author: Chief Justice Agnew

text:
    Kirby versus Pennsylvania Railroad Co.
    1. The Act of April 4th 1868, providing that any person sustaining injury, &c., while lawfully engaged on or about roads, depots, &e., of a railroad company, or about any car or train therein or thereon of which company such person is not an employee, shall have only the same right of action as he would have if he were an employee, is constitutional.
    2. The act is a police regulation, forbidding individuals from undertaking a dangerous employment except at their own risk, as if they were in the immediate employ of the railroad company.
    3. The liability of a railroad company for the acts and omissions of others, although their servants, is an offspring of law. The negligence is not theirs but only an imputation of law.
    4. The law can remove the imputation of negligence from the master and let it remain with the servant who causes the injury.
    November 20th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Mercer county: Of October and November Term 1874, No. 290.
    This was an action on the case, commenced January 30th 1873, by James Kirby against The Pennsylvania Company operating The Erie and Pittsburg Railroad.
    The cause of action alleged was the injury to the plaintiff by the negligence of the defendants’ servants in allowing a train of cars to run against the train on which the plaintiff was lawfully employed, throwing him off his train by the shock and seriously injuring him.

      The testimony taken and filed by the court having been lost or mislaid, the following facts were admitted by the parties:—
    1. That the Erie and Pittsburg Railroad runs through the borough of Sharon in a northerly direction, and was, with the switch hereinafter described, in the sole possession, and under the exclusive control of the defendants at the time of the injury complained of.
    2. That at the same time there was a coal railroad commencing a few miles east of the defendants’ road, and terminating within a few rods east thereof, and known as the Sharon and Greenfield Railroad.
    3. That the defendants had constructed a switch from their main road, as shown by the accompanying map, to the terminus of said last-mentioned road, and were, at the, time of the accident hereinafter described, transporting to market the coal passing over said Sbaron and Greenfield Railroad.
    4. That the only relation between said roads was solely of a business character.
    5. That on the--- day of June 1872, the plaintiff not being the servant of the defendants, by contract, express or implied, but being engaged in the service of other parties on said switch in loading coal for transportation by the defendants as aforesaid, was severely injured in several parts of his body, and especially in one of his arms, which is, in all probability, permanently disabled, and which injury happened as follows : A large train of cars laden with limestone became disengaged from the locomotive some distance north of the northern terminus of said switch, and running south on a steep down grade, without sufiicient brakesmen tbereon to control it, passed into said switch, accidentally left open, and ran with great force against a train of coal-cars on which the plaintiff was lawfully standing with his face to the south, and which collision caused the injury complained of.
    ££ October 24th 1873, judgment of nonsuit was entered, and leave granted to move to take it off within four days.”
    The motion was overruled.
    The plaintiff took a writ of error.
    He assigned for error the entering of the nonsuit and the refusal to take it off.
    The Act of April 4th 1868, sect. 1 (Pamph. L. 58, 2 Br. Purd. 1094, pi. 5), which was considered in this case, is as follows:—
    ££ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein, or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee: provided, that this section shall not apply to passengers.”
    The contention of the plaintiff in error was that this act was unconstitutional.

      MoDermitt $ Miller and MoOlure $ Mason, for plaintiff in error

      Griffith $ Mason, for defendants in error.
   Chief Justice Agnew

delivered the opinion of the court, January 4th 1875.

The Sharon and Greenfield Railroad is a coal railway, terminating above grade near to a side track of the Erie and Pittsburg Railroad. The cars of the latter are run out upon the side track to receive the coal from the former, by means of schutes from above. The plaintiff was employed, not by the Erie and Pittsburg Railroad Company, or its lessees, but by others, to assist in running the coal through the schutes into the cars below, standing on the side track. While so engaged, and standing on a car, directing the movement of the coal into the car, a train of cars laden with limestone, becoming disengaged from a locomotive drawing it away, ran off down grade, and entered the side track, the switch of which had been left open by the servants of the defendants running out the side track; the limestone train struck the coal-cars standing on the side track with great violence, throwing the plaintiff off the car on which he was engaged, and injuring him badly. An action for this injury was brought against the Pennsylvania Company, the lessees operating the Erie and Pittsburg Railroad. On the trial the plaintiff was nonsuited under the terms of the first section of the Act of 4th April 1868, Pamph. L. 58, in these words: That when any person shall sustain personal injury, or loss of life, while lawfully engaged or employed on or about the roads, works, depots and premises of a railway company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee. Provided, that this section shall not apply to passengers.” Is this a valid law? Had the legislature the power to pass it ? The case of the plaintiff evidently falls within its terms. The propriety of the law is not a question before us. If the legislature had the constitutional power to pass it, repeal is the only mode of annulling it. It may be conceded that the natural rights of men, among them that of personal security, are guarded by the Bill of Rights, and “ that all courts shall be open, and every man for an injury done him, in his lands, goods, person and reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” But in w.hat respect does this law trench upon this guaranty, or indeed on any other in the Constitution ? The person to he affected by it must be one lawfully engaged or employed on or about the road, &e. To be thus engaged he must be there by Ms own consent. He is therefore voluntarily there, to perform some act or business connected with the road or its works. He knowingly assumes a relation regulated by the law, and thus places himself under the operation of the law, which governs the relation. He is not bound to assume the relation, and when he does he acts with his eyes open. The law is not retrospective, and takes from him no remedy for an injury already sustained. The relation he assumes is one of danger, and the fact of danger authorizes the regulation by the state, as the conservator of the lives, security and property of her citizens. It is a police regulation, which, having respect to the general good, forbids individuals from undertaking a dangerous employment, except at their own risk, to the same extent as if they were in the immediate employment of the railroad company. Leaving each one to assert his proper remedy against the person whose act or negligence does him the injury, the law says to him that the legal principle of respondeat superior shall have no place in this particular relation ; that as a matter of proper policy for the good of all, those who voluntarily venture into employment alongside of the servants of a railroad company, shall have just the same remedies for injuries happening in the employment that these have, and none other. In doing this, no fundamental right of the person thus voluntarily venturing is cut off or struck down. The liability of the company for the acts or omissions of others, though they be servants, is only an offspring of law. The negligence which injures is not theirs in fact, but is so only by imputation of law. The law which thus imputes it to the company, for reasons of policy, can remove the imputation from the master and let it remain with the servant, whose negligence causes the injury. It is unnecessary to refer to the long line of decisions, asserting the general power of legislation when unforbidden in the Constitution. Finding no prohibition against such a regulation of persons lawfully engaged or employed upon a railroad or its works, the section quoted of the Act of 1868 is not unconstitutional.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Pittsburg and Connellsville Railroad Co. versus Pillow.
    1. The slightest degree of negligence on the part of a conductor of a car resulting in injury to a passenger without fault on his part will render the company liable.
    2. When a passenger carried on a train is injured without fault of his own, there is a legal presumption of negligence by the carrier and the onus to disprove it is on the carrier.
    3. The presumption can be rebutted by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent.
    4. Conductors on cars have control over the passengers and are as responsible for its exercise as for properly running the train.
    5. Drunken men should not be permitted on the cars, or if so, should be so guarded or separated from the orderly part of the passengers as to prevent injury from them.
    6. It is the duty of passenger carriers to repress all disorderly and indecent conduct in their cars and persons guilty of rude or profane conduct should be at once expelled.
    7. Pittsburg, Port Wayne & Chicago Kailroad Co. v. Hinds. 3 P. S’. Smith 512; Laing v. Colder, 8 Barr 482 ; Meier v. Pennsylvania Railroad Co., 14 P. P. Smith 295, adopted.
    November — 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 75.
    To the September Term 1878 of the court below, Matthew H. Pillow brought an action on the case against The Pittsburg & Connellsville Railroad Company, for negligence by the servants of the company, in not suppressing a fight in one of their cars in which the plaintiff was a passenger, which resulted in the loss of his eye.
    The case was tried, February 18th 1874, before Collier, J.
    The circumstances of the case, as alleged by the plaintiff, appear by his testimony.
    He said that he took a seat at Broadford station on the Mount Pleasant Branch railroad, in the evening of the 27th of February 1873.
    “ The conductor pulled the train out from the Broadford station on to what was known as the Y at] Broadford; the train consisted of one passenger car and one baggage car when it left the station and went on the Y. After pulling out on the Y, the locomotive was cut loose and went up the track some distance, and went to work drilling out freight cars on the side track. I was aboard this passenger car, sitting on the right hand side of the car, about the middle of the car, perhaps one seat back of the middle, as near as I can remember. I was in a seat by myself. I sat there some time, watching the process of drilling cars on this side track. During that time, or about the time, after they had been drilling some time, getting out freight-cars, my attention was attracted to a row or fuss back of me at the back end of the car. I turned around in my seat, with my back towards the window, and looked back at the fight, which was between an Irishman (I afterwards learned) and five young negroes — young men of perhaps twenty-one years of age; they were fussing together, using profane language, and jostling each other against the seats. Four of those colored men sat down, and one of them (the fifth) continued the fracas on the opposite side of the car from me, among the seats. During the fuss among the seats, the freight cars were brought back and attached to the train, and the train immediately started. About the time that the train started, they got to striking at each other, and cursing and swearing, and came out into the aisle. The white man stripped for a fight, took off his hat and coat; he was cleaned off all but his shirt and pants; he may have had his vest on, but he was certainly in his shirt sleeves, and his sleeves shoved up. He was standing with his back towards the car door. The conductor came in the front end of the ear, and commenced collecting fare from all the passengers, and he came down along the aisle. This white man and negro were standing up in the aisle fighting, cursing and swearing, and fighting at each other; the colored man kept his coat on. The conductor came along down the aisle lifting the fare. I sat watching the conductor, and at the same time watching the fight, and wondering why it was not stopped or interfered with. As he was lifting the tickets from the various passengers, he would direct his eye back towards the fuss, as if he was watching it. Just as the conductor got opposite to me, I reached into my pocket, took out my pocket-book, and was in the act of getting my ticket, sitting with my back to the window, when some one of the party said, ‘ You have got a pistol, have you ? You are going to shoot!’ I raised my head and looked back, and that instant I was struck with a piece of glass. I jumped to my feet, and said, ‘ My God, men, how is this; that negro has put my eye out!’ or some expression to that amount. As I was struck, the train was just stopping at Morgan station. It raised a tremendous commotion in the car. Some yelled to shoot the negro, and some to kill him; some one thing and some another. The conductor was just lifting the fare in the seat opposite me at the time. There was a large man sitting in the seat in front of me. The colored man bounded off the car and left. The man that sat immediately in front of me was threatening the conductor with violence, for permitting such rowdies aboard the train. I remarked to the man that the thing was done, the row was over, and to keep quiet.”
    He testified that there ’ was much boisterous and disorderly conduct in the car, both before and after he was struck; also as to the extent of the injury, his suffering, &e.
    Another witness testified as to the noise as of quarrelling amongst the persons in the back part of the car, that it was going on when the.conductor came in whilst he was taking the tickets; that as he passed along he occasionally looked back but did not interfere; when he came to the witness to take his ticket, witness said to him, “ Why don’t you put that negro off?” The conductor said he was not going to interfere and have his nose broke. A short time after that the bottle was thrown, the conductor might have had time to walk down. The talking was about fighting, and drunken talk.
    There was other evidence detailing the occurrences with greater or less particularity ; all tending to show that the persons making the disturbance were intoxicated and that there was much noise.
    The defendants gave evidence fending to show, that the conductor, as soon as he could after he came into the car, endeavored to stop the disturbance and that the bottle was thrown before he could reach the persons who were making the disturbance.
    The plaintiff’s points were:—
    1. If the injury received by plaintiff was without fault on his part, the law presumes it to have resulted from the negligence of the defendants through their employees, which presumption cannot be overthrown but by proof the employees exercised the utmost degree of diligence and care, and that the injury was the result of inevitable accident or irresistible force.
    2. The slightest neglect on the part of a conductor, resulting in injury to a passenger, without fault on his part, will render the company liable.
    8. The conductor of a passenger train is bound to exercise the utmost vigilance and care in guarding passengers from violence. In case of angry, threatening language he should not wait for the, overt act of violence, but should put the disorderly person out at once ; and if he fail to do so, or to make the effort, and an innocent passenger is injured in the ensuing fight, the company will be liable.
    The answers of the court to tjhe plaintiff’s points were as follows :—
    “ We answer the first and second points of the plaintiff as follows :
    “ The jury must be satisfied, from the weight of the evidence, that the negligence of the defendants’ servant, the conductor, caused, or contributed to the injury the plaintiff received.

