text:
    Everman’s Appeal. Logan’s Estate.
    1. More than fire years after a decedent’s death an administrator obtained an order for sale of real estate for the payment of debts; a creditor who had obtained a judgment after the death had no standing to appeal from the order.
    2. If he were a creditor with an unexpired lien, the Orphans’ Court sale would be a good one and he would be entitled to the proceeds if there were no other creditors.
    3. The administrator was the proper person to make the sale under the 35th and 36 th sections of Act of February 24th 1834.
    4. The policy of the law is to bring decedent’s estates into the Orphans’ Court where creditors and heirs can have their own rights considered and assail others.
    January 12th 1871.
    Before Thompson, C. J., Bead, Ahnew, and Williams, JJ., Sharswood, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Philadelphia: in the estate of John W. Logan, deceased, No. 341 to January Term 1870.
    On the 20th of November 1869, Margaret S. Logan, administrator, &c., of the decedent, presented -a petition, setting forth that he had died intestate in January 1863, leaving herself, his widow, and two children, and seised in fee of a house and lot in Ann Street, Philadelphia; that his personal estate, amounting to $2378.59, was insufficient to pay his debts, which by a statement annexed to the petition appeared to amount to $8456.53; amongst which was a judgment for $538T.95 recovered against the estate November 24th 1868, by John W. Everman. The prayer of the petition was for an order of sale for the payment of the decedent’s debts.
    On the same day, Everman filed an affidavit, setting forth that he was a judgment creditor of the decedent for an amount above $5000, that there were no other debts of record against his estate; that all his debts had ceased to be liens on his real estate except the debt of the affiant, that the value of the real estate would not exceed $1500; that the personal estate was insufficient; that no notice of the application for an order of sale had been given to the affiant, and that he had perfected such proceedings in the District Court of Philadelphia, as would enable him to sell the real estate to advantage.
    On this affidavit a rule was granted on the administrator to show cause why the order of sale should not be vacated.
    On the 17th of January 1870, the administrator filed an affidavit in reply, that Everman’s judgment was not recovered within five" years after the decedent’s death, suggesting that the unrecorded debts were not barred, that Everman had no preference and was not entitled to the whole fund in exclusion of the other creditors.
    On the same day, Everman’s rule was discharged. He appealed to the Supreme Court, assigning for error, the granting the order of sale and discharging his rule.
    February 9th 1871,
    G. Bull, for appellant
    cited Act of March 29th 1832, sect. 31, Pamph. L. 198, Purdon 289, pl. 105; Himes v. Jacobs, 1 Penna. R. 152.

      E. C. Graeff, for appellee,
    cited McCandless’s Estate, 11 P. F. Smith 9; Pry’s Appeal, 8 Watts 257; Kittera’s Estate, 5 Harris 416; Act of February 24th 1834 sect. 35, Pamph. L. 79, Purd. 288, pl. 101.
   The opinion of the court was delivered,

by Agnew, J.

This is an appeal by a creditor from a decree of the Orphans’ Court ordering the sale of real estate for the payment of the debts of a decedent, and among them his own. It may be, that none of the debts are liens on the real estate of J. W. Logan, deceased, but the only parties interested in that question are not here contesting the order of sale. The heirs make no objection and the administratrix avers that there are debts having liens. A creditor, John W. Everman, supposing that he has a judgment which will estop the heirs from denying the lien of his debt, and therefore that he can make a sheriff’s sale to pass the title, if he be permitted to proceed upon his judgment, asks the Orphans’ Court to vacate its decree and appeals, because it would not. But it is evident, that, if he be a creditor with an unexpired lien, the Orphans’ Court sale will be a good one and he will be entitled to the proceeds, if there be no other lien creditors. The administratrix is the proper person to make the sale, and special provision is made by the Act of 26th February 1834, §§ 35, 36, to restrain a creditor from proceeding to sell by execution, and to compel the administrator to proceed in the Orphans’ Court. The policy of the law is to carry the settlement of the estates of decedents into that court, where the creditors as well as the heirs can come and contend for their rights, and if need be, assail the rights of others to recover, if their claims be unjust: Kittera’s Estate, 5 Harris 416; Bull’s Appeal, 12 Harris 286. It is evident, therefore, that as a lien creditor, John W. Everman is not injured by the order of the Orphans’ Court and has no right to appeal from it; the order of sale being for his benefit, and an appropriate means of con-, verting the real estate into money on payment of his debt. On the other hand, if not a lien creditor, he has no interest in the question and therefore cannot be permitted to interfere with the proceeding. In any view he is not entitled to appeal.

Appeal dismissed and proceedings ordered to be remitted to the Orphans’ Court, to proceed therein as to justice and right shall appertain; and the costs ordered to be paid by the appellant.


source: Caselaw Access Project

author:
by Read, J.
      Agnew, J.

license: Public Domain

text:
    Easby versus The City of Philadelphia.
    1. Acts of Assembly authorized the Councils of'Philadelphia by ordinance to require owners of docks in the Delaware and Schuylkill to cleanse them, and upon default, after thirty days’ notice, the city was to do the work and apportion the expense on owners of adjoining wharves, &c., according to the extent of the wharves and to enter liens for the expense. The Act of May 20th 1864 vested these powers in the port wardens, the liens to be collected by the city solicitor and claims filed, to be governed by the same rules of evidence as those for removal of nuisances by the board of health. Held, that the Act of 1864 is constitutional.
    2. The wardens are not required to pass ordinances or exercise legislative authority.
    3. A claim for such work is properly filed in the name of the city.
    4. An order by the wardens to cleanse the docks is necessary, and notice of the order must be given. Per Thompson,'C. J., and Agnew, J.
    5. - The recital in the claim that notice of the order had been given is primá facie evidence that the order had been made'. Id.

    January 12th and 13th 1871.
    Before Thompson, C. J., Bead, Agnew and Williams, JJ. .Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 18, to July Term 1870. . -
    This was a scire facias, issued November 15th 1869, by the City of Philadelphia to the use of “The American Dredging Company” against William Easby, owner, &c., on a claim in the same form, filed November 10th 1869, for dredging,. &c., a dock in the river Delaware, opposite the premises owned by the defendant. The amount of the claim was $1203.11.
    The claim, after setting out a description of the defendant’s premises, the work done, &c., averred as follows: “ and the work aforesaid was done after notice had been served by the order of the Board of Port Wardens of the City of Philadelphia upon the owners of the wharves and piers which surround the docks above mentioned, to cleanse the same, and upon default by said owners, for more than thirty days after the service of said notice upon them, to perform the said duty.”
    The case was tried' March 2d 1870, before Stroud, J., when the plaintiffs offered the claim in evidence. It was objected to by the defendant:—
    “ 1. That it is incumbent on the plaintiff to show that the port wardens have exercised the powers conferred on them by the Act of Assembly in relation to cleansing docks, before the statements contained in the claim are entitled to he read in evidence.
    “ 2. That a claim for such work should be filed in the name of the' port wardens and not in the name of the City of Philadelphia.”
    The court admitted the evidence,'and sealed a bill of exceptions. The plaintiffs- then closed.
    The defendant offered in evidence the minute books of the wardens, to show that they had not provided by ordinance or other legal action for cleansing the dock in question.
    He also offered to prove that the expense of cleansing the docks in the vicinity of the premises had not been apportioned amongst the adjoining owners in proportion to the extent of their wharves, and that the defendant had been charged with more than his legal proportion of the expense. Both offers were objected to by the plaintiff, and several bills -of exception sealed.
    The defendant submitted the following points, which were refused: — ■
    1. The Act of Assembly of May 20th 1864, transferring legislative power from the city councils, a legislative body, to the port wardens, who are not a legislative body, is therefore unconstitutional.
    2. But if the said act is constitutional, it was incumbent on the port wardens to provide by ordinance for the cleansing of the docks; and if they have not done so, the plaintiffs cannot recover in this action.
    3. It was incumbent on the poVt wardens at least to provide by sufficient official action of the board of wardens for cleansing the docks, which action should be made to appear by the minutes of said board.
    4. The claim in this case should have been filed in the name of the port wardens, and the plaintiffs are not entitled to maintain and recover upon the claim filed.
    5. But if the claim is properly filed and proceeded upon, the plaintiffs are not entitled to,recover more than such an amount as shall be in proportion to the extent of the defendant’s wharf having the privilege of the dock cleansed.
    6. The port wardens are required by the Act of Assembly to apportion the expenses of cleansing the docks among the owners of the wharves and piers adjoining, and it does not appear that they did so in this case.
    The verdict was for the plaintiff for $1227.17.
    The defendant took a writ of error. He assigned for error the decisions of the court on the questions of evidence and the refusal of his points.
    The Acts of Assembly under which the claim in this case was made, are:—
    Act of May 13th 1856, § 12 (Pamph. L. 570], which provides, that it shall be lawful for the councils of said city to provide, by ordinance, for the cleansing of the docks on the Delaware and Schuylkill front of said city,-and to require the owners of wharves and,piers which surround such docks, to cleanse the same; and after thirty days’ default, from the service of notice on them to perform said duty, it shall be lawful for the city to do said work, and-to apportion the expenses thereof among the owners of the wharves and piers adjoining, in proportion to the extent of their wharves having the privilege or use of such docks, and to collect the same by filing liens therefor, and process thereupon, as in case of claims for paving; provided that no dock shall be cleansed to a greater depth than the natural bed of the river.
    February 20th 1871,
    Act of April 22d 1858 (Pamph. L. 449), which' provides, that the city councils of Philadelphia shall have authority, by ordinance, to direct owners of docks and'wharf property to clean their docks, after certain notification by the proper officer of the -city government, with power, in case of refusal- or neglect on the part of any parties thus notified, to cleanse such docks, and to enter liens against the surrounding property for its respective proportion of the expense attending such work.
    Act of May 20th 1864 (Pamph. L. 906), which provides that the powers vested in the councils of Philadelphia by the Acts of April 22d 1858, May 13th 1856, be and the same are hereby vested in the port wardens; provided that all liens filed to collect the expenses of the said work, shall be filed by the'city solicitor, and the lien for,said work shall have the same force and effect as liens for municipal work, in the city of Philadelphia, under existing laws, and the claims filed for the same shall be governed by the same rules of evidence as those filed in • the city of Philadelphia, for the removal of nuisances, by the board of health.
    The laws relating to the removal of nuisances by the board of health are the Acts of April 7th 1830 (Pamph. L. 348) and of March 11th 1846 (Pamph. L. 115), stated by Mr. Justice Read in delivering the opinion of the Supreme Court.

