author: Mr. Justice Swarswood

text:
    Jordan et al. versus McClure.
    By an instalment made in 1819, James Nicholson conveyed certain land to Poinpey, Tamer and Betty, “ for their own use during their natural life, and afterwards to their lawful, if they have any, and if not lawful issue remains after their death, the above-described land shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer and Betty are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary his wife, and not before, then to have full possession, one or more of them, during their natural life and the life or lives of their lawful issue.” By will in 1828 he devised the same tract, after death of testator’s widow, to the same persons, “ to stand sure to them and their heirs with all the buildings and improvements thereon, and when any one dies the living ones must heir their share of all property I give them.” Held, (1.) That if the instrument of 1819 was a testamentary paper, it was revocable and revoked by the will under which the devisees took an estate in fee as tenants in common with an executory devise over to the longest liver. Turner v. Scott, 1 P. P. Smith 120, recognised. (2.) That if it was an irrevocable grant it conveyed to the grantees an estate for their lives, with remainder to their children for their lives, but as the remainder was contingent, there being no children in being, the reversion in fee vested in the grantor. (3.) In a deed .the word “ issue” will not supply the want of the word “ heirs.”
    November 17th 1877.
    Before Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ. The Chief Justice did not sit in this case, having been eoneérned therein as counsel.
    Error to the Court of Common Pleas of Beaver county: Of October and November Term 1876, No. 262.
    This was originally an action of ejectment in the court below, between Joshua R. G. Jordan, Emanuel Patterson, Ruth Ann Patterson, Martha M. Jordan, and Mary E. Jordan, plaintiffs, and William McClure, defendant, in which the parties agreed upon the •following case stated:—
    And now, to wit: October4th 1875, it is hereby agreed, by and between the parties to the above suit, that the following case be stated for the opinion of the court in the nature of a special verdict.
    James Nicholson in his lifetime, in the year 1819, was seised in his demesne as of fee of and in one hundred and twenty acres and one hundred and thirty perches of land in the township of Big Beaver, in said county of Beaver, and then had in his service three persons, named respectively, Pompey Frazier, Tamer Frazier and Betty Mathers, whom he claimed as his slaves.
    By a deed dated the 6th day of May 1819, entered for record ' on the 19th May, James Nicholson and Mary his wife, conveyed said Land to said Pompey, Tamer and Betty, subject to the following restrictions and limitations, viz.: “ To hold the said parcel or lot of land for their own use, during their natural life and after-wards to their lawful, if they have any, and if not lawful issue remains after their death, the above-described lands shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer, and Betty Mathers are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary his wife, and not before, at which time they shall be free from servitude, then to have full possession one or more of them during their natural life and the life or lives of their lawful issue, which land by them or any one or more of their lawful issue shall not be allowed to rent or dispose of in any way or manner whatever, to have and to hold the above-described tract of land; and the said James Nicholson and Mary his wife doth bind themselves, their heirs and assigns to warrant and defend said lot or parcel of land against their heirs, executors and administrators, and all persons claiming or to claim under the said Pomp, Tamer and Betty Mathers, agreeably to the above considerations and restrictions.”
    From the day of the date of the above-mentioned deed until January 9th 1829, when he died, James Nicholson and his wife Mary continued in possession of the said land, and the three colored persons, Pomp, Tamer and Betty continued in the service of, and were claimed and held by James Nicholson as his slaves. By last will and testament, since his decease duly proved, and remaining in the register’s office at Beaver, bearing date the 10th day of October a. d. 1828, registered in Will Book A, p. 250, James Nicholson, after devising all his said lands, including the one hundred and twenty acres and one hundred and thirty perches, in the above-mentioned deed described, to his Avife Mary for life, bequeathed the same one hundred and twenty acres and one hundred and thirty perches of land in deed mentioned to the three colored persons, Pomp, Tamer and Betty, using the following language, viz: “ I give and bequeath to my wife Mary Nicholson, if she lives longer than me, all my land and tenements for her use, all horses and cattle of every kind, all house and kitchen furniture, and all movable property, all money, and all obligations for money, to be for her use and to be under her care while she is living, and at her death, and my death, I alloAV my negroes to be free, and for the service they have done I give and bequeath to Pomp, Tamer and Betty Mathers, the lower plantation where William Bamsey lived last,' containing one hundred and twenty acres and sixty perches and allowance, agreeable to the lines already made, joining John Sharps and others, and none of them shall either sell nor rent said lands nor no part of it, but shall stand sure to them and tlieir heirs, with all the buildings and improvements thereon, and when any one dies the living ones must heir their share of all property I give them.” Mary Nicholson, the testator’s widow, survived him ten years, dying May 4th 1889, having hold and occupied the lands in the deed and will mentioned, and holding the three colored persons, Pomp, Tamer and Betty in her service and claiming them as slaves. One of three, however, Tamer, died before Mary Nicholson in 1837, aged fifty-one years. The other two continued with Mrs. Nicholson until her death, not having in her lifetime or in the lifetime of her husband claimed their freedom, but rendered to them during the lives of both the service claimed by James Nicholson. At the death of Mary Nicholson, Pompey and Betty were free from the service claimed as aforesaid and jointly took possession of the land in said deed and will.
    By deed of bargain and sale, dated March 19th 1840, duly recorded, Pompey Frazier and Betty Mathers, in consideration of one hundred and twenty-five dollars, bargained and sold to William McClure, the above-named defendant, twenty-nine acres and one hundred and twenty-three perches of the land in the aforesaid deed and will mentioned, and by'indenture, bearing date the 21st day of March 1840, duly recorded, conveyed in fee-simple, with general Avarranty of the same, twenty-nine acres and one hundred and twenty-three porches, to said William McClure, his heirs and assigns, by virtue of Avhich deed said McClure then took possession of the same, made valuable improvements thereon, and has continued possessor thereof, until now, claiming and holding the same as his own. Betty Mathers survived Pompey Frazier, who died many years since without issue.
    November 5th 1840, Betty married Henry Jordan, and on August 11th 1872, she died, leaving to survive her the said Henry] her husband, and five children, her lawful issue, viz.: William Henry Jordan, hex* eldest son, Ruth Ann Patterson, wife of Emanuel, Martha M. Jordan, Mary E. Jordan and Joshua R. (biddings Jordon, and having in her lifetime sold and conveyed to various persons all of the remainder of said tract of one hundred and twenty acres not sold to the defendant, but about thirty acres, the greater portion of the borough of New Galilee being built thereon.
    The plaintiffs, four of the five children of Betty Jordan (Mathers), all younger than William Henry Jordan, except Ruth Ann Patterson, who is the oldest child, claim to recover the four-fifths of the said twenty-nine acres and one hundred and twenty-three perches, sold by their mother and Pompey Frazier to William McClure, the defendant, in 1840, as aforesaid, alleging that said McClure took no title thereto by virtue of said conveyance.
    If the court be of opinion that the title to the four-fifths of said twenty-nine aci'es and one hundred and twenty-three perches is in the plaintiffs, their judgment is to be entered for the plaintiffs therefor ; but if, upon examination of the deeds and will hereto annexed, and of the facts herein stated, the court shall be of opinion that the title to said land is in the defendant, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to take out writ of error therein.
    The coui’t, Hice, P. J., on April 19th 1876, rendered judgment for the defendant, to which the plaintiffs took this writ, assigning for error the entry of judgment for the defendant.

      W. S. Morlan, for plaintiffs in error.
    — The deed of May 6th 1819, is a deed of bai’gain and sale, and i'aised a use to the gi’antees for their lives, remainder to their issue, with an estate for the lives of the grantors by implication: Cruise’s Dig., p. 442, § 36, 2d Am. ed. Statute of Uses executed use in grantees, and there was then an estate for life of grantor, remainder to his wife for life, remainder to the grantees in the deed, remainder to their issue : Id. pp. 2, 34-6. A recorded deed has effect as feoffment or under Statute of Uses, as will best accomplish intention of parties: Eckman v. Eckman, 18 P. F. Smith 470.
    Tlie deed is in form a grant, and containing no words of revocation, is irrevocable*. Eckman v. Eckman, supra. The will of October 10th 1828 does not attempt to revoke it, but was probably precautionary against a possible failure of the deed.

      Wilson & Moore, for defendant in error.
    — The case stated does' not admit the delivery of the deed. But the defendant claims that it was not a deed, but a testamentary paper, revoked by the will of October 10th 1828. The test is this: whether an instrument is to take effect wholly after the death of the maker, or whether it is to go into operation as to some parts, at least, in his lifetime ? In the former case the instrument is a will; in the latter a deed: 2 Bouv. Inst. 445; 1 Jarman on Wills 11-15; 1 Williams’s Ex’rs 85; Redfield on Wills, pt. 1, p. 272; Powell on Devises 10. A disposition of property to take effect after the grantor’s death is testamentary, and therefore revocable: Frederick’s Appeal, 2 P. F. Smith 338, 341: Turner v. Scott, 1 Id. 126.
   Mr. Justice Swarswood

delivered the opinion of the court, January 7th 1878.