      “ If you believe that the conductor had notice of the fight, or that there was a disturbance of the peace taking place, or imminent, it was his duty to act promptly, and do all in his power to prevent or quell the disturbance at once. If he neglected to do this, and the plaintiff was injured thereby, the plaintiff can recover.
    “ The third point is affirmed.”
    The defendants’ first point which was refused was:—

      “ The plaintiff has not made out a case entitling him to recover, and that their verdict should be for the defendants.”
    The verdict was for the plaintiff for $3300.
    The defendants removed the record to the Supreme Court by writ of error.
    They assigned for error,
    1. Refusing their first point.
    2^4. The answers to the plaintiff’s points.

      Gr. Shiras, Jr., for plaintiffs in error,
    cited Pittsb., Fort Wayne & C. Railroad Co. v. Hinds, 3 P. F. Smith 512.
    There was no paper-book for the defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, January 4th 1875.

Upon a careful examination of the plaintiff’s points we find them supported by the most ample authority, and hence conclude that the rulings of the court upon those points are throughout correct. In the case of Meier v. The Pennsylvania Railroad Co., 14 P. F. Smith 225, Justice Agnew quotes approvingly the language of Judge Bell, in Laing v. Colder, 8 Barr 482, wherein he says, speaking of the duties which common carriers owe to the passengers whom they carry : ‘‘ But though, in legal contemplation, they do not warrant the absolute safety of their passengers, they are bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence -or foresight may guard, and by which hurt or loss is occasioned, will render them liable in damages. ” It is said further in the same case: “ Primff facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carriers the onus of disproving it.”

This is the rule when the injury is caused by a defect in the road, cars or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control, as a part of its duty to carry passengers safely, but this rule of evidence is not conclusive. The carrier may rebut the presumption, and relieve himself from responsibility, by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent.”

We cannot perceive the force of the argument of the counsel for the plaintiff in error, wherein he endeavors to raise a distinction between accidents arising from negligence in the equipment or management of the train, and those arising from the misconduct of passengers upon it. If the employees of the road had no cpntrol or power over passengers, this argument would be sound. But they have such power, and they are just as responsible for its proper exercise as they are for the proper running of the train. That it should be so is most fully and forcibly exemplified in the present case.

The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or if so permitted, should have been so guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls. The duties and powers of conductors are very clearly pointed out by Justice Woodward in the case of The Railroad Co. v. Hinds, 3 P. F. Smith 512, in which he says: They may stop their trains and call to their assistance, for the purpose of suppressing riotous conduct on board thereof, not only all the employees, but also all passengers that are willing to lend a helping hand, and until the utmost effort has been made for that purpose, the responsibility of the company, which they represent, for damage sustained by orderly passengers, remains.” We have a similar ruling in the case of Flint v. Norwich & New York Transportation Co., 34 Conn. 554, in which it is held that it is the duty of passenger carriers to repress all disorderly and indecent conduct in their cars, and that persons guilty of rude or profane conduct should be at once expelled. Such is the doctrine of the books. It is wise and good, and necessary for the protection and comfort of those who travel upon our railway lines, and who, from the very character of the means used for their transportation, are, during such transportation, almost wholly dependent upon the railway officers for their safety and well-being.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Krugh versus The Lycoming Fire Insurance Company.
    1. Persons insuring in a mutual insurance company are associated in the nature of limited or special partners.
    2. An insurance company was incorporated by Act of Assembly in 1840 ; the insured to deposit anote in a sum fixed by the directors, of which ten per cent, was to be immediately paid and part or whole of the remainder when the directors should deem it requisite for the payment of losses and expanses, and at the expiration of the insurance, so much of the note as remained unpaid to be given up. A supplement in 1842, authorized a lien, waiving inquisition, on the property of the insured for the amount due on the note, the company filing a memorandum containing the name of insured, description of property, “ amount of the note unpaid,” &c. Held, that the act was valid.
    3. Defendant insured in 1870, the policy stipulating that he accepted it subject to the terms, &c., of “ the act of incorporation and by-laws,” &c. jSeld, that this waived his right to require the company to collect an assessment on the note otherwise than by the Act of 1842.
    4. The Constitution of the United States or of Pennsylvania did not preclude his waiving a trial by jury and agreeing to the manner in which judgment might be entered against him.
    October 6th 1874.
    Before Agnew, O. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 124.
    This proceeding arose on an application by Adam Krugh, to strike off a judgment which was entered against him in favor of the Lycoming Eire Insurance Company for if192.50.

      The judgment was entered June 26th 1872, in the Court of Common Pleas of Allegheny county, under the covenants, &c., of policy No. 113,010, issued by the Lycoming Fire Insurance Company, on the 10th of October 1870, to Adam Krugh, the defendant, by which “ in consideration of the receipt of $7,” the company insured him for five years against loss by fire, to the amount of $3000 ; on a house $2000, and on household furniture $1000.
    Amongst the provisions of the policy were the following : — ■
    “ And1 the said assured has become a member of the said company, by depositing, in addition to the cash premium paid, his premium-note for the sum of two hundred and ten dollars, subject to assessment at such times as the board of directors may, by the act of incorporation, require.” * * *

