: Cozzen’s Will, 11 P. F. Smith 196; Baxter’s Appeal, 1 Brewster’s R. 459; Bradford’s Will, 1 Parsons 157.

      S. Dickson and J. C. Bullitt, for appellees.
    Unless the evidence would sustain a verdict an issue is not of right: Wikoff’s Appeal, 3 Harris 281; Graham’s Appeal, 11 P. F. Smith 43.
   The opinion of the court was delivered, March 9th 1874, by

Ag-new, C. J.

This case is an unsuccessful attempt to convert physical weakness and mental distress into imbecility of mind, and to extract undue influence over the judgment and will of a parent, from filial affection and devotion to the parent’s welfare and happiness. Mrs. Sophia De Haven’s husband was an invalid for years, and for months before his death a bedridden sufferer. Some of her sons were irregular in life, and disposed to draw heavily upon her purse. She, the wife and mother, whose will is in controversy, was a woman of great sensibility, quick in feelings, and ardent in affection. In prosperity she was lively and pleasant, and happy while the current of life ran smoothly; but in affliction she became nervous, excitable, despondent, and full of tears. Owing to the long-continued sickness, suffering, and death of her husband, the misery arising from her sons, and the death of John, she frequently gave way to grief, and became unable to control her feelings; and was seized with hysteria of the most marked and distressing character. During this gloomy period of her life, it caused her to cry and laugh in the same instant, and to the unthinking to appear to be beside herself. Under such circumstances it was not difficult to find persons ready to believe Mrs. De Haven’s mind had become unsettled, and to form opinions of her unsoundness founded on these exhibitions of distress and hysteria. These opinions form the principal staple of the case of the appellants; while facts of a distinct and convincing kind are entirely wanting. On the other hand, the proof of Mrs. De Haven’s competency, not only to make a proper distribution of her property by will, but to direct, and conduct her affairs, so far as not prevented by bodily infirmity, is overwhelming. Not only was she able to furnish instructions for her will, but she actually visited the office of her adviser and scrivener alone, and executed the codicil there under circumstances to evince both ability and purpose of mind. Her testamentary acts were not done upon a sick or dying bed, were not the products of a wandering and sinking intellect, but were executed with full purpose and resolution in 1859 and 1861, years before her death, and before that paralysis, in 1865, which finally broke down her intellect and in two years brought her to the grave. From 1859 until 1865, facts of the strongest character evince her knowledge of business, and disposing power — acts of deliberation and thoughtfulness in contracting liabilities, conveying property and receiving and paying out money, calculated to arrest attention and demand the scrutiny of those with whom she dealt, had there been anything of the disability imputed to her by those who now contest her will. The contestants themselves were parties to some of these transactions, joining in and receiving deeds, making notes, paying money, and acting as men having not the slightest doubt of her capacity. •In one transaction for the accommodation of Kay & De Haven, she gave more than eighty notes, until in 1865, her decaying powers made it necessary to desist calling upon her. So she received the rents from her tenants monthly, and gave receipts without number. Altogether, the facts proving her soundness of mind are so overwhelming, and the opinions to the contrary so unfounded, no court would suffer a verdict against the will to stand for a moment.

The evidence of undue influence by Mrs. Hampton over Mrs. De Haven’s mind, is equally weak. There is not a fact in evidence having any weight. The evidence is conclusive that the provision she made for her daughter, Mrs. Hampton, was long contemplated and believed to be due to her, because of the inequality between the provision for her and that for the sons, in the will of her husband. When, added to this, Mrs. Hampton took upon herself the management of her household affairs and attention to her business, while in her season of distress and suffering; and by her love and regard, and those attentions which a daughter devoted to her mother only can render, brought back to her comparative happiness and comfort, we cannot wonder that Mrs. De Haven felt it a duty to provide liberally for such a daughter. Yet in doing this, she did not forget her sons. Though grieved by what she deemed their errors, she remembered them in her will in a manner to indicate it was not a nominal recollection, that thinks to deprive, but a thoughtful remembrance, which gives liberally according to desert. , Upon the whole, we find no ground upon which a verdict against the will, had an issue been granted, would be permitted to stand.

This brings us to consider the question upon refusing the issue by the Register’s Court. Under the 41st section of the Act of 15th March 1832, an issue is of right whenever a dispute upon a matter of fact arises before the Register’s Court. But the fact must be material to the subject of controversy, a substantial matter of dispute necessary to be determined before a decision can be reached. It cannot be denied that the petition for an issue, in this case, set forth material facts to be decided, before Mrs. De Haven’s will could be admitted..to probate, to wit: wantvof legal capacity to make a will, and undue influence on part of Mrs. Hampton, and an issue was demandable of right to try these facts. But after the refusal of the issue, the parties having gone into the entire evidence, and each having been fully heard, the case being before us on appeal, we must look at it as we always do, to see whether any substantial injustice has been done before we send it back for a rehearing. Certainly we ought not to reverse if the court below would have been bound to set aside the verdict as contrary to the manifest weight of the evidence.' Of what use would it be if the case can be decided in but one way ? As remarked by Chief Justice Black in Knight’s Appeal, 7 Harris 493, a mere naked allegation without evidence or against the evidence cannot create a dispute within the meaning of the law. This was said in a distribution case under a sheriff’s sale, where the issue is of .right. More to the point is Dean v. Fuller, 4 Wright 474, where an attempt was made to set aside a deed on the ground that the grantee had procured it when the grantor was weighed down by grief at the loss of his wife, and, by reason of weakness of mind and body, caused by constant watching and anxiety during her sickness as well as by his advanced age (over eighty years), the grantee was enabled to overreach him. There Justice Thompson said, that after carefully considering the evidence, we think it is entirely insufficient on any ground claimed for it, and asks the pertinent question,, why refer insufficient evidence to the jury ? It is now especially true, since we hold that a mere spark of evidence is not sufficient to carry a caseto the jury. The doctrine as to issues from the Register’s Court, is well settled in Graham’s Appeal, 11 P. F. Smith 43, to which may be added Cozzens’s Will, Id. 196.

