author:
Oheif Justice Sharswood
      Mr. Justice Trunkey

text:
    Commonwealth, ex rel. Wolfe, versus Butler.
    1. In order to justify a court in pronouncing an Act of the Legislature unconstitutional and void either in whole or in part, it must bo able to vouch some exception or prohibition clearly expressed or necessarily implied. Where there is any doubt, it should be resolved in favor of tlie constitutionality of the act.
    2. Where the contention is as to the meaning of a word, then any meaning, whether technical or popular, which will support the constitutionality' of the act, must be adopted.
    3. The provision of the act of May 11th 1874, Pampb. L. 129, entitling members of tlio General Assembly, in addition to a fixed compensation of one thousand dollars for each session not exceeding one hundred days, to a further compensation of ton dollars per day for the time necessarily spent after the expiration of the one hundred days, is not in conflict with article II., § 8, of the constitution, which provides that members of the General Assembly shall receive such salary as shall be fixed by law, and no other compensation whatever.
    4. The term “salary,” as used in said clause of the constitution, is to be considered synonymous with the term “wages.”
    February 2nd 1882.
    Before Siiarswood, C. J., Mercur, Gordon, Teunkky, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas of Daujphvn county: Of May Term 1882, No. 57.
    Upon tlie petition of Charles'S. Wolfe, a writ of alternative mandamus was issued in tlie name of the Commonwealth of Pennsylvania, directed to Samuel Butler, state treasurer, commanding him to pay to the petitioner the sum of $500, being tlie balance alleged to be due bim upon a warrant in liis favor for bis compensation as a member of tlie bouse of representatives for the session of 1881. Tlie respondent filed an answer, to which a replication was filed.
    There was no dispute as to the facts, which were as follows: — The relator was a member of the house of representatives, and served as such during the session of 1881, which lasted from January 4th to June 9th 1881, a period of one hundred and fifty-eight days. By the Act of May 11th 1874, Pamph. L. 129, it 'is provided: “ That the compensation of members of the General Assembly shall be one thousand dollars for each regular and each adjourned annual session, not exceeding one hundred days, and ten dollars per diem for time necessarily spent after the expiration of the one hundred days : provided however, that such time shall not exceed fifty days at any one session.”
    At the expiration of the session the relator received a “warrant in due form for the sum of $1,577.20, of which $77.20 was for “ stationery and mileage,” and $1,500 for “ compensation,” for the said legislative .session of one hundred and fifty-eight days.
    Upon presentation of this warrant the state treasurer paid the sum of $1,077.20, but, acting under the opinion in writing of the attorney-general, which he had formally requested, refused to pay the balance of $500, being ten dollars per diem for fifty days “ necessarily spent after the expiration of the one hundred days,” on the ground that the said Act authorizing the payment of the same was in contravention of art. II., § 8, of the constitution, which provides: — “ The members of the General Assembly shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise. No member of either house shall, during the term for which he shall have been elected, receive any increase of salary or mileage under any law passed during such term.”
    The relator thereupon filed his petition for a mandamus in the Court of Common Pleas of Dauphin county, jurisdiction having been expressly conferred upon that court to issue writs of mandamus to State officers, by Act of May 25th 1881, Pamph. L. 32.
    The court (Pearson, P. J., and Henderson, J.), after argument, filed an opinion, holding that the Act of 1874 is constitutional so far as it gives a fixed sum for the session, but that so much thereof as purports to give daily pay, in addition to a fixed sum, is unconstitutional and void. The court, therefore, refused to award a writ of peremptory mandamus, and entered judgment for the respondent.
    The relator thereupon took this writ of error, assigning the said judgment for error.

      J. MoD. Sharjte, for the plaintiff in error. —
    The court will never declare an Act of Assembly void, unless it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the court: Menges v. Wertman, 1 Barr 223 ; Sharpless v. Mayor of Philadelphia, 9 Harris 164 ; Speer v. School Directors, 14 Wr. 157; Erie, &c. 31. E. Co. v. Casey, 2 Casey 287; Weister v. Hade, 2 P. F. S. 474; Commonwealth v. Hartman, 5 Harris 119 ; Commonwealth 'V. McCloskey, 2 Eawle 374; Pennsylvania E. E. Co. v. Eiblet, 16 p. F. S. 169; Lewis’s Appeal, 17 P. F. S. 165; Craig v. First Presbyterian Church, 7 Norris 46 ; Donohugh’s Appeal, 5 Norris 310.
    By the Constitution (art. II. §8) the legislature had sole jurisdiction over the subject, and the amount of compensation to members of its own body. The argument that the Act of 1874 is unconstitutional rests upon the alleged meaning of the single word “ salary ’’ — that it excludes a per diem compensation under all circumstances. Now the word is not a term of art; it has not a technical meaning in the law; it has no exact meaning signifying the same thing under all circumstances ; it is unlike such terms as “ fee simple,” “ dower,” “remainder,” “reversion,” etc., -which convey an exact idea. The lexicographers do not deline it precisely similarly. It is generally defined as synonymous with stipend, pay, wages, hire, allowance : See Webster, Worcester, Encyclopedia Br., Bouvier, Tomlin, etc. It lias been so considered in judicial decisions: Taylor v. Laird, 1 Hurls. & Nor. 266; Eundle v. Sheetz, 2 Miles 330 ; Eanck v. Albright, 12 Casey 371; Hutchinson v. Gormley, 12 Wr. 270. So also in Acts of Assembly: Acts of April 14th 1853, § 3, P. L. 359 ; May 5th 1864, § 3, P. L. 242 ; March 22d 1865, §§ 8, 6, 43, P. L. 9; April 11th 1866, §§ 3, 6, P. L. 68, 70; April 11th 1867, § 3, P. L. 2, 4; April 6th 1870, § 19, P. L. 21; May 27th 1871 § 17, P. L. 213 ; April 3d 1872, § 17, P. L. 7; April 9th 1873, § 31, P. L. 12; April 29th 1878, P. L. 33.
    To argue that a compensation ceases to be a salary when it is measured by the day, is to beg the question. There is no essential difference in a per diem pay for three hundred and sixty-five days, and an equivalent lump sum for the year. The Constitution contains no express prohibition of the per diem method of compensation; nor is there any such prohibition _by necessary implication. The canon that words in a constitution shall be' presumed to have their -popular signification may be invoked to maintain the constitutionality of an Act, but never to destroy it — ut magis valeat qnam pereat. The debates in the Constitutional Convention on the clause in question, relied on by the other side, -were meager, and they shed no light on the question of construction. The absence of an express prohibition is in our favor. But if this were otherwise, the people who subsequently established the Constitution may have viewed the construction differently. The question is one of intrinsic meaning, not of extrinsic light. The evil intended to be remedied was extra pay for service on committees, and “ salary grabbing,” by increase of salary during the term of office, which the Constitution reformed, and against which the Act of 1874 does not offend.
    Where it was intended in the Constitution to provide fixed salaries, that term is expressly used; but the words of the clause in question are “such salary” as shall be fixed by law. Eixed salaries are made applicable to officers whose duty is of fixed duration, as by the year. The sessions of the legislature, however, vary in duration with the exigencies of the public business. A proper salary for a session of one hundred days is insufficient for a session of one hundred and fifty days. A variable compensation is therefore as free from objection in ethics as in law. While the Constitution carefully distinguishes between salary and fees, and while it prohibits the legislature from increasing the salary of its members during their term, it does not prescribe a fixed salary, but vests in the. legislature a discretion to provide such salary, i. e., of what, like or kind, as it may fix by law. This includes the method of measuring the salary as well as its amount, and leaves the legislature free to provide any mode of compensation .that is not entirely destructive of every sense in which the word “ salary ” can be properly used. A per diem compensation is allowable, under the term “ such salary,” without doing violence either to correct definition or popular parlance.
    The defendants in error seek not merely to destroy part of the act, and retain the rest — which may sometimes be done— but to destroy one part of a single sentence and retain the rest of it, which is novel, and cannot be done. The whole act is virtually in that sentence, and if unconstitutional at all, it is unconstitutional altogether, and in such case the legislature were untrammelled and had the right to appropriate to themselves the pay they did. The Act has stood unquestioned since its passage in 1874, and contemporaneous construction is a cumulative argument in favor of its constitutionality.
    ■ Henry W. Palmer, attorney-general, and Charles P. JBucJcalew ( with them Robert Snodgrass, deputy attorney-general, and Jjymarn D. Gilbert), for the defendant in error. —
    It is a mistake to say that the Act of 1,874 has remained unquestioned till now. At every session since its enactment it has received a practical protest from at least one senator (from Chester) who has refused to accept his extra per diem pay, because he believes it unconstitutional. The attorney-general in 1876, filed his opinion that the per diem provision was unconstitutional. The question did not become a practical one in the following year, because the legislature adjourned before tlie expiration of the one hundred days.
    The language of a constitution is not to receive a technical construction, but words, not obviously technical, are to be construed according to their popular or familiar signification and import, having regard to the spirit and intention of the provision : Cronise v. Cronise, 4 P. F. S. 255; Farmers & Mechanics’ Bank v. Smith, 3 S. & R. 69 ; Monongahela Navagation Co. v. Coons, 6 W. & S. .114; Smith’s Comm. p. 513. The inquiry is, What would the citizen of average intelligence understand by the word 1 Commonwealth v. Dumbauld & .Roberts, 9 W. N. C. 531. The commonly accepted meaning of “salary,” is a fixed sum for a stipulated period of service. The standard dictionaries so define it. “An annual or periodical payment for services; a stipulated periodical recompense:” Webster. “Stated hire; annual or periodical payment:” Johnson. The idea of daily pay or wages never occurs in connection with the word salary. If any number of men were asked what they understood by a salaried officer, the uniform answer would be, one who receives a stated sum for a stated service, as for a year, a month or a session; the amount of such salary would never be thought of as so much a day. The meaning of salary — salarium—has never changed since it was coined during the Roman empire, to signify a round sum paid to officers or others for “ salt-money,” which represented all their pay for provisions and service: Pliny. The legislative use of the word accords with the popular signification : Acts of April 13th 1791, 3 Sm. L. 26; April 8th 1793, Id. Ill; February 7th 1814, 6 Id. 106 ; April 17th 1843, § 7, P. L. 324; Salary Act of 1855, § 9, P. L. 495 ; April 21st 1858, § 4, P. L. 376, find numerous other Acts.
    There can be no doubt that the framers of the convention used this word in the same sense, and it is a rule of construction that the constitution is to be construed in accordance with the intent of its framers: Pike County v. Rowland, 9 W. N. C. 241. The convention of 1874 struck out the word “ compensation,” in the constitution of 1838 (art. I. § 18), which was broad enough to cover all kinds of pay, and inserted “ salary ” and “ mileage,” with the avowed object of confining the pay for both to a stated sum per session : Seo 1 Deb. 513; 7 Id. 313. At that time the members of the legislature were paid session salaries, as were also the members of the constitutional convention.
    It is argued that by “ such salary ” the constitution vests a discretion in the legislature to fix such kind of salary as they may choose, which would include per diem pay. Now the word “ such ” means “ so much,” and refers to amount. The kind of salary is fixed by the constitution. The context dispels any doubt on this point : “ shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever.” One salary, to be fixed for the session, excludes other salaries to be fixed by the day, if the term could be so used. Moreover “ such ” refers equally to mileage, which may vary in amount but not in hind. Session and not annual salaries were appropriately provided for in view of biennial sessions.
    The meaning of “salary,” as applied in legislative acts to government officers, has been judicially construed to mean “ an annual or periodical payment for services :” Cowdin v. Huff, 10 Ind. 83 ; Thompson v. Phillips, 12 Ohio St. 617.
    The Act of 1874 does not fix any salary whatever — the word salary is not used in it. Its title is “ An Act fixing the compensation of members of the General Assembly,” &c., and it enacts, “ That the compensation of members of the General Assembly,” &c. In other acts the compensation of State offices is denominated salary, and such acts are called salary acts, which this is not. If the constitution permits a per diem allowance at all, there is no limit to the power of the legislature to vote themselves any amount of per diem pay for any number of days, in lieu of or in addition to a session salary, thus aggravating the evil the Constitution aimed to suppress.
   Oheif Justice Sharswood

