author: Mr. Justice Gordon

text:
    Borough of Norristown versus Fitzpatrick.
    1. N. was injured, while crossing a street in a borough, by the firing of a cannon by a crowd of citizens. In an action against the borough to recover damages for the injury, the jury, in a special verdict, found that the cannon had been fired at short intervals, for several hours, at various points in the borough; that it was not fired at any public or authorized celebration ; that a policeman was standing by and made no effort to stop the firing. A special Act of Assembly authorized the borough to appoint policemen, remove nuisances, &c.: Held, that the borough was not liable.
    2. Admitting that such an assemblage was a nuisance, and that of the worst kind, it is one that a municipal corporation cannot abate by the use of ordinary appliances, such as suffice for the removal of natural or material obstructions in or near a highway, and resort therefor must be had to the police, but for the doings or misdoings of those who compose this force, the municipality is not liable.
    3. Cities, borough and townships have been held responsible for neglect in the maintenance of highways, sewers, wharves, &c., because they belong to their immediate jurisdiction, and over them they alone have jurisdiction. But the conservation of the peace is a public duty put by the Commonwealth into the hands of various public officers.
    4. Police officers cannot be regarded as servants or agents of the city or borough. Their duties are of a public nature and their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a public function, but this does not render them liable for their unlawful or negligent acts.

      March 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1879, No. 10.
    Case by Alice Fitzpatrick by her next friend, J. Fitzpatrick, against the burgess and town council of the borough of Norris-town, to recover damages for injuries alleged to have been received through the negligence of the defendants.
    At the trial, under the instruction of the court, the jury found the following special verdict: “ That the plaintiff was injured on the night of the 31st December 1875, in the borough of Norris-town, about 9 P. M., while lawfully crossing Main or Egypt street, one of the most public thoroughfares in the said borough, by the discharge of a small swivel cannon loaded with powder and wad, and fired on the said street by a body of citizens, who were then, to the number of at least twenty-five, standing either on the pavement of or on the said street. That the w'adding of the cannon struck the plaintiff, a young girl between the years of fifteen and sixteen, scarring her face, destroying her left eye, and mutilating the eyelids and a portion of the eyebrow. That on the same evening, for about two hours preceding this accident, the same citizens fired the gun aforesaid repeatedly in the streets of the said borough at the most public places throughout the corporate limits, and first having obtained the permission of those before whose houses they fired before firing in every case. That some of the citizens who were thus engaged were intoxicated in various degrees, but were not boisterous or disorderly in any other respect except in firing the cannon at the places and times aforesaid, and that the cannon was generally’fired with the muzzle so depressed that the wad was discharged into the ground. That the borough of Norristown within the corporate limits of which this cannon was thus fired, is a borough duly incorporated, and we make the act incorporating it and the various supplements thereto, together with the ordinance offered and received, a part of our finding. That when the cannon was fired, at the time the injury was inflicted, a duly appointed and qualified police officer of the said borough was present within sight and hearing, and that he neither aided nor assisted in the firing; and that he made no effort to prevent the firing thereof. That the citizens who were firing were acting independently, and not in pursuance of or in co-operation with any municipal celebration. That the plaintiff has sustained damages to the amount of $3318.74.”
    The Act of February 8th 1847, Pamph. L. 72, provided for the appointment by the borough of police officers, and prescribed the ordinary duties of such officers. An ordinance of the borough-also specially forbade the lighting or throwing in the streets of crackers or any article made of gunpowder.

      The court entered judgment for the plaintiff on the special verdict, when defendants took this writ and assigned this action for erro'r.

      B. M. Boyer and George N. Corson, for plaintiffs in error.
    Municipal corporations are sometimes liable for damages sustained by private citizens, but to make the corporation liable the act must have been done by authority and direction of the governing body : 2 Dillon on Corp., sect. 770; Fox v. Northern Liberties, 3 W. & S. 103; Leonard v. New Bedford, 16 Gray (Mass.) 297; Wheeler v. Cincinnati, 19 Ohio 19; Grant v. Erie, 19 P. F. Smith 420; Torbush v. Norwich, 38 Conn. 225; Jewett v. New Haven, Id. 368; Richmond v. Long’s Exr’s, 17 Gratt. 375; Alcorn v. Philadelphia, 8 Wright 348; White v. Charleston, 2 Hill (S. C.) 571; Fisher v. Boston, 104 Mass. 87; Mitchell v. Rockland, 52 Me. 118.
    Municipal corporations have, in some cases, been held liable for injuries resulting from the neglect of certain of their officers in certain matters specially relating to the local duties of the corporation, as, for example, the repair of streets, bridges, culverts, wharves and sewers, in regard to which such officers act as the agents and servants of the corporation; but boroughs and cities have never been held liable for unlawful acts of their police officers done ultra vires and without special instruction, he they ever so aggressive against individuals. Much less can such liability exist for a mere neglect of such officers in the faithful and efficient enforcement of the public law. In their capacity as police officers, they represent the general laws of the Commonwealth. They represent the state and the public at large more- than the corporation by which, under the laws of the state, they may have been appointed.
    Police officers appointed by a municipality are not its agents or servants so as to render it responsible for their unlawful or negligent acts in the discharge of their duties: 2 Dillon on Municipal Corporations, sect. 778, and cases there cited; Elliott v. City of Philadelphia, 25 P. F. Smith 347; Buttrick v. Lowell, 1 Allen (Mass.) 172; Kimball v. Boston, Id. 417.

      G. R. Fox and L. M. Childs, for defendant in error.
    The removal of the nuisance from the street was a duty enjoined by statute, and the corporation is liable for an injury occasioned by its neglect to remove it: Pittsburgh v. Grier, 10 Harris 54; Erie v. Schwingle, Id. 384; Dean v. Township, 5 W. & S. 545; Norristown v. Moyer, 17 P. F. Smith 355; Wartman v. Philadelphia, 9 Casey 202; Chicago v. Robbins, 2 Black (U. S.) 418; Nebraska v. Campbell, Id. 590; Weightman v. Washington, 1 Black 39; Mc-Laughlin v. Corry, 27 P. F. Smith 109; Cooley’s Constitutional Limitations 248.
    May 3d 1880.
    The crowd of men collected upon the public streets and engaged in firing the cannon was a nuisance. Whatever obstructs or interferes with the free and safe use of a public work is a nuisance : Norristown v. Moyer, 17 P. F. Smith 355; Lancaster Turnpike Co. v. Rogers, 2 Barr 114; Pittsburgh v. Grier, 10 Harris 54; Erie v. Schwingle, Id. 384; Dean v. Township, 5 W. & S. 545; Commonwealth v. Passmore, 1 S. & R. 219; Rung v. Shoneberger, 2 Watts 23; Mann v. Wieand, 4 W. N. C. 6.
    The fact that the proximate cause of injury was the wrongful act of third parties does not relieve the corporation from liability, if its agent’s negligence contributed thereto : Norristown v. Moyer, supra; Pittsburgh v. Grier, supra; Lowell v. Short, 4 Cush. 275; Crusick v. Norwich, 40 Conn. 375; Powell v. Williams, 29 Iowa 210; Chicago v. Robins, 2 Black (U. S.) 418.
    The firing of the cannon was at short intervals, at different points, for several hours, and must have been known to the borough officials. This was unquestionably a nuisance, and it was the duty of the borough to remove it: Norristown v. Moyer, supra. The injury was the result of a nuisance which the borough permitted. A failure to hold the corporation liable would lead to an absolute immunity from liability. If there is no remedy against her, there is no remedy anywhere.
   Mr. Justice Gordon

delivered the opinion of the court

The injury to the plaintiff, complained of in this suit, was occasioned by the firing of a cannon, in a public street of Norristown, by an assemblage of citizens, on the evening of the 31st of December 1875. The business in which they were thus employed was undoubtedly of an unlawful character, and each and every person therein engaged was personally liable for any damage resulting therefrom. But that the municipality was so liable is another and a very different question. Municipalities are not conservators of the public peace; they may or may not have the power to appoint police officers, but if they have such power, and do make such appointments, the powers of the officers so appointed are derived not from municipal ordinances, but from the common law and Acts of Assembly. Hence, it was held in Elliott v. The City, 25 P. F. Smith 347, that the city was not answerable for. the negligent act of a police officer. A like doctrine, that police officers appointed by a city are not its agents or servants, and that it is not, therefore, responsible for their unlawful acts when in discharge of their duty, may be found in 2 Dill. Mun. Corp., sect. 773. The law upon this subject has been well stated by Chief Justice Bigelow, in the case of Buttrick v. The City of Lowell, 1 Allen 172. “Police officers,” says the learned chief justice, “can in no sense be regarded as servants or agents of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with -which police officers and constables are entrusted, are derived from the law, and not from the city or town under which they hold their appointment.”

It is thus apparent from authority, that for the neglect of the police officer, who stood by and permitted the firing of the gun to go on, the borough of. Norristown cannot be made liable. But if it is not responsible for the consequences of his neglect, then it is altogether exempt from responsibility. For if the municipality can act at all in the suppression of riots and other breaches of the peace, it must be through its burgess, justices, constables and policemen, and if they neglect their duty and refuse to act, the municipality is powerless. Then upon what ground can the defendant be held liable for the damages suffered by the plaintiff? Certainly not upon any principle of common law, for we all know that for damages resulting from the conduct of a mob or unlawful assembly neither city nor county, borough nor township, can be held, except by special statute. Is it, then, on the ground that the assemblage complained of obstructed the public street, and so became a nuisance which the borough was bound to remove ? But the difficulty of supporting the case on this theory is twofold: first, the jury has found that the street was not so obstructed that persons could not readily pass and repass, and that the injury resulted not from any such obstruction, but from the act of firing the gun. Second, admitting that a mob is a nuisance, and that of the worst kind, nevertheless, it is one that a municipal corporation cannot abate by the use of .ordinary appliances such as suffice for the removal of natural or material obstructions in or near a highway, resort must, therefore, be had to the police force, but, as we have already seen, for the doings or misdoings of those who compose this force the municipality is not liable.