If the instrument of writing, dated May 6th 1819, by which James Nicholson conveyed the land, of which the premises form a part, to Pompey Frazier, Tamer Frazier and Betty Mathers, falls within the principle of Turner v. Scott, 1 P. F. Smith 126, it was a testamentary disposition, revocable, and revoked by the subsequent will of October 10th 1828. By this will the tract was devised, after the death of the testator’s widow, to whom an estate for life was given, to the same persons, Pomp, Tamer and Betty, to “ stand sure to them and their heirs, with all the buildings and improvements thereon, and when any one dies the living ones must heir their share of all property I give them.” We are of the opinion that, upon the proper construction of this devise, it gave to the devisees an estate in fee, as tenants in common, under the operation of the Act of 31st March 1812, with an executory devise over to the longest liver of them: Neave v. Jenkins, 2 Yeates 414; Coates’s Street, 2 Ashm. 12; Rapp v. Rapp, 6 Barr 45; Nicholson v. Bettle, 7 P. F. Smith 384. Such being the case, the deed March 19th 1840, of the then survivors, Pomp and Betty, conveyed the fee to McClure. It is true that the survivor was not then ascertained, but it would necessarily be one or the other of them. Nothing is better settled than that, though a conveyance of an expectancy as such is impossible at law, it may be enforced in equity as an executory agreement to convey, if it be sustained by a sufficient consideration: Bayler v. Commonwealth, 4 Wright 37. Upon the death of Pomp, a chancellor would have decreed a conveyance by Betty to McClure. But equity is part of the law of Pennsylvania, and our courts invariably consider that as actually done which a chancellor would decree to be done. Betty, then, at the time of her death, was seised of no estate which she could transmit to her children.

But let us concede that the instrument of May 6th 1819 is distinguishable from that in Turner v. Scott, supra, that it was not a will but an irrevocable grant: Eckman v. Eckman, 18 P. F. Smith 460. It conveys to Pomp, Tamer and Betty, the premises “ for their own use during their natural life, and afterwards to their lawful, if they have any, and if not lawful issue remains after their deaths, the above described land shall revert to the lawful heirs of James Nicholson, and the said Pomp, Tamer and Betty Mathers are to take possession of said tract of land immediately after the decease of the said James Nicholson and Mary his wife, and not before, then to have full possession one or more of them during their natural life and the life or lives of their lawful issue, which land by them, or any one or more of their lawful issue shall not be allowed to rent or dispose of in any way or manner whatsoever.”

If this instrument were a will and to be construed according to the principles applied in such cases, there would be great reason for holding the limitation to be that of an estate tail to Pomp, Tamer and Betsy. But it is a deed and the word issue” will not supply the want of the word “ heirs” in a deed: 2 Black. Com. 115. Lord Coke tells us, on the authority of Littleton, that if a man giveth land to a man et exitibus de corpore suo, legitime procreatis or semine suo he hath but an estate for life, for that there wanteth words of inheritanceCo. Lit-t. 20 b.

Taking the entire clause together we are of the opinion that it granted an estate for their lives to Pomp, Tamer and Betty, with a remainder to their children for their lives. This was of course a contingent remainder to the children, as there were none then in being. The reversion in fee was vested in James Nicholson, for a limitation to the right heirs of the grantor continues in him as the old reversion: Eearne on Oont. Rem. 50. James Nicholson devised this reversion after the death of his widow to Pomp, Tamer and Betty in fee, subject as we have seen to an executory devise over to the survivor. When it vested in them a merger of their life estate held under the deed immediately took place — of the lesser into the greater estate. No children of Pomp, Tamer and Betty had been then born — the life estate to them in remainder was still in contingency. It was destroyed by the merger, a familiar and well-settled principle: Fearne on Cont. Rem. 328. The life estate in remainder was left without any particular estate to support it and it fell. The deed to McClure then passed t.o him the fee.

Thus we conclude that quacunque via data, whether the instrument of May 6th 1819 be regarded as a will or as a deed, the title to the premises was in the defendant below.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Chartiers Railway Company versus Hodgens.
    1. The O. V. Railroad Company was chartered in 1853 to build a railroad from Pittsburgh to the borough of Washington. In 1856 it executed a mortgage “ of all and singular the railroad of said company extending from its point of junction with the P. & S. Railroad to the borough of Washington.” Under this mortgage the road was sold, and the purchasers reorganized, under the Act of April 8th 1861, as the O. Railway Company. To the stock of the eompany, thus organized, the defendant subscribed. The road was constructed to a point within eight miles of Pittsburgh, whore it made a junction with a railroad running into said city. The terminus at Washington was a short distance outside of the borough limits, as they existed in 1853, but was within them as they existed when the mortgage was executed. Suit was brought by the company on the defendant’s subscription, who refused to pay, on the ground that the railroad was not completed to the terminal points designated in its charter. Held, that the O. Railway Company, as purchasers under the mortgage, were not under any obligation to complete the whole road, hut it was limited to the portion of the road mortgaged and sold, and as defendant had subscribed to the stock of this latter road, and not the road named in the original charter, he could not avail himself of the conditions of that charter, in regard to the terminal points, to obtain a release from his subscription.
    2. To introduce a new term into a written contract, the evidence of the agreement of the parlies to do so must he clear and distinct, and that the contract was executed upon the faith of such collateral agreement.
    November 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodwabd and Stebbett, JJ.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1876, No. 264.
    Assumpsit by the Chartiers Railway Company against Robert A. Hodgens, to recover an unpaid balance of $120, upon a subscription by defendant to four shares of the capital stock of said company.
    The Chartiers Valley Railroad Company was incorporated by Act of Assembly, approved February 7th 1858, “with power to construct a railroad from the city of Pittsburgh, in the county of Allegheny, by the way of Oanonsburg, to the borough of Washington, in Washington county.” By the terms of its charter, the company was authorized “ to connect its railroad at some suitable point on the Pittsburgh and Steubenville Railroad, and also to connect with the llempfield Railroad at some point at or near the borough of Washington.” By a supplement to the charter, approved April 18th 1855, the company was authorized to borrow money and to issue bonds therefor, secured by a mortgage or mortgages upon the road and franchises of the eompany. On the 27th of April and 26th of May 1858, the company entered into an agreement with the Pittsburgh and Steubenville Railroad Company, whereby that part of the road of the last-mentioned company,, extending from Washington to Pittsburgh, was to be for the joint use of the two companies, upon the terms set forth in the agreement of lease of the dates above mentioned.
    On July 1st 1856, the Chartiers Valley Railroad Company executed and delivered to John Graham and J. Edgar Thomson, as trustees,, a mortgage upon its railroad from Mansfield to Washington, and including therein all the rights and privileges secured to the company by the aforesaid agreement with the Pittsburgh and Steubenville Railroad Company, which mortgage was duly recorded in Allegheny county. The said trustees, in accordance with the provisions of the mortgage, proceeded to sell the mortgaged premises, and on the 30th of October 1866, W. J. Howard, Esq., became the purchaser, and on the 10th of December 1866, the trustees executed to him a conveyance in fee of the mortgaged estates. - On January 2d 1867, pursuant to the provisions of the Act of April 8th 1861, Pamph. L. 259, a meeting of the persons for and on whose account the premises were so purchased, was held in the city of Philadelphia, and the corporation was reorganized under the name, style and title of “ The Chartiers Railway Company.”
    The company received from the defendant, Hodgens, a subscription for four shares of stock,-in the words following :—
    “We, whose names are hereto subscribed, do promise to pay to the Chartiers Railway Company, the sum of fifty dollars for each and every share of the capital stock of said company set opposite our respective names, in such proportions and at such times, not exceeding five dollars per share in any period of thirty days, as shall be determined by the president and directors of said com.pany.”
    Inserted on the first page of the subscription book was the following letter:—
    “Pennsylvania Railroad Company, President’s Office,
    “ Philadelphia, October 15th 1868.
    “ To the President and Directors of the Chartiers Railway Company, •
    “ Gentlemen: — Upon your receiving the right of way and real estate free of cost to your company, and necessary for the construction and operating your railway, except depot grounds at or near the termini, and expending not less than §250,000, which sum shall be received from sales of your capital stock, in grading the same from a point on the Pittsburgh, Cincinnati and St. Louis Railway at or near Mansfield, in Allegheny county, to or near Washington borough, in Washington county, the Pennsylvania Railroad Company will purchase the first mortgage bonds of your company to an amount sufficient to enable you, with the proceeds thereof, to complete your road with single track and sidings, ready for cars and equipment.
    “Yery respectfully yours,
    “ J. Edgar Thomson,
    “ President Pennsylvania Railroad Co.”