      W. S. Price, for plaintiff in error,
    referred to the Acts of 1856, 1858 and 1864, supra. The. work having been done by the wardens the claim should have been .in their name instead of the, city : Philadelphia v. Wistar, 11 Casey 427; Wistar v. Philadelphia, 3 Grant 311. The wardens should have provided by ordinance for the dredging: City v. Lea, 5 Phila. Rep. 77; Reilly v. Philadelphia, 6 Id. 228; s. c. 10 P. F. Smith 467. The defendant might prove that the wardens had not provided by ordinance for the work: Johnson v. Philadelphia, 5 Phila. Rep. 445; Kensington v. Keith, 2 Barr 218. The defendant might prove that he was charged too much: Thomas v. N. Liberties, 1 Harris 117. This charge was a tax, the power to lay which was confided to the councils; they could not constitutionally transfer it to the wardens: Pennock v. Hoover, 5 Rawle 219.

      S. W. Pettit, for defendant in error.
   The opinion of the court was delivered,

by Read, J.

This case arises under the provisions of the 12th section of the Act of 13th May 1856, and of the further supplement to the Act incorporating the city of Philadelphia, passed 22d April 1858, and of the 2d section of an Act regarding the Port of Philadelphia, passed 20th May 1864. The first two acts gave the city councils certain authorities relative to the cleansing of the docks on the Delaware and Schuylkill front of the city, and the last act vested these powers in the port wardens. All the powers therefore relating to cleansing the docks given to councils by the Acts of 1856 and 1858, were transferred to and vested in the port wardens, who were to carry them into effect according to the constitution of their own body. The councils could by their fundamental law, act only by ordinance, and the Act of 1864 never did so absurd a thing as force a power to pass ordinances on an executive body, the port wardens. This being the case the objection that the act is unconstitutional falls to the ground.

The first error is answered by. the 4th section of the Act 11th March 1846, Pamph. L. 115 : “ Such claims may in suits thereon be read as evidence of the facts therein set forth-;” and in the claim filed, notice to cleanse the same is averred to have been given agreeably to the Act of Assembly, and the second, fourth and fifth errors are answered by the fact that the port wardens are not required to pass ordinances or to exercise any legislative authority. The claim was properly filed in the name of the- city, the municipal corporation, of whom the port wardens are the agents, and the third, sixth, eighth and ninth errors by the following provisions of the existing laws: “ All liens to collect the expenses of the said work shall have the same force and effect as liens for municipal work in the city of Philadelphia under existing laws, and the claims filed for the same shall be governed by the same rules of evidence as those filed in the city of Philadelphia for the removal of nuisances by the board of health.”

Docks uncleansed were nuisances in the rivers within the immediate jurisdiction of the port wardens. By the 2d section of the Act of 7th April 1830, Pamph. L. 348, it is enacted, that “upon the trial of which (the scire' facias) the fact of the nuisance shall not be inquired into, and the defendant or defendants shall only be permitted to give evidence of payment, or-that unnecessary expenses were incurred by the board in the removal of the nuisanee;” and by the 4th section of the Act of 11th March 1846, it is enacted, “ and no plea alleging non-joinder or mis-joinder of parties, no plea averring want of notice to remove, nuisances, no plea touching the rates or proportions of contribution among parties jointly interested, nor any plea touching the question of ownership shall be allowed in any such action.”

These acts clearly cover all the offers made by the defendant, and exclude the evidence proposed to be given.

Judgment affirmed.

Agnew, J.

I concur in the judgment. While I agree that an ordinance, in the sense of a legislative act, is not within the province of the port wardens, I think an order to cleanse the docks is necessary, of which notice must be given. This notice is evidence of the order or regulation of the wardens, and being recited in the claim, is, under the law, primá facie evidence, and the judgment can be supported on this ground, the want of an order not being shown.

Thompson, C. J. — I concur with my brother Agnew.

Williams, J., dissented.


author: by Agnew, J.

text:
    Alter’s Appeal.
    1. Husband and wife had wills prepared, giving their property to each other; by mistake each signed the other’s will. After the husband’s death an Aet of Assembly was passed authorizing tíie court to hear testimony and if the mistake was proved to reform the will. Held, that the right of the husband’s heirs had vested on his death and the act was invalid.
    2. The husband had executed no will and there was nothing to reform.
    January 13th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Register’s Court of Philadelphia: No. 163, to July Term 1870.
    The decree appealed from was refusing .to admit to probate, as the will of George A. Alter, a paper writing, signed “ Catharine Alter.” Catharine Alter was the sole devisee, legatee and executor named in the will, and was the appellant.
    In March 1862, under the instructions of George A. Alter and Catharine Alter, who was his wife, Mr. Flood, a lawyer, prepared for each of them a will, the husband giving to the wife all .his property, and appointing her executor; both were' dated March 31st 1862. By mistake, the wife signed the husband’s will, and the husband signed the wife’s; both were witnessed at the same time by three witnesses, the same persons, the draftsman of the will being one. George A. Alter died August 18th 1869. After his death the mistake was discovered,- but the register refused to admit the will intended to have been George A. Alter’s to probate.
    An Act of Assembly was passed February 23d 1870, reciting the foregoing facts, and enacting:—
    “ Sect. 1. That any executor, &c;, or parties in interest under the last will and testament of the said George A. Alter, deceased, may present his, her or their petition to the Register’s Court of Philadelphia, sétting forth the facts as near as can be done as to the mistake relative to said George A. Alter signing-the will drawn for his said wife Catharine to execute, when he supposed he was signing, sealing and executing a will drawn and prepared for himself to. execute, and by mistake signed his name to the wrong paper writing as his own last will and testament, and that the said Catharine Alter signed, sealed and executed a paper writing which she supposed was her last will and testament, when she in fact signed and executed the paper which it was designed should be and was the last will and testament of her late husband, George A. Alter, deceased, all of which it is alleged was done by mistake of both said persons. And upon the hearing of said petition and the necessary proof in relation to the alleged mutual mistake by the said respective persons above named, the said Register’s Court are hereby clothed and invested with all the powers of a court of chancery in relation to the premises, and, if upon full proof the said court are satisfied of said mistake, are authorized and empowered to reform the said paper writing which purports to be his last will and testament, but which was signed through mistake by his said wife Catharine, and the said court shall have full power to call before them all persons and witnesses in relation to the execution of said papers, and the said court upon being fully convinced that the said George A. Alter executed the wrong paper writing by mistake, are hereby authorized to have entered in the ofiice for- the register of wills in and for the said city and county the said paper writing which he intended to execute as his last will and testament, as if the said paper writing had been signed by him with his own hand and seal, and not by his said wife Catharine, as it shall appear to have been.
    “ Sect. 2. That upon a final decree being made in said case upon a full hearing thereof, with proper notice to all parties or persons interested in said estate, and such order and decree so made by said Register’s Court, shall be conclusive upon all persons and parties as to the execution of said paper writing, and shall be as binding and valid as to the real and personal estate by the said George A. Alter, deceased, as if there had been no mistake as to his executing a wrong paper, and the paper or papers thus reformed by the decree of the said Register’s Court shall be for ever held to be the last will and testament of the said George A. Alter, deceased, as if the same had been signed and sealed by him: Provided always, that any person or party interested in said estate as heir or otherwise shall have the right of appeal to the Supreme Court from the decree of said Register’s Court at any time within one year from the entering of said decree, but not afterwards.”
    In pursuance of this Act of Assembly, Catharine Alter presented her petition to the Register’s Court, setting out the facts as to the mistake in the execution of the papers. She also averred that the said George A. Alter died without children, and stated in the petition the names and residences of his collateral heirs and next of kin. The prayers of the petition were: to appoint an examiner to take testimony; to make an order bringing in all the parties in interest; to reform the paper ^appearing to have been prepared as the will of George A. Alter, by striking off the signature “ Catharine Alter,” and causing the name “ George A. Alter” to be signed thereto; to order the paper so signed to be admitted to probate as the will of. George A. Alter, and letters testamentary to be granted to the petitioner, and for further relief.
    An examiner was appointed, and a large amount of testimony taken clearly establishing the mistake and the other allegations of the petition.
    The case was heard in the Register’s Court before Leech, Register, and Ludlow and Paxson, JJ., of the-Court of Common Pleas, and on the 18th June 1870, the petition was dismissed and order of probate refused, Ludlow, J., delivering the opinion.
    Mrs. Alter appealed to the Supreme Court, and assigned the decree of the court for error.

      A. V. Parsons and W. L. Hirst, for appellant.
    They cited a number of private Acts of Assembly, giving power to the courts as to the probate of wills; they cited also on the power of courts to reform wills and other writings: Arndt v. Arndt, 1 S. & R. 256; Matthews v. Warner, 4 Vesey 186; Griffin v. Griffin, 1 Burrows 549; Walmesley v. Read, 1 Yeates 87; Story’s Eq. Jur., §§ 79, 80, 110; Willan v. Willan, 16 Vesey 72; Lansdown v. Lansdown, 2 Jacob & Walker 205; Milner v. Milner, 1 Vesey, Sr. 106; Phillips v. Chamberlaine, 4 Vesey 51; Parsons v. Parsons, 1 Vesey, Jr., 266; Beaumont v. Fell, 2 P. Wms. 141; Baylis v. Attorney-General, 2 Atkins 239; Stockdale v. Bushly, 19 Vesey 381; Rankin v. Mortimere, 7 Watts 372; Jenks v. Fritz, 7 W. & S. 201; Heacock v. Fly, 2 Harris 540; Gross v. Leber, 11 Wright 520; Danvers v. Manning, 2 Brown’s C. C. 18; Stebbing v. Walkey, Id. 86; River’s Case, 1 Atkins 410; Fonnereau v. Poyntz, 1 Brown’s C. C. 412; Powell v. Biddle, 2 Dall. 70; 1 Redfield on Wills 348, 349; Lewis v. Lewis, 6 S. & R. 497; 1 Jarman on Wills 231; Armstrong v. Armstrong, 29 Alabama Rep. 528; Day v. Day, 2 Green Chan. Rep. 330.