      “ And it is also agreed, that this policy is made and accepted subject and in reference to the terms and conditions of the act of incorporation, and by-laws of the said company, which are to be used and resorted to to explain or ascertain the rights and obligations of the parties hereto, in all cases not herein otherwise provided for.”
    The plaintiffs were incorporated by Act of Assembly of March 20th 1840, with the privileges and under the restrictions of the Bradford County Mutual Insurance Company, incorporated by Act of April 13th 1838.
    By the 5th section of that act, it was provided that: “ Every person who shall become a member of said corporation by effecting insurance therein, shall, before he receives his policy, deposit his promissory note for such a sum of money as shall be determined by the directors ; a part, not exceeding ten per cent, of said note, shall be immediately paid, and the remainder of said deposit note shall be payable in part or the whole at any time when the directors shall deem the same requisite, for the payment of losses by fire, and such incidental expenses as shall be necessary for transacting the business of said corporation, and at the expiration of the time of insurance, the said note, or such part of the same as shall remain unpaid, after deducting all losses and expenses during said term, shall be relinquished and given up to the maker thereof.” * * *
    It was further provided by the 8th section of the act, that suits at law might be maintained by the corporation against any member for the collection of the deposit-notes, or for any cause relating to the business of the corporation, &c.
    By Act of July 26th 1842, Pamph. L. 426, a supplement to the act of incorporation, it was enacted :—
    “ Sect. 11. That the Lycoming Mutual Insurance Company shall have a lien waiving the right of inquisition upon all the said property of the insured to the amount of his deposit note, or so much thereof as shall remain unpaid, which shall continue till the amount of such note, with interest and costs of execution if any, shall have been paid or satisfied, according to the provisions of the act to which this is a supplement, passed the 29th day of March 1840 : Provided, said company shall make out and deliver to the prothonotary of the county wherein such real estate shall lie, a memorandum of the name of the individual insured, a description of the property, the amount of the deposit note unpaid, and the term for which- the insurance shall continue, and the prothonotary to whom the same is delivered is hereby required forthwith to file the same and enter the name of the individual or individuals insured, with the number of the premium-note in his ad sectum index or docket, in regular order, without tax or fee, and the same, when so filed and entered, shall be deemed and taken to be in all respects as a judgment upon confession by virtue of a warrant of attorney, and execution may at any time be had thereof for so much as by virtue of the provisions of this act may be due and demandable, but the lien thereof shall commence with the filing of such memorandum in the office of the prothonotary: Provided, that such lien shall not be construed to take from such persons insured as aforesaid the privileges of a freeholder : Provided, also, that before any execution shall be issued against the members of said company it shall be- the duty of the officers of said company to cause to be made out a statement of the amount of premiums received, and the manner in which the money of the company has been expended, and file a copy thereof, attested by the oath or affirmation of the treasurer, in the office of the prothonotary of each county wherein members of said company reside who are to be affected by the issuing of such execution.”
    On the 26th of June 1872, the following affidavit was filed:—
    “E. Gr. Krehan, agent for said company, being;, sworn says, that owing to losses sustained by said company, the said Adam Krugh in October 1871, was assessed on his premium-note (a copy of which is hereto attached), the sum of $26.25. That he was duly notified of said assessment, and payment demanded from him more than thirty days prior to this date, and that he has neglected and refused to pay the same, nor has said amount ever been paid to said company.”
    The premium-note of Krugh was as follows:—
    “$210. For value received, in Policy No. 113,010, risk commencing the 6th day of October, a. d. 1870, issued by the Lycoming Fire Insurance Company, I promise to pay to the said company, or their treasurer for the time being, the sum of two hundred and ten dollars, in such portions, and at such time or times as the directors of said company may agreeably to their act of incorporation require. Witness my hand at Neville Township, the 7th day of October, a. D. 1870. Adam Krugh.”

      The docket entry of the judgment was:—

      “ And now, June 26th 1872, in pursuance of the memorandum filed in this case by the plaintiff, containing the name of the party insured, a description of the property, and amount of the deposit note unpaid, with copy of note No. 113,010, and affidavit attached; judgment is hereby entered against Adam Krugh, the defendant, for the sum of $192.50, being the unpaid balance due on his deposit note, waiving the right of inquisition, in accordance with the Act of Assembly, passed the 26th day of July 1842, sect. 11.”
    Ei. fa. No. —, Sept. T. 1872, for $192.50, interest and costs.
    On the 4th of September 1872, on application of the defendant a rule was granted to show cause why the judgment should not be stricken off, for the following reasons:—
    1. The judgment was entered without suit or warning to the defendant, and without warrant of attorney.
    2. The judgment is a general one: whereas, if plaintiff was entitled to a judgment at all (which the defendant denies), it should be restricted in its lien to the property insured.
    3. The defendant has paid regularly his annual assessment, and he verily believes that the assessment now sought to be collected in this summary way is unauthorized by law, and defendant 'has had no opportunity of properly investigating this claim, or defending himself against the same.
    4. The whole proceedings in this case are irregular and unauthorized by law.
    The rule was discharged May 28th 1873.
    The defendants took a writ of error and assigned for error, discharging the rule and allowing execution to issue for $192.50, when it appeared by plaintiff’s affidavit that but $26.25 were due.

      M. W. AcTieson, for plaintiff in error.
    By this proceeding defendant’s rights were adjudicated without his having an opportunity of being heard, contrary to the provisions of the Constitution of United States, Art. 5th and 14th, and of the Commonwealth, Bill of Rights, sect. 1. “ The law of the land,” does not mean an act of the legislature, but due process of law: Craig v. Kline, 15 P. F. Smith 413; Cooley on Constitutional Limitations 107, 362. In all judicial proceedings an opportunity to defend is necessary: Brown v. Hummel, 6 Barr 91; Norman v. Heist, 5 W. & S. 173; Banning v. Taylor, 12 Harris 293; Ervine’s Appeal, 4 Id. 268. A judgment entered without authority should be vacated: Adams v. Bush, 5 Watts 291. Trial by jury, being a constitutional right, cannot be waived by implication: Trimble’s Appeal, 6 Watts 133; Lauman v. Young, 7 Casey 306.

      J. A. Mazen, O. W. Robb and B. W. Gumming, for defendants in error.
    A policy of insurance, with its conditions, stipulations, See., is the law between the insurer and insured: West Branch Insurance Co. v. Helfenstein, 4 Wright 289 ; Susquehanna Insurance Co. v. Perrine, 7 W. & S. 348; Weisenberger v. Harmony Insurance Co., 6 P. F. Smith 442. In this policy the right of notice, hearing, &c., were waived, by the stipulation that it was accepted subject to the terms and conditions of the act of incorporation and by-laws of the company.
    Acts similar to that under which this judgment was entered have been held to be valid: Lippincott v. Barker, 2 Binn. 174; Commissioners of Butler County v. Henry, 3 Penna. R. 26.
    November 16th 1874.
   Mr. Justice Mercur

delivered the opinion of the court,

The defendant in error is a mutual insurance company. All persons who effect insurances therein, become associated together in a manner partaking of the nature of limited or special partners. The fund provided for the payment of losses, is mainly the premium notes given by the insured.

Losses are to be paid within ninety days after they are duly proved. The collection of an assessment on a premium note by a common law action, through the law’s delay, would fail to produce the money in time to meet the obligations of the company. To obviate this difficulty, and to secure a-more speedy collection, the Act of 26th July 1842, Pamph. Laws 426, was passed.

By effecting an insurance the plaintiff in error became a constituent member of the corporation. He voluntarily subscribed to all the terms and conditions of that act, and agreed with his fellow members to be bound thereby. He executed and delivered his premium note subject to all the provisions of that act. He accepted a policy which expressly declared that he had deposited the note “ subject to assessment at such times as the board of directors may by the act of incorporation require.” He thereby waived all right to compel the company to collect an assessment on his note, otherwise than said act authorized. There is nothing in the Constitution, of the United States, nor in'that of this Commonwealth, which precludes his waiving a trial by jury, and agreeing to the specific manner in which a judgment may be entered against him.

He failed to pay an assessment regularly made on his note, and due and demandable from him. The manner in which the company sought to enforce its collection was strictly in accordance with the conditions which he had imposed on himself. All the requirements of the statute were observed by the company in the entry of this judmgent.

The learned judge was therefore entirely correct in refusing to strike the judgment from the record.