The difference between those cases in which cities, boroughs and townships, have been held responsible for neglect, and the one in hand, is very wide. The maintenance and repair of highways, sewers, wharves, &c., belong to their immediate jurisdiction, and over them they alone have control, hence their responsibility. But the conservation of the peace is a great public duty, put by the Commonwealth into the hands of public officers: the judges, justices of the peace and mayors, the governors, sheriffs, constables and policemen; hence, cities and boroughs can no more be charged with damages resulting from their misconduct than can counties, townships, or the state at large.

The judgment of the court below is now reversed and set aside, and it is ordered that judgment be entered on the special verdict for the defendant.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In re Road in Upper Dublin and Whitemarsh Townships.
    1. Where error is assigned to the rulings of the court below on exceptions to the report of a road jury, the opinion of the court, although embodying a statement of facts which, it was agreed, were to be considered as if established by deposition, forms no part of the record and cannot be brought before the Supreme Court on a writ of certiorari, by assignments of error.
    2. Undecided whether a mortgagee of property alleged to be damaged by the opening of a road may, by a petition with proper averments, bring himself upon the record, so as to obtain the benefit of said damages.
    March 23d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Certiorari to the Court of Quarter Sessions of Montgomery county: Of July Term 1879, No. 72.
    A petition was presented to the court for the appointment of a jury to view and lay out a road in Whitemarsh and Upper Dublin townships, Montgomery county, over lands, inter alia, then of Henry Bissinger, now of Joseph Nash. This was followed by the appointment of jurors and a report in favor of the road. Before this jury, Henry Bissinger, as landowner, released his claim to damages. Joseph Nash then held a purchase-money mortgage against said premises for over $10,000, on which he was about to commence proceedings to collect. Nash claimed damages before the jury, and the counsel for the petitioners objected that he had no standing. The jury refused to assess him any damages because the owner had ‘released. To this report of the jury exceptions were filed by Nash.
    The court, Ross, P. J., filed the following opinion:
    “ It was agreed upon the argument that the following facts should be considered by the court as if fully established by depositions : That Joseph Nash, the exceptant, and proposed appellant here, was the holder of a purchase-money mortgage recorded April 1st 1873 against Henry Bissinger, the owner and releasor, for $10,000, which was a lien upon the premises out of which the road was in part laid out. This mortgage, it was also admitted, is still due and unpaid. Mr. Nash appeared before the viewers, and claimed that damages should be assessed to him, which claim was ignored and disallow'ed by the jury. It also appears by the record that Bissinger executed a release of all damages he might sustain as landowner by reason of the laying out and opening of the road. Under these circumstances, the only inquiry is whether Mr. Nash can be heard as a party to.this record, either as an exceptant or an appellant.
    March 31st 1880,
    “ The court is of opinion that he is not a landowner within the meaning of the road laws, and consequently has' no standing in court to question the record in either capacity. The exceptions are overruled, and the appeal is dismissed.”
    Nash then took this appeal, and alleged that the court erred — 1. In dismissing the second exception filed by Joseph Nash, viz., “ The said Henry Bissinger had no right to release the damages, as your exceptant holds a mortgage on said property for more than all said land would sell for.” 2. In holding that Nash, being a mortgagee of said land, was not an owner within the meaning of the road law. 3. In denying the right of Nash to appeal from the report of said jury and to have a jury trial. 4. In directing that the exceptions filed by Nash and his appeal should be dismissed, and in directing that an opening order should issue.
    In this court the case was argued upon its merits.

      O.liarles Hunsicker, for appellant.

      B. M. Boyer, contra.
   The judgment of the Supreme Court was entered

Per Curiam.

The opinion of the court below is no part of the record, which is all that is before us on this certiorari. Joseph Nash might, perhaps, have brought his case on the record by a petition with the necessary averments; but as it stands, we cannot take cognisance of the questions which he has attempted to raise by his assignments of error.

Proceedings affirmed.

Counsel for appellant subsequently moved for a reargument, setting forth, in substance, the following reasons: That on the argument of this case, the case of Powell v. Whitaker, 7 Norris 445, had not been brought to the attention of counsel. That in said case, Ludlow, P. J., reaffirmed the principle laid down by Strong, J., in Workman v. Mifflin, 6 Casey 362: “The owner is a trustee for the lien holders, and the courts will protect his rights.” That in the case at bar, Nash was the mortgagee, his land was taken from him against his protest, and because the mortgagor, Bissinger, had released the damages. That under the authority of the above case, if Bissinger was our trustee, we think the court should have protected us by preventing the mortgagor from releasing. That if the damages belonged to Nash, what right had Bissinger to receipt for him or take’money which the law gave him.

The court, in a Per Curiam opinion, filed May 3d 1880, refused the motion for a reargument;


author: Mr. Justice Trunkey

text:
    Wood versus Donahue.
    1. A., by his agent B., made a contract for grading with 0., who employed a number of men on the work and failed to pay them! On August 26th 1878, B. agreed to pay the men all the money due to 0., and all to become due under his contract, if they would continue the work. A. paid the laborers for their work after October 1st 1878. On the 7th of October 1878, the laborers signed a receipt, wherein they agreed “ that all work done before October 1st was performed for 0., contractor, who alone is liable for the same to us.” One of these laborers Brought an action against B. to recover the balance due him for wages, on the contract prior to October 1st, alleging that he did said work for B., on his agreement to pay for it. The court below instructed the jury that B., the agent of A., was liable to the laborers for all the money due to C., on the contract with him: Held, that this was error; that in view of the agreement contained in the receipt it could not be permitted on an alleged prior oral contract to hold A.’s agent liable.
    2. The court further instructed the jury that the burden was on B. to show that there -was not sufficient money in his hands, due to C., to pay all the laborers: Held, that this was error; that it was incumbent upon the plaintiff to make out his case with reasonable certainty.
    March 23d 1880.
    Before Suarswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrbtt and Green, JJ.
    Error to the Court of Common Pleas of - Delaware county: Of January Term 1880, No. 65.
    Assumpsit by Patrick Donahue against Henry Wood, to recover a balance of wages for work done for one Richardson, a contractor to do certain grading for William Barnett, of whom said defendant was the agent, upon the allegation that said work was done for Wood on his agreement to pay for it. The material facts are stated in the opinion of this court.
    At the trial the defendant presented the following point, to which is appended the answer of the court:
    3. The receipt signed by the plaintiff, dated October 7th 1878, containing a statement that the labor claimed for in this action was performed by J. C. Richardson, who was alone liable for the payment of the same, bars the plaintiff’s right to recover in this action.
    Ans. “ The plaintiff alleges that Mr. Wood assumed and promised to pay him for all work done by him for Richardson previous to August 26th. The evidence shows that but $13 of his claim is for such work. Of this sum Richardson afterwards paid him $12.20, leaving but eighty cents then due and now unpaid, so this point is not very material — it only bears upon eighty cents of the plaintiff’s claim. On August 26th Mr. Wood agreed, according to his own testimony, to pay the men all the money due Richardson and all to ‘become due under his contract, if they would continue the work. To this the men agreed, and Richardson also assented. There now appears to be in Mr. Wood’s hands about $100, more or less. He also seems to have paid other creditors of Richardson about $106. As this last payment was made without the knowledge or consent of the plaintiff, and was from money which Mr. Wood had agreed to pay to him and the other workmen, Mr. Wood must now account for it the same as if he still had it in his hands. If the jury shall find that the money now in Mr. Wood’s hands, together with what ought to be there of the money paid out by him for Richardson’s other debts would be sufficient to pay all the men in full, then this point becomes immaterial, and the plaintiff would be entitled to your verdict for the full amount of his claim, less eighty cents. I instruct you that the receipt referred to is of great weight, and that it should be taken by you as a true statement of all it contains. I do not, however, look upon it as decisive of the case. It cannot be construed as a release from any obligation of Mr. Wood’s, but rather an expression of the real contract and agreements made by him and a true statement of the facts as they then stood. That is to say, that the men previous to October 1st were working for Richardson and after this date for Mr. Wood. It did not release Mr. Wood from his agreement to hold Mr. Richardson’s money for their benefit for the work done for Richardson.
    If, therefore, you find money enough in Mr. Wood’s hands belonging to Richardson to pay all the men, then the verdict should be for the plaintiff. By the weight of the evidence it seems pretty clear that he should be charged with about $206 for all the men. The burden is upon Mr. Wood to show you that there is not sufficient to pay them all. He has the pay-roll, and knows how much money he has and how much is due, and he must show you that the $206 is not enough to pay all. In the opinion of the court, the verdict should be for the plaintiff for his full proportion of all the money now in Mr. Wood’s hands, whatever that may be.
    In the general charge, the court, inter alia, said:
    “ If, therefore, you find that he (Mr. Wood) has, or ought to have, sufficient money in his hands due Richardson for the work done by the men to pay them all, he is liable and you may so find. If not, you shall give this plaintiff his full proportion of the money now in Mr. Wood’s hands. * * * Mr. Wood, in the opinion of the court, is liable to these men for the money he paid for groceries bought by Richardson after the agreement of August 26th.”
    Verdict for plaintiff, and after judgment thereon, defendant took this writ, his second, sixth and seventh assignments of error being respectively tbe answer to the above point and the foregoing portions of the charge.
    May 3d 1880.