Upon the whole case, we find nothing to contest, and the decree of the Register’s Court is affirmed with costs, and the appeal dismissed and the record ordered to be remitted to the Register’s Court, for further proceedings, if any be necessary.


author: Williams, J.

text:
    McDermott versus McIlwain.
    1. Jurisdiction in a justice under the Act of April 3d 1830 (Landlord and Tenant), will not be presumed, it must be affirmatively shown by the record.
    2. In such proceedings the record must show the term for which the premises were demised.
    3. The complaint is the basis of the proceedings ; it should set out all the facts essential to the jurisdiction of the justice.
    4. The Act of 1830 does not authorize proceedings against a tenant for life or ground-tenant in fee for non-payment of rent.
    February 24th 1874.
    Before Agnew, C. J., Williams, Mercur aud Gordon, JJ.' Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia : Of July Term 1872, No. 113.
    This was a proceeding under the Act of April 3d 1830 (Landlord and Tenant), Pamph. L. 181, 2 Br. Purd. 882; commenced before an alderman of Philadelphia, by Catharine Mcllwain, executrix and devisee, &c., of James Rafferty landlord,, and as agent of M. A. Kane,against Patrick McDermott.
    The complaint was as follows, viz.:—

      “ On the thirtieth day of April, A. D. one thousand eight hundred and seventy-two, before me, one of the aldermen of the city of Philadelphia, personally appeared Catharine Mcllwain, who, being duly sworn according to law, saith: That she is sole executrix of, and devisee under, the last will and testament of James Rafferty, deceased, and agent for M. A. Kane; that she demised a certain tenement, situate No. 940 Passyunk avenue, in the city of Philadelphia, to Patrick McDermott, reserving rent; that the rent so reserved is in arrear and unpaid; that there are not sufficient goods and chattels on the said premises to pay and satisfy the rent due, except such as are by law exempt from levy and sale, and that the said Patrick McDermott has (after being notified to quit the said premises within fifteen days from the date and service of said notice) refused to render and deliver up possession of the said demised premises.
    her
    Catharine M MoIlwain,
    mark. Executrix, &c.
    “ Subscribed, sworn to, and acknowledged before me the day and year first above written. Witness my hand and official seal this thirtieth day of April, A. D. 1872. James Hacan) alderman.”
    The justice’s record, after stating the complaint, the several hearings, &c., proceeds:—
    “May 15th 1872, at 9 o clock, A. M. Plaintiff and defendant appear; whereupon, after hearing the witnesses and parties, it appearing to the alderman that the complaint made in this case is in all particulars just and true, judgment is entered publicly against the said Patrick McDermott, that he deliver actual possession of the said premises to the landlord; and it is ascertained that the amount of rent due before the date of the notice to quit and service thereof, is seventy-two dollars.”
    The defendant removed the record by certiorari to the Court of Common Pleas, where he filed, amongst others, these exceptions :
    Because the record and complaint do not set forth or show the time when said alleged demise was made.
    Because the record and complaint do not set'forth or show whether said alleged demise was for a year, at will, or otherwise.
    In not setting forth in the complaint that said alleged demise was for a year, at will, or otherwise.
    Because the record does not set forth the nature, kind and amount of rent reserved, and when and to whom payable.
    The Court of Common Pleas (Paxson, J.) overruled the exceptions, and affirmed the proceedings of the justice. The tenant removed the record to the Supreme Court. He there assigned for error the overruling of his exceptions, and the affirmance of the magistrate’s proceedings.

      E. B. Watson, for plaintiff in error.
    It must appear on the justice’s record that he had jurisdiction: McGee v. Fessler, 1 Penna. R. 126 ; Blashford v. Duncan, 2 S. & R. 480; Shaffer v. Sutton, 5 Binn. 228; Freytag v. Anderson, 1 Ashmead 100; Fahnestock v. Faustenauer, 5 S. & R. 174; Logan v. Herron, 8 Id. 459; Cooke v. Reinhart, 1 Rawle 322; McMullin v. McCreary, 4 P. F. Smith 230.

      E. M. Hunt, for defendant in error.
    Substantial conformity to the act is all that is required : Buchanan v. Baxter, 17 P. F. Smith 350.
   The opinion of the court was delivered, May 11th 1874, by

Williams, J.

If the alderman had jurisdiction of the proceedings in this case, the Common Pleas was right in affirming his judgment. But his jurisdiction cannot be presumed. It must be affirmatively shown by the record. It is clear that he had no jurisdiction of the proceedings, under the act, if the premises were not demised to the lessee for a term of years, or for a less period, and, therefore, the record should show the term for which they were demised. The complaint is the basis of the proceedings; and it should set out all the facts essential to the jurisdiction of the magistrate under the act. But the complaint in this case does not show the term for which the premises were demised, nor is it set out in the inquisition, if the finding of the term by the magistrate would supply or cure the omission. For aught that appears the demise may have been for life, or in fee, reserving rent; and if it was either, the magistrate had no jurisdiction. The defect in the record is not one of mere form but is matter of substance, otherwise a ground-tenant might be dispossessed by proceedings before an alderman under the act, for the non-payment of rent reserved by a deed of perpetual lease. It is plain that the act was not intended to authorize proceedings against a tenant for life, or in fee, for the non-payment of rent.

The other questions presented by the assignments of error need not be discussed, as the want of jurisdiction is fatal to the whole proceeding.

The judgment is reversed and the proceedings of the alderman are set aside at the costs of the complainant, the defendant in error.


author: Agnew, C. J.

text:
    Pleasonton & Biddle’s Appeal. De Silver’s Estate.
    1. A lease was/or a year, either party might determine the lease at the end of the term by giving a month’s previous notice to the other. A surety for the lessee gave due notice to the lessor to collect the rent from the lessee and that he would not be bound beyond the end of the current year, the lessee held over, the surety died before the end of the succeeding year. Held, that his estate was not liable for rent during that year.
    2. It was inequitable to the surety to continue the tenant for another year after the notice.
    3. Equity often relieves a surety when the principal would not be relieved.
    4. A surety cannot at will discharge himself from his contract.
    5. Coeu. Vogdes, 21 P. F. Smith 383, distinguished.
    February 24th 1874.
    Before Asnew, 0. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Philadelphia: No. 119, to July Term 1872.- In the estate of Harrison T. De Silver, deceased.
    In the distribution in the Orphans’ Court of the estate of the decedent, Augustus J. Pleasanton and Chapman Biddle, trustees, &c., of Joseph Dugan, deceased, claimed from the estate of the decedent, who had been surety for Emma Anderson as lessee of the claimants, arrears' of rent due from Mrs. Anderson.
    On the 28th of December 1866, Mrs. Anderson entered into a lease with the trustees for the rent of a house in Philadelphia for twelve months from January 1st 1867, at the rent of $133.34 per month, payable at the end of each month. Besides other stipulations in the lease, were the following :—
    * * * “ Either party may determine this lease at the end of such term, provided such party shall have given the other one month’s previous notice of the intention so to do. * * * All rights and liabilities herein given to, or imposed upon either of the parties hereto, shall extend to the heirs, executors, administrators, successors and assigns of such party. It is further agreed, that in case the said lessee shall hold over and remain in possession of said premises after the expiration of said term, then said lessee shall be considered as tenant for another year, upon the same terms and conditions as are above specified, unless the lessors shall have given one month’s previous notice of their intention to change said terms and conditions, and the lessee holding over after such notice shall be considered as lessee under the terms mentioned in said notice, for so long a time as she may remain in possession of said premises without further notice.”
    The decedent became surety for Mrs. Anderson by the following agreement:—
    “ For value received, I do hereby agree to be responsible to the above-named lessors, their successors or assigns, for the true and faithful performance of the above-named contract on the part of Mrs. Emma Anderson.
    4‘ In witness whereof, I have hereunto set my hand and seal, the twenty-eighth day of December 1866.
    H. T. De Silver, [l. s.]”
    On the 4th of June 1869, the decedent by writing notified the trustees to collect all rent that might accrue thereafter from Mrs. Anderson, and that he would not be surety after the then current year; that term expired December 31st 1869. The decedent died September 10th 1870. Mrs. Anderson continued to occupy the premises during the year 1870 and for the month of January 1871. At the end of August 1870 she was in arrears for rent to the amount of $128.50, and she paid none for the remainder of the time during which she occupied the premises.
    The auditor, William D. Baker, Esq., to whom it was referred to make distribution, rejected the claim,
    The trustees excepted to the report. The exception was overruled and the report confirmed by the Orphans’ Court, Ludlow, J.
    The trustees appealed to the Supreme Court and assigned the confirmation of the report for error.