      T. Mitchell (with whom was F. Heyer), for appellees,
    cited Wills Act, April 8th 1833, § 6; Pamph. L. 249, Purd. 1016, pl. 6. Also, as to power of courts to reform a will: Adams on Eq. 172; 3 Black. Com. 431; Whitton v. Russell, 1 Atk. 448; 1 Story’s Eq. Jur., § 106, and cases cited; Comyn’s Dig., tit: Chancery, 3 F. 6, 7, 8; Redf. on Wills, ch. 7, 206 and notes; Greenough
      v. Greenough, 1 Jones 489; Shinkle v. Crock, 5 Harris 162; McCarty v. Hoffman, 11 Id. 507; Aurand v. Wilt, 9 Barr 54; Redfield on Wills, ch. 10; Stark, on Ev. 762-4; Mann v. Mann, 1 Johns. Ch. 231; Wallize v. Wallize, 5 P. F. Smith 242; In re Davy, 1 Swabey & Tris. 261; Hiscocks v. Hiscocks, 5 Mee. & W. 363; Tucker v. Seamen’s Aid Soc., 7 Met. 188; Dent. v. Pepys, 6 Madd. Ch. R. 350; Kelley v. Kelley, 1 Casey 460; Stark, on Ev. 765; 1 Redf. on Wills, ch. 7, § 18, pl. 4; Norman v. Heist, 5 W. & S. 173: Adams Eq. 175, 248, 249; 1 Story’s Eq. Jur., § 184, and note; 2 Id., §§ 1445, 1446; Allan v. McPherson, 1 H. of Lds. Cases 191; 1 Spence’s Eq. Jur. 701.
    February 9th 1871,
   The opinion of the court was delivered,

by Agnew, J.

This is a hard case, but it seems to be without a remedy. An aged couple, husband and wife, having no lineal descendants, and each owning property, determined to make their wills in favor of each other, so that the survivor should have all they possessed. Their wills were drawn precisely alike, mutatis mutandis, and laid down on a table for execution. Each signed a paper, which was duly witnessed by three subscribing witnesses, and the papers were enclosed in separate envelopes, endorsed and sealed up. After the death of George A. Alter, the envelopes were opened and it was found that each had by mistake signed the will of the other. To remedy this error the legislature, by an Act approved the 23d day of February 1870, conferred authority upon the Register’s Court of this county to take proof of the mistake, and proceed as a court of chancery to reform the will of George A. Alter and decree accordingly. Proceedings were had resulting in a decision of the Register’s Court that there was no will, and that the act to reform it was invalid, the estate .having passed to and vested in the collateral line of kindred. From this decree an appeal has been taken by Catharine Alter.

On this statement the first inquiry is, Was the paper signed by George A. Alter his will? Was it capable of being reformed by the Register’s Court ? The paper drawn up for his will was not a will in law, for it was not “signed by him at the end thereof,” as the Wills Act requires. The paper he signed was not his will, for it was drawn up for the will of his wife and gave the property to himself. It was insensible and absurd. It is clear, therefore, that he had executed no will, and there was nothing to be reformed. There was a mistake, it is true, but that mistake was the same as if he had signed a blank sheet of paper. He had written his name, but not to his will. He had never signed his will, and the signature where it was, was the same as if he had not written it at all. He therefore died intestate, and his property descended as at law. ^ The difficulty lies not in the want of power of a court of chancery to reform a mistake in an existing will, when full equity power to that end is conferred hy the law, but in the want of power to give an existence to that which had none before. And the objection to the validity of the act conferring the authority to decree the will, lies not in a want of power in the' legislature to establish a will upon parol proof of the fact of making it, and of the intent to execute the proper paper, but in its want of power to divest estates already vested at law on the death of George A. Alter without a will. - There being no will, it is evident that the effect of any subsequent legislation, call it by what name we may, is simply to divest estates. That this cannot be done is abundantly proved by Greenough v. Greenough, 1 Jones 494; McCarty v. Hoffman, 11 Harris 508; Norman v. Heist, 5 W. & S. 171; Bolton v. Johns, 5 Barr 145; Dale v. Metcalf, 9 Id. 108, and other cases. The first two cases are directly in point, for it was held therein that the Act of Assembly validating wills where the testator had made his mark instead of signing his name or expressly directing it to be signed for him, could not reach the case of a will so executed, where the testator had died before the passing of the act.

The decree of the Register’s Court is therefore affirmed, with costs to be paid by the appellant.


author: by Williams, J.

text:
    Philadelphia, to the use of Holgate, versus Meager.
    1. The city filed a municipal claim against a lot, and afterwards filed another under which the lot -was sold for a sum less than would pay the first lien. Meld, that under the Act of March 11th 1846, the first lien was not divested further than the proceeds of sale were applicable to it.
    2. The fact that both liens were in favor of the city did not vary the ease.
    January 3d 1871.
    Before Thompson, C. J., Read, Agnew and .Williams, JJ. Sharswood, J., at Nisi Prius. ^
    - Error to the Court of Common Pleas of Philadelphia: Of July Term 1870, No. 23.
    This was a scire facias, issued August 16th 1869, by the city of Philadelphia to the use of James Holgate against Charles Meager on a municipal claim.
    A case stated was filed September 20th, which showed the following facts:—
    On the 16th of February 1869, the _ City, to the use of Holgate, filed a claim amounting to $145.06, for paving, &c., against a lot of ground in the 19th ward of the city. On the 12th of March 1869, the City, to the use of Samuel Miller, filed a similar claim for $144.37 against the same lot. On the last claim a judgment- was recovered, and on a levari facias issued upon the judgment to June term 1869, the lot was sold for $70 to J. Frank Knight.
    February 9th 1871,
    By the case it was agreed that, “ If the court shall be of opinion that said judicial sale discharged the claim filed to the use of James Holgate, so far as the same affects the title or estate of the judicial vendee, then judgment for the defendant. If otherwise, then judgment for the plaintiff, the damages to be assessed by the prothonotary.”
    The court below (Pierce, J.) entered judgment for the defendant, which was assigned for error by the plaintiff, who removed the case to the Supreme Court.

      M. Arnold, Jr., and D. W. Sellers, for plaintiff in error,
    cited Acts of April 6th 1830, § 1, Pamph. L. 293, Purd. 325, pl. 97; March 11th 1846, § 6, Pamph. L. 115, Purd. 752, pl. 32; Willard v. Norris, 2 Rawle 56; Moyamensing v. Shubert, 1 Phila. R. 256; Brinton v. Perry, Id. 436.

      J. M. Pile, for defendant in error.
    (During the argument Thompson, C. J., referred to Smith v. Simpson, 10 P. F. Smith 168.)
   The opinion of the court was delivered,

by Williams, J.

The city of Philadelphia filed two claims against the defendant’s property for the use of different contractors — the first for paving the cartway of the street, and the second for constructing a sewer in front of the property. Upon the claim' last filed the property was sold by a judicial sale for a sum insufficient to pay either claim. The question presented, by the -case stated is, whether the lien of the claim first filed was discharged by the sale.

The Act of the 11th of March 1846, § 6, Pamph. L. 115, provides in express terms, that the lien of such claims shall not be divested by any judicial sale as respects so much thereof as the proceeds of such sale may be insufficient to discharge and pay. The language of the Act is too plain to admit of any doubt as to its purpose or meaning. It was clearly intended to prevent the lien of municipal claims from being discharged by judicial sales where the proceeds of sales are insufficient to pay them. It is not denied that this was the general purpose and meaning of the act. Nor is it contended that, under its provisions, - a judicial sale made at the suit of any other party than the corporation itself will discharge the lien of municipal claims unless the proceeds of sale are sufficient to pay them. But it is thought that the rule is different where the sale is made at the suit of the corporation, and that in such case a judicial sale on one of two or more claims, of which the corporation is the legal or equitable owner, will discharge the lien of all. But why should the fact that the sale is made at the suit of the corporation make any difference in this respect ? There is nothing in the provisions of the act that gives countenance to any such distinction. Where the corporation proceeds for the claim and sells the property bound by its lien, there may be a good reason for holding, as the Common Pleas and District Court have held, Moyamensing v. Shubert, 1 Phila. R. 256, Brinton v. Perry, Id. 436, that the lien is divested by the sale, whether the proceeds are sufficient to pay the claim or not. Such a sale ’may be well regarded as not within the meaning of the act, and therefore as excepted from its provisions. It would be an unreasonable construction of the act to hold that the corporation might sell the same property over and over again on the same lien. By permitting it to be struck down' and conveyed to the purchaser at the price bidden therefor, the corporation impliedly consents that he shall hold it discharged from the lien on which it was sold; and it would be inequitable, after receiving the purchase-money, to sell it again on the same' lien. But there is not the same reason- for holding that a sale made by the corporation on one claim discharges the lien of all other municipal claims on the property. Why should a sale on one claim discharge the lien of all other claims, any more than it should the lien of a first mortgage held by the corporation ? In the face of the express provisions of the act, no implication can possibly arise, that the corporation, by selling the property on one claim, consents that the sale shall divest the lien of all other claims that it may hold. Such a construction is not warranted by the language of the. act, and would defeat its manifest purpose. The lien of the claim in this case, then, was not divested by the sale on the subsequent claim except so far as the proceeds of sale were applicable to its payment. It follows that the plaintiff was entitled to judgment on the case stated, and that the court' erred in entering judgment for the defendant.