      John J. Pinkerton, for plaintiff in error.
    The point submitted was to raise the question whether or not, in view of Donahue having signed a release in which it is expressly set out that “ all labor performed before October 1st was for John Richardson alone f Donahue could recover for such labor from Wood. The defendant was entitled to have a plain and distinct answer from the court, and it is apparent that the comments of the court were not only unwarranted, but calculated to confuse the jury and mislea,d them from the true issue. This is an action of assumpsit, and it is under the count for money had and received that the learned judge supposes a recovery is possible. Under such a declaration we contend a recovery can only be had for money actually received; Rush et al. v. Good, 14 S. & R. 230. And surely the proofs of the plaintiff must first establish this before ány presumption of duty, such as the court speaks of, is raised respecting the defendant. The burden was not on Wood until the plaintiff made out a case by showing sufficient money in his hands to pay all the men.

      V. Grilpin Robinson, for defendant in error.
    The pay-roll was only a receipt for wages from .October 1st to 5th 1878. The part “it being distinctly understood and agreed that all work done before October 1st, was performed for J. O. Richardson, contractor, &c.,” was not in the nature of an agreement or release, as there was no consideration to support it. It was no material part thereof; at most was but evidence of the understanding of the parties as to their relation to each other, and had been added by Mr. Wood for the sole purpose of evading the personal liability which he had assumed. No pay-roll or any positive evidence was offered by Mr. Wood of the amount which he had to pay with this sum, and under the evidence before the jury they found that Donahue was entitled to be paid in full.
   Mr. Justice Trunkey

delivered the opinion of the court,

Barnett, by his agent, contracted for grading with Richardson, who employed a number of men on the work and failed to pay their wages. This action is by one of those laborers to recover the balance due him for work on that contract, upon the allegation that he did said work for Wood on his agreement to pay for it. The court instructed the jury that the labor was done for Richardson, who was primarily liable for payment, and that Wood, Barnett’s agent, was liable to the laborers for all money due to Richardson on the contract with him.

This claim is for labor prior to October 1st 1878. After that date the plaintiff was paid for his work by Barnett, and his receipt, dated the 7th of same month, recites that they “agreed that all work done before October 1st was performed for J. C. Richardson, contractor, who alone is liable for the same to us and others employed by him and prior to that date.” The plaintiff testifies .that he heard this agreement read, and signed it because the money would not have been paid without. There is no evidence of fraud or mistake, and the court so charged. Why then should it be permitted, on an alleged prior oral agreement, to hold Barnett’s agent liable ? The plaintiff says, “ I would not have worked, if I hadn’t understood I was working for Mr. Wood, * * * worked for Wood from August 26th to October 1st.” His claim is thus stated in the charge of the court: “ The plaintiff holds that Mr. Wood promised to answer for Richardson’s debt, and pay him for all that should be due from August 26th, but the agreement contained in the receipt of October 7th contradicts this view.” ' Because of such-contradiction the jury, in effect, were instructed that his testimony was not reliable, and they should adopt the receipt as corroborating Wood. On the plaintiff’s showing of the contract he had no case, for it was at variance with the writing which evidences the final agreement. It is a severe rule which holds the defendant liable on a contract which neither he nor the plaintiff claims is in force. Whatever its terms, it was made in August, when Richardson was carrying on his work; and the receipt was after Richardson’s default, when the relation of the parties had changed. If the receipt annulled the prior oral contract, as proved by Donahue, so it did, if as proved by Wood.

In one view of this case, the parties agree that the defendant is liable to the plaintiff for his proportion of money in the defendant’s hands, held for payment of wages due from Richardson to his employees. After Richardson so neglected his contract that it had to be taken from him, what money was due thereon i The only evidence of any is the settlement showing $106.10, which he authorized Wood to pay to the men for grading prior to October 1st in proportion to the amounts due them. That sum is all Wood had in his hands, and all he was authorized to pay by any agreement, made after Richardson failed in the performance of his contract with Barnett. The plaintiff can recover his proportionate share, but the burden of showing what that is rests on himself. How can it be said that Wood has the pay-rolls showing the amount ? There is no proof that he has. He was not doing the work prior to October, nor was his principal, Barnett. Richardson did it, and the pay-rolls belong to him. After October 1st, Barnett, by his agent Wood, did the work, and he has the pay-rolls with the receipts for that. -The situation of the parties does not shift the burden upon Wood to show how much Richardson owes each of his employees. The plaintiff must make out his case with reasonable certainty.

The defendant’s third point was rightly refused, but we are of opinion that the instructions in its answer were erroneous. Also the sixth and seventh assignments must be sustained.

Judgment reversed, and venire facias de novo awarded. ■


text:
    Comly versus Hillegass.
    L H. gave a check to a county agricultural society to pay the entrance fee to enable him to enter his horse at an exhibition given by the society. The object was to enable him to have his horse entered to compete for the premiums offered by the society for trials of speeed: Held, that the check was given for an illegal purpose and no recovery could be had thereon.
    2. Unger v. Boas, 1 Harris 601, followed.
    March 23d 1880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Steruett and Green, JJ.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1879. No. 235.
    Case stated wherein S. W. Comly, to the use of the Montgomery County Agricultural Society, was plaintiff, and Warren H. Hillegass, defendant.
    The case, as stated, was as follows :
    It is agreed that the above-named defendant gave his check, dated August 30th 1875, for the sum of $120, to pay the entrance fee to the plaintiff to enable him to enter his horse at the exhibition to be held by the plaintiff on September 21st, 22d, 23d and 24th 1875, at their exhibition grounds at Ambler, in said county. The defendant, by paying said entrance fee, according to the rule on page 5, of plaintiff’s book, was entitled to have his horse entered to compete for the premium offered for trials of speed in Class No. 2, first day, and Class No. 6, third day.
    It is further agreed that said check was protested October 4th • 1875, and that the only contest was for the premium offered by the plaintiff, as appears upon page 5 of their book, and that the entrance fee thus paid enters into the general fund of the plaintiff.
    It is further agreed that the above-named defendant was suspended by the national association, under their rules, November 24th 1875.
    It is agreed that if the court should be of opinion that the plaintiff is entitled to recover; then judgment to be entered for the plaintiff for $134.32; if not, then judgment for defendant, both parties reserving the right to sue out a writ of error to the Supreme Court.

      The rules o.n page 5, above alluded to, were as follows:
    “ Conditions : — Entrance fee ten per cent, of the whole amount of premiums.
    Entries to close Monday, August 30th.
    No conditional entries received.
    All trotting to be three in five to harness, except when specified to be otherwise, and to be governed by the rules of the National Association, and all entries must be made in strict accordance therewith.
    When eight or more horses start, the distance will be one hundred yards. Heats in each day’s trotting will be alternate. If required, classes in each days’ trotting will be called without regard to order of number.
    Four-in-hand team entries not required to name the horses until September 22d, before 7 p. M. Distance named in this class.
    Drivers will be required to wear colors. Any driver who has adopted his color will please name it with his nomination. Trotting to commence each day at two o’clock.
    Entries to he made to S. W. Comly,
    Whitemarsh, P. 0.”
    The court, Ross, P. J., entered judgment for the defendant on the case stated, in an opinion, saying:
    “A wager is defined in Bouvier’s dictionary as a ‘bet; a contract by which two parties or more agree that a certain sum of money or other valuable thing shall be paid or delivered to one of them on the happening or not happening of an uncertain event.’ A wager at common law was not void unless the event upon which it depended was contra bonos mores. Therefore a wager upon the event of a horse race was a lawful contract which could be enforced by legal remedies, and the sum or thing wagered could be recovered by action. As civilization developed, more correct moral views, and a broader spirit of public policy prevailed. It was seen that gambling in any form was most demoralizing to the gambler; and very early statutory action was taken by the British Parliament. The progress of legislation on the subject will be found fully traced in Jacobs’s Law Dictionary, tit. Grambling.

