text:
    Siewers et al. versus Commonwealth, to use of Hauseman.
    1. While a prothonotary is responsible for the accuracy of his search only to the person who employs him, yet if the agent of the person who thus employs him, not relying upon the correctness of the certificate, applies to the prothonotary and he reaffirms its correctness, such reaffirmance is a republication of the certificate and will bind the prothonotary-and make him liable in damages for any injury.resulting from a neglect to include a judgment in said search.
    2. It was proper to submit to the jury the fact of such republication.
    April 1st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. •
    Error to the Court of Common Pleas of Carbon county: Of January Term 1878, No. 61.
    Debt by the Commonwealth of Pennsylvania to the use of Alexander Hauseman against J. H. Siewers, late prothonotary of the Court of Common Pleas of Carbon county, and his sureties, on the official bond of said prothonotary. At the trial it appeared that on July 30th 1868, Siewers made a search for judgments against James Anthony, for which the latter paid. After the search ho gave Anthony the following certificate:—

    Hauseman, the plaintiff, had left certain moneys with Thomas Beck to be loaned out, and on August 7th 1868, Anthony applied to Beck for a loan, and at the same time exhibited the above certificate of search. On the same day Beck and Anthony went to the office of the prothonotary, and there Beck, as the agent of Hauseman, loaned Anthony $2500, and took from the latter his judgment-note for that amount. This note was written by Siewers, the prothonotary, and- was entered of record by him. It appeared that on July 30th 1868, when Siewers gave the certificate of search against Anthony, there was upon record another judgment against Anthony, in favor of D. II. Straub, for $750, which was not mentioned in the certificate. On December 6th 1873, the real estate of Anthony was sold by the sheriff, and $3002 were realized therefrom. Out of this sum were paid the judgments of Peters and Straub, leaving'a balance of about $1600 to meet the Hauseman judgment. This action was to recover damages for making a false certificate of search.
    The plaintiff alleged, and Beck testified, that on the 7th of August 1868, Anthony produced the certificate of July 30th 1868, and requested the loan of the money. Beck was not satisfied, and to ascertain whether the certificate was correct, went with Anthony into the prothonotary’s office, and handed to Siewers the certificate, and asked him whether it was correct, and, upon Siewers replying that it was, Beck again asked him the question, and desired him to make a search, to be sure that it was correct, and that Siewers took the certificate and again made a search, and returned the certificate to Beck, saying that it was correct, and that there were no other judgments, and that Beck then, relying on the certificate, loaned the money to Anthony, and took the judgment-note.
    Siewers, on the contrary, testified that no conversation, such as testified to by Beck, took place; that he did not on that day see the certificate, and never saw it from the day that it was made until after this suit was commenced, and that all that occurred was that Beck and Anthony came to his desk, where one or both of them requested him to write the judgment-note, which he did.

      The defendant submitted the following points, all of which the court, Dreher, P. J., refused:—
    1. That as the evidence is uncontradicted, that the defendant, Siewers, made out a certificate of judgments at the request of James Anthony, and delivered the same to James Anthony on July 30th 1868, who paid him therefor at that time, the plaintiff cannot recover.
    2. That James Anthony, at the time he ordered the search,' and received and paid for the search, was not the agent of Hauseman for that purpose; there was no breach of the condition of the bond, and the plaintiff cannot recover.
    3. That if the jury believe that, at the time James Anthony ordered the search and received and paid for the search, he was not authorized by Hauseman to procure the search and certificate, then there was no breach of the condition of the bond, and the, plain thf cannot recover.
    In their general charge, the court, inter alia, said:—
    “ The plaintiff, Mr. Hauseman, claims that he has suffered damage in the loss of money loaned to James Anthony, in consequence or by reason of a false certificate of search made by Mr. Siewers as prothonotary. The prothonotary is the custodian of the records of the court. Among the records are judgments entered either upon confession or by suit and proper proceedings. Among other duties of the prothonotary is that of making searches for judgments and giving his certificate of the result of such search, for any person who may choose to apply to him therefor, and pay him his fee allowed by law. In the accuracy and truthfulness of such search and certificate the prothonotary is responsible to the person for whom it is made. He is not responsible to anybody else. A person, desiring to have the personal pecuniary'responsibility of the prothonotary or his sureties, must himself apply for and have the search and certificate made. He need not apply in person. It is sufficient if the application is made, and the search and certificate procured by his agent for him.”
    And after a recital of the foregoing facts, as testified to by Beck, continued: [“ This is briefly what Mr. Beck testified to as to what occurred in the prothonotary’s office. Now, we have to say to you that, if you should find the .facts to be as just stated, in regard to what occurred in the prothonotary’s office, then the plaintiff will be entitled to recover, and your verdict should be in his favor.”]
    The verdict was for plaintiff for $673.20.
    The defendant assigned for error the admission in evidence of the certificate of search, the refusal of his points and the foregoing portion of the charge in brackets.

      F. J. Fox, Charles Albright and Allen Craig, for plaintiffs in error.
    The prothonotary is liable only to the party who asks and pays for the search: Commonwealth v. Harmer, 6 Phila. 90; Houseman v. Girard M. B. & L. Association, 31 P. F. Smith 256. To make Siewers liable, Beck should have obtained a new search and paid for it. The certificate was given to Anthony alone, and the parol affirmance of its correctness to Beck was not the obtaining of a new search such as would bind the prothonotary.

      Edward Harvey, James 8. Loose and John H. Bertolette, for defendant in error.
    Beck was the agent of Hauseman, and the conversation between him and the prothonotary was a republication of the original certificate of search.
    May 6th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The learned judge below followed closely the current of. decisions in this state. He hold that for the accuracy and truthfulness of his search and certificate, the prothonotary is responsible to the person for whom it was made and not to others. Commonwealth v. Harmer, 5 Am. Law Reg. N. S. 214 also 6 Phila. R. 90; Houseman v. Girard Loan & Building Association, 31 P. F. Smith 256. The reasons given in Commonwealth v. Harmer, appear to be satisfactory. The officer owes a single duty, which is to him who employs him to search and certify. If a new duty to another arises, it must be because of a new demand and a new privity. If without this new privity, successive liabilities can arise to others, the cause of action necessarily changes, both as to the time of its origin and the measure of the loss; and thus the statutory limitation as to official bonds will be postponed from time to time, and a variable standard of recovery arise with each succeeding claimant who holds the certificate. This is not only harsh and unjust to to the officer, whose liability is thus made to continue onward without new compensation, or a fresh search. A fresh search may reveal the omitted encumbrance and thus give the officer a locus poenitentice, as well as any equivalent compensation for the new risk to be assumed.

The plaintiff in error had the benefit of this view of the law in the charge. But the facts of this case are wholly different from those in the Commonwealth v. Harmer, and take it out of the rule therein stated. Hence the court properly left it to the jury on the facts. The certificate was given, it is true, to Anthony, the borrower of the money from Hauseman, but Beck the agent not relying on it, went with Anthony to the officer, who reaffirmed its correctness. Not content with this, Beck requested a new search which he (the prothonotary) made, and returned the certificate to him, saying again it was correct. Upon this, and at Beck’s request, the prothonotary drew up a judgment-note, which was signed and handed over to be entered and the money then paid by Beck

