text:
    The North American Life and Accident Insurance Co. versus Burroughs.
    1. An accident ” policy of insurance stipulated, that no payment in case of accidental death should be made, unless notice of the injury and death should be given within thirty days of the happening of either, and sufficient proof furnished the company of such injury, and that the death was caused solely by such injury, and ensued within three months from the happening thereof. Written notice was given that the death was from “ an injury received in the bowels, while working in a hay field, producing peritoneal inflammation.” Proof was subsequently furnished by affidavit of the physician, that deceased “ was killed by accident, and that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, producing peritoneal inflammation,” &o. This notice and affidavit made out aprimd facie case of death from injury resulting from accident.
    2. An accidental strain, resulting in death, is an accidental injury within the meaning of the policy.
    3. The words in the policy include death from any unexpected event happening by chance, and not occurring according to the usual course of things.
    4. The widow for whose benefit the insurance was made, in her affidavit stated that the injury happened while the deceased “ was unloading hay, when he accidentally strained himself: ” the affidavit of the physician stated the death was “ from an accident by exertions in hauling in hay; ” the proof on the trial was that the injury was from a blow from a pitchfork while hauling in hay. Held, that the variance was immaterial.
    5. The policy required no more than that there must be sufficient preliminary proof of the injury, that it was accidental and caused the death of the assured.
    6. In his application, the assured stated his occupation to be an “ earthenware manufacturer; ” there was no evidence that he had changed his occupation, but the proof was that he, while on a visit at a farm, had assisted in loading hay, and there received his death injury: Held, that this was not a change of occupation within the meaning of the policy.
    February 24th 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Certificate from Nisi Prius. No. 221,to January Term 1871.
    This was an action of debt, commenced December 4th 1868, by Anna L. Burroughs; against the North American Life and Accident Insurance Company (formerly the North American Transit Insurance Company), to recover the amount of an insurance on her husband, Garrett S. Burroughs, from death by accident. The policy was dated December, 13th 1866, and insured “ Garrett S. Burroughs, in the sum of $5000, to be paid to Anna L. Burroughs, * * * in case of death resulting within twelve months from the date of this policy in consequence of accident. * * *
    “ Provided always, That no payment shall be due, and no claim be made, under this policy by any one on account of such accidental loss of life of the assured, unless notice of such injury and of such death shall be given to the company within thirty days after the happening of either, and sufficient proof furnished said company of such injury, and that such death was caused solely by such accidental injury, and ensued within three months from the happening thereof.
    “ And provided further, That this insurance shall not extend to, or cover, or embrace, any death caused by natural disease, surgical operation, unreasonable imprudence.” * * *
    Amongst the conditions were these : — ■
    2. For the purpose of identification, notice must be given in writing to the company, at its office in Philadelphia, by the party insured, of any change of residence, name, occupation or business.

    3. In the event of any change of avocation, occupation or business, either the policy shall be cancelled and the proportion of the premium for the unexpired term returned, or the difference for the extra hazard repaid by the assured and endorsed on the policy; otherwise this policy shall be null and void.
    4. In case of injury producing death of the assured, happening as aforesaid by accident, within the meaning of this policy, the party for whose benefit the insurance is made shall, within thirty days thereafter, give notice of the same in writing, with sufficient proof of such injury and of death.
    In his application for insurance the deceased stated that his “profession or occupation,”was “earthenware manufacturer.”
    On the 12th of August ,1867, the company received the following notices:—
    “ To the North American Transit Insurance Company, No. 133
    South Fourth Street, Philadelphia, Penn.
    “You are hereby notified, that Garrett S. Burroughs, of Trenton, New Jersey, who was insured in your company, policy No. 10.980, issued December 13th 1866, came to his death by accident on the 14th day of July last.
    Anna L. Burroughs.”
    “ Pennington, August 10th 1867.
    “ This is to certify, that Garrett S. Burroughs came to his death by an injury received in the bowels while working in a hayfield, producing peritoneal inflammation, which resulted fatally.
    Henry P. Welling, Attending Physician.”
    They also received the following affidavits:—
    “ Anna L. Burroughs of Trenton, being duly sworn, deposes and says, that she is the widow of G. S. Burroughs, of Trenton, New Jersey, now deceased; that said deceased was the identical person whose life was assured against death by accident in the North American Transit Insurance Company, under policy No. 10.980, bearing date the 13th day of December, A. D. 1866 ; and that her late husband died in consequence of an accident
      which happened on the 9th day of July, A. D. 1867, on this wise: said deceased, on the day aforesaid, was assisting in unloading hay in Hopewell township, New Jersey, at his grandfather’s (where he had gone on a visit), when he accidentally strained himself. He immediately complained of severe pain, and a physician was summoned. All was done for his relief and recovery that could be, without success. He lingered till the 14th of said month, when he died, and the said accident was the direct cause of his death. Anna L. Burroughs.”
    Sworn and subscribed, &c., this 4th day of September, A. d. 1867.
    “ Henry P. Welling, of Pennington, being duly sworn, deposes and says, that he is a practising physician and a graduate of Pennsylvania University, and in regular practice in Pennington; that he personally knew the late G. S. Burroughs, of Trenton, and knows that he was killed by accident on 14th day of July last; and further, that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, and produced peritoneal inflammation and all its concomitant symptoms, which resulted in his death on the 14th day of July last. Henry P. Welling,
    Attending Physician.”
    “ Sworn and subscribed to, &c., this 23d day of August, A. D. 1867.”
    The cause was tried at Nisi Prius, March 16th, 1870, before Mr. Justice Read.
    The plaintiff testified that she and her husband had gone from their residence, in Trenton, on a visit to his grandfather’s on the 4th of July, 1867. On the 9th he went out to assist with getting in the hay; he had been in perfect health, and was in good health at the time. * * * He came in a little before dinner; he was in a great deal of pain. * * * We sent for the doctor who came in about two hours.”
    On cross-examination, she said: “ My husband was secretary and treasurer of Port Richmond Pottery Company, and had charge of the manufacturing; the company was still going on, but he had left two or three weeks previously; he was living in Trenton all the time, and w'as not in any business at the time the accident occurred.”
    The following letter from the president of the company to her, being shown to witness, she said: “ This letter was received ; I do not remember making any reply. That letter was the only objection, I remember.”
    “ September 14th 1867.
    “ Mrs. Anna Burroughs :