    “ The same spirit pervaded the legislation of the Commonwealth beginning in provincial days. A brief history of this legislation may not be uninteresting. By the Act of February 17th 1762, 1 Sm. Laws 246, it was enacted that unlawful games, called lotteries, have been set up, and it declares them to be common and public nuisances, and against the common good and welfare of the province. The preamble embodies the spirit to which I have referred. It is in these words: ‘ Whereas, many mischievous and unlawful games, called lotteries, have been set up in this province, which tend to the manifest corruption of youth, and the ruin and impoverishment of poor families; and, whereas, such pernicious practices may not only give opportunities to evil disposed persons to cheat and defraud the honest inhabitants of this province, but prove introductive of vice, idleness and immorality, injurious to trade, commerce and industry, and against the common good, welfare and peace of this province; for remedy whereof be it,’ &c. This most excellent preamble not only proves the wisdom of our Quaker ancestry, their morality, and vindicates their title to be called Friends, but is also the best summary of the evils arising from all gambling. This legislation was followed by the Act of the 20th of January 1792, and extends the Act of 1762 to vending tickets of lotteries carried on and maintained in other states: sect. 3, Sm. Laws 60. This also has a preamble embodying the same spirit. * * *
    “ The next statute was the Act of April 22d 1794, entitled ‘A further supplement to an, act entitled An act for the support of the government of this Commonwealth.’ This supplement by sect. 5, vide 3 Sm. Laws 180, forbids all betting on cock fights as well as cock fights themselves, all dicing or card playing for money on a public highway, as well as the playing billiards, bowls, shuffleboards, or any game of hazard for any valuable thing; and also forbids and prohibits horse racing for anything of value. Sect. 6 forbids all keepers of licensed houses to permit any games of address, hazard, cock fighting, bullet playing and horse racing, or to promote or encourage them. Sect. 8 declares that no person shall be compelled to pay any money or deliver any valuable article staked as a wager upon the result of the games already mentioned, and avoids all evidences of indebtedness given to secure such indebtedness. Sect. 9 provides that the loser, if he pays, may recover the forfeit.’
    “By the Act of April 1811, 5 Sm. Laws 267, there was a departure from this wise policy of the preamble already cited; but it was made in the interest of internal improvements in the spirit of which the legislature seems to have been willing ‘ to do evil that good might come of it.’ This act was entitled‘An act to incorporate the Union Canal Company of Pennsylvania.’ Sect. 27 provided that no lottery tickets should be sold except such as are aúthorized by the laws of the state; and sect. 28 authorized the president, &c., to raise .by lottery $340,000. It further degraded the state by appointing managers of this lottery, farmed out the right to hold it, involved the executive by directing him to appoint five commissioners to superintend the drawing, &e., &c. The present condition of the canal is a commentary upon this action.
    “ The next legislation I have been able to discover is again in the right direction. It is the Act of the 18th of March 1816, 6 Sm. Laws 357. It is entitled ‘A further supplement to the act entitled an act for the prevention of vice and immorality, and of unlawful gaming, and restraining disorderly sports and dissipation.’ By it all persons under a heavy penalty are forbidden to' set up or expose to be played at for money or other valuable thing any E. O. table (a game I presume now out of date), faro bank or any other game or device with cards or dice, or any other games of address or hazard.
    “ The next statute is that of the 24th of March 1817, 6 Sm. Laws 462, entitled ‘ An act to prevent the practice of wagering or betting on elections.’ These acts were followed by that of 12th of March 1830, imposing additional penalties for cock fighting, Pamph. L. 8, sect. 1. The act of March 11th 1834, Pamph. L. 122, sects. 18, 19, 20, re-enacts the laws already existing as to inn-keepers, but differs in penalty. By the Act of 10th of April 1849, billiards were authorized by obtaining license, but no gambling was permitted, and the same privilege was extended to bowling saloons and ten-pin alleys, Pamph. L. of 1849, 573. This act was modified by the Act of May 15th 1850, sect. 2, Pamph. L. 772.
    “ I have thus followed the statutes .against gambling generally. It seems proper, with a view to the facts in the case stated, to particularly trace the legislation in regard to horse racing. By the Act of February 17th 1820, sect. 1, 7 Smith’s Law 244, horse racing was declared a public nuisance'and offence against the state.
    “ By the 2d section of the act the horses thus employed were forfeited. By the 3d section, all wagers on horse races are declared void, and so also all contracts in consideration of such wagers. By the 3d section all moneys paid could be recovered. By the 4th section, all contributors to a purse, and ' for a horse race, and all persons collecting money for such purposes, were made liable to a penalty: By section 6, all advertisers of a race, and those who set them up, were subject to a penalty. These are our statutes against gaming and horse racing, and I have traced them with some care, many of them not being found in the general digest.
    “ It is now time to turn to the case stated. It is very apparent, under the statutes cited as to horse racing, that the trials of speed provided for and to enter which the check of the plaintiff was given, are nothing but horse racing. They are nuisances under the first section of the Act of 1820, already cited. All wagers and bets depending upon such trials of speed ‘so-called,’ horse racing in reality, and all executory contracts in relation thereto, are void, under section 3 of that act; and the horses engaged' in such races are forfeited. A purse to be trotted for is gambling under the laws of Pennsylvania. The winner cannot recover the premium, purse stakes or prize, unless the company chooses to pay him. The horse of each contestant is forfeited, and the whole arrangement is a palpable evasion of the law. But there can be no evasion of the laws against gambling, as it has been well ruled in Wagonseller v. Smith, 7 Watts 343. The court in that case in a per curiam opinion well say, ‘ The act was intended to avoid all bets, paid or unpaid, and to suppress anything connected with the practice. It is the duty of the courts, therefore, to give it full effect, and not to force an actual wager into the similitude of something else.’ To the same effect, and broadly sustaining this position, are the following cases cited by the defendant; 7 Johns. N. Y. Rep. 434 ; 10 Johns. 406 ; Bine’s Appeal, 5 P. F. Smith 294 ; Marten v. Gheen et al., 25 Id. 166 ; Kirkpatrick v. Bonsai, 22 Id. 155.; 1 Denio 170 ; Unger v. Boas, 1 Harris 60; Myrlonger v. Springer, 3 W. & S. 405. But I do not think this conclusion is at all decisive of the case stated.
    “ The defendant here is not, under the facts, under the operation and effect, either of the 1st, 2d, 3d or 4th sections of the Act of the 17th of February 1820. He laid no money by giving his check to the result of any race. He neither laid, betted nor made any wager on- the racing, running, pacing or trotting of horses, mares or geldings, as provided in the 3d section. All that he did, when he paid his entrance money of ten per cent, by an executory contract, was to violate the 5 th section of that act, which provides that ‘ If any person shall contribute to or collect, or shall ask or desire any other person to contribute to or collect any money, goods or chattels to make up a purse, plate, or other thing to be run, paced or trotted for as aforesaid, at any place within this Commonwealth, such persons so offending shall pay and forfeit the sum of $30 for each offence.’" Now all that the defendant did was to contribute. Could he, under existing legislation, recover the amount paid in by him ? Clearly not, in the absence of statutory provision, for he was in pari delicto with the plaintiff. Horse racing was lawful at common law; a wager upon it was, therefore, by the same authority lawful; and its recovery, or rather the recovery of the sum wagered could have been enforced by action. Where statutes derogate from the common law they must be strictly pursued; and when penal, as in the case of a forfeiture, must be strictly construed. For his act a penalty is imposed. Suppose defendant had paid the money ? He would be liable to the penalty, and could not recover the amount. The society and himself being in pari delicto and arcades ambo, the penalty could have been exacted from him for contributing ; from the society for soliciting the contribution. The contribution is a fact that inflicts the penalty.
    “ Again, he paid only for the privilege of entering his horse in a trial of speed; he obtained that privilege, but did not exercise it. How then is the sum a wager ? Is it laid, betted, or made on a wager to be determined by a horse race ? There is ’nothing in the statutes of Pennsylvania which forbids a recovery here. But there is a fact in the case stated which, though it does not distinctly appear in the case stated, was admitted upon the argument. It is embodied in rule 3, p. 22 of the by-laws of the ‘ National Association for the promotion of the interests of the American trotting turf,’ handed to the court and considered a part of the case stated. It is as follows: ‘ Buie 3, Entrance Fee. The entrance fee shall be 10 per cent, of the purse, unless otherwise specified; and any person failing to pay his entrance dues may, together with his horse or horses, be suspended until they are paid in full, which shall be.with an addition cf 10 per cent, penalty, and interest at 7 per cent, per annum until paid; the penalty to go to the National Association.’
    “ I have said both plaintiff and defendant, that is the equitable plaintiff and defendant, are in pari delicto. If they have, that is the equitable plaintiffs, imposed a penalty for non-payment, that and that alone is their remedy. They have determined how the delinquent shall be punished, viz., by suspension, by a ten per centum increase, and by seven per cent, interest. If their penalty be void, their contract is void. If their penalty be in force, the remedy is prescribed. Having designated their remedy, they are estopped from proceeding by law. This is their contract. It is either good or bad. If good, their contract- remedy is their only remedy. If bad, there is no remedy. The logic of this reasoning is irresistible, and I am unable to see any escape from it.
    “ It would be well, I think, and I allude to it only by way of warning to agricultural societies in Pennsylvania, to read and reflect upon the provisions of sixth section of the Act of 1820, Purd. Dig. pl. 6, p. 760. It provides that, ‘If any person or persons within this state shall print or cause to be printed, set up, or cause to be set up, any advertisement mentioning the time and place for the running, pacing, or trotting of any horses, mares or geldings, or shall knowingly suffer any advertisement as aforesaid to be set up, in or upon his, her or their dwelling house or outhouses, or shall knowingly suffer the same to remain up as aforesaid, any person so offending shall forfeit and pay the sum of $20.’ This section, and the first of the same act, are especially worthy the attention of the managers of these societies. The first section declares that ‘all running, pacing or trotting of horses, mares or geldings for money, goods or chattels, or other valuable things, shall be and are hereby declared to be common nuisances and offences against this state; and the authors, contrivers and abettors thereof shall be prosecuted and proceeded against by indictment.’
    “ All constables are bound to return common nuisances under oath at the next sessions; and these statutes are in full foroe and vitality. I have cited them as a warning.”
    The plaintiff took this writ, and alleged that the court erred in entering judgment for the defendant.

      Geo. W. Rogers and J. P. Hale Jenkins, for plaintiff in error.

      March 31st 1880,
    —The rule upon which the learned judge rested his decision has no application here. It is not included in the case stated. The simple' question is whether the defendant, who agreed to pay for the privilege of exhibiting his horse at an agricultural fair, is bound to make good his part of the contract. It was not a contract to participate in a gambling transaction but only an exhibition.

      B. M. Boyer and L. M. Qhilds, for defendant in error.
    The contract was a wager under the Acts of April 22d 1794, Purd. Dig. 728, pl. 8, and of February 17th 1820, Purd. Dig. 759, pl. 3, and the check given in its performance was void. This court, in Unger v. Boas, 1 Harris 600, ruled that where a note had been given for chips to be used in playing at faro, it was void under the statute against gaming. In that case there was no play and no money lost before the note was given, and the arrangement was in fact two contracts; but this court ruled these to be, in law, but one, and void in toto. It is urged by the plaintiff, that defendant’s horse not having trotted at the race, the money was not lost or laid on the trotting, &c., of horses, and that it is, therefore, collectible. But the contract was one by which each party hazarded money on the event of a contemplated horse race; it was a contract void at its inception, and all checks, &c., given to secure the money were also void; and no subsequent act or failure to act could give to either any validity.
   The judgment of the Supreme court was entered,

Per Curiam.

