author: Agnew, J. —

text:
    McLoon’s Administrator versus Cummings.
    1. General average is a contribution by all the parties in a sea adventure to make good the loss of one of them for voluntary sacrifices of part of tKe cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more for the genoral benefit of all the interests in the enterprise.
    2. General average extends to the loss of the ship when the cargo is saved; and the loss of the cargo when the ship is saved.
    3. When after abandonment of the vessel the cargo is sent to the port of destination, as a general principle the parties are bound by an adjustment fairly made by an adjuster at that port, according to the rules, &c., there.
    4. This rule does not obtain in case of fraud or gross mistake ; or when a voyage is broken up and ended, where a final separation between the vessel and cargo has taken place and the relations of the parties have terminated: then the port of disaster would generally become the place of adjustment.
    5. Where the cargo is sent from the port of disaster to the port of destination by another vessel at a higher rate of freight than under the original contract, the contribution is to be on the basis of the value of the cargo at the port of destination.
    6. Where the deviation is justified, in case of disaster by a peril of the sea, disabling the vessel from proceeding, the master becomes the agent of all the parties in interest; the subject of the interests are the vessel, the cargo and the freight.
    7. If the vessel cannot proceed, it is the duty of the master to reship the cargo if he can, to the port of destination, to protect all interests, doing what he fairly and conscientiously believes is for the interest of all.
    8. If the master can save part of the freight to the owner, he will be considered his as well as the shipper’s agent; if he can save nothing for the owner he will be agent of the shipper alone.
    9. A vessel chartered at Baltimore to carry coal to San Francisco, having met with disasters at sea, bore away to Rio, where after the proper proceedings she was abandoned and the master shipped the cargo to San Francisco by another vessel at higher freight, by the bill of lading “ to be
    delivered * * * unto order or-, assignees, he or they paying freight,”
    &e. The bill was endorsed to Wright, who endorsed it deliverable to Cummings, San Francisco. The master of second vessel would not deliver the coal except on payment of freight, &e., and Cummings would hot so receive it; the coal was sold for less than the freight and expenses. The acts of the master were ratified by the owner of the ship. Held, that under the circumstances, the separation of interests was not complete at Rio, but continued until the arrival at San Francisco, and the sale of the cargo there.
    10. The freight and charges at San Francisco having consumed the value of the cargo, in a suit by the owner against the shipper, it was Held, that theré was nothing upon which the general average could be charged ; and the recovery was confined to the special charges on the coal.
    11. The master paid a premium for gold drafts at Rio to pay the expenses there; Held,.bh&b verdict should be for the amount found in gold, not for the premium paid.
    January 16th 1873.
    Before Read, C. J., Asnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.

      Certificate from Nisi Prius: Of January Term 1870, No. 76 J.
    This was an action of assumpsit brought October 2d 1869, by William McLoon against Henry W. Cummings.
    The history of the ease by the plaintiff in error, the defendant in error having made no counter statement, is as follows:—
    On June 17th 1867, the “ Juliette Trundy,” owned by William McLoon, of Rockland, Maine, was chartered by Henry K. Cummings, in Philadelphia, to carry a cargo of coal from Baltimore to San Francisco at $16 per ton, in currency. On July 18th 1867, the vessel sailed from Baltimore with her cargo of about 1181 tons of coal. Very soon after leaving port she began to experience exceedingly boisterous and tempestuous weather, which continued with scarcely an intermission for more than a month. Her masts were split and partly carried away, her sails were in like manner damaged, her whole hull was very much strained, she began to leak, and the storm still continuing and the leak increasing, the captain held a consultation, and for the safety and benefit of all concerned, on September 4th 1867, he determined to put into Rio de Janeiro. She reached Rio de Janeiro safely on September 14th. Four surveys were duly held under the directions of the American consul. By the direction of the surveyors all of the cargo was landed, and, after a thorough examination, they gave directions as to the repairs necessary to be made in order to put the ship in such condition as would enable her to pursue her voyage. The captain advertised for proposals for these repairs and submitted the offers to the surveyors. It was found that the cost of the repairs at Rio would exceed the value of the vessel, and the surveyors recommended her sale. Acting under this advice and that of the American consul and Wright & Co., the largest American house at Rio, Captain Perry sold the vessel at public auction and all her apparel.
    Captain Perry then made full inquiries as to the value of coal at Rio and the prospect of disposing of the same. He found that while its real value there was 21 mille reis per ton, owing to the state of the coal market at that particular time, it could not be sold for more than 5 mille reis per ton. He then sought a ship in which to forward the coal to San Francisco, and found the “ Shatemuc” was in port, and he sent forward the cargo at an increased rate over what it was to have paid in the “ Juliette Trundy.” All of this was done by the captain upon consultation with the American consul, Wright & Co., and others in Rio. He then paid all his expenses at Rio, drew on William McLoon for additional money (about $7000), and sailed for New York. His drafts were honored and paid by McLoon. The premium paid by him was 40f. In his whole dealings with the ship and cargo the captain acted without consultation with McLoon, as he could not get an answer from him at Rio in less than three months.

      The “ Shatemuc” reached San Francisco on March 14th 1868, when it appeared that the value of her cargo was probably less than the freight due the “ Shatemuc.” The consignee refused to receive the coal and pay the freight, the captain requiring a general-average bond. The captain sold the cargo for payment of his freight, and it yielded less than the freight came to.
    The bills paid by Captain Perry at Rio and his accounts were sent by Mr. McLoon to Richard S. Havens, Esq., the leading and well-known adjuster at Boston, who prepared an adjustment of the general average charges and the particular charges. In this he put the valuation of the cargo at the ordinary value of the same at Rio in September 1867.
    This adjustment was sent, in April 1868, to Mr. Cummings and his insurers in Philadelphia, who insisted that the adjustment was to be made at San Francisco. The bills and accounts were then sent to San Francisco, where Thomas Cazeneau, Esq., made an adjustment.
    Both of these adjusters agreed that it was a case for general average, and their aggregates of these charges and the special charges against the cargo differed but slightly; Havens making the general-average charges, in currency, ¡§8880.62, and the particular charges against the cargo, in currency, $2813.30, and Cazeneau making them respectively, in gold, $6822, and $1604.93.
    The action was by McLoon to recover these charges.
    The facts in detail, so far as necessary to the understanding of the case, will be found in the opinion of the Supreme Court.
    The case was tried December 13th 1871, before Sharswood, J.
    He charged that the plaintiff was not entitled to recover the premium paid by him upon the gold expended for defendant in October 1867 — but that the verdict of the jury should be rendered payable in gold.
    He also reserved the following points:—
    1. Whether, when a ship has been disabled by perils of the sea, puts into an intermediate port to repair, and the vessel is then condemned and sold, and the voyage broken up, the expenses so incurred are the subject of general average.
    2. If so, whether the rate of contribution is to be adjusted upon the basis of the value of the cargo at such place of repairs, or at the port of destination, if the cargo is sent on by another vessel at a rate of freight exceeding that stipulated to be paid under the original contract of affreightment.
    3. When the cargo is so sent to the port of destination, whether the parties are bound by an adjustment fairly made by a despacheur (adjuster) at such port according to the rules and usages there established ?
    He then directed the jury to render a special verdict finding the amount of the special charges and of the general-average charges at Rio de Janeiro, separately.
    The jury found a verdict for the plaintiff for the special charge in gold, ..... $2069.56
    General-average charge in gold, .... 5801.96
    Total in gold,......$7871.55
    • Afterwards, Judge Sharswood overruled the motion for new trial, and entered judgment for the plaintiff on the verdict for the special charge for $2069.56, refusing to enter the verdict on the points reserved on the general-average charge.
    The plaintiff died after judgment was entered, and Robert H. Hinchley, Jr., his administrator, was substituted as plaintiff.
    The plaintiff took out a writ of error, and assigned for error:
    1. That the court charged that the plaintiff was not entitled to recover the premium paid him for gold for payment of expenses, &c., in Rio Janeiro.
    2. Not entering judgment on the general-average charges.
    3. Not entering judgment for the plaintiff for the whole amount of the verdict on the points reserved.