      Chapman Biddle, for appellants.
    De Silver’s engagement was suretyship : Allen v. Hubert, 13 Wright 261; therefore there was a direct liability on his part: Reigart v. White, 2 P. F. Smith 440 ; Coe v. Vogdes, 21 Id. 383. The liability continued, the lessee not having determined the lease by notice: Laguerenne v. Dougherty, 11 Casey 47.

      B. Webster, for appellee.
    The surety was entitled to benefit of the covenants of the lease: Arlington v. Merricke, 2 Saund. 411; Liverpool Water Works v. Atkinson, 6 East 507; Hassell v. Long, 2 MaulE & Sel. 363; Wardens of St. Saviour v. Bostick, 2 N. R. 173; Leadley v. Evans, 2 Bing. 32; Pitman on Prin. and Surety 125, 167 et seq.

   The opinion of the court was delivered, March 9th 1874, by

Agnew, C. J.

This was a lease for one year, renewable from year to year, if the tenant held over and the landlord gave no notice to quit; either party having power to determine it by one month’s notice previous to the end of the year. The rent was payable monthly. In June 1869, the trustees (as landlords) having written to De Silver, the surety for the tenant, about the rent, the latter replied, giving notice to collect the rent from the tenant, and also that he would not continue surety after the end of the current year. Mrs. Anderson, the tenant, remained in possession and failed to pay the rent due on and after the 1st of August 1870, and it is for this unpaid rent the trustees claim payment out of the estate of De Silver, the surety, who died September 10th 1869.

Suretyship is a purely voluntary and gratuitous relation. In strict law the surety is bound equally with the principal, but the nature of his relation often brings equity to his relief when the principal cannot receive it. But a surety cannot discharge himself from his contract at will. This was decided in Coe v. Vogdes, 21 P. F. Smith 383. His suretyship being a continuing contract, so long as his relation remains his contract continues. In that case no step Avas taken to prevent a renewal of the lease, and it was said, whatever might be the power of the sureties, as contended, to limit their future liability by notice against the renewal of the lease, the affidavit of defence sets forth no such notice, and no termination of the lease in fact. A mere notice that the sureties would not be liable is no defence to their covenant, for they could not dissolve the contract at pleasure.

In the present case if the surety had done nothing to prevent a renewal he could not escape his liability. But De Silver gave more than half a’year’s notice not to renew the lease after the expiration of the current year. Before the end of the year, and while it was still in the power of the trustees to demand other sureties from the tenant, or to give notice to her to quit, De Silver died, and his estate necessarily went into administration. Clearly after this explicit notice to collect the rent from the tenant, and not to renew the lease, and after the change in circumstances produced by the death of De Silver, it was inequitable in the trustees to continue the tenant for another year on the credit of the surety. Just the event happened which De Silver evidently had feared. Mrs. Anderson, the tenant, became unable to pay the rent. The trustees, as landlords, had no right in good conscience to continue the liability of the surety after his death, and when the law had taken charge of his estate for distribution among his own creditors and legal representatives. If they could do it for one year they could do it so long as the tenant, though insolvent, might choose to remain, making the rent a charge on the estate of De Silver indefinitely, to the prejudice of creditors and others. The lien of the debt even upon the real estate might be perpetuated indefinitely by filing a copy of the lease and the covenant of De Silver in the prothonotary’s office under the 24th section of the Act of 24th February 1834. Had the contract of lease been entire for a single term, including the year 1870, the surety would be released. But the contract was severable at the will of either party, and the united wills of both were necessary to concur in its continuance.

It is this feature which enables equity to take hold of it, and prevent a renewal to the prejudice of the surety’s estate, on the ground that the change in the circumstances of the parties demanded a termination of the relation of the surety, in justice and good conscience. Had De Silver suffered the lease to begin again for 1870, his estate would have been liable. But his- nótice and death were facts probing the conscience of the landlords, who could not in equity permit a renewal of the lease on the credit of the surety, when they had it in their power to compel the tenant to give a new surety or terminate the lease.

The decree of the Orphans’ Court is affirmed with costs and appeal dismissed.


text:
    Elliott versus The City of Philadelphia.
    1. A servant was driving his master’s horse on a street of a city faster than was permitted by the ordinance ; he and the horse were taken into custody by the police, by negligence the horse escaped and was killed. Held, that the city was not responsible for the negligence of the police.
    2. In order to charge a municipal corporation for negligence in the performance of a public work, the law must have imposed a duty on it so as to make the neglect culpable. Per Thayer, J.
    3. The officers of a city are quasi civil officers of the government although appointed by the corporation. Id.

    4. Where a city only authorizes a lawful act to be done in a lawful manner, it is not responsible for acts of its officers outside of the authority. Id.