The extent of the lien and what sum shall now be collected on the execution are not before us, and wrn intimate no opinion thereon. Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Ballentine versus White.
    1. The 4th sect. of Act of April 22d 1856 (Frauds), requiring declarations be in writing, is prospective. 1. The 4th s of trust, &e., t
    2. The 4th sect. of Act of. 1856 made no alteration in the rule theretofore existing, which allowed a deed absolute on its face to be shown by parol to be a mortgage. 2. The 4th ¡
    3. The words “ to enforce an equity of redemption,” in the 6th section of the Act of 1856, are confined to such an equity, “ after re-entry made for any condition brokenthey do not apply to the equity of redemption of a mortgagor.
    4. Under the Act of April 15th 1869, a wife may be called by her husband as a witness, notwithstanding she may be compelled on cross-examination to give testimony against him ; the act provides for the competency of the witness, not for the effect of her testimony.
    5. The refusal of a nonsuit is not a subject of review in the Supreme Court.
    6. After direct evidence has been given as to the genuineness of writings, the testimony of experts is admissible, either to attack or support the instruments.
    7. In equitable ejectments, the judge acts as chancellor, with the assistance of the jury, to determine the credibility of witnesses and questions of fact on conflicting evidence.
    8. The character of the whole case must satisfy the chancellor that the equity is clearly, not doubtfully, established by the evidence, if believed.
    9. As parties are now witnesses, if their testimony is in direct conflict: whether the chancery rule, that when the equity is distinctly denied by the defendant, the denial must prevail unless there be other evidence than the testimony of the plaintiff alone, shall operate; not decided.
    10. Harper’s Appeal, 14 P. F. Smith 320; Maffitt «. B.ynd, 19 Id. 387, recognised.
    October 6th 1874.
    Before Agnew, C. J., Shauswood, Williams, Meucur and Gordon, JJ.
    Error to the District Court of Allegheny county: No. 126, to October and November Term 1873.
    This was an action of ejectment, brought November 25th 1873, bj E. C. White against Nathaniel Ballentine, for three lots of ground in Temperanceville, now in the city of Pittsburg.
    The case was tried December 11th 1872, before Kirkpatrick, J.
    The plaintiff gave in evidence a deed of perpetual lease, dated April 28th 1841, from Warden & Alexander to him, for the property in dispute, -the consideration being $1 and a yearly rent of $36, with the right to purchase within six years on the payment of $600: also a transfer of the property endorsed on the lease and dated April 1st 1855, by plaintiff to defendant.
    The plaintiff testified that after he .purchased the premises, he made considerable improvements, by which the property, including the purchase-money of the ground, which was $675, cost him about $3500.
    The plaintiff then proposed to prove by the plaintiff and other witnesses, that the transfer of April 1st 1855, of the-property in dispute, was executed and delivered by plaintiff and wife, and accepted by defendant as security for indebtedness then existing and for money to be advanced'and lent by defendant to plaintiff, to a sum not • exceeding $2000, and was intended by the parties thereto as security for the same, and upon reimbursement for said indebtedness and money lent as aforesaid, the said property to be reconveyed to plaintiff.
    The defendant objected to the offer: it was admitted and a bill of exceptions sealed.
    Plaintiff testified that in 1850 he left the property and rented it to defendant, that at the time of the transfer he had considerable dealings with the defendant; he was indebted to defendant, who also became security for him, and was indebted to other people; he was to receive $120 to $125 rent for the property. * * *
    “ I proposed to Mr. Ballentine that if he would advance me money I would place in his hands my property as collateral security ; he considered it a while and then proposed to do so. * * * The understanding was, that he was to hold this property for such money as he should advance and I should need; I proposed to him that he should hold this property for money that he had already advanced, for which I" was liable and money he should advance; he agreed that he would do so; he told me I might get up an article such as suited me and he would examine it, and if it suited him he would accept it. I went and got it drawn up and we acknowledged it and he accepted it on those conditions; he was in possession ; I still considered him my agent there. The purchase-money was still on. the property, $600 on account of a lawsuit against the title of the village. We refused to pay the interest as citizens; there was something between $250 and $300 interest due to Warden and Alexander; I received from Mr. Ballentine, to the best of my recollection, about $931.60 some cents, from 1855 to 1860, and from 1860 to 1863 or 1864, to the best of my recollection, I think I received from $1200 to $1300, making some $2200- or $2300 that I received from him at different times. At the time we got the transfer made we put a nominal sum on it, $2000, independent of what was against it; that sum was named in the transfer when we had it written. On the subject of giving back the property he just said that as soon as he was reimbursed the money that I needed the property was to be mine again; he would hold it no longer. He repeated it two or three times; he would hold the property only as security, that that would be a perfect understanding. * * * The sum named in the transfer to be advanced was $2000; that sum was changed from $2000 to $1000 ; Mr. Ballentine told me he did it himself; he had been considering the matter over and he thought he would not be willing to advance that amount on the property. * * * In the spring of 1855, when I made this transfer I would not have taken less than from $4000 to $5000 for this property, in fact I did not want to sell it. * * * Taking the property altogether from 1855 to 1860 it ought to rent for $300 to $350 a year, from 1860 down to 1867 all the property ought to have rented for $600 a year, on an average, as far as I have been informed as to the value of property over there; at the present time, according to the way property on the other corner rented, not so valuable, it ought to rent for $900 or $1000 a year.” * * *
    The plaintiff ¡testified as to other facts and transactions between himself and defendant to show that the property was held by defendant as collateral security for the payment of the indebtedness of plaintiff.
    Plaintiff then offered his wife Mary White as a witness; defendant objected to her as incompetent; she was admitted and a bill of exceptions was sealed.
    She testified in corroboration of the plaintiff.
    A number of witnesses testified that the defendant had told them that he had taken the transfer of the property as collateral security for indebtedness of plaintiff to him; also that at various times previously to the bringing the suit, the defendant had said that he occupied the property as a tenant and as agent of the plaintiff. He gave much evidence also that the property was worth from $3500 to $4000 at the date of the transfer; that it was then worth about $300 rent and had increased up to 1867, and at the time of the trial to $900 rent.
    The plaintiff having rested, the defendant moved the court to direct a nonsuit; the motion was refused.
    The defendant testified in direct contradiction of the plaintiff’s testimony; and generally in answer to his case. He gave in evidence also a large number of receipts, purporting to be signed by the plaintiff, for money paid by defendant to him.
    Sarah Ballentine, wife of defendant, and J. M. Ballentine, his son, testified in contradiction of the plaintiff’s statements.
    A number of other witnesses in their testimony gave estimates of the value of the property, differing materially from those of plaintiff’s witnesses.
    In rebuttal, the plaintiff gave testimony tending to show that the receipts given in evidence by defendant were not genuine or had been altered.'
    He .then called Robert Thorn, who testified that he was an insurance agent and had been for twenty years ; his business involved the examination of writings and papers. The plaintiff then proposed to prove by*him, “ that the receipts offered in evidence have been altered and additions made thereto, and that the additions thereto were made at a different time than when the body of the receipt was written.”
    The defendant objected to the offer, it was allowed and a bill of exceptions sealed.

      This witness and other experts testified that in their judgment the receipts had been altered, &c.
    The defendant submitted the following points, which were refused :—
    1. The action of the plaintiff is barred by the statute of 22d April 1856, and therefore he cannot recover.
    2. The deed of plaintiff’ and wife to the defendant being absolute on its face, it cannot be turned into a mortgage,,or conditional deed, by proving by parol a verbal condition or defeasance, and therefore the plaintiff cannot recover.
    3. Upon the whole testimony in the case the plaintiff is not entitled to recover, and the verdict must be for the defendant.
    To the third point the court further answered :
    “ We leave this to the jury, with instructions as to the character of the testimony necessary to enable him to recover, as suggested in our general charge.”
    The court charged:—
    “ Having thus recapitulated to you the leading facts in this case, and in answer to the various points of counsel instructed you as to the law of the case as specially prayed for, we shall conclude what we have to say as a court, by a few general rules, which we deem it our duty to submit to you, as controlling your deliberations and aiding you in determining your verdict.
    “ And first, We instruct that the burden of proof is wholly upon the plaintiff. Whilst this is true in every case, it is especially and particularly so, if such a remark may be made, of a case like the present. This is a case where the plaintiff seeks to set aside a deed absolute on its face • and clear and distinct in its terms. A deed, too, not of' his ancestor or party under whom he claims, but his own individual and personal deed. * * * The presumptions of the law are that when parties reduce their intentions to writing, that the writing is the highest and best evidence of such intention, and although by no means conclusive in this regard, it is certainly not asking too much of this or any plaintiff to show to the jury that his true intentions and meaning was thus and so conveyed.
    “ And second, As to the kind and character of the evidence by which the plaintiff must make out his case. It must be clear, it must be satisfactory, it must be convincing. It must be without cloud. It must be satisfactory. It must be of such a character as to satisfy your conscience.

      “ It must he convincing, i, e. of such a character as to convince, persuade and compel your judgment to the Conclusion at which you arrive. Aside from all authority upon these essentials and requisites of the necessary evidence, their common sense and common justice are apparent. In laying down the rule then the plaintiff must make out his case, and that the burden is upon him, we have already suggested a very few of the very many reasons that might be adduced in this regard. A deed is not likely to be thrust aside, and it should not be. There should be no mistake as to the clear, satisfactory and convincing character of the evidence by which, in the estimation and finding of a jury, such a result can be accomplished. The presumptions of the law are that a deed is what it purports “to be, and it is also well and rightly and authoritatively settled that when parol proof (proof such as is here relied on) is relied on to show that a deed, absolute in form, such as this was intended by the parties, is a mortgage, it must be, as we have already instructed you, clear and convincing. And the adjudicated cases upon this subject, as is said by our own Supreme Court, go so far as to hold that the intention of the parties that it was to be a mortgage and not a conveyance, must be established by proof, not merely of declarations, but of facts and circumstances outside of the deed inconsistent with the idea of absolute purchase. So, too, that when a parol defence is set up (as in this case), it, the defeasance, should not only be proven to exist, but its terms should be established, else there could be no decree of foreclosure or redemption.

      “ This whole case is an equitable one. The plaintiff claims as a mortgage, seeking to redeem. This action, therefore, though in form an action of ejectment, is in substance and effect and virtually a bill in equity, brought by this plaintiff against this defendant, now .some seventeen years in possession, to compel a reconveyance of the land. The principles of adjudication and method of determination applicable to a proceeding by bill in equity, must equally control, avail and have application in this action of ejectment. And a chancellor will not interfere when the form of the conveyance is such that it purports to form an indefeasible estate (such as this conveyance here and now upon trial), unless some equity is shown not founded on a mere verbal declaration of two parties, in connection with its absolute terms, but in facts and circumstances independent of the debt and of the verbal declarations, and although such facts and circumstances may be shown outside of the deed by the admission of the grantee (the defendant here), after all it is the facts and not the admissions which raise the equity on which, in an action of law such as this is, entitle the plaintiff to a recovery.
    “ In conclusion, gentlemen, I beg to gay, and you will, I hope, so understand me, that I express no opinion upon the facts as disclosed by the testimony in this cause. This is for you and you alone, under the instructions which we have given you.” * * *
    The verdict was for the plaintiff.
    The defendant took a writ of error and assigned for error :
    1. Allowing plaintiff to show that the transfer was not absolute but as collateral security for debts due to defendant and to be re-conveyed when they were paid.
    2. Admitting defendant’s wife as a witness.-
    3. Refusing a nonsuit.
    4. Admitting the testimony of experts as to the receipts.
    5. 6, and 7. The answers to the defendant’s points respectively.