And now, January 9th 1871, this cause came on tó be heard at the present term, and'was argued by counsel, and thereupon, on consideration thereof, it is ordered and adjudged that the judgment of the Common Pleas be and the same is hereby reversed, and that judgment be now entered for the plaintiff, the damages to be assessed by the prothonotary of the Common Pleas, in accordance with the agreement of the parties in the case stated.


author: by Thompson, C. J.

text:
    Buchanan versus Baxter.
    1. In landlord and tenant proceedings under the Act of 1772, the inquisition is part of the record.
    2. If in the record of the justices’ proceedings, the finding of the inquest that there should be restitution of the premises is not explicitly set out, it might be corrected by the inquisition.
    3. A certiorari to proceedings under Act of 1772 does not bring up the evidence.
    4. Although on a certiorari to proceedings under the Act of 1772, the court below might hear facts by affidavit, it would be an unsafe rule.
    5. Form in Binns’s Justice, edition of 1870, p. 535, as to proceedings under Act of 1772, approved.
    6. Duff v. Fitzwater, 4 P. F. Smith 224, Snyder v. Carfrey, Id. 90, recognised.-
    January 13th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to the Court of Common Pleas of Philadelphia: Of July Term 1870, No. 142.'
    These proceedings were commenced, April 8th 1870, before David Beitler and George Moore, Esquires, two aldermen of Philadelphia, by John Baxter against James Buchanan to recover possession of “ a store, tenement and appertenances” at the corner of Second and Christian streets, Philadelphia.
    The inquistion was taken, April 12th 1870; it found that the plaintiff was “ possessed of a certain store, tenement and appertenances,” &c., and demised them to the defendant for a year from the 15th of April 1869, &e., at the rent of $500; that the defendant entered by virtue of the demise, &c.; that the plaintiff, on the 14th of December 1869, gave the defendant. notice to remove, which he refused, &e.

      “ Whereupon it is considered by the said aldermen that restitution of the said demised premises be made to the said John Baxter, and that he recover of the said James Buchanan, one dollar damages aforesaid, together with the costs of suit, amounting to fortyrfive dollars.”
    . The record of the aldermen set out the complaint of. the plaintiff stating as the inquest found, the precept to the sheriff, the hearing before the inquest, witnesses examined by the plaintiff and defendant, and inquisition:—
    The record concludes, “ Therefore it is considered and adjudged, by us, the said aldermen, that the said John Baxter shall and do recover and,, have of the said James Buchanan as well the said sum of one dollar for his damages aforesaid, as forty-five dollars for his reasonable costs, by him expended in and about this suit in this behalf concerning which the premises aforesaid we do make this our record.”
    The defendant removed the proceedings' by certiorari into the Court of Common Pleas, and suggested a diminution of the record.
    The suggestions were:—
    2. The aldermen have not returned the copy of hill in equity, Baxter v. Buchanan, produced and admitted in evidence before them, filed in this court in September Term 1869 by the said John Baxter against the said James Buchanan, and alleging that as to a part of the premises in dispute, to wit, the store, the occupancy and tenancy thereof was and still is in partnership between the said John Baxter and James Bucha'nan, and that the rent of the dwelling part of said premises was $250 per year.
    3. The aldermen have not returned the notes of John Baxter’s testimony, taken before the examiner after answers filed by James Buehanpm, in the said equity proceeding, alleging under oath that the said store was occupied by himself and James Buchanan as copartners.
    4. The aldermen have not made any reference to the said evidence offered before them on behalf of the said James Buchanan.
    He also filed the following exceptions :—
    1. The record of the aldermen shows no judgment of possession.
    2. The aldermen have not returned with the record, the copy of the bill in equity, &c. (as mentioned in the2d suggestion).
    3. The evidence before the aldermen and inquest showed that, as claimed by the said John Baxter, the defendant Buchanan was tenant only of the dwelling part of the premises in dispute, and that the store, the remainder of said premises was occupied by the parties as copartners, the proceedings having been commenced to recover possession of the whole premises.
    4. It appeared in evidence before the aldermen and inquest that there was a previous legal proceeding commenced in September Term 1869 in equity in this court, and still pending and undetermined, by the said John Baxter against the said James Buchanan, in which the question of the copartnership in the occupation of part of said premises was in .process of adjudication.
    The court refused the defendant leave to take testimony in support of the suggestions and exceptions ; defendant then filed additional exceptions, viz.:—
    1. The Act of 1772 is superseded by the Act of 186.3 and its supplements, and this proceeding being under the Act of 1772 is illegal.
    2. The court refused to permit the defendant to take testimony in support of the suggestion and exceptions filed.
    The exceptions were dismissed, and the judgment of the aider-men affirmed.
    The defendant removed the proceedings -to the Supreme Court by certiorari.
    He assigned for error:

      February 9th 1871,
    1. The refusal, to allow'the defendant to prove that he and plaintiff owned part of the premises jointly.
    2. The refusal to allow the defendant to take testimony as to the suggestion of diminution of the record.
    3. The refusal to reverse the proceedings of the aldermen on the ground that their record did not show an entry of judgment of possession.
    4 and 5. Dismissing the exceptions and affirming the justices’ judgment.

      J. H. Sloan and W. L. Hirst, for certiorari.
    The Act of March 22d 1814, § 1, 2 Sm. L. 176, Purd. 614, pl. 20, forbids proceedings under the Act of 1772 by one partner, &c., to dispossess another. The Act December 14th 1863, § 1, Pamph. L. (1864) 1125, Purd. 1341, pl. 1, supersedes Act of March 21st 1772, 1 Sm. L. 373, Purd. 613, pl. 18. Parol evidence was admissible: Road Commissioners v. Fickinger, 1 P. F. Smith 48. The award of the writ of possession should appear by the record, not merely by the inquisition: McMillan v. Graham, 4 Barr 140; Act of April 3d 1830, § 1, Pamph. L. 187, Purd. 614, pl. 21.

      D. W. Sellers (with whom was G. W. Dedrick), for defendant in error,
    commented on the above Acts of Assembly, and cited McMillan v. Graham, supra; Railway Co. v. Keenan, 6 P. F. Smith 198; Snyder v. Carfrey, 4 Id. 90; Cook v. McDevitt, 6 Phila. R. 131.
   The opinion of the court was delivered,

by Thompson, C. J.

In Snyder v. Carfrey, 4 P. F. Smith 90, this court held that proceedings before magistrates under the Landlord and Tenant Acts for recovery of demised premises, are not to be criticised with the extreme strictness that summary convictions on penal statutes are, but that only such substantial compliance with the letter and spirit of the acts is required, as might reasonably be expected to be within their competence, not being trained professional men.

This rule might be invoked here, if the criticism of the justices’ record were more just than it is. Thé complaint is that the finding of the inquest, that restitution of the demised premises be made to the lessor, is not explicitly set out on the record. But even if this were true, it is apparent that it was a mere error, for the intention to set it out accurately and enter the. judgment on the finding is also apparent, and it could be corrected by the inquisition itself. In fact, it is part of the record. But I do not think the objection well taken. The record here follows with the utmost strictness the form given in Binns’s Justice in such cases, edition of 1870, by Brightly, p. 535. That form has been in use for more than a third of a century, and is copied from Graydon, which is much older. Hundreds of records have been made in accordance therewith, and so far as I know, it has never been condemned by any court. This error is therefore not sustained.

In Duff v. Fitzwater, 4 P. F. Smith 224, it is expressly decided that the Act of 1772 is not repealed by the Act of 1863, and more need not be said about it.

The certiorari does not bring up the evidence given before the justices ; it is therefore only the regularity of the proceedings that the Common Pleas were to examine. It is true, that that court might, if it chose, go farther and hear fact's by affidavits, but it would be an unsafe practice as a rule: Union Canal Co. v. Keiser, 7 Harris 134; and even if the court below were to hear affidavits, they could not come before this court: Id. It was, therefore, not error to refuse to hear affidavits against the proceedings of the inquest or magistrates.. On the same principle the proceedings in equity offered are not before us.

The Act of 1814 has nothing to do with this case. The defendant made no offer to bring himself within its provisions, and this settles the question made on that point. .

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


author: by Read, J.