delivered the opinion of the court, February 20th 1882.

By the Constitution of Pennsylvania, art. II. § 1, “ the legislative power of the Commonwealth shall be vested in a General Assembly which shall consist of a senate and house of representatives.” Several restrictions are placed on this general grant, both as to its subjects and the mode of its exercise, by the Declaration of Rights, art. 1, and subsequent special provision. To justify a court in pronouncing an Act of the legislature unconstitutional and void, either in whole or in part, it must be able to vouch some exception or prohibition clearly expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the Act. This rule of construction is so well settled by authority that it is entirely unnecessary to cite the cases. It follows as a necessary consequence of this principle, that where the contention is as to the meaning of a word, as it is in this case, if any meaning, whether technical or popular, will sustain the exercise of the power, it is sufficient. On the other hand, if the strict and legal meaning would have the effect to limit or destroy, while some other popular acceptation of the word would support the legislative Act, it must be resorted to. So we understand Farmers’ and Mechanics’ Bank v. Smith, 3 S. & R. 63, and Monongahela Nav. Co. v. Coons, 6 W. & S. 101 — relied on by the counsel for the defendant in error, in both which cases the constitutionality of the Act attacked was sustained. It is a clear logical deduction, from the premises already adverted to as well established. The popular sense of a technical word, if it has a popular sense broader than the technical one, must be adopted, but not if the effect be to limit or restrain the general grant of power.

The application of this principle we think, solves the doubt (for after all it is only a doubt) as to the meaniug of the word “ salary,” in the eighth section of article II. of the Constitution.

“ The members of the Genei’al Assembly shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever whether for service upon committee or otherwise. No member of either house shall, during the term for which he may have been elected, receive any increase of salary or mileage under any law passed during such term.” The Constitution of 1776, ch. 11, | 17, declared : “ The wages of representatives in General Assembly and all other state charges shall be paid out of the state treasury.” This was no doubt intended to abrogate the common law by which the wages of members of the House of Commons were paid by the counties, cities or boroughs which they represented : 1 Blackst. Com. 174. The same practice prevailed here in provincial times as may be seen by the Act of March 20th 1724-5 : “ An Act for raising county rates and levies, ” 1 Hall. Laws 209, where in section 4, among the objects for which the commissioners of each county were authorized to levy taxes, one was “ to pay for representatives’ services in General Assemblies.” Under this Constitution the wages of assemblymen were fixed at a sum per day, and we find an Act of March 19th 1777, entitled “An Act to increase the wages of assemblymen1 Dali. Laws 735.

No one will venture to say that wages, in the Constitution of 1776, necessarily meant daily wages, and that they could not have been fixed at a certain sum per session or per annum. The framers of the Constitution of 1790 saw fit to change this word wages to compensation — doubtless, because they thought it a word more befitting the dignity and importance of the office, not that they intended to make any change in the rule. “ The senators and representatives shall receive a compensation for their services, to be ascertained by law and paid out of the treasury of the Commonwealth: Art. 1, § 18. The convention of 1837-8 left the clause unaltered. Clearly no restriction was meant to be placed upon the legislature as to the amount or manner of ascertaining the rate of compensation, but they were loft at liberty to adopt any mode they saw fit — by the day, by.the month, by the session, or by the year. It was to be ascertained by law. Accordingly, the members continued to receive daily wages until 1855, when the compensation was fixed at a round sum per. annum, with an additional allowance of three dollars a day for every extra session, when convened by the executive, and a dollar and a half per day at every adjourned and extra session, when not convened by the executive. Act of May 7th 1855, § 9, 11, Pamph. L. 496. So it continued, with some increase in the amount, until the adoption of the present constitution.

If the framers of that constitution had gone back to the language of the constitution of 1776, and provided that “the members of the General Assembly shall receive such wages and mileage for regular and special sessions, ■ as shall be fixed by law,” the present contention would not have arisen. This may legitimately be inferred from the course pf the argument for the defendant in error as to what would have been the effect of the word compensation as contained in the constitution, of 1790 and proposed and rejected in the constitution of 1873. Yet according to the most approved lexicographers, the words “ wages” and “salary” are synonymous. They both mean one and the same thing: “a-sum of money periodically paid for services rendered.” How can we say that the people in adopting the constitution gave the word “salary ” a more restricted meaning? It is said, and the stress of the argument seems to be here, that we are to inquire, not as to the proper meaning of the word, but as to the sense it has received in popular use. We have shown that this is a just and sound rule, to sustain a grant of power, but not to limit and restrict it. But where are we to look for the popular sense of the word ? Surely not to the debates of the convention. Some of the members of that may have thought that the word “ salary ” would preclude “ daily wages,” which the word “compensation” would not. The majority, however, who contented themselves with voting without speaking, for all that appears, may have been of opinion that the word “ salary ” was as comprehensive as “ compensation,” and was a more fitting word to use in application to such an honorable and important- position. If it had been their intention to prohibit a per diem salary, they could have easily said so in very few words. The truth is, and this the lexicographers seem to hold, that if there is any difference in the popular sense between “salary ” and “ wages,” it is only in the application of them to■ more or less honorable services. A farmer pays his farm hands in common speech wages — whether by the day, the week, the harvest, or the year. If for any reason he has occasion to employ an overseer, his compensation, no matter how measured, is called a salary. An ironmaster pays his workmen wages, his manager receives a salary. A merchant pays wages to his servant who sweeps the floor, makes the fire and runs his errands, but he compensates his salesman or clerk by a salary. How can it make any difference in what -way the compensation is ascertained ? Had the Act of May 11th 1874, used the word “salary” instead of “compensation,” “a salary of ten dollars per diem ” — it would have been good English and perfectly intelligible to the common mind. When the constitution in other parts uses the words “ fixed salaries ” they were to take the place of fees — payment for services rendered from time to time — -not periodical; but it is not easy to perceive why, if these salaries were appointed to be measured by the day, they would be any the less “ fixed salaries.”

It is contended that the evident object of the constitution in this section was to shorten the sessions of the General Assembly, and to hold out for this purpose to the members as an inducement that as they could not thereby increase their compensation, they would be unwilling to prolong their sessions. If this was the object, the word was very unhappily chosen. A much simpler and more effective mode would have been, to have provided a rate per day, diminishing from day to day as the session continued. It is hard to believe that the convention believed that the General Assembly would be influenced by so sordid and unworthy a motive. But they did moan evidently to provide,, and they clearly expressed that meaning, that a legislature should not have power to pass any law which should have the effect of increasing the pay of its own members, and that they should under no circumstances receive any more compensation than that previously ascertained by law.