      “ Dear Madam: Your claim made against this company for $5000 on account of husband’s death is duly received; I have examined the case thoroughly in all its bearings, and cannot discover that your husband died as the result of any injury received by accident. The doctor certifies that he died in consequence of peritoneal inflammation. No accident happened; no injury was received; no outward and visible sign was apparent. The man took sick, gradually grew worse, and five days after, he died. He may, perhaps, have been guilty of some imprudence; but his voluntary assumption of unnecessary labor cannot by any possibility be construed into an accident. We therefore decline to pay the claim.”
    Ur. H. P. Welling testified for the plaintiff: that on the 9th of July he was called in to see Mr. Burroughs, and found him with great pain in the bowels, found an enlargement on one side, saw no bruise. Witness further described the symptoms, and continued :—
    “ I was there two or three hours, and attended every day two or three times till he died. I did not see the accident. His death resulted from accident; the inflammation resulted from injury received in the bowels, produced peritoneal inflammation. That is frequently consequent upon a blow. I should say that it was the result of something external. The symptoms agreed with what I learned of the accident. * * * He told me he had been pitching hay, and the fork-handle slipped through his hand, and struck him on his bowels. I inquired what produced pain, and he told me this, and I found swelling just where he said. The symptoms were consistent with this.”
    Dr. Samuel Murphey testified : “ Peritonitis may result from such a blow as described by Dr. Welling. It is an inflammation of the external coating of the bowels. I suppose it may have been produced by the blow.”
    Dr. Joseph Koerper testified about as Dr. Murphey.
    The plaintiff gave other evidence to maintain her case, and closed.
    For the defendants, T. W. Lawford, their solicitor, testified: “Burroughs was a master manufacturer in a pottery. He did not do any labor ; he was taken as a preferred risk, as not being engaged in manual labor; he satisfied me he was not engaged in manual labor and I took the risk.”
    Physicians called by defendants testisfied in substance, that in their opinion, from the description of the symptoms, the disease and the cause of Mr. Burroughs’s death was not that stated by Dr. Welling; and that he could not have told without a post mortem examination what occasioned the death.
    Mr. Paxson, an officer of the company, who went to inquire of Dr. Welling into the cause of the death, testified that the Doctor “ made no mention of the blow. He said he was suffering from inflammation, from straining the abdominal muscles.”
    Dr. Woodruff testified- that the plaintiff told him that Dr. Welling had said he did not think so much of the blow as the strain.
    The following were defendant’s points with their answers: — ■
    1. The deceased, having been insured as an earthenware manufacturer, and a preferred risk, could not change his occupation and engage in the labor of assisting in loading and unloading hay, without rendering his policy null and void.
    Answer: “ The objection is, that there is no such evidence that he changed his occupation. There is no evidence that he was engaged as a farmer. The only evidence is, that he goes to his grandfather’s place, and, having been on a farm in early life, he turns to and helps to load hay. I cannot therefore charge that — it is out of the question. I refuse it in the terms as it is made.”
    3. Unless the jury shall find that the death of the assured was caused solely by straining or injury of the abdominal muscles, and that such straining or injury was not the result of unreasonable imprudence, their verdict must be for the defendants.
    Answer : “ I cannot so charge. I have charged already upon that subject; for I think it is straining the case, to consider whether it was straining of the muscles or a direct injury; whether death was caused by a blow or an accident, is a matter of little consequence to the dead or the living.”
    4. The injury described in the proofs of loss is not an accidental injury, and, as such, was not covered by the policy, and their verdict must be for the defendants.
    Answer : “ I cannot so charge.”
    5. Sufficient proof of accidental injury, resulting in death, and that the death was caused solely by such accidental injury, was not furnished to the company.
    Answer : “ I decline so to charge you.”
    6. By the assured’s change of occupation, the policy became null and void.
    Answer : “ He did not change his occupation at all. There is no proof that he went into any other occupation. The only proof is, that he used to be a farmer, and, being on a visit, he turned to and assisted at hay-making ; what is submitted to you, is the question — First, Whether the blow spoken of by Dr. Welling was actually suffered by the deceased; Second, Whether that was the cause of his death. If you find both these things in favor of the plaintiff, then your verdict must be for the plaintiff, or ought to be. I will not say must be, for you are the judges of the facts and the credibility of the witnesses, and decide which you will credit, and reconcile any difference, and make up your own minds upon these two questions. If you find these two questions in favor of the plaintiff, the question then is simply resolved to the amount of the policy. There is no dispute about that. If you find for the defendants, of course there are no further instructions needed.”
    The court further charged :
    “ This is an action by Sirs. Burroughs against this company to recover the amount of insurance upon her husband’s life, to which she is entitled if death was caused by accident. I do not intend to trouble you with any of these objections, which have been made by the defendants; for I shall submit the question to you in a way which will prevent the necessity of troubling you with the same. I shall assume these points to be decided against the defendants, and that will reduce it very much to a question of fact for you; because I think it is very clear, that some of these technical objections — perhaps all of them — have been waived by the defendants themselves. Our courts have decided, that, where there is a difficulty about preliminary proofs, or where there is a difficulty about the conditions in a policy, that it is strictly within the power of the company to waive all the preliminary proofs, and, where they do so waive, they cannot claim them afterwards before a jury. [I shall therefore rule, that the plaintiff, in regard to all these objections, is entirely clear, and has, notwithstanding these, a case before the jury.]
    “We have had a great deal of discussion about what the nature of this disease was. It was caused by some accident of some kind in a hay-field — s'ome have called it by one name and some by another ; but I suppose it would be expected to be the case under the circumstances. Which doctor is right, is a question ; for, when experts are called to the stand, we find, in almost every case, you can arrange six on one side and six on the other. It is, after all, a simple question of fact. What are the facts ? What was stated by Mrs. Burroughs as the cause of the accident is in evidence before you, and is not contradicted. [A party who sustains an injury, and a physician is called in, the physician is enabled to describe the symptoms, and give such conversations as relate to the immediate matter as occurring between him and the patient] ; otherwise, a doctor would be cut down to simple statement of what the disease was, as it appeared to him. Now in this case, outside of the question of peritonitis, the question, I think, for you to decide is, whether that alleged blow caused the death. If you believe there was such a blow, and that it caused such a swelling as described by Dr. Welling, when the other parties’ physicians were not present, all they said is entirely speculative — entirely so ; and when a physician swears to a distinct fact, and that distinct fact arises from a cause — a sufficient cause— satisfactory to him, given by the party himself, the question for you is, first, whether he was so injured, having received such a blow; whether it was equal to the kick of a horse, or a blow struck below the belt, — a practice not allowed by prize-fighters,— and it caused death; although death may not have occurred for several days. If you decide that the blow was inflicted, and that the blow was an accident, then there was sufficient cause to bring this lady within the provisions of that policy.”
    The verdict was for the plaintiff for $5802.50.
    , The defendants had the record certified to the court in banc and assigned fourteen errors.
    The 4th and 6th were to the parts of the charge in brackets.
    The 7th. That the court left it to the jury to find that there was a blow from the handle of a pitchfork without competent evidence.
    9-13. The answers to the defendants’ 1st, 3d, 4th, 5th and 6th points.
    14. Not leaving to the jury to find whether there had been a change of occupation, and in ruling that there had been no such change.

      S. Dickson (with whom was J. C. Bullitt), for plaintiffs in error.
    The question of waiver is for the jury, and not the court: Insurance Co. v. Updegraff, 7 Wright 350; Insurance Co. v. Schollenberger, 8 Id, 259.
    The furnishing of preliminary proofs, according to the conditions of the policy, is a condition precedent to the right of recovery : Angell on Insurance, §§ 224, 225, 226 Klein v. Insurance Co., 1 Harris 247 ; Trask v. Insurance Co., 5 Casey 198 ; Insurance Co. v. Stauffer, 9 Id. 397.
    The waiver must be intentional, and have misled the insured to rely upon it to his prejudice : Desilver v. Insurance Co., 2 Wright 130 ; Insurance Co. v. Schreffler, 6 Id. 188.
    As to the change of occupation. The statements on the policy are to be taken as warranties: Phillips on Ins., c. ix. 892; Angell on Ins. § 140 ; Fire Association v. Williamson, 2 Casey 196 ; Miles v. Insurance Co., 3 Gray 580 ; Anderson v. Fitzgerald 24 Eng. L. & Eq. 1; Hartman v. Keystone Insurance Co., 9 Harris 466 ; Peacock v. Insurance Co., 20 N. Y. 293; Jennings v. Insurance Co., 2 Denio 75 ; Burritt v. Insurance Co., 5 Hill 188; Wall v. Insurance Co., 14 Barb. 383. The condition against change of avocation being of the nature of a warranty, is to be literally complied with: Angell on Insurance, § 140, et seq. Whether the thing warranted be material or not, and whether the loss happen by reason of a breach of the warranty, or did not, is immaterial: 3 Kent Com. 424 (312*); Elliot v. Wilson, 7 Bro. P. C. 459 ; Phillips on Insurance, chap. 9, 866, and cases referred to, Id. 868 ; Bunyan on Life Assurance 68 ; Vyse v. Wakefield, 6 M. & W. 442 ; Hathaway v. Ins. Co., 11 Cush. 448.