      Gr. Junkin and Gr. W. Biddle, for plaintiff in error.
    1. The expenses in this case were the subject of general average: Star of Hope, 9 Wallace 228; 2 Arnould on Ins. 77, 881; McAndrews v. Thatcher, 3 Wallace Rep. 345; 2 Parsons on Ins. 210, 277; 1 Pars. on Ship. 246 ; 2 Phil. on Ins. 61.
    In order to be complete, there must be — 1st, a common danger ; 2d, a voluntary sacrifice or expenditure; 3d, it must result in success. As to expenditures, this latter point is qualified.
    This was a case of expenditures for the common good, and not one of sacrifice. In the case of sacrifice, if subsequently the vessel and cargo are lost before the end of the voyage, there is no contribution, because the presumption is, that if the thing sacrificed had remained on board it would have perished with the rest. But in the case of expenditures the rule is different: 2 Arnould on Ins. 924, sec. 340; Phillips on Ins. 133; Ins. Co. v. Jones, 2 Binney 547.
    Disbursements made for the common safety, must be reimbursed in general average, whether the ship and cargo are ultimately saved or not: Sturgis v. Cary, 2 Curtis 382; 2 Pars. M. Ins. 210, 259, 277, 279, 280, 331; Caze v. Reilly, 3 W. C. C. R. 298; Berkley v. Presgrave, 3 East 228. Where, owing to stress of weather, &e., the vessel puts into a port to refit, from the moment the deviation commences the expenses, wages, &c., are the subject of general average: Star of Hope, 9 Wallace 228; Campbell v. The Allkomac, Bee’s Rep. 124; 2 Pars. on M. Ins. 257, note; Potter v. Ocean Ins. Co., 3 Sum. 27; The Mary, 1 Sprague 17; Willard v. Dorr, 3 Mass. 161; Arnould on Ins. 350, note. The claim for contribution may be maintained against the owner of the cargo, although the vessel is totally lost or sold, and the voyage broken up : Col. Ins. Co. v. Ashly, 13 Pet. 331; Gray v. Waln, 2 S. & R. 229; Caze v. Reilly, 3 W. C. C. R. 298; 3 Kent 237, note; The Natt. Hopper, 3 Sum. 542; Merithew v. Sampson, 4 Allen 193; Bell v. Smith, 2 Johnson 98; Job v. Langton, 6 Ellis & Bl. 779 ; Moran v. Jones, 7 Id. 532; M. & P. on Shipping 322; Nelson v. Belmont, 7 Smith (21 N. Y.) 36; McAndrews v. Thatcher, 3 Wallace 347.
    The general rule of all contributory maritime interests is, that their contributory value is that which they have at the time and place where they are considered as finally saved : 2 Pars. on M. Ins. 343. Where the voyage is broken up and the separation takes place, then the cargo must contribute according to its value at the port of necessity : Arnould on Insurance 812, 933, 1373, 1374, 1375; 2 Phillips on Ins., sec. 1393 ; Mu. Ins. Co. v. George, 3 N. Y. Leg. Ob. 268; 3 Kent 242; Tudor v. Macomber, 14 Pick. 38; Abbott on Shipping 504, note 2; Marshall on Ins. 467; Rogers v. Mech. Ins. Co., 2 Story Ct. C. 173; Douglass v. Moody, 9 Mass. 547; Spaffordv. Dodge, 14 Id. 79.
    Where the ship is damaged so by sea perils as to be a wreck, or must be sold, her value at the port of necessity, or the price she there brings at a fair sale, is her contributory value: 2 Arnould on Ins., sec. 346, p. 435; Star of Hope, 7 Wallace 235; 2 Pars. on M. Ins. 329, 343; Bell v. Smith, 2 Johnson 98; Lee v. Grinnell, 5 Duer 400; Mutual Ins. Co. v. George, Olcott 157.
    When the voyage is broken up by the loss or disablement of the ship, and the cargo is saved, the master becomes the agent, not only for the owner of the vessel, but also for the .cargo; and it is his duty to forward the cargo to the port of destination: 2 Parsons on Ins. 274, note 2; Pars. on Ship. 234; 3 Kent 210; Skipton v. Thornton, 9 A. & E. 314; Saltus v. Ocean Ins. Co., 12 Johnson 107; Hugg v. Augusta Ins. Co., 7 Howard 595; Searle v. Scovell, 4 Johns. 218; Treadwell v. Union Ins. Co., 6 Cowen 270; Bryant v. Com. Ins. Co., 6 Pick. 130; Bost v. Norton, 2 McLean 422; Jordan v. Warren Ins. Co., 1 Story 342; Winter v. Del. Ins. Co., 6 Casey 334; 2 Phillips on Ins. 439, 449.
    When the voyage is broken up, and the captain sends forward the cargo at an increased freight, he is the agent for the owner of the cargo alone, and not for the owner of the vessel. If he sends forward at a reduced freight, then he acts for the owner of the vessel: Jordan v. Warren Ins. Co., 1 Story Rep. 342; Gibbs v. Gray, 2 H. & N. 22; Nelson v. Belmont, 7 Smith (21 N. Y.) 44; Durnett v. Traphagen, 3 Johnson 156; The Saratoga, 2 Gallison 178, note 23, cases cited; Scott v. Libby, 2 Johnson 340; Thwing v. Wash. Ins. Co., 10 Gray 443; Lamont v. Lord, 52 Maine 365; The Gratitudine, 3 Rob. Adm. 240; Emerigon on Ins., c. 12, sect. 16, pl. 6, 343; 2 Phillips on Ins., sect. 16, 24.
    Adjustment ought to be made at the port of separation: 2 Parsons on M. Ins. 361; Loring v. Nep. Ins. Co., 20 Pick. 411. A foreign adjustment, to a certain extent, may be binding, but it may be impeached: 2 Pars. 265, 266, 365, 366, 370; Thornton v. U. S. Ins. Co., 3 Fairf. 150; Chamberlain v. Reed, 13 Maine 357.

      M. P. Henpy and 12. O. McMurtrie, for defendants in error.—
    The sacrifice for which the owners of the cargo are called upon to contribute, is the endurance or submission to an uncontrollable necessity: Barnard v. Adams, 10 Howard 270.
    The three essentials of all general-average claims apply equally' to sacrifices and expenditures; that is to say, they must be voluntary, necessary, and effectual: 2 Wharton’s Digest, p. 48, title “Insurance,” Myle v. The Harriet; Williams v. The Suffolk Ins. Co., 3 Sumner 510.
    The rule of restitution can only apply to expenditures for the common benefit, extraneous to the adventure, and not to those ordinary expenses of the ship, caused by a deviation in a voyage which the vessel was unable to continue: Stevenson General Average 74. The American adjustments as a rule, but not universally, do allow these expenses as general-average charges: Walden v. LeRoy, 2 Caines 262. These expenses are to be borne by the ship, freight and cargo, in the proportions in which they receive actual benefit. The expenses on the cargo before it reaches the owner’s hands are to be deducted, e. g. freight and salvage.
    The voyage was continued under the same contract, and was a continuation of the voyage by the “Juliette Trundy” : Pierce v. Columbian Ins. Co., 14 Allen 320; Winter v. The Del. Ins. Co. 6 Casey 334.
    The breaking up of the voyage at the port of distress does not constitute the master the agent for the cargo, to accept it there for the owner, so as to render it liable to pay freight pro rata itineris: The Ann D. Richards, 1 Abbott’s Admiralty Rep. 499 ; Ewbank v. Nutting, 7 Com. B. 797.
    The right to general average, even if due, is lost by the refusal of the owner of the “Juliette Trundy” to deliver the cargo to the consignee, except on terms he had no right to exact: Scaife v. Sir John Tobin, 3 Barn. & Ad. 523.
    The port of destination is the place for adjusting general-average charges; and an adjustment made there, according to the custom of the port, is binding on all parties: Strong v. The Firemen’s Insurance Company, 11 Johns. 323; Loring v. The Neptune Insurance Co., 20 Pick. 411; Gray v. Waln, 2 S. & R. 229; Simmons v. White, 2 B. & C. 805; Dalglish v. Davidson, 5 Dow. & Ryl. 6; Richardson v. House, 3 B. & Ald. 237. The general average is to be made on the clear value at the port of destination: 2 Parsons on Marine Ins. 344; Hugg v. The Augusta Ins. & Banking Co., 7 Howard 995.
   The opinion of the court was delivered, March 17th 1873, by

Agnew, J. —

On the trial of this case at Nisi Prius three points were reserved. The first was: “ Whether, when a ship has been disabled by the perils of the sea, puts into an intermediate port to repair, and the vessel is then condemned and sold, and the voyage broken up, the expenses so incurred are the subject of general average ?”

Henry K. Cummings chartered the ship “Juliette Trundy” of the owner, William McLoon, for a cargo of coal from Baltimore, Maryland, to San Francisco, California. Storm and stress of weather injured the vessel, caused her to leak badly, and drove her for safety into the port of Rio de Janeiro, where, after the proper protests and necessary surveys, she was condemned as unseaworthy and sold, and the cargo was forwarded by her captain to San Francisco in the Shatemuc,” under a charter-party. It is evident that the vessel was disabled' by the perils of the sea and her voyage broken up; and the deviation into a port of distress was voluntary, in order to save the vessel and cargo as far as possible, and the lives of those on board. The expenses which followed were necessarily incurred to ascertain the ability of the vessel to proceed on her voyage and to save the cargo from loss, and the cargo as thus saved was forwarded to the port of destination. The expenses incurred at Rio de Janeiro were extraordinary, and were necessarily incurred by the captain as the common agent for all interested, and therefore including the shipper.

General average has been defined to be a “a contribution by all the parties in a sea adventure, to make good the loss sustained by one of their number on account of sacrifices voluntarily made of part of the ship or cargo, to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more of the parties for the general benefit of all the interests embarked in the enterprise:” Star of Hope, 9 Wallace 228; McAndrews v. Thacker, 3 Id. 365; Nelson v. Belmont, 21 New York 38. The right to general average extends to the loss of the ship when the cargo is saved in whole or in part, as well as to the loss of the cargo, when the ship is saved: Gray v. Waln, 2 S. & R. 229 ; Lage v. Richards, Id. 137; Bernard v. Adams, 10 Howard 270; 3 Wallace 365-6; 9 Id. 204. We see no reason to doubt, therefore, that the cargo in this case would be subject to general average if-it had any value left when it arrived at San Francisco, and the cargo was sold for the charges.