text:
    Young versus Leedom.
    1. An owner laid out land in town lots and street's; one of these streets being a public road. Held, that a purchaser of a lot would have the right to drain his lot upon the road.
    2. In an action for obstructing the flow of water from the plaintiff's lot, the court charged that he could recover if the defendant put into the street an obstruction which caused a greater quantity of water in times of rain to stand on plaintiff’s lot than before, but added, “this would not be true if the embankment only obstructed in cases of great and extraordinary floods, which are extraordinary and out of the course of nature.” Held to be correct.
    January 16th 1871.
    Before Thompson, C. J., Read, Agnew and Williams, JJ. Sharswood, J., .at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 119, to July Term 1870.
    This was an action on the case for nuisance, brought to November Term 1869, by Godfrey M. Young against Andrew S. Leedom.
    The declaration recited that the plaintiff was the owner of a lot of land, with a carpenter shop and dwelling, in .the township of Upper Merion, which said carpenter shop contained a valuable stock of carpenter tools, and whereas before the committing of the grievances hereinafter mentioned the water caused by rains had always been used to run from the aforesaid lot and buildings down •a certain street or way situate between the said lot and a certain lot of the defendant. Nevertheless the said defendant, &c., did erect in and upon the said street or way, a certain dam and causeway, by means whereof the flow of the water caused by rains was impeded, and obstructed and caused to flow back upon the said lot and carpenter shop of the said plaintiff, by reason of which the said lot and carpenter shop were overflowed, &c., and the said lots to the value of one thousand dollars, were greatly injured and destroyed, whereby the said-plaintiff the whole benefit and profit of the said lot and carpenter shop for a long time, &c., totally hath lost, and the said tools were rendered valueless and totally lost to the said plaintiff.
    William Davis was the owner of a farm of about 100 acres in Upper Merion township, Montgomery county, situate on the Schuylkill river. A public road was laid out through it on the side next to the river, called the “ River road.” Before that road was made the land came down to a flat; there was a considerable declination in the land towards the river, over which the water naturally flowed; the flow was arrested by constructing the road, under which a. culvert was made.
    About March 1865, he laid out a field of about four acres next to the River road in building lots. On the 8th April of that year he sold and conveyed six contiguous lots to-the plaintiff, the deed stating them by their numbers “ on a plan of lots laid out by William Davis on the 29th of March 1865.” These lots had their front on the River road, and were bounded on the south-east by a 25 feet alley called George street. After his purchase, the plaintiff erected a carpenter shop' and dwelling-house on his lot; the shop was about 26 feet from the River road and fronted on George street.
    Afterwards, on the 27th January 1867, Davis sold and conveyed to the defendant lots also fronting on the River road, and separated from the plaintiff’s lots by George street.
    The defendant built' a dwelling-house and store on his lot, fronting on the.River road, with its west side on George street. He filled up George street from his house to the' middle of that street, making it correspond in height with the River road.
    The allegation of the plaintiff was that this filling up in George street obstructed the natural flow of the water from his lot and produced the injury complained of in his declaration. He gave evidence to sustain his allegations'.
    The defendant denied that the natural flow of the water from the plaintiff’s lot was over defendant’s land, or that his filling in George street obstructed the flow of water from plaintiff’s lot.
    The evidence was conflicting on these points.
    The plaintiff asked the court to charge:—
    2. If the jury find that the culvert was made by the township authorities for the purpose of draining the water from the field of which the lots of plaintiff and defendant are part, defendant could not lawfully obstruct the flow of the water from plaintiff’s lot to the culvert.
    4. The plaintiff would have no right to drain the water from his lot into or upon the “ River road.”
    7. If the jury find from the'evidence that the effect of the embankment made by defendant in George .street, is to cause a greater quantity of water in times of rains and freshets 'to stand upon the lot of Young than before, the plaintiff is entitled to a verdict.
    The court (Ross, J.) answered these points :—
    2. “ I decline to affirm this point; the action of the township authorities cannot affect the relative private rights of the parties to this suit.”
    4. “ I decline to answer this point, it not being material to this, issue.”
    7. “ This is true; but the freshets and rains must be those usual, ordinary and to be expected rains and freshets, as defined in the general charge.”
    The court further charged:—
    * * * “ If you find that the effect of the defendant’s embankment on George street, is to cause a greater quantity of water to stand upon the lot of the plaintiff in times of ordinary rains and freshets, even though it does not produce this result, except at those periods, then the embankment is an obstruction, and, if the right of drainage be in the plaintiff, he would be entitled to your verdict. [The defendant is responsible for all flooding, and the consequences of.' all obstructions which his embankment may do and entail upon his neighbor, in times of the ordinary, usual and expected freshets. It is proper to say, however; in this connection, that this would not be true, if the embankment only obstructed in cases of great and extraordinary floods, which are extraordinary and out of the course of .nature: and which like other inevitable calamities that are Actus Dei, are to be borne without complaint.”] * * *
    The verdict was for the defendant.
    The plaintiff took out a writ of .error, and assigned for error the answers to the points and the portion of the charge in brackets.

      G. R. Fox, for plaintiff in error.
    The culvert was a lawful appertenance to Davis’s field, and it passed as an appertenance to the plaintiff: Martin v. Riddle, 2 Casey 415; Kauffman v. Griesemer, Id. 407; Keiffer v. Imhoff, Id. 438. Water cannot be turned upon a road until the authorities have provided the means for carrying it away : Martin v. Riddle, supra.

      March 13th 1871,

      J. Boyd, for defendant in error,
    cited Bentz v. Armstrong, 8 W. & S. 41.
   The opinion of the court was delivered,

by Read, J.

William Davis was the owner of over 100 acres of land in Upper Merion township, Montgomery county, and on the 25th day of March '1865, laid out four acres of it, fronting on a public road, called the River road, in building lots, bounding them on streets and alleys. The latter he dedicated to public use, and since that time has sold ninety of these lots, upon which there have been erected some sixty-five buildings. This is the town of West Conshohocken.

Among others, he sold and conveyed to the plaintiff, on the 8th of April 1865, “ lots numbered 11, 12, 13,14,15 and 16, according to a plan of lots laid out by said William Davis, Sr., on the 25th day of Maroh 1865.” Lot No. 11 fronts on the River road, and is bounded on the south-east by a twenty-five foot street, called George street; on this lot the plaintiff erected a frame carpenter shop. George street was laid out at right angles to the public highway called the River road, which is thirty-three feet wide.

In June 1867, William Davis, Sr., sold and conveyed lots fronting on the River road, and on the opposite side of George street, to the defendant, who on the 8th of July 1868, commenced the erection thereon of a very large and expensive storehouse and dwelling. These lots are Nos. 9 .and 10, and are forty feet by one hundred and fifty-three feet deep. These lots and the plaintiff’s lots all running back to a twenty-foot alley, parallel -to the river road, and crossing George street. The defendant filled up his half of George street, but the-plaintiff did nothing to his half.

On the 20th November 1868, the plaintiff commenced this suit against the defendant, and in his declaration avers and' alleges that the water caused by rains had always been used to run from the aforesaid lot (No. 11) and buildings down a certain street or way (George street), situate between the said lot and a certain lot of the defendant; and the grievance complained of is, that the defendant “ did erect in and upon the said street or way a certain dam and causeway,- by means whereof the flow of the water caused by rains was impeded and obstructed, and caused to flow back .upon the said lot and carpenter shop,” by reason of which obstruction and flowing back of the said water the said lot and carpenter -shop were overflowed, submerged and drowned, &c.

In his charge to the jury, the learned judge, submitted two -propositions which the plaintiff must -establish in order to recover.: —

il. That he had an easement or right to drain the surface-water at the place where the-alleged obstruction was erected by the defendant, as claimed imthe. declaration.

2. That the defendant by his obstructions such as are alleged in the declaration, has, however slightly, obstructed or interfered with that right or easement.

The jury having found a verdict for the defendant, have established, either that there was no such easement in the plaintiff, or that the defendant had not in any manner interfered with it. The charge is very judicious, and there is only one error assigned to it, which we will consider presently. The 1st, 3d, 5th, 6th and 7th points of the plaintiff were affirmed, the last with a modification. The 4th point was declined as not material to the issue, and it would have been error to have affirmed it, as the plaintiff would have a right to drain the water into the public road, forming in the present case practically one of the streets of the town.'

The 2d point was declined upon the proper ground that the action of the township authorities could not affect the relative rights óf the parties, and which had been fully stated by the court in affirming the other points.

This leaves the 3d and 4th errors, which- are identical, being a' portion of the general - charge repeated in the answer to the 7th point. ■ “ It is proper to say in this connection, that this would not be true if the embankment only obstructed in cases of great and extraordinary floods, which are extraordinary and out of the course of nature, and which, like other inevitable calamities that are actus Dei, are to be borne without complaint.” This is certainly good law, and if it were not, it was entirely immaterial in the. present case, as there was no evidence whatever of any great or extraordinary floods, out of the course of nature.

The plaintiff purchased lots in a village regularly planned and mapped. The dimensions of the lots with the streets and alleys, and their respective widths all given, so that the purchaser knew exactly what he bought. The plaintiff’s lot fronted on the River road and -ran back one hundred and fifty-three feet to a twenty-foot alley, and was bounded on the south-east by George street. The plaintiff placed his shop three'feet below the level of the highway, and the consequence was that the water sought the lowest ground, which was the shop. The remarks of Judge Kennedy in Rentz v. Armstrong, 8 W. & S. 40, are worthy of notice.

Judgment affirmed.


author: Per Curiam.

text:
    Norristown versus Moyer.
    1. Where a street in an incorporated town has been opened and graded by the town authorities and under their jurisdiction, although a portion of it may have been conceded as an easement to a railroad, the authorities are not relieved from the obligation to remove dangerous nuisances.
    2. The use by a citizen of public ways is that of transit only, with such stoppages as business, necessity, accident or the ordinary exigencies of travel may require. Per Boss, J., of C. P., approved by S. 0.
    3. Loungers who occupy the public highway are obstructions of the public right of way and nuisances. Id.

    4. A railroad by ordinance of the town council and Act of Assembly was laid upon a street; the plaintiff loading a cart on the railroad track from a car was in the street for a lawful purpose. Id.

    5. The plaintiff whilst loading his cart was injured by the falling of a pole in the street, erected by citizens years before, the pole having become rotten. Held, that it was the duty of the town to have had the pole removed and they were liable for the injury to the plaintiff, whether the neglect was wilful or not. Id.

    6. It was not necessary that the town should have had notice of the condition of the pole. Id.

    7. It was not material that the pole was in such part of the road as not to obstruct the travel. Id.

    8. After the plaintiff -was hurt money was raised by charitable subscription and paid to him; this was not to be taken into consideration in estimating damages. Id.

    January 16th 1871.
    Before Thompson, C. J., Read, Agnew, and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: Of July Term 1870, No. 128.
    This was an action on the case, brought April 9th 1869, by Joseph Moyer against thé Burgess and Town Council of the Borough of Norristown.
    The declaration was, that the defendants had permitted to be erected in Washington street, a public highway in Norristown, a large pole, and permitted the same to continue till it became rotten, to the nuisance of the citizens, &e.; that the plaintiff was employed in unloading lumber on the street, and whilst so employed the pole broke and fell upon him, broke one of his arms and did him other great injuries, &c. It appeared, by the admitted facts in the case, that Washington street was one of the legally laid-out and opened streets in Norristown, that in 1833, by permission of the council, The Philadelphia, Germantown and Norristown Railroad Company located and constructed théir road through Washington street, and that this authority was confirmed in 1834 by the legislature. There were two tracks of the railroad in Washington street, for which 16 feet were taken out of the centre of the street. In 1861, the pole spoken of in the declaration was put as a flag-staff by the hands in the rolling-mill of Hooven & Sons. It was erected 23J feet from the south-west line of Washington street, and was in the cartway 8-J-. feet from the curbstone.
    On the 8th of April 1868, the plaintiff, being in the employ of a lumber firm, was engaged in taking lumber from a freight-car on the railroad track in Washington street, and loading it into a cart also on the track, when the pole fell upon him and seriously injured him.

