text:
    Allegheny County Home’s Case.
    1. The title of an act was “An Act providing for an equitable division of property between Allegheny county and city of Pittsburg." The county composed a poor district, known as the Allegheny County Home; certain townships of the county were annexed to Pittsburg ; two sections of the act provided that the value of the interest of the annexed townships in the Home property should be ascertained and paid to the guardians of the poor of Pittsburg; the third section extended the provisions of the act to Allegheny City as provided for Pittsburg. Held, that the two sections were constitutional, and did not contain more than one subject which was not expressed in the title : and even if the third section were unconstitutional, that did not affect the constitutionality of the other sections.
    2. All that is required is that the title fairly give notice of the subject of the act, so as reasonably to lead to an inquiry into its body.
    3. The title should not mislead or tend to avert inquiry into the contents of the act.
    November 3d 1874.
    Before Agnew, C. J., Shakswood, Williams, Mercub and Gobdoh, JJ.
    Appeal from the Court of Quarter Sessions of Allegheny county: Of October and November Term 1874, No. 228.
    The question in this case was the constitutionality of an Act ■ of Assembly, approved May 25th 1871 (Pamph. L. 1138). Its title was, “ An Act providing for an equitable division of property between the county of Allegheny and the city of Pittsburg.”
    The act recited, that certain parts of Allegheny, viz.: The borough of Lawrenceville and the townships of Pitt, Oakland, Collins, Liberty and Peebles, had been under Act of April 5th 1867, consolidated with the city of Pittsburg; that before the consolidation, the said borough and townships formed part of the poor district of Allegheny county, known as the Allegheny County Home, and had an interest in the property belonging to the Home; that by the Act of Consolidation, &c., the said borough and townships “ became a part of the poor district, under the care of the • guardians for the relief and employment of the poor of the city of Pittsburg.”
    By Sect. 1, it was enacted that the Court of Quarter Sessions of Allegheny county, on the petition of the guardians, &c., of the poor of Pittsburg, with notice to the Home, should appoint three commissioners, to perform the following duties:—
    1. To inquire and ascertain the value of all the property belonging to the Home at the time the consolidation was consummated.
    2. To inquire and ascertain what interest in said property the said borough and townships had as part of the poor district, known as the Allegheny County Home, at the time of the annexation to the poor district of Pittsburg, &c.
    3. To inquire and ascertain what sum should be paid by the Home to the guardians of the poor of Pittsburg, for the interest of the said borough and townships in the property of the Home at the time of the consolidation. The commissioners to report to the Court of Quarter Sessions.
    Sect. 2. The Court of Quarter Sessions to make such decree on the report of the commissioners as justice might require, with the right to a certiorari or writ of error from the Supreme- Court to the decree.
    Sect. 3. The provisions of the act were “ extended to the city of Allegheny and consolidated districts thereof, in like manner as provided for the city of Pittsburg and consolidated districts thereof.
    On the 19th of August 1871, “ the guardians of the poor of the city of Pittsburg,” petitioned the Court of Quarter Sessions of Allegheny county to appoint commissioners to perform the duties required by the Act of May 25th 1871. Commissioners were accordingly appointed. The committee reported, making a distinct finding on each matter referred to them; they found that the value of the interest of the borough of Lawrenceville, and the annexed townships in the Home property at the time of the consolidation was $6085.72, which they reported the Allegheny County Home should pay to the guardians, &c., of the poor of Pittsburg, with interest from the date of consolidation. The court, after exceptions, corrected the report by striking off the interest, and with that correction confirmed the report.
    The Allegheny County Home took out a certiorari and assigned for error that the Act of March 25th 1871 was unconstitutional, because the bill contained more than one subject, which was not clearly expressed in the title.

      JR. Woods and Q-. P. Hamilton (with whom was 8. Woods), for certiorari,
    cited Constitution of Pennsylvania, art. 1, § 8, 1 Hr. Purd. 34 (Amendments of 1864); Yeager v. Weaver, 14 P. F. Smith 427.

      J. I. Kuhn, contrd.

    Although the 3d section of the act be void, this does not render the other sections void : Williams v. Payson, 11 Louisiana Ann. Rep. 7; Blood v. Mercelliott, 3 P. F. Smith 391; Commonwealth v. Green, 8 Id. 234; Dorsey’s Appeal, 22 Id. 192. It is sufficient for the requirements of the Constitution, if the provisions of an act come fairly within the object expressed in the title: Church Street, 4 P. F. Smith 353; Brewster v. Syracuse, 19 New York Rep. 116; Parkinson v. State, 14 Md. 184.
    November 16th 1874.
   Judgment was entered in the Supreme Court,

Per Curiam.

The assignments of error raise but- one question, to wit: the constitutionality of the Act of April 25th 1871, entitled “ An Act providing for an equitable division of property between the county of Allegheny and the city of Pittsburg.”

Perhaps the petition ought to have used the names of the city and county, and not of the guardians of the poor ; but as the poor districts of the city and the county are respectively identical with the city and county in regard to the interests involved in the proceeding, the error is of no moment, and at all events is not assigned.

The act is clearly constitutional as to the city of Pittsburg and the county of Allegheny, these parties being named in the title. If the section relating to the city of Allegheny be unconstitutional, as asserted, it does not affect that part of the act referred to in the title. Dorsey’s Appeal, 22 P. F. Smith, 192. The course of decision in this court has been intended to carry out the true intent of the amendment of 1864, as to the title and subject of bills, instead of resorting to sharp criticism, which must often bring legislation to nought. The Amendment of 1864 was in substance proposed in the Constitutional Convention of 1837-8, and rejected, because it was feared it would render legislation too difficult and uncertain and lead to litigation. It will not do, therefore, to inhale the legislation of the state upon the sharp points of criticism, but we must give each title, as it comes before us, a reasonable interpretation, ut res magis valeat quam per eat. If the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into the body of the bill, it is all that is necessary. It need not be an index to the contents, as has often been said. But on the other hand it should not mislead or tend to avert inquiry into the contents, as was held in the case of the Union Passenger Railway Co., decided at Philadelphia in 1873. In view of this current of decision we cannot say that this title is too vague or is misleading. It substantially, though without particularity, describes the subject of the act and its purpose.

A division of property between the county of Allegheny and the city of Pittsburg fairly implies that there is a joint or a common ownership; that the subject of this ownership is, or may be, all property so held, and the fact that this division is provided for and is to be equitable, imports that the act is to contain a just method to be pursued in making the division. This substantially informs us of the subject of the enactment and the provisions relating to it. Surely the Amendment of 1864 does not require the title to go further and to itemize and describe the property in detail. Such an interpretation would make the act and the title but repetitions of each other. And it is not more reasonable to demand that the mode of division should be stated in the title. We think the title is sufficiently comprehensive as well as precise. If we say it does not substantially indicate the subject and purpose of the act, we shall open a wide door, at which litigation will enter, and establish a precedent which will strike down much legislation.

The city of Allegheny is not before us, and as to the section relating to that city we express no opinion. It does not stand in the same relation as the city of Pittsburg as to the title of the act.

Proceedings affirmed with costs.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    McGunnigle and McKee versus McKee.
    1. Land was devised “to my son Thomas * * * to have and to hold to him and his heirs and assigns, subject to the legacies hereinafter mentioned and charged upon the same, provided that if my son Thomas should die without an heir, then all the bequeathments to him shall be divided between my son Alexander and his children, their heirs and assigns for ever.” The testator left other children and grandchildren, who would be heirs of Thomas: Held, that “ die without an heir,” meant die without a child capable of inheriting from him.
    2. Thomas had an illegitimate daughter, who was legitimatized by Act of Assembly, and made “ capable to inherit and transmit any estate as fully as if she had been born in lawful wedlock.” Thomas devised the above land to his daughter. Held, that the land passed to her.
    3. By the act the daughter became for all purposes of inheritance the lawful child and prospective heir of Thomas, and vested with the same inheritable blood as if born to him on that day in wedlock.
    4. Prom that time till his death Thomas had a child capable of inheriting from him ; the child having survived him, the condition of the devise to him was fulfilled and the estate became absolute in him.
    5. The legislature has power to remove the legal taint, either by general or special law, for all purposes of future inheritance.
    6. The averment of the parentage of a child in an Act of Assembly legitimatizing it, is prim& facie evidence of its truthfulness.
    7. Killam v. Killam, 3 Wright 120; Miller’s Appeal, 2 P. F. Smith 113, approved.
    November 5th 1874.
    Before Agnew, O. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 107.
    This was an action of ejectment, brought to the September Term of the court helow, by Maria Louisa McGunnigle and John A. McKee against Nettie Adelia McKee, for a tract of land in Stowe township, on the south side of the Ohio river, containing about 400 acres.
    Both parties claimed under James McKee; he died in June 1834, having made his will dated January 31st 1834, which was. proved June 14th 1834.
    Two of the clauses in the will were the following :—
    “ I give and devise to my son Thomas McKee, the lower end of a tract of land owned by me on the Ohio river, in the county of Allegheny, to be cut off and bounded by a line beginning on the top of'rock at the Ohio river and running in a north-westerly direction until it reaches the foot of said rock hill, thence to a marked black oak tree near McCoy’s corner, to have and to hold, to him and his heirs and assigns, subject to the legacies hereinafter mentioned and charged upon the same, provided, that if my said son Thomas should die without an heir, then all bequeathments hereinbefore made by me to him, shall be equally divided between my son Alexander and his children, to have and to hold to them, their heirs and assigns for ever.