to Anthony. Certainly this was a republication of the certificate made directly to Beck, the agent of the plaintiff; it was a renewal and delivery of the certificate by the prothonotary himself directly to the plaintiff, and therefore there was not only privity but liability to him on part of the officer. He must then respond in damages for his omission, on the principles of Zeigler v. Commonwealth, 2 Jones 228; McCarahan v. Commonwealth, 5 W. & S. 21; and Hauseman v. Girard Loan & Building Association, supra.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Overseers of the Poor of Lake District versus Overseers of the Poor of South Canaan.
    1. Where a, pauper has been divorced from her husband her settlement is in the district in which her husband resided at the time of the divorce.
    2. Where a poor district has been divided, and the question is as to whether one is a residenhof the old or new district, it is to be determined by ascertaining whether the locus of the settlement has been so changed in the original district by such acts as would gain a new settlement in auother 'district.
    April 1st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Certiorari to the Court of Quarter Sessions of Wayne county: Of January Term 1878] No. 224.
    Appeal by the District of Lake from an order of removal of Louisa Burleigh, a pauper, from the district of South Canaan to the district of Lake.
    Louisa Burleigh, the pauper, whose settlement is in dispute in this case, was the wife of Sylvester Burleigh. A decree of divorce was made May 5th 1869, by the Court of Common Pleas of Wayne county, on the ground of desertion by the wife. At the time of the desertion, in May 1866, the domicil and settlement of Sylvester Burleigh was in the territory, then and now, of South Canaan, where he was born, and in a house which he had built on his father’s land, in which he had lived five years. For twenty-five years he had paid taxes in South Canaan. He owned land which had no building on it, and was situate about half in South Canaan and about half in. Jefferson township, Luzerne county. On the 16th of May 1876, by a decree of the Court of Quarter Sessions of Wayne county, a part of South Canaan and Salem townships were set off into a new township called Lake. A small part of Sylvester Burleigh’s land, some three acres, was embraced in the new township. “Right away” after his wife left him, in May 1866, he broke up housekeeping, leaving his “ things” in the house until he let his father have it, about a year after his wife left; -then he moved the things into the house his father moved out of, which was also then and now in South Canaan; but he never went back into either house to live again unless it was to stay over night occasionally, and in the winter of 1867-8 boarded at his father’s some days and took care of his cattle. At the time of the divorce, some of his household goods still remained at his father’s house, of which Sylvester had the key; some were at Rufus Swingle’s, then in South Canaan, now in Lake, where Sylvester Burleigh was at the time of the divorce boarding, and where he had boarded for about two months before, and some in a shanty in Jefferson. During this time and at the time of the divorce he was working on another shanty where he lived at the time of the hearing. It was situated on his own land, and the line between Jefferson and South Canaan went directly through the house. That part of the shanty which was in South Canaan was set off into Lake township. At the time of the divorce he had not lived in this shanty and had nothing there. After the house was completed, in September 1869, he had his things remaining at his father’s house brought to his new house, which was about half in South Canaan and half in Salem, and went to keeping house there.' Subsequently the house was removed so that it stood all in what is now Lake. He always voted and paid taxes in South Canaan until Lake was set off, after which he voted in Lake. He was never assessed nor paid taxes nor voted in Salem. Some two months before the divorce Mrs. Burleigh’s own household goods, which she brought there at the time of her marriage, were taken away from the house in South Canaan by her friends. After he broke up housekeeping, as aforesaid, Sylvester Burleigh boarded (except as stated hereafter) at different places, employed by others at different kinds of work, until he went to board at Rufus Swingle’s, some two months before the divorce. His washing was done at said Swingle’s while he boarded there, and generally at the same place where he boarded. For some four or five months after April and embracing August 1868, he lived in a shanty in Jefferson township, where he boarded himself. He does not appear to have remained at any one place over a few months; his longest stay being at Stanley Burleigh’s, where he boarded from in May 1866 until the following winter, working for the Pennsylvania Coal Company. After leaving this shanty he boarded at different places in what is now Lake, until he came to Rufus Swingle’s as aforesaid, about two months before the divorce. After the divorce Louisa Burleigh became a pauper and was for some time supported by South Canaan, until, on the 10th of April 1877, the overseers of the poor of South Canaan obtained an order for her removal to Lake, from two justices of the peace, who adjudged her last settlement to be therein, which order was appealed from by Lake township, The case was argued upon depositions, taken by agreement of counsel, which disclosed the foregoing facts.
    •The court dismissed the appeal and adjudged the pauper to be legally chargeable upon Ldke township.

      The overseers of Lake township filed the following exceptions :
    1. The facts in evidence were insufficient to give a settlement in Lake township and to authorize a removal there.
    2. The facts in evidence showed a settlement of the pauper in South Canaan.
    8. The facts in evidence showed that at the time of the divorce the settlement of the husband was in South Canaan township, in that portion thereof not set off into Lake, and there was no evidence showing any other or different settlement of the husband prior to the time of the divorce.
    4. The facts in evidence were insufficient to change the pauper from South Canaan to Lake, her original settlement after marriage without doubt being in South Canaan, and there being no evidence to show any change of settlement prior to the divorce.
    The court dismissed these exceptions and affirmed the original judgment and order, and from this action this appeal was taken.

      JE. O. Hamlin, for Lake township.
    A female by marriage acquires her husband’s settlement, if he has one, which she does not lose by divorce: Buffalo?). Whitedeer,-3 Harris 182. Upon the division of a township the settlement of a pauper follows the township in which he resided at the time of making it: Hopewell Township v. Independence Township, 2 Jones 94. A settlement has a local habitation in respect to the township itself and the fragment of territory into which it falls is to maintain the pauper: Id. The most that can be claimed is that the location of the settlement may be changed in the same township by such acts as would gain a new settlement in another township

      Q-. Cr. Waller, contra.
    The intention of the law is that all who reside in the bounds of the new town at the time of the division, shall be transferred to it with all their responsibilities. At the time of the desertion by his wife, Burleigh left the old township, as it now is, and went into the bounds of the new, and for three year's, up to the time of the divorce, lived in the bounds of the new one, boarding, having no family, and building his house, which he moved into about the time of the decree of divorce. And up to the issuing of the order of removal, it does not appear that Louisa was in South Canaan at all. If her residence would follow that of her husband until she acquired another, then if he changed after she deserted him, whether before or after the divorce, we submit her residence would follow his. Burleigh has lived and paid taxes in the bounds of Lake for over ten years, and still lives there. Lake has the benefit of his taxes, why should it not share the burdens ?
    May 6th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

Louisa Burleigh, the p&uper whose settlement is the subject of this contention, was at one time the wife of Sylvester Burleigh. He obtained a divorce in the Court of Common Pleas of Wayne county, -on the 5th of May 1869, on the ground of desertion. Subsequently she became a pauper, and was supported for some time by the poor district of South Canaan. On the 10th of April 1877, the overseers of the poor of said district obtained an order of removal to Lake district. This order was appealed from by Lake. The court below dismissed the appeal, which ruling has been assigned for error in this court.

It is a familiar principle that the settlement of the wife follows the settlement of the husband. Hence it becomes essential to ascertain where the husband was settled at the time of the divorce. It is not denied that at one time prior thereto the settlement of the husband was in that portion of South Canaan not embraced in what is now Lake District. On the 16th of May 1876, by a decree of the'Court of Quarter Sessions of Wayne county, a part of South Canaan and Salem townships were cut off into a' new district, called Lake. It was contended that at the time of the divorce Sylvester Burleigh’s settlement was in that portion of South Canaan which, by the said decree, was attached to Lake. The 12th section of the Act of 18th June 1836, Pamph. L. 542, provides that “if the last place of settlement of any person who shall have become chargeable, shall be in any township which shall have been divided by the authority of the laws, such person shall be supported by that township within the territory of which he resided at the time of gaining such settlement.” It was said in Hopewell Township v. Independence Township, 2 Jones 92, that the principle established by the act referred to is, “that a settlement has a local habitation in respect to the township itself, and that the fragment of territory into which it falls is to maintain the pauper whether he has been chargeable to the parent township or not.” The manifest object of this section of the Act of 1836 was to require each portion of the territory to bear its own burdens in all cases where a poor district is divided by authority of law, and this notwithstanding the fact that the pauper had been a charge upon the parent township or district before the division. In Lewis v. Turbut, 3 Harris 145, it was held that the place of settlement of the father is that of the son until the latter acquires a new settlement; and if the township in which the father had his place of settlement be divided after the death of the father, the place of settlement of the son by virtue of the 12th section of the Act 13th June 1836, is in the township within the territory of which the father resided at his death ; and the fact that the son when a minor worked in another part of the township, which was, after the father’s death, formed into another township, will not divest the son of his original settlement. An examination of the evidence in this case leaves us in no doubt that at the date of the decree in the divorce suit the settlement of Sylvester Burleigh was in what is now the district of South Canaan. His prior settlement there is not denied. When once established ■it must be presumed to have continued until by some act he had gained a settlement elsewhere. The fact of his living in Lake after the divorce and after the division, 'is not material. The question is, whether at the time of the divorce the locus of his settlement had been so changed as to have given him a settlement in Lake if it had been at the time a separate district. Of this there is no evidence. The nearest approach to it is what Burleigh himself says in his testimony: “When the divorce was obtained in May 1869, I was boarding at Rufus Swingle’s, in South Canaan, now Lake; had boarded there a couple of months. Near a year before the divorce I kept bachelor’s hall in Luzerne county. At the time I boarded at Rufus Swingle’s I was working on the house or shanty I now live in. The line between Jefferson and South Canaan went right through the house; that part of the shanty in South Canaan was cut off into Lake; I had not lived at the house at the time of the divorce; some of my things were in my father’s house at the time of the divorce; some of them were at Rufus Swingle’s and some in Jefferson. I kept the keys of the respective houses at my father’s while the things remained in them. After the house was done and the divorce, I had the things remaining at father’s house brought down to my new house. The house was about half in each township ; after the divorce I went to keeping house in this new house; the house now stands all in Lake, as it has been moved.” All this would have been unavailing in an attempt to establish a settlement in Lake in May 1869 had it then been an independent district. It is equally unavailing to enable Lake to throw the burden of the support of this pauper upon South Canaan. The fact that Sylvester Burleigh, at the time of the divorce had been boarding for a few weeks in what is now Lake, is not important. What he did or w7here he lived subsequently is of still less importance. While it is not contended that a man having a settlement can acquire another settlement in the same district, yet the locus of the settlement may be changed in the same district by such acts as would gain a new settlement in another district.

We are of opinion that in May 1869 the settlement of Sylvester Burleigh was in that part of the district now South Canaan; that he had done no act sufficient to change the locus of his settlement in the district, and throw it into that portion subsequently incorporated into Lake; and that inasmuch as the settlement of the husband was the settlement of the wife at> the time of the divorce, the district of South Canaan is properly chargeable with the support of the pauper.