      J. H. Sloan (with whom was J. Goforth), for defendant in error,
    as to change of occupation cited: The West Branch Ins. Co. v. Helfenstein, 4 Wright 289; McAnally v. Somerset M. Ins. Co., 17 Leg. Int., 244; Perrins v. Marine & General Travellers’ Ins. Soc., 6 Jur. N. S. 627.
   The opinion of the court was delivered, October 9th 1871, by

Williams, J.

In this case the jury have found, on sufficient evidence, that while the insured was pitching hay, the handle of the pitchfork slipped, through his hands and struck him on the bowels, inflicting an injury, which produced peritoneal inflammation, in consequence of -which he died; that the blow which he received from the fork-handle was an accident and the cause of his death. The ease, therefore, comes directly within the terms of the policy declared on. But it is objected that the plaintiff was not entitled to recover, because no sufficient preliminary proof was furnished to the company that the death of the insured was caused solely by an accidental injury; that the injury, described in the preliminary proofs of loss furnished by the plaintiff, is not an accidental injury within the meaning of the policy, and is not covered by its provisions. The policy provides that no payment shall be due, and no claim be made under it, on account of the accidental loss of life of the assured, unless notice of the injury and of the death shall be given to the company within thirty days after the happening of either, and sufficient proof furnished said company of such injury, and that such death was caused solely by such accidental injury, and ensued within three months from the happening theredf. Substantially the same provision is also contained in the fourth condition of the policy: In case of injury producing death of the assured, happening as aforesaid by accident, within the meaning of this policy, the party for whose benefit the insurance is made shall within thirty days thereafter give notice of the same in writing, with sufficient proof of such injury and of death.

Notice was given to the company on the 12th of August 1867, within the time limited by the policy, that the assured came to his death by accident on the 14th of July, by an injury received in the bowels, while working in a hay-field, producing peritoneal inflammation, which resulted fatally. And in proof thereof, the affidavits of the plaintiff and attending physician were subsequently furnished to the company. No objection was made to the affidavits, on the ground that they were not furnished intime, and, under the evidence, no such objection could have been properly made. The only objection then and now made to the affidavits, is that they do not show that the assured died as the result of any injury received by accident.” But if the facts stated in the affidavits are true, why do they not make out a prima; facie case of death resulting from an injury occasioned by accident? The plaintiff’s affidavit expressly avers that her late husband died in consequence of an accident which happened, on the 9th of July 1867, on this wise: said deceased, on the day aforesaid, was assisting in unloading hay in Hopewell township, New Jersey, at his grandfather’s, where he had gone on a visit, when he accidentally strained himself. He immediately complained of severe pain, and a physician was summoned. All was done for his relief and recovery that could be, without success. He lingered till the fourteenth of said month, when he died, and the said accident was the direct cause of his death.” And the attending physician, after stating in his affidavit that he personally knew the assured, says that he “ knows that he was killed by accident on the 14th day of July last; and further, that the accident was occasioned by exertions made in assisting in hauling in hay, which injured the abdominal muscles, and produced peritoneal inflammation and all its concomitant symptoms, which resulted in his death on the 14th of July last.” If the facts set forth in these affidavits be true, and they are perfectly consistent and reconcilable, do they not show with reasonable certainty that the death of the assured was caused by an accident ? Taking both affidavits together they substantially allege that the assured, while assisting in hauling in, and unloading hay, accidentally strained himself, injuring his abdominal muscles and producing peritoneal inflammation, which resulted in his death; and, that the said accident was the direct cause of his death; and if so, can there be any doubt as to the sufficiency of the preliminary proof? But it is said, that if the assured strained himself while unloading hay it was not an accident insured against within the meaning of the policy. Why not, if he accidentally strained himself, as is averred in the plaintiff’s affidavit ? Why is not death resulting from an accidental strain as much within the meaning of the policy, as death produced by any other accidental cause ? If the injury be accidental, and the result of it death, what matters it whether the injury is caused by a strain or blow ? An accident is “ an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected; chance; casualty; contingency.” And accidental signifies, “ Happening by chance or unexpectedly; taking place not according to the usual cause of things ; casual; fortuitous. We speak of a thing as accidental when it falls to us as by chance and not in the regular course of things; as an accidental meeting, an accidental advantage, &c.” Webster’s Dictionary ad vería. If then these words, as used in the policy, are to be understood in their plain and ordinary meaning as thus defined, they include death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things. And there is no more reason for regarding an injury of the abdominal muscles, caused by an unexpected blow, an accident than an injury caused by a casual and unlooked for strain. If the death of the assured resulted from an accidental strain, then it was not “ caused by natural disease.” And if it resulted from any accidental strain, it does not follow that it was caused by “unreasonable imprudence,” or “the doing of an unlawful act,” and there is. nothing in the affidavits from which such an inference can be fairly drawn. Taking the facts to be as stated in the affidavits they undoubtedly make out a primá facie case of death resulting from an injury accidentally received; and if so, the preliminary proof furnished by the plaintiff must be regarded as sufficient, and there was no error in refusing the defendant’s fourth and fifth points.

Whether the plaintiff was entitled to recover on showing that the death of the assured resulted from an injury of the abdominal muscles, caused by a blow, and not by an accidental strain, is another question raised by the defendant’s third point, which we shall now proceed to consider. No objection was made to the admission of the evidence on the ground of variance, and the only question is whether the plaintiff, under the preliminary proof, was entitled to recover for death resulting from an accidental injury, shown to have been caused by a blow instead of a strain. The policy does not expressly require that preliminary proof shall be furnished of the mode and manner in which “ the injury producing death ” was inflicted; but only that “ sufficient proof be furnished of the injury and that such death was caused solely by such accidental injury.” The affidavit of the attending physician describes the injury which the assured received, and in consequence of which he died, precisely as it was proved by his testimony on the trial. The only difference between them is that in the former the cause of the injury is not stated otherwise than by terming it “ an accident,” and in the latter, it is shown to have been caused by an accidental blow from the handle of a pitchfork. But the injury, as described in both, is in all respects the same and its results are the same. If then “ the injury producing death ” is correctly described in the preliminary proof, why shall not the plaintiff be allowed to recover though she may have imputed it to a wrong cause, — to a strain instead of a blow ? It seems to us that under the terms of the policy the plaintiff is entitled to recover if she has given sufficient preliminary proof of the injury though she may have unwittingly ascribed it to a wrong cause. It is not such a variance as should be regarded as fatal. Undoubtedly there must be sufficient preliminary proof of the injury, that it was accidental, and the cause of the death of the assured. These requisites are all found in the preliminary proof furnished by the plaintiff in this case; and they are all that the policy requires. If the injury, as described in the affidavit of the attending physician, was the cause of the death of the assured, it is a matter of no consequence so far as respects the liability of the company, whether it was produced by an accidental strain or by an unexpected blow from- the handle of a pitchfork.

But it is further obj ected to the plaintiff’s right of recovery that the assured did not give notice of the change of his occupation, nor pay the difference of premium for the extra hazard, as required by the second and third conditions of the policy, and therefore the contract became null and void. But there was no evidence that the assured had changed his occupation or business, and the learned judge before whom the case was tried rightly refused to submit the question to the jury. The assured, as was shown, while on a visit to his grandfather, had assisted in hauling in and unloading hay. But this was not a- change of his occupation or business within the meaning of the policy. To give to the word such a construction would prevent the assured from performing any act or service outside of his usual avocation or business without rendering the policy null and void. Such a construction would be unreasonable and absurd, and the defendant’s 1st and 5th points were properly refused.