    5. Philadelphia v. Gilmartin, 21 P. P. Smith 140, distinguished.
    February 25th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the District Court of jPhiladelphia: No. 71, to January Term 1870.
    This was an action on the case brought February 17th 1869, by William B. Elliott against the city of Philadelphia, for the arrest by her police officers of the plaintiff’s servant for fast driving, taking his horse into custody, and permitting it to run away and be killed.
    The declaration contained four counts, averring the facts in different forms; they are sufficiently stated, in the opinion of Judge Thayer. The defendants demurred to the declaration.
    The following opinion was delivered July 3d 1869, by Judge Thayer in deciding the demurrer:—
    “Demurrer to the plaintiff’s declaration: The first count charges, that on the 14th of February 1869, while the plaintiff’s servant was driving his horse and carriage along Broad street, the defendants, by certain police officers in their employ, arrested the servant for reckless and furious driving, and took the horse and carriage out of the possession of the servant, and, that, whereas, it thereupon bbcame the duty of the defendants to keep the said horse and carriage with due diligence, and to take proper care of the same, yet the defendants, by their servants, the said police officers, did not keep the horse and carriage with due diligence and take proper care of the same, but on the contrary, so negligently controlled and took care of the same, that through the negligence of the said police officers, the horse escaped, and ran away and was killed, and the carriage was greatly broken and injured. By means of which the horse was lost to the plaintiff, and he was put to great expense in repairing the carriage.
    “ The second count contains the same averments, with the addition, that the police officers were instructed and commanded by the defendants to arrest all persons who should be driving along Broad street at an immoderate gait, and that the plaintiff’s servant was arrested by the police officers while acting in obedience to said instructions and commands.
    “ The third count avers, that the plaintiff’s servant was wrongfully arrested while driving the horse and carriage at a moderate and usual rate of speed, the police officers making the arrest falsely alleging and charging that the servant was driving at an immoderate gait, that the police officers wrongfully took the horse and carriage out of the possession of the plaintiff’s servant. By means whereof, the horse was lost to the plaintiff, and he incurred great expense in repairing the carriage.
    “ The fourth count does not differ materially from the third.
    “ The defendants have demurred to all the counts.
    “ Two questions are raised by the pleadings :—
    “ First. Is the city responsible for the negligence of the police officers, in not taking proper care of the horse and carriage, when they arrested the driver for immoderate driving ?
    “ Second. Is the city responsible for a false arrest by the police officers, resulting in the loss of the plaintiff’s horse and injury to his carriage?
    “It is unnecessary to enter into any discussion of the second question, inasmuch as we regard it as settled adversely to the plaintiff, by the case of Fox v. The Northern Liberties, 3 W. & S. 103. In that case, one Hillman, who was superintendent of police, illegally seized the plaintiff’s horse, pretending that the plaintiff was violating the ordinances of the district of Kensington, and the plaintiff brought his action against the district to recover damages for the tort. But the Supreme Court held that the action could not be maintained against the defendants. ‘ It is not conceivable,’ says Kennedy, J., ‘ how any Blame can be fastened upon a municipal corporation, because its officer, who is appointed or elected, for the purpose of causing to be observed and carried into effect the ordinances duly passed by the corporation for its police, either mistakenly or wilfully, under color of his office, commits a trespass; for in such a case it cannot be said that the officer acts under any authority given to him, either directly or indirectly, by the corporation, but must be regarded as having done the trespass of his own will, and he alone must be looked to for compensation by the party injured. It is like the familiar case of master and servant; where the latter wilfully does an act without the consent or authority of the master, by which a third person is injured, the servant alone is answerable.’
    “ In regard then, to the first question. The arrest of the plaintiff’s servant, charged in the first two counts, must be taken, we think, to have been a lawful arrest for a breach of the peace: U. S. v. Hart, 1 Peters C. C. 390. If it was not a lawful arrest, the plaintiff’s case is within the decision already referred to. Are the defendants then responsible for the neglect or misfeasance of the police officers in not taking proper care of the horse and carriage ? By the Consolidation Act, February 2d 1854, sect. 9, the city councils are to fix the whole number of policemen and watchmen for the service of the whole city, and the mayor is to nominate, and by and with the advice and consent of the select council, appoint the policemen and watchmen. By sect. 42, the select and common councils of the city are authorized and directed to organize a police department in and for the said city. They are also to ordain and establish all needful lawrs and ordinances for the preservation of the public peace. By sect. 7, the police officers and watchmen are to receive a compensation, to he fixed by ordinance of councils. It is contended that in making the arrest, the police officers were the agents and servants of the city, and that the city is, therefore, liable for the misfeasance or negligence of the officers, in the same manner that a private corporation would be liable for the misfeasance or neglect of its agents and officers. Many cases have, undoubtedly, been decided, in which it has been held, that municipal corporations are liable for the neglect of their agents, in not doing what it was the duty of the corporation by law to do, and in doing that amiss which the corporation was authorized or enjoined by law to do. Thus they have been held liable for the neglect of their officers, in not repairing highways and streets, Dean v. New Milford Township, 5 W. & S. 545; Erie City v. Schwingle, 10 Harris 384; for negligent grading of streets, Kensington v. Wood, 10 Barr 93; for allowing a city wharf to be obstructed, Pittsburgh v. Grier, 10 Harris 55 ; for unskilfulness in constructing a dam, Mayor of New York v. Bailey, 2 Denio 433; for negligent construction of a sewer, Delmonico v. New York, 1 Sandf. 223; Lloyd v. The Mayor, 1 Seld. 369; White Lead Co. ¶. Rochester, 3 Comst. 463. In order to charge a corporation for negligence in the performance of a public work, the law must have imposed a duty on it so as to make that neglect culpable. The cases in which this responsibility has been held to exist, are confined, so far as I am informed, to cases of j public works. In the omission to perform these altogether, where the performance was imposed by law, the omission was clearly that of the municipality. ’ The fact of non-performance by anybody, itself and alone, proved the neglect of the municipality. In regard to the cases of negligent performance or misfeasance in the construction of public works, it is perhaps difficult to distinguish the principles upon which those cases proceed from that which the plaintiff asks to have applied in the present case. If the plaintiff fails, it will be owing, not to the unsoundness of the principle upon which he relies, or to any defect in the abstract analogies existing I between the cases he cites and the case he. prosecutes, but rather ¿¡to the fact, that the law has imposed a just limit to the application lof the principle he invokes, and has confined its application within 'certain just and reasonable bounds. A municipal body is bound by law to execute a particular work. It is reasonable to suppose that they have such opportunities for the constant supervision of the work, and such constant control of their agents, that they should be responsible for the manner in which the work is done; It is unquestionably the duty of the municipal authorities of Philadelphia to preserve the public peace. It is for this purpose they employ police officers and other agents. But will any one say, that it is equally reasonable to hold the municipality responsible for the acts of these officers in the discharge of their varied duties, in controlling persons and things, as it is to hold it responsible for the manner of executing a public improvement ? of grading a street or building a sewer ? It is quite practicable to give particular instructions for the performance of a public work and to see that they are complied with. Is it possible to give particular instructions to police officers in regard to what they shall do in every case, and under all possible circumstances which may arise in the discharge of their various and complicated duties ? Duties which depend upon circumstances which are infinitely varied, and which it is impossible to foresee ? In the execution of a public work, nothing need be left to the discretion of the agent. Can the same be said in regard to the functions which are delegated by a municipal government to the police officers ? Accordingly, it has been held that a municipal corporation authorized to make ordinances for the good government of its streets and citizens, is not responsible for injuries arising from their neglect or violation: Levy v. New York, 1 Sand. 464. In Alcorn v. The City of Philadelphia, 8 "Wright 348, it was held, that the city is not responsible for damages resulting from negligence of a district surveyor in locating the line of certain lots, by reason of which a lot-holder was compelled to rebuild his house. That decision is made to rest, in some measure, upon the consideration, that the surveyor was an officer elected by the people and not subject to removal by the corporation. If this distinction is of importance, it is equally true in the present case, that although the policemen themselves are appointed, the mayor and select council who appoint them, and upon whom rests the responsibility of appointing fit persons, are also elected by the people: that is, they are — like "the district surveyor — elected by the corporators, and the district surveyor and the survey department, like the police officers and the police department, are regulated by the city councils : Act May 13th 1856, sect. 14.
    “ No one supposes that the city of Philadelphia could, without the Act of May 31st 1841, be made responsible for the negligence of its officers in not suppressing a riot. Yet if the liability of a municipal corporation for the negligence of its police officers is to be adopted as a rule without limitation, it must be held responsible for the consequences of a riot attributable to such negligence, in cases where no such responsibility is expressly imposed by statute. That a municipal corporation in the absence of such a statutory regulation, is not responsible, was directly ruled by the Court of Appeals of Kentucky, in Prather v. City of Lexington, 13 B. Monroe 559, and the reasoning of the court in that case seems to be very applicable to the present case. ‘Where,’ says Simpson, J., ‘ a particular act operating injuriously to an individual, is authorized by a municipal corporation by a delegation of power, either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual; but as a general rule, a corporation is not responsible for the unauthorized or unlawful acts of its officers, although done under color of their office. It has been held that cities are responsible to the same extent and in the same manner as natural persons, for injuries occasioned by the negligence or unskilfulness of their agents in the construction of works for their benefit; and where a city corporation is bound to keep the streets and sewers of the city in proper repair, it is liable to damages if any person is injured by its neglect to have such repairs made. Still, the question in this case is not whether the city in its corporate capacity is liable for an act done under its express authority, or for its own omission of a duty that is direct and absolute, and due from it as a corporation, such as the repairing of its streets, sewers, &e., but whether, although there is no provision in its charter subjecting it- to liability for the acts of a mob, it is rendered liable therefor, by the failure of its officers to suppress it:’ 13 B. Monroe 559. ‘ The officers of the city are quasi civil officers of the government, although appointed by the corporation. They are personally liable for their malfeasance or nonfeasance in office, but for neither is the corporation responsible. The corporation appoints them to office, but does not in that act sanction their official delinquencies or render itself liable for their official misconduct :’ Id. So in White v. City Council of Charleston, 2 Hill, S. C. 572, it was held that the city corporation was not liable for the misfeasance of the intendant in unnecessarily blowing up the plaintiff’s house to prevent the spread of a conflagration, although the intendant was expressly authorized by a city ordinance to pull down and blow up buildings for that purpose where it might be judged to be necessary, and the ordinance gave the officer the right to judge whether the necessity existed. Fowle v. Common Council of Alexandria, 3 Pet. 398, was an action on the case against the city corporation for negligence in not taking security from a licensed auctioneer, as they were required by statute and ordinance to do, by means of which the plaintiff was injured. But it was held that the action would not lie, and Marshall, C. J., observed : ‘ That money corporations, or those carrying on business for themselves,'are liable for torts, is well settled, but that a legislative corporation established as a part of the government of the country, is liable for losses sustained by a nonfeasance, by an omission of the corporate body to observe a law of its own, in which no penalty is provided, is a principle for which we can find no precedent, and we are not prepared to make one in this case.’ ‘As a general rule,’ says Shaw, 0. J., Thayer v. City of Boston, 19 Pick. 516, ‘ the corporation is not responsible for the unauthorized or unlawful acts of its officers, though done colore officii. It must further appear, that they were expressly authorized to do the acts by the city government, or that they were done bond fide in pursuance of a general authority to act for the city on the subject to which they relate.’ Now, although police officers may have a general authority from the city to preserve order, to prevent breaches of the peace, and to make arrests for breaches of the peace occurring in their presence, yet it can hardly be pretended that such a general authority to make arrests, carries with it an authority from the city to do whatever the police officer may think proper to do in his discretion in making such arrests. If the city were to authorize a trespass, the city would be responsible for it. (But where the city only authorizes a lawful act to be done in a j lawful manner, it would seem to be very unreasonable to hold it responsible for the acts of its officers entirely outside of the authority which it has given them. The maxim respondeat superior has no just application in such a state of affairs. There is a feature in the case as presented by the pleadings, which might perhaps properly enter as an element into the decision, but which has not been argued by counsel. The first two counts disclose the fact that the plaintiff’s loss occurred as a consequence of his own unlawful act, and it is a rule of law, that a party cannot be heard to allege his own unlawful act, and if such an act be one of a series of facts necessary to support the plaintiff’s claim, then that claim must fail. The party who seeks redress in a court of justice must come with clean hands ; an action which requires for its support the aid of an illegal act cannot be maintained: Gregg v. Wyman, 4 Cush. 322; Robeson v. French, 12 Met. 24; Duffy v. Gorman, 10 Cush. 45; De Wirtz v. Hendricks, 9 Moore 586: and the principle has been applied to a claim for damages for an act remotely connected with the wrongful conduct of the plaintiff: Hunt v. Bell, 7 Moore 212.
    “ We are of opinion that the plaintiff’s declaration sets forth no cause of action against the city. Therefore, judgment for the defendants on the demurrer.”
    The plaintiff removed the record to the Supreme Court and assigned for error, entering judgment for the defendant.