      J. Barton and T. 8. MacConnel (with whom was J. 8. MacConnel), for plaintiff in error.

      JD. T. Watson and JET. W. Weir (with whom was R. Robb), for defendant in error.
    The transfer being made in 1855 is not affected by the Act of April 22d 1856, sect. 4, Pamph. L. 533, 1 Br. Purd. 724, pi. 3, that act not being retrospective: Lingenfelter v. Ritchey, 8 P. F. Smith 488. A deed absolutely on its face may by parol be proven to be a mortgage : Odenbaugh v. Bradford, 17 P. F. Smith 96; Maffitt v. Rynd, 19 Id. 380. The Act of April 22d 1856, sect. 6, Pamph. L. 532, provides that no action shall be maintained to enforce an equity of redemption after re-entry made for condition broken, except within five years after such trust accrued wfith right of re-entry, &c., unless such trust, &c., shall be in writing, &c. The clause “after re-entry for condition broken,” shows that this case is not within the 6th section of the Act of 1856 : Harper’s Appeal, 14 P. F. Smith 315. As to the testimony of the experts they cited Fulton v. Hood, 10 Casey 365.
    November 9th 1874.
   Mr. Justice Sharswood

delivered the' opinion of the court,

The first specification of error complains that the learned court below admitted parol evidence to show that the transfer by White to Ballentine, dated April 1st 1855, though in form an absolute conveyance, was in reality intended by the parties as a mortgage to secure indebtedness then existing, and money to be subsequently loaned. The contention of the plaintiff in error is founded entirely upon the fourth section of the Act of April 22d 1856, Pamph. L. 533, but as the transfer in question was executed April 1st 1855, and that section is clearly prospective, as was held in Lingenfelter v. Ritchey, 8 P. F. Smith 488, it is unnecessary to consider this assignment further. It is, however, proper to add, that this court has decided the question in Maffitt’s Administrator v. Rynd, 19 P. F. Smith 387, where it is said that “ it cannot be maintained that the Act of April 22d 1856, has made any alteration in what has always heretofore been the established rule on this subject in Pennsylvania.” This also disposes of the sixth assignment.

In immediate connection with these assignments may be considered the fifth, that the court erred in refusing to affirm the first point of the defendant below, that the action of the plaintiff was barred by the limitation enacted in the sixth section of the same act. This point has also been heretofore considered by this court and determined adversely to the present contention of this plaintiff in error, in Harper’s Appeal, 14 P. P. Smith 320. It is there shown that the words “ to enforce an equity of redemption,” upon which reliance is placed, are confined to such an equity “ after reentry made for any condition broken,” and have no application to the equity of redemption of a mortgagor.

The third assignment of error is that the court erred in allowing the wife of the plaintiff to testify for him. But the language of the Act of April 15th 1869, is very explicit, that neither interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding. And the proviso only excepts the case of husband and wife testifying against each other. It is argued, as I understand, that as the wife must be subjected to cross-examination, she may thereby be compelled to give testimony against her husband. But so may her testimony in chief be when offered in behalf of her husband. He may have utterly misapprehended the effect of it, or indeed, may have been mistaken as to what it would be. The act is providing for the competency of the witness for the party for whom she is offered, not as to the effect of the testimony. She is offered for her husband on his behalf. When admitted, as by the act she must be, her husband must take all the risks of what her evidence will be, whether upon exami-' nation in chief or cross-examination.

As to the third assignment of error, that the court erred in refusing the nonsuit asked for by the defendant, it is clear that such refusal is not the subject of review in this court: Girard v. Gettig, 2 Binn. 234. The only proper course, as is pointed out in that case, is for the defendant to present the point or points upon which the nonsuit is asked, and request the answers of the' court to them in their instructions to the jury.

The fourth assignment of error is, that the court erred in admitting the testimony of so-called experts in regard to receipts which were in evidence. It was alleged, and direct evidence was given by the plaintiff below to prove, that the receipts had been altered, and then experts were offered to show that these alterations were not made at the same time with the body of the receipt. It was ruled in Fulton v. Flood et al., 10 Casey 365, that the testimony of experts is receivable, in corroboration of positive evidence, to prove that in their opinion the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. This case is indeed the converse of that, but the principle is undoubtedly the same, whether the evidence is of experts to attack or support the instrument.

It only remains to consider under the seventh assignment, whether upon the whole testimony, the case ought to have been, as it was, submitted to the jury. It is unquestionable, and is now horn-book law, in this state, that in controversies of this character —in equitable ejectments — the judge acts as chancellor, with the assistance of the jury, to determine the credibility of witnesses and questions of fact upon conflicting evidence. It is true that the character of the whole case as presented must be such as to satisfy the conscience of the chancellor, that the equity is clearly, not doubtfully, established by the evidence of the witnesses, if believed. How far he may be called on to exercise his discretion upon the credibility of witnesses it is not necessary to decide. That is now a very important question, since both parties are competent witnesses, and when their testimony is in direct conflict, the chancery rule may perhaps he invoked, that when the equity is distinctly denied by the defendant, his denial must prevail, unless other evidence he given than that of the plaintiff alone. In this case there was ample evidence by other witnesses than the plaintiff, both of acts and declarations by the defendant below, 'the plaintiff in error, to establish the equity, that the absolute deed was intended as a mere security for money-loaned and to be loaned.

Judgment affirmed.


text:
    Hanna, survivor of McVay & Co., versus Wray.
    1. Where one partner is dead, in a suit against the survivor for a claim against the firm, the plaintiff is not a competent witness, under the Act of April 15th 1869.
    2. When a party to a thing or contract is dead and his rights have passed by his own act or that of the law to another representing his interest in the controversy, the survivor to that subject cannot testify to matters occurring in the life of the deceased party.
    3. The rights and liabilities of a deceased partner under the partnership, devolve upon the surviving partner.
    4. In the settlement of the partnership account of the survivor with the representatives of the deceased partner, the survivor would be entitled to credit for a judgment for a firm debt recovered against him without his collusion or neglect.
    5. Whether plaintiff was competent under a special, offer to testify as to matters between him and the surviving partner only, riot decided.
    6. Karns v. Tanner, 16 P. F. Smith 297, adopted.
    October 7th 1874.
    Before Agnew, O. J., Shabswood, Williams, Mebcue and Gobdoh, JJ.
    Error to the Court of Common Pleas of Allegheny county: No. 134, to October and November Term 1873.
    This case was an action of assumpsit, commenced March 19th 1866, by Robert Wray, Jr., against Ira B. McVay, C. B. McVay and James P. Hanna, partners as Ira B. McVay & Co. On the 28th of April 1866, on motion of plaintiff, the name of C. B. McVay was stricken from the record.
    In his affidavit of claim, the plaintiff averred that the defendants were bankers in Pittsburg; that in April or May 1865, he sold them a promissory note, drawn by James McClelland, dated April 1st 1865 for $1000, payable in sixty days, to the order of William M. Dawson, endorsed by him and R. P. Gordon ; that the note when it became due, June 3d 1865, was in the possession of defendants, and no demand for payment on that day was made on Dawson, nor was any notice of non-payment given to the endorsers until the 5th of June 1865, and the endorsers were thereby discharged ; that plaintiff having received notice from the defendants that the note had been presented for payment and had not been paid, he believed that payment of the note had been duly demanded and the endorsers duly notified; on the 10th of July 1865 he paid the defendants $1007.34 and “ lifted” the note ; that McClelland is insolvent, that the other endorsers were solvent, and the amount of the note could have been collected from them, if they had not been released from their liability by the neglect of the defendants in not making proper demand and giving due notice of non-payment; that he paid the amount due on the note under a mistake of the facts, and if he had known the facts he would not have paid the amount of the note to the defendants.
    In their affidavit of defence, the defendants averred, amongst other grounds of defence, that they, discounted the note with the express understanding with the plaintiff that they were to have no trouble nor incur any responsibility about it, and on the promise of the plaintiff that he would take care of it at maturity, and therefore they were not bound to have the note presented for payment on the day it became due nor to notify the endorsers ; nor did they undertake to do so; that the plaintiff paid the money long after he knew or might have known of the irregularity of the protest, &c.
    After the cause was at issue, Ira B. McYay died, and on the 8th of January 1867 his death was suggested on the record.
    The case was tried June 9th 1873, before Stowe, J., the jury having been sworn in the issue against James P. Hanna only as surviving partner.-
    The plaintiff gave in evidence the note mentioned in his claim and then offered himself as a witness.
    He was .objected to on the ground that Ira B. McYay, one of the partners, was dead, and the plaintiff was therefore incompetent.
    The plaintiff was admitted and a bill of exceptions sealed.
    He testified to transactions and conversations between himself and Ira B. McYay, the deceased partner, in relation to the purchase or discount of the note; and other matters in support of the allegations in his affidavit of claim.

      The plaintiff gave other evidence in support of his case; and the defendant gave evidence in answer to it.
    No further statement of the evidence is necessary, the Supreme Court having decided the case solely on the question of the plaintiff’s competency as a witness.
    The verdict was for the plaintiff for $1485.82. The defendant took a writ of error and assigned for error, amongst others: admitting the plaintiff to testify.

      O. B. M. Smith (with whom was S. M. Raymond), for plaintiff in error.
    The plaintiff was incompetent to testify under the Act of April 15th 1869, Pamph. L. 30,1 Br. Purd. 624, pi. 15, whose object was to produce perfect equality; which would not be if either party were dead; to remedy this the proviso was incorporated into the act; if the plaintiff here can testify, both the spirit and reason of the proviso would be nullified: McBride’s Appeal, 22 P. F Smith 480 ; Karns v. Tanner, 16 Id. 297; Allum v. Carroll, 17 Id. 68. In an action against McVay’s administrator, the representative of his estate, the plaintiff could not testify; the surviving partner being the representative of the partnership estate for whose liabilities McVay is responsible,, maintains the same relation to him ; any payment by the surviving partner can be recovered from the deceased partner’s estate: Lindley on Partnership 642; Story on Partnership, sect. 219, 220; Parsons on Partnership 285 ; Collyer on Partnership 156, 157; Wright v. Hunter, 5 Vesey 792; Pearson v. Skelton, 1 M. & W. 504.