The third point reserved was: “ When the cargo is so sent to the port of destination, whether the parties are bound by an adjustment fairly made by a despaoheur at such port, according to the rules and usages there established?” We are inclined to affirm this as a general principle of maritime law. There are many reasons for this rule, some of which arise in the fact that this port is that of the intended market upon which the calculation of the shipper is founded, and is also the end of the ship’s voyage as contemplated by the owners. Besides, the want of uniformity in the customs and rules of ports of different countries renders it essential that a certain port should be adopted as the place of adjustment, and the only practicable rule which can be followed in the midst of variety is to take that port for which the cargo is destined, and where the voyage is terminated. The circumstances and customs of this port, it is to be presumed, were in the minds of the parties in entering into the charter-party, while the market for the cargo there is to be presumed to be the best. Yet, conceding this to be a general rule, we must except the cases of fraud or gross mistake, and of a voyage broken up and ended, where, from the facts in the case, or the mutual acts of the parties or their agents, a final separation between the vessel and cargo has taken place, and the relations of the parties have actually terminated. In the last ease the port of disaster would, generally speaking, become the place of adjustment. Such we think is the result of the authorities referred to.

This leads us to consider the second reserved point, which becomes the hinge of the case, viz.: “ Whether the rate of contribution is to be adjusted upon the basis of the value of the cargo at the place of repairs, or at the port of destination, if the cargo is to be sent on by another vessel at a rate of freight exceeding that stipulated to be paid under the original contract of affreightment.”

It is contended on behalf of the plaintiff that the voyage was broken up at Rio de Janeiro, the vessel and cargo actually separated, and that the relations of the parties finally terminated there. Is this so ? McLoon, the owner of the vessel and plaintiff, seems not to have thought so in the first instance. He had the first adjustment made at Boston, February 1st 1868, and the second at San Francisco, September 17th 1868. None seems to have been made, or thought of, according to the rules of the port of Rio de Janeiro. We must, therefore, examine the facts to determine whether, in the contemplation of the parties, their relations finally terminated at Rio de Janeiro, and the separation of the cargo became so complete, that the port of destination ceased to be a common point for the adjustment under the charter-party, and that of distress became the end of their adventure.

First it may be noticed that the charter-party contains no covenant or proviso, enabling the owner of the vessel to terminate his voyage at Rio de Janeiro or any intermediate port; it does not ' contain even the common exception of the perils of the sea. He must stand, therefore, only upon the law as it would arise upon the facts of his deviation into the port of Rio de Janeiro. But conceding the deviation to be justified, it is a well-settled principle of maritime law that in the case of a disaster by a peril of the sea, rendering the vessel unable to proceed upon her voyage, the master or captain becomes the common agent of all the parties in interest; the subjects of these interests are the vessel, the cargo and the freight. It is, therefore, the duty of the master, if the vessel cannot proceed, to reship the cargo, if he can, to the port of destination, so as to protect all interests. For this purpose he must exercise a large discretion, according to the circumstances. For in the absence of owner and shipper, and alone, as he is usually in a distant port, he must do what he fairly and conscientiously believes is for the interest of all. These are general principles borne out by the authorities: 3 Kent Com. 219, 212; 2 Parsons on Ship. 234; Lamont v. Lord, 52 Maine 388, et seq.; Thwing v. Wash. Ins. Co., 10 Gray 457 to 460; Winter v. Del. Ins. Co., 6 Casey 335. In forwarding the cargo to the port of destination the master may act for both owner and shipper. If he can save part of the freight to the owner he will be considered as his agent as well as the agent of the shipper. But if he can save nothing for the owner of the vessel, he will not be the agent of the owner but of the shipper alone. The foundation of this exception is, that an authority arising from implication only will not be presumed where the act of the master is clearly injurious to the interests of the owner of the vessel. These being governing principles, a separation of the relations between the owner and the shipper would be deemed to have taken place in this instance, if the only facts to be considered were the condemnation and sale of the vessel at Rio de Janeiro and the forwarding of the cargo by the captain at a greater rate of freight from Rio de Janeiro to San Francisco than the freight agreed upon in the charter-party from Baltimore to San Francisco. The stress of the argument for the plaintiff rests upon this view of the case. ’ But these are not the only facts, while upon the whole evidence its weight carries the adjustment to the port of San Francisco. In addition to the fact already noticed, that the charter-party is without a saving covenant, leaving the question of deviation into Rio de Janeiro open to a controversy, which the owner of the vessel, or the captain as his agent, might prefer to avoid, the following elements are to be found in the evidence: Captain Perry, the master of the Juliette Trundy, entered into a charter-party with Captain Soule, master of the Shatemuc,” without disclosing a principal; the vessel was to be consigned to the charterer's agent at the port of discharge, and freight to be paid on unloading and right delivery of the cargo in cash. The bill of lading by the Shatemuc was signed by "Wright & Co., as agent for Captain Perry, cargo to be delivered at San Francisco “unto order or to-, assignees,” he or they paying freight as per charter-party. Wright & Co.,’ for Captain Perry, endorsed this bill to the order of John S. Wright, Esq., agent at New York, and it was transmitted to New York, when John S. Wright, agent, endorsed it deliverable to William B. Cummings & Co. Captain Perry testifies that the bills of lading, charter-party per Shatemuc, and all the papers were forwarded to the plaintiff, McLoon; and in answer to a question why the bill of lading was not forwarded to San Francisco to await the arrival of the Shatemuc there, said he’ was told by Mr. Wright that the adjustment would be made in Boston, and the average would be forwarded to San Francisco. He also testifies, that in all he did he acted upon his own judgment for what he thought to be the best interests of all concerned. Now in all this it is clear he so acted to preserve to McLoon the power to control the cargo at the port of destination, so far as to protect any interest he deemed himself to possess there. In this his acts were met by McLoon and ratified. On the arrival of the Shatemuc at San Francisco, Wm. B. Cummings & Co., to whom Wright of New York finally endorsed the bill of lading, had no authority to receive the cargo. On the 14th of March, Captain Soule, after the arrival of the Shatemuc, notified Wm. B. Cummings & Co. of his readiness to deliver the coal on payment of the freight, delivery of the bill of lading, and bond for payment of the general average incurred for charges at Rio de Janeiro. Captain Soule, on the 19th of March, telegraphed to McLoon : “ Where are the Shatemuc’s bills of lading to Trundy’s cargo?” McLoon replied by telegraph, March 21st: “Deliver your cargo to Wm. B. Cummings & Co. upon their giving bond to pay general average. Bill of lading on the way.” Wm. B. Cummings having telegraphed to Henry K. Cummings the arrival of the Shatemuc without papers or bill of lading, the latter, on the 19th of March, wrote to McLoon. McLoon replied March 24th, saying he had received a despatch from Captain Soule, and telegraphed him to deliver cargo to Wm. B. Cummings upon his giving general average bond ; also that he supposed H. K. Cummings would have paid the general average on cargo here (Boston), but if not should have to send the paper to San Francisco. The facts show plainly that none of the parties recognised the port of Rio de Janeiro as the place of final separation of interests; that Captain Perry considered himself as still acting for McLoon, to enable him to control the cargo, and that McLoon ratified his acts by assuming to control the delivery of the cargo on his own terms, and himself adopted San Francisco as the place of adjustment, failing to secure it at Boston. Under these circumstances the separation of interests was not complete at Rio de Janeiro, but they continued together until the arrival of the cargo at San Francisco, and its sale there to pay the freight and charges from Rio de Janeiro to San Francisco. The reasons of McLoon for retaining control are not very apparent, but they may have arisen from a belief that San Francisco would be the best market for the cargo. It is certain, however, that he so acted as to control the cargo after it left Rio de Janeiro, and on its arrival at the port of destination. Having done so, the value of the coal at that port is the true criterion in the adjustment, and the evidence as, clearly shows that its entire value was consumed by the freight and charges.

The proof is satisfactory that the adjustment at San Francisco was made “ in accordance with tjie usage and customs of that port,” and that the principle adopted there is, “that what is saved shall pay, and nothing remains where charges consume the whole value.” “ The custom at San Francisco is to deduct at San Francisco, from the value of the cargo at that place, the freight, special charges and commission of five per cent.” In this state of the ease, the entire cargo being lost to the shipper, there was nothing upon which general average could he charged. The judge at Nisi Prius was therefore right in confining the recovery to the special charges on the coal.