We ought to be careful not to hamper the power of the legislature by any narrow, strained construction. By the old Acts of Assembly, the provision for compensation to the members was generally, if not invariably, that the members should receive a certain sum “ for every day they shall attend upon their respective duties.” Act of April 13th 1791,3 Sm. 26; Actbf April 8th 1793, Ibid. 111. It may be very important hereafter, in view of what seems to be a growing evil, — frequent absence of the members, — to provide that members who-are not present and do not record their votes on the final passage of bills, shall not receive their salary for that day. If, however, they must receive a round sum for the session, it -would deprive the legislature of the power to make such a provision.

Judgment reversed, and now judgment for the Commonwealth and peremptory mandamus awarded, and it is ordered that the record be remitted to the court below for the enforcement of this judgment.

Mr. Justice Trunkey

filed the following dissenting opinion, February 27th 1882.

Having the conviction that the first section of the Act of May 11th 1874, clearly and palpably violates section 8 of art. II. of the Constitution, I would affirm the judgment of the court below. That Act, now sanctioned by the decision of this court,' will likely be deemed in harmony with the Constitution during its life. I shall not undertake the bootless task of giving reasons at length, for the belief that it is repugnant -in letter and spirit. At best, a dissenting opinion could be little more than an elaboration of the opinion of the learned judges of the Common Pleas, which so well sustains their judgment. To their reasons a few points might be added which, among many, were fully discussed by the counsel of the respective parties. I shall remark but one, namely, the Constitution declares that two specific forms of compensation for legislative service shall be allowed for entire, regular and special sessions, and forbids all others.

“ The members of the General Assembly shall receive such salary and mileage for regular and special sessions, as shall be fixed by law, and no other compensation whatever, whether for service upon committee or otherwise.” Const, art. II. § 8. They shall have salary and mileage for each session. This excludes salary for any other period. “ Salary by the session is directed, and all other divisions of time are excluded. But salary by the session is for a session, is salary for the whole session, and not for a part; it is for the entire service of a member at any session paid for, and as plainly means one sum, as does salary for a year, or annual salary.” The prohibitory words, aimed at committee service, by no reasonable interpretation, can limit or modify the declaration that the members shall receive no other compensation than the salary and mileage fixed by law for the session. The intention is to prevent any increase of the member’s salary and mileage, after his election, as effectually as section 13 of art. III. prohibits the increase of the salary or emoluments of any public officer after his election. An uncertain sum does not meet the requirement. To fix a sum as salary and allow daily pay to be added, leaves it to the members to increase their compensation, while in office, very much at their pleasure. The word salary, as applied to session, means a stipulated recompense for service at the session, and was used with the context to prevent compensation by daily pay, to limit the pay of members to a certain sum, and is not synonymous with “wages” as used in the Constitution of 1776, or with “ compensation ” as used in the Constitutions of 1790 and 1838. In the prior Constitutions, the “ wages ” or “ compensation” of representatives in the General Assembly, could bo ascertained by a law allowing a salary, or daily hire; the context did not limit to any inode, as does the Constitution of 1873. 1 think the words “such salary and mileage for regular and special sessions as shall be fixed by law,” should be taken in their ordinary sense, as the people who adopted the Constitution commonly understood them. I believe they mean a stipulated sum for each session, and not daily wages, or daily hire, or salt money.


source: Caselaw Access Project

author: Mr. Justice Green

license: Public Domain

text:
    Wilson’s Appeal.
    1. Whore a testator, when in undoubted health of body and mind, lias executed a will by which he has devised and bequeathed all his property to his relations, and subsequently, when in great age and suffering from great physical infirmity, executes another will through the procurement and instrumentality of a trusted friend and adviser, whereby the provisions of the former will are radically altered and a substantial benefit given to the friend and adviser aforesaid, a proper case is presented for the court to grant an issue to determine whether undue influence has not been exerted to procure the execution of the will last named.
    3. In such case, the burden is upon the beneficiary under the last named will to prove affirmatively all the circumstances connected with the drawing of it. He must also make it appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount he was giving to his confidential adviser, and that the gift was his free and intelligent act.
    3. Cuthbertson’s Appeal, 1 Outerbridge 163, followed.
    4. Where, in a case like that set forth above, the charge of undue influence admittedly requires judicial investigation, and there is also an allegation of mental unsoundness, supported by the evidence of the attending physician and other witnesses, it is not proper to restrain the inquiry to the charge of undue influence alone. Both charges are necessarily so connected with each other that the inquiry should extend to both.
    February 2d 1882.
    Before Shabswood, C. J., .Meecub, Gobdon, Tbunkey, Stebbett and Gbeen, JJ. Paxson, J., absent.
    Arrear from a decree of the Orphans’ Court of PMlar délphia Goimty: Of January Term 1882, No. 87.
    Appeal of Mary Ann Wilson from a decree of the said court awarding an issue to determine whether a certain paper purporting to be the last will and testament of James Eea, deceased, was procured by undue influence, but refusing to award an issue to determine whether the said James Eea was of sound and disposing mind, memory and understanding at the time of the execution of said paper.
    A testamentary paper purporting to be the last will and testament of James Eea, dated October 28th 1880, was admitted to probate by the Eegister of Wills, November 10th 1880. Prom this decree of probate, the said Mary A.Wilson, a granddaughter of the testator, and a beneficiary under a former will, appealed to the Orphans’ Court, and prayed for an issue to be awarded, to determine “whether the said testator, James Eea, at the time of the said paper writing, alleged to be the last will and testament of the said James Eea, was written and executed, was of sound and disposing mind, memory and understanding ; and whether the said alleged last will and testament was procured by imposition and undue influence exercised over the mind of the testator.”
    The testimony taken by an examiner appointed by the Orphans’ Court showed the material facts to be as follows : James Eea died November 5th 1880, in the eighty-ninth year of his age, after an illness of about two weeks. On October 6th 1873, when in full mental and bodily health, he had execnted a will in which he devised the bulk of his estate to his sisters and their children, and to the son of a friend with whom he had resided many years, and the daughter of another friend, then deceased, of whose will he was an executor.
    William Wood had been the confidential friend and intimate associate of James Eea from his boyhood, and Mr. Eea’s relations with the family of Mr. Wood were also most intimate. When Mr. Eea was taken ill with pleuro-pneumonia, on October 22d 1880, he sent for William Wood, who came to the house where he boarded, and daily thereafter nursed him, until he died, on November 5th. On the fifth day of his illness Mr. Eea requested Mr.Wood to send for Thomas B. Prosser, Esq., a member of the bar and his legal adviser, to draw his will. Mr. Prosser called the same day and had some conversation with Mr, Eea, in relation to his will, in the presence of Mr. Wood. Mr. Eea gave directions about the disposition of a cemetery lot. At this interview Mr. Eea appeared unprepared to dispose of the rest of his estate ; he said that he would think over that. Mr. Prosser then said: “ that was at his pleasure, and if he would make a memorandum, or have it made and sent to me, of the manner in which he would desire it disposed of, I would prepare it in proper form and bring it to him, read it to him, and if it was satisfactory he could execute it. I left then.”
    On cross examination Mr. Prosser said: “ He was not so well on the' first visit as he was on the two following days, and I, therefore. was Mad when he did not talk so much about his will on that day, and I thought it would be better to have memorandums made and sent to me.”
    On the following day Mr. Wood took to Mr. Prosser a memorandum in his (Wood’s) handwriting, for Mr. Rea’s will, and also gave him verbal instructions as to Mr. Rea’s testamentary intentions. From these instructions Mr. Prosser prepared the will, and called on Mr. Rea the same day, finding Mr. Wood in his room. Mr. Rea recognized him, and the will was read to him by Mr. Prosser, Mr. Rea saying, in answer to a question, that he heard and understood it. He also directed some alterations in favor of Mr. Wood’s son, which were inserted by Mr. Prosser who then left, and returned the following day with a corrected copy of the'will, which was again read over to Mr. Rea. He again directed one or two alterations, which ■were interlined and noted, and the paper was then executed and acknowledged as his will by Mr. Rea, in bed, Mr. Prosser and a gentleman whom he brought with him from his office, signing as subscribing witnesses.
    By this will the bulk of the testator’s estate, amounting -to over $1,000 in value, was devised to William Wood and members of his family, none of whom had been beneficiaries under the will of 1873, and no one of the testator’s own kindred, who had been beneficiaries under the former will, was mentioned therein.
    The evidence in relation to the mental condition of the testator about the time of executing the will was conflicting. On the one hand, Mr. Prosser testified that he thought him as fully capable of transacting business when he saw him sick as when he had seen him well; and in this he was substantially corroborated by several other witnesses. On the other hand, a physician who had attended him said that on the third day the disease reached its fullest intensity, and continued at this point for about a week, during which period he had ££ rapid pulse, an expression of indifference in the countenance, and tying in a stupor;” that on the eighth day of his illness (on which day the will was executed) the stupor indicated that the brain was becoming more seriously involved, and witness did not think he was mentally in a condition to have understood and comprehended the will in question. On cross examination, this witness admitted that ££ he never examined Mr. Rea with a view to find his mental condition or ability to make a will.” Other witnesses testified that on the day in question Mr. Rea seemed to be in a stupor, he said that they kept him drunk with stimulants, and that his mind would wander and his conversation was incoherent.
    The court, in an opinion by Hanna, P. <7., awarded an issue to try the question of undue influence, on the principle ruled in Boyd v. Boyd, 16 P. F. S. 283; Frew v. Clarice, 30 P. F. S. 170 ; Cuthbertson’s Appeal, 1 Out. 163, that where a person in a confidential relation to a testator whose mind is in some degree weakened by age, infirmity, or disease, writes or procures to be written for him, a will under which such person takes a considerable benefit, the burden of proof is upon him to show that it expresses the true will of the testator, and that he understood the effect of such disposition ; and that this question is properly to be submitted to a jury.
    But the court held, on the question of testamentary capacity, that the weight of the testimony was clearly in favor of such capacity, and insufficient to support a verdidt against the will.
    The court therefore entered a decree, sustaining the appeal, and awarding an issue to the Common Pleas to try the question of undue influence; and refusing so much of the contestant’s demand as asked for an issue to determine the question of the testamentary capacity of the said testator.
    Mary A. Wilson thereupon took this appeal, assigning for error the refusal of the court to grant her demand for an issue to determine as well the question of the testamentary capacity of said James Rea, deceased, as the question whether said will had been procured by undue influence.

