text:
    Dellinger’s Appeal.
    1. A husband about 3825 received his wife’s share of her father’s estate ; there was evidence before the auditor that frequently until his death in 1869, he declared he held the money for her children to be paid after his death. The auditor found that he held the money in trust for the children; the Orphans’ Court confirmed the report. There being no “ plain mistake ” in the finding, Held, that the Supreme Court must accept the trust as the auditor found.
    2. The husband of one of the children and the wife of the other were competent witnesses for them.
    3. The exception in Act of April 15th 1869 does not embrace husband and wife testifying for each other.
    May 6th 1872.
    Before Read, Agnew and Sharswood, JJ.
    Appeal from the decree of the Orphans’ Court of Lancaster county: Of May Term 1872, No. 4.
    In the estate of Jacob Dellinger, deceased.
    The decedent died about May 1st 1869; he had been married more than forty years previously, to his first wife, who died shortly after their marriage, leaving two children, Mary Ann, afterwards married to Benjamin Wertz, and John Dellinger. Shortly after-wards the decedent married a second wife, Levina, who, with two children whom he had by her, viz., Barbara the wife of James R. Wertz, and Abraham W. Dellinger survived him. He left a will distributing his real and personal estate amongst his wife and children in the manner set forth in it, and appointed George S. Mann his executor.
    The executor having filed his account, D. G. Eshleman was appointed auditor to distribute the balance in the accountant’s hands.
    Before the auditor, Mary Ann Wertz and John Dellinger, children of the first wife, claimed the sum of $480, which they alleged the decedent received as their mother’s share of her father’s estate, and never converted to his own use, but held in trust for them as her children.
    Jacob Strawbridge testified for the claimants that in a conversation with the decedent, during the life of his first wife, decedent said that he had “ married a woman who had between $400 and $500, which was advanced in property for the children, * * * after their death the money was to fall to children. * * * The money of his wife he loaned to Abraham Miller, now dead. * * * I had • another conversation with him the year before he died about this money, and he repeated the same thing that he had said before. He said, after his death this money was to go to the children of his first wife. * * * He said more than a dozen times that the money he got by his first wife was to go to her children. He told me that money was put into the manor property. * * * His first wife died after he bought that property.
    Mary Dellinger, wife of John Dellinger, was offered and objected to as incompetent, being the wife of one of the claimants; she testified that “ the widow of decedent, after his death, said that the manor property was bought with his first wife’s money. * * * Pap always said that it was to remain in the property until his, death, and then John and Mary were to have what belonged to their mother, $480.” * * *
    Benjamin Wertz, husband of Mary Ann, one of the first wife’s children (also objected to), testified that he heard the decedent tell his wife “ that there were $480 in the place that John and Mary were to have out first; it was to be taken out after his death.”
    On behalf of the widow and children, the children Abraham W. Dellinger and Barbara Wertz were called, and under objection to their competency, testified to declarations of decedent, that he had expended the money received by his first wife on her account, and that it was not in the land.
    Several witnesses were.examined, who contradicted Jacob Straw-bridge’s statement.
    The auditor in his report said:—
    “ The evidence in this case clearly establishes it as an exception to the general rule, that the choses in action and money of the wife, received by the husband prior to the passage of the Act of 1848, belong to him absolutely. * * * The testimony of Benjamin Wertz, the husband of Mary Ann, and Mary Dellinger, the wife of John Dellinger, is taken into consideration on the ground that a husband and wife can testify in favor of each other, but not against.”
    After examining and comparing the testimony, particularly as to the corroboration and contradiction, he further said:—

      “ We have therefore the fact established, that the testator, soon after his first marriage, and of course not long after he received the money of his first wife, declared that he had between four and five hundred dollars of her money, which was put in the property that he then owned for her children, that after he had sold that property he declared that he had loaned that money to an individual till he could buy again ; and that when he purchased another property he invested the same money therein, where it was to remain till after his death, and then it was to go to the children of his first wife. That he repeated these declarations in almost the same words to different persons from time to time, for a term of about forty years down to a short time before his death. The auditor is of the opinion that these declarations, although none of them were shown to have been made at the time when he received the money, are clearly evincive of the intent of the testator at the moment of reduction to possession, and that they repel the presumption of personal acquisition by the testator, and establish the relation of trustee of the money for the children of the first wife. * * *
    “ But it is alleged that if the testator did create a trust of this fund, he could at any time revoke it, and did revoke it by his will. If the auditor is correct in his conclusions, the testator did create a trust of this fund for the children of his first wife. A trust once effectually created by parol cannot subsequently be extinguished, revoked or altered by the party creating it, any more than a more formal assurance. He disposes of his own property, says nothing about trusts or trust property, and revokes all other wills, legacies and bequests by him before that time made. It may be remarked that while the claimants are bound to prove their case fully and completely, so as to bring themselves within an exception to a general rule of property, they are not to be held to anything further. They are not to be visited with the, effects of any sympathy for the testator’s legatees and devisees, who are only volunteers, and therefore hound by testator’s acts and declarations as effectually as he himself would be if living. The trust having been established, the burden of proof is thrown upon the volunteers to lift it from the estate.
    “ The auditor therefore awards to John Dellinger and Mary Ann Wertz, the sum of four hundred and eighty dollars, with interest from the time of the death of the testator — say May 1st 1869.” * *
    The widow and her children filed exceptions to, the report and admission of Mary Dellinger and Benjamin Wertz as witnesses.
    The court (Long, P. J.), after reviewing the testimony, as well as discussing the law of the case, confirmed the report of the auditor.
    Levina Dellinger and Barbara Wertz appealed to the Supreme Court, and assigned for error:—
    1. The confirmation of the auditor’s report.
    2. Not deciding that Mary Dellinger and Benjamin Wertz were incompetent witnesses.

      F. S. Pyfer and Gr. M. Kline, for appellants.
    Previously to the Act of April l'lth 1848, the possession by the husband of his wife’s choses in action was prima facie evidence that he had converted them to his own use, and to repel this presumption evidence of the clearest kind was required of declarations made by the husband at the time he received his wife’s money, or afterwards, that he did not convert it to his own use: Gray’s Estate, 1 Barr 327; Gochenaur’s Estate, 11 Harris 460; Johnston v. Johnston’s Administrators, 7 Casey 450. A parol trust cannot be created by loose declarations: Hill on Trustees 93. Declarations must be made - contemporaneously with the act of disposition: Morey v. Herrick, 6 Harris 123. The claimants could not be witnesses: Breneman’s Estate, 15 P. F. Smith 298.

      N. E. Slaymaher and N. Ellmalcer, for appellees,
    cited as to
    the trust: Hind’s Estate, 5 Wharton 142; Skinner’s Appeal, 5 Barr 263; Ex parte Pye, 18 Vesey 149; Young’s Estate, 15 P. F. Smith 101. As to the competency of the witnesses: Yeager v. Weaver, 14 P. F. Smith 425.
    May 16th 1872,
   The opinion of the court was delivered, by

Agnew, J.

This case falls within the general rule that requires great weight to be given to the report of an auditor when confirmed by the court below. The question of a trust of the money Jacob Dellinger received, through his marriage with his first wife, for her children, depended on the credibility of the witness Jacob Strawbridge. Evidence was given to contradict as well as to corroborate his testimony. In such a case the auditor, who has seen the witnesses, has heard them examined and compared their oral statement, is much more capable of judging of the credibility of the testimony than we can possibly be. Therefore, when his report is confirmed by the court below, we ought not to set it aside except for plain mistake. It is not possible, on the evidence before us, to assert that such plain mistake exists. The trust therefore must be accepted as he has found it to be.

But it is contended that the wife of one of the litigants, and the husband of another, who were examined as witnesses, were incompetent to testify; and as these witnesses were heard in corroboration of Strawbrijge’s testimony, the conclusion of the auditor was drawn in part from an illegal source. The testimony of the litigants themselves was excluded as falling within the second clause of the proviso to the 1st section of the Act of 15th April 1869, which declares that the act shall not apply to actions by or against executors, administrators or guardians. But the witnesses, as wife and husband, had no personal interest in this controversy, and were not parties to it. They were not to be excluded unless they fall within the first clause of the proviso prohibiting a husband or wife from testifying against each other. The witnesses being neither parties nor interested, their exclusion could rest only on the ground of policy. But this policy is removed by the enactment which declares that no policy of law shall exclude a person from being a witness in any civil proceeding, while the exception to the enactment does not embrace a husband and wife called, to testify for each other. The first clause of the proviso, therefore, brings them within the force of the maxim, expressio unius est exclusio alterius. The second clause of the proviso evidently applies to parties or interested persons, and not to those who had at law been excluded from policy alone. The witnesses not being parties to the issue in controversy, and not being interested, were therefore competent.