The remaining question is, whether the plaintiff was entitled to a verdict for the difference between gold and the national currency in legal tender notes. The judge directed the verdict to be rendered for the sum recovered in gold. We think this was right,- in view of the nature of the transaction, and the contract to be implied from it. It is argued that there was no express contract, and therefore the judgment should have been for currency, adding the premium paid for gold as the actual expenditure of the plaintiff. But the expenses were incurred in á foreign country upon a gold standard, and the draft drawn by the master of the Juliette Trundy at Rio de Janeiro, on the plaintiff as her owner, was for gold. Gold, therefore, was the basis of the transaction and of the adjustment. The liability of the parties should be measured by that standard; gold coin also being one of the legal standards of money in the United States, and therefore directly applicable as a measure. The expenditure being founded on a gold basis, and being a foreign transaction, the contract to be implied from it must follow the same nature, especially in view of there being a legal national currency whereby it can be measured. The settlement of such a foreign transaction, on a uniform and proper basis, must result in due proportion of contribution among all interests. It is only in the payment in this country, in a currency of less value, the alleged loss arises, and that arises between the two species of legal currency, the result of local causes and not attributable in any way to the adjustment upon the foreign gold basis. The right of the party paying the draft seems to be that of receiving the proportion which others pay, and which he has advanced upon the basis of the transaction, which was gold and not legal tenders. The fluctuations between the two species of lawful money, in the interval between adjustment and payment, ought not to be permitted to prejudice the judgment which is founded on the gold basis, itself a uniform and unchanging standard. If gold was now at twice the premium paid by the plaintiff, he would be entitled to his judgment payable in gold, and the loss would then fall on the defendant. Gold being the measure of the debt, it seems to us should be the measure of the payment also. Where all interests are measured by a common legal standard, no injustice is done to any one. The payment, therefore, should follow the nature of the liability.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Krier’s Private Road.
    1. The Act of April 21st 1846, vacating private roads by prescription, is constitutional..
    2. Roads by prescription rest upon uninterrupted adverse user for twenty-one years, in analogy to the Statute of Limitations and not on the fiction of a grant.
    3. An owner divided his land into lots and laid out a road for their use; the road was used for more than twenty-one years by an adjoining owner; all the lots afterwards vested in one person, upon whose petition the road was vacated under the Act of 1846. Held, that the adjoiner had no easement secured by grant taken from him, it was one originating in a wrongful use of another’s land.
    4. Stuber’s Road, 4 Casey 199, recognised and followed.
    January 20th 1873.
    Before Read, 0. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to the Court of' Quarter Sessions of Montgomery county: No. 114, to July Term 1872.
    On the 18th of May 1871, the following petition was presented to the Court of Quarter Sessions of Montgomery county: * * *
    “ That many years ago a private way or road one perch in • width, was reserved and laid out by the then owner of the land, for the use of certain lots into which he divided said land, which said way and lots were situated in the township of Moreland, in said county. That said way or private road was over the land now of your petitioner, Ann Krier, and along the line of her lands, and the line of land now of Robert Wamsley and James Neal, in said township of Moreland, and led from the public road leading from the Second street turnpike road to the old McDowell paper-mill, over what is now the land of your petitioner, Ann Krier, to the lots of ground which were in the rear of those fronting on said road. That the said Ann Krier has now become the owner of all of the said lots, for the use of which, said way or private road was laid out, whereby the said way or private road has merged, but that James Neal, and perhaps others who own land adjoining the land of the said Ann Krier, by reason of having used the said way or private road for twenty-one years and upwards, claim that the same exists by prescription or lapse of time, and which claim your petitioner is unable to gainsay.”
    The prayer was for a jury to view and vacate the road.
    It was signed by Ann Krier and a number of other persons.
    Viewers were appointed in accordance with the petition, who reported, August 21st 1871, that the road ought to be vacated, and on the same day the report was confirmed nisi.
    On the 13th of November, “ Exceptions by James Neal, a land owner, who owns a right over said private way,” were filed.
    The exceptions were:
    1. The Act of Assembly of April 21st 1846, under which the jury was appointed, is unconstitutional and void, as it takes away an acquired right without compensation to the owner.
    2. The vacating of said road would almost wholly deprive the exceptant from the use of a portion of his property, and without this road a large part of his land would be valueless, as he would have to expend more money in building a bridge than his land would realize.
    3. The only person to be benefited by the vacation of this road, would be Ann Krier, whose predecessor in the title owned all the land of the petitioner for the road and your exceptant, and he laid out arid gave this road for the use of all said landowners.
    On the 20th of May 1872, the exceptions were dismissed by the court (Ross, P. J.), and the report confirmed. Neal removed the record to the Supreme Court by certiorari, and assigned the dismissal of the exceptions and confirmation of the report for error.

      Q. Eunsidcer, for certiorari,
    argued that the Act of April 21st 1846, sect. 1, Pamph. L. 416, 2 Br. Purd. 1277, pl. 35, relating to vacating private roads existing by prescription, is unconstitutional. He cited Worrall v. Rhoads, 2 Wharton 427; Reimer v. Stuber, 8 Harris 459 ; Wheately v. Chrisman, 12 Harris 298 ; Reading R. R. v. City, 11 Wright 325; Sharpless v. Philadelphia, 9 Harris 167; Pittsburg v. Scott, 1 Barr 309; Lambertson v. Hogan, 2 Id. 24; Rodgers v. Smith, 6 Id. 101; McMichael v. Skilton, 1 Harris 217; Schafer v. Enue, 4 P. F. Smith 304; Alter’s Appeal, 17 Id. 341; Brown v. Hummel, 6 Barr 86; Richards v. Rote, 18 P. F. Smith 248; Pratt v. Eby, 17 Id. 396; Palairet’s Appeal, Id. 479; Baggs’s Appeal, 7 Wright 512.

      B. E. Chain, contra,
    cited Stuber’s Road, 4 Casey 199; Heck-man’s Case, 4 Harrington 580; Fletcher v. Peck, 6 Cranch 136; Dartmouth College Case, 4 Wheaton 629; Aspinwall v. Commissioners of Davies Co., 22 Howard 377.
   The judgment of the court was pronounced January 30th 1873.

Per Curiam.

This private road, one perch in width, was laid out by the then owner of the land, for the use of certain lots into which he divided said land. The said private road was over the land now of the petitioner, Ann Krier, and led from a public road over what is now the land of the said Ann Krier, to the said lots of ground, which were in the rear of those fronting on the said public road. The petitioner had become the owner of all of the said lots, for the use of which said private road was laid out, whereby the said private road had merged and had become extinguished.

James Neal’s land adjoined this private road, and although this private road was not laid out for his use, or that of the prior owners of his land, he by reason of having used the said private road for twenty-one years, and upwards, claimed that it existed by prescription, or lapse of time, which the said Ann Krier did not deny.

The viewers appointed by the court reported, that the said private road had become useless, inconvenient and burdensome, and ought therefore to be vacated, which report was confirmed by the court from which decree this appeal is taken, and it was argued here and in the court below, that so much of the first section of the Act of 21st of April 1846 (Pamph. L. 416), as authorizes the Courts of Quarter Sessions to vacate private roads existing by prescription or lapse of time ” is unconstitutional.

In Stuber’s Road, 4 Casey 199, this court held this power, thus conferred upon the Courts of Quarter Sessions, to be a constitutional and valid exercise of legislative authority.

This decision was made sixteen years ago, and, so far as we know, has been acquiesced in up to the present time, and it would require a clear conviction of its unsoundness to induce us to reverse it at this late period. It extends only to private roads existing by prescription or lapse of time, and not to private roads resting upon express grant, drawing a clear line between the two kinds of title. The latter title is founded upon contract, the former upon mere lapse of time, by an uninterrupted use of it for more than twenty-one years, by analogy to the Statute of Limitations. This is the true title to such an easement, and not the fiction of a grant which has sometimes been resorted to as a reason for such a right, gained only by prescription or by adverse user for a long period of time. We must therefore be governed by the former decision in the case before us. It is not intended in any way to affect vested rights, or to trench in any manner upon property protected by the Statute of Limitations.

James Neal has no land taken from him, nor any easement secured by grant or contract, and only loses an easement originating in a wrongful use of - another person’s land.

Proceedings affirmed.


author: Williams, J.