      The Pittsburgh, Cincinnati and St. Louis Railway company, referred to in the foregoing letter, was the purchaser, at judicial sale, and succeeded to all the franchises, rights and property of the Pittsburgh and Steubenville Railroad.
    The Chartiers Railway was completed from Mansfield to Washington, and at the latter place the terminus was located, on what was known as Shirks Farm. No connection was made with the Hempfield road. The lines of the borough of Washington, as they existed in 1853, were extended in 1851, and the Chartiers Railway, while it reaches the lines as thus extended, is distant some six hundred feet from the lines as they existed in 1853.
    The defendant paid eighty dollars, being the first four assessments upon his subscription.
    After the completion of the road, this suit was brought to compel the payment of the remaining $120 dollars, with the statutory interest of one per centum per month for the default.
    Defendant filed an affidavit of defence, wherein he averred, inter alia, that by the provisions of the charter of the plaintiff, the city of Pittsburgh was designated as one terminus of its railroad, and the borough of Washington as the other, and that the defendant, by the terms and legal effect of the contract upon which the suit is founded, engaged to pay the sum therein mentioned only upon condition that the said plaintiff would in good faith construct its road to the terminal points designated. The said railroad company, while claiming to have completed its road, has not extended it to either of the terminal points aforesaid, but has terminated it on the north, at the town of Mansfield, some eight miles distant from the city of Pittsburgh, and has finally abandoned the construction of its road in the direction of the said city, and on the south, at the Cumberland road, on the farm of Catharine Shirls, two thousand feet, or thereabouts, distant from the terminus fixed by its charter, and contemplated and required by the contract between it and this defendant, and has there erected passenger and freight depots, engine-house, and other buildings necessary for the accommodation of its business, starts and stops all its trains, and receives and delivers all its freight at the said point, and so has continued to do since the opening of its road, and has definitely fixed and determined the same as the southern terminus of the same; and that the plaintiff, not having complied with the conditions of the contract, the defendant was released from the terms of his subscription.
    Upon the filing of this affidavit of defence, the plaintiff took a rule for judgment, on the ground of its insufficiency. This rule the court below dismissed, and on appeal this court, SHARStVOOD, J., and Gordon, J., dissenting, affirmed this decision (see 27 P. F. Smith 191), and sent the case back “ to be tried precisely as it would have been if no writ of error had been taken.”
    At the trial the defendant offered to prove that when his subscription was made, as an inducement, it-was represented that the Chartiers Railroad would be constructed to a point of connection with the Hempfield road; and further, that many persons who had made their subscriptions upon the faith of this connection, having become alarmed lest it would not be made, expressed their apprehensions to the officers of the road, from whom they received assurances that it was the purpose of the road to extend its line to the Hempfield road, and make connection with it.
    These offers, under objection, were admitted.
    In their general charge, the court, Acheson, P. J., said:—
    “ By the act of incorporation, the city of Pittsburgh was designated as one terminus, and the borough of Washington as the other terminus of the plaintiff’s road. These terminal points formed part of the conditions which entered into the contract made between the company and the defendant. The company was bound to construct its road from and to these points, and an abandonment of either would be illegal abuse of the authority delegated to the company, for -which it would be responsible to the defendant as well as to the state.”
    Yerdict for the defendant, and among the errors assigned by plaintiff, which took this writ, were the admission of the foregoing evidence and the portion of the charge noted.

      Hampton & Dalzell and A. M. Todd, for plaintiff in error.
    — • The Chartiers Yalley Railroad and the Chartiers Railway Company were not identical. The functions of the latter were only such as attached to them as purchasers at judicial sale upon the foreclosure of the mortgage given by the former. The evidence admitted should have been rejected : Cass v. The Pittsburgh, Virginia and Charleston Railroad Company; Custar v. Titusville Gas and Water Company, 13 P. F. Smith 881.

      Braden Miller, for defendant in error.
    — A subscription to stock is a contract between the subscriber and the company, governed by-the same rules of honesty in its enforcement that apply to ordinary contracts: Custer v. Titusville Gas and Water Company, 13 P. F. Smith 381; Railroad Company v. Byers, 8 Casey 22. Such a contract is necessarily impregnated with the description of the enterprise given in the charter; for the very object of the subscription is to furnish aid to that particular work.
    It is involved in the nature of a subscription to the stock of a company for making a road from one place to another, that the termini are part of the contract: Plankroad Company v. Arndt, 7 Casey 317.
    The motive and the consideration for the subscriptions were withdrawn or changed by the alteration of the terminus of the road: Commonwealth ex rel. Reinboth v. Pittsburgh, 5 Wright 282; Everhart v. Philadelphia and West Chester Railroad Company, 4 Casey 339; Gallagher v. Fayette County Railroad, 2 Wright 102; Carey v. Philadelphia and Chester County Railroad, 30 P. F. Smith 363.
   Mr. Justice Sharswood

delivered the opinion of the court, January 7th 1878.

It will be entirely unnecessary to consider the numerous assignments of error in this case, as there is one point which is decisive of the whole controversy, upon which the judgment must be reversed.

The Chartiers Valley Railroad Company was incorporated by an Act of Assembly, approved February 7th 1853, Pamph. L. 42, “ with power to construct a railroad from the city of Pittsburgh, in the county of Allegheny, by way of Canonsburg, to the borough of Washington, in Washington county.”

Had the defendant been sued upon a subscription to the stock of this company, it may bo that these terminal points were fundamental conditions of the contract, and an abandonment of them and the adoption of others short of them by the corporation, would have released the defendant from his subscription. Upon that question we express now no opinion.

The Chartiers Valley Railroad Company, on the 1st day of January 1856, executed a mortgage to J. Edgar Thomson and John Graham, of “ all and singular the railroad of said company extending from its point of junction with the Pittsburgh and Steubenville Railroad, in the county and state aforesaid, to the borough of Washington, and state aforesaid, with all the privileges and appurtenances, estate real and personal, rights, liberties and franchises, whatsoever and wheresoever thereunto 'belonging, and also of all the rights, liberties, privileges, benefits and emoluments secured to the said company by certain articles of agreement between them and the Pittsburgh and Steubenville Railroad Company, dated April 27th and May 26th 1853.” Under a power of sale contained in this mortgage, the railroad thus described was sold to William J. Howard, and the same was duly conveyed to him. He proceeded, under the Acts of Assembly, to organize a corporation under the name of The Chartiers Railway Company. It was to the stock of this last-named corporation that the defendant below •was a subscriber. The contract of subscription was a simple, unconditional one, with no description of route or termini. The articles of agreement with the Steubenville and Pittsburgh Railroad Company, referred to in the mortgage, secured to the Chartiers Valley Railroad Company the use of that part of the Pittsburgh and Steubenville Railroad “ from a suitable point of junction at or near Mansfield to the south side of the Monongahela river opposite Pittsburgh, so constructed as to accommodate the business of both companies.” It is to be remarked also, that while, in 1853, the railroad stopped short of the limits of the borough of Washington, yet on the 10th of June 1854, before the execution of the mortgage, the limits of the borough were extended, and the railroad does reach the borough thus enlarged.

It seems to us that it is very clear that the termini of the railroad of the Chartiers Railway Company, under the mortgage and charter based on the sale thereunder, were at the one end the borough of Washington, according to its limits as it existed at the date of the mortgage, and at or near Mansfield at the other end. If this view needed confirmation it will be found in the letter of J. Edgar Thomson, President of the Pennsylvania Railroad Company, dated October 15th 1868, to the president and directors of the Chartiers Railway Company, containing the offer upon the faith of which the issue of five thousand shares of capital stock was authorized, to four shares of which the defendant below subscribed. It states the road to be “from a point at or near Mansfield in Allegheny county to or near Washington borough in Washington.”

Nor do the provisions of the Act off April 8th 1861, Pamph. L. 259, entitled, “ An Act concerning the sale of railroads, canals, turnpikes, bridges and plank-roads,” interfere with the view which we take of this case. The Chartiers Valley Railroad Company possessed the franchise of making a road to Pittsburgh and to the original bounds of Washington borough, and let it be conceded that as to the subscribers to the stock of that company, they were bound to exercise that franchise. But it does not follow that they were compelled to include that franchise in their mortgage, and that the purchasers would come under any obligation to complete the whole road. The Act of Assembly is silent on the subject. It provides, indeed, that the purchasers shall be invested with all the rights and franchises of the corporation as whose the railroad may have been sold, but surely this must be limited to so much of the road as has been mortgaged and sold. If they could mortgage the whole they could also a part, and the rights and franchises of the purchasers cannot extend higher or reach further than the mortgage upon which their title rests.

We think also that there was error in receiving and submitting to the jury the evidence offered and given in regard to representations made by those employed to solicit subscriptions as to the connection to be formed with the Hempfield road. Laying aside altogether the question of the sufficiency of the evidence of their authority to bind the company by any such condition to be annexed to the contract, the representations relied on amounted to mere declarations of intention and for all that appears perfectly honest when made. The cases all concur in the doctrine that to introduce a new term into a written contract, the evidence of the agreement of the parties to do so must be clear and distinct, and that the contract was executed upon the faith of such collateral agreement. But the evidence fell far short of this requirement, Take the defendant’s own testimony upon the subject: “Joshua Wright and John McElroy presented the book to me for my subscription. There was considerable talk at the time; I cannot give their language; the substance of what they said was that there would be a connection between the Chartiers and Hempfield Railroad. * * * I cannot say that their conversation was the only inducement. Their conversation made me conclude there would be a connection between the roads. They so represented to me that there would be a connection between the roads, that I had no doubt of it. There was no positive arrangement. They assured me that the connection would be made. 1 thought the assurance had been given them that the connection would be made. I did not investigate whether they had authority to make the connection.” What would any written contract be -worth if such loose testimony is permitted to go to a jury in order to reform the instrument by introducing a new term or condition ? The subscriber to the stock of a corporation has a plain chart before him. If he insists on conditions not contained in the subscription paper, he can insert them over his name. The company can then know whether to accept or refuse the subscription with such conditions. The defendant understood this, for having first put his name to a special subscription on the express condition that the road should be located and constructed upon a line connecting the same with the Hempfield railroad, that subscription was erased and the unconditional one substituted. Yet it was submitted to the jury to say whether the new subscription was not made on the same terms as the old; and the learned judge instructed the jury that it mattered not whether the agents who made the representations relied on were or were not authorized to make conditions with the subscribers. The case of The Railroad Company v. Stewart, 5 Wright 159, which he cites, was a case in which there was no question as to the authority to accept the special subscription. It was the act of the president of the company.