      Charles C. Lister, for the appellant. —
    There was ample evidence of want of testamentary capacity to take the case to a jury, and support a verdict against the will, on that ground alone. But especially as the issue was granted on the question of undue influence, the court erred in dividing the issue prayed for, and refusing that portion of it relating to testamentary capacity. The result would be to exclude evidence of the contents of the former will, which is a material element of the question, and of the testator’s declarations prior to the execution of the will in controversy. Under the evidence, the two questions are inseparably connected, and should be tried together. We are entitled to the same issues as were granted in Cuthbertson’s Appeal, 1 Out. 163, and Boyd v. Boyd, 16 P. F. S. 283.

      J. C. Stillwell, for the appellees. —
    The weight of the testimony as to the. testator’s mental condition, was clearly that he was possessed of sufficient vigor and understanding to make a will. The court below was the judge whether there was sufficient evidence on this point to warrant an issue,' and they held decisively that the evidence was insufficient to support a verdict against the will. It is incumbent on the party alleging mental incapacity to show it affirmatively: Kachline v. Clark, 4 Wharton 319 ; Boyd v. Eby, 8 Watts 66 ; Grabill v. Barr, 5 Barr 441; Werstler v. Custer, 10 Wr. 502; Egbert v. Egbert, 28 P. F. S. 327. Notwithstanding temporary mental disorder, the presumption is, still, that a man is competent when he makes his will. And on the question of testamentary capacity of a dying man, the fact of occasional flightiness or wandering of intellect during his sickness, is generally of very slight importance McMasters v. Blair, 5 Casey 298.
    The court below, while of opinion that there was no evidence in fact of undue influence, thought the case fell within the principle of Boyd v. Boyd and Cuthbertson’s Appeal, which shifted the burden of proof to the proponents, and so were constrained to grant the issue upon that question. This principle is an abstract one of law, and, while we do not think it applies to this case, we are willing to abide by the ruling of the court, and meet our obligation to show the absence of undue influence. But that principle has no application to the question of mere testamentary capacity. These are distinct issues, and are so treated in Redfield on Wills. Either may exist without the other, and yet destroy the will. There is no necessary connection between them, and where the court feel bound, by a general principle of law, to grant the issue on the quesion of undue influence, they may nevertheless exercise their discretion in granting or refusing it on that of testamentary capacity. That the court had the right to divide the issues we think there can be no doubt.
   Mr. Justice Green

delivered the opinion of the court, March 13th 1882.

We concur entirely with the learned judge of the court below in the statement of the reasons which induced the court to grant the issue prayed for in this case, to try the question of undue influence. The opinion expresses very clearly and forcibly the considerations which bring the case within the ruling of Boyd v. Boyd, 16 P. F. S. 283, and Cuthbertson’s Appeal, 1 Out. 163. William Wood was one of the chief beneficiaries named in the will, and he was the main instrument in procuring the preparation and execution of the will in question. lie was, moreover, a trusted and confidential friend and adviser of the testator, who consulted him in relation to his business affairs. The testator had, in 1873, when in undoubted health of body and mind, executed a will in which neither Mr. Wood nor his son and daughter, the other residuary devisees, wez-e znentioued. The chazzges wi’ought izz that will by the one izz controvei'sy, executed seven years later, are of the znost radical character. In view of these facts, azzd of the great age and physical infirmity of the testator, we can not doubt the propriety of an issue to deternzizze whether uzidue influezzee was exerted to produce the will in controversy. The principles stated by the present Chief Justice, in Cuthbertson’s Appeal, supra, becozne entirely applicable: “ Every man who draws a will in his own favor under such circumstances, should know that he will be required to prove affirmatively all the circumstances connected with the drawing of the will, and that it must appear that the alleged testator was laboring under no mistaken apprehension as to the value of his property and the amount lié was giving to his confidential adviser. He must make it clearly appear that the gift to him was the free, intelligent act of the testator.”

We find ourselves unable, however, to agree with the court below in restricting the issue in this .case, to the question of undue influence alone. There was considerable testimony given in support of the allegation of mental incapacity of the testator at the time of the execution of the will in question. He was nearly eighty-nine years of age. He had been prostrated a few days before by a most severe attack of acute pneumonia; he was in a condition of stupor, which, as the attending physician said, “ was becoming more and more serious.” The latter also testified, “ The delirium was the mildest form of the brain disorder, and the stupor indicated that the brain was becoming more seriously involved.” He was taken ill on October 22d 1880, with acute pneumonia involving both lungs and which reached its fullest intensity in about three days, remaining of that character for about a week. The will was executed on the 28th day of October, and the testator died on N ovember 5th following. The sickness continued about two weeks, and in the midst of it, the testamentary paper in controversy was prepared and signed. The attending physician, an entirely disinterested person, who had every opportunity to observe and consider the testator’s condition, testified that in his opinion, he was mentally incompetent to make a will. The will in question being read to the witness, he was asked :

Q. From your knowledge of Mr. Rea’s condition, do you believe it possible for him to have understood and comprehended such a paper on the eighth day of his sickness? A. I don’t think so.
Q. If the will which has been read to you had been properly and carefully explained to him, is it possible that he oould have understood it? A. No.

There was much other testimony, from a number of witnesses, who testified to their belief in the mental incapacity of the testator, giving their reasons therefor. We do not propose to repeat or discuss it, as it may come before us hereafter for Our consideration. Rut we are clearly of opinion that, taken in connection with the testimony of the attending physician, it is more than a scintilla of evidence, and is enough to carry the case to a jury. In a case in which the subject of the inquiry is a person of such great age and infirmity, suffering from so severe an attack of disease, affecting bis brain and all bis vital powers, and where an investigation of a charge of undue influence is admittedly essential, it is of very doubtful propriety to limit and restrain that investigation to that one matter..

In such circumstances undue influence and mental incapacity are very closely interwoven. It is difficult to separate them by a dividing line in conducting a judicial inquiry. A person of extreme feebleness of intellect is much more easily influenced by undue means, than is one of more vigorous condition. If the issue of mental unsoundness is excluded, it may seriously impair the thoroughness of the investigation as to undue influence, by limiting the scope of the admissible testimony. We said in Cuthbertson’s Appeal, “Where the alleged testator is shown by evidencie to be weak in mind, whether arising from age, bodily infirmity, great sorrow, or other cause tending to produce such weakness, though not sufficient to create testamentary incapacity, and the person whose advice has been sought and taken, receives a large benefit under the instrument propounded as a will, it must be shown affirmatively that the alleged testator had full understanding of the nature of the disposition contained in it.” In the present case there was a former will with entirely different provisions, and that circumstance might be a most material element in determining the question of mental nnsoundiress; yet in an issue of undue influence which is necessarily restrained to the very paper in controversy, the fact of the former will might be excluded as irrelevant. We think in all such cases as this, where the charge of undue influence admittedly requires judicial investigation and the allegation of mental unsoundness is supported by the testimony of the attending physician and other witnesses, it is not wise to restrain the inquiry within the narrow limits of the charge of undue influence alone. Abstaining from further discussion of the facts of this case, we repeat that we think there was enough evidence to take the case to a jury on the question of mental incapacity, and it follows that the decree of the court below must in that respect be reversed.

Now March 13th 1882, it is ordered that so much of the deecree of the court below as refused to award an issue 'to try the question whether James liea was of sound and disposing inind, memory and understanding at the time of the execution of the alleged will in controversy be reversed, and that the record be remitted, with direction to the court below to award such an issue ; the costs of this appeal to be paid by the appellees.


author: Mr. Justice Paxson

text:
    Houck’s Executors v. Houck.
    1. The law will not imply a promise on the part of a father to pay to his adult married daughter wages for services rendered while she and her husband reside with him and constitute part of his household.
    2. Where a daughter marries but continues to live with her parents as before marriage and to perform similar services, her husband will not be held entitled to recover compensation for such services.
    3. Where a person serves in the capacity of a domestic servant, and no demand for wages is made until a considerable period after such service has terminated, the inference is either that the wages have been paid, or that the service was performed on the footing that no payment was to be made.
    4. McConnell’s Appeal, 1 Outerbridge 31, followed.
    February 7th 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, J J.
    Error to the Court of Common Pleas of Chester County : Of January Term 1882, No. 227.
    Assumpsit, by Jacob Houck and Anne Houck, his wife, against Hiram Houck and Jacob Houck, executors of the will of Jacob Houck, deceased, “ for work, labor and services performed by the plaintiff at the special instance and request of the said Jacob Houck, deceased.” The narr. also contained a count for “ wages or salary of the said Anne Houck .... as the hired servant of the said Jacob Houck, deceased.” Pleas, non assumpsit; non assumpsit infra sex annos; payment; payment with leave, &c., and set-off.
    On the trial, before Futhey, P. J., the facts appeared be as follows : — The plaintiff, Anne Houck, lived with her parents Jacob Houck, Sr., and Mary Houck, on their farm, performing household work, and taking care of her parents, both of whom were old and diseased. In 1878, she married Jacob Houck (her cousin) who lived on the farm as a hired hand. She and her husband continued to live on the farm after their marriage in the same manner as before, for about two years, until her mother’s death, when they moved away. Her father died about a year and a half later. By his will Anne was left an equal share with his other children. About two months after his death Anne made a demand on his executors for the payment of wages as a domestic servant, and for nursing her mother, for a year and three months prior to her mother’s death. This demand being refused, this suit was brought. No express promise of payment for services was shown.
    The defendant presented the following points :
    1. The relationship of the parties is such that under the evidence the jury must find for the defendants. Eefused.