      “ I give and devise to my son Alexander McKee and his children, all the upper end of the before-mentioned tract of land owned by me in the county of Allegheny, including the mouth of Char-tiers creek, and bounded on the lower side by a line hereinbefore designated as the upper boundary of that devised to my son Thomas, with all the improvements thereon erected, to have and to hold to them, their heirs and assigns for ever, provided, that if my son Alexander should die without an heir, then all bequeathments hereinbefore made by me to him shall be equally divided between my son Thomas and his child or children, to have and to hold to them their heirs and assigns for ever.”
    The land devised by the former of these clauses is the tract in dispute.
    Alexander McKee died September 9th 1867, leaving to survive him, a daughter, Maria Louisa McG-unnigle, now a widow, and a son, John A. McKee, the plaintiffs in the case, and also the children of two children who had previously died.
    Thomas McKee having’, married, had issue one son who died in Thomas’s lifetime without issue. Thomas survived his wife. Nettie Adelia McKee, the defendant, was born in 1853; she was an illegitimate child of Jeannette Andrews. This child, according to the evidence, lived in the house of Thomas McKee and he always kept her as a member of his family; she was maintained and educated, and taken into society and in every way recognised by him as his daughter.
    In 1858 Thomas McKee procured the passage of the following Act of Assembly, which was approved February 27th 1858. “ That Nettie Adelia McKee, of Manchester, Allegheny county, daughter of Thomas McKee and Jeannette Andrews, shall have and enjoy all the rights and privileges of a child born in lawful wedlock, and shall be able and capable in law to inherit and transmit any estate whatsoever, as fully and effectually as if she had been bom in lawful wedlock.”
    Thomas McKee died July 1st 1873, without other children.
    Ry his will, dated March 2d 1870, he devised the land in dispute, describing it by metes and bounds, with a large quantity of other land of his own acquisition, to, “ my beloved daughter Nettie .Adelia McKee.”
    He made two codicils to his will, in both which he devised other land to the defendant, describing her as “ my daughter Nettie Adelia McKee.”
    The case was tried March 25th 1874, before Stowe, J. The facts above .stated were given in evidence, and a number of points were submitted by the defendant.
    The third and sixth were affirmed and are as follows:—
    3. “ Under and by virtue of the will of James McKee, and of the Act of .Assembly approved the 27th day of February, A. D. 1858, entitled's An Act to confer on Nettie Adelia McKee thn rights and privileges of a child born inlawful wedlock,’ the defendant, Nettie A. McKee, is entitled to the possession of the land in dispute, as the lawful heir and devisee of Thomas McKee.
    6. “ Under the pleadings and evidence, the defendants are entitled to the possession of the land in dispute, and the jury should so .find.”
    The verdict was for the defendant.
    The answers to defendant’s points were assigned for error on the removal of the record to the Supreme Court by writ of error by the plaintiffs.
    One of the questions discussed in the Supreme Court related to the character of the estate which passed to Thomas McKee by the will of James McKee.
    The plaintiff in error contended that he took an estate but for life or at most an estate-tail which had not been barred.
    The defendants in error contended that Thomas took an absolute estate in fee; if not — then a fee, with executory devise over to Alexander in tail, with no determinate period in which the failure of issue was to take place, and the devise over therefore was void.
    The other question was as to the effect of the act legitimatizing the defendant.
    The arguments of counsel were very exhaustive and able, but so extended that it is impracticable to do them justice by such synopsis as the space that could be properly appropriated to them here would allow'.

      M. W. Acheson and Gr. P. Hamilton (with whom were A. Kerr, B. Q. Hproul and J. H. Hampton), for the plaintiffs in error.

      Gf. SMras and T. M. Marshall (with whom were F. M. Magel, T. M. Bayne and S. H. (xeyer,} for defendant in error.
    January 4th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The plaintiffs claim to recover the land in question, under the will of James McKee. The defendant claims both as heir and devisee of Thomas- McKee. Great research and ability were shown by the counsel in the preparation and argument of the case.

If the rights of the parties were to be determined by the will of James McKee alone (under which Thomas McKee held), unaffected by subsequent events, the case would not be free from difficulty. By that will, the testator gave to his son Thomas, the land in question, “ to have and to hold to him, his heirs and assigns,” “ provided, that if my son Thomas should die without an heir, then all bequeathments hereinbefore made by me to him shall be equally divided between my son Alexander and his children, to have and to hold to them, their heirs and assigns for ever.”

Looking at the whole will, and considering the fact, that the testator had other children and grandchildren living, who would be heirs of Thomas McKee, we think he used the language “ die ■without an heir,” as meaning, die without a child capable of inheriting from him.

In the view we take of the case, it is not necessary to decide precisely what estate Thomas took under his father’s will. It certainly was not a mere life estate. Whether it was one in fee simple, with an executory devise over, or a fee tail, or a contingent remainder, we reach the same result in either case.

The legislative power to legitimate a bastard child has long been recognised both in England and in this country.

Commencing with the case of the three sons and a daughter of John of Graunt, begotten of Catharine Swynford, a governess of his children, legitimated by Act of Parliament in the 14th century, history records many other acts of legitimation in the two succeeding centuries. The history of our own state has been prolific with special legislation legitimating bastard children. As our Constitution is silent on the subject, the legislative power so to enact is most ample: Sharpless v. The Mayor, 9 Hands 147; Killam v. Killam, 3 Wright 120; Miller’s Appeal, 2 P. F. Smith 113.

The reason why a bastard cannot inherit at common law, is because he is the son of nobody. Being the son of nobody, he has no ancestor. Having no ancestor his blood lacks inheritable quality. In respect, however, toiownUis; children, his blood has the usual descendible quality of pure blood.' If legitimate themselves, their blood has no legal taint to prevent their inheriting from a bastard parent. At common law, one not begotten or born in lawful wedlock, is a bastard. This is so-far modified by the civil law, and by our statute of 14th May 1857, that where the parents of any illegitimate child subsequently marry and cohabit, the child thereby becomes legitimated. The legislative power may remove the legal taint of blood either by general or by special law. For this purpose, the power is most ample: Killam v. Killam, supra.

The most striking case of legislative power to legitimate bastard children is shown in the case of Brewer v. Blougher, 14 Peters 178. The Supreme Court of the United States there held, a general law of the state of Maryland, declaring illegitimate children capable of inheriting from their mother, to extend to those begotten in incestuous connection.

It is true, an estate which has already descended to a legal heir, cannot be divested and given to a bastard Joy a subsequent act of legitimation. This by reason of the constitutional inhibition which prevents the legislature taking the property of one and giving it to another for private purposes. That the taint of a bastard’s blood may be removed, for all purposes of future inheritance, by legislative action, cannot be questioned.

The Act of 27th February 1858, is very clear and comprehensive. It was passed during the life of Thomas McKee. It identifies the defendant by name and by parentage. It expressly declares that she “shall have and enjoy all the rights and privileges of a child born in lawful wedlock, and .shall he able and capable in law to inherit and transmit any estate whatsoever as fully and effectually as if she had been born in lawful wedlock.”

The averment of her parentage in the act is primfi facie evidence of its truthfulness. The other evidence given on the trial clearly confirmed that she was the child of Thomas McKee. There was no proof to gainsay it. There was no room to doubt it. Then by the enactment of that statute, the defendant became for all purposes of inheritance the lawful child and prospective heir of Thomas McKee. She was thereby vested with the same inheritable blood as if born to him on that day in lawful wedlock. It follows then, that from that time until his death, he had a child capable of inheriting from him. That child survived him and is the defendant in this case. The conditional terms of the devise made by James McKee were fulfilled, and the estate became absolute'in Thomas McKee.

It is urged, however, that this is not' the kind of child or heir that James McKee had in his mind at the time he executed his will. That he intended one born in lawful wedlock. We answer, he did not so declare in his will. He used the technical word “heir.” He did not attempt to indicate what facts in his opinion constituted an heir. He made his will under the law, and left it for the law to determine, whether Thomas died without an heir. He must be .presumed to have known the legislative power to declare who should be an heir. He therefore intended to subject the property devised to legislative discretion to enact, within constitutional limits, whether Thomas had issue capable of inheriting. The law of every country regulates the succession of estates on the death of its citizens. In Miller’s Appeal, supra, the testator devised to his daughter during her life the use of a house and lot, directed that it should be sold on her death, and the proceeds be divided between her “lawful issue.” When the will was executed, the daughter had an illegitimate child. After the death of the testator and during the life of the daughter, this child was legitimated by Act of Assembly. On the death of the mother leaving this child and other children lawfully begotten, and on distribution this child wa^ held to be “lawful issue” and entitled to share with the others in the fund.

Reason and authority unite in giving this estate to the defendants ; she was the child of Thomas by nature, and an heir by law. She fulfilled all the requirements of the will. She now holds the land in the double capacity of sole heir and sole devisee.

The learned judge was entirely^correct in his view of the law, therefore judgment affirmed.


author: Mr. Justice G-okdon

text:
    Gibbs versus Peck.
    1. The provisions of the Act of February 17th 1858 (Mechamos' Liens on Leaseholds), so far as they relate to the verifying of liens, the time of filing and their continuance, are repealed by the Yenango Act of April 8th 1868, extended to Crawford county ; that act requiring the claim to be verified by affidavit, and scire facias issued within three months after filing the claim.
    2. A lien on a leasehold, not verified by affidavit, was filed in Crawford county, December 23d 1871; scire facias issued to April Term 1873, and affidavit of defence filed. January 10th 1874, motion to strike it off; lien struck off April 6th 1874. Held, to be correct, the lien having been discharged by non-compliance with the provisions of the Act of 1868.
    November 9th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Crawford county : Of October and November Term 1874, No. 153.
    This case was as follows:—
    E. H. Gibbs, Russell & Co., on the 23d of December 1871, filed in the Court of Common Pleas of Crawford county a claim of $1400 against G. W. Peck and Ered. O. Peck, owners and reputed owners, and “ against all that certain two-story steam saw-mill or building situated in the borough of Riceville, in the county aforesaid, * * * said steam saw-mill being, erected on a certain leasehold, consisting of about three acres of land, leased from L. J. Lilley, said leasehold being situate, &c. * * * Together with the engine, boiler, pumps, machinery, fixtures, &c., connected with and used in and about said mill, and the leasehold or piece'of ground and curtilage appertenant to said building: The sum aforesaid being a debt contracted for materials furnished by the said claimant, within six months last past, in and about the erection and construction of the said steam saw-mill or building, of which the said G. W. Peck and Ered. C. Peck were and are the owners or reputed owners, and at whose instance and request the said materials were furnished, and the said Gibbs, Russel & Co., claim to have a lien on the said steam saw-mill or building, and the leasehold or piece of ground and curtilage appertenant to said steam saw-mill or building, from the commencement thereof, and on the engine, boiler, pumps and all machinery in said mill, for the sum aforesaid, according to the Act of Assembly in such case made and provided. And the said claimant hereto annexes a bill of particulars,” &e.
    There was no affidavit to the claim. „
    A scire facias was issued on this mechanics’ lien to April Term 1873, returnable the first Monday of March ; on the 8th of February 1873, Walter R. Lindsay was made a party defendant, and the same day an affidavit of defence was filed. On the 10th of January 1874, on motion of the defendants a rule to show cause why the mechanics’ lien should be stricken off was granted.