The 1st, 2d, 3d, 5th and 8th assignments are not in accordance with the rules and must be disregarded; but if properly made there is nothing in them which would avail the plaintiff in error. The 6th and 7th assignments are not sustained, and there is nothing in them that calls for special notice. The questions presented by the remaining assignments (the 9th, 10th, 11th, 12th, 13th and 14th) have been already considered, and as we discover no material error in the record the judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Pratt & Reath versus The H. M. Richards Jewelry Co.
    1. If the tendency of evidence offered, be to prove a fact, it is not the province of the court to say whether it would actually prove it. If with other facts in the case, it tend to establish a result, it should be admitted.
    2. Richards subleased to Pratt, a room in a building for nine years, the term having fifteen months to run. Pratt wrote to Richards that he had failed, and offered to surrender; about the same time Richards surrendered to his landlord. Pratt received no reply, no claim for rent was made for seven years; — evidence that after Richards surrendered, he delivered possession to his landlord, who collected the rents from other tenants of the building ; — that Pratt did not occupy the room afterwards, &e., was admissible in an action for rent by Richards against Pratt, on the question of surrender by Pratt.
    3. If the surrender was an accomplished fact, the Statute of Frauds did not apply: the lessor holding the premises, would be estopped from claiming rent.

      4. Richards could not claim, from Pratt, rent accruing after Richards’s surrender.
    March Bd 1871.
    Before Thompson, ,C. J., Agnew, Shabswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 7, to July Term 1870.
    This was an action of debt, brought April 29th 1868, by the H. M. Richards Jewelry Company against Dundass T. Pratt and Benjamin B. Reath, trading as Pratt & Reath, to recover 15 months’ rent of a room in the building No. 173 Broadway, New York.
    On the 24th of September 1852, James E. Cooley leased to-H. M. Richards the four stories above the first story of the above building, with the stairway and passage through the first story, for nine years and six months from November 1852, at a rent of $4500, payable quarterly. The lease contained this stipulation:
    “ And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to reenter the said premises, and the same to have again, repossess, and enjoy ; and the said party of the second part doth covenant to pay to the said party of the first part the said yearly rent as herein specified.”
    On the 1st of February 1853, Richards leased to the defendants the front room in the third story of the building for “ nine years and three months from the first day of February 1853, at the yearly rent of $1500, to be pa¡id in equal quarterly payments. And it is agreed that if any rent shall be due and unpaid, or if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to reenter (after ten days’ notice to the parties of the second part) the said premises, and to remove all persons therefrom. And the said party of the second part doth covenant to pay to the said party of the first part the said yearly rent as herein specified.” * * *
    On the 19th of September 1857, H. M. Richards assigned to the plaintiff the lease from Cooley and all his (Richards’s) estate, in the building.
    On the trial before Hare, P. J., January 26th 1870, the plaintiffs having given the foregoing leases and assignment in evidence, closed.
    The defendants called Dundass T. Pratt, who said: “ In the spring of 1861, Pratt & Reath were in business in Philadelphia ; we had previously sublet the room rented by us from plaintiffs to a firm which occupied it till- February 1st 1861; the plaintiffs had been in the habit of drawing on us by their agent, Mr. Richards, for the rent as it fell due quarterly; our firm suspended 10th of March 1861, and we notified Mr. Richards, March 22d 1861, by this letter, offering to surrender the possession of the premises:

      “ ‘ Philadelphia, March 22d-1861. Mr. H. M. Richards, New York:
    Dear Sir, — You probably have been informed that our firm has suspended. We are yet bound to retain possession of front office, third floor, 173 Broadway, for one year longer, and we submit whether it might not be to your interest to release us from the remaining year and take the letting of the office and its rents into your hands. Please let us hear from you.
    Yours truly,
    Pratt & Reath.’
    “ On the 16th of April we wrote as follows :—
    “We wrote you some time since in regard to your taking the third floor office, 173 Broadway, off our hands for the year that remains. We are too distant to manage the renting of it ourselves, and our own affairs are such that we think it to your advantage to have the collection of the rents. Under this belief we make the proposals, shall be glad to have you respond as early as possible.’
    “We received no demand for the rent from 1st February 1861 till the day this suit was brought — a lapse of seven years.”
    And being cross-examined he said: “We have never had the means of paying this rent since, and received no reply to these letters ; I made efforts to rent the premises till I heard what had passed between the company and their landlord; I heard Richards was in difficulties and that he had surrendered to his landlord; when I heard this I ceased my efforts; we made no offer to pay the rent at any time; we had not the means; I heard of the report of Richards’s difficulties, and that he had surrendered to his landlord in July 1861.”
    The depositions of W. R. Ailing and George A. Leavitt, taken before commissioners in New York, were offered in evidence.
    Ailing testified that the plaintiffs went out of business in the early part of 1861; about that time they had become insolvent; about August 1st 1861, the plaintiffs requested witness’s firm to pay their rent to G. A. Leavitt, attorney and agent of Cooley, and witness then received notice that the owner of the premises was to collect the rents, and that his firm were to be thereafter Cooley’s tenants ; the persons occupying the part leased to defendants moved out about May 1st, and afterwards the key was in Richards’s office; the plaintiffs abandoned the building about the spring of 1861; the plaintiffs collected the rents from November 1858, until May 1861; G. A. Leavitt collected them after that.
    G. A. Leavitt testified that the plaintiffs surrendered the premises to Cooley in July 1861.
    “ The front room in the third story of that building was vacant in the month of May or June 1861; I had authority to let it whenever it was vacant and to any person I chose ; I had authority from June or July 1861; I rented it to a man named Clapp; previous to this time the H. M. Richards Jewelry Company was the tenant of the whole upper part of the building ; they gave it up in June or July 1861. * * * Richards took me around the building and put me in possession of it,
    The third cross-interrogatory was: “ If to the defendant’s third interrogatory you have stated that the surrender of the lease and assignment of the rents therein assigned, took place, state particularly the names of the tenants of the plaintiffs at that time; the portions of the buildings each tenant respectively occupied; what rents they paid; how much they owed, and what rents and from whom due were so assigned. If either the surrender of the lease or the assignments of the rents were in writing, produce them, and annex them to your deposition; state in whose presence they or either of them were executed, and. by whom. Was any surrender ever made by the plaintiffs, or any person acting under their authority, to James E. Cooley or any person of the premises rented by defendants during the continuance of their term, viz., from February 1st 1853 to May 1st 1862 ? Did the said plaintiffs ever assign to James E. Cooley or any person the rent due by the defendants for the five last quarters of their term, viz., from February 1st 1861 to May 1st 1862.”
    In answer to this cross-interrogatory the witness gave the names of the tenants, &c., and said:—
    “ I do not know how much they owed. The assignment which I will produce will show what rents were assigned. The only paper I have is the assignment referred to. The paper is signed by the H. M. Richards Jewelry Company. That is all I remember about it.
    “In addition to the paper referred to, Mr. Richards took me through the building, and pút me in possession of it. He introduced me to all the tenants who were there. This was in June or July 1861. Previous to this time I had nothing to do with the building except to collect the rent of the upper part of the building from the plaintiffs, whose lease expired in May 1862. From the time of the surrender mentioned, in June or July 1861, to May 1862, I acted as landlord of the premises. The whole upper part of the building as rented by the plaintiffs was put in my possession on the time mentioned, according to the paper and the personal surrender. The paper is the only assignment I have. But in giving me possession of the building at the time mentioned, I should think he did assign the rent due by the defendants.
    “ Mr. Richards put me in possession of that building from 1st May 1861 to 1st May 1862, and any rents accruing during that period I should certainly have collected, if I could. For the quarter previous to 1st May 1861,. I considered that covered’ by the assignment, both written and personal. The assignment was made to me as agent for James E. Cooley. I think it was so expressed in the paper. Messrs. Pratt & Reath, the defendants, were not tenants during those five quarters; that is, were not occupants.”
    The plaintiffs objected to the admission of the answer to the 3d cross-interrogatory. The answer was excluded and a bill of exceptions sealed.
    The court instructed the jury “to find for the plaintiffs for the full amount of their claims, as there was no evidence of a surrender.”
    The verdict was for the plaintiffs for $2956.65.
    The defendants removed the case to the Supreme Court, and assigned for error the rejection of the evidence offered and the charge of the court.