text:
    Piper’s Appeal.
    1. A testatrix owned a tract of land in Springfield township, Montgomery county, on which was a mill, and adjoining which was a lot in Philadelphia, which had always been used with it. She also owned, by a different title, another tract in the same township, about a mile distant, which had never had any connection with the first. She devised “ all that certain grist-mill in Springfield township, Montgomery county, and all the real estate in the county of Montgomery, and lot of land in Philadelphia now used, with the mill property * * * to my nephew, William. * * * And as to the balance or residue of my estate, I order and direct to be divided equally between my brother John and my nephew William share and share alike.” Held, 1. That the other lot did not pass to William by the specific devise. 2. That it passed by the residuary clause to John and William.
    January 20th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Montgomery county, in the distribution of the proceeds of the sheriff’s sale of the real estate of William W. Piper: No. 37, to January Term, 1872.
    The question in this case was upon the construction of the will of Lydia Piper, deceased, under which it was claimed that William W. Piper had title to the land from which the fund distributed arose.
    John Piper, in 1789, was the owner of a tract of 18 acres of land in Springfield township, Montgomery county, on which were a grist-mill and a saw-mill, and an adjoining lot of about one acre, in Philadelphia, separated only by the county line. These lots had been conveyed to him by one deed, and as one tract. This tract, composed of the two lots, by divers conveyances became vested in Lydia Piper, the testatrix, and had continued to be used as one until her death.
    In 1846, the executors of Jacob Streeper conveyed to Henry A. Piper a lot of land at or near Elourtown, also in Springfield township, Montgomery county, containing about nine acres and a half, for part of the purchase-money of which Henry A. Piper gave to Streeper’s’executors a mortgage on this lot. It was conveyed in 1849 to Susanna Piper, a sister of Lydia, subject to the mortgage.
    Susanna Piper died in 1863. By her will dated May 25th 1857, and proved December 31st 1866, she gave all her “estate and property, real, personal and mixed, * * * unto (her) sister, Lydia Piper, and to her heirs and assigns.” Lydia Piper died in the latter part of the year 1866, leaving a will dated July 24th 1858, and proved December 31st 1866.
    By this will she provided, amongst other things, as follows :—
    “ In case my sister, Susanna Piper, survive me, then my will is and I give, &c., all my estate, real, personal and mixed, * * * unto my sister Susanna Piper, and to her heirs and assigns forever; but in case my sister Susanna does not survive me, then my will is, and I do order and direct as follows, concerning all my estate which I may have at my decease, whether obtained or acquired by me before or after the date hereof, by will, gift or otherwise.”
    She then gave a number of legacies of money and chattels, and proceeded:—
    “ I give and devise all that certain grist-mill situate in Springfield township, Montgomery county, and all the real estate in the county of Montgomery, and lot of land in Philadelphia, now used with the mill property, and all the premises and appurtenances thereto belonging, unto my nephew, William W. Piper, his heirs and assigns in fee simple. And as to the balance or residue of my estate, I order and direct to be divided equally between my brother John and my nephew William W. Piper, share and share alike.”
    The Flourtown lot had never been used with the mill property, and was in no way connected with it.
    On the 3d of April 1868, a judgment was entered against William W. Piper in favor of Byron Woodward for $1591.
    To April Term 1870, of the Court of Common Pleas of Montgomery county, a levari facias was issued on the mortgage of Streeper’s executors, and the Flourtown property sold by the sheriff. The balance ($809.74) of the proceeds of sale, after deducting the Streeper mortgage and costs, was paid into court, and Charles H. Garber, Esq., was appointed auditor to make distribution.
    Besides the Streeper mortgage and the Woodward judgment, there was a claim on the fund made by John G. Johnson, Esq., a mortgage-creditor of William W. Piper.
    The auditor reported that the Flourtown land did not pass to William W. Piper, under the will of Lydia Piper, and therefore awarded $730.34, the remainder of the fund in court, after deducting costs, to John G. Piper, administrator d. b. n. c. t. a. of Lydia Piper, deceased.
    John G. Johnson, Esq., filed exceptions to the auditor’s report:1
    1. That the auditor erred in holding that the Flourtown land did not pass to William W. Piper by the will of Lydia Piper.
    2. That he erred in awarding the fund in court to the administrator, &e., of Lydia Piper.
    3. That he erred in not distributing the fund in court to the lien-creditors of William W. Piper, according to their priority.
    4. That he erred in holding that William W. Piper had no title to the Flourtown land.
    The court (Ross, P. J.) sustained the exceptions, being of opinion that the Flourtown land passed to William W. Piper by the will of Lydia Piper.

      The report was therefore recommitted to the same auditor, who awarded the whole fund to the judgment of Byron Woodward, and the court confirmed the report.
    John Gr. Piper, the administrator, appealed to the Supreme Court, and assigned the decree of confirmation for error.

      JD. H. Mulvany (with whom were A. JR. Warriner and H. JLivezey), for appellants.

      J. Gr- Johnson (with whom was J. JR. JHJunsicJcer), for appellees.
   The opinion of the court was delivered by May 17th 1873, by

Williams, J.

The question presented by this appeal is, whether the land sold by the sheriff on the levari facias in this case, the proceeds of which are in question, was devised to William W. Piper by the will of Lydia Piper? If it was, then his judgment-creditors are entitled, according to their priority of lien, to the residue of the proceeds of sale, after satisfying the mortgage upon which it was sold, and the decree of distribution must be affirmed.

At the time of her death Lydia Piper was seised of a tract of land, the larger portion of which, containing about eighteen acres, was situate in Springfield township, Montgomery county, on which there was a grist-mill; and the smaller, containing about one hundred and fifty perches, was situate in Philadelphia county, adjoining the larger, and separated from it only by the county line. Her title to the mill property was derived through intermediate deeds and devises from her father, John Piper, to whom it was conveyed on the 2d of January 1789. Through all changes of title these lots remained together, and the smaller was always used with the larger as part of the mill property. She was also the owner of a lot near Flourtown, Montgomery county, subject to a mortgage given by Henry A. Piper, the former owner, out of which the proceeds of the sheriff’s sale in this case were realized. This lot was about a mile from the mill property, but was not a part of it, and was never used or occupied in connection with it in any way. It was devised to her by her sister, Susanna, who died in 1863, by her will dated May 25th 1857. Was this lot, then, devised to William W. Piper by the will of Lydia Piper ? Her will was made July 24th 1858, and she died in December 1866. The clause of the will by which it is claimed to be devised is in these words: “ I give and devise all that certain grist-mill situate in Springfield township, Montgomery county, and all the real estate in the county of Montgomery, and lot of land in Philadelphia, now used with the mill property, and all the premises and appurtenances thereunto belonging, unto my nephew, William W. Piper, his heirs and assigns, in fee simple.” Now what was in the mind of the testatrix when she made this devise, and what did she intend to give her nephew ? Was it not the mill property situate, as we have seen, partly in Springfield township, Montgomery county, and partly in the county of Philadelphia ? And does she not describe the subject of her gift precisely as she would if she intended to give the mill property, and' no more ? She naturally thinks of the mill first, and the place where it is situated, and she describes both: “ I give and devise all that certain grist-mill situate in Springfield township, Montgomery county,” and then she thinks of the land on which the mill is erected, and which has always been used in connection with it, and she describes the land: “ and all the real estate in the county of Montgomery, and lot of land in Philadelphia now used with the mill property;” and to complete the description, showing that she intended to give the mill property in its entirety, she adds: “ and all the premises and appurtenances thereunto belonging.”

Can there be a doubt that the mill property, and the mill property alone, was in her mind as the subject of her gift, and that she describes it in the very order that it would naturally occur to her ? She certainly intended to give the entire mill property with all its appurtenances to her nephew. Why should she break off the description of her gift in order to devise another property not connected with it, and then return to the subject of her gift and complete the description? If she had intended to give the lot near Flourtown, would the devise of it have been injected into the description of the gift of the mill property ? Would it not have preceded or followed it ? If she intended to give the Flourtown lot why does she say, “ all the real estate in the county of Mongomery ?” Why not, as would be more natural, all my real estate ? And why does she say, “ all the real estate in the county of Montgomery, and lot of land in Philadelphia, now used with the mill property?” The words “now used with the mill property,” according to their grammatical construction, are as clearly descriptive of the real estate in the county of Montgomery, as they are of the lot of land in Philadelphia. They refer to their immediate antecedents, which are linked and bound together by the connective “ and,” and it is evident that they were intended to limit and qualify both. They constituted in fact but one property, and they are described as one property. The learned judge of the court below was clearly mistaken in saying that it does not appear that any of the Montgomery real estate was used with the mill property. On the contrary, it appears beyond all doubt — and the fact is confessed by the appellees — that there are eighteen acres of land in Montgomery county, on which the mill was located, and that the lot in Philadelphia, separated from it only by the county line, was always used with it, and through all changes of title had remained together. Reading the devise in the light of these admitted facts, there can he no doubt that the only subject in the mind of the testatrix, when she made the gift, was the mill property as it then was and always had been, and that she intended to give it in its entirety to her nephew, and did not intend to include in the gift any real estate not connected with it.

But if the Flourtown lot did not pass by the devise in question, it does not follow that it was not disposed of by the will of the testatrix. It is clear that it was devised by the residuary clause, which immediately follows, in these words; “ and as to the balance or residue of my estate, I order and direct to be divided equally between my brother John and my nephew William W. Piper, share and share alike.” As there is no direction in the will to sell and convert the testatrix’s real estate into money, there can be no doubt that the Flourtown lot passed to the residuary devisees as real estate, subject to the mortgage given by the former owner; and if so, the judgments against William W. Piper were liens on his undivided half of the lot, and entitled to a moiety of the proceeds of sale, after satisfying the mortgage on which it was sold; and the other moiety of the proceeds of sale belong to John Piper, the residuary devisee of the undivided half of the lot, if he has not parted with his title and there are no judgments against him which are liens on the fund. In no aspect of the case is the appellant, as administrator de bonis non, &c., of the testatrix, entitled to any portion of the fund for distribution. The title to the lot out of which it arose vested in the residuary devisees, immediately on the death of the testatrix, and in distributing the fund it must be treated as their estate.

The appeal must therefore be dismissed, and the record remitted to the court below, with a recommendation to open the decree of distribution, upon the application of John Piper, and distribute the fund in conformity with the rights of the parties.