      S. W. Pettit, for plaintiff in error.
    If the driver is in no fault, the officers- are voluntary bailees; if he is in fault, they are involuntary bailees: in either case they are liable for negligence: 2 Parsons on Contracts 96: Story on Bailments, § 44 a; 33, 33 a; Smith v. The Railroad, 7 Foster 86; Tudor v. Lewis, 3 Metc. (Ky.) 378; Hartlieb v. McLain, 8 Wright 510. The duty to keep safely was not impaired by the fact that the horse was taken whilst the owner was breaking an ordinance: Burke v. Trevit, 1 Mason 96. A master is liable for the mistakes of his servant in the exercise of a discretion: Seymour v. Greenwood, 7 Hurlst. & N. 356; Meyer v. 2d Av. R. R., 8 Bosw. 305; Croft v. Alison, 4 B. & Ald. 590; Penna. R.R. v. Vandiver, 6 Wright 365.
    Where a power is conferred upon a city, the exercise of which is discretionary, there is no liability for non-performance or partial performance, but merely for neglect in the act of exercising the power: Weightman v. Washington, 1 Bl. (U. S.) 50; Adsit v. Brady, 4 Hill 630; Shepherd v. Lincoln, 17 Wend. 250 ; Jones v. New Haven, 34 Conn. 1; Robertson v. Chamberlain, 34 N. Y. 389; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93; Ward v. Lee, 7 Ell. & B. 426; Coe v. Wise, Law Rep. 1 Q. B. 711; Ruck v. Williams, 3 Hurlst. & N. 308.; Hickok v. Plattsburg, 16 N. Y. 161; Conrad v. Ithaca, 16 N. Y. 158; Darlington v. The Mayor, 81 Id. 164; Erie City v. Schwingle, 10 Harris 384; Pittsburg v. Grier, 10 Id. 54 (64).

      C. H. Gross (with whom were T. J. Barger and O. II. T. Qollis, City Solicitor), for defendant in error.
    The legislature makes the city the agent of the state so far as the legislation in regard to the police is concerned, and the principal not being liable for the negligent conduct of the police, the agent should not be: Fox v. The Northern Liberties, 3 W. & S. 103; Buttrick v. Lowell, 1 Allen 172; White v. Charleston, 2 Hill (S. C.) 571; Prather v. Lexington, 13 Ben. Monroe (Kentucky) 559 ; Martin v. The Mayor, 1 Hill 545 ; Levy v. New York, 1 Sandf. 465; Commissioners v. Duckett, 20 Md. 468; Lane v. Cotton, Lord Raymond 646; Schroyer v. Lynch, 8 Watts 453.
   The opinion of the court was delivered, March 9th 1874, by

Agnew, C. J.