Appeal dismissed, and decree affirmed with costs.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Moore versus Weber.
    1. In every demise there is an implied covenant for peaceable and quiet enjoyment, but not a guaranty to the tenant from injury by the wrongful acts of a stranger.
    2. The covenant for quiet enjoyment means only that the tenant shall not be evicted or disturbed by good title in the premises or part of them.
    3. There is no implied obligation on the landlord to repair; nor does he undertake that the premises are fit for the purposes for which they are rented, that they are tenantable or shall continue so.
    4. The rule, caveat emyptor, applies in leases.
    5. After a house was leased an adjoining owner took down his house, which left the frame partition of the leased premises exposed to the weather ; the rain beat in and injured his goods. Held, that the lessee had no cause of action against his landlord for the injury, or for not repairing.
    6. A landlord voluntarily doing repairs for the benefit of the tenant or to prevent dilapidation, is not evidence from which an inference can arise that there was a contract to repair.
    March 7th 1872.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 21, to May Term 1872.
    This was an action on the case commenced, February 18th 1869, by Peter Weber against John Gr. Moore.
    The declaration was as follows:—

      “ For that whereas the said plaintiff, before and at the time of the committing of the grievances hereinafter mentioned, was lawfully possessed of a certain building and premises, with the appertenances, situated on the east side of North Queen street, in the city of Lancaster, in which said building and on said premises the said plaintiff carried on the business of making and selling hats, &c., holding and possessing the said building and premises, as tenant of the said defendant, whereby the said defendant was in duty bound to guaranty to the said plaintiff, from time to time, and at all times, peaceable and quiet possession and enjoyment, without molestation or hindrance, of the said building and premises ; nevertheless the said defendant continuing, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said plaintiff in the possession, use, occupation and enjoyment of the said building and premises thus held by him as tenant of the said defendant, arid to render the same incommodious, unfit for business purposes, and of little or no use or value to the said plaintiff while the said plaintiff was so possessed thereof, wrongfully and unjustly and negligently permitted to be torn down a certain building adjoining the said building and premises of the said plaintiff, so that by reason thereof the said building and premises of the said plaintiff became open and exposed to the weather, whereby at divers times before the commencement of this suit large quantities of rain-water ran and flowed into the said building and premises of the said plaintiff, greatly injuring, wetting and damaging the goods, property and stock in trade of the said plaintiff, and preventing the employees of the said plaintiff from pursuing their occupation in the said building, and on the said premises, at divers times during the said period, while the said building and premises were exposed and open as aforesaid.”
    The facts in the case sufficiently appear in the opinion of the Supreme Court.
    Under the charge of the court below (Hayes, J.) the plaintiff recovered a verdict for $425. There was a rule by the defendant for a new trial and motion for arrest of judgment.
    The rule was discharged, the motion denied, and judgment entered on the verdict.
    On removal of the record to the Supreme Court the defendant assigned thirteen errors, the last of which was:—
    The court erred in not arresting the judgment for the reasons assigned: The insufficiency of the declaration.”
    P. J). Balter and T. B. Amwalee, for plaintiff in error.
    In the absence of an express agreement there is no implied obligation on the landlord to repair demised premises: Parsons on Contracts 422. The relation of .landlord and tenant is one of bargain and sale, and fully within the scope of the maxim of Qaveat emptor: Grier v. Sampson, 3 Casey 183. The landlord is not bound to repair unless he has so expressly agreed: Taylor on Landlord and Tenant 235, pl. 329.

      S. H. B,eynolds and W. A. Wilson, for defendant in error.
    The landlord is bound to restore the premises if they become untenantable by a ruinous accident: Long v. Fitzsimmons, 1 W. & S. 532. Covenant for quiet enjoyment is broken by an actual disturbance of the possession; Waldron v. McCarty, 3 Johns. 472; Kortz v. Carpenter, 5 Id. 120; Godley v. Hagerty, 8 Harris 397.
    ■If the declaration was defective it was cured by the verdict. If a declaration contains the essentials of a good cause of action, it will be sufficient after verdict: Irvine v. Bull, 7 Watts 323; Thompson v. Barkley, 3 Casey 265; Shoenberger v. Zook, 10 Id. 24; Smith v. Latour, 6 Harris 243; Robinson v. English, 10 Casey 324.
    May 16th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

This was an action on the case by a tenant against a landlord to recover damages for an alleged breach of duty in not guarantying to the plaintiff, from time to time, and at all times, peaceable and quiet possession and enjoyment without molestation or hindrance of the demised premises. There is undoubtedly in every demise an implied covenant of quiet and peaceable enjoyment — but not that the tenant shall be guarantied from all molestation or damage from the wrongful acts of strangers, having no right or title to the demised premises or any part thereof. The breach alleged was that the defendant wrongfully, unjustly and negligently permitted to be torn down a certain building adjoining the said building and premises of the plaintiff. It is clear, according to the allegata, that the building so torn down was not upon the premises demised, nor does it appear that the defendant could lawfully have prevented it from being torn down. If there was any wrong, injustice or negligence, it must have been in the persons by whom or whose command the injury was done. The probata and allegata agreed. The house let was a frame building, weatherboarded in front and behind; but the sides were stud partitions, lathed and plastered. Alongside of it was a brick building, built entirely on another lot, owned by another person; which, while it stood, fully protected the house in question. The owner of that brick building removed it, as he had a perfect right to do, and the defendant could not have prevented him. The original frame partition of the house occupied by the plaintiff was an insufficient protection from the weather, in consequence of which his goods and chattels suffered injury. It is too clear for argument that there was here no breach of the implied obligation of the landlord that the tenant shall enjoy quiet and peaceable possession during the term.

The covenant of quiet enjoyment, whether express or implied, only means that the tenant shall not be evicted or disturbed by good title in the possession of the demised premises or some part thereof. It is very clear that the wall removed was not a part of the house let, and from the nature of the case, could not have been supposed to be so. The house let was a frame building — the walls were part of an adjoining building. The learned judge below, however, appears to have thought that there was a duty on the part of the landlord to maintain the premises in a tenantable condition. From evidence that the defendant had done some repairs, he left it to the jury to infer that there was a general contract by him to do all repairs necessary to keep the house tenantable. Even admitting that this ground could be resorted to under the pleading, it is manifest that the fact that a landlord voluntarily, and at the request of a tenant, does certain repairs is no evidence from which such an inference can be drawn, as was here submitted to the jury. It must certainly appear distinctly that the repairs were done under an agreement of some kind.. The landlord may erroneously suppose himself bound, or he may do the repairs for the benefit of the property and that it may not fall into dilapidation. In the absence of an express agreement there is no implied obligation on the landlord to repair demised premises, nor does he impliedly undertake that they are fit for the purposes for which they are rented — that they are tenantable or shall continue so. If they burn down he is not bound to rebuild. The rule here, as in other cases, is caveat emptor. The lessee’s eyes are his bargain. He is bound to examine the premises he rents, and secure himself by covenants, to repair and rebuild. It was settled in Long v. Fitzsimmons, 1 W. & S. 532, that a tenant is not bound without a covenant to make substantial and lasting repairs, but that case does not decide nor does any case in this state or elsewhere, as far as we know, that the landlord is under any such obligation. These principles are fully sustained by the opinion of the present Chief Justice in Hazlett v. Powell, 6 Casey 293, where the cases are cited.

It follows from this course of reasoning that the declaration was substantially defective in setting forth no cause of action, nor on the undisputed facts of the case could it have been so amended that the plaintiff could have recovered. He had no right of action against the defendant. This is not formally assigned as a ground of reversal, as it might and ought to have been, but it is in effect in the thirteenth assignment that the court erred in not arresting the judgment for the insufficiency of the declaration.

Judgment reversed.


author: Agnew, J.

text:
    Dietrich versus The Pennsylvania Railroad Co.
    1. A passenger bought a “ Drover’s ticket,” on a railroad, at half the regular price, “ good only in (his) hands, for one seat from Philadelphia to Pittsburg, from March 11th to 16th. He went to Lancaster on the train, got off there, got on another train the next day; a conductor put him off, and afterwards allowed him to proceed ; was put off by another who had afterwards taken charge of the train; at Altoona he entered again, paid his fare to prevent being put off, and proceeded to Pittsburg. Meld, that the face of the ticket did not import a right to stop off, and the passenger had no cause of action against the company for his ejection.
    2. One conductor allowing the passenger without right to ride on the train to Altoona, did not give him a right to be carried to Pittsburg.
    3. Such tickets are qualified by the rules and regulations of the company in running their trains: provided the rules are reasonable and not contrary to the terms expressed.

      4. A purchaser of a ticket must inform himself of the rules governing the transit and conduct of the trains.
    5. A .passenger having a “stop-off” ticket cannot require a train to be stopped at a station not on its time table.
    6. The burden is not on the company to show that a passenger had notice of their reasonable rules in running trains.
    7. A general railroad ticket, which any holder may use within a reasonable time, does not authorize the holder to stop off at intermediate points.
    8. “ Good for one seat,” means a seat in the train on which the passenger enters to be carried ; not by different trains or by broken stages.
    9. This rule is subject to the exception that a passenger may resume his journey, where by misfortune or accident, not Ins fault, it has been interrupted.
    May 8th 1872.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 38 to May Term 1872.
    This was an action on the case by Adam Dietrich against The Pennsylvania Railroad Company, for ejecting him from a car of the company in which he was travelling.
    The plaintiff, a shipper of cattle, testified that on the 11th of March 1867, he purchased in Philadelphia a ticket, of which the following is a copy:—
    “Drover’s Ticket.
    Not Good on the Philadelphia Express.
    Good only in the hands of Mr. A., Dietrich, for one seat from Philadelphia to Pittsburg.
    This ticket good only until March 16th 1867.
    Issued March 10th 1867. S. H. Wallace, Agent.”
    The ticket was stamped on the back:—
    “Penna. Railroad, March 11th 1867, Philadelphia.”
    He paid $5 for the ticket; the regular fare from Philadelphia to Pittsburg was $11. He had bought such tickets or passes for a year before, but had also bought tickets from Philadelphia to Lancaster, stopped off there, and then used his pass from Lancaster to Pittsburg. He had been told by a conductor that he must go on a continuous train; he asked Mr. Wimer, a freight agent, whose business it was to endorse a certificate to enable shippers of cattle to get a drover’s ticket. He said that “ it was not intended for men like me who shipped every week to buy one additional ticket for Philadelphia. I asked Mr. Franciscus to endorse this ticket to stop off at Lancaster; he said, ‘No, sir.’ ” Plaintiff had heard Mr. Young, the conductor, refuse a man who had a similar ticket. Young said there was an order to that effect. After plaintiff purchased the ticket on the 11th, he got on the fast train, and came to Lancaster; there he got off and remained at his home that night; next day he took the fast line at Lancaster for Pittsburg. Mr. Young, the conductor, when he came around for tickets, told plaintiff he would have to get off at Landisville (the first stopping place beyond Lancaster); plaintiff did not get off. When the conductor came again, he said, “You did not get off at Landisville;” plaintiff said, “I didn’t intend to get off.” Young then told the brakesman to put him off at Mount Joy, the next stopping-place. When the train reached there, the brakesman told him he was at Mount Joy; plaintiff said, if the brakesman put him off he "would not resist; the brakesman put him off. Young told him to get on again, and he was carried to Altoona. Young there left the train, and it was taken charge of by another conductor, Mr. Hawkins. After the train was on its way, Hawkins told plaintiff he could not recognise his ticket; at Galitzin on the top of the Allegheny mountain, Hawkins put him off. Plaintiff got on as the cars were starting. Hawkins demanded his fare which he said he must pay or he would have to get off; plaintiff paid his fare to Pittsburg. “ Hawkins was not rude or unkind; he told me it was his duty to collect the fare or put me off.” The plaintiff closed.
    The defendant moved for a nonsuit which the court (Hayes, J.) directed to be entered.
    The plaintiff removed the record by writ of error to the Supreme Court, and assigned for error the entry of the nonsuit. "