      The reasons for the motion were :—
    1. The claim is not verified by affidavit.
    2. The claim was not filed within three months from and after the completion of the work.
    8. No scire facias was issued on the claim within three months after filing the claim.
    By the Act of February 17th 1858, sect. 1 (Pamph. L. 2, 2 Br. Purd. 1029, pi. 23), the Mechanics’ Lien Law of June 16th 1836 was extended to all improvements, engines, machinery, &e., put up by tenants of leased estates on lands of others in Luzerne and Schuylkill counties, with the proviso that the lien should extend only to the interest of the tenants and to the improvements, &c., put up by the mechanics, &c., entering the lien. By Act of April 11th 1866 (Pamph. L. 649), the provisions of this act were extended to Crawford, Venango, Erie and Warren counties.
    By the Act of April 8th 1868, a lien was given to persons furnishing materials to the erection, &c., of any engine, engine-house, &c., upon any leasehold, or material furnished, &c., the lien to extend to the interest of the tenant.
    The person entitled to the lien must file in the prothonotary’s office within three months from the time the last work is done or last materials furnished, a statement of his claim, verified by affidavit ; the statement to set forth the names of the claimant and of the owner or reputed owner and of the contractors, the amount claimed to be due, the time when the work was done or the materials furnished, with the date and amount of each item, the locality of the property, and’ a particular description of each part against which the claim is filed, describing it so as to identify it.
    Section 4th provided that the debt should' be a lien for six months after the last work is done or last materials furnished, although no claim should have been filed ; but the lien should not continue unless the claimant should within three months after filing his statement issue a scire facias in accordance with the provisions of the Act of June 16th 1836.
    By the 8th section the provisions of the act were to extend only to Venango county, “ and all laws, parts of laws and supplemental acts inconsistent herewith relating to liens of mechanics, &c., doing work or furnishing materials for or about engines, buildings and mineral improvements or leasehold estates, heretofore passed or enacted for said county of Venango,” were repealed.
    By Act of March 18th 1869 (Pamph. L. 410), the provisions of the Venango Act of 1868, were extended to the counties of Crawford, Warren and Clarion.
    April 6th 1874 the court (Lowrie, P; J.), made the rule absolute, delivering the following opinion:—
    “ It is claimed that this lien is valid under the Mechanics’ Lien Law of 17th February 1858, Pamph. L. 29, called the Luzerne Act, and it is admitted that it is not valid if that act is not now the law for this county. In passing that law, the legislative mind was manifestly directed to the wants of the principal coal region of the state, and to the kind of business there carried on, especially with reference to the fact that a very large part of it consists of improvements made by mechanics on leased lands. But the expression of the law left room to give it a broader application to leased lands, and it was considered well adapted to the oil-producing business in our region, and therefore by the Act of 11th April 1866, it was extended to Erie, Crawford, Warren and Venango counties. After-wards another act was passed, 8th April 1868, for the same purpose, more expressly applicable and adapted to the oil business. It was, however, confined to Venango county, until it was extended to Crawford, Warren and Clarion, by the Act of 18th March 1869. This requires us to look at the Venango Act, and we will find the 8th section contains a repealing clause, which is quite broad enough to set aside the remedies given by the Luzerne Act, and substitute better ones in their place.”
    The plaintiffs removed the record to the Supreme Court by writ of error and assigned for error the striking off the mechanics’ lien.

      Guthrie Byles, for plaintiffs in error referred to the above cited Acts of Assembly.
    The materials furnished come within the provisions of the Act of 1858: Thomas v. Smith, 6 Wright 68; Schmidt v. Armstrong, 22 P. F. Smith 355; Schenley’s Appeal, 20 Id. 98. Whenever two acts can stand together both should hava full effect: Street v. Commonwealth, 6 W. & S. 212 ; Robson’s Appeal, 12 P. F. Smith 405.

      Douglass McOoy, for defendants in error.
    January 4th 1875.
   Mr. Justice G-okdon

delivered the opinion of the court,

The plaintiff’s claim was filed under the provisions of the Act of 1858, and its supplement of 1866, extending the Mechanics’ Lien Law of 1836 to buildings and machinery erected upon leasehold estates. Under this act, it was only necessary that the mechanic or material-man should file his claim within six months from the date of the last item of work done or materials furnished, in order to create a valid lien. The lien, so created, continued without further action for the period of five years from the date of the filing of the claim. It is conceded, that if this act is still in force in the county of Crawford, the plaintiff’s claim was a lien upon the leasehold in question, and the court erred in striking it off.

The Act of April 8th 1868 (Pamph. L. 752), originally confined to the county of Venango, but extended, by the Act of 18th March 1869 to the county of Crawford, altered the above-stated provisions of the Act of 1858 in this: the statement of claim must be verified by affidavit and filed within three months from the date of the last item of work done or materials furnished, and the lien thus created continues but three months from the filing of the claim, unless a scire facias is issued within that time.

It is admitted that the plaintiff did not comply with these provisions, hence if the latter statute supplied or repealed the former he has no lien. That the Act of 1868 did supply and repeal that of 1858, a very .cursory examination will prove. In the first place, the latter contains all the subjects of lien embraced in the former; and in the second place, if the former is still in force, then all the provisions of the latter requiring the affidavit of claim, the' filing of the claim within three months, and the issuing of the scire facias within a like period thereafter, are nugatory. For in such case all these provisions may be disregarded and the lien be good, nevertheless. It is clear, therefore, that, as the legislature intended the provisions of the Act of 1868 to have force over the subjects therein named, those of the Act of 1858 must give way.

The judgment is affirmed.


text:
    Keating et al. versus Orne et al.

    1. Barney, being about to buy land from Vensel, and hearing that Keating had a claim to part of it, asked Keating, without saying he wished to buy, if he claimed any of the land. Keating said “he thought he claimed part, but it did not amount to much, and he did not calculate to give Vensel much trouble about it.” Prom this Barney thought the title was good, and after-wards bought it. Held, that in this there was neither such fraud, encouragement nor silence as would estop Keating from recovering the land from Barney’s vendee.
    2. Keating stating that he had a claim should have put Barney on inquiry; omitting to do so, he took the risk of the claim.
    3. Whether an estoppel results from established facts is a question for the determination of the court.
    4. An estoppel operates to hold one to facts as he alleges them, although false; and not for the purpose of proving the facts different from the statement.
    5. A naked declaration of an intention, made to one giving no reason for the inquiry, will not prevent- the assertion of a right contrary to such intention.
    6. The affirmance of a point which leaves to the jury to determine both law and facts is error.
    November 9th 1874.
    Before Agnew, O. J., Shaeswood, Williams, Meecür and Goedoh, JJ.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1874, No. 74.
    This was an action of ejectment, brought July 24th 1871, by John E. Orne and Morris R. Stroud against John Keating and others, for a lot of land in Richland township, containing 9 acres 48 perches.
    The ease was tried, September 1st 1878, before Jenks, P. J.
    The plaintiffs gave in evidence a patent for the lot dated June 12th 1866, to John H. Vensel and David Vensel; they sold to Barney Vensel, and from him through intermediate sales their title vested in the plaintiffs.
    The defendants gave in evidence title from the Commonwealth to Jared Ingorsoll and others by warrant, December 81st 1874, and survey thereon April 3d 1800, for a body of land (No. 5793), including the premises in controversy, and chain of title from them to the defendants.
    In rebuttal the plaintiff gave in evidence articles of agreement, dated February 6th 1865, between Barney Vensel and R. B. Brown, by which Vensel agreed to convey the land to Brown on the payment of $100 at the date of the articles, and $1400 on or before the 10th of March 1865, when a deed would be made; it being agreed that if the $1400 should not be paid at the time specified, the contract should be determined and the $100 forfeited.
    Barney Vensel testified: “I had a talk with Mr. Keating about the title before I bought the title; David wanted me to buy, and the report was Keating claimed part of the upper end of it, and I would not buy until I saw Keating. I saw him, and asked him if he claimed any of the land. He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it; some time after I bought the land from David; from what Keating told me, I thought the title was all right, and David was poor, I bought it, and was to pay one hundred and fifty dollars, and did pay fifty dollars at the time; subsequently paid the whole amount; bought the whole thing from David ; I am a brother of David Vensel; David moved on the land in 1862 or 1863 ; he built a house on it, and had a garden and potato patch; the cleared ground was enclosed.”
    On cross-examination he said: “ I do not know whether Keating knew where the lines were, nor the amount he claimed, at the time he talked with me ; it was some time after the conversation that I bought; * * * house, I think, was on it before I talked with Keating; I have sold the land. * * * After I bought the place, J. T. Hindman and John Keating came to see me, and we went down to the land ; I understood Brown sent Hindman down to get Keating to show the part of the land he claimed; we went to see whether Keating could show whether he claimed any of it or not; when we went there, the lines of David and John Vensel tract were marked on the ground; he claimed a part of the upper end; he said there ought to be a line; we all hunted, but could not find one; he claimed that the line was four or five rods further down the river than the east line. * * * I had no notice that Keating claimed the land: no more than what he told me, the line ought to be further down, and we could not find one; that is all I went doAvn for — to see the land.”
    Under objection and exception R. R. Brown testified that after he bought the land he sent J. T. Hindman to see Keating about the land; Hindman reported that he, Keating and Vensel went on to the ground, that Keating said the line was a little lower down the river; he looked a little lower down but did not find any line ; on these representations the witness took the deed which he had refused to take before and paid the $1400 balance of the purchase-money. In a conversation subsequently with Keating he said Vensel had taken up some land between him and Fox ; the substance was that it was not quite so large as they claimed; afterwards Keating asked who owned the house Vensel had on the lot; witness said the plaintiff and he was their agent; Keating proposed to buy the house; witness refused to sell it.
    Each party submitted a number of points.
    The 8th and 9th points of the plaintiff and their answers were as follows
    8. Even if the land in dispute is included in No. 5793, if the jury believe that Barney Vensel, before he bought of his brothers, went to defendant and asked him if he claimed the land, and defendant replied, he claimed a small part of it, but it did not amount to much, and he would not give David Vensel any trouble about it, and Barney Vensel, in pursuance of such answer, purchased the land, the defendant is estopped, and cannot now claim it against his privies, the plaintiffs.
    Answer: “ To the eighth point of the plaintiff, we answer, if the facts stated in this point be true, and Barney Vensel was induced, by the declarations and statements of Keating, to purchase and pay his money, he would be estopped from asserting title against said Vensel and his vendees. Thus qualified, we answer this point in the affirmative.”
    9. If defendant, by his acts or declarations, encouraged the plaintiffs, or their privies, to invest their money in purchase of the land in dispute, or in its improvement, and where it was his duty to assert his title, if he had any, he declined so to do, he is estopped, and cannot assert title against the plaintiffs.
    Answer: “ If the facts stated in this point are found by the jury, the conclusions therein stated would follow; we, therefore, answer this point in the affirmative.”
    The verdict was for the plaintiffs.
    The defendants took a writ of error and assigned for error the answers to plaintiffs’ 8th and 9th points.