It is undoubtedly true that fraudulent misrepresentations of an unauthorized agent will infect the contract; for the principal cannot avail himself of a contract so made. But there was in this case no evidence of fraud. There were declarations of intentions to do what they honestly intended to do, and no doubt if they had the ability they would have done; and the defendant could not have regarded them in any other light.

We think also that the evidence of ratification by the company was insufficient to submit to the jury. It was of the same character as all the rest — recognition of the fact that it had been the intention of the company to connect its road with the Hempfield, and still was. There was nothing in all of it like the acknowledgment of a subsisting condition.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Hart et al. versus Carroll.
    1. In order to take a parol contract for the sale of lands out of the operation of the Statute of Frauds its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it had been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages and such as would make rescission inequitable and unjust.
    2. Defendant in ejectment claimed title to land by virtue of a parol sale, possession taken and maintained, improvements, &c. A deed was offered in evidence, signed by plaintiff, which contained a description of the property, and recited the consideration, but which was never delivered to defendant. Held (reversing the court below), that the deed, taken in connection with other facts, was sufficient evidence of a parol contract to take the case out of the operation of the Statute of Frauds.
    November 16th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1877, No. 265.
    Ejectment by Joseph Carroll against C. A. Hart and Elias Parshall, for a tract of about eighty acres, of land.
    Hart claimed title to the land by virtue of a parol sale, which, he alleged, took place in 1860, in pursuance of which he had taken possession of the tract, which was then wild and uncultivated, and had since remained in possession, clearing it and converting a considerable portion thereof into meadow and pasture lands. A portion of a steam distillery, belonging to defendant, was also erected on the land. He likewise alleged that all the purchase-money was paid.
    It appeared also that Carroll had executed a deed to Hart for this land in 1867. This deed, however, was never delivered to Hart, but was in the possession of Carroll at the time of the trial.
    A short time before this suit was instituted in 1873, Hart was heavily involved in debt, and judgments were entered against him, among which was one in favor of Elias Parshall for $2000. When this suit was commenced a rule of reference was entered, and Hart accepted service of both the writ and the rule. Both Carroll and Hart attended before the arbitrators, and the latter made no defence.
    An award was made finding for the plaintiff, to be released upon the payment of $784 within thirty days, the amount claimed by Carroll. As a precautionary measure, lest the rights of the judgment creditors might be precluded by the forfeiture of the land on this conditional award, Parshall was allowed by the court to become a defendant, and he entered an appeal from the award. The land was sold by the sheriff and purchased by Parshall, to whom a sheriff’s deed was given.
    In charging the jury the court, Willson, P. J., said:—
    4 4 It is claimed that independent of the fact of the delivery of the deed, that there is sufficient evidence in the case of a verbal sale by Carroll to Hart — as to the making of this agreement of a verbal sale in the payment of the purchase-money, the making of improvements, and the fact of the defendant retaining possession of the property to take the case out of our Statute of Frauds and Perjuries, but [we instruct you that if there was no delivery of the deed as claimed by the defendants, then the defendants have no right to hold this land, and your verdict must be for the plaintiff. There is nothing in the evidence of the verbal sale that would enable the defendants to retain this land, and ask a verdict at your hands, outside of the Statute of Frauds and Perjuries].”
    The verdict was rendered accordingly, and after judgment the defendants took this writ, assigning for error the instruction contained in that portion of the charge above included in brackets.

      Minor & Parshall, for plaintiffs in error.
    — The defendant had purchased and paid the plaintiff for the land ; had taken and hold possession of it for more than fourteen years, and made valuable changes and improvements on it, while the plaintiff had stood by until there was an opportunity to take the land back and defraud the creditors of Hart. These creditors would certainly find it a difficult matter to recover compensation in damages to them in any form of action. It is certainly against equity and justice to allow the plaintiff to take this land under these facts, and the case ought to have gone to the jury on the facts outside of the statute: Smith v. Patton, 1 S. & R. 80; Pugh v. Good, 3 W. & S. 56; Clark v. Vankirk, 14 S. & R. 354; Miranville v. Silverthorn, 1 Grant 410; Haslet v. Haslet, 6 Watts 464; Blakeslee v. Blakeslee, 10 Harris 237; Ackerman v. Fisher, 7 P. F. Smith 457; Toe v. Toe, 3 Grant 74; McGibbeny v. Burmaster, 3 P. F. Smith 332; Farley v. Stokes, 1 Pars. 422.
    A deed signed by the vendor alone, accompanied by part payment of the purchase-money and delivery of possession, will take the case out of the statute: Lowry v. Mehaffy, 10 Watts 387; Gilhousen v. Willink, 3 Pitts. L. J. 214; Tripp v. Bishop, 6 P. F. Smith 424; Smith’s Appeal, 19 Id. 474.

      C. E. Boyle, for defendant in error.
    — It may be admitted that there was some sort of contract between Carroll and Hart, but there was no evidence as to its execution, nor the place w'hero made. The price was uncertain, and there was no evidence of the boundaries of the land, or any description of it. It was not shown that possession was taken under the contract, nor after it was made. So also the evidence as to payments were vague and uncertain. Assuming that all that was in evidence for defendants was correct, it would not constitute a valid. parol sale, and if it did, full compensation could be had in damages: Moore v. Small, 7 Harris 467; Postlethwait v. Frease, 7 Casey 472; McKee v. Phillips, 9 Watts 85; Goucher v. Martin, Id. 106; Woods v. Farmer, 10 Id. 195; Ackerman v. Fisher, 7 P. F. Smith 460; Aitkin v. Young, 2 Jones 15; Christy v. Barnhart, 2 Harris 260; Overmyer v. Koerner, 2 W. N. C. 6.
    [Sharswood, J. — Was not the undelivered deed evidence sufficient to take the contract out of the operation of the statute ?
    Do not know of any case to that effect.
    Chief Justice Agnew. — Would it not be evidence of a parol contract — of the terms of the contract ?
    Sharswood, J. — The statute only requires that the evidence of the contract should be in writing.]
    Even if the deed was evidence of the terms of the contract, compensation could be made in damages, and for that reason alone this court will not enforce it.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

In order to take a parol contract for the sale of lands out of the operation of the Statute of Frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust. These rules have been settled by a long series of authori ties, including Goucher v. Martin, 9 Watts 106; Woods v. Farmere, 10 Id. 195; Frye v. Shepler, 7 Barr 91; Brawdy v. Brawdy, Id. 157; Aitkin v. Young, 2 Jones 15; and Rankin v. Simpson, 7 Harris 471. There must be proof of an expenditure for improvements not reimbursed by profits derived from the occupation of the land, and not capable of compensation in damages recoverable in an action for the breach of the contract: Wack v. Sorber, 2 Whart. 387; McKowen v. McDonald, 7 Wright 441. And it was said in the celebrated charge of Judge Grier, in Woods v. Farmere, that “ it must be plain that the party who claims the interference of the chancellor has the burden of proof thrown on him. He knows, or is presumed to have known, that the law requires, as evidence of the title to land, that the contract must be made in writing. He has acted with great negligence and folly who has paid his money without taking the proper and legal evidence. When, therefore, he requests a court to interfere for him, and save him from the consequences of his own disregard of the law — when he asks the court to decree in his favor, in the face of the letter of the law, he should be held rigidly to full, complete, satisfactory and indubitable proof.” These are stringent, but salutary and beneficial rules, in the maintenance of which the public welfare is vitally involved. The inquiry remains whether or not, under these rules, the case of the defendants below embodied elements which ought fairly to have been submitted for the consideration of the jury.