      W. W. Thomson and B. Reed, for defendant in error,
    cited Given v. Albert, 5 W. & S. 333 ; 1 Greenleaf Evidence, sect. 522, 523; Brewster v. Sterrett, 8 Casey 115; Moore’s Appeal, 10 Id. 411.
    November 9th 1874.
   Chief Justice Agnew

delivered the opinion of the court,

There is but one question which we need consider — the competency of Robert Wray as a witness in his own behalf. He was called and permitted to prove a transaction, and the conversations between himself and Ira B. McVay, the deceased partner of the defendant.

The case turned upon the special arrangement, relating to the note out of which the controversy arose, made between himself and McVay. They were the acting parties in the transaction, and when McVay died, the truth, so far as it could be heard from his lips, died with him. Wray, therefore, stood upon a vantage ground, which he had gained by the death of McVay. This brings the case within the true intent and spirit of the exception contained in the Act of 15th April 186.9, and directly within the decision in Karns v. Tanner, 16 P. F. Smith 297. In that case the Act of 1869 was fully and carefully considered, and the interpretation then given to it has since been repeatedly recognised. -It was then said that the proviso was the product of two thoughts; one that there were certain confidential relations to be protected against disclosure ; the other, that there were cases of inequality where it would be unjust to open a door to one party that was closed by death against the other. In reference to the second class, it was said, it was evidently >the true purpose of the proviso to close the mouth of him who is the adversary of the deceased assignor.

The conclusion reached was this, in the language of the opinion : “ The true spirit of the proviso then seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or that of the law, to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed.” Hence it was held there that Mrs. Tanner, who became the owner of the estate, the subject of controversy, by a sheriff’s sale, after the death of Mr. Tanner, stood in the relation contemplated by the proviso, and that Mr. Tanner was the deceased assignor within the terms of the law.

That case, therefore, rules this, for here, by operation of law, the rights and the liabilities of McVay devolved upon Hanna, the surviving partner. There is clearly no difference in principle between a devolution of McVay’s estate upon another, directly by law, on the happening of a certain event, and its devolution by a sale at law. In either case it is the act and operation of the law, really more direct in the former case than in the latter., which required certain legal instrumentalities, to wit, the executions, in order to produce the result.

Nor can it make any difference that it was only one-half of the subject of controversy that thus devolved upon the survivor, when, aa here, the whole controversy rests on the transactions of the deceased partner. Hanna became accountable to the estate of McVay for one-half of the money received from the plaintiff, and liable for his partnership transactions, and was entitled to the testimony of McVay to defend his interest and that of the partnership, according to the spirit and intent of the proviso. But it is argued that the judgment against Hanna could not be given in evidence against the estate of McVay. This is a mistake. Clearly in the settlement of the partnership account of Hanna, as the surviving partner, with the legal representative of McVay, Hanna would be entitled to a credit for the payment of the judgment recovered against him as surviving partner, unless it could be shown that the judgment was recovered through his collusion or fraud, or his gross neglect. The simple question, therefore, was, whether the plaintiff should be permitted to recover against the partnership, in effect, through his own testimony, when the acting partner, who transacted the business, was dead, and the benefit of his testimony was lost to the partnership. It seems to us too clear that he should not.

The offer was not special to prove, by the testimony of the plaintiff, matters occurring between the plaintiff and Ilanna. How far such a special offer would take the case out of the proviso it is unnecessary to determine now, for the plaintiff here was offered as a witness generally, and it was not proposed to confine his testimony to transactions between Hanna and himself; while in fact the general offer of himself as a witness was actually followed by a narration of the transactions between McVay and himself. For this error the judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Gokdon

text:
    Realf versus Realf.
    1. If a libel in divorce set forth generally the causes of complaint, although without the particulars of time, place, &c., it satisfies the requirements of the Act of Assembly; if more be desired by the respondent, a demand should be made on the libellant for specifications.
    2. In a libel for divorce for adultery, on demand for specifications, the libellant specified adultery with one individual named, “ in the months of February, March and April 1872, in the city of Pittsburg ; exact timo and place unknown,” and “visiting, in August and September 1871, the house of ill-fame of A., in Virgin alley, Pittsburg, for the purpose of fornication with divers persons unknown to your petitioner.” Held, a sufficient specification. •
    3. Evidence of improper intimacy with other men, and at other times and places than those mentioned in the specifications, not admissible.
    5. Hancock’s Appeal, 14 P. F. Smith 469, adopted.
    October 9th 1874.
    Before Agnew, O. J., Sharswood, Williams, Merour and Gordon, JJ.
    Appeal from the Court of Common Pleas of Allegheny county: No. 16, of October and November Term 1874.
    This was a proceeding in divorce by Richard Realf against Catharine L. Realf. The libel was filed and the subpoena awarded, August 1st 1872.
    The allegations in the libel were that the respondent had offered such indignities to the libellant’s person as to render his condition intolerable and his life burdensome, and thereby forced him to withdraw from all association with her ; also that she had for a considerable time “ given herself up to adulterous practices and been guilty of adultery with divers persons to your petititioner unknown."’
    On the 31st of August the respondent obtained" a rule on the libellant, “ to file a specification setting forth the names of the persons with whom the adultery charged is alleged to have been committed, and the dates and places where the same is alleged to have been committed; also the nature and kind of the indignities alleged to have been committed and the time and place where committed.”
    The libellant fifed his specifications November 27th 1872.
    1. Divers acts of adultery with Daniel Neil in February, March and April 1872, in Pittsburg. “ Exact time and place unknown.”
    2. Respondent divers times in August and September 1871, visited the house of Annie Wilson, a place of ill-fame, in Virgin alley, Pittsburg, for the purpose of fornication with divers persons unknown to the libellant.
    3. On two occasions respondent threatened libellant’s life.
    5. Respondent, for two years past, had followed libellant whenever she met him with curses, oaths and general bad behavior.
    “Libellant avers that it is now impossible to give the particular acts of adultery committed by the respondent, the names of the particular persons with whom it was committed, the time and place of the offence, but expects to be able to prove the same fully on the trial of the libel.”
    By her answer the respondent expressly and categorically denied the allegations in the libel and the specifications; she also charged libellant with acts of ■ adultery with an individual named and others unknown to her, and also that he was in the habit of frequenting bawdy-houses.
    Libellant filed a replication and the cause was tried February 13th 1873, before Collier, J.
    The libellant testified to respondent pursuing him on many occasions with opprobrious epithets, &c.
    Margaret Clinton testified that respondent told witness that she had lived in a bad house. Witness being about to testify as to a man named Pass, respondent objected to witness testifying as to any alleged adultery with Pass, because no notice of adultery with him had been given in the libel or specifications.
    The objection was overruled, and a bill of exceptions sealed.
    Witness then testified as to the conduct of respondent with Pass; and also another man not named.
    Other witnesses were called, and under similar objections and exception, testified as to libellant’s conduct with other men not named in the specifications.
    Rose Raney testified to acts of the respondent with Daniel Neil, tending to establish adultery with him. She also testified, “ Annie Wilson’s was not a regular bad house, but it was not decent; saw respondent and a man go into Annie Wilson’s.”
    For respondent, Daniel Neil testified that he never had any improper intercourse with her.
    There was testimony also by a sister of Rose Raney, that she was “.soft-witted ” .and not to be believed on oath.

      The respondent testified, denying that she had committed adultery with Neil. There was also other testimony on her behalf.
    The verdict was for the libellant and the court decreed a divorce. The respondent appealed to the Supreme Court and assigned for error, amongst other things, the admission of testimony of other acts than those stated in the libel and specifications.

      J. L. Bigham and W. B. Moore, for appellant,
    cited Light v. Light, 17 S. & R. 273; Garrat v. Garrat, 4 Yeates 244; Breinig v. Breinig, 2 Casey 161; Hancock’s Appeal, 14 P. F. Smith 470.

      Bayne and Magee, for appellee.
    November 9th 1874.
   Mr. Justice Gokdon

delivered the opinion of the court,

In Hancock’s Appeal, 14 P. F. Smith 470, as well as in the case of Breinig v. Breinig, 2 Casey 161, it was held that if the libel sets forth generally the causes of the libellant’s complaint, though unaccompanied by the particulars of time, place, &c., it is sufficient to satisfy the requirements of the Act of Assembly, and if the respondent requires anything more specific, he or she should demand of the libellant a specification of the particulars intended to be proved. That which is wanting in the petition may thus be supplied and the respondent fully informed of what he or she may be called upon to meet. This rule is so obviously just and proper that courts should not hesitate to enforce it strictly. In the case in hand the libellant was required to file'a specification setting forth inter alia the names of the persons with whom the alleged adultery was committed, together with the dates and places.

In answer to this the libellant specified the commission of adultery by the respondent with one Daniel Neil, in the months of February, March and April 1872, “ and that on divers occasions in August and September 1871, she visited a house of ill fame in Virgin alley, in the city of Pittsburg, for the' purpose of committing adultery, with divers persons unknown to the petitioner.”