      S. Dickson and F. Carroll Brewster, Attorney-General, for plaintiffs in error.
    A lease of less than three years may be surrendered without writing: McKinney v. Reader, 7 Watts 123; Kiester v. Miller, 1 Casey 481.
    The New York Statute of Frauds, which governs the surrender in this case, applies only to estates other than leases for a term “ exceeding one year ” (2 Rev. St. p. 134, § 6), and consequently the parol surrender here was perfectly valid and good. In all the statutes on the subject, requiring assignments or surrenders to be in writing, surrenders by operation of law have been excepted: Thompson v. Cook, 2 B. & A. 119.
    The doctrine of surrender by operation of law has been applied to any act done by the landlord, which creates a new interest in a third party or in himself, inconsistent with the tenant’s former interest ; provided the tenant and third party or landlord concur in such act and the former actually gives up possession in consequence of it: Dodd v. Acklom, 6 M. & Gr. 672 ; Davison v. Gent, 1 H. & N. 744; Grimman v. Legge, 8 B. & C. 324; Gore v. Wright, 8 Ad. & Ellis 118 ; Nickells v. Atherstone, 10 Q. B. 944; McDonnell v. Pope, 9 Hare 705 ; Doe v. Abp. of York, 6 East 86; Forquet v. Moore, 7 Ex. 870; Whitcher v. Hall, 5 B. & C. 269; Whitehead v. Clifford, 5 Taunton 518 ; Phene v. Popplewell, 12 C. B. N. S. 334; Lyon v. Reed, 13 M. & W. 310; Greider’s Appeal, 5 Barr 422. The defendants had the right to .expect that plaintiffs would accept a beneficial act: Wilt v. Franklin, 1 Binney 502.
    If the Statute of Frauds does not apply, the answer was evidence to go to a jury, and this surrender was not within the provision of the New York statute. “ The unexpired term for a year in a lease for three years may be surrendered by parol. The statute (2 Rev. St. p. 134, § 6) relates to the estate of the tenants, and not to terms of the instrument by which it is created: ” Smith v. Devlin, 23 N. Y. 363.

      J. B. Thayer and E. S. Miller, for defendants in error.
    The surrender should be established by unequivocal evidence: Brandon v. Bannon, 2 Wright 63; Taylor’s Landlord and Tenant 373. “ Where there is an express contract, the law will not imply one:” Cook v. Jennings, 7 T. R. 381. The words, “by operation of law,” are to be construed a surrender in law, by taking a new lease, which being in writing was of equal notoriety with a surrender in writing: McGinnis v. McCullough, Gilbt. R. 236; 1 Wms. Saund. 236, note b; Lyon v. Reed, 13 Mees. & Welsby 285. There must be unequivocal evidence of such a change of possession as to render it impossible for the tenant to use or occupy the premises : Whitehead v. Clifford, 5 Taunton 518; Graham v. Whichelo, 1 Crompt. & Meeson 188 ; Huddleson v. Johnson, McClel. & Y. 141; Mollett v. Brayne, 2 Campbell 103 ; Redpath v. Roberts, 3 Esp. N. P. C. 220 ; Shieffelin v. Carpenter, 15 Wend. 400; Lawrence v. Brown, 1 Seldon 394.
   The opinion of the court was delivered, October 9th 1871, by

Thompson, C. J.

It is not within the province of a court to say whether a given offer would actually prove the fact it was offered to prove, provided its tendency be to prove the fact. If it, with other facts in the case, tend to establish a result matei’ial to be established by the party offering it, it should be admitted, and go to the jury. It is for them to pass on it under instructions from the court. Bespondeant facto jur atores.

In the case in hand the letters of the defendants transmitted by mail to their landlord, H. M. Richards, offering to surrender the room in the building he had leased from Cooley and to them, his silence, and non-claim for rent for seven years, was, with the testimony of Leavitt, important to go to the jury on the question of a surrender in fact by Richards, the plaintiffs’ landlord, and its acceptance by the paramount landlord, Cooley. There was proof that the plaintiffs had failed and surrendered to H. M. Richards, and that he surrendered to Cooley. Leavitt, whose testimony was rejected, says: “ Richards took me through the building and put me in possession.” “ The whole upper part of the building was put in my possession at the time mentioned (June or July 1861), according to the paper and personal surrender.” “Mr. Richards put me in possession of that building from 1st of May 1861 to 1st of May 1862.” “ From the time of the surrender mentioned, in June or July 1861 to May 1862, I acted as landlord of the premises.” “ The front room in the third story of that building (the room of Pratt, Reath & Co.) was vacant in the month of May or June 1861. I had authority to let it, whenever it was vacant, to any person I chose.” Leavitt was Cooley’s agent, not the defendants’. Surely this was evidence on the question of a surrender accepted from defendants by Richards, and a surrender by him to the paramount landlord for himself and for the jewelry company, likewise accepted. If the surrender was an accomplished fact for the time the lease had to run, which was about a year, I cannot see wherein the Statute of Frauds had anything to do with it. If there was a surrender and acceptance, the lessee" would be estopped from claiming rent while he held the premises. These plaintiffs are, we think, in this category. If their lease was taken off their hands, what right have they to claim rent for the premises ? They were no longer landlords. In fact, their surrender acquitted them of rent, as it did their lessees. Now we say this being the appearance of the case as it is presented here, we think the learned judge should have admitted the testimony, and then both fact and law would have been eliminated properly and satisfactorily. We think the defendants were very likely damaged by the ruling of the learned judge; and that the testimony offered should have been admitted and then probably there would have been no room for the peremptory direction to find for the plaintiffs.

Judgment reversed, and venire de novo is awarded.


author: Agnew, J.

text:
    Bunnell’s Appeal.
    1. The courts of this state have jurisdiction to restrain public nuisances, producing private injury, but it will be exercised only when the right is clear and not doubtful, and when the threatened injury is of a permanent or irreparable character.
    2. That the party has a remedy at law by indictment or action, will not alone prevent the exercise of the power.
    3. A road was laid out in 1820 through Bunnell’s land; in 1868 he erected a “ stone row ” across what was alleged to be the road. In a proceeding in equity to restrain him from niaintaining the erection, &e., alleging it to be a public nuisance, and a special injury to the plaintiff, the evidence was conflicting as to whether the road had been opened by the supervisor, where it had been opened, and that the route of the road had been frequently changed, &c. Held, that the proceeding in equity could not be maintained: 1. Because of the uncertainty of the location of the road: 2. That there was a full remedy at law: 3. That the injury was not permanent and irreparable.
    March 13tb 1871.
    Before Thompson, C. J., Read, Agnbw and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from tbe Court of Common Pleas of Wyoming county : In Equity: No. 159 to July Term, 1870.
    This was a bill filed, July 28th 1869, by Charles Place and Elizabeth his wife, against James Bunnell. The bill set out:

      1. Proceedings were instituted in tbe Quarter Sessions of Luzerne county, to lay out a public road, commencing at or near the house of George Evans, in Tunkhannock township, thence to the house of John Jayne, inBraintrim township. On the 4th of April, 1820, the court ordered a public road to be laid out and opened, fifty feet wide between the points named.
    2. In pursuance of the order such road was laid out and opened from the house now of Elizabeth Place, and occupied by Samuel McClain, being at this time in the township of Washington, in the county of Wyoming, to near the house of Jerome Remmington, in the same township, and, as such, has been used by the public, recognised and worked by the proper oflicers of the township, &c.
    3. In 1868 the defendant erected upon the road “ a certain purpresture or nuisance, consisting of stone rows and wall ” — ■ entirely obstructing the public, and especially the plaintiffs, from using it, &c.
    4. The plaintiffs own valuable lands adjoining and near the road, and by reason of the obstruction, a portion of the lands are cut off from any public road, and thereby the plaintiffs have no means of going to and from the same; and other portions of their lands are inconveniently situated in regard to public roads, so that the plaintiffs’ “ way of ingress and egress to and from the same is circuitous and burdensome.” The prayer was that the defendant might be restrained from continuing and maintaining such purpresture and nuisance, and from erecting any other, and be commanded to discontinue the nuisance now existing.
    The defendant, in his answer to the 2d and 3d paragraphs of the bill averred that the road mentioned in the paragraph had never been opened as a public road, nor used by the public or recognised or worked by the proper officers as such, and that he had not erected stone rows or any other obstruction to prevent the public or the complainants from “ using any legally laid out public highway.”
    In answer to the interrogatories appended to the bill the defendant said:

      “ I did, in the year 1868, build stone rows across my fields, ■ where the plaintiffs allege there is a highway or passage, but deny that any such passage or public highway exists either in fact or in law. * * * The same have been maintained and kept up since that time.”
    An examiner was appointed to take testimony.
    From his return it appeared that at the November session, 1819, of the Court of Quarter Sessions of Luzerne county, a petition was presented asking for a road between the points set out in the bill, stating that the distance was about a mile and a half. On this petition viewers were appointed, who at the January session, 1820, reported a road, “ beginning at a road from Hunt’s Ferry to W. Jayne’s,” and running northwardly, by courses and distances, about two miles “ to the road from Hunt’s Ferry to Tioga Point.”
    This report was confirmed nisi, January 4th 1820, confirmed absolutely, April 4th 1820, and an order issued to open it fifty feet wide.
    Amongst other evidence produced by the plaintiffs was. a certified copy of the proceedings to lay out the road; including the report of the jury and the decree of the court ordering the road to be opened. It was found amongst the papers of a deceased supervisor of the township.
    A mass of oral evidence was taken by the examiner, on the question whether thé “ stone rows ” erected and maintained by the defendant were on the road laid out and opened under the foregoing proceedings. The testimony was conflicting as to whether the road had been opened, and, if so, where.
    The synopsis of the testimony, in the opinion of the Supreme Court, delivered by Mr. Justice Agnew, will present the facts in the case sufficiently for the application of the principles of the decision.
    On the return of the evidence by the examiner, the case was heard by agreement, before Elwell, P. J., on bill, answer and evidence, without reference to a master.
    After argument, the court, June 7th 1870, decreed, “that the defendant, within fifteen days after notice of this decree, remove the stone rows and wall erected by him, in the line of, or across the road leading from, &e., said road, so as not to obstruct or prevent the public or the said plaintiffs from using the same as a public road. And it is further ordered and decreed that the said defendant be enjoined and restrained from placing any other ob-Kter-etions to travel in said road. The said road being as laid out ordered to be opened of the width of fifty feet.” he defendant appealed to the Supreme Court and assigned the
    ■ree for error.

      E. Smith (with whom was W. M. Piatt), for appellant.
    The bill being for the suppression of a public nuisance, and the enforcement of a public duty, cannot be maintained in the name of a private party: Mechling et al. v. Kittanning Bridge Co., 1 Grant 416; Rhea v. Forsyth, 1 Wright 503; Sparhawk v. Union Passenger Railway Co., 4 P. F. Smith 401; Black et al. v. The Philadelphia & Reading R. R. Co., 8 Id. 249 ; Cumberland Valley Railroad Co’s Appeal, 12 Id. 218; Buck Mountain Coal Co. v. The Lehigh Coal & Navigation Co., 14 Wright 91; Reading v. The Commonwealth, 1 Jones 196. That where there is a remedy by statute law it must be pursued: Sparhawk v. The Union Passenger Railway Co., supra; Grey v. The Ohio & Penna. Railroad Co., 1 Grant 412 ; Gallagher v. Fayette Co. Railroad, 2 Wright 102 ; Updegraff et al. v. Crans, 11 Wright 103; Richards’s Appeal, 7 P. F. Smith 105. This complaint being for the obstruction of an alleged highway, a remedy has been provided by the statute law, and should be resorted to. Act 13th June 1836, Purd. 880, pl. 94; Act 31st March 1860, Purd. 230, pl. 81. Plaintiffs are not entitled to relief by injunction until their rights have been established by law: Rhea v. Forsyth, 1 Wright 503.

      R. B. Little (with whom were Little & Stitser), for appellees,
    as to a private party’s right of action, cited Adams’ Eq. 210, 211, and cases in note on page 461; 3 Sharswood’s Blackstone, notes p. 220; 3 Daniel’s Ch. Prac. 1741; Pittsburg v. Scott, 1 Barr 319.
   The opinion of the court was delivered, May 8th 1871, by

Agnew, J.

It is not to be denied that the Supreme Court and the several Courts of Common Pleas have jurisdiction to restrain public nuisances, under certain circumstances. This power is conferred by the 5th clause of the 13th section of the Act of 16th June 1836, extended over the state by subsequent legislation. But the power will be exercised only when the right is clear and not doubtful, and when the threatened injury is of a permanent, or an irreparable character. The mere fact that there is a remedy at law by indictment or action will not alone prevent the exercise of the power, but it is a reason why the jurisdiction of chancery should be confined to cases of a very plain character, where the injury is irreparable and cannot await the slow progress of the legal redress. The authorities upon this branch of equity will be found to be pretty fully collected in the cases of Commissioners v. Long, 1 Parsons’ Eq. Cases 143, and Commonwealth v. Rush, 2 Harris 186.

Tested by these principles we think the decree of the court cannot be supported upon two grounds, to wit, the uncertainty of the location of the public road upon which the alleged nuisance was erected, and the temporary character of the structure placed upon the alleged route of the road. While it must be conceded that the evidence of a public road being laid out by authority of law in the vicinity of the locus in quo is indisputable, and that an opening order was issued, there is really no reliable evidence that the route followed the lane or road through James Bunnell’s farm, on which he built the stone walls in question, or that it was even opened there under the opening order. True, there is evidence of a narrow lane passing through his land, and that work has been done on it under the authority of the supervisors of the township, and other circumstances from which a jury possibly might infer that the road was located there. But on the other hand there are countervailing circumstances which involve the route in doubt. It is admitted on all hands that the road was never opened throughout its whole length, and that the travelled route does not correspond in many places with the survey of the road as returned by the viewers. It has been shifted at many points and has been disputed and closed for many years by the occupants of the Bunnell farm, by brick fences, poles, bars, and gates. It is said by a number of witnesses that the road or lane through that farm coincides substantially with the survey of the laid out road. But even this is by no means clear, indeed is extremely doubtful. Doubtless the lane does correspond with the survey as made by the surveyors, Miller and Hine, but this does not prove that it corresponds with the original survey or location by the viewers. The surveyors admit that they found no trace of an original survey, dating back to the year 1820, and that they had no guide in beginning. True, they were shown the place where the house of Evans had stood, but how far the starting-point was from the house no one living can tell, and no evidence remains to indicate. The record calls for it as near the house. They began twenty-two perches from it. What warrant was there for this, except that by starting there their route would coincide with the lane. As they proceeded, their line crossed and recrossed the travelled route at many places, deviating from it sometimes fifteen and eighteen perches; and the last distance in the record falling short of the terminus by ninety perches. What clear evidence is there then that the surveys of these artists followed the original line of the viewers. Then again it is even more than doubtful whether the lane or road through the Bunnell farm was opened through that route, while the proof is clear it was not done under the direction of the supervisor. The two Bunnells, Benjamin, senior and junior, both testify that the road was opened by the elder Bunnell, thirty-seven or thirty-eight years ago, or thirteen years after the location by the viewers for private use, and when first opened the supervisor did not direct him where to work. When this is coupled with the other facts in the cause, it leaves the mind in a state of uncertainty whether the locus in quo is the public road, and the case becomes one to be settled by the verdict of a jury.