What was meant by Judge Gribb, in the requirement of “ indubitable proof,” was evidence that should not only be found credible, but of such weight and directness as to make out the facts alleged beyond a doubt. In the very nature of things that conclusive and absolute proof which results from the production of record evidence, or rests on the solution of a mathematical problem, can never be the effect of the verbal testimony of human witnesses. The language of the authorities is to be taken and treated in its connection with and its relation to the subjects and instrumentalities to which it has been applied. In the present case, it was not disputed that Carroll, the plaintiff below, sold the land in controversy to Hart, one of the defendants. Eoth the parties swore distinctly to the fact. There was some parol testimony from which the date of the contract could have been approximately fixed in the year 1860. It is true this testimony was so uncertain as to create a difficulty, if it were unaided by other evidence, in settling the amount of purchase-money due at any later period, but that difficulty was removed when the deed from Carroll to Hart was made. The price of the land was shown by both parties to have been two dollars and fifty cents per acre, and the quantity was distinctly ascertained to have been eighty-one acres and a half. In regard to the price, the stenographer’s notes contain a statement made at one time by Hart in the course of his examination that it was one dollar and fifty cents per acre, and the statement was left apparently unexplained. Its significance would have been a proper subject for the jury to consider. It appeared also that Carroll had stated before the arbitrators that the price was four dollars per acre, but he explained that by saying that he meant to include interest. Then there was evidence that the price agreed on was to be paid from time to time as Carroll should require it; that some advances and payments were made in accordance with that understanding; that Ilart entered into possession under the contract; that he cleared eighteen acres and fenced the entire tract; and that a portion of his steam distillery, or at least a portion of a building appurtenant to the distillery, was erected on this land. It was shown also in the course of the testimony, in support of the general allegation of the existence of a parol contract, as well as in support of the charge by the defendant Parshall of an attempt on the part of Carroll and Hart to defraud Hart’s creditors, that shortly before this suit was brought, he had become involved, and judgments had been entered against him, and that on the day when this writ of ejectment was issued and the rule of reference entered by Carrojl, Hart accepted service both of the writ and the rule. Both the parties attended before the arbitrators, Hart making no defence. An award was made in favor of Carroll, to be released on payment of ¡$784 within thirty days.- From this award, on his petition to intervene, Parshall was permitted as a joint defendant to appeal.

In addition to-the general facts recited, it appeared that Carroll had executed a deed to Hart for this land on the 7th of December 1867: The jury found by their verdict that it had never been delivered, but it was in existence at the time of the trial, and was produced by Carroll and shown in court during the examination of the witnesses. . Not having been delivered, it conferred no title, and having been retained exclusively in the vendor’s hands, it could not serve the purpose of averting the operation of the statute. But its execution was a fact bearing upon the question of the existence of the contract. It was a deliberate admission that the land had been sold, and an explicit declaration of the terms of' the sale, of the quantity and boundaries of the land, and of the amount of the purchase-money. Its production in evidence could have been enforced for the purposes to which it would extend — not to establish title, and not to avoid the statute — but to show a carefully considered acknowledgment and recognition by Carroll of Hart’s contract rights. Can it be doubted that verbal testimony of declarations by the plaintiff made in December 1867, of the precise facts recited in the deed, would have been admissible in aid of the grounds on which the defence was rested ? And how, in view of such clear and definite evidence as would be thus afforded, would a chancellor find embarrassment in decreeing specific performance ? The ascertainment of the amount remaining due on the consideration would only be left, and that could be reached by such proof of payments as is required in any ordinary action involving the settlement of accounts. Rigid as the rules are that are prescribed for this class of controversies, it is still the law that “ where a parol contract of sale is precise as to the terms and subject-matter, and the vendee has taken possession in pursuance of it, and made valuable improvements, with the assent of the vendor, it is not within the Statute of Frauds : and in such case, if the vendor bring ejectment, the jury ought to find a conditional verdict:” McGibbony v. Burmaster, 3 P. F. Smith 332. There, as here, a deed had been written, and the present chief justice said that, u though not executed, it plainly evidenced the terms of the contract.” A series of facts appeared on the trial of this cause in which the jury might have found a sustainable contract adequately proved, and under proper instructions the adjustment of the value of those facts ought to have been left to them.

Judgment reversed, and a venire faeias de novo awarded.


author: Pee Curiam.

text:
    The Germania Life Insurance Co. of New York versus Commonwealth of Pennsylvania.
    1. The Act of the General Assembly of April 10th 1873, entitled “An Act to establish an insurance department,” requires every insurance company of another state to make annual return of the premiums received in this state to the insurance commissioner, to pay a tax of three per cent, upon such premiums, and confers upon the commissioner the powers of the auditor-general in the settlement of the accounts, with the approval of the state treasurer. The Act of April 24th 1874, entitled “An Act for the taxation of corporations,” provides, that every company now or hereafter incorporated by or under any law of this Commonwealth, except hanks and savings institutions, and of every company now or hereafter incorporated by any other state, and doing business in this Commonwealth, which is taxable under the laws of the state, “ shall make annual report concerning the capital of their respective corporations, dividends, and the appraisement of their capital stock,” and provides for a settlement of taxes by the auditor-general and state treasurer. It also enacts that all laws and parts of laws inconsistent with said act are repealed. Reid, that the Act of April 10th 1873, as to foreign insurance companies, is not repealed by the Act of April 24th 1874, that the tax imposed by it remains, and that the insurance commissioner has the powers of the auditor-general to settle the amount of the taxes, subject to the approval of the state treasurer, with the right of appeal.
    2. Art. 9, sect. 1, of the constitution, providing, that “ taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws,” does not make void the tax of three per cent, on premiums imposed by the Act of April 10th 1873.
    3. Under the 9th article of the constitution, in classifying the subjects of taxation, the legislature may place foreign insurance companies in a class by themselves, as distinct from domestic insurance companies, and the former may he taxed differently from the latter.
    March 1st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1876, No. 118.
    Argued at Philadelphia, January Term 1877.
    The 10th section of the Act of Assembly of April 4th 1873, imposed an annual tax of three per centum upon all premiums received within the state by foreign insurance companies or associations transacting business within this Commonwealth.
    The Insurance Commissioner, on March 1st 1875, settled an account against the Germania Insurance Company of New York, for §3203.45, the amount of tax on premiums received by it from its business within the state the December 31st 1874. This settlement was approved by the state treasurer, and from it the company appealed to the Court of Common Pleas of Dauphin county, and filed a specification of its objections. Thes,e were in substance as follows :—
    The Act of 24th April 1874, entitled “An Act for the taxation of corporations,” required settlements for taxes against all corporations which it named, wrhich included all corporations except banks and savings institutions, should be made by the auditor-general and the state treasurer. This act is inconsistent with and repeals so much of the Act of April 4th 1873, as permitted the insurance commissioner and state treasurer to make settlements for taxes upon premiums, and therefore they were without authority for this purpose.
    The constitution of Pennsylvania, in article 9, section 1, provides that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” And the Act of 24th April 1874, passed in pursuance of said provision, by the fifth section, assesses a tax of one-half mill upon the capital stock of insurance companies, among other corporations embraced by said section, for each one per cent, of dividend made and declared by such companies, or where no dividend has been made or declared, a tax of three mills upon the capital stock of such companies ; whereas, the tax now in question, being three per centum upon the premiums paid to the appellant, is settled under the 10th section of the Act of 4th April 1873, which is expressly confined to insurance companies of another state or foreign governments.
    The tax in question would not be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, if insurance companies incorporated by the state of Pennsylvania are, in pursuance of the Act of 24th April 1874, taxed only one-half mill for each one per cent, of dividend made or declared by such companies, or where no dividend has been made or declared, three mills upon the capital stock of such companies, and insurance companies incorporated by any other state and doing business within this Commonwealth, are taxed under the Act of 4th April 1873, three per cent, upon the premiums paid to them.
    Insurance companies, whether incorporated by this state or by any other state, and doing business in this Commonwealth and being taxable under its laws, are in “the same class of subjects” within the meaning of the constitutional provision that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws;” and the exception, therefore, in sect. 5 of the Act of 24th April 1874 (which is a general law for levying and collecting of taxes), excepting foreign insurance companies, out of its provisions, is unconstitutional and void.

      The tax in question, of three per cent, upon premiums paid by-policy holders who reside in Pennsylvania to appellant, is a tax upon a contract made in the state of New York, between a corporation of that state and a citizen of Pennsylvania, which is not a subject of taxation by this Commonwealth.
    The tax in question is laid upon a debt due by a resident of Pennsylvania to a corporation of the state of New York, which is not taxable by this Commonwealth, in transit from the debtor to the creditor.
    The case was tried by agreement of counsel, without a jury, before Judge Pearson, who decided in favor of the Commonwealth, and from that decision the company appealed, and assigned for error the following parts of the judge’s opinion.