      2. The time which elapsed after the ' alleged claim accrued, and before any demand was made, such that the presumption of law, under the facts in this case, is ‘ either that the wages have been paid, or that the services were performed on the footing that no payment was to be madeand the jury must find for the defendants. Answer. In answer to this point 1 instruct you that the time which elapsed after this alleged claim accrued, and before any demand was made, is evidence to be considered by the jury in determining whether the presumption of law has been rebutted ; that the services were presumably to he paid for; and also as having a bearing upon the question as to whether any payment was originally contemplated by the parties, and whether or not any payment has been already made. '
    ' 3. Under the evidence in the case, the verdict must be for the defendants. Answer. I cannot affirm this proposition. I have submitted the facts to the jury for their consideration.
    Verdict and judgment for the plaintiffs for $246. The defendants took this writ of error, assigning for error the answers to their points, as above.

      Wm. Jf. Hayes, for the plaintiffs in error,
    cited; MeConnel’s Appeal, 1 Out. 31; Lynn v. Lynn, 5 Casey 369.

      E. E. Monaghan, for the defendants in error.- —
    The relationship of a son-in-law and father-in-law is not such as to rebut the presumption that the services rendered by the wife of the son-in-law were to be paid for.
   Mr. Justice Paxson

delivered the opinion of the court, February 27th 1882.

There is no merit in this case ; yet if the law is with the plaintiff's below, the judgment must stand. It was a suit brought against the estate of the wife’s father, to recover compensation for the services of the wife for a period of about one year and three months. Annie Houck, one of the plaintiffs, resided with her father as a member of his family, and assisted in the work of the house. She had two children prior to her present marriage, who were also a part of the family, and, as the evidence shows, supported mainly by her father. She was married to Jacob Houck, plaintiff, in October 1878. At the time of said marriage, and for some time prior thereto, the said J acob Houck lived with her father as a farm hand at the wages of $10 per month. This arrangement continued for about one year and three months after the marriage, and until the death of old Mr. Houck’s wife, when the plaintiffs moved away. During this period the plaintiff, Jacob Houck, received his wages regularly, and no part of the present claim is for his serT vices. The plaintiff, Annie Houck, continued as maid of all work, and particular stress is laid upon the fact, that she acted as nurse to her mother, who was then, and had been for many years, afflicted with a cancer, of which she died after much suffering, in January 1880. There is no doubt the services of the daughter during this period were efficient and faithful, and to some extent, of an unpleasant nature to perform. They were no more, however, than every daughter living with a mother is in affection and duty bound to perform, and were not such as the law will imply a promise to compensate. Indeed, it was conceded by the court below, and by the counsel upon the argument; that the wife could not recover, as there was no evidence of any contract to pay for the services. It was urged, however, that after the marriage the services of the wife belonged to her husband, and that, inasmuch as he was a plaintiff in the action, he was entitled to recover. No authority was cited in support of this proposition, and I apprehend none can be found. The suit was brought, as before observed, by the husband and wife for the services of the latter. The learned judge ruled that the joinder of the wife was surplusage, and that the husband could recover as if this suit had been brought by him alone. We do not attach much weight to the fact that the wife is a co-plaintiff. That would be sticking in the bark. We rule the case upon the broader principle that as the wife, in the absence of an express contract, cannot recover, the husband has no higher right. When the plaintiffs were married, the wife was engaged in performing services for her parents, which the law raised no implied promise to compensate. He then had his option to dissolve that relation, or insist upon an express contract. He did neither. He continued to work on the farm as before, at his accustomed wages, and the wife continued in the performance of her services to her parents. There was no change of any kind. The elder Houck had no notice, that upon the .day after the marriage, his daughter’s services to her sick mother were no longer rendered from a sense of filial duty, and in consideration of past and present favors, but as a matter of business, with a debtor and creditor account. Nor was any such notice ever given him. So far as the evidence shows, there was no claim upon him for compensation, nor upon his estate until some time after his death. If, therefore, the husband permitted his wife, after marriage, to continue in the service of her father precisely as before, he is as much precluded from recovering compensation as the wife would be.

Aside from this, if we disregard the relation of parent and child, and substitute that of master and servant, the recent case of McConnell’s Appeal, 1 Out. 31, is directly in the way of the plaintiffs. It was there held that “ In this country (as in England) where a person serves in the capacity of a domestic servant, and no demand for payment of wages is made for a considerable period after such service has terminated, the inference is, either that the wages have been paid, or that tbe service was performed on tlie footing that no payment was to be made.”

This, as was stated in tbe case cited, is a presumption of fact, and liable to be rebutted. There was not a particle of evidence in this case, to rebut this presumption. Old Mr. Houck was in circumstances that enabled liim to pay ; the fact was conceded tliat the husband had been regularly paid bis wages as a farm hand up to tlie time they left. Yet, as before stated, no demand appears to have been made for the services of the wife, either during the period of such service,' at the time they went away, or afterwards and during the lifetime of Mr. Ilonck, the elder. So far from the presumption referred to having been rebutted, the evidence leaves the strong impression that the claim was an afterthought, and an attempt, after the death of the defendants’ testator, to gain a larger share of his estate, justifies the remark of Lowihk, J., in Lynn v. Lynn, 5 Casey 369 : “ Here is another claim that ought to be charged to the account of family relationship . . . Causes of this character are among the most odious that courts have to deal with.”

The claim in this case is particularly odious, in view of the peculiar circumstances under which tlie wife and her two children were cared for and sheltered in her father’s house.

All of the defendant’s points should have been affirmed.

Judgment reversed.


text:
    Renick v. Boyd.
    1. An action of replevin will not lie for growing crops severed by the person in possession under claim of title to the land on which the crops -were grown.
    2. The provisions of the act of May 15, 1871, Pamph. L. 208, enabling the owner of realty to sustain an action of replevin to recover timber, lumber, coal or other property severed from the realty, notwithstanding the fact that the title to tlie land may be in dispute, do not apply to the' case oí growing crops.
    3. The words “other property,” employed in the said Act, were intended to include only articles of the same generic character as those already enumerated, — such as slate, marble, iron ore, zinc ore, and all other forms of minerals and ores, building-stone and fixtures, and machinery of every description which have been permanently affixed to the realty.

      February 7th 1882.
    Before Shabswood, C, J., Meroue, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to tlio Court of Common Pleas of Chester Gountry: Of January Term 1882, Nos. 228, 229.
    Two actions of replevin, by James Benick against John Boyd, to recover hay, oats and corn after they were harvested. Pleas, non-cepit, and property.
    On the trial, before Clayton, P. J., the following facts appeared : At a public sale of land of the estate of one Correy, on December 28th 1879, the plaintiff purchased a tract of 118 acres, the purchase money of which was paid and deed delivered on March 31st 1880. The defendant was at that time in possession of said tract under a claim of title, and occupied the dwelling-house thereon. The plaintiff, by his employés, took possession of the land, and farmed the same during April and May 1880, planting corn, oats and grass seed.
    The defendant, who continued to occupy the dwelling-house, in June 1880, took possession of the land so farmed by- the plaintiff, and harvested the oats and hay growing thereon. The first action of replevin was brought July 21 1880, for the hay and oats then in the barn. The defendant subsequently cut the corn, and the second replevin was brought October 29th 1880, for the corn in the shock.
    In the meantime, on August 18th 1880, the plaintiff brought ejectment to recover possession of the land. On January 4th 1881, he recovered a verdict in his favor, on which judgment was entered, and on February 9th 1881, plaintiff recovered possession under a writ of habere facias possessionem.
    These actions of replevin were tried together May 17th 1881.
    The Court charged the jury as follows :
    “ [Under the evidence it clearly appears, that at the time the grass, oats and corn were cut and harvested, the defendant was in actual adverse possession of the land in dispute, by virtue of a claim of title; and, according to law, an action of replevin will not lie, under such circumstances, for the growing crops and products of land.]
    “ The remedy must be sought in another form of action — an action upon the case for damages for the mesne profits of the land, after the determination of the question of title in an action of ejectment. The writ of ejectment was issued and has been tried, but there has been no action for the mesne profits.
    ''•In other words, I instruct you that the products of land in the actual possession of another, may be lawfully cut and harvested by the person in possession.
    “ [The defendant, being in possession under a claim of right when the grass, oats and corn in dispute were cut and harvested, the plaintiff’s remedy is in an action for damages. He cannot recover the thing itself, and your verdict should, therefore, be for the defendant in both cases.]”
    The jury accordingly found a verdict for the defendant in each case, and judgments were entered thereon. The plaintiff thereupon took these writs of error, assigning for error the portions of the above charge included in brackets.