      iS. H. Reynolds and O. J. Riohey, for plaintiff in error.
    6r. R. Breneman and II. M. North, for defendants in error.
    Bailway companies may make reasonable regulations for the carriage of passengers: 1 Redfield on Railways 99 et seq., 3d ed.; State v. Overton, 4 Zabriskie 435; Cheney v. The B. & M. Railroad Co., 11 Metc. 121; Beebe v. Ayres, 28 Barb. 275; Johnson v. Concord Railroad, 46 N. H. 213; C. C. & C. Railroad v. Bartram, 11 Ohio S. R. 457; State v. Gould, 53 Maine 279; Crocker v. Railroad Co., 24 Conn. 249. The purchase of the ticket by Dietrich created a contract by which he was to be carried directly from Philadelphia to Pittsburg. The company did not contract to carry him from point to point on the route at his pleasure, until he reached his destination, and when he left the train at Lancaster, he broke the contract, the performance of which was commenced when he embarked on the train at Philadelphia.
    May 13th 1872,
   The opinion of the court was delivered, by

Agnew, J.

This was a judgment of nonsuit, and the question is, whether the plaintiff’s evidence disclosed a case for the jury. Deitrich, the plaintiff, was a drover, residing in Lancaster county. On the 11th of March 1867, he purchased a drovers’ ticket from Philadelphia to Pittsburg, and took passage on the fast line on the defendant’s railroad. At Lancaster he got off, and next day (the 12th) he resumed his journey. When the conductor, Young came along collecting fares, he declined the plaintiff’s ticket on the ground that he had “ stopped off,” and informed him such were his orders. Young told him he must get off at Landisville. After passing Landisville, finding him still on the train, Young told him he must get off at Mount Joy. At Mount Joy the brakesman put him off, but Young, who observed the brakesman taking him across the track, halloed at him not to put him off in that way; and told Dietrich to get on again. He was then carried to Altoona, where Young’s portion of the route ended. After leaving Altoona, Hawkins, the conductor from Altoona to Pittsburg, came around, and the plaintiff exhibited his drover’s ticket. Hawkins refused it and put him off at Gralitzin, at the west end of the mountain tunnel. The plaintiff got on without leave, and Hawkins again refusing his ticket, the plaintiff paid his fare from Altoona to Pittsburg.

On his cross-examination, the plaintiff stated that Hawkins was not rude or unkind, and told him it was his duty to collect the fare or put him off. Dietrich said to him, I want this tested and I want you to put me off genteely.” The question is, therefore, simply upon a breach of the contract for carriage, and depends on its terms. Before examining the terms of the ticket, it is proper to clear the ease of some immaterial matters. Stress is laid on the statement of Wimer, that the restriction of stopping off, was not intended for such men as he, who shipped stock over the road every week. This clearly has no influence whatever in ascertaining or interpreting the terms of the ticket; he afterwards purchased from the proper ticket agent. Wimer was a mere freight agent, whose duty had no relation to the sale of tickets, but was confined to giving the required certificate to entitle Dietrich to a drover’s ticket. When Dietrich went to Franciscus, and asked him to make the ticket so as to stop off at Lancaster, Francispus said, “No sir.” He admits that he knew of the restriction as to stopping off, which his request implies, and that he had seen Young refuse another drover’s ticket for this cause, and that in consequence he had been in the habit of buying a ticket from Philadelphia to Lancaster, when he wished to stop off. The restriction, and his knowledge of it, if this were necessary, are plainly proved by himself. It is evident, therefore, that the plaintiff is thrown upon his ticket and the terms it imports or recognises, as the evidence of his right of transit over the defendant’s road. The ticket is in these words : “ Drover’s ticket. Not good on the Philadelphia Express. Grood only in the hands of Mr. A. Dietrich for one seat from Philadelphia to Pittsburg. This ticket good only until March 16th 1867. Issued March 11th 1867. S. H. Wallace, agent.” On the back is stamped “Penna. R. R., March 11th 1867. Philadelphia.” Such tickets are evidence of the payment of the fare, and of the right of the holder or party named, as here, to be carried according to its terms. So far as they are expressed the terms are binding of course, but such tickets are not the whole contract, which must be gathered, so far as not expressed, from the rules and regulations of the company in running its trains. This is the generally received doctrine, with the qualification, however, that these rules and regulations must be reaspnable and not contrary to the terms expressed: see Johnson v. The Concord Railroad Co., 46 N. H. Rep. 213, and cases there cited; The State v. Overton, 4 Zabriskie 435; The Clev., Col. & Cin. Railroad Co. v. S. H. Bartram, 11 Ohio St. Rep. 457; Cheney v. The Boston & Maine Railroad Co., 11 Met. 121. With the same qualification of reasonableness it is also well settled that one who buys a ticket is bound to inform himself of the rules and regulations of the company governing the transit and conduct of its trains. Thus he must ascertain the train in which he is to go, the time of its departure and arrival, its stopping stations, his right to get off and get on, to resume his trips, &c. See the cases, supra. If the law were otherwise a railroad company could not regulate the running of its trains to suit the interests of the public or of themselves. Eor this purpose some trains 'must be fast, with few stoppages. Others must be slow, with frequent stoppages. Some must be through trains and others local. It is very clear that a passenger with a through ticket cannot require a local train to’ carry him through. Nor can he require a through train to stop at a way station not in its time table. Even having a stop-off ticket would not increase his right to require the train to stop at a station not in its time table.

It is evident that if in such cases the holders of tickets can compel the trains to alter regulations, they would be governed by the passengers and not by the company. An excursion party on this principle, stopping off at will, would overcrowd a subsequent train to the discomfort of the proper passengers, and to the prejudice of the interests of the company. The authorities, as well as the reason of the thing, show that the company must make its own regulations, and that passengers purchase their tickets subject to these rules, and that it does not lie on the company to bring home notice of them in order to establish the terms of the contract of carriage. In this case, the testimony of the plaintiff himself clearly shows that his ticket did not entitle him to stop off at Lancaster, and if notice were necessary that he knew that fact. This brings us now to the question, whether the face of the ticket, by its terms, imports a right to stop off. The first noticeable and very obvious thing is, that the terms on the face of the ticket are very restrictive. It is expressed to be a “ Drover’s ticket.” It cannot be used by any other than a drover. Then it is not good on the Philadelphia Express; it is good only in the hands of Mr. A. Dietrich;” no one else can use it; then, “this ticket is good only until March 16th 1867.” It is therefore not good after that day. It is restrictive from the beginning to the end, and is wholly unlike a general ticket which any holder may use, within any reasonable time and yet even as to such tickets, the authorities are clear, the right to stop off at intermediate unnamed points, does not exist unless by means of stop-off tickets or the customary rules of passage. The expressed terms- of a drover’s ticket being all restrictive without exception, it gives no countenance to an implied right to stop-off. The reason is obvious also; the ticket is sold at less than half price ; that is, this was for five dollars instead of eleven. Its purpose is special, and the restriction in time (until the 16th of March) was to prevent abuse of the benefit intended to be conferred oh a particular class of persons.

With all these restrictions on the face of the ticket, and in full view of the purpose of the ticket, it is obviously impossible to interpret the words, “ good only until March 16th” into an enlargement of the contract, so that it shall read, contrary to the regulation of the company, “ good to travel every day, from day to day, from the 11th to the 16th of March, by as many trains from and to every station at which the trains stop, and by as many stages as A. Dietrich may elect to make.” Then when we come to the marrow of the ticket, to wit, good for “ one seat from Philadelphia to Pittsburg,” it does not change the purpose, and the restrictive character of it. There is nothing in the words “one seat” which enlarges the meaning so that the holder may take seat after seat, train after train, day after day, and from station to station, especially in contravention of the known regulations of the company as to the travel on such tickets. It necessarily follows that the contract for “ one seat from Philadelphia to Pittsburg” must mean in the train which the holder of the ticket enters to be carried, and not by train after train, and by broken stages day after day. That this is the true interpretation of the contract is decided in State v. Overton, 4 Zabriskie 438; Clev., Col. & Cin. Railroad Co. v. Bartram, 11 Ohio St. R. 462; Johnson v. Con. Railroad Co., 46 N. H. 213, and Cheney v. Bos. & M. Railroad Co., 11 Metc. 121; Angell on Carriers, ed. 1868, sect. 609. No cases are cited to the contrary, and we remember none. The language of C. J. Green, on this point, in State v. Overton, is so much to the purpose we quote it: “ The question,” he says, “is obviously a question of contract between the passenger and the company. By paying for passage and procuring a ticket from Newark to Morristown, the passenger acquired the right to be carried directly from one point to the other without interruption. He acquired no right to be transported from one point to another upon the route at different times and by different lines of conveyance, until the entire journey was accomplished. The company engaged to carry the passenger over an entire route for a stipulated price. But it was no part of the contract that they would suffer him to leave the train and resume his seat in another train at any intervening point upon the road.” “ If the passenger chose voluntarily to leave the train before reaching his destination, he forfeited all rights under his contract. The company did not engage and were not bound to carry him.in any other train, or at any other time, over the residue of the route.” “ This is the clear legal effect of the contract between the company and the passenger in the absence of any evidence to the contrary. If the passenger insists that under his contract, by virtue of general usage, or the custom of the road, he is entitled to be carried at his pleasure, either by one or different trains, the burthen of proof was upon the state;” that is, it lay on the passenger, the case being an indictment against a conductor for a battery in putting off a passenger unlawfully.