      “• We are, therefore, of the opinion that the law (sect. 10 of the Act of April 4th 1873) is in full force, unchanged and unrepealed by the Act of 1874, and the tax is * * * settled by the proper officers.
    “ There was no restriction on the power of the legislature to tax. It need but classify or place the like tax on each class of subjects, but t[ie power was unlimited and uncontrolled, and could be exercised according to the legislative sense of justice, ability of the party to pay, and even by caprice or prejudice, or may bo otherwise to a slight extent under the new constitution, or such may be inferred to. be the intention.
    “ The legislature could say to the foreign insurance company, you shall establish no agency in Pennsylvania, or they could declare we will permit it on condition you shall pay into the treasury a certain sum * * * which may be called a tax, or by any other name.
    “ The power of the legislature to classify must be conceded. Why not say we will place the foreign insurance company in one class, and the domestic in another. The former we will require to pay three per cent, on its premiums received, and the latter but one or one-half per cent.
    “ It is no more arbitrary than the tax which has already been recognised elsewhere. The incorporated company was required to pay three cents a ton on each ton of coal mined or purchased by it. An individual may mine or deal in the same article without paying any tax whatever. * * *
    “ To say that each ton of coal mined by a Welshman shall pay a tax of one cent, and each ton by an Englishman or Irishman shall pay a tax of three cents, would strike us as being most arbitrary and unjust, yet not more so than the distinction between a ton mined by a corporation and an individual. The coal mined is the natural classification of the subject, but any classification which the legislature chooses to adopt has been recognised; but perhaps it may be more properly said that the tax is imposed on the corporation, and the ton of coal used as a means of showing the extent of their business. If so, that would authorize a distinction of insurance companies into two classes — foreign and domestic, and justify a different tax on each class.
    “We are of the opinion that the tax was properly imposed for a right sum, and settlement regularly made, and we shall accordingly * * * enter judgment in favor of the Commonwealth.”
    The company offered to prove that it re-asssesed upon the policyholders of each state, in addition to the premium otherwise to be assessed.upon them, such taxes as might be imposed upon such premiums by the laws of the state in which such policy-holder resided, and that in the present case all taxes payable by the defendant to the plaintiff were re-assessed upon its policy-holders in this state.
    This offer was rejected, and its rejection was also assigned as error.

      Wayne MacVeagh, for plaintiff in error.
    — The offer of evidence should have been received, because it tends directly to prove that the uniformity required by the constitution does not exist, for of two neighbors, one insuring his life in a company created by this state is not obliged to pay any tax upon such contract, and the other insuring his life for the same sum in a company created by another state, is obliged to pay the onerous tax involved in this litigation.
    The tax in question, if it can be legally settled, can be so settled only under the provisions of the Act of April 24th 1874, and the settlement made under the provisions of the Act of April 4th 1873 is invalid.
    There are but two classes of corporations in which this defendant can .be taxed in obedience to the constitutional provision requiring uniformity of taxation upon the same class of subjects. It is a foreign corporation doing business in this state, and may, therefore, possibly be taxed as a member of a class embracing all foreign corporations doing business within the same “territorial limits.” It is also a corporation engaged in the business of life insurance within this state, and therefore, undoubtedly may be taxed in a class embracing all corporations engaged in that business within the same “ territorial limits.”
    It cannot, however, be taken out of the class of foreign corporations because it is a life insurance company, and also be taken out of the class of life insurance companies because it is a foreign corporation, and then taxed at a rate greater than other foreign corporations pay, and also greater than other life insurance companies pay, for this would be to justify by law a flagrant and crying evil, as a remedy for which the constitutional provision in question was designed.
    The business of life insurance may be made a subject of taxation, but if taxation is to be uniform within the territorial limits within which the business is to be conducted, one uniform rate alone can be imposed upon all the business of life insurance within those limits.
    To single out a part of that business by the accident of the origin of the corporation conducting it, and visiting it because of that origin with a heavier burden, is not to secure to the legislature the power of classification, but to repeal absolutely the constitutional provision regarding classification, and to open the door as widely as ever to the caprices and injustices of unequal and oppressive legislation.

      Lyman D. Gilbert, Deputy Attorney-General, and George Lear, Attorney-General, for defendant in error.
    — The evidence was properly rejected. If the company is liable for taxes, its manner of raising its revenue cannot affect the right of the Commonwealth to recover. The tax is on the company, and not on those doing business with it: Railway Gross Receipts Case, 15 Wall. 294.
    The company having appealed, it cannot now inquire into the jurisdiction of the insurance commissioner and the state treasurer to settle an account against it.
    After a party has taken a case into a court which has jurisdiction of the subject-matter, by an appeal, it is too late to raise a question of the jurisdiction of the remedy by the tribunal in which the proceedings had their inception: Woodring v. Forks Township, 4 Casey 355; Silver v. The County of Schuylkill, 8 Id. 356; Schenley et ux. v. Commonwealth for use of Allegheny, 12 Id. 29.
    If the court did err, as it is assigned, “in holding that previous to the adoption of the present constitution of the state, there was no restriction on the power of the legislature to tax; that such power was unlimited and uncontrolled,” it would not be cause for reversal, as this was not a charge to the jury, but an opinion in a case tried without a jury; and the only subject for inquiry is whether the conclusion and the judgment upon it are sound. But practically the law is as stated: Sharpless v. Mayor of Philadelphia, 8 Harris 147.
    The Act of 1874 does not expressly repeal the Act of 1873. The repeal must be implied, and this can only take place when both cannot stand together: Brown v. City Commissioners, 9 Harris 37; M’Cool v. Smith, 1 Black U. S. Reports 470; Dickenson v. Dickenson, 11 P. F. Smith 401; Shinn v. Commonwealth, 3 Grant 205; Johnson’s Estate, 9 Casey 511; Street v. Commonwealth, 6 W. & S. 209.
    The Act of 1873 is upon a particular subject, and the rule is that a later statute, which is general and affirmative, does not abrogate a former which is particular: Bounty Accounts, Eleventh Ward, Pittsburgh, 20 P. F. Smith 92; Brown v. County Commissioners, 9 Harris 37.
    The Act of 1873 was not, per se, repealed by the present constitution: Lehigh Iron Co. v. Upper Macungie Township, 3 W. N. C. 29. If the Act of 1873 was constitutional when it was passed, as is not denied, the Act of 1874 cannot aifect its constitutionality. If that act destroyed the uniformity of corporate taxation, the defect is in it, and not in the law of 1873.
    The tax is upon the business transacted in this state by foreign insurance companies. It is fixed at a single rate, and is therefore uniform. What constitutes the same class of subjects must be left to the legislature. If for no other reason, from necessity. The utter impossibility of arranging the subjects of taxation in classes according to their nature as subjects of taxation is so apparent, that it must be conceded to the legislative power to fix them. What might be regarded as a proper classification by one court, if left to the judicial department to determine, may be regarded as improper and unjust by another. There can be no standard to determine the classification with certainty, and fix the classes, according to their nature as subjects of taxation, except the legislative will. These classes of subjects of taxation have no natural qualities by which they can be distinguished.
    The Act of 1873 gave to foreign insurance companies a license to enter the state upon certain conditions, and after entering it they cannot refuse to perform their part of the contract. The legislature has the right to impose conditions upon corporations of another state doing business in this. They are not citizens, have no personal rights in the various states, except to sue, and can do business here only by permission and upon such terms as the legislature may choose to impose. And the legislature has designated their business as a class, and imposed a tax upon it.
    The business of a foreign insurance company is taxable: Park v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Id. 410.
   The judgment of the Supreme Court was entered March 5th 1877,

Pee Curiam.

— This cause was ably argued on both sides, and the court has carefully considered the questions presented. We do not think it necessary to discuss them at large but shall state our conclusions.

1. We are of opinion that the Act of 4th April 1873, to establish an insurance department, is not repealed as to foreign insurance companies by the Act of 24th April 1874, and therefore, that the state tax of three per centum upon their premiums, imposed by the tenth section remains, and that the insurance commissioner has the powers of the auditor-general to settle the accounts of such companies for taxes, subject to the approval of the state treasurer and the right of appeal provided in the 15th section.

2. We are of opinion that the tax of three per centum on premiums, imposed by the 10th section of the Act of 1873, is not made void by the 1st section of the 9th art. of the new constitution, and therefore that foreign insurance companies remain subject to the imposition of this tax, and to the settlement provided for in the 15th section.

3. We are of opinion that under the 9th art. of the now constitution, the legislature has power to classify the subjects of taxation, and that foreign insurance companies may be placed in a class by themselves, and distinct from domestic insurance companies, and may be taxed independently and differently.

We find no error in the record, and therefore the judgment is affirmed.


author: Mr. Justice Mercur

text:
    Snyder versus The Commonwealth.
    1. On the trial of an indictment wherein the defendant was charged with the murder of the illegitimate child of his daughter, the latter testified that the defendant was the father of the child, and had taken its life. To cast discredit on her testimony the defendant proved that prior to the present charge of murder the daughter had charged him with incestuous rape. The court permitted the (laughter to testify in rebuttal that this charge of rape was true. Jleld, that the admission of this testimony was error.
    2. To rebut the evidence of previous good character produced by the defendant, the Commonwealth offered and was permitted to prove by witness that he had heard the children of defendant make frequent complaints of his cruelty to them. Jleld, that this evidence was improperly admitted.
    3. Character can he impeached only by evidence of general reputation, and not by evidence of particular acts of misconduct. It should be what people in general say, and not what others say.
    November 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Oyer and Terminer of Orawford county: Of October and November Term 1877, No. 247.
    Indictment of Charles Snyder for the murder of the illegitimate child of his daughter Marietta.
    At the trial the daughter testified in her examination in chief that the child was born in July 1876, and that her father was its father ; that an hour or so after its birth her father took the child wrapped it in a feather bed, and put it in a chest ■; that it was alive; that the next morning he took it from the chest and carried it away. On cross-examination she testified that she was asleep when the child was put into the chest, and that all she knew about it was what her mother told her.
    The theory of the defence rested mainly upon the great improbability of the case, as presented by the Commonwealth, and the excellent character of the defendant in the neighborhood where ho had lived all his married life. Some forty or fifty witnesses were called from the neighborhood, all of whom gave him a good character.