      Wm. M. Hayes {A. P. Beid with him), for plaintiff in error. —
    We were entitled to recover under the Act of May 15th 1871, P. L. 268, Purd. Dig. 1266, pi. 6, which provides : “ In all actions of replevin now pending or hereafter brought, to recover timber, lumter, coal, or other property severed from realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed, may be in dispute: Provided, said plaintiff shows title in himself at the time of the severance.”
    That Act was intended to cover just such a case as this, where the defendant is insolvent, and may remove the property, when a verdict for mesne profits in ejectment will prove illusory. We complied with the proviso in the Act, having shown title in ourselves in the ejectment.

      Okas. II. Pennypaeher {John J. G-keen with him), for the defendant in error. —
    The Act of 1871 applies specifically to timber, lumber and coal. The phrase “ or other property ” must be construed, or other similar property; it cannot cover crops severed by one in possession under claim of title. The Act was not intended to establish a new method of trying title to real estate in an action of replevin for crops. Morris on Replevin 108; Mathias v. Sellers, 5 Norris 492; Lake Shore R. R. Co. v. Elisey, 4 Norris 285 ; Reinheimer ■». Hemingway, 11 Casey 432.
   Mr. Justice Green

delivered the opinion of the court, February 20th 1882.

These were two actions of replevin, brought to recover certain hay, oats and corn, after the same had been harvested, upon land of which the defendant was in the actual and adverse possession, both before, and at, the time the crops were gathered. The plaintiff had brought an action of ejectment against the-defendant to recover possession of the land, and this action was pending at the time the crops in question were severed from the freehold. The plaintiff claims that he is entitled to recover in this action under the provisions of the Act of May 15th 1871 P. L. 268. That Act is as follows :

“ In all actions of replevin now pending or hereafter brought to r’ecover timber, lumber, coal or other property severed from the realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed may be in dispute: Provided, said plaintiff shows title in himself at the time of severance.”

The learned judge of the court below held that this Act was not intended to apply to the case of growing crops severed by the person in possession under claim of title to the land on which the crops were grown. In this opinion we concur. Prior to the passage of the act in question, it had always been held that replevin would not lie by one out of possession to recover against one in possession and claiming title, for any kind of chattels which had become such by severance from the freehold of which they had previously formed a part. Thus in Brown v. Caldwell, 10 S. & R. 114, it was held replevin does not lie by one not in the actual exclusive possession of land, whatever title he may claim, against one who is in the actual, visible, notorious, exclusive possession and occupation thereof, claiming the right for slates taken out of a quarry on the land.

In Powell v. Smith, 2 Watts 126, in the application of the same doctrine, we held that replevin would not lie to recover fixtures separated and removed from a mill: on p. 127, Gibson, C. J., said: “ The principle which is to govern this case was settled in Mather v. Trinity Church, 3 S. & R. 509; Baker v. Howell, 6 Id. 476; and Brown v. Caldwell, 10 Id. 114; in which it was determined, on principle and authority, that the right of property in a chattel which has become such by severance from the freehold can not be determined in a transitory action by a trial of the title to the freehold, because the title to land might otherwise be tried out of the county. An action of trover or replevin for such a chattel therefore, does not lie by a plaintiff out of possession .... Independent of this technical inhibitory principle which, however, is decisive, it would provoke much useless litigation and be attended with great practical mischief, if an owner out of possession were suffered to harass the actual occupant with an action for every blade of grass cut, or bushel of grain grown by him, instead of being compelled to resort to the action for mesne profits, after a recovery in ejectment, by which compensation for the whole injury may be had at one operation.” Other authorities are to the same point. The Act of 1871 has doubtless changed this rule, so far as it relates to the particular forms of property there mentioned. These are timber, lumber, coal and other property, severed from the realty. It is claimed that growing crops come within the designation “ other property,” and therefore that the Act includes them also. But a very slight consideration of the Act shows not only that they are not expressly mentioned, but that they are not necessarily implied, under this general description. There are many other forms of property besides timber, lumber and coal, which constitute part of the realty. Thus slate, marble, iron ore, zinc ore, and all other forms of minerals and ores in place, building-stone and fixtures and machinery of every description which have been permanently affixed to the realty. To all of these the expression “ other property ” in the Act, may well be applied.

They are of the same generic character witli the other kinds of property expressly mentioned. That is, they are a part of the realty itself, and wlien converted into personalty, it is by an act of severance such as works a conversion of timber, lumber and coal. Now growing crops are only ephemeral. They are produced, not by nature as a part of the land, but by the labor of man, combined with the operations of nature, and are never intended to become permanently affixed to the freehold, but to be removed from it at maturity. The very purpose of their cultivation is to make them personalty. Hence the spirit and meaning of the act in no sense requires that they should be considered in the same category with such constituent elements of the earth as timber, lumber and coal. In Allen’s Appeal, 32 P. F. Smith 302, the words of an Act giving a preference for wages to persons employed, “ in any works, mines, manufactory or other business, &c.” were construed to apply only to any other business ejusdem generis. The same rule of construction applied here would exclude growing crops as not being of the same kind or class with those expressly named in the Act. We consider that the purpose of the Act was to remedy a different kind of evil, which existed prior to its passage. Formerly, when one in possession cut down standing timber or severed and removed coal, slate, ores, or minerals from the realty, the only remedy of the true owner was by the action for mesne profits or by estrepement or other proceedings to stay waste. Put these were not adequate, as the tenant in possession could make way with and convert these articles, and, being insolvent, a verdict and judgment for damages or a more preventive order staying future acts, furnished no sufficient relief; and we aj)prebend it was the purpose of this Act to remedy this class of wrongs. These considerations are inapplicable, however, to the case of growing crops. They are generally the fruits of the labor of the tenant in possession, and it would be a most serious innovation upon the existing state of the law, as well as a great hardship upon the person in possession under claim of title, to subject him to a succession of actions for his various crops when harvested, and to the necessity of trying complicated and vexatious questions of title to land, in the determination of the ownership of his fruits, vegetables and crops. Such a construetion is not required by any reading of tbe Act, and is therefore not necessary to be made.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Mathews versus Sharp.
    1. In an action of covenant on an agreement under seal, an affidavit of defence making general allegations of undue influence in procuring the agreement is insufficient. The acts resulting in undue influence should be set out.
    2. The refusal of a vendor’s wife to join in the execution of a deed for the conveyance of real estate, will not .relieve the vendor from damages for breach of his contract to convey.
    3. In order to determine whether the sum named in a contract as a forfeiture for non-compliance, is intended as a penalty or as liquidated damages, it is necessary to look at the whole contract, its subject matter, the ease or difficulty in measuring the breach in damages, and the magnitude of the stipulated sum, not only as compared with the value of the subject of the contract, but in proportion to the probable consequence of the breach.
    4. A. agreed with B. by articles under seal to convey to him, twenty days from date, a farm of fourteen acres, at the rate of $450 per acre. B. thereupon paid to A. $500, which sum A. was to hold as a forfeit in case B. failed to comply with the contract. In case of failure on his part to so comply, A. covenanted to return said $500, “and also to forfeit the sum of $500 to the said B. in case of his negleot to convey the property as agreed.” Held, that the clause above cited was to be construed as providing for liquidated damages, and not for a penalty, and that, therefore, A. having failed to convey the property to B. he was bound not only to refund the $500 deposited with him, but to pay $500 additional.
    February 7th 1882.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Tr unkey, Sterrett and Green, JJ.
    Error to the Oourt of Common Pleas of Chester county: Of January Term 1882, No. 8.
    Covenant, by Joseph W. Sharp against Thomas Mathews, to recover the sum of $500, as liquidated damages for the noncompliance by defendant with an agreement for the sale of real estate. The plaintiff filed a copy of the agreement, which was as follows:—

      “ It is hereby agreed between Thomas Mathews, of the one part, and Joseph W. Sharp, on the other part, that the said Thomas Mathews doth hereby covenant and agree to sell the tenement and farm he now occupies and owns, in Easttown and Tredyffrin townships, containing fourteen acres more or less, at the price of four hundred and fifty dollars per acre, the contents to be ascertained by a new and proper survey, and agrees to give a clear title and possession of the property on or before the first day of May, 1881. The said Thomas Mathews doth also acknowledge the receipt this day of five hundred dollars on account of the purchase money, which he is entitled to hold as a forfeit in case the said Joseph W. Sharp fails to comply with his part of this agreement, and the said Thomas Mathews doth hereby bind himself, his heirs and executors, to return the said five hundred dollars to the said Joseph W. Sharp, and also to forfeit the sum of five hundred dollars to the said Joseph W. Sharp, in case of his neglect to convey the property as agreed ; and Joseph W. Sharp on his part doth agree to pay the said Thomas Mathews the price of four hundred and fifty dollars per acre for the before-mentioned property, upon the delivery of the satisfactory title thereto.
    Signed and sealed this 12th day of April 1881.
    1ÚS
    Witness: (Signed) Thomas fxj Mathews, [l. s.]
    mark
    Isaac A. Cleaver. ’ Jos. W. Sharp. [l. s.]
    The plaintiff filed with said copy the following averment:— “ And the plaintiff says that he was ready, and offered to perform his covenants in the said agreement on his part, and that the defendant refuses either to convey the land or to pay the ‘forfeit’ agreed upon, and by reason thereof there is due him from the defendant the sum of five hundred dollars, with interest from the first day of May, a. d. 1881.”
    The defendant filed the following affidavit and supplemental affidavit of defence :—
    “ That on the 12th day of April, a. d. 1881, he was very unwell and suffering under nervous prostration, and that taking advantage of his weakened condition, the said Joseph W. Sharp, the plaintiff in the case, and Isaac A. Cleaver, the witness to the agreement in plaintiff’s statement mentioned, by their persuasions exercised an undue influence over him, and induced him to sign said agreement. He further declares that he signed said agreement without any previous consultation with his wife, or having obtained her consent to the sale of the real estate in the agreement mentioned; and that, from the time that she heard of his agreement to sell said real estate, she has refused, and still refuses, to sign any deed to convey said real estate to the said Joseph W. Sharp.
    “ He further says that he has returned to the said Joseph W. Sharp the sum of five hundred dollars, which he received from him on the said 12th day of April 1881; and that for the reasons slated above, he is not liable to pay to the said Joseph W. Sharp the said sum of five hundred dollars in plaintiff’s statement claimed. All which statements he expects to be able to prove on the trial of the cause. ,