The decree is reversed at the costs of South Canaan; and record remitted for further proceedings if required


author: Mr. Justice Woodward

text:
    Dean’s Appeal.
    1. A judgment was confessed by an administrator and an order made by the Orphans’ Court for the sale of real estate of a decedent. His heirs, who-had not been parties to any of these proceedings, filed exceptions, alleging certain facts, and praying that the creditor should be compelled to prove her claim and the petitioners have an opportunity to contest the same. Held (reversing the court below), that upon the facts of the case the petitioners had a right to show that the claim, for which the sale was made, was unjust and unfounded and an issue should have been directed by the court to try the fact.
    2. Murphy’s Appeal, 8 W. & S. 165, followed
    April 1st 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from tbe decree of the Orphans’ Court of Wayne county: Of January Term 1878, No. 241.
    Appeal of John Dean and Catharine his wife, in right of said wife, from the decree of the court in the matter of the petition of Peter Walsh, administrator of James Hoban, deceased, for an order of sale of real estate of said decedent to pay debts, and from the decree of said court confirming said sale absolutely. The facts are sufficiently stated in the opinion of this court.

      H. O. Hamlin, for appellants.
    Where judgment is obtained' against an administrator alone, and a sale is about being ordered by the Orphans’ Court, that court ought to allow the heirs to show, if they can, that the creditor’s claim is unfounded, as fully as they could in an action in which they were joined as parties: Murphy’s Appeal, 8 W. & S. 165; Weaver’s Appeal, 7 Harris 417; Breil’s Appeal, 12 Id. 511; Hay’s Appeal, 1 P. F. Smith 58.
    We submit that the court below were wrong in their holding as matter of law that the heirs were not entitled to be heard; and that the naked facts as disclosed in the exceptions filed appeal more strongly to the conscience of the court than any argument we can frame.
    6r. N. Waller, for appellee.
    The confirmation of a sale is for the sound discretion of the court. If it is so manifestly wrong that this court will say that they have exercised their discretion unlawfully, then they would reverse: Haslage’s Appeal, 1 Wright 440. But I apprehend this court will not reverse a decree, where they have not before them all that was introduced before the court below, because they would not be able to judge of the bearing and importance of the affidavits introduced and read but not brought up.
    The only question raised by the appellants that seems to have any merit, was as to their being any debt on which to found a judgment. This the appellants chose to rest upon their ex parte affidavit, which was met by a counter affidavit of an outside party. If it was a question of fact, then an issue might have been ordered to try it, or a rule to show cause granted, under which competent evidence might have been taken. But no issue was demanded and no rule asked for. The matter was left to the court, and being determined by the court it is as binding as if found the same way by the jury: Gibson’s Appeal, 1 Casey 198.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Taking into account all the material matter that has been brought up by this appeal, the true merits of the controversy are not only not disclosed, but they are scarcely even indicated. The evidence on which the action of the court was based, and the principles by which their judgment was guided are left to conjecture; and the proceedings below can only be dealt with in the light thrown on them by the exceptions of the appellants.

On the 2d day of April 1877, an order for the sale of the real estate of James Hoban, deceased, was granted by the Orphans’ Court, on the petition of his administrator, Peter Walsh. The only debt set forth in the petition was a judgment for $3500, confessed by Walsh as administrator to Bridget A. Hoban, administratrix of Thomas Hennigan, deceased, on the 11th of December 1876. The action in whiph this confession of judgment was entered, Avas begun by an amicable agreement between the parties, filed on the 26th of November 1875. Before any step had been taken toAvards the collection of this claim, the administration account of Walsh had been filed and referred to an auditor; all parties had been fully heard; and the auditor’s report, finding a balance of $3335.54 in the administrator’s hands, had been confirmed absolutely on the 15th of September 1875. Mrs. Hoban, as administratrix of Thomas Hennigan, had been present at the hearing, and had presented various claims against Hoban’s estate, but the existence of such a demand as that set up in the amicable action, and for which judgment was confessed, had not been asserted or suggested on behalf of the estate she represented.

It does not appear that the application for the order was resisted. The real estate Avas sold on the 3d of May 1877, to Mrs. Hoban, who purchased the first-described parcel for $25, and the second for $500. The report of the sale was made on the 12th of May 1877, and the same day exceptions were filed under the oaths of these appellants. Notwithstanding the exceptions, and AYithout any countervailing evidence that has been produced here, the report was confirmed absolutely on the 15th of September 1877.

In the exceptions the facts AA'hich have been stated were embodied, and a history Avas given in minute detail of proceedings that disclosed some peculiar features. James Hoban died in September 1870, leaving, a mother, two brothers and two sisters, of whom Mrs. Dean is one. He had been in partnership with Thomas Hennigán in the firm-name of Hoban & Co., up to May 1870, when ITennigan died, his sister, Bridget A. Hoban, who was the widow of a deceased brother of James Hoban, and a cousin of Peter Walsh, becoming his administratrix. After Walsh was appointed administrator of Hoban, an inventory was filed in the register’s office, containing an appraisement of one-half only of the property of the firm of Hoban & Co. This inventory soon afterwards disappeared from the office, and has never since been found. After two citations had been applied for, Walsh filed his account, which was referred to an auditor in December 1874. The inquiry made by him seems to have been searching, thorough and exhaustive. An account on Hoban’s books against Bridget A. Hoban of $439.97, had not been inventoried by Walsh, and the sum of $199.97 was found due on that account, and was surcharged. She had been allowed a demand against the estate for $420 for services rendered by her minor son, which was found to be “ utterly exorbitant and unwarranted.” Walsh claimed credit also for the sum of $220 paid to Mrs. Hoban for “board of clerks,” which was rejected for want of sufficient evidence. And he claimed a further credit for $720 paid her for the “rent of a store,” while the positive evidence showed that James Hoban had occupied no store belonging to her or to her deceased husband, Patrick Hoban, for the last twelve years.” In reference to the accounts “between these cousins,” the auditor said that “ for almost their entire amount not one particle of ground had been shown,” and he was amply justified in holding that “ any other claim presented by this same person should be carefully scrutinized and distinctly proved.” The result of the audit, so far as the firm assets were concerned, was, that Walsh was charged with only one-half of their amount, and it was' expressly reported that “ he was charged with no part of the assets belonging to Thomas Hennigan.” After the payment of debts, a balance of $3375.54 was found in the administrator’s hands, and was distributed and paid. On the 15th of April 1875, Mrs. Catharine Hoban, the mother of the decedent, brought an ejectment against Bridget A. Hoban for the one undivided half of the second parcel of property described in the order of sale, and for that, and for mesne profits amounting to $440.84, she recovered a verdict on the 5th of May 1876. Upon the general facts set forth in these exceptions, the court were asked to refuse to confirm the sale; to require Bridget A. Hoban to prove her claim against James Hogan’s estate; and to give to the exceptants the opportunity to take defence.

It can only be assumed that the court, in disregarding the exceptions, believed them to be defective or inadequate. But if the facts set forth were true, the heirs of James Hoban were clearly entitled to be heard. If, as so competent an auditor as Mr. Seely found, Thomas Hennigan’s share of the assets of the firm of Hoban & Oo. never passed into the hands of' Walsh, and was never applied for the benefit of James Hoban’s estate, the judgment which Walsh confessed was utterly without consideration. The entire personal estate of James Hoban had been administered. Against it Bridget A. Hoban had preferred claims in a spirit that could scarcely be called exemplary, either for its moderation or its modesty, and yet no hint had been given of this demand. Collusion between her and her cousin Walsh had been found by the auditor, and the final adjustment of the administration account had been reported to and confirmed by the Orphans’ Court without resistance or complaint on her behalf. If the sale stands, Bridget A. Hoban will have regained for somebody property probably equal in value to the amount found due from Walsh; she will have retained, under the auditor’s finding, Hennigan’s share of the firm assets; Hoban’s real estate will have been lost as a penalty upon his heirs for making a successful effort to save the personal estate; and Mrs. Catharine Hoban’s recovery in ejectment will have been reduced to an idle form.

It has been stated by the appellee’s counsel that against the exceptions the counter-affidavit of John Hennigan was produced at the argument in the Orphans’ Court. And it has been suggested by the counsel that other facts with which the court were familiar, and which had recently been brought before them, were commented upon, and probably had some weight. It is not doubted that the judge who heard the case below was governed by considerations that were entirely satisfactory to himself; but the counter-affidavit is not in the record, and the outside facts, however conclusive they might be, cannot of course be utilized to guide the judgment of this court.

At the argument here, it was urged by the appellee’s counsel that the confirmation of this sale was an act over which the discretion of the Orphans’ Court extended, and not, therefore, the subject of review. But the questions raised here are not within the rule of Hibson’s Appeal, 1 Oasey 193, and kindred authorities. The exceptions reached back not only to the validity of the decree, but to the integrity of the judgment confessed by Walsh. The legal representatives of Hoban were not participants in any action by which either the judgment or the order of sale had been obtained. They came in at the earliest moment when resistance could be available ; and they had the right to show, in the words of Judge Kennedy, in Murphy’s Appeal, 8 W. & S. 165, that “the claims for the payment of which a sale of the real estate was desired, were unjust, or not well founded.” An issue for a jury should have been directed by the court, if, upon hearing, a case appeared prima facie to be made out in support of the exceptions. . The prayer of the exceptants was in substance for that relief. There was enough in the facts alleged to warrant the application of the rule of careful scrutiny and distinct proof, which the auditor, in the investigation made by him, adopted and applied.