      The case was tried May 25th 1870, before Ross, J.
    The plaintiff gave evidence of the facts connected with the injury and its extent. He also gave in evidence an authorized map of Norristown, the act incorporating the borough and its supplements, and various ordinances relating to the streets and ways in the borough. These are referred to in the charge of Judge Ross; also evidence to show.that the pole was rotten.
    The plaintiff having rested, the defendants called J. Crozier, who testified as to the erection of the pole. The defendants asked witness, “Within your recollection, has there been any hauling of wagons and carts over that part of the street where the pole stood ?”
    The plaintiff objected to the question, it was overruled by the court, and a bill of exceptions sealed.
    Defendants offered to prove that the travelled part of Washington street is, and has been for the last twenty years at this point, not over the ground where the pole is erected, but some distance from it.
    Also, that the spot where the plaintiff was injured was upon that part of Washington street upon which the Philadelphia and Germantown Company have located their road; have graded it, and put in a switch, and at that time were in use of the switch, and that the railroad company kept that part of the street, viz., the spot where plaintiff was injured, in repair, and that the plaintiff was here engaged in labor connected with the railroad.
    Also, that that part of Washington street where the pole was erected had not been used and travelled by the public as a street or thoroughfare since the adoption of the said street by the Philadelphia, Germantown and Norristown Railroad Company, nor since the building of that railroad, nor have the borough authorities ever assumed any control over it since.
    These, offers were objected to by plaintiff, rejected by the court and several bills of exception sealed.
    The defendants then gave evidence that the pole was 16 feet 1 inch from the centre of the railroad, and 11 feet 4 inches from' the curbstone of the south-west side of Washington street., '
    There was evidence by the plaintiff on the question of damages, and by the defendants for the purpose of showing negligence on the part of the plaintiff.
    The defendants submitted a number of points, which with their answers follow the charge of the court.
    The court charged:—
    “ This is a special action on the case, instituted by the plaintiff, to recover from the defendants, who are a municipal corporation, damages for an injury sustained by him on the 8th day of April 1868, in Washington street in this borough. It seems that about noon of that day the plaintiff, who was the employee of a lumber firm, was engaged in taking lumber from a freight ear of the Philadelphia, Germantown and Norristown Railroad, and loading it upon a cart on the line of the company’s track in Washington stree’t, when a large liberty-pole, erected during the late civil war, and which the plaintiff alleges was standing in the street, fell upon his shoulder, permanently crippling and paralyzing, as he avers, his right arm. .It is for this injury, thus sustained, that he has brought this action, and seeks to make the municipality liable in damages. To maintain this issue, the plaintiff must establish to your satisfaction, by the weight of the testimony, a series of facts. These in their natural order are as follows :—
    “1. That the pole fell upon him and inflicted the injury complained of.
    » “ 2. That the pole was standing within the corporate limits in a public street, opened for public use by proper authority.
    “3. Whether the plaintiff, at the time of its fall, was lawfully on the street for a lawful purpose, and executing that purpose lawfully.
    “4. Whether the plaintiff was guilty of negligence which contributed in a degree, however slight, to the infliction of the injury.
    “ 5. That the p.ole was, prior to and at the time of its fall, in a rotten, unsafe and dangerous condition.
    “ These five inquiries are, as it were, so many steps on the road, before you reach that point at which the plaintiff is entitled to your verdict.' Each and all involve matters of fact, which, subject to the instructions of the court as to the law arising upon these facts, are entirely for your determination. First, then, you will inquire, Whether the plaintiff was injured by the fall of the pole ? It is not'denied by the defendants that he was, nor could such a denial successfully be made; and it is conceded that the pole did fall upon him and inflict the injury under which he is now laboring. But this is a question of fact entirely for you. If you should determine that the plaintiff was thus injured, you have advanced one step on the way which leads to a verdict in his favor.
    “ Your next inquiry will .then be, Whether the pole was within the limits of a public street, opened for. public use, within the corporate limits of Norristown ? If you should find it was not, you need inquire no further; for if it was not within limits in which the municipality are vested with municipal authority, there being no power there would be no duty, and where there is no duty there can be no liability for default. The evidence upon which the plaintiff relies to establish that it was, is first, an authorized map of the borough, made by authority of the charter, in which this street is designated ; and second, certain ordinances of the town council, made from time to time in reference to it, the first of which seems to have been enacted as far back as 1835. These ordinances are briefly as follows: — Ordinance of July 13th 1835, directing footwalks on each side of Washington street to be graded. Ordinance of July 27th 1836, requiring by section 4 that these sidewalks be paved; supplement to that ordinance (without date), extending the order for paving. Ordinance of June 2d 1838, defining the width of Washington street and the sidewalks. Ordinance of August 7th 1848, providing for the paving of a part of Washington street. Ordinance of September 19th 1850, directs the regulators to cause the height, situation and range of the curb along the south side o.f Washington street, between certain points, to be adjusted. Ordinance of April 23d 1853 directs the same authority to perform the same duty upon another section of the same street. Ordinance of September 26th 1853 requires the. same duty to be performed for still another section of the same-street. Ordinance of August 12th 1839 regulates the use of the street by the railroad company, and in Ordinances of June 17th 1844, May 9th 1846, September 27th 1847, August 7th 1848, June 12th 1854,'Washington street is frequently designated as one of the public and opened streets of the borough, and municipal authority in and over it claimed and exercised. The width of the street and its boundaries are established; and if you believe the testimony it would seem, although this is entirely for you, that the plaintiff has established that Washington is a public street, laid out and opened for public use in the borough of Norristown, and controlled by the municipality; and that this pole, at the time of the accident and for a long time before, was standing within its limits. If you should determine these facts with the plaintiff, you have made a second step towards that point at which he can demand your verdict.
    “Your next inquiry, in that event, will be: — Whether the plaintiff, at the time of the occurrence, was in the street for a lawful purpose, executing that purpose lawfully,'in contravention of no law or municipal ordinance ? These, although questions of fact, are allied with certain well defined legal principles, an intelligent comprehension of which is necessary to a proper finding. The public possess, in a public highway, the right of transit and of transit only. The use, by every citizen of public ways, must be a use appropriate to the purposes for which they are intended, that is of transit; - with such stoppages as business necessity, accident, or the ordinary exigencies of travel, either in vehicles or on foot, may require. I will illustrate: — if.one of you, for the purposes of a social visit, place your carriage before a door, where it remained in the way while you enjoyed your social intercourse within, this not being such a stoppage as is required by'the necessities of business, accident or the exigencies of travel, such occupation of the highway by the carriage would be .an obstruction of it, that is, would constitute a nuisance. If,- however, you drove to a store, and left your wagon in the highway before it, for the time necessary to unload the freight you had hauled for the store, or to load the' purchases you had there made, such occupation of the public highway, growing out of the business necessities of the occasion, and continued only so long as was reasonably necessary, would be lawful. It is upon this general principle that the infamous habit of corner. lounging, when not prohibited by special local legislation, is illegal. The loungers who occupy the public highway are, while lounging, not using it for the purposes of passage, and are therefore obstructions of the public right of way— that is, nuisances. Those are the general principles of the law. You will apply them- to the facts; [was the plaintiff on the street for a lawful purpose ? If you believe the testimony he was there, by virtue of his employment, to unload lumber from a car. Did he execute that purpose lawfully ? Did he consume an unnecessary length óf time in the work ? These are questions for you to answer — then, if you answer them for the plaintiff, if there be no ordinance of the town council, which per se rendered his acts illegal, he was lawfully on the street, for a lawful purpose, and was executing that purpose lawfully]. Do the borough ordinances modify these general rights of user by the public in the streets of this borough or specially in Washington- street? If there be ordinances regulating and controlling the general right of user, they supersede, under the -charter of the defendants, these general principles and constitute the law governing, the facts in this case : —for,' by § 5 of Act of 1853, Pamph. L. 228; § 4 Act of 1834, Pamph. L. 86; § 6 Act of 1812, Pamp. L. 255, the burgess and town council are vested with power to make ordinances for the government, regulation, use, &e., of the public streets, lanes and alleys within the corporate limits. The Ordinance, August 12th 1839, by § 1, regulates the use of Washington street by the railroad company (who was empowered, by legislation, to occupy that street with their track); and by § 2 provides, that it shall not be lawful for any person, in that street, “ to load or unload any railroad car or carriage on the railroad in Washington street, at any place between Green alley and Cherry alley, &c.” This is a negative pregnant, a prohibition in a specially named section of the street, of the power to load or unload, would necessarily imply, that the act was licensed, and would be recognised as lawful in other sections of the same street, mentio unius exalusio alterius. The plaintiff was unloading, not between the points designated, but in another part of the street, to which the prohibition did not extend. It- is apparent, therefore, that he was not in contravention of an ordinance, and it -would be no strained construction to say he was in the exercise of a right, which by implication, was licensed by the ordinance. But, be this as it may, your inquiry is left unembarrassed by any ordinance, and is to be decided by the general rules unmodified in this case by any municipal regulation. You will say then, under these instructions, whether the plaintiff was on the street lawfully for a lawful purpose, and was executing that purpose lawfully at the time he was injured. If you should decide these inquiries with him, you have made a third step in his favor. If you should find against him, you need inquire no further, for' the defendant would be. entitled to your verdict. If you should find with the plaintiff, however, you will next inquire: — Whether he was guilty, of negligence, that contributed in a degree, however slight, to the infliction of the injury ?
    “ To answer this question intelligently, you must thoroughly understand what is meant by negligence in law. What then is negligence ? The answer to some extent must be by the court, for it is a mixed question of law and fact; but it is your province, gentlemen, to determine, under our' instruction, whether it exists under the facts proven in the case. ‘Negligence,’ said Mr. Justice Williams, in McCully v. Clarke & Thaw, 4 Wright 402, ‘is the want of proper care, caution and -diligence — such care, caution and diligence as, under the circumstances, a man of reasonable and ordinary prudence would exercise. It consists in nonfeasance, that is, omitting to do, or not doing, something which ought to be done, which a reasonable and prudent' man would do; and a misfeasance, that is, the doing of something which ought not to be done, something which a reasonable man would not do, or doing it in such a manner as a man of reasonable and ordinary prudence would not do it, in either case leading to mischief or injury.
    more equally comprehensive, which is, ‘that negligence is the absence of care according to the circumstances,’ per Agnew, J., Turnpike v. Railroad, 4 P. F. Smith.
    “ I wfill illustrate those definitions. It would not be negligence to carry a bucket filled with water through a double row of torches, uncovered and unshielded from the flames and sparks; 3but it would be negligence to bear through the same torches an uncovered quantity of gunpowder or nitro-glycerine. It would-be a misfeasance to carry the latter through such dangers, and. it would be nonfeasance, if so carried, to neglect to protect them by enclosures impervious to the fire. Why is the one act negligent and the other not ? Because the first substance is not inflammable or combustible, while the latter substances are so in a very high degree; and the difference in these circumstances varies the degree of care required in accordance with it, and determines the quality of the act. You will accept these definitions and illustrations, and be guided by them in determining, the question of negligence on the part of the plaintiff. I charge you that if any negligence on hi.s .part, however slight, contributed' to his injury or the cause which produced it, he cannot recover, no matter how grossly the defendants may have neglected to perform their duty. You will turn to the evidence and. determine the fact from it. ' If you find he was guilty of negligence, which in any degree contributed to the injury, you need inquire no further. If you find he was guilty of no contributory negligence,' you have taken a fourth step towards a verdict in-his favor,-and your remaining inquiry will then be, Whether the pole, prior to and at the time of its fall, was in an unsafe, rotten and dangerous condition ?
    “ This is purely a question of fact,, to be determined by the testimony in the case, to which you will turn for your guiding light upon this inquiry. If you should determine that it was, then you have taken the fifth and last step, and the plaintiff will be entitled to your verdict, for I charge you, that if you should find the several questions presented in favor of the plaintiff, and that this pole was, prior to and at the time of its fall, unsafe and in a rotten and dangerous condition, that it was the duty of the defendants to. remove it. This municipal corporation is bound by its charter to keep its streets in repair.. Section 5, Act of 1853, which is but a repetition of previous statutes to the same purport, enjoins and provides in these terms-: 1 That the town council of the said borough, when assembled for that purpose, shall have full power and authority to make and ordain such laws and ordinances as shall be necessary for lighting, watching, watering, pitching, paving, repairing and cleaning all the streets, roads, &c., and also for removing all nuisances thereon, and the same' to put in force and execution by the proper officers, &c.
    “ Under this charter the repair of streets, and the removal onuisances therefrom, is a duty clearly enjoined by statute, and it is authoritatively ruled, that a corporation, which is bound by it's charter to keep its streets in repair, and remove nuisances therefrom, is liable for an injury occasioned by -its neglect to do so, and .it is not material whether the neglect was wilful or not: Erie v. Schwingle, 10 Harris 385; Dean v. Township, 5 W. & S. 545; Pittsburg v. Grier, 10 Harris 54.
    “If, then, this pole was in an unsafe, rotten- and dangerous condition, it was a nuisance, and if it was within the corporate limits upon a municipal highway, one over which the municipality had authority by charter, it was their duty to remove it; upon failure to do so, they are liable for an injury occasioned by their neglect, whether'that neglect was wilful or not.
    “I'will recapitulate the conditions upon which that liability arises:—
    “ 1. The plaintiff must be injured by the consequences of the neglect.
    “ 2. It must- appear that the negligence was failure to remove a nuisance in a-public, highway, opened for public use, over which the defendants had municipal control. • • •'