■ In adopting this language of the learned chief justice of New Jersey, we should not omit to guard our meaning by saying there may be exceptions where, from misfortune or accident, without his fault, the transit of a passenger is interrupted, and where he may resume his journey afterwards. ' In the present case the ticket of Dietrich gave him no right to stop off, and the company, when he took his seat in the train at Philadelphia, having entered upon the performance of its contract, had a right to continue its execution -without interruption. Another reason is, that fare covers the ordinary luggage of the passenger, entitling it to be checked through to the point of destination. But if the passenger may stop off he may demand his baggage at each stoppage, or if it go on he will not be at the end of the journey to receive it. The contract was therefore broken by Dietrich himself when he stopped at Lancaster without permission. When he came upon the train, the next day, he began a new journey, and on refusing to pay his fare he became a trespasser, and was rightfully put off at Mount Joy. But it is argued that as he was permitted by Young to reenter the train and was carried to Altoona, he acquired a right to be carried to Pittsburg. This is erroneous. When Dietrich stopped at Lancaster, his right of transportation under his ticket ended, as we have seen. Consequently, when he began a new passage the next day, he was bound to pay his fare. He knew this, and that he was put off at Mount Joy because he would not pay it. Therefore Young, as conductor, being bound by the rules of the company, not only had no authority, but acted against his orders in permitting him to return upon the train without payment of his fare. The ticket having lost its title to be recognised, all that Young did thereafter was unauthorized, and the plaintiff knew this. Clearly no title to be carried through to Pittsburg could be acquired by Young re-offering him to ride without payment of his fare. Young could not carry him, and could not, by his omission to collect the fare, send him forward without payment of any. His violation of duty, in carrying a passenger without payment of fare, clearly could not bind his successor upon the remainder of the route. It is very clear that when Hawkins took his place on the train,- between Altoona and Pittsburg, it was not only his right but his duty to demand the fare between those places. He found Dietrich without a ticket importing a right of passage, and without any evidence of payment of the fare. -The fact that the company had lost the fare from Lancaster to Altoona by Young’s violation of duty, conferred no right of further transportation, while Dietrich, at every step afterwards, was travelling without right, and with full notice that he was doing so. As remarked by Beebe v. Ayres, 28 Barb. 278, the conduct of one conductor in violating the rules of his employers, could not prejudice another employee more faithful than himself, who has adhered to his instructions, and discharged his duties under them.

The judgment of the court below is therefore affirmed.


author: Read, J.

text:
    Stiles versus Geesey.
    1. A woman hitched her horse with a carriage to a tree on the road so
    that the carriage projected into the road. A wagoner not being with his horses, his wagon struck the carriage, injured it and the horse ; there was evidence of negligence in leaving the carriage where it was struck. In a suit against the owner of the wagon, the court affirmed the following point of the plaintiff: That Thomas Stiles cannot excuse the negligence of Wil-
    liam Stiles by showing that the plaintiff’s property was placed where it received the injury by want of ordinary care by Mrs. Geesey, if in the opinion of the jury such want is imputable to her, should the jury believe that William Stiles was chargeable with negligence in leaving his team and permitting it to go along the highway unattended.”. Held to be error, being, except as to the negligence of the defendant, a binding instruction.
    2. For an injury resulting from mutual or concurring negligence, no action will lie, because there can be no apportionment of damages.
    May 8th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of York county: No. 34, May Term 1872.
    This was an action of the case, brought to January Term 1869, hy Jacob B. Geesey against Thomas Stiles, for injury by the negligence of the son of the defendant, by which the horse and carriage of the plaintiff were injured.
    On the 16th of November 1868, the wife of the plaintiff, driving home in a light carriage of her husband’s, stopped at a friend’s house, hitched her horse to a tree in the roadjmposhe the house and went into it. Whilst she was there the son, William
    Stiles, was driving his team with a loaded wagon along the road, and being some distance from it, the wheel of the wagon caught the wheel of the carriage; in the collision the horse was thrown, broke his leg and had to be killed shortly afterwards.
    There wasmuch evidence on both sides; the question being mainly whether there had been contributory negligence on the part of Mrs. Geesey.
    The facts in the case are so fully set out in the opinion of the Supreme Court as to render it unnecessary to make a further statement of them.
    • The third point of the plaintiff, which was affirmed by the court below (Fisher, P. J.), is as follows: — ■
    “ That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury by want of ordinary care by Mrs. Geesey, if in the opinion of the jury such want is imputable to her, should the jury believe that William Stiles was chargeable with negligence in leaving his team and permitting it to go along the highway unattended.”
    The verdict was for the plaintiff for $206.15.
    The defendant removed the case to the Supreme Court and assigned a number of errors, one of which was the affirmance of the foregoing point.

      W. C. Chapman and I. L. Mayer, for plaintiff in error,
    cited Shearman & Redfield on Negligence, sect. 33, 34; Murphy v. Deane, 101 Mass. 455.

      Cochran May, for defendant in error,
    cited Norristown v. Moyer, 17 P. F. Smith 353; Brown v. Lynn, 7 Casey 510; Shaw v. Reed, 9 W. & S. 72; Davies v. Mann, 10 M. & W. 546; Beach v. Parmeter, 11 Harris 196; Gray v. Scott, 16 P. F. Smith 345.
    May 30th 1872,
   The opinion of. the court was delivered, by

Read, J.

This was an action b^ Jacob Geesey against Thomas Stiles, to recover damages for an injury to his horse and wagon by the negligent driving by the defendant’s son of his team and wagon along a public highway. The road was twenty feet wide, and the plaintiff’s horse and wagon were hitched to a staple on a cherry tree on the side of the road in front of the house of Henry Myers. Mrs. Geesey who drove the wagon, went into the house after she had hitched it to the tree. William Stiles, who drove his father’s team and wagon loaded with lime, was obliged in going down a hill to get off his saddle-horse to draw the rubbers on his wagon, and he walked down to Myers’s barn and then loosened his rubbers again. From the barn towards the house the grade is ascending, and seeing Ephraim Strayer, one of the witnesses, on a wagon in Myers’s barn-floor, unloading corn-fodder, he stopped a moment to exchange a few words with him, his team moving on slowly at the time with the load np the hill, keeping the travelled track of the road till the front horse was just behind Mr. Geesey’s spring wagon, standing unattended where it was left; at this point of time Stiles was behind his own wagon, but did not see the obstruction in the road in time to avoid a collision. The team and spring wagon got fastened together. The left hind wheel of Mrs. Geesey’s wagon was caught between the rubber and hind wheel of Stiles’s wagon. Stiles halloed “Whoa,” and his horses stopped. The mare had her left front leg broken, and some days after had to be killed. The next day a number of the witnesses, who collected at the place of the accident, drove a stake in the road just where the left wheel of Stiles’s wagon passed along. Both plaintiff and defendant were present. The stake was driven in to mark the track of the wagon, and that place was not disputed at the trial. It was one or two feet from the bank at the left-hand side of the road. Actual measurements showed that there was a space from that stake to the lower rut of the road of six and a half feet, and from that rut to the cherry tree a further space of eleven and a half feet; allowing six feet for the breadth of Stiles’s wagon, there was a breadth of twelve feet of the road left for Mrs. Geesey’s wagon and horse. Counting the breadth of Stiles’s wagon to the right of the stake, and the two feet from the stake to the bank, it appears that Stiles’s team occupied eight feet of the track of the road, and Mrs. Geesey’s twelve feet. When the wagons caught Stiles halloed “Whoa,” and the team stopped. The mark of the wheels of Mrs. Geesey’s wagon on the ground, where it was dragged along by Stiles’s wagon, after colliding, was about eight inches in length. Stiles’s team would appear, therefore, to have stopped almost with the collision. The same witness testifies, that the track of his wagon is five feet six inches wide, and that the rubber beam stands six inches further out than the rim of the wheel. Two witnesses testify that the left hind wheel of the spring wagon was caught between the rubbers and the hind wheel of Stiles’s wagon. As the hubs of the wheels of Stiles’s wagon were inside the range of the rubber beam, and the left wheel of the spring wagon caught between the rubbers and wheel, it follows that it could have been so caught, only by the sudden backing of Mrs. Geesey’s horse and wagon, while the hind wheels of Stiles’s wagon were in the act of passing, and after the rubbers had passed the wheel.

We have taken in brief, the defendant’s statement of his defence, which fairly raises the question of contributory negligence. “It is an incontestable principle that where the injury complained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually in fault there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief:” per Woodward, J., 12 Harris 469.

“ The question presented to the court or the jury is never one of comparative negligence, as between the parties; nor does very great negligence on the part of a defendant, so operate to strike a balance of negligence as to give a judgment to a plaintiff whose own negligence contributes in any degree to the injury:” Wilds v. Hudson River Railroad Co., 24 N. Y. 432.