      W. L. Qorlitt (with whom was D. Lawson), for plaintiffs in error.
    To constitute estoppel by matter in pais there must he a wilful intent to induce the party to act on the faith of the alleged statements and representations : Plumer v. Lord, 9 Allen 457; Pickard v. Sears, 6 Ad. & El. 469 ; Howard v. Hudson, 2 El. & Bl. 1; Audenried v. Bellelley, 5 Allen 382; Langdon v. Doud, 10 Id. 435; Turner v. Coffin, 12 Id. 401.

      J. B. Knox (with whom was J. Campbell), for defendants in error.
    Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things so as to alter the other’s previous .condition, he is concluded from averring against the latter a different state of things existing at the same time: Commonwealth v. Moltz, 10 Barr 530; Hill v. Epley, 7 Casey 334; Miranville v. Silverthorn, 12 Wright 149; McKelvey v. Truby, 4 W. & S. 323; Millingar v. Sorg, 5 P. F. Smith 215; Meason v. Kaine, 17 Id. 132 ; Maple v. Kussart, 3 Id. 348.
    January 4th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

Both the assignments of error raise the question of the sufficiency of the evidence to constitute an estoppel.

The first assignment rests on the testimony of Barney Yensel, from whom the defendants in error acquired title. David Yensel claimed the land in controversy, and desired to sell it to Barney. “The latter testified “ the report was, Keating claimed the upper part of it, and I would not buy until I saw Keating. I saw him, and asked him if he claimed any of the land. He said he thought he claimed part of the upper end; said it did not amount to much, and he did not calculate to make David trouble about it.” Barney also testified, that from what Keating told him, he thought the title was all right, and some six months or a year thereafter, he purchased the land of David, paying him part of the purchase-money down, and had since paid the residue. He further testified, “ Í do not know whether Keating kn.ew where the lines were, nor amount he claimed, at the time he talked with me.”

It does not appear that Barney informed Keating that he had any intention of buying the land, nor that he had any object in making the inquiry.

It will be observed, the declarations of Keating consist of two parts, the one a statement of existing facts, the other, an intention in regard to his future action. The only existing facts, in regard to title, which he asserted, were, he thought he did claim part of the land, but it did not amount to much — whether much in quantity or much in value, he did not-specifically state.

The land in dispute is a narrow strip lapping over on the west end of a larger tract owned by Keating. In the absence of any evidence that he knew where the lines on the ground were, and being ignorant of the object of the inquiry, we do not think that Barney should have been misled by this statement. It certainly was no denial of ownership, but an assertion of claim. It is true of an uncertain and vague claim, but this very answer may have been caused by his ignorance of the lines, and by an impression that Barney was intermeddling with that which was none of his business. Barney assumed from this conversation that Keating had no claim to the land, although the latter expressly stated he thought he had to a part of it. It is in conflict with every element of an estoppel to hold him to an inference directly contrary to the fact which he stated. An estoppel is invoked to hold one to the facts as he alleged them to be, although false in fact, and not for the purpose of proving the facts different from the statement. This averment of claim was sufficient to' have led Barney to make further inquiry. If he omitted to do so, he took the risk of that claim. Nor did Keating’s declaration, that he did not calculate to make David trouble, better Barney’s condition. The naked declaration of an intention existing in the mind, made to one who gave no reason for his inquiry, will not prevent the assertion of a legal right, contrary to such expressed intention. A vested title in land cannot be so easily swept away. This testimony lacks the ingredients necessary to constitute an estoppel. It cannot be infei’red that Keating intended to induce Barney to buy of David, for he had no knowledge that he contemplated any such action. It cannot be said that the declarations were positive acts of encouragement to purchase, when no thought of purchase was intimated by either party to the conversation. Hence there was neither the fraud, nor encouragement, nor silence necessary to constitute an estoppel. Whether an estoppel results from established 'facts, is a question for the determination of the court: Lewis v. Carstairs, 5 W. & S. 205. This assignment is sustained.

The second assignment is the affirmance of the ninth point submitted by the defendant in error. This point is very general in its terms. It fails to indicate what acts or declarations would constitute encouragement to purchase, or what are necessary to create a duty to assert a title. The affirmance of the point virtually left to the jury to determine the law, as well as the facts. They should have been instructed as to what facts or circumstances were sufficient to create that duty. We therefore think the learned judge erred in his answer.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Merour

text:
    Bronson versus Silverman.
    1. A rule of court required that in an affidavit of defence “the nature and character of the defence shall be specifically stated.” Under such rule the facts of the defence must be averred with reasonable precision and distinctness ; but it is not required to make a statement of the manner in which they will be proved or the evidence by which they will be established.
    2. In a suit, by an endorser on a negotiable note, the affidavit of defence averred that it had been given as the consideration for land agreed to be purchased from the payee, that material conditions in the agreement, which he specified, had not been performed by payee, that the plaintiff, knowing all the circumstances, took it as collateral security for the payee, and for collection, and paid nothing for it. Held, that these facts put the plaintiff on no higher ground than the original holder, and that they were a good defence against the note.
    November 10th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Qrawford county: Of October and November Term 1874, No. 48.
    This was an action of assumpsit, brought July 24th 1873, by Lazarus Silverman against Alfred H. Bronson. The cause of action was a promissory note, a copy of which was filed with the declaration; and is as follows:—
    “$2750. Titusville, Pa., June 29th 1872.
    June 30th 1873, after date, for value received, I promise to pay to the order of the Chicago Petroleum and Mining Company, twenty-seven hundred and fifty dollars, at the Citizens’ Bank of Titusville. A. H. Bronson.”
    (Endorsed): “ The Chicago Petroleum and Mining Company, by Hugh Maher, President. Hugh Maher.”
    The defendant filed an affidavit of defence, as follows:—
    “ That he is informed and believes, and expects to be able to prove on trial, that the plaintiff is not the owner for a valuable consideration of the note sued upon, but that the same is held by him only as collateral security for some alleged indebtedness of Hugh Maher to the plaintiff, and for purposes of collection only ; and that the plaintiff paid nothing therefor, and did not acquire the same in the regular course of business, but took the same as aforesaid, knowing the circumstances under which said note was given, and the alleged and only consideration therefor.
    “ That the said note was given by affiant for the purchase-money, in part, of a certain tract of land, for which Hugh Maher and the Chicago Petroleum and Mining Company were to make, execute and deliver a written contract to affiant, as his title thereto, which paper has never been delivered to affiant, as agreed upon, and he has no written evidence of his contract or of the purchase of said land, nor title thereto. * * * Said Maher was the president of the Chicago Petroleum and Mining Company, and transacted this business, and had full knowledge of the circumstances of the giving of said note and the consideration thereof. A. H. Bronson.”
    Buie 6th of the court below, under which judgment was taken in this case, is as follows:—
    “ In all actions founded on book accounts, bills, notes, bonds and other instruments of writing for the payment of money, * * * if the plaintiff shall have filed a copy of the account or instrument of writing on which the suit is founded, with his declaration, on or before the return-day of the writ, he shall be entitled to a judgment by default for the amount so claimed, at any time after twenty days from'and after the return-day of the writ, unless the defendant, or some one for him, knowing the facts, shall have filed an affidavit of defence in which the nature and character of the defence shall be clearly and specifically stated.”
    On the 5th of January 1874, judgment was entered for the plaintiff for want of a sufficient affidavit of defence, which was afterwards liquidated at $8004.37.
    The defendant took a writ of error and assigned for error the entering judgment notwithstanding the affidavit of defence.

      JR. Sherman, for plaintiff in error.
    If Silverman took the note for purposes of collection, and as collateral security only, the maker may set up any defence which he may have against the original payee: Selden v. Neemes, 7 Wright 422; Kirkpatrick v. Muirhead, 4 Harris 117.
    A purchaser of land under an agreement to convey and make title need not pay the purchase-money until the vendor has fulfilled, or offered to fulfil, the contract: Gans v. Renshaw, 2 Barr 34. A defendant is not bound in an affidavit of defence to cover all points which a fine critical skill may discover: Thompson v. Clark, 6 P. F. Smith 34; nor is he bound to allege those matters which would require a replication, or rebutting testimony, on the part of the plaintiff, to overcome: Hemphill v. Eckfeldt, 5 Wharton 274; 1 Tr. & H. Pract. 380; Christy v. Bohlen, 5 Barr 38.

      Gr. JF. Chester, for defendant in error.
    The affidavit should have stated the date of the agreement for the purchase of the land, the time when it was to be performed, &c.: Marsh v. Marshall, 3 P. F. Smith 397. What is not said in the affidavit of defence is taken as not existing: Lord v. Ocean Bank, 8 Harris 387; Peck v. Jones, 20 P. F. Smith 83 ; Walker v. Geisse, 4 Wharton 258; Selden v. Neemes, 7 Wright 423.
    January 4th 1875.
   Mr. Justice Merour

delivered the opinion of the court,

The rule of court under which this judgment was taken requires “ an affidavit of defence in which the nature and character of the defence shall be clearly and specifically stated.” This, then, imposed on the party making it, the necessity of averring with reasonable precision and distinctness, facts which, if true, would constitute a defence. It does not require'a statement of the manner in which those facts will be proved, nor of the evidence by which they will be substantiated. It is presumed they will be proved according to the rules of law and the practice of the court.