It is very evident that the check given- b.y the defendant to pay the entrance fee-to enable him to-enter his horse at the exhibition ivas for an illegal purpose. The object is stated to have been to entitle him to have his horse entered to compete for the premiums offered by the society for trials of speed. In plain English there was to be a horse race — which beyond all question is in violation of the laws of this Commonwealth. It is directly within the principle of Unger v. Boaz, 1 Harris 601.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Chester Tube and Iron Company versus Whittington.
    1. In an action upon a book-account for goods sold from time to time, where general payments had been made on account, the defendant claimed deductions for bad workmanship and materials, embracing the earlier as well as the later items of the account, especially the earlier, but the court excluded the claim as to the earlier items, so far as they were covered by payments made and applied under the general rule of law governing appropriation of payments, and instructed the jury that there could be no such deductions upon any of the items thus paid for: Held, that this was error; that the ordinary rule as to the appropriation of payments had no application in such a case.
    2. The defendant was not precluded by reason of the general payments from showing bad workmanship and defective materials as to any of the items of the account, and claiming reasonable deductions therefor.
    March 24th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1879, No. 256.
    Assumpsit by Joseph Whittington against the Chester Tube and Iron Company, to recover the balance of a book-account for certain iron castings sold to defendant. '
    At the trial, before Clayton, P. J., it appeared that the defendant company built a,tube works at Chester, Pennsylvania, and purchased from the plaintiff, who was an iron founder, a number of castings, including rolls and wheels, which were set up in defendant’s shops. The purchases and the work done upon them extended from July 24th 1877 to April 3d 1878, and the plaintiff’s aggregate bill was $9949.04 Payments on account were made from time to time, leaving a balance of $1506.82, which was the plaintiff’s claim in the suit. These payments were made on general account.
    The defendants gave evidence to show that some of the castings were of so poor a quality that they rvere unfit for use, and could only be sold -for old iron, and that these castings had been furnished in the earlier portion of the work which were covered by the payments made, if these payments were appropriated to the articles furnished in the order of time. The amount charged for these defective castings, less their value as old iron, was $1713, and this amount the defendant contended should be offset to the plaintiff’s claim.
    The plaintiff submitted, inter alia, the following points, all of which the court affirmed.
    4. That the payments made on account, without direction from the defendant to particularly appropriate, are payments generally, and by law are appropriated to the oldest part of the claim.

      May 3d 1880.
    5. That the payments made were voluntary, and that there can be no deduction for bad workmanship or materials upon any of the rolls or items thus paid for.
    6. That, even if the jury should find that the defendant is entitled to any deduction from the claim of the plaintiff for bad workmanship, it is only entitled to such deduction in the sum of $1506.82 worth of the work, the part of the claim unpaid.
    Verdict for $1506.82. Defendant took this writ and alleged that the court erred in affirming the above points.

      Theodore F. Jenkins, for plaintiff in error.
    The doctrine of voluntary payments does not apply to this case, as the plaintiff in error by its claim of set-off was not seeking to recover money voluntarily paid, but the damage it had sustained by the breach of the defendant’s warranty. This was a proper matter for a set-off: Phillips v. Laurance, 6 W. & S. 150; Deen v. Herrold, 1 Wright 150; Wright v. Cumpsty, 5 Id. 102; Hunt v. Gilmore, 9 P. F. Smith 450; Halfpenny v. Bell, 1 Norris 128.

      W. H. Dickinson, for defendant in error.
    The charge of the court below was, in effect, that if the defendant paid for the work knowing it was not properly done, it could not recover that money back; so far as that went, it was an acceptance of the machinery. Money voluntarily paid and received under a claim of right, though not strictly demandable, cannot be recovered back: Morris v. Tarin, 1 Dall. 147; Kennedy v. Hughey, 3 Watts 265; Keener v. Bank of the United States, 2 Barr 237; Natcher v. Natcher, 11 Wright 496.
    The general rule is well settled, that one who voluntarily pays money with full knowledge, or means of knowledge of all the facts, without any fraud having been practiced upon him, cannot recover it back by reason of the payment having been made in ignorance of law : Real Estate Saving Ins. v. Linder, 24 P. F. Smith 371; Natcher v. Natcher, supra; Appeals of King, Dunning and Miller, 1 Harris 224; Boas v. Updegrove, 5 Barr 516; Espy v. Allison, 9 Watts 462; Irvine v. Hanlin, 10 S. & R. 219.
   Mr. Justice Sterrett

delivered the opinion of the court,

The fourth point of the plaintiff below, the affirmance of which forms the subject of complaint in the first assignment, is correct, and as an abstract proposition there was no error in affirming it. It is well settled that when a payment is made on an open account composed of various items of different dates, and no specific application is made at the time by either debtor or creditor, the law will appropriate it to the oldest items of the account. It is the right of the debtor in the first place, when he makes a payment, to direct how it shall be applied. If he waives his right, the creditor may make the application; but if neither of them exercises the privilege, the law, as a general rule, will' appropriate the payment to the oldest items in their order as above stated. While the principle thus recognised is undoubtedly correct, it was erroneously applied in this case. The plaintiff in error claimed deductions for bad workmanship and materials, embracing the earlier as well as the later items, especially the former, but the court excluded the claim as to all the earlier items of the account, so far as they were covered by payments made and applied under the general rule of law above stated, and instructed the jury, as complained of in the second specification, “that there could be no deduction for bad workmanship or materials upon any of the rolls or items thus paid for.” In this there was error. If the defendant was able to prove bad workmanship or defective materials in any of the articles embraced in the earlier items of the account, entitling him to a deduction from the price charged therefor, he had as much right to the benefit of such deduction as he would have had if the general payments made on account had not been sufficient to cover those items. In other words, he was not precluded by reason of the general payments from showing bad workmanship and defective materials as to any items of the account, and claiming reasonable deductions therefor. The third assignment involves a repetition of the same error. In affirming the plaintiff’s point, the jury were instructed that if the defendant was entitled to any deduction from the claims of the plaintiff, on account of bad workmanship, he was restricted to the later items of the account not covered by the general payments.

Judgment reversed, and a venire facias de novo awarded.


text:
    Fitzwater’s Appeal.
    1. "Where the intendment of a will is doubtful, the law leans in favor of an absolute estate ; of the primary rather than the secondary intent; of the first taker as the primary object of the testator’s bounty; and of a distribution conformable to the general rules of inheritance.
    2. A testator devised and bequeathed his residuary estate in five parts, three of which were to be held in trust to pay the net income thereof to each of his three nephews for life, and at the death of either “ then to pay the principal sum of the share of him so dying unto his children, should he leave any surviving him, * * * and provided, further, that should F., the son of my nephew J., die without issue, then I order and direct that the money coming to him out of my estate, at the death of his father, as hereinbefore provided, shall go to his uncles and aunt, on his father’s side Held, that the words “ die without issue,” referred to the contingency of death without issue during the lifetime of J., the first taker, and that upon the death of J., F. was entitled to an absolute estate in J.’s share.