Appeal dismissed at the costs of the appellant, and the record remitted to the court below, with a recommendation to open the decree of distribution as suggested in the opinion.


author: Merger, J.

text:
    Baker versus The Chester Gas Co.
    1. Oornog owning land encumbered it by a judgment, laid it out in lots and streets and sold to Baker one lot described as bounded on Evans street, one of those laid out. The remaining lots were sold under a prior mortgage; some described as on Evans street were sold to Campbell; some also described as on Evans street were sol§. to Baker; Evans street as a lot and other lots, described as on Evans street, were sold by the sheriff to Hannum. Campbell conveyed to defendants, describing Evans street as a boundary; IIannum’s title to Evans street became vested in the defendants ; in all the sales by sheriff or individuals, Evans street was recognised. Held, that the description was in the line of defendants’ title and it showing that Bvans street had been dedicated to public use they could not close it.
    2. The general rule is, that upon a sheriff’s sale different lots should be sold separately; notwithstanding they are covered by a common encumbrance.
    3. By the sheriff’s sale of the lots as bounded on Evans street the purchaser obtained title to the middle of Evans street.
    4. Cox v. Freedley, 9 Casey 124; Grier v. Sampson, 3 Casey 183; Paul v. Carver, 2 Casey 223, followed.
    January 21st 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Delaware county: No. 176, to January Term 1873.
    This ivas an amicable action for obstructing a street; Perciphor Baker was plaintiff and The Chester Gras Company were the defendants. The following facts appeared by a case stated filed in the cause.
    On the 28th of June 1854, Thomas Maddock conveyed to Ferdinand Cornog and Cadwallader Evans, a tract of 3f acres of land in Chester, and at the same time the purchasers gave to their grantor a mortgage, which was duly recorded, for part of the purchase-money.
    On the 16th of September 1854, a judgment for $2000 was recovered in Court of Common Pleas of Delaware county, by Thomas Steel against Cornog & Evans and R. E. Hannum (their surety).
    Cornog and Evans divided the tract into 50 building lots and laid out Porter, Crosby and Evans streets through it: they also made a plot of the division and of the streets, it was uncertain whether the plot was made before Steel’s judgment was entered ; but there were then no marks on the ground to designate the streets or lots.
    On the 25th of October 1854, Cornog & Evans conveyed to Baker, the plaintiff, a lot 110 feet square on the east side of Welsh street and bounded on the south by Evans street, one of the new streets laid out by them; this deed was recorded October 25th 1854, Maddock having released this lot from the lien of his mortgage.
    A levari facias on the mortgage was issued to November Term 1855. Before the sheriff’s sale under it, the streets and lots laid out by Cornog & Evans were marked on the ground. The description of the property in the levari facias was “ All those 49 several lots or pieces of land situate on the south-eastwardly side of James Street, and on the north-westwardly side of Welch street * * * bounded by said streets and lands of Perciphor Baker, Greorge Baker,” and others; under this levari fifteen of the lots “bounded on the north by Evans street,” were sold to James Campbell; and ten of the lots, “situate on the north-westwardly side of a street lately surveyed and called Evans street; each of said ten lots having a front of 20 feet; on said Evans street, 110 feet” were sold to Baker, the plaintiff, who continued to hold them.
    Under a venditioni to August Term 1856, on Steel’s judgment, amongst other lots, the first-mentioned lot, which had been sold to Baker, was sold by the sheriff to R. E. Hannum, one of the defendants in the judgment. The lot was described in the writ as “ bounded by land late of Cornog & Evans, by Welch street, by Evans street containing,” &c. Under an alias venditioni to November Term 1857, on the same judgment, the sheriff sold the three streets laid out -by Cornog & Evans. No. 2 was described as “ A lot of land called Evans street, situate on the north-east side of Welch street and measuring thereon 45 feet, and extending the same width from said street 313 feet to the south side of the above-described lot, bounded on the west by Welch street, north by lots of R. E. Hannum and P. Baker, east by the aforesaid described lot, and south by the Gas Company. The lot mentioned in the foregoing description as P. Baker’s, is the “ ten lots” sold to him by the sheriff, as before stated.
    On the 1st of May 1856, James Campbell conveyed to the Gas Company (defendants), the land purchased by him at sheriff’s sale as before mentioned; it was described in the deed to the defendants as “ bounded on the north-west by Evans street and containing along said Evans street 312 feet.”
    On the 5th of April 1860, Hannum conveyed to the defendants “a tract of land known as Crosby street,” one point of the boundary as stated in the deed, “being the south-east corner of a lot belonging to the said Hannum known as Evans street.”
    On the 11th of March 1864, Hannum conveyed to Thomas Hollins part of the lot purchased by him at sheriff’s sale and part of Evans street. The description in the deed is: “ Lot of land on east side of Welch street, Í54 feet south of south side of James street, a corner of a lot of John Wilde, thence east by said Wilde’s lot, and parallel with James street, 110 feet, to the line of P. Baker’s lot, and thence at right angles, between lands of Baker and Hannum, 120 feet, to land of Gas Company, and thence at right angles 110 feet to Welch street, and thence 121 feet to the place of beginning.” Being part of the premises No. 2, in sheriff’s deed book, &c., and also part of the tract known as Evans street, in sheriff’s deed book, &c.
    On the 13th of July 1870, Thomas Hollins conveyed the last above described premises to the defendants, the said Gas Company. They hold the premises, and claim to have a fee simple title thereto. Evans street is closed up by a fence or gate at each end of the 110 feet, maintained by the defendant; the plaintiff is not allowed passage thereover, and has no other means of access to his lot.
    It was agreed that “ If the court shall be of opinion that under the law applicable to the foregoing facts, the plaintiff is entitled to recover, then judgment to be entered in favor of the plaintiff for six cents. If the court shall be of the contrary opinion, then judgment to be entered in favor of the defendants.”
    The court (Butler, P. J.) entered judgment on the case stated for the defendants.
    The plaintiff removed the record to the Supreme Court, and assigned for error the entering judgment for the defendants.

      J. B. Hmkson, for plaintiff in error.
    The sheriff was bound to sell according to the divisions and streets marked on the ground although one encumbrance covered the whole land: Ryerson v. Nicholson, 2 Yeates 516 ; Rowley v. Brown, 1 Binney 61; Vastine v. Fury, 2 S. & R. 433 ; Donaldson v. Bank of Danville, 8 Harris 247; Tate v. Carberry, 1 Phila. R. 133.

      W. Ward, for defendants in error.
   The opinion of the court was delivered, February 24th 1873, by

Merger, J.

The plaintiff assigns for error the entry of judgment in favor of the defendant upon the case stated.

This depends upon the validity of the right claimed by the defendant to close up a portion of Evans street, in the city of Chester.

The land covered by this street is part of a larger lot bounded westerly by Welch street, which was purchased June 28th 1854, by Cornog & Evans. Upon the same day they executed a mortgage to the vendor to secure the payment of a part of the purchase-money. They purchased the land with a view of dividing it and selling it for building lots. They laid out three streets, to wit, Evans, Crosby and Porter, and fifty lots, and made a plot or draft thereof. October 23d 1854, the plaintiff purchased of them by deed one of the said lots, having a front of 110 feet on Evans street, bounded west by Welch street, and south by Evans street. Upon the same day the mortgagee released this lot, as described in the deed, from the judgment of the mortgage. Judgment having been subsequently entered upon the mortgage, a levari facias issued thereon to November Term 1855, and the remaining lots were sold by the sheriff. In the writ they were described as “ all those 49 several lots.” Fifteen of said lots, “bounded north by Evans street,” and extending along the same 312 feet, were purchased by Campbell; ten of the lots on the northerly side of Evans street, east of and adjoining the plaintiff’s lot aforesaid, with a frontage of 20 feet each on Evans street, were purchased by plaintiff. Prior to this sale, the streets and lots had been designated by marks upon the ground. May 1st 1856, Campbell conveyed his said 15 lots to the defendants bounding them by “ Evans street.”

It appears, however, that upon the 16th of September 1854, one Steel obtained a judgment against said Cornog & Evans, and one Hannum. Whether the plot or draft of the lots and streets had then been made is uncertain.

The proceeds of the sale upon the mortgage were insufficient to reach this judgment. A venditioni exponas issued thereon to August Term 1856, by virtue of which the sheriff sold to said Hannum, the lot situate at the north-east corner of Welch and Evans streets, which had been conveyed to plaintiff in October 1854, as aforesaid; and to one George Baker, another lot, part of said mortgaged premises, bounded by Crosby street. Under an alias venditioni exponas, issued on the same judgment to November Term 1857, said Hannum purchased the land covered by each, Evans, Crosby and Porter streets, the former being described as “a lot of land called Evans street,” measuring 45 by 313 feet, and bounding it on the north and on the south by lots previously sold at sheriff’s sale as aforesaid.

By virtue of divers mesne conveyances all the title which Hannum acquired by his purchase of Evans street, for the distance of 110 feet easterly from Welch street, became vested in said defendant. They thereupon closed up the street, putting a fence or gate at each end of the 110 feet, thereby closing the plaintiff’s passage through the street, and he has no other way of access to his said ten remaining lots.

Thus it appears, at each sale, both public and private, made prior to the sale of Evans street, it was distinctly recognised as a street. The lots lying north and south of it were bounded by it. The sale upon the judgment united with the sales upon the mortgage in proclaiming it to be. a street. Every lot which the defendants own, when sold at sheriff’s sale, was bounded upon it. This description is directly in th'e line of their title. Each deed - showed it to be a street dedicated to the public. The fair presumption is that a larger sum was realized from the sale of the property in lots than if it had been sold in one body.