In this case the affidavit clearly avers facts which put the plaintiff on no higher ground than the original holders. It declares that he took the note with full knowledge of the consideration and circumstances under which it was given, that he paid nothing for it, and holds it for collection only.

The question then is, does the affidavit exhibit- a defence against the original holders? It avers, substantially, that the note was given for part of the purchase-money of land, and that the payees were to make, execute and deliver to him a written contract as his title thereto, but that they have never delivered it as agreed, and that he has no written evidence of title to the land nor of his contract. It is contended on the part of the defendant in error that this is insufficient, inasmuch as it omits to state where the land is located, and does not aver that he has not obtained possession of the land. To this it may be answered, that, as the contract set forth in the affidavit avers no agreement to give possession, prior to the execution of the written agreement, there is no presumption of law that it was given. Wherever the land lies, the agreement was to furnish written evidence of title. This is the specific contract averred, and a breach of it is affirmed. ' It is true no specific time is stated when it was to be delivered, yet it is averred that it has not been delivered as agreed. The time then agreed upon for the delivery had passed. It was their duty to deliver it according to their contract. It was not incumbent on him to demand it. As evidence of his title, the written instrument would be of great value to him. The deprivation of it might work him great injury. Re that as it may, it was an indivisible part of the agreement which entered into the consideration for which the note was given.

We think, therefore, the learned judge erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed, and a procedendo awarded.


author: Chief Justice Agnew

text:
    O’Hare versus Second National Bank of Titusville.
    1. In a suit by a National Bank against an endorser on notes discounted for the drawer’s accommodation, he filed an affidavit of defence that at the time of the discount the drawer was indebted to the bank for money lent in excess of one tenth of its capital; and averred that the loan was void under the National Bank Act of June 3d 1864. Held, that the affidavit was defective in not averring that the excess was knowingly and voluntarily lent to the drawer.
    2. Accidental excess made in mistake or ignorance will not forfeit an honest loan.

      3. Such excess known to the bank only is not such an unlawful act as will avoid the loan.
    4. The fact of excess of indebtedness is a matter aside from the loan, not entering into its terms and therefore collateral.
    5. A loan of money and a note taken as security are part of the proper business of the bank within its power and therefore not illegal in themselves.
    November 11th 1874.
    Before Aq-new, C. J., Sharswood, Mercur and Gordon, JJ.
    Writs of error to the Court of Common Pleas of Crawford county: Of October and November Term 1874, No. 40 and 41.
    On the 25th of June 1873, the Second National Bank of Titus-ville commenced an action of assumpsit against Hugh O’Hare.
    The action was upon two notes, one for $1500, drawn by Paul W. Gatfield, dated January 21st 1873, payable in four months, to the order of the defendant and endorsed by him ; the other for $1300, drawn by H. A. Spear and C. Irwin, payable in sixty days, to W. H. Wallace, and endorsed by him and the defendant; also, for an over-draft by the defendant on the plaintiff for $1437.07.
    Appended 'to the declaration was a statement of the plaintiff’s claim, to wit:—
    “ Plaintiff claims amount of Spear and Irvin note, $1300.00 Interest from March 5th 1873.
    Protest fees, ..... 1.65
    Amount of Garfield note, . . . 1500.00
    Interest from May 24th 1873.
    Protest fees, ..... 1.65
    Abaount of open account, . . . 1437.07
    Interest from June 16th 1873.”
    The “ open account ” was sworn to and also appended, as follows :—
    “ Hugh O’Háre, Esq., Titusville,
    In account with Second National Bank, Titusville,.
    Dr. 1873. ' Or.
    May 19, $1325.00
    “ 20, $2739.40 500.00
    “ 21, 1000.00
    “ 22, 1517.65
    June 16, Interest on over-drafts for May, 5.02
    4262.07 $2825.00
    2825.00
    $1437.07 Balance due,
    On the 22d of July 1873, the defendant filed an affidavit of defence as follows :—

      “ The plaintiff is a banking association, organized and incor-* porated under the Act of Congress approved June 3d 1864, commonly called the National Currency Act, and this suit is founded, inter alia, on a certain promissory note for fifteen hundred dollars, dated January 21st 1873, made by Paul W. Garfield, payable to the order of said defendant, four months after date, and delivered to said Paul W. Garfield, who negotiated the same in plaintiff’s bank as a means of obtaining credit and borrowing money- in said bank. Affiant further says that he was only an accommodation endorser on said note, and received no value therefor from the said bank or said Paul W. Garfield, and further that when said note was discounted or negotiated in said bank, the indebtedness of said Garfield in said bank was then and previously in excess of one-tenth part of the amount of the capital stock of said banking association actually paid in, exclusive of the note in suit; that said note was not commercial or business paper actually owned by the said Paul W. Garfield, and the negotiating and discounting of said note by plaintiff was in violation of the 29th section of the aforesaid Act of Congress. This affiant further saith, that on the 17th of December 1872, the said Paul W. Garfield made his certain promissory note for fifteen hundred hundred dollars, payable to the order of the defendant, four months after date, which note was endorsed by defendant, and delivered to said Garfield, who negotiated the same in plaintiff’s bank as a means of obtaining credit and borrowing money in said bank. Affiant further says that he was only an accommodation endorser on said noté, and received no value therefor from said bank or said Garfield, and that when said note was discounted or negotiated in said bank the indebtedness of said Garfield in said bank was then and previously in excess of one-tentb part of the amount of the capital stock of said banking association actually paid in, exclusive of said note last-mentioned, and that said note was not commercial or business paper actually owned by the said Garfield; and that the negotiation and discounting of said note by plaintiff was in violation of the 29th section of the aforesaid Act of Congress. Said last-mentioned note has never been paid by the defendant, but on the 22d of May last the plaintiff’s officers, without authority from defendant, sent him said note by mail, and charged up to his account in said bank the sum of $1517.65, being for the face of the said note, with $16 for interest thereon from April 20th to May 22d, at one per centum per month, and $1.65 protest fees. At that time affiant had a balance in his favor of $85.60 cash in said bank on deposit account, but by said illegal and unauthorized aot of charging up said note, interest and cost, an apparent balance of $1432.05 stood on the books of the bank against affiant. Said apparent balance against affiant was termed by the officers of said bank an ‘over-draft,’ and on the 16th of June 1-873, said bank made a further illegal charge against defendant of $5.02 for ‘interest on over-draft for May,’meaning the said illegal'overdraft of $1432.05, making a total of $1437.07 of alleged overdraft, for which affiant is sued (inter alia) in this case. Said proceeding of plaintiff is an attempt to collect said illegal note, interest and costs, amounting to $1522.67 by an indirect means, and under another name; and affiant claims a set-off to the amount of $85.50 of balance in his favor against any valid claim plaintiff may have against him in this suit. Affiant further says that when he endorsed the two notes aforesaid he had no knowledge that the plaintiff had over discounted or loaned or was about to over discount or loan to said Garfield, contrary to the provisions of said Act of Congress. Affiant further says plaintiff has knowingly reserved and is seeking to collect in this suit interest on the said two loans or discounts to Paul W. Garfield upon the notes aforesaid in excess of the rate of interest allowed by the 30th section of said Act of Congress, said interest having been charged and reserved at the rate of .one per centum per month. Affiant admits to be due to plaintiff in this suit and hereby tenders a judgment for $1232.52, with interest thereon from May 22d 1873, and costs.”
    On the 10th of December 1873 the defendant filed a supplementary affidavit of defence, as follows:—

      “ That the indebtedness of Paul W. Garfield to the plaintiff, referred to in said affidavit of defence, at the time of the discount and negotiation of the note in question, on which defendant is sued as endorser, and of the other note referred to as sent to defendant by mail ■ and charged, was for money borrowed of said Garfield by plaintiff, and did not include the discount of bond, fide bills of exchange drawn against actually existing values, nor the discount of commercial or business paper actually owned by said Garfield.”
    On the 5th of January 1874 the court entered judgment against the plaintiff for want of a sufficient affidavit of defence, and the damages were afterwards liquidated at $4343.46.
    On the 19th of August 1873 another action of assumpsit was commenced between the same parties. This action was on two promissory notes drawn by Garfield to the defendant’s order and endorsed by him, one dated March 3d 1873 at four months for $1000; the other dated March 26th 1873 at four months for $1500.
    On the 2d of October 1873 the defendant filed an affidavit and supplemental affidavit of defence, averring that the notes were not business paper, but used and discounted as means of borrowing money, and that Garfield was indebted to the bank to an amount in excess of one-tenth of the capital; substantially as in the affidavits in the first case.
    The court entered judgment against the defendant, for want of a sufficient affidavit of defence, for $2573.55.

      The defendant took a writ of error in each case; assigning for error that the court entered judgment against him for the whole amount of the claims.

      B. J. Reid (with whom was J. A. Neill), for plaintiff in error, referred to Act of Congress, June 3d 1864, 2 Brightly’s United States Digest 63, as follows:—
    “ The total liabilities to any association, of any person, or of any company, corporation or firm, for money borrowed, including in the liabilities of a company or firm the liabilities of the several members thereof, shall at no time exceed one-tenth part of the amount of the capital stock of such association actually paid in : Provided, that the discount of bon& fide bills of exchange drawn against actually existing values, and the discount of commercial or business paper actually owned by the person or persons, corporation or firm negotiating the same, shall not be considered as money borrowed.”
    Courts will not assist a plaintiff in enforcing a contract arising out of an illegal transaction : Fowler v. Scully, 22 P. F. Smith 456 ; Coppell v. Hall, 7 Wallace 558 ; Holt v. Green, 23 P. F. Smith 198; Maybin v. Coulon, 4 Dallas 298. Although it may not be expressly prohibited but only a penalty imposed : Seidenbender v. Charles, 4 S. & R. 151; Columbia Bridge Co. v. Haldeman, 7 W. & S. 233; Burkholder v. Beetem, 15 P. F. Smith 496; Morris Run Coal Co. v. Barclay Coal Co. 18 P. F. Smith 174; Mitchell v. Smith, 1 Binney 110; Law v. Hodson, 11 East 300; Hall v. Franklin, 3 M. & W. 259 ; Foster v. Taylor, 5 Barn. & Ad. 887; Griffith v. Wells, 3 Denio 226; Wheeler v. Russell, 17 Mass. 258; Seneca Bank v. Lamb, 26 Barbour 595; Chilicothe Bank v. Swayne, 8 Ohio 254. A contract made by a corporation ultra vires or prohibited cannot be enforced : E. Anglian Railway v. E. Counties Railway, 7 Eng. L. & E. 505; McGregor v. Railway, 16 Id. 180; Norwich v. Norfork Railway, 30 Id. 120; Commonwealth v. Erie & N. E. Railroad Co., 3 Casey 339. The contract cannot be enforced whether the illegality be disclosed by the evidence of the plaintiff or defendant.