      “ 3. The plaintiff, at the'time of the injury, must have been on the public highway, in its lawful use, for a lawful purpose, lawfully executed.
    “ 4. The accident must have occurred and been inflicted without concurrent or contributory negligence on his part.
    “5. It must result from a public nuisance: and
    “ 6. The duty to repair and remove nuisances must be enjoined by the charter upon tbe municipal' authorities.
    “ If, under the instructions as to the law, you find these conditions all exist, and that they are established by the weight of the- testimony, the plaintiff is entitled to your verdict.

      “ It has' been earnestly contended, that in order to render the municipality liable, the neglect must be shown to be wilful, and that, before a recovery can be had on this issue, it must be established that the municipality had notice of. the condition of the pole. I have already charged you- that it is not material, where the charter enjoins a duty, whether the neglect to perform that duty was wilful or' otherwise; and I now charge you positively, that it is not necessary to a recovery in this case that the plaintiff should show that the defendant had notice of the condition of the pole prior to its fall: Erie v. Schwingle, supra; Bartlett' v. Crozier, 15 Johns. N. Y. Rep. 250. It is.only necessary to establish that the neglect was wilful, where the suit is against a public officer as an individual; but where the liability of the corporation is involved, neglect of a duty, whether, wilful or otherwise, is sufficient to maintain the action. The rule.- in criminal prosecutions would be different — but this is a civil action. This distinction is based upon sound reasons of public policy, and public safety, which could readily be vindicated if it were necessary to do so. But you, gentlemen, are to be governed by the law as it exists, and not to inquire as to its foundation or. propriety. '
    “ It has been also earnestly contended that there is no duty devolving upon the defendants in relation .to this street, as it is under the exclusive management and control of the railroad company. If this were shown to be the fact, the position would be well taken; but the charter of the company vests- no such exclusive authority, and the borough ordinances would seem to establish (although that is a matter entirely for you) that the municipal authorities regulated and controlled this street from time to tiene. I charge you, however, gentlemen, that the charter of the railroad company merely confers an' easement in Washington -street upon the company, and that the existenpe of that easement does not relieve the municipality, in . relation to Washington street, from the duty imposed upon them by the charter in § 5 of Act of 1853, and the other acts referred to in that connection.
    “ It is also insisted that if the pole was .not erected on the travelled track of Washington street, and was no obstruction to the public in passing and repassing upon that street, tbe defendants were not bound to remove it. But the charter imposes upon the defendants the duty of repairing the streets, and removing nuisances therefrom, and if this pole was in the-limits of a public opened street, it was where the defendants had power, and were bound to perform duties. If, being within those limits, it was in an unsafe, rotten and dangerous condition, it was a nuisance, and it became their duty to exercise that power and remove it. It is immaterial, therefore, in this case, whether it impeded public rights, and was an obstruction to the actual travel or not, if you find it was rotten, unsafe and dangerous. Other legal obstacles to the recovery of the plaintiff have been urged, but as they will be answered by.the court in reply to written points presented by the defendant’s counsel, I shall not further notice them in detail, and I charge you, if your finding be with the plaintiff upon the several inquiries submitted, that he is entitled to your verdict.
    “ If you should reach this point, the only remaining consideration is the amount of damages to which he is entitled. It is conceded that he can recover nothing but compensatory damages; that is, a pecuniary payment for the actual injury sustained. You will therefore inquire as to the extent of that injury. You have seen him, and witnessed his present condition, and you have heard the medical and surgical evidence as to its character, extent and effects. From this you will determine its nature and gravity. You will carefully bear in mind that your verdict must be limited to simple compensation; that is, the payment in dollars and cents for the injury. How much his effective capacity is diminished, and what his pecuniary loss in consequence of that diminution. You will remember that he was not a tradesman, artist or clerk, but simply a laborer, and the rate of compensation must be based upon the character of his avocations, and the consequent loss arising from the quality of the injury. I do not mean to imply that the arm of a laborer is of less value to him, than the arm of an artist; but the remuneration derived from their respective labors is upon a totally different scale, and as that scale determines the amount of the loss, it must be considered in rendering a verdict for compensatory damages. Among- the injuries sustained for which pecuniary compensation can be given, you may take into consideration the physical pain suffered by the plaintiff; but you must estimate this reasonably and moderately, and not be led away by sympathy or speculative ideas of suffering. Pain is but a temporary evil, and you must avoid an extravagant allowance for it. I regret that it is an element of consideration that can enter into your verdict — for, being a matter of feeling, there is no standard of estimate — but it is my duty -to say, you have a right to consider it ini assessing the damages: Railroad Co. v. Allen, 3 P. F. Smith 278-9. But in this case I do not think, though it is for you, that the verdict for the plaintiff should be greatly increased upon this ground. You can also take into consideration the expenses for nursing and medical attendance, and you will make no deduction because the,plaintiff was aided by charity; individual benevolence cannot be made a set-off by the municipality.

      “ In assessing these damages you will throw out of view all feeling of sympathy, compassion and charity, for these elements, if allowed to influence your assessment, will lead you widely astray; neither are you to adopt a different scale-of valuation in this case, because the defendants are a corporation, from that which would govern were they private individuals. The measure of damages does not change with the corporate character of the defendants. You will then make- up your verdict, based upon the principle of compensationthat is, a sum that will make him pecuniarily whole. You will allow nothing for his poverty, for'this would be robbery; nothing for charity, for no charity can be honest which draws its bounty illegally from the pockets of another ; but you will decide -what amount of damages áre the pecuniary compensation for the injury sustained. To this he is entitled, and to not one cent beyond it.”
    The points submitted by the defendants, with their answers, were:
    1. “ If the jury find that the plaintiff was engaged in unloading cars standing upon the track of the Philadelphia, German-town and Norristown Railroad Company, laid along Washington street, and was not a traveller or passenger upon the said street at the time he was injured, the defendants are not liable, and the plaintiff cannot recover in the suit.”-
    Answer: “ We decline to affirm this point, but instruct the jury if the plaintiff was not at the time the accident happened, engaged in a lawful use of the street, such as has been described and defined in the general charge, he cannot recover.”
    2. “ If the jury find that the pole, the falling of which caused the injury to the plaintiff, was not erected by the defendants or by any of their authorized agents, the plaintiff cannot recover.”
    Answer: “ We decline to affirm this point, but instruct the jury that if they should find the pole was erected within the limits of Washington street, and that Washington street was a public street of the borough of Norristown, laid out for public use, and that the pole thus erected there had become rotten, unsafe and dangerous, it was a nuisance; that it was the duty of the defendants to remove it, and if the failure to perform that duty resulted in an injury to the plaintiff, without contributory negligence on his part, the defendants are liable in this action.”
    '3. “ If the jury find that the defendants were not notified of the existence of the pole, and were not notified or requested to remove the same, the defendants are not liable and the plaintiff cannot recover.”