The decree of the Orphans’ Court is reversed at the costs of the appellee, and the confirmation of the sale of the real estate of James Hoban, deceased, is set aside; and it is now ordered that the record be remitted for further proceedings to the said court.


author: Chief Justice Agnew

text:
    Justice et al. versus Nesquehoning Valley Railroad Company.
    1. Whether a structure is a fixture, or not, depends on the nature and character of the act by which the structure is put in place, the policy of the law connected with its purpose and the intentions of those concerned in the act.
    2. Where a railroad company was a trespasser and its entry upon land not in conformity with law, these irregular proceedings did not operate as a dedication to the landowners of the property of the company, placed upon the land, so as to entitle said landowners to include said property in an assessment of damages under the railroad law, and recover their value as an accession to the value of the land taken by the company.
    April 2d 1878.
    Before Asnew, C. J., Sharswood, Merche, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to tbe Court of Common Pleas of Carbon county: Of January Term 1878? No. 255.
    The proceedings in the court below were as follows: Esther S. Justice and others were the owners of a tract of land which in 1869 the Nesquehoning Yalley Railroad Company made an effort to purchase, but owing to the large number of the owners and their failure to agree upon terms, the offers of the company were refused. The company then entered upon the land and built its railroad, to which there was no objection made other than a notice to repair injuries done to tenants. A bond was offered to the husband of one of the owners which was refused. In 1872 the owners united in an action of ejectment against the company, in which judgment was confessed by the company, April 3d 1874, and execution stayed until proceedings to assess damages should be completed. The company then petitioned the court for the appointment of viewers to assess the damages for injuries done to the owners, by the construction of their road, who were appointed and assessed the damages at $4885.94. From their report, the landowners appealed to the Court of Common Pleas. At the trial, before Dreher, P. J., the plaintiff submitted the following point, to which is appended the answer of the court:—
    “ That in estimating the damages the jury are to consider the market value of the land on the 3d day of April 1874, the date of filing the petition for viewers to assess damages, including therein all structures thereon erected, such as railroad ties, rails, &c., and find to what extent the property has been injured by the location and construction of the railroad, and their verdict should be for the amount of the injury and the market value of the land with the improvements thereon, taken on the 3d day of April 1874.”
    Ans. “That proposition we negative. We ruled in this case upon an offer of evidence upon the part of the plaintiffs that that was not the rule of law; they cannot recover for the improvements which the railroad company put upon the land, if they occupied it for the purpose of constructing their road.”
    In their general charge the court said
    “ You are to allow for the difference between what the property as a whole property would have brought in the market before the railroad was located (or what it would have brought unaffected by the railroad), and what it would bring in the market immediately after the railroad was built; and if it is worth less as affected by the railroad, then the difference between those two values constitutes the amount of damages the party is entitled to.”
    The verdict was for the plaintiffs for $1074.41. They then took this writ and, inter alia, assigned for error the answer to the foregoing point and the portion of the charge noted.

      B. G-. Platt, Samuel Dichson and J. D. Bertolette, for plaintiffs in error.
    The value of the land is to be estimated at the time of its lawful occupation by the railroad: Graham v. Connersville & N. C. Junc. Railroad Co., 36 Ind. 467; United States v. Land in Monterey Co., 47 Cal. 515. Whatever is annexed to the soil, becomes part of the realty: Minshall v. Lloyd, 2 M. & W. 459; Lee v. Risdon, 7 Taunt. 191; Coombs v. Beaumont, 5 B. & Ad. 72; Hallen v. Runder, 1 C., M. & R. 266; King v. Johnson, 7 Gray 289; Voorhis v. Freeman, 2 W. & S. 116; Davis v. Moss, 2 Wright 346.
    The rule is paramount to the intention of the person by whom the annexation is made. A man may thus find that he has made a gift, although without intention. Hence a structure erected on the land of another will become his property, although built with the view of sustaining and enforcing an adverse title to the land: Lee v. Risden, supra; Overton v. Williston, 7 Casey 155. This rule applies not only to houses and other structures, which are permanent in themselves, and may in some sense be regarded as principals rather than accessories, but to everything which is so far annexed to the land as to become part of the freehold. The law is clearly settled thus in Pennsylvania: Gray v. Holdship, 17 S. & R. 413; Morgan v. Arthurs, 3 Watts 140; Lemar v. Miles, 4 Ibid. 330; Overton v. Williston, supra; Oves v. Ogelsby, 7 Watts 106; Christian v. Dripps, 4 Casey 271; Pyle v. Pennock, 2 W. & S. 391; Harlan v. Harlan, 3 Harris 507; Heise v. Railroad Co., 12 P. F. Smith 68.

      Charles Albright and Henry Creen, for defendant in error.—
    The measure of damages for constructing a railroad through the property of a landowner, is the difference between the value of the land before the road was built and its value when the road was completed: Schuylkill Navigation Co. v. Farr, 4 W. & S. 362; Harvey v. Lackawanna and Bloomsburg Railroad Co., 11 Wright 428; Hornstein v. Atlantic and Great Western Railroad Co., 11 P. F. Smith 90; Penna. & N. Y. Canal and Railroad Co. v. Bunnell, 31 Id. 425. The right of the company accrued upon its original entry, whether tortious or otherwise: Lawrence’s Appeal, 28 P. F. Smith 365. In this state, neither in an action of trespass, nor in a proceeding for compensation, can the owner recover the value of the improvements put upon the land: Borough of Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Railroad Co., 16 P. F. Smith 409. The right of the company is a mere easement, and is not the subject of a lien or sale under execution: Western Penna. Railroad Co. v. Johnston, 9 P. F. Smith 290. The decisions in Indiana and California are based upon provisions of law peculiar to those states.
    May 6th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

This was a proceeding to view and value land taken by the Nesquehoning Valley Railroad Company for its railroad, and to assess damages therefor. It came into the court below by appeal from the finding of viewers, and was tried before a jury.

As stated in the argument of the plaintiffs in error, there is a single question raised by all the assignments of error, to wit: whether the plaintiffs were the owners of the ties, rails and other structures placed on the land by the railroad company before the 3d of April 1874, the date of the verdict in ejectment. The facts are few, and fairly raise the question. The plaintiffs were the owners of a large tract of land lying at the entrance or “ key ” to the valley, and divided by the Nesquehoning creek, leaving fifty acres to the south of the stream, consisting of valley and timbered hillside. The railroad nearly bisects these fifty acres. In 1869 the railroad company endeavored to purchase the whole of this part, but owing to the large number of owners failed to do so. The company entered and built its road without objection, except it was notified to repair injuries to tenants. A bond was offered to the husband of one of the owners, who said he did not want it. The facts exhibit no outrage in the taking of the property, but the entry was clearly a trespass. No bond having been filed and approved according to law, the entry was irregular, and subjected the company to an action of ejectment, in which judgment was confessed April 3d 1874, and execution stayed until the proceeding to assess the damages should be completed.

The company being a trespasser, and the entry not in conformity to law, the question is, whether this irregular proceeding operated as a dedication in law of the property in the ties and rails to the owners of the land, so as to entitle them to include these things in the assessment of the damages under the railroad law, and recover their value as an accession to the value of the land taken by the company. A careful consideration and analysis of the case before us will show that it differs in essential respects from that of a mere tort-feasor, whose structures upon the land of another enure to the benefit of the owner of the land.

The common-law rule is undoubted, that -a trespasser, who builds on another’s land, dedicates his structures to the owner. The reason is obvious, for like him who sows where he cannot reap, he obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So, if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term, otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an act of appropriation of the land under a charter. This is clearly pointed out in Heise v. Pennsylvania Railroad Co., 12 P. F. Smith 67. The very intent of an appropriation of land, is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of the common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules), which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the conditions of former times, that to apply the rule as to a mere trespasser; whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose, merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full grown man in the garb of his childhood.

This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the land taken for a public use — materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. For this injury the citizen is entitled to redress. But his redress cannot extend beyon 1 his injury. It cannot extend to taking the personal chattels of the railroad company. They are not his, and cannot increase his remedy. The injury was to what the landholder had himself, not to what he had not. Then why should the materials laid down for the benefit of the public be treated as dedicated to him ? In the case of a common trespasser, the owrner of the land may take and keep his structures nolens volens, but not so in this case; for though the original entry was a trespass, it is well settled, that the company can proceed in due course of law to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon. Harrisburg v. Crangle, 3 W. & S. 460; McClinton v. Railroad Co., 16 P. F. Smith 409; Railroad Co. v. Burson, 11 Id. 379. And in Harvey v. Thomas, 10 Watts 63, it was held that the subsequent proceeding to assess compensation, was a protection against a recovery of vindictive damages.