      R. Sherman (with whom was M. O. Beebe), for defendant in error.
    A mere omission of a direction or accidental commission of a prohibited act will not make the contract void: the affidavits do not aver that either the bank or Garfield knew of any violation of the law or intended any; such averment was necessary: 1 Parsons on Contracts 459; Kreis v. Seligman, 8 Barbour 439 ; Faickney v. Reynous, 4 Burrows 2069; Newbold v. Sims, 2 S. & R. 317. When the subject of a contract may be lawful or unlawful according to circumstances, the inference will not be that the contract was to do an unlawful act: Broom’s Legal Maxims 518; Lewis v. Davidson, 1 B. & Ald. 463; Williams v. East India Co., 3 East 192. The consideration of the contract must be illegal to prevent the law from enforcing it; Armstrong v. Toller, 11 Wheaton 258; Story’s Conflict of Laws, sect. 205-209; 2 Kent’s Com. 597-601; Hill v. Manchester, 2 B. & Ad. 544. It is no defence to a suit by a corporation on a contract that the powers of the corporation were transcended: Silver Lake Bank v. North, 4 Johns. Ch. 370 ; Farnham v. Del. & Hud. Canal Co., 11 P. F. Smith 265; Groundie v. Northampton Water Company, 7 Barr 233.
    January 4th 1875.
   Chief Justice Agnew

delivered the opinion of the court,

The main question ip these cases is, whether the notes in suit are illegal, and cannot be recovered upon, because at the time they were discounted the bank had previously lent the drawer, for whose accommodation O’Hare endorsed, more than one-tenth part of its capital. It is contended that the discount was contrary to the 29th section of the National Bank Law of June 3d 1864, providing that “ the total liabilities to any association, of any person, or of any company, corporation or firm for money borrowed, including in the liabilities of a company or firm, the liabilities of the several members thereof, shall at no time exceed one-tenth of the amount of the capital stock of such association actually paid in : Provided, That the discount of bonfi fide bills of exchange drawn against actually existing values, and the discount of commercial business paper, actually owned by the person or persons, corporations or firms, negotiating the same, shall not be considered as money borrowed.”

The affidavits of defence, upon which -the question is raised, do not aver that the excess above one-tenth of the paid-in capital, was knowingly and voluntarily lent to the drawer of the note. This defect in the affidavit would support the judgment, for surely it cannot be contended that an accidental excess made in mistake or in ignorance would forfeit an honest loan. But without resting the case on this defect, we cannot think that an excess known to the bank only, is such an unlawful act, entering into the vitality of the loan, as will avoid it. The fact of an excess of indebtedness over one-tenth of the paid-in capital is a matter aside from the loan itself, not entering into its terms, and therefore collateral. The loan of the money is an act within the authorized power of the bank ; a part of its proper business, and therefore, not in itself illegal. The note or security given for the money was an instrument within the power of the bank to accept. The drawer had a right to make it, and the bank a right to discount it. In this lies the difference between this case and that of Fowler v. Scully, 22 P. F. Smith 456, relied on as authority. There the very instrument itself, a mortgage of real estate, for future advancement, was illegal and void, being forbidden to the bank as well as to the mortgagor, who is presumed to know the law. It appeared on the face of the mortgage that it was given to secure future discounts up to the sum of $100,000, and for the expressed purpose of enabling the mortgagor “ to avoid the necessity of procuring the additional endorsement to said paper by a third party.” It therefore presented a case where both parties combined purposely to do an act expressly forbidden by the law, and where the thing itself (the mortgage) was the very ground of attempted recovery by scire facias, and the bank was directly asking the aid of the law and of the court to enforce the illegal instrument. Eowler v. Scully is no authority for this case. What might be the consequence if the bank and Garfield, the drawer, had combined knowingly and wilfully to defeat the restriction in the 29th section referred to, it is not proper to say or to speculate upon. Therein, however, lies the difference between the case of the Morris Run Coal Company v. Barclay Coal Company, 18 P. F. Smith 174, cited and relied on, and this case. There the contract was void because in restraint of trade, both parties were in pari delicto, and the draft sued on was the provided instrument for carrying the illegal agreement into execution. Hence, it was said there, “ the illegal consideration entered directly into the instrument, and is followed up, because the law will not permit itself to be violated by mere indirection.” Here the fact of the excess of indebtedness, and the bank’s knowledge of the fact, were only collateral to the contract of discount, and not presumed to be within the knowledge of the borrower, and the note was not intended by both parties to be the instrument of committing a fraud upon the law. Both the consideration and the note were lawful in themselves. The affidavit does not charge combination or conspiracy to defeat the law.

Other considerations connect themselves with the question. It was evidently not the intention of Congress to aim at the securities taken by the bank and declare them illegal, as it was in the 28th section, forbidding mortgages other than those taken to secure previously contracted debts. The securities not being referred to in the 29th section, or declared illegal, we are at liberty to inquire into the true purpose of Congress, in considering whether we should declare the securities themselves illegal by implication. If such were not the real intent of Congress, we ought not to raise an implication to defeat recovery. Evidently the limitation of the indebtedness to the one-tenth in the 29th section, was intended as a general rule for conducting the business of the bank; a rule laid down from experience to regulate its loans for its own best interest and those of stockholders and creditors, not a rule to regulate its customers. It was, as remarked in Eowler v. Scully, a regulation to prevent these associations from splitting on the rock which has ruined so many banks, to wit, that of lending too much of their capital to one person or firm. The intention being to protect the association and its stockholders and creditors from unwise banking, we cannot suppose it was meant to injure them by forbidding recovery of the injudicious loans. We should not interpret the section so as to carry its prohibition beyond its true purpose, and thus cause it to destroy the very interest it intended to protect by the regulation. To do so would be', as said by the court below, to demand a penalty in favor of an individual for an offence against the country, and invite to dishonesty under a pretence of a regard for the law.

As to the usurious interest we shall say nothing, the defendant in error having, in his paper-book, agreed to correct the judgments by proper deduction. We leave the enforcement of this agreement to the court-below, if the correction should not be voluntarily made.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Titusville Novelty Iron Works’ Appeal.
    1. A leasehold being a chattel real by reason of its fixed and permanent character, can under an execution be seized and held only as real estate; not as personal goods, susceptible of transportation.
    2. The sheriff is no more responsible for a leasehold estate levied on than he would be for real estate.
    3. The levy of a leasehold can he only by description of the realty out of which it issues.
    4. Under a fi. fa. against a lessee, the sheriff went upon premises leased, examined them, &e.; afterwards and out of view of them he endorsed a description of them on his writ, and returned that he had levied on them as described. Held a good levy.
    5. An inaccurate description of a levy may be explained by oral evidence.
    6. Hoffman v. Danner, 2 Harris 25 ; Sowers v. Vie, 2 Id. 99, followed.
    November 11th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Appeal from the Court of Common Pleas of Clarion county: No. 227, of October and November Term 1874. In the distribution of the' proceeds of the sheriff’s sale of the property of James L. Johnson.
    Johnson was the owner of thirteen-sixteenths of a leasehold on what was known as the land of “ Dittman’s heirs,” in Richland township, Clarion county. On the 15th of November 1873, the Titusville Novelty Iron Works issued a fi. fa. on a judgment held by them against him and E. D. Hamilton for $1351.
    On the same day, the sheriff went on the leasehold, stopped at the house on it, in which the defendant Johnson resided; he examined the house and oil-well on the leasehold, with the intention of levying on it if he did not get the money, and after looking over the leasehold and inquiring for Johnson, he went to St. Petersburg, about a mile and a half from the leasehold, and then met Johnson; he showed him the writ and told him he wanted the money ; Johnson said he could not pay it; the'sheriff told him if it was not paid he would have to make a levy. He then levied on the leasehold and endorsed it on the writ that night in St. Peters-burg and not in view of the property.
    The sheriff’s return to the fi. fa., made November 24th, was as follows:—
    “ By virtue of the within writ I have levied on all the right, title, interest and claim, of the defendants, of, in and to a certain leasehold estate, situated on ‘D. Shoup farm,’ Richland township, Clarion county, Pa.; lease of 6 acres, bounded east by public road; south, west and north by D. Shoup farm; together with the oil-wells, engines, boilers, engine-houses, derricks, walking-beams, casing, tubing, rods, tanks and all the machinery and fixtures belonging to said wells and lease ; also one frame dwelling-house on said lease, one set of drilling-tools and one buggy.
    So answers S. Johnson, Sheriff.”
    There was endorsed on the writ also : “ See schedule of levy on personal property and writ returned, property not sold for want of time.”
    On the same day a venditioni reciting the levy was issued in the same case.
    On the same day, P. Graham & Co. issued a fi. fa. on a judgment in their favor against Johnson.
    Previously to the return-day of these two writs, the term of the office of the then sheriff, S. Johnson, expired and the writs went into the hands of his successor, A. H. Beck.
    To the venditioni he returned, “ No property.found in my bailiwick to answer the within leyy.”
    To Graham’s fi. fa. he returned:
    “ By virtue of within writ I have levied on the following property, to wit: Derrick 20x20 base, 72 feet high, engine and boiler house 18x24 feet, engine, boiler 12 horse power, casing tubing and rods; said leasehold situated on lands owned by Dittman’s heirs, in Richland township, Clarion county, Pa. Bounded north by Dittman’s, east by D. Shoup farm, west by Dittman’s and land leased to Yensel, situated on the south-east corner of said farm; also one house 18x16 feet, one and a half stories high, on said lease.”
    He further returned: “December 17th, after due and public notice being given, property cried and sold for $1820 to John Shoup.”
    Shoup was one of the firm of P. Graham & Co.
    There were a number of other executions on mechanics’ liens, &c., issued about the same time. The above-mentioned executions had priority of all except those on the mechanics’ liens.
    The proceeds of sale were brought into court and referred to David Lawson, Esquire, as auditor, for distribution. Before him the Titusville Novelty Iron Works and P. Graham & Oo. were the contesting claimants for the balance of the fund after the payment of the mechanics’ liens.
    The points of contest were : as to the validity of levy under the fi. fa. of the Titusville Novelty Iron Works, there having been no actual seizure, and the description of the property levied on being inaccurate.
    Sheriff Johnson testified that the property he viewed and levied on was the leasehold of the defendant on the Dittman land, but at the time he made it he supposed it was on the Shoup farm, which adjoined the Dittman land ; and he therefore so made out his levy.
    J. M. Guffey testified that the leasehold levied on was on the land of the Dittman heirs ; the Shoup land lies on the east and south of it, and was the same property described by the sheriff in his levy; that he as agent of the Novelty Iron Works gave notice at the sheriff’s sale that the property was the same that had been levied on by Sheriff Johnson ; that the sheriff cried the sale on the writ of the Novelty Iron Works and named no other writ.
    There was other evidence corroborative of the foregoing. It was all objected to as tending to contradict the sheriff’s return.
    The auditor reported as his opinion that the levy on the writ of the Titusville Novelty Iron Works was not good, the property not being in the view of the sheriff at the time he made the levy.
    He accordingly awarded to P. Graham & Oo. the amount of their execution and entirely excluded the execution of the Titusville Novelty Iron Works from any participation in the fund.
    After exceptions by the Titusville Novelty Iron Works, the Court of Common Pleas (Jenks, P. J.) delivered the following opinion in the case.
    “We think the conclusion reached by the auditor correct. To constitute a valid levy, there must be such interference, either actual or constructive, with the possession of the property of a defendant, as would subject the officer if not protected by his writ, to an action of trespass. The entry of the levy upon his writ when it, the property, is not taken into his actual possession, must be sufficiently descriptive to furnish reasonable information of its identity. The levy in this case does not meet either of these requirements.
    “ The exceptions are therefore overruled and report confirmed, and money ordered to be paid out accordingly.”
    A decree being entered in accordance with this opinion ; the Titusville Novelty Iron Works appealed to the Supreme Court and assigned the decree for error.