The opinion by Judge Thayer is such an ample discussion of the question in this ease that it is unnecessary to do more than affirm the judgment upon it. The case is distinguishable entirely from that of The City v. Gilmartin, 21 P. F. Smith 140. It was decided upon the ground of ageney, and it was therein expressly said : “ Thus a mere statement of the facts discloses the relation of principal and agent in reference to the city waterworks, and not that of ordinary corporation officers performing merely municipal functions.” This is plainly the distinction between the two cases, the police officers in the present case, having acted merely in their official character when arresting the plaintiff for a breach of- peace. In The United States v. Hart, 1 Peters’ C. O. R. 390, Judge Washington held, that driving a mail stage at a furious rate through the streets of Philadelphia, was a breach of the peace, and that; notwithstanding the Act of Congress against stopping the mails, a constable was authorized at common law, without a warrant, to prevent the peace from being broken, by arresting the driver.

Judgment affirmed.


text:
    Tucker’s Appeal.
    1. Husband and wife conveyed her property in trust for her separate use for life so that it should not be liable for her present or any future husband’s engagements, and after her death for such persons and uses as she by her will should appoint and in default of appointment for the persons who would be entitled to her “real and personal estate under the intestate laws of the place where she may be domiciled” at her death. The husband having died, Held, that the wife was. entitled to a conveyance from the trustee of the trust estate.
    2. Equity will relieve from a voluntary and self-imposed trust without consideration, when its purpose has been fulfilled and there 'is no other reason to preserve it.
    3. The provision in the deed for succession according to law of the wife’s domicil did not vary the case.
    4. Dodson v. Ball, 10 P. F. Smith 494, compared and approved.
    February 26th 1874.
    Before Agnew, 0. J., Williams, Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius. No. 10, to January Term 1873. In Equity.
    The bill was filed, November 17th 1872, by Elizabeth Dallas Tucker against Dallas Saunders, her trustee, to obtain a decree for the reconveyance to her of her estate conveyed in trust to the defendant by deed dated June 26th 1869 from herself and husband and David H. Tucker. The plaintiff and Mr. Tucker were intermarried in 1841, and the husband died March 17th 1871.
    The property conveyed by the deed belonged to the plaintiff, and the trusts were as follows:—
    “For the sole and separate use of the said Elizabeth Dallas Tucker, during all the term of her natural life, and so that the same shall not be liable for the debts or engagements of her present or of any future husband she may have or take; and from and after the death of the said Elizabeth Dallas Tucker, then in trust for such person or persons, and for such uses and purposes as she, the said Elizabeth Dallas Tucker, may, by her last will and testament, or any instrument in the nature thereof, declare and appoint; and in default of such appointment,- then in trust for the person or persons who would be entitled to -the real and personal estate of the said Elizabeth Dallas Tucker, under the intestate laws of the place where she, the said Elizabeth Dallas Tucker, may he domiciled at the time of her death. With full power on the part of the said trustee to sell and dispose of any part of the real or personal estate hereby conveyed, at public or private sale, in his discretion, and to give the purchaser a title clear of the trusts hereby created, and so that such purchaser may not be obliged to see to the application of the purchase-money; and with liberty, from time to time, to change investments of the personal estate, or of the proceeds of real estate, as he shall think proper; and with full power to invest any part of the said personal estate, or of the proceeds of the real estate in a house or residence in the city of Richmond, in the state of Virginia, or elsewhere, where she, the said Elizabeth Dallas Tucker, may reside; which house or residence, when purchased, shall be held by the said trustee upon the same trusts and with the same powers, in all respects, as are declared as to the real estate hereby conveyed, and with full power to enter into any agreement or proceedings for the partition of the real estate, and to settle and allow all accounts of the administration and distribution of the personal estate hereby assigned and transferred, and without liability for any-loss by reason of any investment made by the said trustee, unless by his wilful default or negligence.”
    The bill averred the foregoing facts, and further set out that “the-said conveyance to the said defendant- in trust as aforesaid, was made for the sole purpose and intention of preventing your orator’s separate estate or property from being liable for the debts or engagements or under the control of her said husband, and for no other use, purpose or trust whatsoever.”
    The defendant answered, admitting the averments of the bill, and submitting himself to the court.
    The bill was dismissed pro formd at Nisi Prius.
    The plaintiff appealed to the Supreme Court in banc, and assigned for error the decree dismissing the bill.

      M. P. Henry, for appellant,
    cited Freyvogle v. Hughes, 6 P. F. Smith 228; Ralston v. Waln, 8 Wright 279; Nice’s Appeal, 14 Id. 143; Dodson v. Ball, 10 P. F. Smith 494; Fearne on Remainders 188, 192, 194.
    D. Saunders, for appellee,
    cited Girard Life Ins. Co. v. Chambers, 10 Wright 486.
   The opinion of the court was delivered, May 11th 1874, by

Agnew, C. J.

This case is governed by the decision in Dodson v. Ball, 10 P. F. Smith 494. The purpose of the deed, which was a self-imposed settlement by Mrs. Tucker, with the consent of her husband, was evidently to provide for her estate during coverture, and no more. The provisions for appointment by will, and on failure to appoint for descent to her heirs and legal representatives (the estate being both real and personal), were evidently intended to preserve her own rights and meet the contingency of her death during coverture. The coverture being the only purpose of the settlement, and being ended by the death of Mr. Tuckei*, her husband, she now being sui juris, and no persons yet entitled as heirs and legal representatives, there is no reason to perpetuate the trust, and it should fall at her own instance. A court of equity will relieve from a voluntary and self-imposed trust without consideration, after its only purpose has been fulfilled, when no other reason exists to preserve it. Analogous principles were applied to the case of an ante-nuptial settlement in Russell’s Appeal, decided at this term {antea, p. 269).

There is a slight difference between this case and Dodson v. Ball, in reference to the clause of descent and succession; but not such, we think, as should change the result. Here the language of the trust, in default of appointment by will, is, “for the person or persons who would be entitled to the real and personal estate of the said Elizabeth Dallas Tucker, under the intestate laws of the place where she, the said Elizabeth Dallas Tucker, may be domiciled at the time of her death.” This provision was evidently intended to carry the estate to her heirs and legal representatives, as the law would dispose of it in case she made no will. The fact was most probably not adverted to, that a change of domicil to a state whose intestate laws are not the same as those of the state where her real estate might lie, would cause a diversity between the descent of the real estate and the succession to the personalty. But clearly the main intent was to preserve her own control over her property, and to direct its descent and succession to those she regarded as her heirs and legal representatives. This manifest intent, therefore, ought to prevail in equity rather than the accidents of a future domicil.