Upon a sheriff’s sale of land the general rule prescribed by public utility is that different lots of ground should he sold separately. The reason is that the competition is thereby much increased ; many persons might desire to purchase one, who would not, or could not purchase several. The primary object of selling at sheriff’s sale is not to transfer the title; but to collect the money. A common encumbrance creates no reason for selling the lots together : 1 Troubat & Haly, part 2d, 1001. Upon an application to the court whence the execution issued, a sale will be ordered by such subdivisions as will be most likely to produce the largest sum. In this case, without an order of court, the sales were made, it is fair to presume, in the manner the court would have ordered, if application had been made thereto. The lots having been thus sold without objection from defendants in the executions, or from any of the lien-creditors, and purchasers having invested their money therein, the titles thereby acquired must now be held to be of like force and effect as if the salqs had been made in pursuance of a prior order of court. Great injustice would be done to the purchasers of lots bounded by Evans street to hold now that their titles extend no further than the edge of the street, and that a subsequent sale of the ground covered by the street, excluded them therefrom. Conceding then, what the case stated does not admit, that the lien of the judgment attached prior to the making of the plot dedicating the street to public use, yet we think the learned judge erred in holding that the sale of the lots bounded by Evans street did not divest the lien of the judgment upon the land covered by the street. By those sales the title to the whole land passed and nothing remained to be sold. The law is well settled, that upon a sale of a lot bounded by a street, the title passes to the centre of the street: Paul v. Carver, 12 Harris 207; Idem, 2 Casey 223; Grier v. Sampson, 3 Casey 183. Even if the lot be bounded by the side of the street, the grantee takes title to the centre thereof, if the street is not expressly or by clear implication reserved: Cox v. Freedley, 9 Casey 124.

We are of the opinion that the plaintiff was entitled to recover.

Judgment reversed, and judgment is entered in favor of the plaintiff upon the case stated.


author: Mercur, J.

text:
    The Philadelphia and Reading Railroad Co. versus Yerger et al.

    1. A party is not answerable in damages for the reasonable exercise of a right, unless upon proof of negligence, unskilfulness or malice.
    2. Buildings were burned by sparks, from a locomotive engine used in the ordinary way on a railroad; in a suit against the company by the owner, Held, there being no evidence to justify an inference of negligence, that the jury should have been instructed to find for the defendants.
    3. Howard Express Co. v. Wile, 14 P. F. Smith 201, followed.
    January 22d 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 335, of January Term 1872.
    This was an action on the case brought February 25th 1870, by Joseph Yeager and others against The Philadelphia and Reading Railroad Company, for negligence, in the burning by one of their locomotive engines of a block of four small tenements in Potts-town, about sixty feet from the line of the railroad. The fire occurred on the 4th of July 1868, about 3.45 o’clock in the afternoon. The case was tried August 16th 1871, before Ross, P. J.

      Henry M. Pile, a witness for plaintiff, testified that on the day mentioned, a train came down the railroad from Reading and stopped at a water-station about thirtyffive yards below the houses; after the engine had taken in water the train backed up the road again; the engine puffed very hard, and attracted the attention of witness, who looked up and saw the roof of the houses on fire; the train was a long one; the puffing was as common until it backed up.
    Joel Kulp testified that another train had passed not very long before; he did not hear it puff at the water-plug, the engine blew off as having too much steam; saw Pile run to the fire, ran after him and then saw the roof on fire ; he saw no sparks.
    John Barlow testified somewhat similarly as to the fire. He testified also that the engine made a great noise whistling, “trying to go backward and forward; she seemed to have some trouble the way she worked; went like engines do when they are heavily loaded.”
    Other witnesses testified that the engine made an extraordinary noise, as if there was a heavy load which there was difficulty in moving; that the wheels went around without moving; that the fire was discovered shortly after this engine, “ The Lancaster,” passed by with its train.
    Jonas Smith testified:—
    “ I was sitting in my room at Pottstown, and heard a great noise at water-station at railroad. I thought if that fellow goes on in that way, he will set something afire. Noise seemed as if he was hauling backward and forward, and shortly after the noise I heard them halloo fire. My office is four hundred yards from the water-station, a little over three hundred feet from the railroad. * * * I was frightened, I thought it would set something on fire.”
    One witness testified that he saw the engine throwing out sparks across the turnpike, which was beyond the burned buildings.
    The plaintiffs having rested, the defendants moved for a non-suit ; the court refused the motion, and sealed a bill of exceptions.
    The defendants gave evidence for the purpose of showing that the fire originated inside of the house in the garret.
    William Brown, engineer of the “ Lancaster,” testified that he had á train of eighty or eighty-five coal cars on the day of the fire; a full train is one hundred and twenty-five cars; his sparkarrester was in good condition; it had been examined the day before ; the engine also was in good condition; he shut off the steam at the “ Orchard,” about a mile above Pottstown ; the momentum carried the train three or four cars below the water-plug; he put on a fresh fire at the “ Orchard,” and in backing to the plug he did not throw fire by reversing, because it was a green fire; exhaust steam is used to fan the fire; he used some exhaust steam, but not much.

      Kelly, the fireman of the “Lancaster,” testified that the steam was shut off at the “ Orchard,” and not put on until the train was backed up to the water-station; had put on about a ton of coal at Pottstown, and a ton and a half at Reading; when green coal goes on the sparks can’t fly; takes four miles to get red with a heavy train.
    Other witnesses testified in the same manner.
    Christian Snyder was employed by the defendants at Richmond to examine spark-arresters; he examined the “Lancaster” on the 6th of July; it was all in good order; the spark-catcher was a little worn, but just as good as new; if the spark-arrester be good it can throw no large sparks.
    Joseph Dill testified that his duty was to examine sparkarresters at Palo Alto; if the “Lancaster ” was there on the 2d of July, she was examined; “if there had been any defect, she would have been removed; if we found her worn the least bit, it would have been removed.”
    John F. Wooten testified that he had been on the railroad for twenty-five, and had had charge of the machinery of the railroad for five years; he had made spark-arresters one of his studies and considered himself an expert; the “ Lancaster ” was built in 1864, it had been in use altogether in the coal trade between Palo Alto and Richmond; its spark-arrester is an efficient one; “it arrests sparks as far as it is possible to do so; there are no better with reference to grades, the business of the road, &c.; the arrester on the ‘ Lancaster ’ is the best we have reached for the uses of the road; the ‘Lancaster’ is one of our most improved engines.” There are men employed to examine the arresters at certain stations every morning.
    There was other evidence that the spark-arresters on the defendants’ engines were of the most improved kind.
    There was evidence that other engines which had passed about the time of the fire, were in good condition.
    The court charged:—
    “ The counsel for the defendant has requested the court to charge that there is no testimony adduced before you, that would justify you in concluding that the defendant was guilty of any negligence. This, however, we cannot do, for we think the question as to the existence of negligence, under the facts in this case, must be submitted to you. We have carefully defined the rules by which you must be governed in your investigations; and you will take the entire testimony, and determine whether the defendant by his exclusive negligence, caused this fire.”
    The verdict was for the plaintiffs for $2125.18.
    The defendants took a writ of error and assigned for error:—
    1, 2. The charge of the court.
    6. The refusal of the court to order a nonsuit.

      J. Boyd,, for plaintiffs in error.
    The burden of proof of negliwas on the plaintiffs: McCully v. Clarke, 4 Wright 399. There was no evidence of. negligence and the jury should have been so instructed: Howard Express Co. v. Wile, 14 P. F. Smith 201.

      B. M. Boyer and B. H. Mulvany, for defendants in error.
   The opinion of the court was delivered, May 17th 1873, by

Mercur, J.

When the plaintiffs below rested their case the defendants moved for a nonsuit. This was refused by the court; that refusal is now assigned for error.

If the defendant had declined to give any testimony we would consider the sufficiency of the evidence then given. As, however, much evidence was afterwards introduced, the whole should be considered together.

The action was brought by the defendants in error to recover damages for the burning of a block of buildings. The fire was alleged to have been caused by sparks from the stack of the railway company’s locomotive “ Lancaster.” The buildings were situated within a few feet of the railroad embankment, and near the water-stand, where the locomotive was supplied with water.

The evidence as to whether the sparks caused the fire, was properly submitted to the jury, who found they did.

The defendants requested the court to charge the jury, that there was no testimony which would justify them in finding the defendant guilty of any negligence. This the court refused to do, but left it to them to determine from the whole testimony, whether the defendant, by his exclusive negligence, caused the fire.

For this refusal and charge the principal errors are assigned.

Negligence is the gist of this action. To recover, the plaintiff must have established the defendant’s exclusive negligence.

Was there such evidence of this fact, that it should have been submitted to the jury ?

It was formerly held, that where there was a scintilla of evidence of a material fact, the question should be submitted to the jury.

This doctrine, however, has been overruled, both in England and by this court.

In Wheelan v. Hardisty, 8 El. & Bl. 262, it is said, that an end has been put to what has been treated as the rule, that a case must go to the jury, if there was what has been termed a scintilla of evidence. The question is, whether the proof is such, that the jury could reasonably come to the conclusion that the issue was proved.

Toomey v. Railway Co., 3 C. B. N. S. 146, was a case for negligence. It was there held, that it was not enough to say there was some evidence! A scintilla of evidence, or a mere surmise, that there may have been negligence on the part of the defendant, clearly would not justify the judge in leaving the case to the jury. There must be evidence upon which they might reasonably and properly conclude that there was negligence.