We hold these specifications to have been sufficient, and had the proof agreed with the allegations the decree of divorce would have been well founded. Such however was not the case. The witness who testified to the improper intimacy between Neil and Mrs. Realf was proved, in the language of the witnesses, to have been “soft-witted or crazy,” and besides this, Neil denied all improper intimacy with the respondent. So the house alleged to have been, a bawdy-house, and which Mrs. Realf frequented, was not proved tov be such, or at least not with sufficient clearness to make out the complainant’s cause.

The court however permitted the libellant to go out of his specifications, and prove intimacy with other men, and at other times than those set forth, and in this manner to carry his case with the jury. This was a violation of the wholesome rule above referred to, and for this cause the proceedings must be reversed.

The decree in this case is accordingly reversed, and a venire facias de novo ordered.


author: Mr. Justice Meboub

text:
    Kenney versus Altvater & Co., for the use of Marks.
    1. Altvater and Marks, being partners as stone-masons, and having contracts for buildings, were purchasing stone for their business; Altvater sold tools to the defendant, owning a stone-quarry, under a contract that they should be paid for in stone ; the stone was delivered at the time specified, the firm having been dissolved previously; Altvater used them for his own purposes. Held, that the payment for the tools by delivery of stone to Altvater was good, although after dissolution, if defendant did not know of the dissolution.
    2. The purchase of stone by Altvater was within .the scope of the firm’s business, and the payment by delivery of the stone to him was in fulfilment of the contract.
    3. The misapplication by Altvater of the stone did not impair the validity of the payment.
    4. A delivery in good faith to one partner, according to a contract, is a delivery to both ; each having authority to receive it.
    5. A person dealing with a firm must have actual notice of dissolution, in order to avoid his transactions with one of the partners after dissolution.
    6. A letter stating the dissolution, of a firm, sent by mail properly directed to defendant, with evidence that the letter was not returned from the Dead Letter office, is not sufficient, without other evidence of its receipt, to charge defendant with notice of the dissolution.
    7. With slight corroboration a jury might find such notice.
    8. The rule that letters properly directed and marked are evidence as of the dishonor, &c., of negotiable paper, is restricted to commercial paper.
    October 9th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 23.
    This was an action of assumpsit, brought January 3d 1873, by Fred Altvater and Joseph Marks, partners as Altvater & Co., for the use of Joseph Marks, against Samuel Kenney.
    The claim of the plaintiffs, as set out in the affidavit of Marks, was for quarrying tools specified in a bill accompanying the affidavit ; it amounted to $162.01; the articles were charged in the bill as delivered February 10th 1872.
    By his affidavit of defence, the defendant averred that he had paid the full amount of the claim, December 19th 1872 ; that he had had nothing to do with Marks, but only with Altvater, to whom he paid the money in full, as appeared by a receipt to a bill annexed to the affidavit, amounting to $162.01, which was the entire amount he owed Fred Altvater and Joseph Marks.

      The bill accompanying this affidavit, contained the same items as that annexed to the affidavit of claim ; the receipt was at the foot of the bill, was without date and was signed, “ Fred Altvater & Co., by H. Altvater.”
    The defendant’s affidavit did not deny the correctness of plaintiff’s bill.
    The case was tried November 20th 1873, before Kirkpatrick, J.
    The plaintiff gave in evidence his bill of particulars as filed, and rested.
    The defendant testified that he had a stone-quarry at Baden, Beaver county, and bought the tools mentioned in the bill from Altvater at the date of the bill, with the understanding that he was to furnish Altvater with stone, and Altvater would take stone for the tools defendant got from him and deduct them out of the bill; the stone were furnished to Altvater and he used them wherever he wanted them; he began furnishing the stone in March 1872, and furnished Altvater about $4300 worth in that year. The bill in suit was settled according to the contract; Altvater paid him what money was coming to him and charged him with the bill for tools; he receipted the hill and gave it to defendant.
    On cross-examination he said, that he did not know Al-tvater was doing business for himself when he delivered the stone and made the settlement; he did not know anything at all about the dissolution of the partnership between Altvater and Marks. Esquire Anderson wrote to him about the claim some time through the summer; when he got the receipt he did not know that the firm was dissolved; did not know it till he got the notice from Esquire Anderson. The bill for the tools came with them; defendant never had any dealings with Marks; he had furnished far more • stone than the bill for the tools came to before he received notice from Anderson.
    Altvater testified that he and defendant agreed at the request of defendant to furnish defendant quarry tools and take their price out in stone; that he delivered the tools to defendant and he delivered witness stone; some of the stone went to the South Pitts-burg schoolhouse, which was a firm contract; Marks got some of the money out of it; witness generally drew the money; defendant and he settled for the tools ; defendant commenced to deliver stone in March 1872 and stopped in the fall of 1872.
    On cross-examination he said, the firm was dissolved March 4th 1872, and on the 18th witness commenced business in his own name; after the dissolution the work on the contract for the South Pittsburg schoolhouse was done for himself and not for the firm. He settled defendant’s bill after the dissolution; but before this suit was brought.
    In rebuttal, plaintiffs gave evidence that the firm was dissolved March 4th 1872.

      Esquire Anderson testified, that Marks in December 1872 placed in his hands a hill against the defendant, and he wrote to defendant to Baden, requesting him to attend to it; defendant some days after called at his office and said that he had settled it that day.
    J. Greene, a bookkeeper of Marks, testified that he had made out a bill similar to that in suit and sent it to defendant, directed “ Baden, Beaver county,” in the second or third week of April; he wrote him that the firm was dissolved and that the bill was to be paid to Marks ; witness never got an answer; nor ever got the letter from the Dead Letter office; it was signed in Marks’s name.
    Marks testified that he had never received the letter sent by his clerk, Greene, to defendant, from the Dead Letter office.
    The plaintiff’s points which were affirmed were :—
    1. If the jury find that the claim sued for was a partnership debt due to the firm, Altvater and Kenney had no right to apply or settle the same by application of said account in settlement of a debt contracted by Altvater individually, in the purchase of stone sold and charged by Kenney to Altvater.
    2. That the defendant had no right to settle with Altvater individually, and take credit for the account due to Altvalter & Co., after notice of the dissolution of the firm, and that Jos. Marks was the liquidating partner, with the sole right to collect the debts due to the firm.
    3. That the rule of law stated in the second point would be the same whether the debt due to the firm was. payable in money or chattels.
    The defendant’s points and their answers were : — •
    1. If the jury believe from the evidence that the contract between the parties as to the sale of the tools sued for, was that the defendant was to deliver stone to plaintiff in payment of the same, and that the defendant, in the opening of the spring, went on and delivered stone to Altvater in payment of the same before he received notice of the dissolution of the firm, that such payment was good.
    Answer: “ This point, as presented, is refused; if this point had suggested the delivery of the stone to Altvater & Co., instead of Altvater alone, we would have affirmed it; as it is already stated it is Refused.”
    2. To a party who has an account or dealings with a firm, personal notice of a dissolution of said firm must be given, and proof of a notice sent by mail is not sufficient without proof that the same was received by the defendant.
    Answer: “ This point is refused; it is in effect asking us to say in this case, as matter of law, that the defendant had no notice of the dissolution of the firm of Altvater & Co. This is a question of fact for the jury, which we leave to be found by them from all the evidence in the cause bearing upon this branch of the case. Notice is intended to give knowledge, and, therefore, knowledge, however acquired, generally renders notice unnecessary : whether a person has actual knowledge of a dissolution is a question of fact for the j^y.”
    3. If the jury believe from the evidence, that a contract was made in February 1872, between the plaintiffs and the defendant, as to the sale of the tools and the delivery of the stone mentioned, any future contract between Altvater and Marks as to the dissolution of their firm could not affect the defendant Kenney, who was not a party to the same.
    Answer: “This point is affirmed.”
    The verdict was for the plaintiffs for $178.21.
    The defendant took a writ of error: he assigned for error :—
    1. Affirming plaintiffs’ first point.
    2. Affirming plaintiffs’ second point.
    3. Affirming plaintiffs’ third point.
    4. The answer to defendant’s first point.
    5. The answer to defendant’s second point.

      J. Barton, for plaintiff in error.
    Actual notice of dissolution of a firm must be given to persons dealing with it: Watkinson v. Bank of Pennsylvania, 4 Wharton 482.

      A. M. Brown, for defendants in error.
    November 16th 1874.
   Mr. Justice Meboub

delivered the opinion of the court,

We discover no merit in the first three assignments of error.

The fourth assignment involves the validity of the payment made by the plaintiff in error.

Altvater and Marks constituted the firm of Altvater & Co. When the bill of goods was purchased, for which Marks now claims to recover, they were engaged in business as stonemasons; they were also contractors in the erection of buildings. As such they were purchasing and using stone. Altvater sold the goods to the plaintiff in error under an express agreement that they should be paid for in stone the next spring; The stones were delivered at the time specified and accepted by Altvater. In the intermediate time the firm had been dissolved. Altvater used these stones for his individual purposes. If the firm had not been previously dissolved, the delivery of the stones to one of the partners in pursuance of the contract, would have unquestionably been a good payment. The contract of their purchase by Altvater was within the general scope of the partnership business. ' The payment thus made by the plaintiff in error was in fulfilment of the contract. The misapplication by one of the firm did not impair the validity of the payment. Nor did it matter that the payment was made to Altvater after the dissolution, if it was made without notice thereof.