Finally, the alleged nuisance is clearly not one of that character which should invoke the aid of a chancellor. It is but a ay all of stone and timber built across the road, a mere barricade, to prevent passage, temporary in character, easily removed, and inexpensive. A few hours’ work after a conviction by indictment and trial would remove the obstruction at a small cost of money. It is neither permanent nor irreparably injurious. Upon a view of the whole case, therefore, we are of opinion it is one where the plaintiff should be sent into the courts of law for his redress, civil or criminal, provided both at common law and by statute. This is not the ordinary case, which was evidently in the mind of the learned judge, of an old and long-known road, clearly indicated by usage, by the recognition of the highway authorities and other sufficient evidence of its lawful location, where the loss of the original evidence is fully supplied by the facts. But here the facts that the road was never opened throughout its entire length, that through the Bunnell farm it was opened many years after the view by private hands, that the surveys lately made had no reliable beginning or ending point, and that the route has been disputed many years, are all reason to lead a chancellor to doubt and to send the case to a jury, while the obstruction complained of is but an unimportant barricade made to contest the right, and not a permanent or valuable erection, or likely to produce irreparable injury.

The character of this contention evidently requires that the defendant should hear his share of the expense of it.

The decree of the Court of Common Pleas is therefore reversed, and it is ordered that the costs be paid by the plaintiff and defendant in equal proportions.


text:
    Narehood versus Wilhelm et al.

    1. By a clause in a deed, the grantor “reserved the timber except what (the grantee) has reserved for his own use, such as building houses, fencings, &c.” The grantor entered the premises to cut and remove timber, alleging that he had not exhausted his reservation. In ejectment by the grantee, the jury found that the grantor had cut timber reserved to the grantee, but did not find that the grantor had exhausted his own right. Held, that ejectment could not be maintained.
    2. Ejectment would not lie until the right to enter to take timber had been determined. _ .
    _ 3. One exceeding his authority after an entry under authority of law, is a trespasser: aliter for abuse of authority after entry under contract.
    4. A right to standing timber gives a right to the soil, so far as to protect the right and preserve the timber, and trespass lies against the owner of the soil or other person who cuts the timber unlawfully.
    5. Boults v, Mitchell, 3 Harris 371, recognised.
    March 28th 1871.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Qlearfield county: No. 176, to July Term 1868. ,
    This was an action of ejectment brought January 9th 1866, by George Narehood against Jacob Wilhelm and others, for a tract of land in Graham township. The defendants pleaded, “Not guilty.”
    On the 30th o'f June 1848, Jacob Wilhelm, defendant, and David Wann, by articles sold the premises' to the plaintiff with the following reservation:
    “ And the said David Wann and Jacob Wilhelm, have reserved the timber, except what the said George Narehood has reserved for his own use, such as building houses and barns and fencing, and for all his own purposes on this tract 117 acres and 57 perches of land, and the said Wann & Wilhelm are to take away all the timber as fast as the said George Narehood clears the land out of his way, at any and all times, and when said Narehood gives said ■ Wann & Wilhelm notice to out and haul off the timber from any land he is or may be clearing, they shall be bound to remove it out of his way.”
    The case was called for trial before Linn, P. J., May 28th 1868. Before the jury was sworn the defendant filed this plea:—
    “ The defendants disclaim title to the land for which this action is brought, and claim title to the timber thereon growing, except timber enough for building purposes on the land (of which these premises are part), sold by Wann & Wilhelm to George Narehood, and the defendants aver that they were in possession of the said land lawfully engaged in cutting down and hauling away the timber thereon, belonging to Jacob Wilhelm or Wilhelm & Wann, which the defendants aver was their property by virtue of their reservation thereof, and because it was not necessary for building purposes thereon.”
    The plaintiff gave evidence that he had forbidden hands put on the premises, by the defendant, from cutting more timber; that the defendant entered, notwithstanding, and cut and removed timber, and that there was not as much timber remaining on the premises when he entered as was required under the reservation.
    The defendants asked the court to instruct the jury:—
    “ That this action cannot be maintained because: 1. The timber trees reserved are personal property for which, under the evidence in the cause, ejectment will not lie. 2. The defendants, under the contract of reservation, had the right of entry into and upon said lands for- the purpose of removing timber so reserved, and that right had not been determined at the time of bringing this suit. 3. That the timber not fit for building, fencing or farming purposes preserved the right of entry therefor, inasmuch as it was the undisputed property of the defendant, and he had the right to enter for it, to make such use of it as he saw fit, until his right of entry therefor was determined in the mode pointed out in the contract.”
    The court left the question as to whether the defendants had exhausted the timber to which they were entitled to the jury, and reserved the question under the defendants’ points.

      The jury found for the plaintiffs.
    The court afterwards delivered the following opinion on the question reserved:—
    “ The court in this case having instructed the jury to find for the plaintiff if they were satisfied from the evidence that at the time of the issuing of the writ in this case the defendants were cutting timber which under the reservation contained in the deed from James T. Leonard to George Narehood, dated August 27th 1858, belonged to Narehood for farm purposes as specified in the reservation, and the jury under further instructions as to how much and what kind of timber Wilhelm was obliged to leave for Narehood, found a verdict for the plaintiff for the land described in the writ, subject, however, to the opinion of the court, as to whether in any aspect in which the evidence can be viewed the plaintiff can recover in this form of action. We come now to determine the point so reserved, viz: will an action of ejectment lie in this case ? The plaintiff bases his right of action upon the fact that- Wilhelm and those employed by him, and who are made co-defendants with him, have cut timber which belonged to Narehood, and should have been left to serve the purpose of the farm. But a careful examination of the legal principles applicable to the case, leads us to conclude that Wilhelm had a right to enter upon the land for the purpose of removing the reserved timber, and that having entered for such purpose the fact of his cutting trees which the jury have found were not within his reservation, does not make him a trespasser so as to render him liable to an action of ejectment. He had a right, as we think, to enter for the purpose of ascertaining the extent of his rights and asserting them, and having so entere'd by right, his cutting down one or more trees more than he was entitled to, under the deed of conveyance, does not subject him to this form of action.
    “ Judgment is therefore ordered to be entered for the defendants, non obstante veredicto.”

    The plaintiff took a writ of error and assigned for error the entering of judgment for the defendants.

      J. B. McEnally for plaintiff in error,
    cited 2 Tr. & H. Pr. 301; McMahan v. McMahan, 1 Harris 376; Law v. Patterson, 1 W. & S. 184: Hill v. Hill, 7 Wright 521; Boults v. Mitchell, 3 Harris 371; Ulsh v. Strode, 1 Id. 433.
    There was no appearance or paper book for defendants in error.
   The opinion of the court was delivered, October 9th 1871, by

Agnew, J.