The third error assigned is that the court erred in their charge to the jury on the plaintiff’s third point, which was as follows: “ That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury, by want of ordinary care, by Mrs. Greesey, if in the opinion of the jury such want is imputable to her, should the jury believe William Stiles was chargeable with negligence, in leaving his team and permitting it to go along the highway unattended, which point the court affirmed, holding that although there was contributory negligence on the part of the plaintiff, he was entitled to recover from the defendant on account of his negligence. This was a binding instruction upon the jury, leaving nothing for them to inquire into practically, except the negligence of the defendant. In this the court committed a clear error, and the judgment must be reversed, and venire de novo awarded.


text:
    New Holland Turnpike Co. versus Lancaster County.
    1. Viewers reported in favor of a bridge, suggesting that a turnpike company should pay one-third the cost: the company agreed to do so ; the report was confirmed and the bridge erected by the county at a cost of $16,500; inspectors reported the bridge well erected, &c., but valued it at $11,000 ; the Court of Quarter Sessions disapproved the report. Held, that the company could not take advantage of that proceeding which was res inter alios acta, but was bound for one-third of the bonfi fide cost of the bridge.
    2. The company entered into a bond in the penalty of $4000, to pay one-third of all reasonable and proper expenses in building the bridge.” Held, that the county in covenant could recover one-third of the expenses, although beyond the penalty of the bond.
    3. The obligee in such bond may elect to proceed in debt for the penalty, but cannot then go on the covenant; or on the covenant, when he may recover as often as injury arises.
    May 8th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 49, to May Term 1872.
    This was an action of covenant commenced, September 29th 1869, in which The County of Lancaster was plaintiff and The New Holland Turnpike Company defendants.
    The cause of action was the following instrument, dated June 3d 1868:—
    “ Whereas, at a stated meeting of the New Holland Turnpike Road Company, held on Friday, February 28th 1868, a resolution was passed agreeing to pay one-third part of all reasonable and proper costs of a bridge across Conestoga creek, on the line of the said turnpike, at a point known as Binkley’s Bridge, &c.; said contemplated new bridge to be erected by authority and under the directions of the commissioners of Lancaster county.
    “ Know, therefore, all men by these presents that the New Holland .Turnpike Road Company is hereby held and firmly bound unto the commissioners of Lancaster county, &c., in the sum of .$4000.
    “ The condition of the above obligation is such that if the above bounden New Holland Turnpike Road Company shall well and truly pay or cause to be paid the one-third part of all proper and reasonable expenses incurred in the building or erection of the said bridge by and under the authority and directions of the commissioners aforesaid, within sixty days from and after its completion, &c., the obligation to be void,” &c.
    The cause was tried, and the jury rendered a verdict of $5500 for the plaintiffs.
    After a motion for a new trial, &c., the parties stated a case exhibiting these facts:—
    On the 19th of August 1867 a petition was presented to the Court of Quarter Sessions, praying for viewers for a bridge at the point mentioned in the foregoing bond. Viewers were accordingly appointed; they reported in favor of the bridge, suggesting that the cost should be borne equally by the defendants, the townships of Manheim and East Lampeter, and the county of Lancaster; this report was approved by the grand jury and the court, and subsequently the county commissioners agreed that they would erect the bridge if the defendants would pay one-third of the cost; the defendants thereupon executed the above bond. After the delivery of the bond the commissioners obtained an estimate of the cost of the bridge, advertised the letting, and contracted for its erection for $16,500. On the 18th of January 1869 inspectors were appointed, who, on the 6th of February 1869, reported that the bridge was constructed of good material and in a workmanlike manner, but that in their opinion part of the structure was too light, &c., and “ having had the cost and material of erection carefully estimated by one of the inspectors, they value it at $11,000.” On the petition of an owner of a mill, &c., about where the bridge crossed the Conestoga, “ and a tax-payer of the county of Lancaster,” the court, February 8th 1869, granted a rule on the contractor and county commissioners “to show cause against the report of the inspectors,” which rule on the 14th of August 1869 was made absolute.
    It was agreed by the case stated:—
    1. If the report of the inspectors, fixing the valuation of the materials used in said bridge, and the cost of erecting the same at $11,000, is binding upon the plaintiffs, and that the said plaintiffs are not entitled to recover from the defendants more than the one-third thereof, then judgment to be entered for plaintiffs against the defendants for $3666.66, with interest thereon from March 20th 1869.
    2. If the said plaintiffs are not bound by the report of the inspectors, and may recover more than the said sum of $3666.66, but cannot recover beyond the penalty named in said bond, then judgment in favor of the plaintiffs against the defendants for the penalty, viz., $4000, with interest from March 20th 1869.
    3. If the plaintiffs are not bound by the report of the inspectors as aforesaid, and not limited by the penalty mentioned in said bond, then judgment in favor of plaintiffs against the defendants for the amount of the verdict, viz., $5500, with interest from 10th day of September, A. D. 1871.
    The court entered judgment on the case stated for the plaintiffs for $5500, with interest from September 10th-1871.
    The record having been removed to the Supreme Court, the defendants assigned for error the entering of judgment as above.

      A. M. Frantz and O. J. Dickey, for plaintiffs in error,
    referred to Act of June 13th 1836, §§ 41,43, Pamph. L. 560, 2 Br. Purd. 1281, pl. 66, 68; O’Loughlin v. Jefferson Co., 6 P. F. Smith 62, as to the effect of the report of the inspectors. As to the plaintiff being limited to the penalty of the bond: Addison on Contracts 1156; Wilde v. Clarkson, 6 T. R. 304; Lonsdale v. Church, 2 Id. 388; Lowe v. Peers, 4 Burrows 2225; Hellen v. Ardley, 3 Carr. & Payne 12; 2 Starkie N. P. 167; Perit v. Wallis, 2 Dall. 252; Hughes v. Hughes, 4 P. F. Smith 240; Burr v. Todd, 5 Wright 206; Arnold v. U. States, 1 Gallison C. C. R. 348; s. c. 9 Crunch 104; Goldhauck v. Duane, 2 W. C. C. 323; Lawrence v. U. States, 2 McLean 581; Farrar v. U. States, 5 Peters R. 373.

      J. Landis and Gc. M. Kline, for defendants in error.
    This is a question of compensation to be measured by the injury, not one of liquidated damages: Shreve v. Brereton, 1 P. F. Smith 185; Graham v. Bickham, 4 Dall. 149; Robeson v. Whitesides, 16 S. & R. 320; Curry v. Barer, 7 Barr 470; Burr v. Todd, 5 Wright 206; Streeper v. Williams, 12 Id. 450; Hughes v. Hughes, 4 P. F. Smith 244; Lowe v. Peers, 4 Burr. 2228.
    In covenants secured by a penalty, if the party does not choose to go for the penalty, he may proceed upon the covenant, and recover more or less than the penalty: Dick v. Gaskill, 2 Wharton 183; Harrison v. Wright, 13 East 343; Davies v. Penton, 6 B. & C. 216; Martin v. Taylor, 1 Wash. C. C. R. 1; Collins v. Collins, 2 Burr. 826; Dougherty v. Lewellen, 2 Bibb 364; Kennedy v. Kennedy, 3 Id. 464.
    May 16th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The first question presented by the case stated is whether the report of the inspectors of the bridge fixing the valuation of the materials used in it and the cost of erecting the same at $11,000 is binding upon the plaintiff below. The agreement recited in the bond sued upon is that the New Holland Turnpike Road Company would pay one-third part of all reasonable and proper costs of a bridge across Conestoga creek, &c., and the condition of the bond is to the same effect, to pay or cause to be paid “ all proper and reasonable expenses incurred in the building or erection of the said bridge.” The appointment and report of the inspectors was under the Act of Assembly for the protection of the county, and so far as that was concerned, at least in this action, was disposed of by the opinion and order of the court disapproving of the report, and making absolute the rule against it. The New Holland Turnpike Road Company were strangers to that proceeding ; as to them it was res inter alios acta. Had the county eventually been compelled to pay only $11,000, the company would have been liable for no more than one-third of that amount. Had the inspectors reported for the full amount, the company would not have been bound. It would still have been open to them to take defence on the ground that it was more than the reasonable and proper cost of a bridge, one-third of which was all they agreed to pay. As they would not be estopped in that case, neither can they take advantage of the report, unless in point of fact the effect of it had been to relieve the county from payment.

The second question is a more difficult and important one— whether the plaintiff below can recover an amount beyond the penalty of the bond. It is to be observed that this is not an action of debt to recover the penalty, but of covenant on the agreement of which the bond is evidence. It is not a mere bond in a penalty — on a condition to be void upon the doing or not doing a collateral act, .either by the obligor or a third party. Such is the usual case in official bonds with sureties, conditioned for the faithful performance of the duties of some office, or for accounting for money, or an ordinary private bond of indemnity by sureties. In such cases it may be conceded that the penalty of the bond is the limit of liability on the instrument itself: United States v. Arnold, 1 Gall. 358; s. c. 9 Cranch 104. The instrument before us commences with a recital, that “ at a stated meeting of the New Holland Turnpike Road Company, held on Friday, February 28th 1865, a resolution was passed agreeing to pay one-third part of all reasonable and proper costs of a bridge across Conestoga creek.” The weight of authority is very preponderating that upon such a bond with a penalty, covenant will lie to recover damages, and that whenever such is the case the amount of damages recovered may exceed the penalty. In Lowe v. Peers, 4 Burr. 2228, Lord Mansfield said: “ There is a difference between covenants in general and covenants secured by a penalty or forfeiture. In the latter case the obligee has his election. He may either bring an action of debt for the penalty and recover the penalty (after which recovery of the penalty he cannot resort to the covenant, because the penalty is to be a satisfaction of the whole), or if he does not choose to go for the penalty, he may proceed upon the covenant and recover more or less than the penalty toties quoties.” This is at law, and he adds what it is material to remember, that equity always relieves against a penalty upon compensation. The cases on this subject are cited in a note by the reporter to Cellen v. Ardley, 3 C. & P. 12; see also Winter v. Trimmer, 1 Blackst. 395; Bird v. Randall, Id. 373; Astley v. Weldon, 2 B. & P. 346; Lonsdale v. Church, 2 T. R. 388; Harrison v. Wright, 13 East 343. Our own decisions are in accord with this doctrine. In Perit v. Wallis, 2 Dallas 252, there was a bond in the penalty of ¿65000, conditioned that the obligor would within six months obtain certain patents from the land-office, a verdict for ¿65000 debt, and ¿61922 damages was returned. In Graham v. Bickham, 4 Dallas 149, there was an agreement and a penalty, and the court said : “ The substance of the agreement between the parties was to buy and sell stock. The penalty was merely superadded as a security for performance and not as a sum to be paid and received absolutely in lieu of performance. The plaintiff is entitled (notwithstanding the penalty) to recover damages commensurate with the injury suffered by a non-performance.” So in Dick v. Gas-kill, 2 Whart. 184, it was held that where there is a contract for the performance of certain things and the party binds himself in a penalty for the performance, the party complaining of the breach of such contract has his election either to bring debt for the penalty or case for the breach of the contract, and in the latter case may recover even beyond the amount of the penalty in damages. A sum greater than the penalty was allowed to be recovered in Martin v. Taylor, 1 Wash. C. C. Rep. 1; Shreve v. Brereton, 1 P. F. Smith 175; and Hughes v. Hughes, 4 P. F. Smith 240. It follows that the judgment of the learned court below on the case stated was right.