      Answer : “ We decline to affirm this point, but instruct the jury that if they find the injury of the plaintiff was caused by such a nuisance existing in the street, as described in the answer to the 2d point, the defendants would be responsible in damages for neglect in not removing it, whether notified or not, if there was no contributory negligence on the part of the plaintiff.”
    6. “ If the jury find that the pole, the falling of which caused the injury, was no obstruction to the public in passing and repassing upon Washington street, at the point where it was erected, the defendants were not bound to remove it, and they are not guilty of negligence in not having done so, and without notice of its dangerous condition they are not liable, and the plaintiff cannot recover.”
    Answer: “We decline to affirm this point, but we instruct the jury that if they find the pole was on the public street, and in the condition designated in the answer to the 2d point, it is of no moment whether the street was actually obstructed, or whether the defendants had notice or not.”
    7. “ The Philadelphia, Germantown and Norristown Railroad Company have no legal right to load or unload their cars upon Washington street, and if the plaintiff was thus engaged in so doing, he was guilty of concurrent negligence and cannot recover.”
    Answer: “ We decline to affirm this point.”
    The verdict was for the plaintiff for $2475.
    The defendants took out a writ of error. They assigned for error the rejection of their offers of evidence, the part of the charge in brackets, and the court’s refusal of their points.
    G. W. Rogers (with whom was J. L. Allabaugh), for plaintiffs in error.
    The obstruction of the road by plaintiff with his cart was a nuisance and negligence by plaintiff: Stinson v. Gardiner, 42 Maine 248; Hounsell v. Smith, 7 C. B. N. S. 731; Gillis v. Penna. Railroad, 9 P. F. Smith 129. The pole was not erected by the defendants or their agents, and therefore they were not liable: Thayer v. Bastin, 19 Pick. 471; West Chester v. Apple, 11 Casey 284. They would be answerable only to the traveller if the passage were obstructed: Havard v. N. Bridgewater, 16 Pick. 189. If the defendants were bound to know the dangerous character of the pole, so was the plaintiff, and he ran the risk at his peril: Farnem v. Concord, 2 N. Hamp. R. 292; Whitehead v. Philadelphia, 2 Philad. R. 99; Detroit v. Blakeley, (Michigan) 9; A. L. Reg. N. S., Nos. 11, 670. They cited also 2 Redfield on Railways 373; 1 Id. 252.

      C. Hunsicker and B. M. Boyer, for defendant in error.
    A municipal corporation must keep the streets in repair, and are liable for neglect, whether wilful or otherwise: Erie v. Schwingle, 10 Harris 384; Winpenny v. Philadelphia, 15 P. F. Smith 135; Lancaster Turnpike v. Rogers, 2 Barr 114; Dean v. New Milford, 5 W. & S. 545; Pittsburg v. Grier, 10 Harris 55.
    February 9th 1871.
   The opinion was delivered,

Per Curiam.

The offers of testimony by the defendants below to prove that that part of Washington street where the plaintiff was injured by the falling of the pole was not generally travelled, and that the spot on which he was at the time of the injury was a part of the street upon which, the Philadelphia and Germantown Railroad Company had located their road and switches, and that the plaintiff was engaged at the time in labor connected with the railroad, was properly rejected. It was not pretended that the street had not been opened and graded by the town authorities and under their jurisdiction; and because a portion of it had been awarded as an'easement to the railroad, the.authorities themselves were not relieved from the duty of seeing that man-traps or dangerous erections were not kept upon it, and they were bound to remove them. The doctrine applicable to this part of the case may be found fully discussed in Erie City v. Schwingle, 10 Harris 384.

The general charge of the learned judge was so lucid in its presentation of the law and facts to the jury in the case, that it needs no discussion, nor do the answers to the points objected to; the charge vindicates them all, and we affirm this case upon the charge; with a single qualification of a matter introduced by way of illustration, viz.: that the carriage of a visitor to the house of a friend left standing on the street is a nuisance. It may .become, but is not a nuisance per se, and this we presume is what the learned judge meant, but his language might be misconstrued.

Judgment affirmed.


text:
    Elwyn’s Appeal. Dallas’s Estate.
    1. The half-pay of an officer of the government is not liable to be taken by'his creditors.
    2. The pay having reached the beneficiary (a lunatic) and lost its distinctive character and being in the hands of his committee, as a distributable fund it is to be governed by the direction of the law.
    3. A surplus of the pay not needed for the lunatic’s subsistence may be applied with the sanction of the court for the payment of his debts.
    4. His pay in the future could not be assigned by him if sane, nor intercepted by creditors.
    5. In the distribution of such fund in the hands of the committee, it is not liable to the claim of the $300 exemption against creditors.
    January 17th 1871.
    Before Thompson, O. J., Read, Agnew and Williams, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Court of Common Pleas of Philadelphia in the estate of F. G. Dallas, a lunatic: No. 230, to January Term 1871.
    The appeal was by Alfred Elwyn, committee, &c., of the lunatic, from the decree of the court confirming the report of the auditor on the account of the committee. ■
    The following facts found by the auditor were agreed by the parties to be correct':—
    Alfred Elwyn, the appellant, is the committee of the estate of Francis G. Dallas, a lunatic.
    On the 21st of May 1866, Olive M. Devoe, administratrix, &e., of Giles H. Devoe, obtained a judgment in the District Court against said Dallas (who appeared by his committee) for $1172.71, on a promissory note given by him before he became insane.
    The account of the committee was filed in the Common Pleas, August 27th 1866. The lunatic is an officer in the navy, and is entitled to half-pay, $1000 per annum, while in the hospital for the insane, and has no other estate.
    When the lunatic was first affected, it appeared he had a sister who was bedridden and helpless, and whojn he had always maintained.
    The court ordered an allowance of $20 per month, or $240 per annum, to be paid her by the committee.
    The account as filed showed a balance of $248.97, in the hands of the committee after the payment of all sums due for boarding and clothing of the lunatic, and the allowance for the support of his sister to said date.
    This balance was reduced by expenses of audit, &c., to $161.22, which the auditor awarded to Mrs. Devoe, the judgment-creditor.
    Whether the said balance in the hands of the committee was liable to be applied towards the payment of the judgment is the only question raised by this appeal. It was composed of funds received from the half-pay, and there was no other estate.
    The court confirmed the report, but delivered no opinion.
    Elwyn appealed to the Supreme' Court, and assigned for error: that the court erred in confirming the report of the auditor, awarding the balance, viz., $161.22, remaining in the hands of the committee, to the judgment-creditor of the lunatic.
    R. C. McMurtrie, for appellant.
    The points are, that the fund being the pay of an officer of the government is not liable to be taken by creditors, and that the party was entitled to $300 under the “ exemption laws,” being more than the balance. As to the 1st he cited Davis v. Duke of Marlborough, 1 Swanston 79; Flarty v. Odlum, 3 T. R. 681; Fenton v. Lowther, 1 Cox 315; McCarthy v. Goold, 1 Ball & Beatty 387; Stone v. Lidderdale, 2 Anstruther 538; Act of April 15th 1845, § 5, Pamph. L. 460, Purd. 435, pl. 33. The court will not order money to a lunatic’s creditors till his comfort is provided for.
    February 27th 1871,

      J. B. Gest, for appellee.
    The committee must apply the income to payment of the lunatic’s debts (Act of June 13th 1836, § 20, Pamph. L. 596, Purd. 632, pl. 20) as they existed at the time of the inquisition: Wright’s Appeal, 8 Barr 57; Yaple v. Titus, 5 Wright 195.
   The opinion of the court was delivered,

by Agnew, J.

We think this case is governed by the Act of 13th June 1836, relating to lunatics. The 20th and 21st sections direct that the committee^shall have the management of the real and personal estate of the lunatic, and shall from time to time apply so much of the income thereof as shall be necessary to the payment of his just debts and engagements, and the support and maintenance of himself and his family, and the education of his minor children; and if the income be not sufficient, shall under the directions of the court, apply so much of the principal of his personal estate as shall be necessary for the purpose. The distribution of the surplus of $161.22 therefore did no more than the law allows.

It may be admitted that the .half-pay of an officer of the government is not liable to be taken by creditors under any form of process — by levy, sale, attachment or sequestration. The authorities cited are to this effect. Being intended as a means of subsistence, it will not be permitted to be diverted. Like the provision of a parent in the hands of a trustee for a minor or lunatic child, it cannot be intercepted by others. But when the half-pay has reached the beneficiary, and has lost its distinctive character, and when as money it is in a proper sense, as here, a distributable fund lying in the hands of the law, it is to be governed by the direction of the law. Consequently a surplus not needed for the prime purpose of subsistence (as is found here) may be applied with the sanction of the court, which has the custody of the lunatic, to the payment of his debts. There is nothing which would prevent the lunatic himself from so doing, were he in his sound mind. His future pay may not be alienated by assignment, as it certainly cannot be intercepted by creditors in invitum, but money in possession may be disposed of at his will. Why then should the court be disabled, after a sufficient provision made for him, from ordering payment of a surplus to a just debt? The sum allowed for the support of his sister, who is not of his family, but for whom hé himself had provided, would be liable to a similar objection, and yet it was not excepted to by the committee. Of course we are to presume from the finding of the auditor and the approval of the court,'that these sums were in excess of the provision necessary for the lunatic; otherwise the court looking to the source of the income as half-pay, and as a provision made by the parens patriae for the officer’s maintenance, would not allow its diversion to the prejudice of the lunatic. The same reasons dispose of the claim set up under the $300 law. The allowance to the creditor here is the act of the court by the hands of its committee; and not a seizure by adverse process. The decree of the Court of Common Pleas is affirmed and the costs ordered to be paid out of the estate.