      . It came out in the course of the trial that three complaints had been made against him, one by the daughter for incestuous adultery with her, and then by a friend of the daughter, using her as a witness, for incestuous rape, and lastly for the murder of the child. The defence offered and had read in evidence the first two complaints, to show the singular character of the proceeding, and to discredit the principal witness, the daughter.
    In rebuttal, the prosecution recalled the daughter and offered to prove by her that the second charge, that is, of rape, was true. To this defendant’s counsel objected, for the reason that the defendant was not on trial for rape, and was not prepared to answer the charge. The objection-was overruled, and the evidence received. This constituted the first exception.
    In answer to the testimony of general character, the prosecution called a Mr. Davison, “ to prove complaints by the children of defendant, of his cruelty towards them, prior to the commencement of the prosecution.” To this defendant objected. The objection was overruled, and the testimony received, and this constituted the second exception.
    The jury rendered a verdict of murder in the second degree, and the defendant was sentenced to the penitentiary for a period of eight years and two months. He then took this writ, assigning for error the admission of the evidence of the daughter as to the truth of the charge of rape, and the admission of the testimony of Davison as to the cruelty of defendant to his children.

      H. L. Richmond & Son and A. B. Richmond, for plaintiff in error.
    — To admit the evidence of the daughter was permitting the Commonwealth to give evidence of a distinct offence in no way connected with the issue trying —proving a rape on a charge of murder, without pretending that there was any connection between the two offences ; to prejudice the jury in their verdict on the primary charge, by receiving evidence of another offence of a most revolting character, without any opportunity to defendant to prove its utter falsity, Evidence to character must be general evidence of reputation, and not particular acts of good or bad conduct.

      Pearson Church, for defendant.
   Mr. Justice Mercur

delivered the opinion of the court, January 7 th 1878.

The paper-book of the plaintiff in error is very defective; it lacks much that -would assist us in acquiring a clear understanding of the case. Unfortunately the defect is in no manner removed by the defendant, who has omitted to furnish us with any paper-book. We are therefore left to grope our way as best we can. Whenever an argument is needed on the part of a defendant, justice to the cause and to the court, requires that a paper-book should be prepared.

The plaintiff in error was indicted for murder. He was charged with the murder of an illegitimate child of his daughter. The daughter was a witness against her father. As we understand her testimony, she swore, at least in chief, to being present and hearing him commit an act which resulted in the death of her child. On the part of the defence it was claimed that this prosecution was a wicked scheme to ruin and destroy him ; that the charge of murder was not at first made. To show this fact, and thus to cast discredit on the testimony of the daughter, the plaintiff in error gave in evidence two transcripts of complaints against him, made after the alleged killing of the child. One made by the daughter charging him with incestuous adultery with her; the other by a friend of her, using her as a witness, charging him with incestuous rape. Wo do not understand that the plaintiff in error affirmed or denied the truth of the facts averred in either of those complaints. His object in giving them in evidence was to show that she did not then charge him with murder, but with other and lesser offences. By proving that those offences only were then charged against him, he sought to impair the force of her testimony in regard to her knowledge of his having previously committed the murder now claimed.

■ As rebutting, the daughter was recalled and permitted to testify, under exception, that the complaint charging the rape was true. We cannot see how this evidence was rebutting. It in no manner contradicted the fact that she did not then charge the crime of murder to have been committed by him. Its effect, however, was highly prejudicial to the accused. The indictment did not charge him with the commission of any rape. He was not being tried for such a crime. Without notice, or 'opportunity to prepare a defence against a charge of such an infamous crime, this evidence went to the jury. It was in manifest disregard of the rule of law that the evidence offered must correspond with the allegations, and be confined to the point in issue. Here ho was on trial for the commission of one felony; but the court admitted testimony of his having committed another felony of an entirely separate and distinct character. The two could not have been joined in the same indictment. In case the direct evidence of the homicide was not entirely satisfactory to the jury, yet they may readily have concluded, if he was such a monster as to have committed a rape on his own daughter, he had a heart sufficiently depraved to commit the murder charged against him. The evidence was not rebutting. He was denied that protection on his trial which the law gives to every person charged with the commission of crime.. '

We are not informed at what stage of the case, nor for what purpose, the evidence covered'by the second assignment was offered. We infer the object of it was to prove a reputation for cruelty, in answer to a general reputation of good character shown by the accused. If so, it was improperly received. Character can be impeached only by evidence of general reputation, and not by evidence of particular acts of misconduct. It should be what people in general say, and not what others say: Wike v. Lightner, 11. S. & R. 198.

The offer in this case fell far short of the requirements of the rule. It was not to prove any general reputation. It was not to show by the oath of a witness that he had actually ever committed a cruel act. It was merely that his children had frequently complained of his cruelty towards them. The complaints of his children did not necessarily establish a general reputation. If they had not, it was error to admit them in evidence. If they had, then the general reputation should have been proved as a fact, and the complaints of a few persons should not have been received for the jury to infer a general reputation therefrom.

Judgment ¡reversed, ;ánd a venire facias de novo awarded.


text:
    New Castle and Franklin Railroad Co. versus McChesney.
    The Act of February 19th 1849, provides “ that whenever any railroad company shall locate its road in and upon any street or alley in any city or borough, ample compensation shall be paid to the owners of lots fronting upon such street or alley for any damages they may sustain by reason of any excavation or embankment made in the construction of the road.” The N. O. & F. Railroad Co., in building their road, carried it across Mill street, in the city of New Castle, the effect of which construction was to impede by an embankment made the flow of a natural watercourse, which was thereby dammed up and flooded plaintiff’s lot and cellar. In a proceeding under the above act to recover damages, held, that so far as the property of the plaintiffs was damaged by the railroad embankment within the lines of the street they had the right to compensation, but -#ith the consequences produced by the work outside of these lines the court and jury in this proceeding had nothing to do. Held, further, that the defendant had the right to ask the exclusion of the effects of the operation of the road in depreciating the value of the plaintiff’s property from the deliberation of the jury.
    November 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1877, No. 236.
    In the court below this was an appeal from the report of viewers appointed to assess the damages done to the property of Martha A. and Margaret M. McChesney, in the location of the New Castle and Franklin Railroad Co., on Mill street in the city of New Castle.

      The proceeding was under tho third proviso of the 10th sect, of the Act of February 19th 1849, Pamph. L. 83, Purd. Dig. 1218, pi. 34, which is recited in the opinion of this court. The rest of the material facts will be found in the opinion.
    At tho trial before McJunkin, P. J., plaintiffs proposed to show that in the construction of the railroad the road was located and built so as to obstruct the water in its natural course and cause the same to flow back into their cellar, thereby causing damage to the property.
    The defendant objected to evidence of the location and construction of the railroad at any other place than in the street and alley immediately fronting upon plaintiffs’ lot; also to all evidence of injury, inconvenience and damage resulting to plaintiffs from the effects of the operation of the railroad at any other place or places ; and also to all evidence of injury or damage to plaintiffs’ lot from the railroad, even in the street and alley fronting on plaintiffs’ lot, except that arising directly from excavation and embankment.
    The objection was overruled and the evidence admitted.
    The following, among other points, were submitted by defendant, to which are subjoined the answers of the court:—
    1. The defendant’s railroad being located and constructed, not upon the plaintiffs’ lot, but across or upon a street and alley fronting upon said lot, in an incorporated city, the plaintiffs can recover for nothing but damages accruing by reason of excavation and embankment upon said street and alley immediately fronting upon said lot.
    Ans. “ The instruction requested in this point is refused, and we say that the plaintiffs in this case are not confined to damages resulting tc their property from excavation or embankment upon the street and alley immediately fronting upon their lot; but excavations and embankments are elements with all other facts, when proved as resulting from the construction and operation of defendant’s road as injuriously affecting the market value of the property of plaintiffs, and to be considered by the jury.”
    2. Even if plaintiffs hold title to the land to the middle thread of said street and alley, to that point of it within the limits of said street and alley, they hold subject to an easement in favor of the public ; and the legislature had the power to grant, and did grant to the defendant, the right to construct and use its railroad thereon, subject only to the payment of damages sustained by excavation and embankment therein, fronting on said lot.
    Ans. “ The instruction requested ip this point is refused, with the explanation and qualification given in answer to first point.”
    5. For injury or damages to plaintiffs’ lot by difficulty in draining it, in consequence of the construction of defendant’s road outside of the street and alley fronting on said lot, the defendant is not liable.