Another evident difference between a mere tort-feasor and a railroad company is this — the former necessarily attaches his structure to the freehold, for he has no less estate in himself, but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement. A railroad company can take no freehold title, and when its proper use of the easement ceases, the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have therefore these salient features to characterize the case before us, to wit: the right to entelen the land under authority of law, to build a railroad for public use; the acquisition thereby of a mere easement in the land; the entire absence of an intention to dedicate the chattels entering into its construction to the use of the land; the necessity for their use in the execution of the public purpose; and, lastly, the power to retain and possess these chattels and the structures they compose, by a valid proceeding at law, notwithstanding the original illegality of the entry. Eor the latter the owner has his appropriate remedies ; his action of ejectment to recover and retain his land and its use, until the company shall proceed according to law, and his action of trespass to recover damages for the injury sustained by the unlawful entry and holding possession, and whatever loss has been caused by those illegal acts.

There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of land because found upon it. Thus, in the case of property carried off by a flood and stranded on the premises of another, the owner may follow it, enter and take it, or if the owner of the land convert it, may recover its value: Forster v. Bridge Co., 4 Harris 393; Etter v. Edwards, 4 Watts 63. And even a sale will not carry unknown secreted valuables: Hutmacher v. Harris, Adm’r, 2 Wright 491.

But a case bearing a close analogy, indeed deciding the principle on which this case rests, is Meigs’s Appeal, 12 P. F. Smith 28. In the year 1862, the United States, in the prosecution of the war, erected buildings on the public common of York for military barracks and hospitals. After the close of the war the government was about removing the materials, when the borough authorities proceeded to enjoin the removal, on the ground that the buildings had been affixed to the realty. In that case we said, referring to Hill v. Sewald, 3 P. F. Smith 271, that the old notion of a physical attachment had long since been exploded in this state, and that the question of fixture, or not, depends on the nature and character of the act by which the structure is put in place, the policy of law connected with its purpose and the intentions of those concerned in the act. This language applies emphatically to the case now under consideration. It was further said then, the nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil — neither intended to give value to it, nor to receive value from it; so, precisely here, the railroad having no connection with the improvement of the land or its uses. The act,” (says the opinion), “ is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessory to some business or employment. It was not an assertion of title in the soil, or of an intention to hold adverse possession. Indeed there was not a single element in the case which characterizes the act of a tort-feasor, who annexes his structure to the freehold, and is therefore presumed to intend to alter the nature of the chattel and convert it into realty, and thereby to make a gift of it to the owner of the freehold.” This language strongly characterizes the case before us. Here as there the purpose is a public use; there was no intent to hold adversely as a trespasser, nor to improve the ground or make it useful and valuable by the erection. The rails and ties were not intended to be attached to the freehold, but were laid down as part of an easement under a franchise of the state. There was no intent to use the land as an owner would, and no intent to abandon the-materials to the use of the owner, but they were subject to a, legal proceeding resulting in maintaining both ownership and- use for the charter purpose. We think therefore the ownership of the rails, ties, &c., did not vest in the plaintiff in error by the mere trespass in the original entry.

Judgment affirmed.

Mercur and Gordon, JJ., dissenting.


author: Mr. Justice Trunkey

text:
    Whitaker versus Delaware and Hudson Canal Company.
    1. Private charters are to be strictly construed, but when the Commonwealth grants a public franchise over a highway, a clause relative to the use of such highway will not be so construed as to defeat the grant.
    2. Where a corporation is authorized by its charter to construct a dam in a river, provided the same be “ so constructed as to leave the channel of the river as safe and convenient for the descent of rafts as it now is,” such proviso is to be construed to mean that the dam shall be so constructed as to be the least obstruction to the navigation of the river consistent with the uses of the dam for the purposes contemplated by the charter.
    3. Plaintiff averred that defendants had constructed and maintained their dam in violation of their statutory rights and in such a manner as to cause him injury. Held, that the burden is on the plaintiff to prove these averments, and the mere fact that the rafts were injured by the dam is not suffi cient.
    April 2d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 181. .
    Case by Stephen E. Whitaker, against the Delaware and Hudson Canal Company, to recover damages for injury to plaintiff’s rafts while passing through the schute of defendant’s dam, alleged to have resulted from the improper construction and maintenance of such dam.
    The narr., inter alia, charged:
    “ That the defendants did not nor would use such due and reasonable care, diligence and skill, or adopt such due and proper precautions in and about the premises, in putting and leaving the said highway in such reasonably secure and proper condition, and as safe and convenient for the descent of rafts as it was before the construction of said dam; and the defendant then and there, to wit, at the time and place aforesaid, wrongfully, negligently and injuriously, made default in the premises, and built and left the said dam in and across said highway, in a dangerous, insecure and impassable state and condition,” &c.
    The defendant, incorporated by the legislature of New York, and possessing certain franchises granted by the legislature of Pennsylvania, was authorized by the two states to construct a canal or slack-water navigation from the head-waters of the Lackawaxen creek to its mouth in Pennsylvania, and thence in the state of New York down the Delaware river to Carpenter’s Point, and to the Hudson river. In doing so it was authorized to construct dams on the Delaware river and to make feeders therefrom. This right was essential to carry out the purposes for which the defendant was incorporated, viz: the construction of a great inter-state water communication between the coal fields of Pennsylvania and the city of New York. In pursuance of its chartered privileges, it in 1827 erected a dam across the Delaware river at the mouth of the Lackawaxen creek, for the purpose of supplying that portion of the canal upon the New York side of the river with water.
    By the 3d section of the Act of the General Assembly of Pennsylvania of April 1st 1825, Pamph. L. 141, it is -provided, “ That the said company shall not erect any works or make any improvements connected with the Delaware river unless the same shall be so constructed as to leave the channel of the said river as safe and as convenient for the descent of rafts as it now is.”
    The plaintiff was a lumberman, and as such, was engaged in running lumber down the Delaware river. In the summer of 1875, in passing the dam two double rafts owned by him were wrecked, causing the loss fór which suit was brought.
    At the trial the plaintiff offered some evidence in regard to the maintenance of the dam, but relied chiefly upon its improper construction as the cause of the injury done to his rafts. There was also evidence on the part of defendant as to the broken and damaged condition of the rafts, the material portion of which is recited in the opinion of this court.
    The court, Waller, P. J., directed a verdict for the defendant m an opinion, inter alia, saying :
    “It devolves upon the plaintiff to make out his case; and to sustain his action he must furnish evidence of his loss, and must prove the loss was caused by passing over this dam of the defendant, and further, that his loss was occasioned by the negligence or want of proper care and diligence on the part of the defendant in keeping the dam and schute, which constitute ‘ the channel of the river’ at that point, in proper repair and condition for the reasonably safe and convenient descent of rafts. In the absence of such evidence we instruct you that the plaintiff cannot recover in this action.
    “It is an unquestionable fact that the dam of the defendant forms an obstruction to the navigation of the river by rafts. But if the defendant has constructed the dam in such a manner as to afford the least possible obstruction to the running of rafts, and has maintained and kept in good repair a schute in said dam which renders the passage of rafts over the same reasonably safe, and has provided the best means of passing over the dam that could be done with the user of the dam, under the grant from the Commonwealth, and has kept such schute in good order and repair, then the plaintiff cannot recover. The plaintiff has not shown by competent evidence such negligence on the part of defendant, nor has he offered sufficient evidence that would warrant us in submitting the question to you, as a question of fact, whether such negligence existed; while the defendant has, by a large number of witnesses, shown that this schute was, at the time complained of by the plaintiff', -in as safe a condition as usual, and as safe as many natural points in the river, other than this dam. We think, under the rules of law governing this case, that the plaintiff has failed to make such a case as should be referred to the .jury. We therefore direct a verdict for the defendant.”
    The plaintiff took this wwit and assigned for error the refusal to submit the case to the jury and the direction to find for defendant.
    6r. 6r. Waller,

    for plaintiff in error. — The company had no right to construct the dam so as to materially interfere with the safe navigation of the river, and it was a question for the jury, under the evidence, whether there was a material and unnecessary interference.