    “ And the defendant in the above case, being duly affirmed, further says that at the time of the making of the agreement in the above ease sued upon, he had been under the influence of liquor for several days, and that on the morning of the signing of the agreement he had not recovered from it, and was in a nervous and excitable condition, and incapable of understanding the full nature and extent of the agreement that the plaintiff persuaded him to sign. He further says that his wife has refused, and still refuses, to-sign a deed to convey to the plaintiff the premises named in the agreement, and to give him possession thereof ; and that for these reasons, and those contained in the first affidavit of defence, he is unable to give to said plaintiff a clear title and possession of said property, as in said agreement he promised, all which he expects to be able to prove on the trial of the cause.”
    The court made absolute a rule for judgment for want of a sufficient affidavit of defence, Euthey, P. J., saying, inter alia, in an opinion filed:—
    “ The allegations of undue influence we regard as too vague and indefinite to prevent the entry of judgment. The refusal of the wife to execute a deed does not relieve the defendant from liability to respond in damages.....
    “ The parties obviously intended this sum of $500 as liquidated damages in the event of a failure of either party to carry out the contract. Mathews acknowledges the receipt of $500, and is entitled to hold it as a forfeit in case Sharp thus fails. Did the parties intend by this expression that Mathews should hold this money until it was ascertained what damages he had suffered by Sharp’s non-compliance, and then, if that sum was found to be less than the $500, to pay the balance over to Sharp; or did they mean that he should keeja it as his own without responsibility therefor, as an ascertained sum then paid to him, and which should be his in the event of Sharp’s failure to comply ? It "was clearly not contemplated by the parties that Mathews should refund any part of this money to Sharp if the latter made default. By the expression ‘ to hold as a forfeit’the parties meant that, he should keep the money as his own without accountability, and if this view is correct, it follows that, on the failure of Mathews to comply, he was to pay a like sum to Sharp. The parties meant that on the one hand Mathews should retain for his own use the $500 already in hand, if Sharp failed to comply, and on the other hand, that he should pay Sharp $500 in the event of failure on his part. There is nothing in the proportion this sum bears to the whole purchase money, which should induce a court of equity to consider it as minatory. It is not an unreasonable amount to be considered as liquidated damages.”
    Judgment for plaintiff for $500, with interest from May 1st 1881. The defendant took this writ, assigning for error the above extracts from the opinion of the court.

      W. Townsend, for plaintiff in error.
    [Mekcur, J. — You have not assigned the entry of judgment as error. It might happen that the judgment is right but the opinion wrong.]
    [Leave granted to file at bar a supplemental specification of error to the entry of judgment for plaintiff for want of a sufficient affidavit of defence.]
    The agreement is executory, and not within the affidavit of defence law, and cannot be helped by the averment.
    The forfeit named in the agreement was a penalty and not liquidated damages: Robeson v. Whitesides, 16 $. & R. 321; Burr v. Todd, 5 Wr, 206 ; Bigony v. Tyson, 25 P. F. S. 157 ; Kemble v. Parren, 6 Bingham, 141; Daly v. Maitland, 7 Norris 385; Dennis v. Cummins, 3 Johns. Cas. 297; Bagley v. Peddie, 5 Sandford 192.

      S. T. Oornwell, for defendant in error,
    argued that the affidavits of defence were vague and evasive. On the question of liquidated damages, he cited: Westerman v. Means, 2 Jones 97; Faunce v. Burke, 4 Harris 469; Wilson v. Ilorstman, 2 Phila. 296; Streeper v. Williams, 12 Wr. 450; Powell v. Burroughs, 4 P. F. S. 329; Coal Co. v. Schultz, 21 Ibid. 180 ; Fox v. Snyder, 9 Phila. 285 ; Lowe v. Peers, 4 Burrows 2225.
   Mr. Justice Trunkey

delivered the opinion of the court, February 27th 1882.

The alleged undue influence is not sustained by a statement of what Sharp said and did, nor is it averred that he even knew that Mathews was suffering the effects of intoxication. Nothing appears which could have imposed upon a nervous and excitable man. When a defence of this nature is set up, unless the facts upon which it is founded are given, the affidavit is insufficient. It is -as essential to show the acts resulting in undue influence as it would be, if fraud w$re alleged, to show in what it consisted.

In the argument it was conceded that the refusal of a vendor’s wife to execute the deed would not relieve him from all damages for breach of his contract to convey. The question is, whether Mathews made a valid agreement for payment of liquidated damages in ease of his default.

By the contract, within twenty days after its date, Mathews was to convey the land and Sharp was to pay the purchase money. Five hundred dollars were paid in hand, which Mathews was to hold as a forfeit in case Sharp failed to comply on his part. Mathews covenanted to return said five hundred dollars, “ and also to forfeit the sum of five hundred dollars to the said Joseph "W. Sharp, in case of his neglect to convey the property as agreed.” It is impossible to misunderstand just what the parties meant. They mutually agreed that if either should fail to beep his covenant, he should forfeit and pay to the other the sum of five hundred dollars. The very point was decided in Streeper v. Williams, 48 Pa. St. 450. There, the agreement was for sale of real estate and contained this stipulation : “ The parties to the above agreement doth severally agree to forfeit the sum of $500, say five hundred dollars, in case either party fail to comply with the terms of this agreement.” The word “ forfeit ” was held to mean “to pay” and although the jury found the actual damages were $50, one-tenth the stipulated sum, the court, upon the point reserved, “ whether the defendant was liable for the penalty or only for the actual damages,” rendered judgment for the penalty. In an elaborate opinion, it was ruled that to determine whether the sum named as a forfeiture for non-compliance is intended as a penalty, or as liquidated damages, it is necessary to look at the whole contract, its subject-matter, the ease or difficulty in measuring the breach in damages, and the magnitude of the stipulated sum, not only as compared with the value of the subject of the contract but in proportion to the probable consequences of the breach. This case differs in some minor details, but it would be difficult to find two cases with greater similarity in their main features. They are alike in that the stipulated sum to be paid in case of non-compliance is mutual, that with reference to the value of the land or amount of purchase money, said sum is too small to be minatory, and not so large, with reference to the probable consequences of breach, as to be unconscionable, and in the difficulty of proving actual damages. The court below followed the authority of Streeper v. Williams.

Judgment affirmed.


author: Mr. Justice Stebrett

text:
    Harvey et al. versus Borough of South Chester.
    1. The Borough of South Chester, in Delaware county, was incorporated in 1870, under and subject to the General Borough Law of April 3d 1851, Pamph. L. 320. In 1877 it filed a claim against certain real estate within its limits, for the removal of a nuisance. In 1880 said real estate was sold at sheriff’s sale, under a judgment obtained for arrears of a ground-rent, created in 1865. In the distribution of the proceeds of said sale, — Held, that the said General Borough Act fully authorized the filing of the said claim. That by the provisions of the Act of February 3d 1824, 8 Smith L. 189, extended to Delaware county by the Act of April 18th 1848, Pamph. L. 334, said claim was entitled to have priority to and to be fully paid and satisfied before any incumbrance which the said real estate might thereafter become charged with or liable to. That the operation of this act in the present instance was not affected by the circumstance that the ground-rent had been created prior to the incorporation of the borough, and that hence the whole amount of said claim should first be paid out of the fund.
    2. The priority of the claim in question was not affected by the passage of the act of April 3d 1872. Pamph. L. 768, entitled “An Act to better secure the payment of municipal claims and taxes in the Borough of South Chester.” Said enactment is substantially a re-enactment of the provisions of the said Act of 1824, so far at least as priority of payment is given to municipal claims for abating nuisances.
    3. The Act of April 1st 1873, Pamph. L. 509, supplying a new method for the collection of taxes in Delaware county, has special reference to taxes, properly speaking. It has no application to municipal claims or assessments, which were made liens, entitled to priority of payment, by prior Acts of Assembly.
    February 7 th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Tbunkey, Sterrett, and Green, JJ.
    Error to tbe Court of Common Pleas of Delaware county : Of January Term 1882, Ho. 254.
    Amicable action and case stated, between the Borough of South Chester, plaintiff, and Lewis B. Harvey and Anna J. Brown, defendants.
    Tbe Borough of South Chester was incorporated by Act of March 12th 1870 (P. L. 413), subject to the general borough laws then existing.
    The following facts appeared from the case stated:
    On February 20th I860, one William Ward granted to Alfred G. Deakyne and his heirs, two certain lots of ground in said borough, reserving thereout a yearly ground-rent of $48. On June 29th 1865, Ward granted and conveyed said ground-rent to Jeremiah C. Brown, who died seised thereof intestate. On December 6tli 1880, his administrators, tbe said Lewis B. Harvey and Anna J. Brown, recovered judgment in an action of covenant on said ground-rent deed, against Deakyne, for $186.66, for arrears of ground-rent due their intestate in his life-time; and the said two lots wete, on January 29th 1881, sold at sheriff’s sale under a venditioni exponas, issued on said judgment: lot No. 1, for $175, and lot No. 2, for $125 ; the costs and taxes being’ $87.52, a net balance for distribution remained, of $212. 48. '
    On May 31st 1877, the Borough of South Chester had filed a municipal claim against lot No. 1, in the name of Alfred Q-. Deakyne, owner or reputed owner, for $148.89, for work done and materials furnished in abating' a nuisance existing in and upon said premises, after notice to said owner and default by him, within six months last past.