Judgment affirmed.


author: Thompson, C. J.

text:
    Nyman’s Appeal. Fickes’s Appeal.
    1. A sheriff returned to an execution, that “ at the time of the levy, the defendant demanded ” the $300 exemption out of the real estate which consists„of one- tract and cannot he divided, and he claimed that amount out of the proceeds when sold.” ' The sheriff also testified that there was no appraisement. Held, that the defendant was not entitled to the $300.
    2. Marks’s Appeal, 10 Casey 36, followed.
    3. Fiekes sold land to Harman, and entered a judgment April 6th 1861, for purchase-money. Harman, March 14th 1866, sold to Heagy, who then went into possession, and on the 6th of April, at 8 a. m., executed a deed to Heagy: on the same day at 12 m., Fiekes entered judgment of revival on his purchase-money judgment by amicable sci. fa. against Harman alone. Heagy being a witness to the agreement for the sci. fa., judgments were afterwards entered against Heagy. Held, 1. That the judgments took precedence of Fickes’s. 2. Heagy’s witnessing the agreement did not make him a party to the sci. fa.
    March 9th and 10th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeals from the Court of Common Pleas of Adams county: No. 79 and 80, to May Term: In the distribution of the proceeds of the sheriff’s sale of the real estate of Eli G. Heagy.
    By the report of A. J. Cover, Esq., the auditor appointed to make the distribution, it appeared as follows:—
    In 1861, Joseph Harman bought a farm from Ralph Fiekes. On the 6th of April 1861, Fiekes entered a judgment against Harman on a bond and warrant of attorney for $1000, part of the purchase-money, payable in yearly instalments of $200 each; the last being payable April 1st 1871. In 1866 Harman sold the farm to Eli G. Heagy, who went into possession on March 14th 1866; Harman delivered the deed to Heagy on the 2d of April 1866, between 7 and 8 o’clock in the morning. Between 8 and 9 o’clock Harman informed Fiekes that the deed had been executed. On the 2d of April, between 11 and 12, a judgment, Ralph Fiekes against Joseph Harman, Jr., was entered on an amicable scire facias on the purchase-money judgment, the agreement for which was executed March 28th 1866, by Joseph Harman, Jr., and witnessed by E. G. Heagy.
    On the 4th of October 1866, a judgment was entered against Heagy in favor of Joseph Dellone for $1000.
    On the 2d of April 1868, a judgment was entered against Heagy in favor of John Nyman for $1000.
    On the 1st of August 1870, Fiekes issued a scire facias against “ Joseph Harman, Jr., with notice to Eli G. Heagy, terre-tenant,” on the judgment against Harman, entered April 2d 1866, on the amicable scire facias.
    On the 26th of May 1871, by order of the court, judgment was entered in this scire facias in favor of Fiekes for $872, “to be a lien only on land aliened to Eli G. Heagy.”

      An execution was issued by Nyman; the sheriff returned that he had levied on Heagy’s land, and by leave of the court he after-wards made an amended return, that “ at the time of the levy the defendant Eli G. Heagy demanded the benefit of the law exempting ¡§300 worth of property from levy and sale on execution, and claimed the same out of the real estate, which consists of one entire tract, and cannot be divided, and he claimed that amount out of the proceeds when sold.” Heagy assigned his claim for exemption to Eickes. The. real estate was sold under ttiis execution, and the proceeds of sale, after deducting expenses, amounted to ¡§2359.73.
    The sheriff, on the hearing before the auditor, testified that Heagy claimed the exemption of $300, but that his real estate had not been appraised under the claim; the sheriff not knowing that it was necessary to appraise real estate.
    The questions before the auditor were, whether Eickes, assignee of Heagy, was entitled to the $300 under the exemption laws; and whether Eickes’s judgment against Harman had lost its lien against the land in Heagy’s hands.
    The auditor awarded to Heagy the $300, to Joseph Dellone $1203, and to John Nyman $856.73, leaving still due on his judgment $345.02.
    After exceptions, the court (Fisher, P. J.) confirmed the report.
    Eickes and Nyman each appealed to the Supreme Court.
    Eickes assigned for error that the court erred in deciding that his judgment had lost its lien, and in excluding it from any part of the fund in court.
    Nyman assigned for error that the court erred in awarding the $300 to Eickes, assignee of Heagy.

      JD. A. Bushier and .B. (?. MeQreary, for Eickes.
    Fractions of a day are noticed in fixing the time of the lien of a judgment: Hendrickson’s Appeal, 12 Harris 363; Small’s Appeal, Id. 398. Heagy’s witnessing the agreement to revise was notice to him as terretenant: Lesher v. Gillingham, 17 S. & R. 126. Nyman and Dellone being judgment-creditors, are not in the position of purchasers, and cannot have any advantage which Heagy had not: Reed’s Appeal, 1 Harris 476; Cover v. Black, 1 Barr 493; Rogers v. Gibson, 4 Yeates 112; Heister v. Fortner, 2 Binney 46.
    The sheriff’s return implied that all had been legally done to entitle Heagy to his exemption, and the return could not be contradicted: Diller v. Roberts, 13 S. & R. 60; McClelland v. Slingluff, 1 W. & S. 134; Kintzing v. McElrath, 5 Barr 467.

      JD. Wills, for Nyman.
    The plaintiff was bound to see that his judgment was properly entered, and he being in default must bear the loss as against one who is in no default: Woods v. Reynolds, 7 W. & S. 406; Heil’s Appeal, 4 Wrigbt 458.
    Evidence is admissible to show which -of two judgments was entered first: Neff v. Barr, 14 S. & R. 166. Purchaser may show that his conveyance of the same date was before the entry of a judgment: Metzler v. Kilgore, 3 Penna. R. 245; Mechanics’ Bank v. Gorman, 8 W. & S. 314; Claason’s Appeal, 10 Harris 359.
    To secure the exemption there must be an appraisement: Act of Assembly, April 9th 1849, § 23, Pamph. L. 533, 1 Br. Purd. 637, 638, pl. 21, 22; Marks’s Appeal, 10 Casey 36; Shelly’s Appeal, 12 Id. 373; Brant’s Appeal, 8 Harris 141; Knabb v. Drake, 11 Id. 489. The sheriff not having returned that he made an appraisement, the legal conclusion is that he made none: Smith v. Emerson, 7 Wright 456.
    July 3d 1873,
   The opinions of the court were delivered, by

Thompson, C. J.

Nyman’s Appeal.

There is no room for controversy about the question raised here; it is conclusively ruled against the appellee by the case of Marks’s Appeal, 10 Casey 36. There was no appraisement of the land in this case, supposing there was a demand for exemption, and this, with a return that it could not be divided, was absolutely necessary in order to entitle the debtor to come upon the proceeds of sale for the amount of exemption in the hands of the sheriff. The assignee cannot claim to be in any superior position to that of his assignor.

Decree reversed, and record remitted, so that distribution may be made of the funds in court in accordance with this opinion, and the appellee is directed to pay the costs of this appeal.

Fickes’s Appeal.

The Act of 26th March 1827 provides that no judgment shall continue a lien for more than five years from the date of its entry, “ unless renewed within that period by agreement of the parties and terre-tenants, filed in writing and entered on the proper docket, or a writ of scire facias to revive the same be sued out, within said period, according to the provisions of the • act to which this is a supplement.”

This is just what was not done in this case, and is the reason why the appellant’s claim on the proceeds of sale was not good. The judgment of Fickes v. Harman was revived against the latter by agreement without including the terre-tenant Heagy. This, therefore, did not continue the lien of Harman’s judgment on the land in the hands of Heagy after the first five years: Sames’s Appeal, 2 Casey 184; Fursht v. Overdeer, 3 W. & S. 470; Amstrong’s Appeal, 5 Id. 352. It was a clear disregard of the Act of Assembly. Heagy’s witnessing the agreement between Fickes and Harman to revivfe the judgment, did not make him a party, as the act requires. It was no judgment as to him, any more than it would have been against any stranger who might have attested it. It follows from this, that the first judgment entered against Heagy, bound his interest in the land acquired by deed from Harman, and so on, according to priority. Harman’s interest was divested by his conveyance, and Fickes’s lien was lost because he did not continue it against Heagy in time. All this was the consequence of the appellant acting as his own lawyer.

The appeal is dismissed at the costs of the appellant, and the decree of the court below is affirmed.


text:
    Morris versus Ziegler.
    1. After a verdict for defendant, judgment non obstante veredicto cannot be entered for the plaintiff.
    2. A husband conveyed land to his wife; a judgment afterwards recovered against him was purchased by a third person before the deed was recorded ; there being no fraud in the conveyance, Meld, that her title would prevail against the judgment.
    3. Not recording her deed was not such laches as would estop her against a judgment-creditor of the husband.
    4. Coates v. G-erlaeh, 8 Wright 43, distinguished; Reed’s Appeal, 1 Harris 478, Robinson v. Myers, 17 P. P. Smith 9, followed.
    May 14th 1872.
    Before Thompson, C. J., Asnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Perry county: No. 74, to May Term 1872.
    On the 5th of April 1871, David Ziegler instituted an action of ejectment against Samuel Morris for a tract of land containing 4 acres.
    Samuel Morris, the defendant, on the 31st of March 1848, owned the premises, and on the 1st of May 1852, conveyed them to his wife. On the 27th of May 1867, Gr. C. Murray entered a judgment for $400 against Morris ; on the 9th of July this judgment was assigned to S. S. Charles, and on the 6th of January 1868, Charles assigned it to Ziegler, the plaintiff. On the 14th of January 1870, the deed from the defendant was recorded. On the 23d of May 1870, Ziegler issued execution on his judgment; the land was condemned, and under a vend. ex. sold to Ziegler and sheriff’s deed acknowledged November 2d 1870.
    Morris defended on the title of his wife, and the question was the validity of the deed to Mré. Morris as against the judgment of Murray assigned to Ziegler.