It is very difficult to reach the merits of this case. The charge to the jury is not in the record, and seems not to have been excepted to. We have before us only the opinion of the court upon the reserved point. In that we are informed by the court that the jury were instructed to find for the plaintiff, if satisfied from the evidence that at the time of issuing the writ the defendants were cutting timber which under the reservation in Narehood’s deed belonged to him for farm purposes, as specified in the reservation. It does not appear that the question was submitted whether Wilhelm had cut all the timber under his reservation to which he was entitled. According to the evidence on his part, there remained timber to be cut to the extent of ten or eleven thousand square feet; and the opinion upon the reserved point seems to proceed wholly on the ground that he had a right of entry to remove the timber. In this state of the record the only fact determined by the jury is, that Wilhelm caused his men to cut timber that belonged to Narehood. But this alone would not enable Narehood to maintain ejectment against Wilhelm, without the further fact being found that Wilhelm had exhausted all his own timber, and therefore had no longer a right of entry to cut timber under his reservation. This is one of the very points decided in Boults v. Mitchell, 8 Harris 371. The distinction there taken is between an entry under authority of law, and an entry by contract, or under the authority of a party. An excess in the exercise of the former right converts the tort feasor into a trespasser, but an abuse of the latter works no such effect. Hence, if a right of entry existed to take timber, the cutting of timber not within the right, does not destroy the right itself. Until the right itself was determined it was there held that the owner of the land could not maintain trespass quitre clausum fregit against one having a right by deed or contract to take timber. Ejectment, therefore, will not lie until the right to enter to take the timber has been determined, and this fact not being found by the jury, the right of entry on part of Wilhelm continued. It is now settled that a right to growing or standing timber carries with it a right of soil so far as is necessary to protect the right and preserve the timber; and that the owner of such a right can maintain trespass quare clausum fregit against one, even the owner of the soil, who cuts down the timber unlawfully : Boults v. Mitchell, 3 Harris 380; Greber v. Kleckner, 2 Barr 290; 2 Saunders on Pl. and Ev. 866-7*. Even a tenant, whose term has expired, and who has paid his rent and surrendered his possession, may have trespass quare clausum fregit for his way-going crop : Stultz v. Dickey, 5 Binn. 285. We do not see, therefore, that the court erred in holding that ejectment would not lie in this case. If the fact be that Wilhelm had cut all the timber under his reservation, and had no right of entry when this ejectment was brought, the plaintiff ought to have asked such instructions as would require a verdict upon this fact, so as to show that Wilhelm’3 right of entry had ceased to exist when he brought his ejectment. As the record stands we perceive no error upon which we should reverse the judgment.

Judgment affirmed.


text:
    Yost, Garnishee, versus Heffner.
    1. An attachment execution was issued from a justice, and a rule taken at the same time, on the garnishee to answer interrogatories then filed. On '■.he return day of the attachment, the defendant claimed the $300 exemption. Held, to he in time.
    2. The notice of claim was properly given to the justice: if not made to-him, his judgment would have heen conclusive.
    3. In case of levy on chattels, the claim must he made so early as not to delay the sale or to require new advertisements.
    4. Bair v. Steinman, 2 P. F. Smith 423; Strouse v. Becker, 8 Wright 206; Zimmerman v. Briner, 14 Id. 535, compared.
    March 9th 1871.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county, of January Term 1871, No. 90.
    The proceeding here was an attachment execution issued December 22d 1864, by a justice of the peace, at the suit of Samuel Heffner against William Yost, on a judgment for $32.60, recovered July 24th 1864.
    Daniel Yost was summoned as garnishee. Interrogatories to the garnishee were filed on the day the attachment was issued and a rule taken on him to answer in eight days.
    The writ of attachment was returnable December 29th. On that day the defendant claimed the $300 exemption and the garnishee filed answers to the interrogatories. On leave, the plaintiff filed additional interrogatories January 5th 1865. On the 25th of January, the garnishee answered that he had in his hands $274.66 belonging to the defendant; same day the justice entered judgment against the garnishee. He appealed to the Court of Common Pleas.
    On the trial June 28th 1867, defendant’s point was:—
    If the jury believe from the evidence that the defendant, William Yost, made his claim for the benefit of the exemption law on the return of the attachment execution to the justice of the peace, that the claim was made in time.
    Under the direction of the court the jury found for the plaintiff $63.64, the question raised by the point being reserved.
    The court afterwards entered judgment on the verdict on the following opinion:—
    “ The law requires that the notice of the claim shall be made within a reasonable time, and in this respect the case is not encumbered with difficulty, but after the return of attachment and upon the day and time appointed, notice to the justice is too late, and in fact no notice at all. The notice under the Act of Assembly must be given to the officer executing the writ. The justice is not such an officer.”
    Garnishee took a writ of error and assigned the entering of judgment for error.

      W. B. Smith (with whom was J. W. Boseberry)) for plaintiff in error.

      L. Bartholomew, for defendant in error,
    cited Rogers v. Waterman, 1 Casey 183; Strouse v. Becker, 8 Wright 206; Hammer v. Freese, 7 Harris 255; Diehl v. Holben, 3 Wright 217 ; Bair v. Steinman, 2 P. F. Smith 423; Zimmerman v. Briner, 14 Wright 535.
   The opinion of the court was delivered, February 5th 1872, by

Thompson, C. J.

Strouse’s Exr. v. Becker, 8 Wright 206, settles that a claim of exemption as against an attachment-execution must be made by the defendant within a reasonable time after the service of the writ, but what that reasonable time should be is not defined. The case, however, determines what would be an unreasonable time, to wit: by plea to the sci. fa. against the garnishee. The case was in the Common Pleas.

The case in hand began before a justice of the peace, and the court below held the claim too late, although made before the justice at the return of the writ. Of this state of fact the reserved point was predicated. We think the court erred in entering judgment for the plaintiff on the reserved question. How the demand could be made sooner than this is not apparent. To make it to the constable on serving the sci. fa. is not required by any express law. We will not say that this might not be good, but if so done it would only be for notice to the magistrate. The constable could do nothing with it; no appraisement could be made by him. The nature of the process, is to seize debts due or coming to the defendant : stocks, money deposits, notes, bonds, &c., belonging to him. This shows that an appraisement is not in the case, and therefore it would only be by way of notice of claim that it might be made to the magistrate: Larrison’s Appeal, 12 Casey 130. But if the claims might be made in that way and be effectual, what is to hinder it being directly made before the magistrate by the debtor ? It was made in this case also, the earliest period, as early as it could have been made if it had been entered on the writ, to wit: on the return day of the writ, and even before answers to the interrogatories were filed. This was enough, and the notice to the magistrate proper; if not made to him, his judgment against the garnishee would be conclusive, and exemption defeated, notwithstanding the decision cited, as also Bair v. Steinman, 2 P. F. Smith 423, and Zimmerman v. Briner, 14 Wright 536. These were all cases of attachment-execution in court, but the rule of exemption applies to execution-attachments issued by justices of the peace, as the act authorizing the proceeding by a justice shows: Act of 8th April 1859. The reason that the claim was held to be too late in Strouse’s Exr. v. Becker, supra, where it was just disclosed by plea, was that the plaintiff may have been put to expense to litigate what he could not have done if he had been made aware that exemption would be claimed out of the assets attached. This principle has ruled in cases of levies on goods and chattels. The demand must in such cases be made at a period so early as not to delay the rule or to require new advertisements. The demand must be made promptly in all cases, and we think it was in time in this case, and therefore, the judgment must be reversed.

Now, to wit, July 5th 1872, the judgment on the reserved question is reversed, and judgment is entered for the defendant below with costs.