In Ryder v. Wombwell, 4 Law Rep. Ex. 32, it was said by Willes, J., that it is now settled that the question for the judge is not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit, if the onus is on the plaintiff, or direct a verdict for the plaintiff if the onus is on the defendant.

The case of Ryder v. Wombwell is cited with approbation by the court, in Howard Express Co. v. Wile, 14 P. F. Smith 201. There the rule is more distinctly and clearly stated by Justice Sharswood, to be, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof; but in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Whenever this is so, they have the right, and it is their duty, to withhold it from the jury.

The uneontradicted evidence in this case, showed that the sparkarrester was perfect in mechanical construction, and in efficient condition at the time of the fire; the learned judge, upon disposing of the rule for a new trial, states these facts to have been admitted. He ivould have set aside the verdict upon the ground that it was against the weight of the evidence, had he not been constrained by the judgment of his colleagues, his associates not learned in the law.

Sitting as a court of last resort, we cannot reverse merely because we may think the verdict was against the weight of evidence. If any evidence was given, which, alone and uneontradicted, would justify an inference that the injury was caused by the exclusive negligence of the defendant below, we will not disturb it. If, upon the other hand, there was no such evidence, then the court erred in not affirming the point submitted by the defendant.

The rule is well settled, that a party is not answerable in damages for the reasonable exercise of a right, unless upon proof of negligence, unskilfulness or malice. In this case there is no allegation of malice. The proof is clear, that there was no negligence or unskilfulness in the construction of the locomotive or spark-arrester.

John E. Wootten testified that he was in charge of the machinery of the road. Was a machinist; had paid considerable attention to spark-arresters; had made that one of his studies; considered himself an expert upon that subject; had 300 engines under his charge, having spark-arresters; knew this locomotive and this spark-arrester ; considered it an efficient spark-arrester. It arrests the sparks as far as it is possible to do so, considering the purposes of the engine and other considerations required from spark-arresters. No better with reference to grades, the business of the road, and the necessary-duties the engine has to perform, after eight or nine years’ experiimenting; that on the Lancaster is the best they have reached for the uses of the road, the Lancaster is one of their most improved engines; the size of the fire-box is increased in it, which results in slowness of combustion, economy of fuel, and diminishes the emission of sparks. No coal-burning engines, with smaller spaces than the Lancaster, nothing larger than an eighth of an inch, would pass through.

William Lorenz testified that he had been for twenty years a civil engineer; is now the chief engineer of the company; was formerly engineer in locomotive department; is familiar with spark-arresters on the road; from knowledge thus derived, and interest taken therein, considers himself an expert; knows the spark-arresters used on the coal-cars at the time of the fire, and knows of no better kind.

It thus appears that the greatest mechanical skill, and the most progressive mechanical science, have united in creating the most perfect machinery adapted to this purpose.

The proof is equally clear that it was in good condition.

Wm. Brown testified that he was the engineer on the Lancaster at the time of the fire. The spark-arrester was in good condition, nothing the matter with it; the day before it had been examined; he had examined it the day after. Re-examined it to see if it had caused the fire; found it all right. Three other witnesses, whose duties were to examine the spark-arresters daily, testify to the good order and condition of this one. It was not quite new, but just as good as new.

It was claimed, however, that an undue amount of coal had been put in the fire-box of the locomotive, and that the moving backwards and forwards while at the water-station, was negligence. A careful examination of the whole evidence fails to show us any negligence in either of these acts. It is therefore just that this company should have the benefit of the principle, that no person, whether natural or artificial, is answerable in damages for the reasonable exercise of a right, accompanied with a cautious regard to the rights of others: Railroad Co. v. Yeiser, 8 Barr 366.

To recover, the plaintiff must have established the negligence of the defendant. Yet he has been allowed to recover in the face of the most overwhelming proof that there was no negligence. The learned judge therefore erred in not charging the jury as requested, and the first assignment of error is sustained.

Judgment reversed, and a venire facias de novo awarded.


text:
    Springfield Road.
    1. A petition was for a road ; “ To begin in the Germantown turnpike at a point where the road from the Flourtown road intersects the said turnpike ; ” &e., the jury reported a road, “ Beginning at a point in the middle of the Germantown turnpike where the same is intersected by the middle line of the ¡road leading from the Flourtown road,” &c. Held, that there was no variance between the beginning in the petition and in the report.
    2. Reasonable certainty only is required in defining the termini and that the road as laid out shall begin and end substantially at the points designated in the petition. _
    _ 3. The point of intersection of two roads is the point where their middle lines intersect.
    January 22d 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Montgomery county: No. 110, of January Term 1873. In the matter of a public road in Springfield township.
    On the 26th of August 1871, a petition was presented to the court, setting forth the “want of a public road in the township of Springfield, to begin in the Germantown and Perkiomen turnpike road, at a point where the public road leading from the Flourtown and Norristown road intersects the said turnpike road, and to end in the Wissahickon turnpike road, at a point between the corner of lands of Samuel W. Paul and Peter Streeper, and the angle or curve in the said last-named road, opposite the dwelling-house of the said Peter Streeper, in said township,” and praying the court to appoint suitable persons to view and lay out the same.
    Viewers were appointed, who, November 17th 1871, reported, laying out a road; “Beginning at a point in the middle of the Germantown and Perkiomen turnpike road, where the same is intersected by the middle line of the road leading from the Flour-town and Norristown road, thence, * * * to the middle of the Wissahickon turnpike road, at a point between the corner of lands of said Peter Streeper and Samuel W. Paul, and the angle or curve in said Wissahickon turnpike road, opposite the house of the said Peter Streeper * * * a plot or draft whereof is hereunto annexed.”
    November 17th 1871. The report was confirmed nisi, and the road ordered to be opened thirty-three feet in width.
    February 26th 1872. Exceptions of Peter Streeper were filed. The first was:—
    The points of beginning and ending in the petition, do not correspond with the beginning and ending in the report.
    The court set aside the report, Ross, P. J., in his opinion saying: * * *
    “ There is, unquestionably, a variance in the point of beginning. The petition designates as the place of beginning, “ on the German town and Perkiomen turnpike road, at a point where it is intersected by a public road: but the viewers have commenced in the middle of the pike, and not at the point of intersection, for the centre of the turnpike could not be that point, as appears from the draft — for the road leading to the Flourtown road runs to and does not cross the Germantown and Perkiomen turnpike. The point of intersection, therefore, as shown by the record, is the outside, and not the middle line of the turnpike road. It is said that it appears of record; that the road leading to the Flourtown road was laid out to the middle of the Germantown and Perkiomen turnpike; but it does not appear upon the record, which is a sufficient answer both to the argument and to the fact upon which it is based. This road is t'o be identified by its initial points, as designated by these proceedings, upon which alone the opening order can be framed.
    “The error of the viewers has been in failing to recognise where the point of intersection is. Upon all plane surfaces, the point of intersection is where the intersecting line touches and divides the intersected surface, and not the extreme point of penetration. The point of intersection of the roads was at the right angles which their converging lines formed at the point of meeting. This, as a material variance, being one-half the width of the turnpike, and constituting a point of beginning other than that designated by the order, and therefore beyond the power of the viewers; it is fatal to the report.
    “ The first exception, as to the point of beginning, is sustained.”
    Charles Williams,, a petitioner for the road, removed the record to the Supreme Court by certiorari, and assigned for error the order of the court setting aside the report.
    ZZ. IAvezey and B. M. Boyer, for certiorari.

      Q. Hunsioker, contó.
   The opinion of the court was delivered, May 17th 1873, by

Williams, J.

The petition in this case defines with reasonable certainty the points of beginning arid ending of the proposed road; and in laying it out the viewers complied substantially, if not literally, with the petition and order of view. The petition prays for a road “ to begin in the Germantown and Perkiomen turnpike road, at a point where the public road leading from the Flourtown and Norristown road intersects the said turnpike road, and to end in the Wissahickon road, at a point between the corner of lands of Samuel W. Paul and Peter Streeper, and the angle or curve in the said last-named road, opposite the dwelling-house of the said Peter Streeper.” The viewers laid out a road “ beginning at a point in the middle of the Germantown and Perkiomen turnpike road, where the same is intersected by the middle line of the road leading from the Flourtown and Norristown road,” and ending at the point designated in the petition. There is no substantial variance in the point of beginning as described in the petition and the report of the viewers. Even if the point of intersection is, as the learned judge of the Court of Quarter Sessions suggested, the outside and not the middle line of the turnpike road, the variance is immaterial — De minimis non curat lex. All that the law requires is reasonable certainty in defining the points where the road shall begin and end, and that the road as laid out by the viewers shall begin and end substantially at the points designated in' the petition. But, if mathematical exactness were required, it is by no means certain that there is any variance in the point of beginning. The viewers in laying out a road do not fix its width; nor run and mark the outside lines of the road on the ground. They run and mark but one line — the centre line of the road. The point of intersection of two roads, as laid out and marked on the ground by the viewers, is then the point where the middle or centre lines of the two roads intersect — the very point at which the viewers in this case commenced. But if this be not so, it is wholly immaterial whether they commenced at the intersection of the outside or the middle line of the turnpike and public road.

Order setting aside the report for informality is reversed; the report is reinstated, and a procedendo awarded.