      The cause was tried March 80th 1872, at a special court held by Rowe, J., of the 16th District. The above facts appeared in evidence at the trial.
    Morris testified that the money with which the property was bought came from his wife’s estate, received by him before 1848; that his wife wished him to convey the land to her and he did so, because he had got the money with which .it was bought; he was a day laborer, but at the time of the sale to her was not in debt.
    The defendant offered evidence that Charles, had notice of the title of the property being in the wife before'he took the judgment ; it was rejected by the court and a bill of exceptions sealed.
    The plaintiff testified he bought the judgment from Charles after having had a certificate from the recorder that the title was in Morris, and he had no knowledge that Mrs. Morris was the owner. At the sheriff’s sale plaintiff had notice that the land belonged to Mrs. Morris.
    The court charged the jury that Mrs. Morris’s title was good, “ unless the deed made by Samuel, her husband, to her was made with intent to defraud and cheat creditors, or unless it was more than a reasonable provision for his wife out of his property. To these two questions you must address yourselves.”
    The judge further said:—
    “ I reserve the question of law whether the failure of the wife to record her deed until after the judgment was purchased by the plaintiff — no knowledge of the existence of the deed being traced to the plaintiff — gave to her husband a false credit and was such laches on her part to the misleading of the plaintiff, as will prevent her from setting up her title against the plaintiff. If we should be of opinion that it was such laches, then judgment to be entered for plaintiff non obstante.”

    The verdict was for the defendant.
    The court afterwards entered judgment for the plaintiff non obstante veredicto, delivering the following opinion:—
    “ I am not able, after full consideration, to distinguish this case in principle from that of Coates et al. v. Gerlach, 8 Wright 43. This deed also is void at law, can only be sustained in equity, and the wife asserted no right under it; in fact did not make known its existence until after the husband had contracted the debts, against which she now seeks to set it up; there was no abandonment of possession by the husband, all remained as before; the supineness of the wife gave to the husband a false credit as clearly appears in the evidence; and equity, therefore, will not aid her at the expense of those or him misled by her laches. Consequently, judgment must be entered on the question of law reserved by the court, in favor of the plaintiff, non obstante veredicto, upon his paying the jury fee.”

      The defendant removed the case to the Supreme Court, and assigned for error the rejection of his offer of evidence and entering judgment for the plaintiff non obstante veredicto.

      Graham (with whom was G. J. T. Mclntire), for plaintiff in error.
    The jury having found that there was no fraud, a judgment-creditor cannot take advantage of the fact that the deed was not recorded: Ridgway v. Underwood, 4 Wash. C. C. R. 129; Gilmore v. N. America Land Company, 1 Peters C. C. R. 460. A judgment-creditor is not within the recording act: Rodgers v. Gibson, 4 Teates 111; Cover v. Black, 1 Barr 493; Heister v. Fortner, 2 Binn. 40; Stewart v. Freeman, 10 Harris 123; Jaques v. Weeks, 7 Watts 284. When the verdict is for the defendant, judgment cannot be entered non obstante veredicto for the plaintiff : Robinson v. Myers, 17 P. F. Smith 9.

      W- A. Sponsler, for defendant in error,
    cited Coates v. Gerlach, 8 Wright 43.
    May 20th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

It was decided by this court in Robinson v. Myers, 17 P. F. Smith 9, that when the jury finds a verdict for the defendant there can be no judgment entered upon a reserved point for the plaintiff. Such judgment being without any verdict to support it, wants a legal foundation and is therefore erroneous.

In order, however, to end this controversy we have been requested by the counsel of both parties to consider and decide the question reserved. That question was, whether the failure of the wife to record her deed until after the judgment was purchased by the plaintiff — no knowledge of the existence- of the deed being traced to him — gave to her husband a false credit, and was such laches on her part to the misleading of the plaintiff as will prevent her from setting up her title against him. It is supposed that the judgment of this court in Coates v. Gerlach, 8 Wright 43, is an authority in point, and upon this ground the learned judge below-entered judgment non obstante veredicto. But the decision in that case was expressly that the deed to the wife could not be sustained because it was more than a reasonable provision for her, and what is added as to her not recording the deed, is a reason for not regarding her case with favor, because she had studiously and purposely concealed her title for the purpose of giving her husband a false credit. In asking,” says Mr. Justice Strong, “ that a deed void at law should be sustained in equity, she is met with the fact that she asserted no right under it; in fact concealed its existence until after her husband had contracted the debts against which she now seeks to set it up.” But no such element as this, which is necessary to create an estoppel against her in equity, is incorporated in the point reserved. She is to he estopped by the bare non-recording her deed — whether it was through ignorance or design. It rejects also the element of notice to the creditor, which may have existed; and certainly if she or her husband were careful to give notice to everybody who trusted him that the property was his wife’s — it was entirely too much to go further, and require notice to be given to all assignees of creditors of whose existence she could know nothing, and unless consulted could not give them notice before assignment. It is evident that the wife in Coates v. Gerlach was to be barred in consequence of bad faith— not for simply not recording her deed, which in law she was not bound to do as against judgment or other creditors. “If anything,” says Mr. Chief Justice Gibson in Reed’s Appeal, 1 Harris 478, “is settled by reason and authority, it is that a judgment-creditor is not entitled to the protection of a purchaser of the legal title against an equitable owner or his creditors, or to any advantage which his debtor had not.” Throughout a series of decisions from Finch v. Winchelsea, 1 P. Wms 277, to Ludwig v. Highley, 5 Barr 132, the law has been so held in England and Pennsylvania.” He proceeds to vindicate the rule with his usual force, and it is clear that the law must be made for the majority of cases, and the ordinary course of dealing in which the creditor looks to the debtor’s personal ability, and to nothing else. It proves nothing, then, to allege and show that the creditor — much less the purchaser of the creditor’s claim — searched the records, and found no deed there. Upon the point reserved, then, we are of opinion that the defendant below, having the verdict also in his favor, was entitled to judgment.

Judgment reversed, and now judgment upon the verdict for Samuel Morris, the defendant below.


author: Williams, J.

text:
    Patterson versus English and Rickabaugh.
    1. No formal words are necessary to make a valid will, if the substance be testamentary.
    2. A gift or bequest after death, is of the essence of a will, and determines the writing to be testamentary.
    3. Whether a writing is a will does not depend upon the maker declaring it so when he executes it, but upon its contents.
    4. A will of personalty must be complete on its face, or if incomplete, it must appear that it was intended to operate as a will in its unfinished state.
    5. A paper alleged to be a will was all in the decedent’s writing, a date not in his writing was at the head; the presumption is that it had been written with his knowledge before the body of the paper, and that it was its true date.
    6. The paper in this case written and signed in pencil, in a merchant’s memorandum-book, in disjointed items, without words of gift, &e. Held, not to be a will.
    7. Whether under the Wills Act a paper written in pencil can be a will, not decided.
    8. A will should not be written or signed in pencil on account of the facility of alteration. Per Williams, J.

    May 14th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Perry county: No. 29, to May Term 1872.
    This was a feigned issue, directed by the register of wills, to determine the validity of a paper writing purporting to be the will of Collins E. Patterson, deceased.
    The parties were Caroline English and David M. Riekabaugh, plaintiffs, and James Patterson, defendant. The issue was framed at August Term 1871.
    The decedent died January 17th 1871, unmarried and without children, leaving his father the defendant, to survive him.
    The decedent had been a merchant in Millerstown, Perry county, and in partnership with Riekabaugh, one of the plaintiffs, with whom he lived. The paper offered as his will was found by Rickabaugh on the day after decedent’s death, in his private drawer, in a desk of Rickabaugh’s; was in a small memorandum-book kept by him, entitled “ Merchant’s Account Book and Buyer’s Guide,” published in Philadelphia; containing an Almanac for 1869, rates of postage, public places, &c., advertisements of business-places, &c. The book had 228 pages; it contained also a number of memoranda, made by himself in pencil for purchasing goods, &c. The writing alleged to be a will was under date of January 12th 1871; it was all in pencil with his name at the end, also in pencil. The body of the writing (except the date, about which there was no evidence) was admitted to be in his handwriting, but the testimony as to the signature differed.
    The writing, as nearly as it can be transcribed, is in the following form:—

      January 12th 1871.
    Ann Ereeburn, daughter of Clinton Ereeburn, $1000, to be paid unto Clinton Ereeburn, her father, for education of his daughter.
    (Erasure.)
    Eanny Smith, formerly Eanny Meek, $500, to be paid into the hands of her brother Clinton Freeburn, for the use of daughter, and in case she Eanny Smith, formerly Eanny Meek, may come to need to see that she is made comfortable, the interest being all yearly, the daughter may want.
    [Erasure.)
    Henrietta Patterson, life policy of C. E. Patterson, No. 10,339, for $5000, and to draw 50 per cent, of $121.50, making $60.75 for 4 years. Total amount, $5243. $5243. Policy to be had and found at Kerr & Co., Altoona, Blair co., Pa.
    (•Erasure.)
    Presbyterian Church $500, to be paid to Trustees for repairing church, provided they put basement and complete for Sabbath school all within one year from April 1871, otherwise the $500 to be deposited in the hands of trustees, and interest to be paid annually to the support of the pastor.
    (Erasure.)
    -The above is designed to of the pass book,-
    Caroline English, $1000, for special services given while sick.
    D. M. Rickabaugh, $1000, for labor and services rendered during sickness.
    C. E. Patterson.
    represent two different openings
    The issue was tried August 9th 1871, before Graham, P. J.
    The plaintiffs gave evidence that the paper and signature were in the handwriting of the decedent.
    They then offered “ to read the paper to the jury, and then to prove the declarations of Collins E. Patterson, that he had made his own will, and that again to be followed that he had given his estate, in part or in whole, to the same persons who are by him the said Collins E. Patterson named in said paper as his legatees.”
    This was objected to by defendant, because, 1. A pencil writing is not a writing within the meaning of the statute, which intends ink writing. 2. It is in a memorandum-book, does not begin, end or purport to be a will; was not published as a will; has no executor or attesting witnesses. 8. Declarations of decedent that he had made a will inadmissible, without identifying the paper, as that referred to by him, nor at all, if before the date.
    The court admitted the offer, saying :—
    “ The body of the paper and the signature are proved by several witnesses to be the handwriting of C. E. Patterson. No witness has proved the date of the paper at the head of it to be the handwriting of C. E. Patterson. It appears to be a different handwriting. Under the circumstances we will not limit the proof of the declarations offered to those made after 12th January 1871.”
    The court sealed a bill of exceptions.