      H. M. Seely, for defendant in error.
    The joint action of the states of New York and Pennsylvania created not simply a contract “with the corporation, but a compact between the states,” to create a great interstate line of communication, • by which both states Avere to be vastly benefited. The charter is not to be compared with a charter from an individual state. It is to be liberally construed with reference to the magnitude of the enterprise, by giving the company the necessary means to accomplish the purposes of its creation: Brocket v. Ohio and Penna. Railroad Co., 2 Harris 244; Cleveland & Pittsburgh Railroad Co. v. Speer, 6 P. F. Smith 332.
    The folloAving cases afford a clear guide to the construction of similar language in charters from a state: Monongahela Bridge Co. v. Kirk, 10 Wright 112; Commonwealth v. E. & N. E. Railroad Co., 3 Casey 365; Ensworth v. Commonwealth, 2 P. F. Smith 322; Bellinger v. N. Y. Central Railroad Co., 23 N. Y. 42. Shall a more strict construction be given in this compact betAveen two states ?
    We took the position in the court beloAV and here maintain, that no recovery can be had against defendant in this kind of proceeding, on the ground of improper construction of the dam, but only upon proof of negligence in its maintenance. The burden of establishing this negligence Avas on the plaintiff: Allen v. Willard, 7 P. F. Smith 379. There was neither proof nor any attempt to prove want of skill in constructing or negligence in maintaining this dam.
    May 6th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

The defendants were incorporated under the laws of NeAV York, and by divers statutes of this state, are vested Avith certain public franchises. Eor the purposes of the grant the dam across the Dela-Avare river was built about fifty years ago, and the right to maintain it is conceded. In the Act of 1825, Pamph. L. 142, is a provision “That the said company shall not erect any works, or make any improvement, connected with the Delaware river, unless the same shall be so constructed as to leave the channel of said river as safe and as convenient for the descent of rafts as it now is.” The plaintiff complains that the river is not as safe and convenient for navigation as before the erection of the dam. Unquestionably this is so. A dam in a stream is an impediment and in some degree renders its navigation less safe and convenient. A literal construction of this provision makes it impossible to build and maintain the dam, and the conceded right vanishes. The statutes of this state, recognising those of New York, and in connection therewith, conferring the power to construct a great public highway, are nugatory under a strict construction of the section providing for safe and convenient navigation of the river. This was not the legislative intent. It could not have been intended to grant a franchise to build a public highway, in connection with one in a sister state, and so clog it that the work could never be executed.

Various statutes, from time to time, have been enacted authorizing public improvements, some of which would obstruct or impede the navigation of rivers, and others the use of streets and roads, which contained provisions forbidding such obstructions and impediments. The courts have uniformly held that these provisions should be liberally construed, so as not to destroy the grant. For instance, the act of incorporation of the Monongahela Bridge Company contained a declaration that nothing therein contained should authorize the erection of a bridge over the Monongahela river “in such manner as to injure, stop, or interrupt the navigation of the said river, by boats, rafts or other vessels.” It was held that the proviso was not intended to prevent the erection of piers in the bed of the river, yet piers in the bed of a navigable stream inevitably endanger navigation and render it more difficult. They do not necessarily “injure, stop or interrupt the navigation” in the sense in which these words were used by the legislature. A strict literal meaning was not intended, and in the very nature of things, it never could have been. When the purpose of the franchise is the performance of a public act, the grant is to be so interpreted as to enable the act to be done. The extension of one highway over another is a public act, and not less so because of the power to exact tolls: Monongahela Bridge Co. v. Kirk, 10 Wright 112. The charter of the Erie and North East Railroad Company had a provision that “ The said railroad shall be so constructed as not to impede or obstruct the free use of any public road, street, lane or bridge nowr laid out, opened or built.” “ These words taken literally and in their strongest sense would prevent the railroad from being made on the streets at all. 'But we follow authority in saying they are not to be so interpreted. The defendants have a right to use a street if they take care to obstruct it as little as the nature and character of their improvement mil permit, if they create no material or unnecessary impediment — no obstruction which could be avoided by any reasonable expenditure of money or labor. They cannot occupy the whole of a street and drive the public away from it altogether. But any street which is wide enough for the railroad and public both may be used on the terms mentioned.” Per Black, C. J., Commonwealth v. E. & N. E. Railroad Co., 3 Casey 365.

It is no departure from the current of decisions, but in its direct line, to hold that the defendants can enjoy their franchise, can lawfully construct and maintain their dam, taking care to obstruct the channel as little as the nature and character of the improvement will permit, and leaving it as safe and convenient for the navigation of rafts as could be by any reasonable expenditure of money and labor. Their franchise is for the construction of one highway over another. The whole community are interested in both. Private charters are strictly interpreted. In them what is not expressed or necessarily implied, is not granted, and what is doubtful is resolved in favor of the sovereign. But when the sovereign grants a public franchise over a highway, a clause relative ' to the use of said highway will not be so construed as to defeat the grant.

The plaintiff does not claim merely for consequential damages, resulting solely from the construction of the dam. If he did, the defendants’ answer would be found in Clark v. Birmingham and Pitts. Bridge Co., 5 Wright 147, and Monongahela Bridge Co. v. Kirk, supra.

He claims further for an immediate injury, consequent upon the defendants’ negligence, in that they “built and left the said dam in and across said highway, in a dangerous, insecure and impassable state and condition.” His averment implies much more than such obstruction as was necessary for the purposes of the franchise, and, if established, and there was no contributory negligence, his right to recover is clear. If he adduced sufficient proof of such negligence, it should have been submitted to the jury.

The evidence of the broken and damaged condition of the rafts, before reaching the dam, will not be specially noted, though that would have been important as tending to show contributory negligence, had the case been submitted.

Surrine and Lakin were steersmen on the rafts. Both had had long experience on that river, and neither ever had bad luck or stove a raft on that dam before. They agree that the water in the schute was rougher than usual, and that the water in the roll was rougher than in the schute. The injury was done in the roll. A raft ahead of them was stove to pieces at same place. Surrine says, “I think that dam is about as bad as any place we have on that river.” Lakin says, “ It was a fair freshet. The slash-boards were on the dam. They caused a tendency to draw the rafts to Jersey.” “ I should not call the dam very safe.” “ Are not the slash-boards always there, except when the water is high, on the Jersey side of the crib ?” “ I cannot say they wasn’t.” “And are they not kept there to throw water in the channel and help you over the dam ? wouldn’t that be the effect to throw water through the rafting channel?” “Yes, sir.” Curtis, who was on the raft with Surrine, says, I laid it to the slash-boards, which made the surges of the water, and that seemed heavy. I think the damage was done by the dam; I don’t know what else could have done it. If there had not been any dam there it could not have done any injury. There is always a roll right there in a freshet.” With this evidence to make out the charge of negligence, the plaintiff rested. There is no pretence that the defendants’ witnesses added to its strength. The plaintiff’s witnesses had been in his employ on the rafts and had ability to discover anything unusual, done or omitted by defendants, to cause the extraordinary roughness of the water. Yet careful counsel failed to point to an expression tending to show an unusual condition of the dam in reference to the stage of the water. One Avitness laid the unusual roll to the slash-boards, but neither he nor any other said it Avas uncommon for the slash-boards to be there. He Avas, hoAA'ever, correct in saying, “ if the dam had not been there it could not have done any injury.” But it was by no means sufficient to establish negligence to connect the injury Avith the dam.

The dam had-been rightfully there for many years. The Commonwealth has made no complaint of abuse of the grant. In 1830 she exonerated the defendants from building the river lock in the dam until they shall be required by the legislature: Pamph. L. 407. There is no evidence of change in the dam since that date. Neither court nor jury can say a lock should have been constructed after the Commonwealth has said otherwise. Negligence Avill not be presumed. When the plaintiff avers that defendants have constructed and maintained'their dam in violation of their statutory rights, and in such'manner as not to be the least obstructive to the navigation of the river, consistent with the use of the dam for the purposes of their franchise, and by some negligent act have caused him immediate injury, the burden is on him to prove his averments. The mere fact that the rafts Avere injured by the dam is hot enough. It falls as far short of sufficient -proof as does the fact alone of the killing a horse by a railway train when crossing a street, fall short of shoAving negligence in the raihvay company. A spark, a scintilla of evidence of negligence by the defendants is here, and no more. The learned judge Avas right in his conclusion that the evidence Avas insufficient to Avarrant a finding that the defendants were guilty of negligence.

Judgment affirmed.