      Ans. “ Refused.”
    6. Eor any depreciation in the value of plaintiffs’ lot by reason of danger to persons or property from passing trains, danger from fire from locomotives, increase of rates of insurance, the noise, smoke, soot, jarring and other inconveniences from passing trains, the plaintiffs are not entitled to recover in this proceeding.
    Ans. “Refused.”
    The court, inter alia, charged :—
    “ The jury is instructed to take into careful consideration all the evidence in the case bearing upon the question of advantages and benefits, as well as disadvantages and injuries, done to plaintiffs’ property by defendant’s road, and apply it all to ascertaining and fixing the open market value of the plaintiffs’ property, house and lot, before the defendant built and operated the road complained of, as it was then unaffected in any way by the road; and the market valué of the property after the defendant built and operated its road, and as affected by such building and operation. * * *
    But if the market value of the plaintiffs’ property is depreciated and reduced as a consequence of, and so affected by the construction and operation of defendant’s railroad, where and as it is constructed and operated, then the difference in market value, as you may conclude it to be by a careful review and consideration of all the evidence in the case bearing on the point, would be the damages which the plaintiffs have sustained, and the measure of the compensation therefor which they would be entitled to recover.”
    The verdict was for the plaintiffs for $459.37 and after judgment defendant took this writ, assigning for error, inter alia, the admission of the evidence above referred to, the answers to defendant’s points, and the portion of the charge noted.
    D. B. & E. T. Kurtz, for plaintiff in error.
    — The court below received all evidence tending to show injury or damage to, and depreciation in the value of, plaintiffs’ lot, resulting in any manner from the construction and use of the railroad, and charged the jury on the law the same as though this was a case where the railroad was built upon the plaintiffs’ lot, wholly ignoring the distinction between the cases made by the Act of 1849 as to the damages for which the company are liable. In this we think the court erred: Phila. & Trenton Railroad Co., 6 Whart. 25; Faust et al. v. Passenger Railroad Co., 3 Phila. R. 164.
    It is well settled that neither the state, or a corporation acting by virtue of a constitutional^law, is answerable for consequential damages occasioned by the construction of a highway, further than is specially provided by the law itself: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Henry v. Pittsburgh and Allegheny Bridge Co., 8 Id. 85; Mifflin v. Railroad Co., 4 Harris 182; Cleveland & Pittsburgh Railroad Co. v. Speer, 6 P. F. Smith 325; O’Con-nor v. Pittsburgh, 6 Harris 187. To entitle the owner of the soil to damages for a change by public authority of a highway across his land, from one kind of passage to another, he must ground his claim on an Act of Assembly: Snyder v. Pennsylvania Railroad Co., 5 P. F. Smith 340.
    The evidence should have been confined to the damages alone, resulting from excavation or embankment in the street or alley immediately fronting plaintiff’s lot. This principle is clearly recognised by this court in the case of Pittsburgh, Virginia & Charleston Railroad Co. v. Rose, 24 P. F. Smith 362.

      J. McMiehael and R. B. McComb, for defendants in error.—
    The plaintiffs below based their claim for damages on the embankments made by the defendant company in the street and alley, the principal item of damage being the obstruction of the natural watercourse, and the flooding of the cellar with water. As the embankment in the alley was but a part of a continuous line, every part of which served as a dam, and without any part of which the water might have escaped to its natural channel, the whole of this embankment was necessarily brought into the case, and the court was not in error in permitting us to show', not only- the obstruction of the watercourse in the alley, but also that defendant’s road left no reasonable means by which plaintiffs could rid themselves of the water. The difficulty in avoiding the nuisance is certainly a legitimate subject to be considered in estimating the damages.
    It will be observed that plaintiffs claimed no damages, made no prayer and put no point asking that the jury be instructed to allow damages for any possible contingencies. They were in no way in the case except as they were attempted to be drawn into it by defendant’s counsel.
    The court submitted to the jury but one question, viz.: whether the market value of the plaintiff’s property was depreciated or reduced by the construction and operation of defendant's railroad, and if so, then the difference between its market value as unaffected by the railroad, and its market value as affected by the road, was the true measure of the damages which the plaintiffs were entitled to recover: Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Penna. & N. Y. Railroad Co. v. Bunnell, 31 P. F. Smith 414; Pittsburgh, Virginia and Charleston Railroad Co. v. Rose, 24 Id. 362.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

In building their road, the New Castle and Eranklin Railroad . Company, the defendants below, carried it across Mill street in the city of New Castle. The track, extending from a south-westwardly direction, struck the western boundary of the street near the corner of a lot belonging to the plaintiffs, and crossed it diagonally and in a curved line in front of the house standing on the lot. The effect of the construction of the railroad was to impede the channel of a watercourse that ran past the property of the plaintiffs. The lot was near a piece of swampy ground which was drained off in a north-eastwardly direction, and the railroad embankment obstructed the flow of the water, and flooded it back into the cellar of the house. How much of the mischief complained of resulted from the work done on the street did not precisely appear. The plaintiffs were permitted, under exception, to give evidence of the consequences produced by the embankment on the land adjacent to the street on the south-westwardly side of it, as well as on the line of the street itself. And all the facts tending to show the connection between the entire embankment and the obstruction of the watercourse, were submitted as elements to be considered by the jury in the ascertainment of the damages. In their first, second and fifth points, the defendants asked the court, in substance, to charge that the plaintiffs could not recover for injuries caused by the construction of that part of the railroad which was outside of the street line. The instruction asked for was refused, and the admission of the evidence and the answers to the points have been made the subjects of the first, third, fourth and fifth assignments of error.

It may be assumed, under the verdict which the jury rendered, that to some extent, at least, the plaintiffs were injured by the obstruction of the watercourse, although, as the cause was tried, the recovery may have been rested on other grounds. But it may also be assumed that some portion of the amount of damages awarded was compensation for consequences resulting from the embankment built across the swamp before the line of the street was reached. While for such consequences the plaintiffs could perhaps resort to an action at common law, they were not entitled to redress in the form they adopted. ' This is a statutory proceeding under the third proviso of the 10th sect, of the Act of the 19th of February 1849, which declares that “ whenever any company shall locate its road '•■-in and upon any road or alley in any city or borough, ample compensation shall be made to the owners'of lots fronting upon such street or alley for any damages they may sustain by reason of any excavation or embankment made in the construction of such road.” However injurious the effect of the company’s structures might be, if neither the street nor the property of the plaintiffs had been touched, the statute could give the plaintiffs no relief. It was for mischiefs arising from an excavation or embankment within the boundaries of a public highway, by which the value of private property would be impaired, that the legislature intended to provide. The Act of 1849 cannot be carried by intendment beyond the purpose' it expressed. No remedies in statutory form can be asserted, and no remedies at common law can be defeated, by implication from its terms. So far as the property of the plaintiffs was damaged by the railroad embankment within the lines of the street, they had the right to compensation. With the consequences produced by work outside those lines, the court and jury in this proceeding had nothing to do.

In their sixth point the defendant asked instructions that “ for any depreciation in the value of plaintiffs’ lot by reason of danger to persons or property from passing trains, danger of fire from locomotives, increase of rates of insurance, the noise, smoke, soot, jarring, and other inconveniences from passing trains, the plaintiffs are not entitled to recover.” The point was refused, and in the general charge the jury were directed carefully to consider the advantages and disadvantages resulting from the construction of the railroad, “and apply it all to ascertaining and fixing the open market value of the plaintiffs’ property, house and lot before the defendant built and operated the road complained of, as it was then unaffected in any way by the road, and the market value of the property after the defendant built and operated its road, and as affected by such building and operation.” The measure of compensation was stated to be the amount of depreciation caused by “ the construction and operation of defendant’s railroad, where and as it is constructed and operated.” The same language was used in several other instances in the course of the charge, and was repeated in the answer to the first point of the defendants. A glance at the testimony is sufficient to show the mischief this submission of the effect of the “ operation” of the road was capable of working. One witness, Henry Wagner, said: “In estimating damages, I consider the cars might run off the track and through the house; the noise and smoke, and increased price of insurance make part of the damage; also that the cellar is damp, and water can’t get off. Can’t tell whether the road would do any damage independent of the running of trains.” Margaret McChesney attributed the depreciation in the value of the property to “ danger of fire, the smoke, noise, jarring of the house, and the water in the cellar.” A. S. Wagner stated his opinion in substantially similar terms. Joseph Kissick testified: “I don’t take the water into consideration; all the cellars along there will have water in them. I take into consideration the noise and smoke of cars, and the running of trains.” The testimony seems to have been received without objection, and may have been elicited on cross-examination ; but the defendant had the right to ask the exclusion of the effects of the operation of the railroad from the deliberations of the jury nevertheless. The subject-matter of legitimate inquiry was the extent of the damage caused to the plaintiffs by the embankment made by the defendant in Mill street. The liability of a railroad company was expressly limited to cases in which an “ excavation” or an “ embankment” should.be made in the course of the construction of their road.” If the track had conformed to the grade line of the street, the plaintiffs would have had no remedy at all, for the statute would have had no application. It is well settled, even under more comprehensive legislation than this, that contingent disadvantages cannot be taken into account as a substantive claim for damages: Searle v. The Lackawanna and Bloomsburg Railroad Company, 9 Casey 57. In the tenth section, of the Act of 1849, as was said by Mr. Justice Lowrie, in The Lehigh Valley Railroad Co. v. Lazarus, 4 Casey 203, in speaking of that company’s charter, the legislature intended to provide for all real damages and nothing more. In consequence of the hurry of the trial in the Common Pleas, perhaps, or possibly from inadequate presentation, the principles applicable to the questions which this cause presented were misconceived, and it must go back to be tried again. Judgment reversed, and venire de novo awarded.

Mercur, J., dissents.