      March 24th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Montgomery county: Of January Term 1878, No. 806.
    Appeal of Frank Fitzwater from the decree of the court making distribution in the estate of Jacob Fitzwater, deceased:
    Jacob Fitzwater died in April 1876, leaving a will, which contained the following provisions:
    “ All the rest, residue and remainder of my estate which may remain at the death of my said wife', after the payment of the before mentioned legacies, I give and bequeath as follows, to wit:
    “ The one-fifth part thereof I give and bequeath to my nephew, George W. Fitzwater.
    “ One other fifth part thereof I give .and bequeath to my nephew, John Fitzwater, my executors, however, first deducting thereout the sum of one thousand dollars which he owes to my estate.
    “ One other fifth part thereof I give and bequeath to my nephew, Charles Fitzwater.
    “ One other fifth part thereof I give and bequeath to my niece, Charlotte Potter, the wife' of Dr. Robert E. Potter.
    “ Of the other fifth part of said residue I direct my executors herein named to pay to Frank Fitzwater, the son of my nephew, Jacob Fitzwater, the sum of one thousand dollars. The remainder of said last mentioned fifth part of said residue, I give and bequeath to my nephew, Jacob Fitzwater.
    .“Provided, however', and I do hereby order and direct that the shares of the said residue of my estate hereinbefore .given and bequeathed to my said nephews, John Fitzwater, Charles Fitzwater and Jacob Fitzwater respectively, shall be and remain in the hands of my executors herein named, to be by them held upon the following trusts and conditions, to wit, that my said executors shall safely invest the same and collect the income and interest thereof, and after payment of expenses incident to said trusts, pay over the said income and interest as it shall become due unto my said three nephews, John, Charles and Jacob respectively, for and during the terms of their natural lives, and at the death of any or either of them, then to pay the principal sum of the share of him so dying unto his children, should he leave any surviving him, and in case any or either of them, my said three nephew's, shall die leaving no child or children surviving him, then to pay the principal sum of the said share of him so dying without child or children, to his surviving brothers and sisters in equal shares, and to the issue of any that may then be dead, such issue to take the parent’s share, had such parent then survived, and provided further, that should the said Frank Fitzwater, son of my nephew, Jacob Fitzwater, die without issue, then I order and direct that the money coming to him out of my estate at the death of his father, as hereinbefore provided, shall go to his uncles and aunt on his father’s side, or if any of them be dead, then to their issue, such issue taking their parent’s share.”
    Mrs. Fitzwater, wife of tbe testator, died in March 1876. Jacob Fitzwater, nephew of the testator, died April 1877, before distribution, leaving Frank'Fitzwater, his only son and child who is now living — married and having issue, one child — but who, at the time of the making of the said will, and at the time of the death of the said Jacob Fitzwater, Sr., was unmarried.
    At the audit of the account of the executors, Frank claimed that the bequest of the one-fifth to him was absolute. The auditor, however, held that there was a bequest over in the event of Frank dying without issue living at the time of his death, and directed the executors to pay the legacy to him “upon his giving security in such sum and form as in the judgment of the Orphans’ Court shall sufficiently secure the interests of the persons .entitled thereto upon the event of the said Frank Fitzwater dying without leaving ‘'issue’ living at the time of his death.”
    The exceptions filed on behalf of Frank were dismissed by the court, Ross, P. J., in the following opinion : .
    “ It is clear that the proviso as to Frank was intended by the testator, in the event of Jacob’s, his father’s, death, to place Frank precisely where Jacob was placed by the will. The same trust thrown around the father was, by the proviso, cast about the son. What governed the testator ? It is forbidden to guess. There are no facts proven by the will that cast any light. But Jacob’s only son was Frank. If Frank was allowed to take absolutely, under the will, and died intestate, leaving no issue living at the time of his death, all his (Frank’s) heirs, under the intestate laws, both in the Fitzwater and maternal' line could have inherited. This consideration appears to have reached and aroused the testator at the close, and just before the proviso was added. By the general bequest he had given Frank an absolute interest in the fifth, bequeathed to his father. He knew this, for he says, ‘ if Frank should die without issue, then I order and direct that the money coming to him out of my estate, at the death of his father, as hereinbefore provided, shall, &c.’ Can anything indicate more clearly a purpose first formed and then changed by the new idea ? Can it be doubted that a competent testatpr grappling with testamentary ideas, may not modify a former by a later clause in his will ?
    “ Surely he may do this with or without giving his reason. But this old man has shown the cause of the after-thought. He wanted his money, if Frank had no children, to be kept in the line of his own blood. This does not depend upon fancy or conjecture. The testator goes on to say that in the event of his death childless, the fund shall go to his uncles and aunt, on his father’s side, or their issue. What can be stronger ? There is an expressed intention; and the cause of that intention, as well as the reason for the intention in the original idea, are given in a way that forbids mistake. The will is clear, the intention is obvious. No rule of law forbids it being thus construed. Frank, upon his father’s death, takes his place in his rank* as a cestui que trust. His children, under the proviso, occupy his original situation. These exceptions are dismissed, but it is clear that the decree as to Frank’s interest must be remodeled. The rights of his issue must be regarded. And now report recommitted to the auditor to be reformed in conformity with this opinion.”
    The auditor then appended to his decree, “In the event of the said Frank Fitzwater being unable or unwilling to give said security, then the principal sum shall remain in the hands of Harvey Shaw, Benjamin E. Chain and’George W. Fitzwater, in trust, to pay -the income and interest arising therefrom annually to the said Frank Fitzwater during his life, and at the death of the said Frank Fitzwater, to pay the principal sum to such issue as the said Frank Fitzwater shall have living at the time of his death; and in the event of his dying without issue, then to pay the same to the parties entitled thereto under the will.”
    Exceptions thereto having been dismissed, Frank Fitzwater took this appeal, and alleged that the court erred in making this decree.

      Joseph Leedom and H. K. Weand, for appellant.
    Words in a will which create an absolute estate, are not to be limited by subsequent words unless'the intention is clear: Shutt v. Rambo, 7 P. F. Smith 149. Words which in a devise of real estate create an estate tail in a bequest of personalty create an absolute estate: Potts’s Appeal, 6 Casey 168; Wharton v. Shaw, 3 W. & S. 124; Amelia Smith’s Estate, 11 Harris 9; Yarnell’s Appeal, 20 P. F. Smith 341. If the testator had intended to provide for the issue of Frank, he would have used the words “ child or children,” as in other parts of the will, or he would have said that Frank, upon his father’s death, should only receive the interest or income. He seems to have contemplated but one contingency, and that was that Jacob and Frank might both be dead, leaving no issue at the death of the testator, in which event he did not desire any part of the bequest to descend to the maternal relations of Frank. His failure to provide trustees, his silence as to when it should vest in the issue of Frank, all tend to show that the view advanced here is correct.
    Where the gift over is in the event of “ dying without issue, &c„” the death will be construed, not to mean a death generally at some time or other, but in the testator’s lifetime: Smith on Executory Devises, 347, 351; Clayton v. Lowe, 5 B. & Ad. 636; Schoonmaker v. Stockton, 1 Wright 461; Karker’s Appeal, 10 P. F. Smith 141; Amelia Smith’s Appeal, 11 Harris 9; Mengel’s Appeal, 11 P. F. Smith 248; Mast’s Appeal, 2 W. N. C. 404; Bentley v. Kauffman, 5 Norris 99; Biddle’s Appeal, 19 P. F. Smith 190; Umstead’s Appeal, 10 Id. 365. The recent decision in Mickley’s Appeal, 11 Norris 514, rules this case.
    May 3d 1880.

      B. E. Chain, for appellees. —
    If, as contended by the appellant, the testator intended that this legacy should vest absolutely in the legatee at the father’s death, we may inquire why make this exception or proviso ? Without it the legacy would vest as contended for, and the proviso would be without meaning. But it is there, and we must presume it is there for a purpose. The purpose is obvious when we look at the whole will. Frank was the only child of Jacob. Should he die without leaving children, his mother, or the maternal relations, might take, and such a result would not comport with his idea of keeping his estate in the line of his own family. In cases of this kind, where there is a bequest of a life estate or interest followed by the words “ dying without issue,” and the appointment of a trustee to effectuate this intention, a life interest has been thought to follow inevitably. Such is the conclusion mentioned by the late Chief Justice Thompson in Mengel’s Appeal, 11 P. F. Smith 250. See Emma Myers’s Appeal, 13 Wright 111.
   Mr. Justice Trunkey

delivered the opinion of the court,

Jacob Fitzwater bequeathed one-fifth of the residue of his estate to his niece, and a like portion to each of his four nephews, except Jacob whose share is reduced $1000 with direction that said sum be paid to Frank. He directed that the shares of John, Charles and Jacob, shall remain in the hands of his executors in trust; that they pay to them the income and interest during their lives, and at the death of either to pay the share of such deceased unto his children should he leave any surviving, but if no child survives then to pay said share to his surviving brothers and sister, and to the issue of any that may be dead, such issue to take the parent’s share; “and provided further that should the said Frank Fitzwater, son of my nephew, Jacob Fitzwater, die without issue, then I order and direct that the money coming to him out of my estate at the death of his father, as hereinbefore provided, shall go to his uncles and aunt on his father’s side, or if any of them be dead then to their issue, such issue taking their parent’s share.”

Jacob died, after the testator’s death, leaving an only child, said Frank, surviving. Frank claims that his father’s share is now absolutely vested in him, and, had not the auditor and learned judge of the Orphans’ Court held otherwise, we should unhesitatingly conclude that his demand is well founded. The five bequests first are made without condition. Then follows the trust provision for three of the legatees with direction that at the death of each his share shall be paid to his children if any survive. It is by virtue of this part of the will that the children of John, or Charles, or Jacob, become entitled to the principal sum; and it is this which entitles Frank to any portion of the testator’s estate. He takes precisely the same interest as is given to the children of John and Charles; and had Jacob left other children they all would have shared equally. If Frank were not the sole surviving child, the proviso would apply to the fraction he would then receive just as it now does to the whole. It declares that should Frank die without issue, the money coming to him, “ as hereinbefore provided,” that is as the child of Jacob, shall go to his uncles and aunt on his father’s side. Should he die leaving issue there is no bequest over to any one, not even to his issue or children. The executors are ordered to pay the money at Jacob’s death to his child — they are not authorized to hold it longer in trust. Jacob had right to the income of the money for life, at his death Frank takes the money itself. That is the difference, and, whatever the proviso really means, it is clear that it does not cast about the son the same trust as was thrown around the father.

Where the intendment of the will is doubtful, the law leans in favor of an absolute estate; of the primary, rather than the secondary intent; of the first taker as the primary object of the testator’s bounty; and of a distribution conformable to the general rules of inheritance. The legacy to Frank is absolute, he is the first taker of the principal, the bequest over is in case of his death without issue. If it be inferred from the whole that the bequest is to Frank and his issue he takes the money absolutely : Amelia Smith’s Appeal, 11 Harris 9.

The bequest is to Jacob for his life, then to his child, and in case of the latter’s death without issue to his paternal uncles and aunt. Strictly, this is within the rule given in Williams on Ex’rs 1261: “ If there is a bequest to one for life, and after his decease to A., and in case of A.’s death to B., the contingency is held referable to the lifetime of the first legatee ; and the bequest over takes effect in case A. dies during the continuance of the life estate; he takes absolutely, if he survives the tenant for life. And the rule is the same if there is a bequest to one for life, and after his decease to A., and in case of A.’s death without children to B.” See Mickley’s Appeal, 11 Norris 514.

Most general rules cease to be applicable where it appears, from the whole will, that their application would frustrate the intention of the testator. This will carries clear expression of intention to give the entire property to two of the legatees; a life use to three of them, and the principal to their children with bequest over if they leave no children. A condition is appended to the bequest to one of these children that if he die without issue it shall go over. This omits the trust for those who were to take the income-for life, omits to direct payment of the principal to his children,, and, even if here issue means children, it does not direct payment to his issue. If inference is warranted it is that the principal is given to Frank and his issue. Upon the whole we think it was not the testator’s intention to give a mere life use to Frank, and that, under the rules of construction, he is entitled to the money.