      “ If the court shall be of opinion thar the said municipal lien is entitled to payment out of the proceeds of the said sale prior to the judgment for arrears of ground-rent, then judgment to be entered for the plaintiff for $131.24, being the proceeds of the sale of the first described lot, less one-half the costs: but if the court shall be of the opinion that tile said judgment is entitled to participate in said distribution pi’ior to the said municipal lien, then judgment tobe entered in favor of the plaintiff for $37.07.” :
    The court (Crayton, P. J.), filed the following opinion, June 6th 1881:
    “ "When this ground-rent was reserved, the Act of Assembly for the creation of boroughs with power to remove nuisances and file liens, was in full force, and, by the construction put upon the Act of 1824, P. Dig., 1084 (extended to Delaware county by the Act of 1843, P. L. 334), such liens had piority over ail subsequently created ground-rents.: See Estate of Valentine Eoy, 2 W. N. C. 188.
    “ When this work was done by the borough, the Act of 1824 was in undoubted force in Delaware county. The ground-rent deed was made under the law as ilj then stood. The land was upon one of the projected streets of the contemplated borough, and was, of course, subject to the lawful exercise of all municipal power. The work was done on the faith of the law as it then stood. The lien, by the Act of 1&24, was prior to all incumbrances or titles subsequent to 1843. This conclusion was not seriously controverted upon the argument, but it was contended that the effect of the Act of Apyil 3d 1872, for the “ better securing of such claims,” and subsequent legislation upon the subject of taxes in Delaware county, in effect worked a repeal of the Act of 1843, and consequently the Act of 1824 was no longer in force in Delaware coupty. Whatever may be the effect of the Act of 1872, it cannot by any possible rule of construction repeal or divest a right which was fully vested when it was framed. It may, possibly, work a repeal of the former law as to all subsequent claims, but even this is very doubtful. The equity of the ease is undoubtedly with the borough. The owner suffered this lot to become a public nuisance, while it enjoyed all the advantages of increasing value from the borough improvements, streets, &c. The abatement of the nuisance gave additional value to the ground to more than the amount of the work the borough was compelled to perform.
    “ 1 hold that all borough claims filed after 1843 and before 1872 have priority by virtue of the Act of 1843, and are not affected by any legislation subject to the filing of the claims.
    “ Judgment for plaintiff, for $131.24, with costs.”
    In a supplemental opinion, filed February 6th, 1882, the court said:
    “ The former argument was not that the Act of February 3d 1824, extended to Delaware county by Act of April 18th 1843, did not give such priority, but that the Act itself had boon repealed by the Act of April 3d 1872, (special to the Borough of South Chester) and the Act of April 1st 1873 (special to Delaware county). We decided in Borough v. Broomall, (Del. Co. Reporter 58), that the Act of April, 1872, hud no such effect.

      “ We still adhere to that opinion. While the Act of April 1st 1873, being an entire revision of the law upon the question of the collection of taxes and tax liens in Delaware county, may have the effect of repealing all former laws upon the same subject, it certainly can have no greater effect. A merely cursory reading of the act of April 1st 1873, will clearly show that it only applies to taxes in the strict sense of the word, and not to municipal claims or assessments made liens by special Acts of Assembly. It has not revised the subject of municipal claims in the city of Chester, or boroughs of the county, and cannot, by the most liberal and free interpretation, be construed as repealing any such laws.
    “ It will lie observed that the Act of 1824 contains eight sections, seven of which refer to taxes strictly, so called, and one, the eighth, to municipal claims and assessments. This was all that was decided in Pray v. Northern Liberties, 7 Casey 69 ; cited by the defendant. The court held the Men to he good, without registry, under the fourth section. The lien was sustained under the eighth section.
    “ Jt must be remembered that the whole eight sections have been extended to Delaware county. If, therefore, the claim filed in this case could be sustained in Philadelphia, it can be in Delaware county.
    “The effect of the Act of 1843 is to add the words: r And Delaware county ’ to the eighth section of the Act, making it read as follows: ‘All and singular the provisions of this Act shall be deemed and taken i to apply to taxes, rates and levies imposed or assessed by authority of the city of Philadelphia and county of Delaware, or any corporation in said city or county upon real estate .situate therein, except water rents.’ No other construction can be put upon this section in connection with the first section than the one that gives the borough the priority here claimed.
    “ The Borough law of 1851 gives the corporation authority to abate the nuisance, and assess the cost thereof upon the land, and the first and eighth sections of the act of 1831, above cited, make such lien prior to all other liens or responsibilities on the land. The question seems to me1 no longer to be an open one.
    “The judgment therefore entered June 6th 1881, is to stand.”
    The defendants took this writ of error, assigning for error the entry of judgment for plaintiff for $131.21, instead of for $37.07.

      W. B. Broomall, for the plaintiffs in error.

      George B. Lmdsay, for the defendant in error.
   Mr. Justice Stebrett

delivered the opinion of the court, March 6th 1882.

The question presented by the case stated is, which of the parties thereto is entitled to priority of payment out of the fund realised by the sale of certain real estate in the Borough of South Chester. The judgment under which the sheriff’s sale took place was obtained by the plaintiffs in error in 1880, for arrears of ground-rent reserved in the deed, duly executed and recorded in 1865, conveying the same land. Their claim is under and by virtue of that judgment, the lien of which relates back to the date of the deed creating the ground rent: Bantleon v. Smith, 2 Binney 146. On the other hand the Borough claims priority of payment by vijrtue of a statutory lien, filed in 1877, for the cost of abating a nuisance on the land under authority given by the general Borough Act of 1851: Purdon 168, pi. 33, and 167, pi. 26. Notwithstanding the claim of the Borough is subsequent in date jto the ground, rent deed, the contention is that it is entitled to priority by the express terms of the Act of February 3d 1821, which was orginally applicable only to the city and county of Philadelphia, but was afterwards extended to Delaware county by the Act of 1813. The first' section of the act of 1821 provides, in substance, that all taxes, rates and levies thereafter imposed or assessed on real estate si tall have priority to and be fully paid and satisfied before any recognizance, mortgage, judgment, debt, obligation or responsibility which the said real estate might become charged with or liable to after the passage of the Act: Purdon 1084, pi. 1. By the 8th section it is declared that all and singular the provisions of the Act shall be deemed and taken to apply to taxes, rates and levies imposed or assessed by authority of the city of Philadelphia, or of any corporation in the city or county of Philadelphia upon real estate situate therein, except water rents which may'be assessed for the use of the Schuylkill water: Purdon 1088, pl. 19. In Pennock v. Hoover, 5 Rawle 291, it was held that, by virtue of the Act, municipal claims for paving were made prior liens. Indeed, it is very evident, from the phraseology of the last section, that the Act was intended to embrace all municipal charges and assessments, except water rents: and, when extended to Delaware county, it thenceforth had the same effect there. The general law of 1851, under which the Borough of South Chester was incorporated, fully authorized the abatement of the nuisance and assessment of the cost thereof upon the land; and by the provisions of the Act of 1824, above cited, the claim became a lien prior to all other liens or responsibilities on the land, created after the passage of the act of 1843.

It matters not that the ground-rent was reserved by deed executed before the borough was incorporated. The Act giving priority to such claims, and the general Borough Act, authorizing the abatement of' nuisances and filing liens therefor, were both in force in Delaware county long before the date of the ground-rent deed. It must therefore be presumed that the parties to the deed contracted with reference to the then existing law, under which such liens, entitled to priority of payment, might subsequently be created. The claim of the borough in this case, was clearly within the provisions of the Philadelphia Act, extended as above stated to Delaware county, and by virtue thereof it became a lien, entitled to priority of payment, as against the claim for arrears of ground-rent.

We think the court was clearly right in holding that the priority of the claim in question was unaffected by subsequent legislation. The Act of April 3d 1872, entitled, “ An Act to better secure the payment of municipal claims and taxes in the borough of South Chester,” P. L. 768, is substantially a reenactment of the provisions contained in the first and eighth sections of the Act of 1824, above referred to, so far, at least, as priority of payment is given to municipal claims for abating nuisances, etc. The Act of April 1st 1873, P. L. 509, has special reference to taxes in the strict sense of the word, and makes provision for registering and- collecting the same. It has no application to municipal claims 01; assessments which were made liens, entitled to priority of payment, by prior Acts of Assembly.

The judgment of the court below is so fully sustained by the opinion of its learned president, that further comment is unnecessary. !

Judgment affirmed.