The decree of the Court of Nisi Prius, dismissing the bill pro formd, is therefore reversed, the bill restored, and it is now decreed that the trustee, Dallas Sanders, reconvey and transfer all the estate, real and personal, held by him as trustee under the deed referred to in the bill, to the said Elizabeth Dallas' Tucker, the real estate in fee simple and the personal estate absolutely; and that the costs of this appeal and bill be paid out of the estate in his hands.


author: Gordon, J.

text:
    Cambria Street.
    1. Road viewers reported that they had been sworn “ to the faithful discharge of their duties.” Held to be insufficient under Act of June 13th 183S, sect. 53, requiring them to make oath to perforin their duties “ impartially and according to the best of their judgment.”
    2. It appeared by their report that the six viewers appointed met, one was found incompetent, the others were sworn and adjourned ; — another was afterwards appointed by the court who with the five viewed and was after-wards sworn before hearing testimony, &e. Held, that the viewer should have been sworn before he viewed.
    3. Several exceptions were filed ; the third was that the viewers were not sworn according to the act, on this exception the court set the report aside and referred it back to the same viewers, and dismissed the others; the viewers in their report on this reference reported, that before entering upon their duties to assess the damages they had been sworn “ to perform their duties impartially and' according to the best of their judgment, &c.” The first report having been set-aside the jurors erred in treating it as sent back for amendment.
    4. The facts set out in the report as to the mode of the oath and that the new viewer was not sworn before viewing, were radical defects which could not be cured by amendment.
    5. After the second report the court amended the order sending the first back, so as to make it read that it was sent back to report on the third exception ; — and then confirmed the report as amended. Held, that this order did not give the second report validity.
    6. A petition for assessment of damages need not be signed by a party in interest himself.
    7. Shafferstown Road, 3 Watts 475, distinguished.
    February 26th 1874.
    Before Agnew, C. J., Williams, Merour and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 131, to July Term 1872. In the matter of Cambria Street.
    On the 4th of February 1871, the Fair Hill Land Company presented to the Court of Quarter Sessions a petition, setting out that under resolutions of the Councils of Philadelphia, the Commissioner of Highways had notified “ the owners of property through which Cambria Street will pass from Second Street to Sixth Street” -and “from Sixth Street to Tenth Street,” that said street would be required for public use; that petitioners owned ground which would be taken by the opening of that street, and that they would sustain damages thereby. They prayed the court to appoint viewers to assess damages, &c.
    The petition was signed, “J. T. Pratt, Attorney,” and was sworn to by George E. Wagner, Secretary of the Company.
    Viewers were appointed, who- reported :—
    * * * “ That pursuant to notice all the undersigned (with the exception of William Dingas), together with Jacob Shinglaff, met at the office of the City Solicitor, on Friday March 31st 1871, at 8 o’clock, p. M. At this meeting the jury being sworn and examined on their voire dire were all found competent except Jacob Shinglaff who being already upon another jury for the opening of Clearfield street was found to be disqualified; the other jurors were then each severally sworn or affirmed to the faithful discharge of their duties, the petition having first been read to them. The jury then adjourned to meet, &c. * * * Pursuant to which adjournment the jurors met at the time and place last mentioned and proceeded to view going over the whole line of the street from Second to Tenth street, all the jurors being' present as well as' William Dingas, who had since the last meeting of the jurors been appointed a juror or viewer by the Honorable Court in the place of Jacob' Shinglaff disqualified. After view the jurors adjourned to meet at the office of the City Solicitor, &c., April 13th 1871,_al_ \vhich time and glace all the jurors,met,.when WiUiam^Dijjga^afqre^^ saicTwas sworn and" examined on his.,voire dire,, and,being, found qualified jo__serve was sworn to the faithful discharge of his duty by Alderman Delaney, by whom the oath or affirmation had. been_prpviously administered to .all of the other jurors, the. petition_having_ been first read in t.ha hearing of all. Proof of service of notice on álTthe owners of property along the line oUthe sff|AtV-W.as_made at 'thidineetingj William'W. Ashman, Esq., appeared on behalf of the city. No other parties appearing the jurors adjourned to meet at the same place at 3 o’clock, P. M., April 20th 1871, at which time and place the jury met, all the jurors being present, as also * * * Joseph C. Ferguson, Esq., for Messrs. Kelley and Eagin, tenants-of Isaac Norris, * * and also at the subsequent meetings by the same counsel, and by Isaac Norris, Esq., who appeared for himself and as attorney for George W. Norris, and * * * by Henry Norris.
    “ The jurors continued to meet at the last-mentioned place, by adjournment from time to time, to wit, &e.,. * * * At the last meeting, July 20th, proof of service of notice on all parties upon whom damages had been assessed was made except on the representatives of the estate of Charles Norris, deceased. I^ac_NoiXÍs-).Esq,.Ji appeared in response to said notices for himself,.George W. Norria.andHenryNoms., and a"ddressed the jury concerning their award of damages.., Atjffiis meeting'the jurors were all present and adjourned to meet, &c., * * * on Thursday, August 3d 1871, at the last-mentioned place in order that notice might be served on the representative of said estate, Lewis 0. Norris, at which said time and place all the jurors met with the exception of Alexander Johnson, and having heard the proof of said services of notices, after signing this report adjourned. * * * After due deliberation and consideration of the advantages and disadvantages, &c., do award the following named parties entitled to damages, &c., that is to say: To Michael Simons the sum of three hundred dollars; to Joseph S. Toland the sum of three hundred dollars, and the jury do further say that none of the other owners or tenants of property on the line of the street will be damaged by the opening of the same, and therefore no damages are awarded to any one excepting as hereinbefore stated. And the jury do further report, that of the damages above awarded the sum of one hundred and fifty dollars shall be paid by the city of Philadelphia, and the sum of four hundred and fifty dollars shall be paid by the property-owners on fhe line of the street who are benefited thereby. And the jury do further report, that each of the following described properties be assessed to the amount hereinafter set forth, as being benefited by reason of said opening of the street aforesaid.”
    They then assessed damages in specific sums on five designated lots, belonging severally to Isaac Norris, George W. Norris, Henry' Norris and the estate of Charles Norris, deceased.
    .The report was signed by Rowland A. Stokes, William DingUs,1 Francis Jennings, Alex. Johnson, Joseph H. Sutton, F. Fishey.
    The Norrises filed exceptions to the report; amongst others the following:—
    1. Because William Dingas was substituted as a juror in the stead of Jacob Shinglaff, originally appointed, without any legal cause of disqualification existing, or being assigned, to said Shinglaff.
    2. Because it appears, by the report, that said Dingas viewed the premises before being sworn;
    3. Because the jurors were not sworn or affirmed according to ( law, in this, the report stating they were sworn or affirmed, “each severally to the faithful performance of their duty,” whereas, by law, they are required to “ swear or affirm to perform their duties impartially and according to the best of their judgment.”
    5. Because the petition is not signed by any one authorized to sign, or having any interest as landowner.
    9. Thatjhe report had not been made and filed in court before the owners, of properties, against which damages were assessed, were notified, according to the requisitions'of .the Act of Assembly.
    ' The court decreed :—
    “ The third exception filed by Norris estate is sustained and the report is set aside and referred back to the same: the other exceptions are all dismissed.”
    The viewers again reported:—
    “We, the undersigned, the jurors appointed by your Honors to assess the damages sustained by property-holders in consequence of the opening of Cambria street from Second to Tenth streets, reconvened by order of your Honor’s court for the purpose of reporting more fully as to the manner they were sworn, do, this 11th day of April, A. D. 1872, certify that before entering upon their duties as jurors in the above matter, they were separately sworn to perform their duties impartially and according to the best of their judgment, in accordance with the Acts of Assembly in such cases made and provided; the said acts being read at the-time and the said oaths administered in accordance therewith.”