Decree reversed, and it is now considered and decreed that the executors pay the share or legacy of Jacob Fitzwater, less the costs, to his son Frank Fitzwqfer, the same being $7112.20. Costs of this appeal to be paid' by the appellees out of the fund in their hands.


text:
    Rennyson’s Appeal.
    A. owned a house and an. adjoining lot at the corner of Green and Fourth streets, in Bridgeport borough. In the back building of the house were windows overlooking Green street, and also two windows overlooking the adjoining lot. -In 1870, A. sold the house to B., and in 1875, A. commenced to erect a house on the adjoining lot, which would close the windows overlooking the same. The grantee of B. filed a bill in equity to restrain the erection of the house: Held, that there was no implied grant of light and air in the conveyance by A. to B., beyond what was really necessary, and it appearing that there was no such necessity, in view of the location of the house, the court would not interfere.
    March 24th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Montgomery county: Of July Term 1879, No. 71. In Equity.
    Bill in equity filed by William Rennyson against Isaac Rozell to restrain the erection of a house which closed two windows in plaintiff’s house.
    The bill set forth that the defendant, in 1867, owned a certain messuage and two tracts of land, used as one, in the borough of Bridgeport, Montgomery county, situated on the south-east corner of 4th and Green streets; that on the 9th of June 1870 he conveyed said messuage and part of said tract of land to W. D. Wilcox, who in 1871 conveyed the same to plaintiff; that at the time of the conveyance to the said defendant, and at the time the defendant conveyed to the said Wilcox, in the messuage on said property, there were two windows overlooking the balance of said real estate, which furnished light and air to the occupants of said dwelling-house; that said dwelling-house Was erected about eighteen or twenty years ago; that defendant, about the 28th of September 1875, commenced the erection of a building on the premises unconveyed, upon the property adjoining the property of plaintiff, and by means whereof, if the building is completed, will shut up and obstruct the windows of plaintiff, and deprive him of the light and air he now uses and enjoys from them; that one of said windows in plaintiff’s house is on the first floor, and the other one is on the second floor; that plaintiff will suffer irreparable injury if the said building is erected and his windows closed up.
    The bill then prayed for an injunction.
    The answer of the defendant set forth that the plaintiff has other windows on the opposite side of his building, which are ample for all purposes of light and ventilation ; that there is no necessity for the maintenance of the windows of the plaintiff overlooking my lot for the reason already mentioned, and if I am prevented from building on the line of my lot so as to obscure the same, my said lot cannot be improved in the usual way, and will be comparatively valueless for such purpose; that the proposed building on my lot is wholly within the limits of my own property, and that the probable erection of a building on my line, close to the windows of the defendant on that side, was contemplated, and ■ perfectly understood by William D. Wilcox at the time of the sale and conveyance of the defendant’s premises to the said Wilcox by me.”
    The master, inter alia, reported that 44 the windows closed by the defendant in erecting his building were certainly convenient in affording light and air to the plaintiff, but were not absolutely necessary for that purpose. At the time the house of plaintiff was built, and ever since side windows have existed on the northwest side thereof, which afford the light and air necessary for the enjoyment of the building.” He therefore held that as no necessity existed for the windows, the court should not enjoin, and recommended that the bill should be dismissed. The plaintiff filed exceptions, which the court, Ross, P. J., dismissed and confirmed the report, delivering the following opinion:—
    44 It is certainly true, that the question presented by this record has not been definitely ruled in Pennsylvania; and it is equally true that the English authorities have not been recognised or adopted by our court of last resort. The doctrine of ancient lights, and the right to light and air, by prescription, has as yet no recognition in our Commonwealth : Hazlitt v. Powell, 6 Casey 296; Wheatley v. Baugh, 1 Id'. 528; Hoy v. Sterrett, 2 Watts 331.
    44 In Wheatly v. Baugh, supra, Lewis, C. J., • says: 4 The Roman law, founded upon an enlightened consideration of the rights of property declared, 44 that he, who in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title or possession which may subject him to any service towards his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without any advantage to himself. He may raise his house as high as he pleases, although by the elevation he should darken the light of his neighbor’s house.” * * * These principles of the civil law are also the recognised doctrine of the common law : .Bury v. Pope, 1 Cro. Eliz. 118; Parker v. Foote, 19 Wendell 309; 2 Watts 331; 18 Pick. 121. It is true that several English nisi prius decisions introduced a modern doctrine in relation to ancient lights, in opposition to that held in the reign of Queen Elizabeth by all the judges in the Exchequer chamber: 1 Oro. Eliz., mfra. But the modern doctrine was never recognised by the King’s Bench, until the decision in 2 Saund. 175, .note 2. As that decision was since the American Revolution, after which the English courts ceased to have authority here, and is an anomaly in the law, the modern doctrine founded upon it has not been received as suitable to the condition of this country: 19 Wend. 309; 2 Watts 331.’ It is clear from this extensively cited authority that the English rule of new adoption comparatively does not prevail in Pennsylvania. Following this case, Lowrie, C. J., says in Haverstick v. Sipe, 9 Casey 370, ‘It has never been considered in this state that a contract for the privilege of light and air, over another man’s ground, could be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house and lot, such a contract would be implied, from the fact that such a privilege has been long enjoyed; or that on a sale of a house and lot such a contract could be implied from the character of the improvements on the lots sold and the adjoining lots.’
    “There is, therefore, no rule of the English courts which is final and conclusive in Pennsylvania. The case is to be adjudged, therefore, either upon general principles applicable to our civilization, and in accordance with general public policy, or to be determined by the light cast by the decisions of our sister commonwealths.
    “To adjudicate the question fairly, the proposition to be adjudged must be distinctly stated and clearly, understood.
    “ It is clear that Mr. Rozell, the defendant, is the owner of the servient tenement. The plaintiff purchased with his house and windows overlooking the lot of the defendant. The latter built, closing the windows of the former, and the question presented is, whether a servient tenement can close the windows on one side, and thus deprive the dominant tenant of the light and air which he desires from that side. I think I have stated the question fairly. It is new in Pennsylvania, and it is entitled to a broad ruling The law should be clear on so important a topic and this court will endeavor to rule so explicitly that all doubt will be at an end when its conclusion is affirmed or denied by the court of last resort.
    “ The inquiry is by no means free from difficulty. This question has never been distinctly met and ruled in Pennsylvania; and in other states the rulings are conflicting. Haverstick v. Sipe, supra, is the case of a dominant tenant, and, while in dictum it is decisive, is, upon the question involved by this record, no more than a dictum. Though largely cited it does not definitely rule, as contended, or as quoted. One case has been ruled in Pennsylvania by Finletter, J., Kay v. Stallman, 2 W. N. C. 643. This stands alone, .and is, I have no doubt,’ -well ruled under the special facts of the case, which, when understood, demonstrate that the dominant tenement would have lost its light and air, and also its means of access, if the erection upon the servient tenement had been maintained. This case, therefore, involves the question of necessity— an element which the master here has found is not involved by this record.
    “ In other states two cases stand prominently forward. They conflict as to their conclusions; are to a great extent irreconcilable upon general principles, and are pressed upon the court by the able contending counsel, who have made this case a specialty ; and who, by their intellectual exertions, have awakened a vivid interest in the court. It cannot be denied that Story v. Odin, 12 Mass. 157, rules the point at issue, so far as the opinion of the court is concerned, squarely ; for it does declare that the owner of a servient tenement may not interfere with the light and air of the owner of the dominant tenement. This clearly is the force and scope of the opinion, though the special facts of the case would have sustained the judgment on the ground of necessity. If it stood alone I should be governed by it, notwithstanding the wise dictum of Haverstick v. Sipe, supra, and the modifying influences of Kieffer v. Imhoff, 2 Casey 445; 6 Casey 298 to 299, as well as of Washburn on Easements 589, 590, and authorities there cited. A careful examination of Maynard v. Escher, 5 Harris 226 (a case miscited through error in the syllabus), 6 Casey, supra, of 14 Wright 423, and the authorities cited by Agnew, J., will demonstrate that the broad ruling of Odin v. Story, supra, has not been adopted in Pennsylvania. Still, as has been said, a respectful regard for the Supreme Court of Massachusetts, would induce me to follow its ruling were there no other adjudicated cases. But the same tribunal, at a much later period, in Keats v. Hugo, 115 Mass. 208, adopts a different rule, and one which accords with my own views of this question, as affected by public policy and business interests. I understand this case to overrule Story v. Odin, or, at least, to explain it to such an extent that its rights as a precedent fall. Story v. Odin was ruled in 1815 by Jackson, J., and it will be noticed that it is based upon English authorities, and that its reasoning is therefore weakened in Pennsylvania by what is said by our Supreme Court in Wheatley v. Baugh, supra.