      J. B. Knox (with whom was J. T. Maffett), for appellants. —
    The levy being on an undivided interest in a leasehold estate could not be taken into actual possession by the sheriff; the sheriff did all he could. Where a levy is made on goods, it is not necessary to take them into actual possession, it is sufficient if the goods be forthcoming to meet the exigencies of the writ: Dorrance v. Commonwealth, 1 Harris 160 ; Wood v. Vanarsdale, 3 Rawle 401; Keyser’s Appeal, 1 Harris 412. The levy was in fact made when the sheriff was on the premises ; the endorsement on the writ was but the evidence of it: Duncan’s Appeal, 1 Wright 502; Weidensaul v. Reynolds, 13 Id. 78. A judicial sale of leasehold estate, like that of a freehold, need not be made on the premises: Sowers v. Vie, 2 Harris 99. The levy on real estate is made on paper, the defendant is not entitled to any notice of it, and it may be entered after the return-day: 1 Troubat & ITaly’s Practice 976 ; Cowden v. Brady, 8 S. & R. 509.
    What property is embraced in a levy which is obscure in its terms may be shown by parol evidence: Scott v. Sheakly, 3 Watts 50 ; Hoffman v. Danner, 2 Harris 25 ; Shoemaker v. Ballard, 3 Id. 92; Vandike’s Appeal, 5 Id. 271. On a collateral issue between two creditors to try the right to the proceeds of a sheriff’s sale, the return of the sheriff is but primll facie evidence: Lowry v. Coulter, 9 Barr 349.

      W. L. Oorbett, for appellees.
    The officer making a levy must have the property in his power and control, or at least within his view: Duncan’s Appeal, 1 Wright 500; Wood v. Vanarsdale, 3 Rawle 401; Schuylkill County’s Appeal, 6 Casey 358; Carey v. Bright, 8 P. F. Smith 81; Lowry v. Coulter, 9 Barr 349 ; Linton v. Commonwealth, 10 Wright 294.
    Leases for years are not embraced in our statute, requiring inquisition and condemnation, but are sold on a fieri facias as personal, and not real estate. The sheriff’s return to his writ in such sale is sufficient evidence of title, and no deed is required: Dalzell v. Lynch, 4 W. & S. 256; Sowers v. Vie, 2 Harris 99; Williams v. Downing, 6 Id. 60 ; Sterling v. Commonwealth, 2 Grant 162; 3 Bl. Com. 417.
    The endorsement of a levy is necessary as between execution-creditors : Weidensaul v. Reynolds, 13 Wright 73; McClelland v. Slingluff, 7 W. & S. 134; Linton v. Commonwealth, 10 Wright 294.
    January 4th 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

Had the levy in question been of personal chattels it would have been invalid, for in such case it must be made by actual seizure, or at least in view of the goods.

There is, however, a wide difference between chattels personal and chattels real. The latter grow out of and are attached to the realty, and hence, by reason of their fixed and permanent character, can only be seized and held as realty. Alease of land, during the term, is as fixed as the land itself, for it can only be used upon the land out of which it arises. It is nothing more or less than a right to use the freehold for the term mentioned in the lease. It is therefore an estate in land. These chattels cannot be seized and held as can personal goods, which accompany the person, and are susceptible of transportation from place to place. The officer in levying upon the latter, is supposed to have them in his immediate personal custody, and he must have them present at the place and on the day of sale. Not so, however, a leasehold estate: Sowers v. Vie, 2 Harris 99. The sheriff can have no manual caption thereof; he cannot take it into personal custody, and hence is no more responsible for it than for any other species of real estate. His levy can only be by description of the realty out of which the leasehold issues. We take it, then, that the levy, though not made in view of the premises, was nevertheless good, if it were sufficiently descriptive to indicate the estate levied upon.

The levy is certainly very inaccurate, but, as explained by the oral testimony, which was properly admitted, Hoffman v. Danner, 2 Harris 25, we are left in no doubt but that the leasehold, from which the money was made, was the same as that described in the said levy on the writ of the appellant.

According to this view of the case the auditor erred in not giving precedence to the writ of the Titusville Novelty Iron Works.

The decree of the court is therefore reversed, and it is ordered that the record be remitted for redistribution, and that the appellees pay the costs of this appeal.


author: Per Curiam.

text:
    Sullivan's Appeal.
    A cook in a hotel is not within the Act of April 9th 1872, securing a lien for the wages of laborers, &e.
    November 11th 1874.
    Before Agnew, O. J., Shabswood, Meecub and GrOEDOH, JJ.
    Appeal from the Court of Common Pleas of Crawford county: Of October and November Term 1874. In the distribution of the proceeds of the sheriff’s sale of the personal estate of Harry Chamberlin.
    Of the proceeds of the sheriff’s sale $200 were considered as being in court; the same being claimed by the Meadville'Savings Bank, execution-creditors, and by Mary Sullivan, who claimed them as wages of a laborer, under the Act of April 9th 1872, sect. 1, Pamph. L. 47, 2 Br. Purd. 1464.
    The parties in a case stated agreed upon the following facts:— * * * “ Mary Sullivan, at the time of the sale, which took place June 1872, was a cook in a hotel of defendant Chamberlin, who kept the Occidental Hotel, in Meadville, and had been cook for a period of at least twelve months. At the time of the sale the defendant owed her wages — the sum of $200. Notice was given to the sheriff in writing, of her claim as aforesaid prior to the sheriff’s sale. The property upon which the money was made consisted of ordinary and usual household and hotel furniture. If the court should be of opinion that Mary Sullivan is entitled to the sum of $200, being her said wages out of the proceeds of said sheriff’s sale, then a decree and order to be entered by the court, ordering the said sum of $200 to be paid to Mary Sullivan, and if the court should be of opinion that she is not entitled to said sum, then the said sum of $200 to be paid to the Meadville Savings Bank.”
    The court (Lowrie, P. J.) ordered the money to be paid to the Meadville Savings Bank. Mary Sullivan appealed and assigned the decree of the Court of Common Pleas for error.

      W. R. Bole (with whom was J. W. McCloshey), for appellant.

      P. Church, for appellee.
    November 19th 1874.
   Judgment was entered in the Supreme Court,

Per Curiam.

A cook in a hotel is not within the terms or intent of the Act of April 9th 1872, Pamph. L. 44, securing a lien for money due for labor and services by any miner, mechanic, laborer or clerk, from any person or chartered company employing clerks, miners, mechanics and laborers, as lessees, contractors or owners of any works, mines, manufactories, or other business., or where clerks, miners or mechanics are employed.

Decree affirmed and appeal dismissed, with costs to be paid by the appellant.


text:
    McLaughlin versus City of Corry.
    1. A municipal corporation is liable for damages for injuries for negleet of its officers in not keeping its streets, roads and bridges in repair.
    2. If the municipal authorities are negligent in allowing a dangerous obstruction in a public highway, which they could have removed, they are liable for damages to a person injured thereby without any fault of his own.
    3. A city allowed ice and snow to accumulate in drifts and ridges on a sidewalk and remain for weeks, the plaintiff in passing lawfully on the walk slipped on it, fell and injured himself. Whether the snow and ice had so accumulated by default of the officers of the city, and whether by reason thereof the plaintiff was injured, were for the jury, and if so the city was liable to the plaintiff for damages.
    4. If the obstruction was of such long duration as to be generally observable, the city was chargeable with constructive notice.
    5. The measure of damages to plaintiff would be the direct expenses by reason of the injury, the inconvenience he was subjected to, pain, pecuniary loss sustained and likely to be sustained during life, and his actual permanent loss of earning power from the accident.
    6. What the plaintiff might be receiving as wages would not go in mitigation of damages, but might be considered with other things as going to prove what his earning powers were.
    November 12th 1874.
    Before Agnew, O. J., Sharswood, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1874, No. 224.
    This was an action on the case, commenced February 7th 1872, by John McLaughlin against the City of Corry.
    The declaration contained two counts :—
    The first was that on the 14th of January 1871, and for weeks before, the sidewalk on the south side of Main street, in the city of Corry, near its intersection with Second avenue, in the said city, was greatly out of repair and covered in many and divers places with a large accumulation of ice, and permitted to remain in an unsafe condition: yet the said. defendant, well knowing the condition aforesaid of the said sidewalk, and while the same was greatly out of repair and covered with a large accumulation of ice, wrongfully permitted it to remain out of repair, and for’want of repair and by reason of the accumulation of ice and snow, the plaintiff, who was on the evening of the said 14th of January, passing along the sidewalk, unavoidably slipped and fell therefrom into a ditch, and thereby his left shoulder was dislocated and he much injured and continued so for a long time, w-as rendered incapable of attending to his business, and had to pay large sums of money in endeavoring to be healed, &c.
    There was a second count which need not be noticed.
    The case was tried April 16fch 1874, before Wetmore, P. J.
    The case on the first count having been taken from the jury on the ground that the evidence was insufficient, it is necessary to give the evidence somewhat at large.