      The report was signed by the same names.
    On this report the court made the following decree :—
    “ 1872, June 26th. The above order is amended so as to make it read ‘ The third exception filed by Norris estate is sustained and the report is referred back to the same jury to report upon said third exception ; the other exceptions are all dismissed.’ No die, report of jury, as amended, confirmed.”
    The 53d sect, of the Act of June 13th 1836, Pamph. L. 559, 2 Br. Purd. 1203, pi. 87, enacts: “ That all viewers shall before they proceed to the duties of their appointment respectively make oath, &c., to perform the same impartially and according to the best of their judgment,” &c.
    The Norrises removed the record tnthe Supreme Court by certiorari and assigned for error that the court overruled their exceptions ; specifying them as in the court below.

      JE. Wain (with whom was J. P. Norris), for certiorari,
    cited on 2d exception: Broad Street, 7 S. & R. 444. On 5th exception : Shafferstown Road, 3 Watts 475.

      S. W. Pettit and A. Thompson, contri.
   The opinion of the court was delivered, March 30th 1874, by

Gordon, J.

On the 4th day of February 1871, the Fairhill Land Company in its petition to the Court of Quarter Sessions of Philadelphia, set forth that by resolution of the councils of said city on the 13th of October 1869, the chief commissioner of highways was directed to notify the owners of property over which Cambria street would pass from Second to Sixth, and also a like resolution of the 29th of December 1870, to notify the owners of property over which said street would pass from Sixth to Tenth, that'- said street would be required for public use, and thereupon prayed the court to appoint six reputable and responsible citizens, residents of the Twenty-fifth Ward, and owners of real estate therein, as a jury of viewers to assess damages and report to the court.

In accordance with this prayer the required viewers were appointed. The duties of such a jury of viewers are very clearly pointed out in the several Acts of Assembly, and had these acts been consulted, and their directions followed, a good deal of trouble would have been saved. A preliminary step, as directed by the 53d section of the Act of June 13th 1836, is, that they shPWbefore they proceed to the duties of their appointment, respectivelyjnalé* oüth of'affirmation to perform the same impartially^ and'aceordirig Best of their judgment. ' •

Instead of following this plain prescription of the statute the MÚpwefá in this case were sworn “faithfully to discharge their djities.” This was erroneous. Admitting that an oath of this kind would be as binding on the consciences of honest men as any that could be framed, nevertheless it was certainly not the one directed by the act. The legislature had an object in view in the oath which is prescribed. At was designed to call the attention "oNeafih juror to the obligation resting, upon him to perform", his duty “impartially,” and to the best of his judgment. We need hardly " say.', that this intention..is not filled by a general oath to perform his duty faithfully. The act indeed may be super-cautionary, but of this neither the jury nor ourselves are the judges, it is our duty to obey that which is written. This case is certainly as strong as that of Thompson v. White, 4 S. & R. 135; where the appellant from an award of arbitrators made affidavit “ that it is not for the purpose of delay such appeal is entered, but because he believes injustice has been done.” This was held insufficient, because the word “ firmly” prescribed by the Act of 1810 was omitted.

But again, it appears from the report filed, that at their first meeting all the jurors, were sworn but one, who was found to be disqualified. Thereupon they adjourned over until such vacancy could be filled by the court’s appointment. This appointment having been procured, they met and proceeded to view the premises, the recent appointee making one of the jury. This occurred upon the 3d day of April 1871. After they had completed this view, they adjourned to meet at the office of the city solicitor, on the 13th of April, “at which time and place,” says the report, “ all the .jurors met, when William Dingas,” the new-juror, “was sworn and examined on his voire dire, and, being qualified to serve, was sworn to the faithful discharge of his duty by Alderman Delaney, by whom the oath or affirmation had been previously administered to all the other jurors, the petition having been first read in the hearing of all.”

That this was erroneous is beyond. dispute, because, the acQ requires" the jurors to be^ sworn as the prime requisite in their qualification, and a view without this is- bad Bryson’s Road, 2 PaT~R7~20T. The counsel for the appellees, however, insists that because a view by five jurors would have been good, therefore Dingas may be disregarded, and’ the report treated as though made by five only. But this cannot be. -Qingas was a juror, and he had his..say .and.Jiis..influence with and upon his brother jurors.

For aught we know, he may have exercised a controlling influence in their councils, and we therefore cannot treat him as a cipher : and see case of Broad Street Road, 7 S. &. R. 444. But now the Court of Quarter Sessions takes the matter in hand, and upon exception by the representatives of Norris’s estate they set aside the report and refer the matter back to the same jury.

This was done on the appellant’s third exception. That exception was to the fact that the jurors were not sworn or affirmed according to the terms of the Acts of Assembly. As this re-reference was regular, Beigh’s Road, 11 Harris 302, it was now only .necessary that the jury should be resworn.or. affirmed, and Proceed to do'their work de ñopo, and all would have been right. Instead of tfiisj’ however, the jury proceed to amend their report, and certify the following: “ We, the undersigned, * * * * * reconvened by order of your Honor’s court for the purpose of reporting more fully as to the manner they were sworn to do, this 11th day of April, A. D. 1872, certify that before entering upon their duties as jurors in the above matter, they were separately sworn to perform their duties impartially, and according to the best of their judgment.” Now, the first error in this certificate is that it contained a mistake as to the nature of the order of the court. That order did not send the report back to the viewers for amendment, but it annulled that report by setting it aside; in the second place, it does not, nor can it, amend the facts so set forth in the first report, that the jurors were not properly sworn, and that.Dingas was not qualified” "unti'Uafter the view'of the premises. These were radieal[3£fgptsl which no-ameñdment'could cure. --------

Neither can we see how the order of the court made on the 26th of June, modifying the one made on the 6th of March, so as to cover this amendment, can help the matter. As the court had no power to authorize the amendment contrary to the facts in the case, those facts being material, it follows as a logical sequence, that its adoption after it was made could not give it validity.

The fifth exception has been insisted upon as sustained in the decision in 3 Watts 475; but we are not inclined to adopt this view of the case. Ordinarily, the party in interest must sign a petition of review, but there is an obvious distinction between such a case and that of an application for the assessment of damages. To construe the rule otherwise would, in many cases, prevent owners of land from obtaining damages at all, as their personal attention may often be impossible. So in the present case, the petitioner being a company, must act through a representative, if it would act at all, and we know none more proper than its secretary. Besides, this matter has heretofore been ruled in Harvey v. Lloyd, 3 Barr 331; Sharett’s Road, 8 Barr 89.

With reference to the ninth exception, we say the want of notice to a landowner, upon whose property part of the damages has been assessed, as required by the second section of the Act of April 1st 1864, would be fatal to a final order on the report, but that question does not affect this case, as any such omission has been cured by the appearance of the parties in interest at the time of the filing of the report.

Decree of the court below overruled, and the report and proceedings thereon set aside.