text:
    Conley and Wife versus Bentley.
    1. Where judgments have been entered against a husband, his declarations that certain property belongs to his wife are inadmissible in evidence as against creditors, and should be withheld from the jury, although during the trial no objection was made to their admission.
    2. A husband may make a gift to his wife or a settlement upon her, which equity will sustain as against creditors, in the absence of a fraudulent intent, and the question of such intent should be left to the determination of the jury-
    3. It seems, that the 2d section of the Act of May 5th 1855, is in pari materia with the Feme Sole Trader Act of February 22d 1718. Under said section it is not necessary that there should be the decree of any court that a wife is to be regarded as a feme sole trader, to entitle her to accumulate and hold property against her husband and his creditors; the right results from proof that she has been thrown upon her own resources for support, and that her husband has deserted her or neglected to provide for her from any cause/
    April 2d 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Trunkest, JJ.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1878, No. 196.
    Ejectment by George F. Bentley against Andrew Conley and Eliza Conley, his wife.
    At the trial, on behalf of the plaintiff, two deeds were offered in evidence; one from Alonzo Bentley to Eliza Conlin, dated June 2d 1860, for one of the lots in suit; and the second, dated February 3d 1868, from Phineas Goodrich, executor of Daniel Kimble, to said Eliza Conlin, for another lot. It was admitted that Eliza Conlin was a married woman, the wife of James Conlin, deceased, at the time of the execution of these deeds of Bentley and Goodrich, and that she was, at the time of trial, the wife of Andrew Conley, the co-defendant in this action. Plaintiff also offered the record of two judgments; one entered in 1868, and one in 1870, against James Conlin, and the record of their revival after Conlin’s death against his widow and administrator. Upon one of these judgments execution had issued and the plaintiff had bought the properties at sheriff’s sale.
    The defendant, Eliza Conley, testified that she was married to James Conlin at Poughkeepsie, N. Y., in 1848; that he remained with her only a few days, and shortly thereafter she removed to Connecticut, where she lived for some fifteen months, working a part of the time as a domestic, and at other times going out sewing; that during this period her husband visited her occasionally; that when she left Poughkeepsie she had $45 given her by her sisters; she then went to New York to live, where her husband again left her; with the money given to her by her sisters and her accumulations in Connecticut, in all $100, she started a small candy shop ; for several months, while keeping this store, her husband lived with her, and then left her, going to Rondout, N. Y. She sold out her shop for $75, and followed him to Rondout,-where she kept another store; at this time she had about $200, and it was agreed between her husband and herself that each should keep their own earnings and dispose of them as they pleased; that in 1852 they moved to Honesdale, Pennsylvania; Conlin then commenced boating on the canal, and she kept boarders, raised fowls, took in sewing and worked and traded in various ways; her husband also kept a little saloon, which she attended to; did not know what became of the proceeds of saloon; Conlin was extravagant and dissipated in his habits, and did not contribute anything to the support of his family, consisting of his wife and two children; in 1857 she contracted with Rentley for one of the lots in question, and paid him therefor in instalments, receiving a deed and recording the same in 1860; in 1863, contracted with Goodrich for the other lot, for which she received a deed in 1868, Avhieh Avas duly recorded; that the aggregate amount paid for these lots was $350; the deeds were made to her alone, and none-of the purchase-money Avas received from her husband. She also testified that Conlin was not in debt when these purchases AYere made, and did not at the time contemplate entering into any hazardous business. Conlin knew that his wife purchased these properties, and frequently declared in the presence of Avitnesses that they belonged to his wife, and were purchased with her earnings. It Avas also shown that she made the contract for the lots herself, that she alone paid the money; that she said she wanted it fixed so that she could hold the land herself, because it was her money. It also appeared that in contracting bills for the house, they Avere made out and receipted in her name, and that the bills for the boarders were also so made.
    In rebuttal, evidence was given to show that the note on Avhieh judgment was entered against Conlin, Avas given by him for lumber Avhieh was used upon the building on one of these lots, but upon cross-examination it appeared that part of it was also used in the repair of a boat of Conlin’s.
    Among the points submitted by the defendants Avere the following, to which are appended the answers of the court:
    2. If the jury believe that Eliza Conley received from her relatives any portion of the money Avith Avhieh she paid for the property in question she holds an interest in the lands to the extent of the money so received and paid, A\Thich is good as against the purchaser at sale by the sheriff under an execution against her husband.
    Ans. “We answer this in the negative, because there is no affirmative evidence to sustain it. The purchase of the land and the building thereon were several years after the receipt of the $45 from her sisters.”

      3. If the jury believe that James Conlin, the former husband of Eliza Conley, the defendant, by reason of habits of drunkenness, profligacy and other causes, neglected to provide for his wife, and she, by her labor, industry and frugality, provided for herself and accumulated property, she is entitled to claim and hold the same as a feme sole trader against her husband, his creditors and the whole world, and if she invested the money so accumulated by her in the land in controversy, her title is good as against the purchaser at sheriff’s sale under execution against her husband.
    Ans. “ We must negative this point for the reason that there is no evidence that James Conlin, at the time of the acquisition of this property, was so habituated, or had neglected to provide for his wife.”
    4. If the jury should find that Eliza Conley does not hold the entire interest in said property, but holds an interest to the extent of such sums of money as from the evidence they believe she invested in said property, they may render a verdict for the defendants, conditioned that the verdict shall be released upon the payment by the plaintiff, within such time as they shall name, of a sum of money equal to the interest of Eliza Conley, as they shall fix the amount.
    Ans. “We are compelled to negative this proposition. It is altogether too broad and unsupported by legal authority.”
    In the general charge the court, Waller, P. J., said:—
    “The plaintiff in this case can take no greater or better title by virtue of his sheriff’s deed than James Conlin had at the time these judgments were obtained. Mrs. Conley testifies that she received from a sister $25 at the time of her marriage ; and that some time afterward she sent $10 to a sister in Ireland, who, after her arrival in this country, sent her, defendant, $20. It is not claimed that she ever had any other money, except what she earned during coverture, with which to purchase these two lots (the cost of which seems to have been $350 and upwards), and to erect the buildings which were thereafter erected thereon. [She testified that she kept boarders, took in sewing, ran a grocery, &c., her husband running a boat part of the time, and the remainder of the time living at home and keeping the grocery.] Now, aside from her owm evidence and the declarations of the husband, made after the judgments had been obtained, there is nothing to take this case out of the well-established rule of law, that, so far as regards creditors, all the money and personal property of the family are presumed to be the property of the husband until the contrary be shown, as well as the earnings of the family, with some exceptions : Walker v. Reamy, 12 Casey 410.
    “ [The declarations of the husband that certain property belonged to his wife, are inadmissible as evidence in favor of the wife :] Parvin v. Capewell, 9 Wright 89.”

      The plaintiff' submitted the following point, subjoined to which is the answer of the court:—
    The court is requested to instruct the jury that under all the evidence in this cause, the verdict of the jury must be in favor of the plaintiff.
    Ans. “In answer to this, we say to you that the jury must be satisfied by evidence, and there is manifestly no evidence which proves the fact in controversy, upon which we think the court should submit the question to the jury. We therefore affirm plaintiff’s point, and upon the whole case we direct a verdict for the plaintiff.”
    The defendants then took this writ, inter alia, assigning for error 1 and 2, the foregoing portions of the charge in brackets, 4, 5 and 6, the answers to defendant’s points, and 11, the answer to plaintiff’s point.

      H M. Seely and P. P. Smith, for plaintiffs in error.
    Not having asked that the declarations of Oonlin should be rejected or stricken out during the trial, the plaintiff waived all objection to their competency, and it was unfair for the court to rule them out in the general charge. Whensoever any husband, from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, she shall have the privilege of a feme sole trader, &c. : Act 4th May 1855, § 2, Purd. Dig. p. 1008, pl. 24; Black v. Fricker, 9 P. F. Smith 16. The fourth point of defendants should have been affirmed.
    A wife may have an interest in lands to the extent of the money paid by her, and under the practice of our courts, where equity is administered through the forms of the common law, her rights may be protected by a conditional verdict: Hauberger v. Root, 5 Barr 12; Coolbaugh v. Pierce, 8 S. & R. 419. The court negatived the fifth point on the ground that the transaction is not in the proper form of a settlement upon the wife. There is no special form required to vest a title in the wife. Bowser v. Bowser, 1 Norris 57; Nippes’s Appeal, 25 P. F. Smith 472 ; Morris v. Zeigler, 21 Id. 450 ; Penna. Salt Co. v. Neel, 4 Id. 9; Townsend v. Mayward, 9 Wright 198.
    Was this transaction fraudulent as to creditors ? To have constituted such fraud there must have been a definite purpose to defeat creditors by the act alleged to be fraudulent, and this is always a question for the jury: Williams v. Davis, 19 P. F. Smith 21; Mullen v. Wilson, 8 Wright 413; Thompson v. Thompson, 1 Norris 378. That the husband is not shown to have owned any other property is immaterial: Nippes’s Appeal, 25 P. F. Smith 472. Or that the judgment-creditor had no knowledge that the title was in the wife: Morris v. Zeigler, 21 Id. 450.

      George G. Waller and P. O. Hamlin, for defendant in error.—

      The declarations of an insolvent or embarrassed husband that certain property belonged to his wife, is not admissible in evidence in favor of the wife: Parvin v. Capewell, 9 Wright 89; Gamber v. Gamber, 6 Harris 365; and it would have been manifest error to have permitted a verdict to be found on incompetent evidence, even if the attention of the court was not called to it at the proper stage of the trial. This is not one of the class of cases wherein the wife is authorized to act as feme sole trader. No separation or desertion; both living together^ and both earning money; and no evidence but the wife’s that his money did not go into the purchase. The wife claimed that she paid for the entire property; but it was out of her earnings after marriage, except it be a trifling sum; hence there could be no conditional verdict.
    Oonlin and wife lived together like any other husband and wife, so far as the public knew. They both attended to business, and the very debt on which the property was sold was at least half of it for materials furnished to build and repair a house on these lots. The evidence on the part of plaintiff below is that Mrs. Conley said the property was purchased with the joint earnings of herself and husband. The wife’s title depends upon her own unsupported evidence. We submit that, after withdrawing the declarations of the husband from the jury, there was manifestly no evidence which proves the fact claimed by the wife.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

Whether the assumption by the court below that the same grocery was superintended at different times by Mrs. Conley, one of the defendants, and by James Conlin, then her husband, was accurate or erroneous, depended on the testimony. On behalf of the defendants, it was insisted on at the trial, and at the argument here, that two separate establishments were kept at different periods by the husband and wife respectively. The statements of the witnesses were not sufficiently definite and clear to warrant the conclusion that the judge was mistaken in the view of the facts he presented to the jury. Perhaps, in-connection with the other evidence in the cause, these facts should have been left to be found by the verdict, but the ground alleged in the first assignment of error would not of itself justify a reversal of the judgment.