      The plaintiff testified: “I reside in Corry, in west end of the city; I am master-mason for Oil Creek & A. R. Railroad; am mason and stone-cutter; on evening of 14th January 1871 I was coming from depot home; at corner of Main street and Second avenue there was a hard track in centre of sidewalk; the end of plank wras bare; the street is six to eight inches lower than the walk, and there is a ditch towards building two feet six inches deep; it is a barn and store-house; it is two feet eight inches across; there is a bridge in front of the building over the ditch, leading into the building; the bridge starts from sidewalk; I had a foot on the ridge and a foot on end of plank that was bare; the rain had made the hard snow oval; the ice was six to eight inches high in the middle; the sidewalk is five feet three to four inches. My foot slipped and I fell forward, and my right hand struck on top of bridge, and my left hand struck against the end of the plank of the bridge ; I got up and my left arm dropped, and my fingers were numb.” * * *
    Plaintiff then stated the character of his injuries ; his inability to work as he had done, the reduction of his income from his earnings, &e.
    Peter McNally testified: “ The sidewalk on Main street, opposite Corry shops, was bad; boards bad; old and sometimes would float; there was a ridge of ice on sidewalks all winter; I cannot tell how it was; the snow and ice were not cleared off; the Corry shops cleared off opposite their office; the sidewalk was very bad where plaintiff fell; it was slanting and difficult to walk over; it was about as McLaughlin said; it was from one inch to what he said; some places worse than others ; it was about two winters in that condition, before and after he fell; it was dangerous for foot passengers ; it was in that sloping condition about two winters.”
    M. Curry testified: “ I generally take Main street coming to town ; this is the route the people generally come ; there are quite a number of people west of Second avenue; about five streets west of this avenue ; I saw plaintiff the day after he was hurt; where he fell there was a ridge of snow in the centre and the snow was off the sides, thawed off; this ridge of snow was five to six inches ; there was a strip of six to eight inches at end of sidewalk bare; there was a space over two feet between sidewalk and barn, the ditch was two feet or over; there is a bridge leading from sidewalk into the barn ; it was nearly two feet from sidewalk to ground on side towards street; there was snow on the sidewalk all winter; there was a thaw about this time and heavy rain and thawed away the snow except this ridge; * * * the corner of Second avenue and Main street, where plaintiff fell, is not far from business parts of city.”
    John King testified: “I live near plaintiff; I noticed the sidewalk, corner Second avenue and Main street; the centre of walk all ice and a bare place on each end; it was a dangerous ridge of ice five to six inches high ; the sidewalk above the ground; there is a space between sidewalk and building, and the bridge crosses it to barn; I did not know it cleaned off except opposite Oorry machine-shops. * * *
    Peter Burns testified : “ At the time plaintiff was hurt there was a ridge of ice in centre of sidewalk; the margin was from eight to ten inches; I noticed the sidewalk three to four days after he was hurt; it was damp weather; the sidewalk was very bad near Lemon street; the side of walk next street had given way and it was sidling and dangerous. It required attention to walk on the sidewalk with ridge of ice, and at night would be somewhat dangerous ; one-sixth of population is west of Second avenue.”
    The defendants gave evidence as to the character of the walk. They also gave evidence that the plaintiff had been kept on the pay-rolls of the railroad company at full pay from January 1871 to December 1873.
    The following were points of the plaintiff:—
    2. If the ice ridge which caused the fall of the plaintiff, January 14th 1871, was in a thickly-populated or frequently-travelled portion of the city, and the defect was so notorious as to be observable by all, the corporation would be chargeable with constructive notice, and be liable for damages, the same as though actual notice were proved.
    3. In the particular location in the city, as described, where plaintiff fell, January 14th 1871, five or six days’ continuance of an obvious obstruction upon the sidewalk would be sufficient time to create constructive notice to the city.
    6. The difference in his capacity to earn wages being one of the measures of plaintiff’s damages, the fact that he may have received and may now be receiving regular pay from the A. Railroad Co., which pay is liable to cease at any time, is no defence as to the liability of the defendant to respond in damages, more especially as to future compensation.
    7. In estimating damages the jury should allow not only for the direct expenses incurred by the plaintiff by reason of the injury, but also for the privation and inconveniences he is subjected to, and for the pain and suffering, bodily and mental, already experienced and likely to be yet experienced, as well as for the pecuniary loss he has sustained and is likely to sustain during the remainder of his life, from the disabled condition of his arm, and the difference it has occasioned in his ability to earn wages at his trade.
    The court answered these points as follows:—
    “ The second point is not answered, as it is not relevant to the case.
    “ The third point is disposed of in the answer to the second point.

      “ The sixth point is not relevant to the issue before the jury.
    “ The seventh point is not answered because it relates in part to facts not in issue before the jury.”
    The court further charged, “ The evidence relating to the accident that occurred on the 14th day of January 1871, and the condition of the sidewalk at the place where it occurred, is not sufficient in law to render defendant liable, and there can be no recovery for the injury then sustained.”
    The verdict was for the defendant on the first count.
    The plaintiff took a writ of error and assigned for error the answers to his points and the instructions to the jury.

      B. J. Beid (with whom was L. 8. Norton), for plaintiff in error.
    —The liability of the city for the defect in the sidewalk was the same whether the officials knew it or not: Erie City v. Schwingle, 10 Harris 384; Norristown v. Moyer, 17 P. F. Smith 356; Davenport v. Buckman, 37 N. Y. Rep. 567 ; Shearman & Redf. on Negl., §§ 147, 148, 385, 407, and notes. Where the authorities of a town allow ice or snow to accumulate in the streets in ridges or drifts, the towns are liable for injuries resulting from these things : Shea v. Lowell, 8 Allen 136; Luther v. Worcester, 97 Mass. 268; Street v. Holyoke, 105 Id. 82; Collins v. Council Bluffs, 32 Iowa 324; Providence v. Clapp, 17 Howard 161. When money is raised by charitable subscription for one hurt by negligence of town authorities it is not to be taken into consideration in estimating his damages: Norristown v. Moyer, 17 P. F. Smith 356. Nor the proceeds of an accident insurance policy: Harding v. Townshend, 43 Vermont 536 (5 American Rep. 304). As to the 7th point they cited Railroad Co. v. Allen, 3 P. F. Smith 277; Pennsylvania & Ohio Canal Co. v. Graham, 13 P. F. Smith 290; Laing v. Colder, 8 Barr 481.

      W. W. Brown (with whom was M. Oroshy), for defendant in error,
    cited 2 Dillon on Municipal Corp. 963 ; Stanton v. Springfield, 13 Allen 566; Hutchins v. Boston, 14 Id. 508 ; Billings v. Worcester, 102 Id. 329; Landolt v. Norwich, 11 Am. Law Reg. 383.
    January 4th 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

That a municipal corporation, such as a city, borough, township, or county is liable for damages arising from the neglect of its officers in not keeping the streets, roads and bridges, over which it has jurisdiction, in proper repair, is established by many authorities ; among others, Dean v. New Milford Township, 5 W. & S. 545; Pittsburg v. Grier, 10 Harris 54; Allentown v. Kramer, 23 P. F. Smith 406; Humphreys v. Armstrong County, 6 P. F. Smith 204.

These cases proceed upon the principle that the various municipalities have full and complete control of and power over the roads, streets and bridges within their- several precincts, and that they are charged with the duty of their proper construction and repair. In the case in hand, the plaintiff charges, that through the default of the officers of the city of Corry, the ice and snow had been permitted to accumulate, upon the sidewalk in question, in such a manner as to be dangerous to foot passengers, and that by reason thereof, he fell and received the injuries of which he complains. Whether this were so or not, was a question for the jury, and as such the court should have submitted it.

If the city authorities were negligent in allowing a dangerous obstruction to exist in the public highway, which they could have removed, and the plaintiff was injured thereby, without any fault of his own, the city was undoubtedly liable for the damages which he suffered.

It is argued, however, that, as the obstruction complained of was the result of natural causes, over which man has no control, therefore the defendant is not liable. This would be true if the effects produced by these causes were beyond human remedy; but ordinarily such is not the case. Roads are constantly being worn by the never-ceasing action of the elements; but no one imagines that this is an excuse for a neglect to repair them. A sudden flood may render a public bridge or highway impassable, but surely that is no reason for allowing it to remain so for ever. A municipality cannot prevent the general slipperiness of its streets, caused by the snow and ice during the winter, but it can prevent such accumulations thereof, in the shape of ridges and hills, as render their passage dangerous. It is no more difficult to remove or level such obstructions than it is those occasioned by the water and earth during the summer. The cases of Collins v. Council Bluffs, 32 Iowa 324; City of Providence v. Clapp, 17 How. 161; Luther v. Worcester, 97 Mass. 269, all hold that municipal corporations are liable for damages occasioned by accumulations of snow and ice. The plaintiff’s second, sixth, and seventh points should have been affirmed. If the obstruction was one of such long duration as to be generally observable, the city would be charged with constructive notice thereof. So, the true measure of damages, in addition to that indicated in the seventh point, would be the plaintiff’s actual permanent loss of earning power, occasioned by the accident. What he gets from his present employers by way of wages, cannot go in mitigation of damages, any more than would the donations of friends and neighbors; but what he earns from any source may, with other things, be considered as going to prove what his earning powers actually are.

The third point embraces a question of fact for the jury, and was, therefore, properly refused.

The judgment is reversed, and a venire facias de novo awarded.