    “ Keats v. Hugo was ruled in June 1874, and beginning with Story v. Odin reviews in analytical detail all the cases adjudicated in Massachusetts, and some other states, upon this question. This case rules that the easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor. It declares that since Story v. Odin and the obiter dicta in 12 Mass. 220, 17 Id. 443, 1 Sumn. 492, the cases have been more fully considered on principle, and that the tendency of judicial decisions in Massachusetts and most other states has been to deny the doctrine of acquiring a right to light and air by presumption or implication. Chief Justice Gray adds: ‘ In no judgment of this court, since Odin v. Story, has any right of light or air-been upheld except 'by express grant or agreement.’ In this most learned and exhaustive opinion, the learned judge first notes that Odin v. Story is based upon finglish authorities; that neither in the opinion of the court, nor in the argument of counsel is it suggested that a different rule may be required by the exigencies of a new country, with new wants, under a new and developing system of civilization and improvement; and that the facts of the case themselves did not require a decision upon the general principle. He then reviews' the authorities at great length. Among these is Collier v. Pierce, 7 Gray 18, which has the authority of Chief Justice Shaw to uphold it. I will not pause to cite the other authorities quoted in the opinion. Many of them are used to show the tendency of the courts to hold, in this country, that easements of light, air, overhanging projections, are not implied in favor of the dominant as against the servient tenement. The principal case is strong, clear and most' emphatic, and its concluding reasoning is so sound that I cannot forbear quoting it in extenso. ‘ By nature air and light do not flow in definite channels, but are universally diffused. The supposed necessity for their passage in a particular line or direction to any lot of land is created not by the relative situation of the lot to the surrounding lands, but by the manner in which that lot has been built upon. The actual enjoyment of the light and air by the owner of the house is upon his own land only. He makes no tangible or visible use of the adjoining lands, nor indeed any use of them which can be made the subject of an action by their owner, or which in any way interferes with the latter’s enjoyment of light and air upon his own lands, or with any use of those lands in their existing condition. In short, the owner of the adjoining land, has.submitted to nothing which actually encroached upon his rights, and cannot, therefore, be presumed to have assented to any such encroachment. The use and enjoyment of the adjoining lands are no more subordinate to those of the house where both are owned by one man, than where the owners are different. The reasons upon which it has been held that no grant of a right to light and air can be implied from any length of continuous enjoyment, are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the right of sueh a grant in either case, without express words, would greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and use of lands, is, that no right of this character shall be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed.’ * * * ‘ Considering, therefore, that by the preponderance of reason and authority no grant -of any right of light and air over adjoining lands is to be implied from the conveyance of a house, we have only to apply this rule to the facts.’ In 1876, Doyle et al. v. Lloyd et al., N. Y. Rep., per Earl, J., this doctrine, there styled the ‘ American doctrine,’ as to light and air, is distinctly recognised, the learned judge citing Keats v. Hugo, supra; Parker v. Foote, 19 Wend. 315: 2 Sand. (S. C.) Rep. 316; Myers v. Gemmel, 10 Barb. 537; Mullen v. Strieker, 19 Ohio St. 135; Haverstick v. Sipe, 9 Casey 368.
    “ (Doyle v. Lloyd, supra, it may be parenthetically remarked, involves the distinction which seems to sustain the ruling in Kay v. Stallman, 2 W. N. C. 643, by Finletter, J.)
    “In Turner v. Thompson, 58 Ga. 268, reported in 24 Am. Rep. 497, it was ruled, that where land was sold with a house on it, having windows overlooking the adjacent land of the grantor, that the latter was not estopped from obstructing the windows, unless they were necessary to give light and air to the house; or, if sufficient light and air could be derived from other windows open, or that might be commonly opened elsewhere in the house. This case was evidently most carefully considered; it reviews the earlier Massachusetts and New York decisions, adopts Keats v. Hugo, and the reasoning of Chief Justice Gray, and of Mitchell v. City of Rome, 49 Ga. 19 (15 Am. Rep. 669). It is worthy of remark, however, that this case limits the general application of Keats v. Hugo as between dominant and servient tenement in one important respect. I think the limitation is wise and right. It is, that an implied easement of light and air will be sustained in case of real necessity: Powell v. Sims, S. C. of West Virginia, 13 Am. Rep. 629. Many more cases might be cited, and I have examined every case on the briefs of counsel, save one from Lord Raymond; but enough has been done to justify the conclusions of law which I am about to reach, and which I think should become the law of Pennsylvania :
    “ 1. No implication of a grant of the right to light and air arises upon a sale of one of two adjacent lots having a house upon it, with windows overlooking the land of the grantor.
    “ 2. The grantor, by such sale, is not estopped from improving his retained lot by building upon it, though his erection darkens the windows of his vendee, and excludes the access of light and air from such windows.
    “ 3. That the limitation of these two propositions depends upon the fact as to whether such windows are a real necessity for the enjoyment of the grantee’s property. If they be, then the implication of the grant of an easement of light and air will be sustained : if they be not, or can be substituted at a reasonable cost, with a view to the purposes of the dominant tenement, then such implication will be denied and rejected.
    “4. The American doctrine as to light and air requires an express grant or agreement, unless a real and actual necessity exists, to vest a dominant tenement with such right.

      “ 5. The doctrine of ancient lights is not recognised in Pennsylvania.
    “ These principles being determined, and there being no express grant or agreement disclosed in the facts reported by the master, but one question of fact arises upon the case as presented by the master.
    “Are the windows, closed by the defendant’s erection upon his own lot a real and actual necessity for the purpose of furnishing the necessary light and air to the house of the plaintiff? The master has found they were not, and when it is remembered that the house of the plaintiff is at the corner of a street in an incorporated borough, it is hard to conceive how the master could reach a different conclusion, particularly in the light of the testimony of the witnesses.
    “ One other inquiry remains. Mr. Widdecombe, a former owner of the premises, declares'that he bought the lot now owned by the defendant for two purposes, one of which was to obtain more light and ventilation, and that he sold the two lots together to Mr.'Wot-ton as a whole. I cannot see how this can affect the case. The purposes for which a former owner purchased pr-operty cannot affect the use and rights of his vendees or alienees, unless such purposes are covenanted for, are actually or constructively known to such alienees, and are in the nature of contracts or covenants which may be enforced between themselves or by others. The deed in fee bars the grantor, and a mere purpose on his part will not control his alieners. Mr. Widdecombe could have changed his purpose and built upon the lot while he was the owner of both; his vendee, unrestricted by covenant, may do the same. The bill cannot be sustained on this ground. The master has elaborated the other questions with sufficient clearness, and all the exceptions to his report are overruled.

      “ In conclusion, it seems proper to add one word. The motion for a preliminary injunctiou was refused after brief hearing; and though I then formed a clear idea of what the ‘ American doctrine’ ought to be, no time was given, nor argument made to and upon that hearing, which involved the exhaustive research displayed by counsel in the final argument.
    “ I have carefully and patiently considered all the cases cited, and tested the clear and forcible reasoning of counsel by the authorities now within my reach, and have endeavored — I believe successfully — to hear the case de novo. But were there no authorities, I am clearly of opinion that the law should be as I have found it. Public policy requires that in a new and developing country the spirit of improvements of betterments should not be chained and handicapped by the law. With the limitation of an implication arising from real and actual necessity, the time-honored and equitable maxim of sic utere tuo non alienum Icedas, is carefully observed. ■ If the principles of Story v. Odin were to prevail, one with a series of town lots would, after the sale of one, imply a grant as to two others immediately adjoining that would destroy them for building purposes, and a one-story house would be compelled to remain one story because its dominant tenement had two, All improvement would be stayed, values would bo destroyed, and alienations, except under special contracts, rendered dangerous for the future and ruinous in the past.
    “ Our court of last resort, in Bentz v. Armstrong, 8 W. & S. 40, approved in Young v. Leedom, 17 P. F. Smith 851, indicated that the agricultural rule of drainage as between servient and dominant tenements cannot apply in boroughs and incorporated towns! The reason is that no lot could be filled up and graded, or be adapted to building purposes, if such rules prevailed in towns. If that conclusion be sound within the scope of the maxim, sic utere tuo, &c., surely the same spirit of public'policy would protect lot-holders in boroughs, towns and villages in regard to implied rights of light and air, even though a different rule prevailed in agricultural lands. But I think this opinion shows that, except in Maryland and Nerv Jersey, a different rule does not prevail.”
    The plaintiff took this writ, assigning for error the decree of the court.

      Charles Sunsicker and E. Coppée Mitchell, for appellant.—
    Where one sells a messuage having doors or windows opening into a vacant lot adjoining and belonging to the vendor, without reserving a right to build on such lot, or to stop the doors and windows, neither he nor his grantee of such lot can lawfully stop them: Story v. Odin, 12 Mass. 157; Grant v. Chase, 17 Id. 447 ; Lampman v. Milks, 21 N. Y. 505.
    The doctrine of these cases has been recognised by this court in Hazlett v. Powell, 6 Casey 293; Maynard v. Esher, 5 Harris 226; Kieffer v. Imhoff, 2 Casey 443; Kay v. Stallman, 2 W. N. C. 643.
    The reasoning of the court below results in holding that there must be a necessity for light and air, and when such necessity exists then the implication of an easement for that purpose arises. But when is it necessary ? The learned court lays down no way of ascertaining it. If the house is light, cheerful, and comfortable,' and healthy, with the windows, and dart, gloomy, uncomfortable, and unhealthy, without them, it would seem that the very circumstances exist which, under the rulings of the court, would entitle us to the decree prayed for.

      B. M. Boyer, for appellee.
    The English doctrine of ancient lights and the right to air and light by prescription has never been adopted in this state: Hazlett v. Powell, supra; Hoy v. Sterret, 2 Watts 331.
    It has never been considered in this state that a contract for the privilege of light and air over another man’s ground could be implied from the fact that such a privilege has been long enjoyed, or that on a sale of a house- and lot such a contract could be implied from the character of the improvements on the lots sold and the adjoining lots: Haverstick v. Sipe, 9 Casey 371.
    There is no Pennsylvania case in which the principle stated in Haverstick v. Sipe has been overruled. A different principle has been applied to rights of way, and the Pennsylvania authorities relied upon in the plaintiff’s argument generally relate to easements of that description.
    In Story v. Odin, 12 Mass. 157, which is the earliest American • case, the law was stated in accordance with the English authorities. But it is to be observed that no suggestion appears to have been made of any difference between the laws of the two countries in this respect, and that the facts of the case hardly required a decision upon the general question. But Story v. Odin has since been overruled in Keats v. Hugo, 115 Mass. 208.
    The reasons, upon which it has been held that no grant of a right to air and light can b.e implied from any length of continuous enjoyment, are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the grant of such a right in either case, without express words, would greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and the use of lands, is that no right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed.
    May 3d 1880,
   The judgment of the Supreme Court was entered,

Per Curiam.

The learned president of the court below has discussed the question involved in this case in an opinion so able and exhaustive that it is unnecessary that we should add anything to it. We affirm this decree upon that opinion.

Decree affirmed and appeal dismissed at the costs of the appellant.