      The plaintiffs then gave evidence by a number of witnesses, that the decedent, in March 1870, said he was making an arrangement of his property; that he had got his life insured for $1000 for one of John Patterson’s daughters, who was infirm; he was going to leave Rickabaugh something for attending him in sickness; going to leave to Ann Freeborn who was lame, $1000 to educate her; to his aunt Fanny Meek $500; to the Presbyterian church $500, to repair it. On the 9th of January 1871, he said to a witness he wished to make a will; that he had one but wished to make some alterations. In September 1870, one of the witnesses said to him that decedent’s brother John might be expecting something from him; he said “ he need not expect that, because he had his things all fixed, never to be changed while he was on earth, and they will never be any the better of what I’m worth.” He said, his father had never helped him; “ then, why should I give what I have to my father and his family?” There was other evidence of his declarations that he would have nothing to do with his father or his family; also, evidence that the relations between him and his father were not cordial. A witness testified that in May or June 1870, the decedent asked him to write a “skeleton will;” witness said there was no necessity; he would give him Dunlap’s Book of Forms, which he did. Decedent said he was arranging his affairs; none of his estate should go to his father’s family.
    For the defendant there was evidence that the relations of the decedent with his father were cordial.
    A witness testified that where the erasures were, he could distinguish “ 0. E. Pat.”
    Caroline English, plaintiff, testified that a day or two before decedent’s death she saw him burn a paper which “ looked like a folded letter.”
    The plaintiff’s 1st and 2d points which were affirmed were:—
    1. If the jury believe the paper offered in evidence and read to the jury was written by Collins E. Patterson, the alleged testator, in his own proper handwriting, and signed at the end thereof by the said Collins E. Patterson, the fact of the signature and the body of the paper being Avritten in pencil ma/rh, will not prevent it from being established as the will of Collins E. Patterson.
    2. If the jury believe that the paper read to the. jury is in the handwriting of Collins E. Patterson, and signed at the end thereof by him, the said Collins E. Patterson, although when he made the same and executed the same by signing his name at the end thereof, he may have intended to put the same in a more usual and general form, but never did put the same in any other form, and adopted the same, and left it, intending that the persons named therein, should be the objects of his bounty, the jury may find that the said paper is .the will of Collins E. Patterson.
    A number of bills of exceptions to evidence were sealed during the trial.

      The court charged:— * * *
    “ The evidence on part of the plaintiffs, to justify a verdict in their favor, must preponderate; it must satisfy your minds reasonably well that the signature is genuine. If you consider the evidence equally balanced your verdict should be for the defendant; for to justify a verdict for plaintiffs, the evidence ought to preponderate in their favor.
    “ But defendant further contends that even if you should find the signature genuine, that the entries of the pass-book are only incomplete, imperfect and unfinished memoranda, intended after-wards to be made a part of his will to be prepared in proper form. If the entries in the book were made by decedent, and regarded by him as a finished and final disposition of his property, or part of it, without intending to add anything further to it, then it would be a valid will. On the contrary, if decedent intended the writing in his pass-book as memoranda of the disposition of part of his property, but unfinished and incomplete, to which he intended to make further additions before his death, and did not make it as a final disposition of his estate, but as memoranda to be completed afterwards, by further bequests; under these circumstances, the writing would not be valid, as the last will of decedent.”
    The verdict was for the plaintiffs.
    The defendant took out a writ of error. He assigned for error the rulings of the court as to evidence and the affirmance of plaintiffs’ points.

      O. A. Barnett, for plaintiff in error.
    The Statute of Wills means the writing should be in ink: Act April 8th 1833, sect. 6, Pamph. L. 249, 2 Br. Purd. 1474, pl. 6; 2 Black. Com. 295; Shep. Touch. 50; Co. Litt. 229; Story on Promissory Notes, sect. 11. The decisions in England that pencil wills were valid, are under Statute of Frauds, 29 Charles II., which requires them to be signed in the presence of witnesses. The paper does not purport to be a will: Murry v. Murry, 6 Watts 356; Swinburne 1, sect. 3, pl. 11; Woodward v. Darcy, 1 Plowden 184.

      W. A. Sponsler (with whom was O. J. T. Mclntire), for defendants in error.
    —A will in pencil is valid: 1 Redfield on Wills 165, 166; Dyer’s Case, 1 Hagg. 219; Green v. Skipworth, 1 Phill'imore 53; Raymes v. Clarkson, Id. 22 ; Dickenson v. Dickenson, 2 Id. 173; 10 Bacon’s Abr. 490, and cases cited; Merritt v. Clason, 12 Johns. 106; Clason v. Bailey, 14 Id. 491; 3 Parsons on Contr. 8 ; Geary v. Physic, 5 Barn.,& C. 234; McDowell v. Chambers, 1 Strobh. Eq. 347.
    October 17th 1872,
   The opinion of the court was delivered, by

Williams, J.

The main question in this case is, should the writing in controversy have been submitted to the jury to determine whether or not it is the will of Collins E. Patterson, deceased.

It consists of six different items written with a lead pencil, under the date of January 12th 1871, on the last four pages of the decedent’s memorandum-book entitled “Merchant’s Account Book and Buyer’s Guide,” found the next day after he died, in his private drawer, in a desk belonging to the plaintiff, David M. Rickabaugh, with whom he lived. These items are wholly disconnected and separated from each other by spaces of greater or less width, and a line drawn between them, with the name of C. E. Patterson written with a lead pencil, immediately below the last item. They are all in the decedent’s handwriting, but the date is not, nor does it appear by whom it was written. The genuineness of the signature is denied, but the jury have found that it is in the decedent’s own proper handwriting. Did the deceased then, in writing down these detached items, and signing them in the manner he did, intend them to be his will-, and to take effect as such after his death ?. They are not in the form of a will, and he nowhere declares them to be his will. They are not preceded or followed by the usual formalities of. a will. There are no words of gift or bequest in either of the items, nor do any such words precede or follow them. What intrinsic evidence is there, then, arising from the face of the paper, or the words themselves, that the decedent wrote and intended them as his will ? If a will is an instrument by which a person makes a disposition of his property to take effect after his decease, what is there in these disconnected memoranda evincive of the decedent’s intention to make such a disposition of his property ? It is true that no formal words are necessary in order to make a valid will; the form of the instrument is immaterial, if its substance is testamentary. But if the instrument is not testamentary in form or substance, what intrinsic evidence is there that it was intended as a will ? A gift or bequest after death is of the very essence of a will, and determines a writing, whatever its form, to be testamentary. Whether a writing is a will or not, does not depend upon the maker’s declaring it to be a will at the time he executes it, but upon its contents. But how can an instrument or writing be regarded as a will, if the maker does not declare it to be, and the contents do not show that it is his will ? To constitute a valid will of personalty the writing must be either complete on its face, or if incomplete or defective it must appear that it was intended by the writer to operate as his will in its unfinished and incomplete state. But how does it appear that the incomplete memoranda in this case were intended to operate as a will ? There is nothing on the face of the paper or in the words themselves to indicate such intent, nor is there anything from which it can be inferred that any gift was intended except the words “ to be paid,” in the first, second and fourth items. But when were the amounts specified in these items to be paid ? In the lifetime of the writer or after his decease ? There is nothing in the language to show when they were to be paid. These items may have been intended as instructions for his will, or as memoranda of gifts he intended to make in his lifetime. The mere words “ to be paid” do not amount to a testamentary bequest of the sums mentioned, nor show that they were to be paid after his death. But how is it with regard to the items which the plaintiffs allege were intended as bequests to them ? They may have been memoranda of the amounts which the decedent had paid, or which he intended to pay the plaintiffs for the services which they had rendered him while he was sick. There is not one word in either of them which clearly indicates that he intended them as testamentary bequests. There is then no intrinsic evidence that the decedent, in writing down the items in question in his memorandum-book, intended them as his will.

Is there any extrinsic evidence that he intended them as such ? His declarations as to the will he had made and the bequests he had given are relied on for this purpose. But there is no evidence that he referred to the items in the memorandum-book as the will which he had made. The declarations testified to by the witnesses were all made prior to their date. But it is contended — and on this ground the declarations were admitted — that as the date is not in the handwriting of the decedent, it may have been made after the alleged will was written. But the presumption is that the date was written before and not afterwards, and that it was seen by the decedent and made with his knowledge. Primá, facie it is the true date of the writing in issue, and there is nothing to contradict or overthrow it. There is then no extrinsic evidence that the decedent intended the writing in controversy as his will. He did not so declare, and it cannot be inferred from anything that he said prior to the time it was written. The defect in the evidence is that there is nothing in it to show that the decedent referred to the items contained in his memorandum-book as his will. It is more than probable that he referred to a will which he had written with the aid of the book of forms with which he was furnished, and that this was the paper which Caroline English saw him burn a day or two before his death. But whether so or not, there is no sufficient evidence that his declaration, referred to the writing set up as his will by the plaintiffs. The court should therefore have withdrawn the cause from the jury, and instructed them that there was no evidence that would justify them in finding that the writing in issue was the will of the decedent, Collins E. Patterson.

This view of the case renders it “unnecessary to consider the question mainly discussed on the argument, viz.: whether under our statute relating to wills, a paper purporting to be testamentary, written and signed with a lead pencil, is a valid will.' It will be time enough to determine this question when its decision becomes necessary; but whether valid or not, no will should be written or signed with a lead pencil, on account of the facility with which the writing may be altered or effaced.

Judgment reversed.