Although the testimony as to James Conlin’s declarations had been heard without objection, it was nevertheless the duty of the court to withdmv it from the consideration of the jury. The decía rations were stated in the charge to have been 'made after the entry of the judgments under which the lots were sold to the plaintiff. In Gamber v. Gamber, 6 Harris 363, Chief Justice Black said that “ declarations of an insolvent husband cannot, under any circumstances, be evidence for the wife.” And it was held in Parvin v. Capewell, 9 Wright 89, that “ a post-nuptial settlement of property on a wife admits of other evidence than the declaration of the husband after he has fallen into embarrassments.”

In the fourth point presented on the part of the defendants, the court were asked to charge that if the property in dispute was owned in part by Mrs. Conley, and in part by her first husband, James Conlin, her interest should be secured by a conditional verdict, which should recognise it and fix its value. The sixth error has been assigned to the refusal of this point. The main, broad, vital question in the trial was whether by her contracts, by the payments which she made, and by the conveyances she received in her own name, Mrs. Conley acquired a valid title to this property. If she did, expenditures made afterwards by her husband for its improvement could not have the effect of changing the ownership in whole or in part. Materials furnished to him on credit towards the erection of buildings Avould create no tangible title which a creditor could seize'and sell under a judgment for their value. Furnished on the credit of the buildings, they would have afforded to the material men the foundation for mechanics’ liens. Furnished to the husband on the credit of the wife, they might have supported an action against her as having been employed to improve her separate estate. But it would be a novel application of legal rules that would make such a contract the means for the acquisition of an interest in the property, either for the benefit of the husband or for that of his creditor. It is taken for granted that the- fourth point was presented in view of the evidence that one of the judgments- under which the lots were sold was in part for materials which entered into the construction of the buildings. The $45 given to Mrs. Conley by her relatives had been made the ground for the second point, and that the court was justified in refusing to affirm, as well because of the remoteness of the date when the money was received, as of the inadequacy of its amount. If the fourth point was based on the theory that payments were made, while the .contracts were running, out of the common earnings of the husband and wife, it is difficult to see why established principles would not require that the sole ownership should be vested in the husband. Conditional verdicts under the practice in such precedents as Coolbaugh v. Pierce, 8 S. & R. 418, and Hauberger v. Root, 5 Barr 508, have been rendered only in favor of a beneficiary entitled to some actual legal or equitable interest in land under a deed, will, trust or contract. It would be a perversion of the practice regulating such verdicts to introduce it into such a case as this, while it would be extending to creditors the benefits of the mechanics’ lien laws in a very peculiar and incongruous way.

Of the remaining assignments in error, discussion in detail is not required. The eleventh and last complains of the instruction to the jury that the plaintiff had the right to recover because there was no evidence by which Mrs. Conley’s title could be supported. In this withdrawal of the cause, it is believed that injustice was done to the defendants. The contracts had been made in Mrs. Conley’s name, while she was James Oonlin’s wife, with his acquiescence and assent. There was testimony from which the jury might have inferred that long before the removal to Honesdale, it had. been agreed that she should support herself, retain her own earnings, and have the right to make any disposition of them she might choose. There was testimony also that the payments on the contracts were made by her exclusively. The deeds were executed to her, and appear to have been promptly recorded. The first judgment against Cbnlin was obtained in a suit begun on the 26th of November 1868, nearly ten months after the second deed — that from Daniel Kimble’s executor — was delivered. It was alleged on behalf of the defendants at the trial, that when the property was bought, Conlin owed no debts, was engaged in no business involving financial hazard, and had no intention to enter into such a business. And it was alleged that, he did not become embarrassed in any way until the property had been wholly paid for, and the last conveyance had been executed. It is true that to a large extent the proof of material facts rested on Mrs. Conley’s testimony. But the papers were in evidence, and there was outside testimony as to the relations the husband and wife bore to each other, as to the family’s mode of life, and as to Conlin’s dissipated habits.

Upon such facts as those thus appearing and alleged, the course of decision has long been uniform and distinct. Rogers v. Fales, 5 Barr 154, which was decided before the passage of the Act of 1848, involved the title to a chattel. The judgment was affirmed on the charge of Judge Bell, in which he said: “ As a general rule, personal property acquired by a wife passes to and will belong to her husband, whether acquired before or subsequent to the .commencement of the coverture. But a married woman may acquire a separate property in chattels, either by the gift of a stranger or of her husband. So where the property is purchased by the money, or created by the labor and industry of the wife, though, prima facie, it would be subject to his marital rights, yet he may consent that it shall be the property of his wife, to be held as of her separate estate, and if he do so, it is freed from his dominion.” While a conveyance of real estate to a wife by a husband, to secure it to her free from debts which he might contract in a new business into which he was about to enter as a partner, is of no effect against creditors who become such in the business of the partnership, yet the object of the conveyance is a question of fact for the jury to decide: Mullen v. Wilson, 8 Wright 413. A husband may, without the intervention of a trustee, settle upon his wife a reasonable portion of his estate, if it be not done in contemplation of future indebtedness, and he be free from debt, or perfectly solvent after the payment of all his existing debts; and no legal presumption of fraud arises upon such a settlement, but the question is one of fact for the jury as to the intention of the parties: Townsend v. Maynard, 9 Wright 198. In that case, the qualification that the settlement should not exceed a reasonable portion of the husband’s estate, was apparently derived by Judge Read from the opinion of Mr. Justice Thompson in Hinde’s Lessee v. Longworth, 11 Wheaton 199, in which it was held that the mere fact of the existence of a debt for a small amount would not make a deed from a parent to a child fraudulent, if it could be shown that the grantor was in prosperous circumstances and unembarrassed, and that the gift was a reasonable provision for the child according to his estate and condition in life, and leaving enough for the payment of the debts of the grantor. The opinion of this court in Coates v. Gerlach, 8 Watts 43, contained a similar qualification. It was decided there that a husband may make a gift to his wife, or a settlement upon her, without the intervention of a trustee, which equity will sustain, if it be no more than a reasonable provision for her, proportioned to his circumstances, and not hurtful to his creditors. But the vital question must always be whether creditors, existing or prospective, are to be endangered. The amount of the gift, or the value of the property settled, as proportioned to the donor or settler’s whole estate, is an element to enter into the consideration of the design and purpose of a particular transaction. Excessiveness in amount or value would not be enough alone to create the implication of an intended fraud. In Nippes’s Appeal, 25 P. F. Smith 472, where a husband made a voluntary conveyance to his wife of land subject to alien for purchase-money, it was held that the lien was not such a debt as would render the conveyance void as to subsequent creditors, and that, there being no evidence of a fraudulent purpose, the fact that it was all the property the husband owned was immaterial: Williams v. Davis, 19 P. F. Smith 21, which denied to later creditors the right to take advantage of the fact that a mortgage was a lien on land at the time of its conveyance by a husband to his wife, was a precedent for the rule applied in Nippes’s Appeal. In Morris v. Ziegler, 21 P. F. Smith 450, a husband had -conveyed land to his wife, and a judgment afterwards recovered against him had been purchased by a third person before the deed was recorded. It was ruled, as there was no fraud in the conveyance, and no intentional concealment of the fact of its execution in order to give the husband a false credit, that the title of the wife would prevail against the judgment, and that the failure to record the deed was not such laches as would estop her as against a judgment-creditor of her husband. And in Thompson v. Thompson, 1 Norris 378, it was held that the right of a husband to procure a conveyance of land to be made to his wife, and to settle the land upon her, wa3 not affected by the fact that he had borrowed a portion of the purchase-money at the time of the execution of the deed, if at that time he had no other debts, and was not about to enter .into any hazardous business or contract any fresh obligations. It is manifest from tbe authorities that the questions in this cause ought to have been left to the determination of the jury. It was the fact, and not the form of the settlement of the property by James Conlin upon his wife, that was in dispute. His agreement, acted on through a series of years, that she should retain the control of her own earnings, and invest them in property in her own name, was as valid a gift as a conveyance -would have been which he might have procured to be made to her in consideration of purchase-money advanced by him to the grantor.

In answer to the third point of the defendants, the court ruled that there was no evidence of neglect on the par.t of Conlin to provide for his wife by reason of habits of drunkenness, profligacy, or other cause. With the advantage the president judge possessed of seeing and hearing the witnesses who were examined, it may be that the ruling Avas right, although it would seem that there was some direct, affirmative evidence significant enough to be entitled' to submission. As the case goes back for a fresh trial on other grounds, it is only necessary to repeat what was decided in Black v. Tricker, 9 P. F. Smith 13, that the Act of the 5th of May 1855 is remedial, and is to be interpreted benignly; that the second section is in pari materia Avith the Feme Sole Traders’ Act of the 22d of February 1718; and that under that section it is not necessary that there should be the decree of any court that a wife is to be regarded as a feme sole trader, to entitle her to accumulate and hold property “ against the husband, his creditors and the whole Avorld.” The right results from proof that she has been thrown upon her own resources for support, and that her husband has deserted her, or has neglected to provide for her from any cause.

Judgment reversed, and venire facias de novo awarded.