The learned judge makes a distinction between a delivery to Altvater and one to Altvater & Co. A delivery in fact to one of the partners in good faith according to the contract, was in law a delivery to both. Each member of the firm had authority to receive the payment thus made. The receipt of one was the receipt of both. The distinction under the evidence, we think, is unsound, and this assignment is sustained.

The fifth assignment relates to what notice of the dissolution is necessary to affect one previously dealing with the firm. The effort was to charge the plaintiff in error with notice by proof that a letter duly mailed to his address was sent by Marks’s bookkeeper, notifying him of the dissolution and requesting payment of the bill of goods to be made to Marks. This was followed by proof that the letter was not returned from the Dead-Letter office. There was no proof going to show that notice was given in any other manner. Hence, if any actual notice was received, it was personal notice. He was entitled to actual notice : Stoi*y on Part., § 161; Watkinson et al. v. Bank of Pennsylvania, 4 Wharton 482; Brown v. Clark, 2 Harris 469. Letters properly directed and duly mailed are sufficient evidence of notice of the dishonor of bills or non-payment of negotiable notes. This rule is restricted to commercial paper. It establishes no such legal conclusion in other business relations : Tanner v. Hughes, 3 P. F. Smith 289. Hence in First Nat. Bank of Bellefonte v. McManigle, 19 P. F. Smith 156, it was held that there is no presumption of law that a letter directed and mailed to one at the place where he usually received his letters, was received by him. It is nevertheless a step towards proving actual notice. With slight corroborative evidence, a jury might be justified in finding such notice.

While the learned judge did say in answer to the second point submitted by the plaintiff in error, that whether a person has actual knowledge of a dissolution is a question of fact for the jury, and that knowledge, however acquired, generally renders notice unnecessary, yet it is not such an answer as the point demanded. The court was asked to charge that “ proof of a notice sent by mail is not sufficient, without proof that the same was received by the defendant.” The answer was not specific. It was calculated to divert the attention of the jury from the only form of notice of which there was any substantial proof. In not affirming this part of the point, the court erred, and to that extent the assignment is sustained.

Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Shakswood dissented from the point as to notice of dissolution.


text:
    Killbuck Private Road.
    1. A private road must have for its principal terminus the plantation or dwelling of the petitioner.
    2. It is error to fix the width of a private road at thirty-three feet, the act limiting the width to twenty-five feet.
    3. By an Act of Assembly (February 24th 1873) a surveyor is to be appointed for Allegheny county, with authority to appoint a deputy to perform his duties; the surveyor to act as artist on road views, &e. Viewers were appointed, the county surveyor by name being one, without designating his office. The report was signed by his deputy. Held, that the substitution of the deputy was proper.
    4. Sandy Lick Creek Road, 1 P. F. Smith 94, recognised.
    October 12th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1874, No. 87.
    The proceedings in this case were for a private road, upon the petition and for the use of James M. Graham, Benjamin Waters and F. H. Anderson, in Killbuck township.
    The petition was presented April 26th 1873, representing that the petitioners labored under “inconvenience for want of a private road to lead from the end of a private road (granted by IT. P. Mueller, deceased, to the grantees of certain property in said ITillbuck township, the above-named petitioners being some of said grantees) to the river at, &c., on the ground or land of Robert Phillips.”
    Viewers were appointed who reported; that the road prayed for was necessary, and they returned a private road as follows:—
    “Beginning at the east end of said private road at a post in centre thereof, thence on lands of Robert Phillips, south 51° east 10 perches, more or less, to low-water line on the Ohio river near to said bunch of willows, a diagram of which is hereunto annexed. The above road seems to be a continuance of the road by H. P. Mueller, and terminating on the lands of Robert Phillips, and he for some reason, best known to himself, has put a gate on said road, near to his line, preventing the petitioners from the use of that end of the road, which leads to the Ohio river. We award no damages to Robert Phillips, he having refused to give a release.”
    On the 2d of June 1873, the road was approved and when opened to be thirty-three feet wide.
    On the 2d of August 1873, Robert Phillips presented a petition for review, representing that the “ private road, if confirmed by the court, will be very injurious to your petitioner, and burthensome to him, and that said road is not necessary for said petitioners for the same, and further that the said petitioners to said private road are not entitled to have the same, as it does not lead from their property to a public road, and is not necessary as a private road, and the petitioners for said private road have now a good public road to said river close by and nearly parallel to this private road.”
    The re-viewers reported:—
    “We have reviewed said private road from a point on the Beaver road, thence south along the centre of said private road 16-J feet wide 11.8 perches to centre of said road at 33 feet wide, thence south 74° 20' east along the centre of said road 16.2 perches to Robert Phillips’s line, thence through land of said Robert Phillips to the Ohio river. We do further report that-in our opinion that part of said road through land of Robert Phillips is unnecessary and of great damage to him. Not necessary because the parties asking said road have a front of 16.2 perches on the Ohio river between said points.”
    This report was approved and ordered to be filed.
    On the 4th of October 1873, Anderson and Graham, two of the original petitioners, petitioned for a re-review; the court appointed George M. Bowman (artist), William Miller and James M. Smith, re-reviewers. Bowman was county surveyor of Allegheny county.
    The re-reviewers reported that they were “of opinion that a road is necessary at the place prayed for in said petition, and that after examining a deed of conveyance from H. P. Mueller, Esq., to Robert Phillips, whereby the land therein described is conveyed to him, the said Robert Phillips, for the purpose of a road, and for no other purpose whatever, and under certain conditions, to wit: The express provision, that the said party of the second part, his heirs or assigns, shall make said road at their own proper expense, and keep the same in good and sufficient repair at all times hereafter, the party of the first part reserving to himself, his heirs or assigns, of his other land at or near Killbuek station, now owned by him, the right to use said road from the Beaver road to the end thereof on the Ohio river, without further let or hindrance, to have free ingress and egress therein for ever, for the purpose of a road, and for no other purpose whatever, and notwithstanding ample provision has thus in our opinion been made for the accommodation of the petitioners, we have nevertheless laid out and returned for private use the following described road, commencing at a point at equal distances between the posts to which a gate is swung across the end next the river of the said road, thence south, &c., to the Ohio river, together 70J feet of river beach, the property of said Robert Phillips, to whom, having been applied to for a release of damages and being refused, we award no damages. James D. Hilands, Deputy Engineer, William Miller, James M. Smith.
    By Act of February 24th 1873, (Pamph. L. 155), the District Court of Allegheny county was authorized to appoint a “ surveyor and civil engineer” for that county, who should have authority to

      appoint a deputy. Amongst other duties imposed by the act on the surveyor and engineer, it was enacted that he should “ either in person or by deputy act as artist in all road and bridge views, &c., where the same may be ordered by the court,” &c.
    On the 2d of December 1873, the report of the re-reviewers was approved and the road ordered to he opened thirty-three feet wide.
    Exceptions to the reports were filed by Phillips.
    I. That Bowman was appointed a viewer and the report was not signed by him but by Iiilands.
    3. The report finds that petitioners have ample accommodations without the private road.
    7. There is a public road from the Beaver road, just below ex-ceptant’s private road, and landing.
    The location of the different roads, &c., involved in this controversy appear to he as follows: Phillips owned land on the Ohio river, south eastwardly of the petitioners’ lands; from the line of Phillips’s land there is a private road (referred to in the reports) to Glendale station on the Beaver road and the Pittsburg, Eort Wayne and Chicago Railroad; at the line of Phillips’s land and the end of the private road there is a gate referred to in the reports ; the existing private road (Mueller’s) from Phillips for a distance of 162 perches is thirty-three feet wide ; at the end of -that distance it turns about at right angles and reaches the Beaver road at the distance of 11.8 perches, being for that distance sixteen and a half feet wide.
    On the 27th of February 1874, .the court dismissed the exceptions and confirmed the report of the re-reviewers.
    Phillips removed the record to the Supreme Court by certiorari; he there assigned for error :
    3. Confirming the re-review made by other persons than those appointed.
    4. Confirming the report although it found that the petitioners had ample accommodation without the private road.
    6. Fixing the width of the private road at thirty-three feet.
    8. None of the petitions asked for a private road from the dwellings or plantations of the petitioners to the highway or place of public resort or to some other private way.

      It. Woods (with whom were S. Woods and J. WMteselT), for certiorari,
    cited Sandy Lick Creek Road, 1 P. F. Smith 94.

      J. It. Large, contó.
    November 16th 1874.
   Mr. Justice Gordon

delivered the opinion of the court,

It appears from the several reports of the viewers and reviewers, and the drafts submitted to us in this case, that this private road, as petitioned for by James N. Graham et al., and as confirmed by the court, has for one of its termini a private road leading to a public highway, called the Beaver road, and for its other the Ohio river.

That it was error in the court to make such confirmation, under the circumstances, is patent from the Act of Assembly under which the proceedings were had.

That act (of 1886) requires that such private road shall have for its principal términus the dwelling or plantation of the petitioner. If it have not this essential feature it is outside the provisions of the act, and therefore without authority and void: Sandy Lick Creek Hoad, 1 P. F. Smith 94.

The court committed a further error in fixing the width of the road at thirty-three feet, as the limit prescribed by the act is twenty-five feet.

Exception is also taken to the record because the name of Hilands appears in the report as a viewer, instead of that of Bowman, the appointee of the court; hutas it is admitted that Bowman was the county surveyor, and Hilands his deputy, this substitution was regular and proper under the Act of Assembly “ Belating to the office of Surveyor and Civil Engineer for the county of Allegheny,” February 24th 1873, Pamph. L. 155.

Let the proceedings of the Quarter Sessions be set aside.