author: Mr. Justice Woodward

text:
    North Pennsylvania Railroad Co. versus Kirk.
    . 1. Where there is evidence of negligence on the part of defendant, and evidence from which it might be inferred that the plaintiff was guilty of contributory negligence, the evidence on both questions should be submitted to the jury.
    2. On the line of defendant’s railroad, plaintiff owned a lumber and coal yard, in which his son was employed. A siding ran from the .railroad to a warehouse in the plaintiff’s yard. A lumber car was left standing on the siding, beyond the p'eriod when the rules of the company required them to remove it. It had a defective brake and it was not shown that it had been sufficiently blocked. A number of cars from a freight train were started on to the siding from the main track and striking the lumber car, forced it down towards the warehouse, into which it crashed with great violence. There was evidence also that the nearest of these cars had a defective brake. The son of the plaintiff, hearing the sound of the approaching train, hurried towards the warehouse and entered it, and was found crushed to death against the doors. Held, that it was properly left to the jury to determine whether defendants were guilty of negligence, and whether the deceased by his own negligence contributed to the accident.
    3. The son was twenty-eight years of age when the accident happened. He had been away from home, at intervals, after he attained his majority and been in business on his own account. He had returned, however, to his father’s house and was engaged in his father’s business, for which no compensation was paid him. It appeared that he intended to remain with his father, and that his services were valuable to him in his business. Held, that it was for the jury to decide whether there was a reasonable expectation of pecuniary advantage accruing to plaintiffs, which was destroyed by the loss of his son.
    4. At the close of the plaintiff’s evidence, the defendants moved for a nonsuit, unless the court should be of opinion that they would thereby be precluded from offering any evidence, if the motion was overruled. The court expressed the opinion that they would be precluded by such motion made and. overruled. To this ruling an exception was taken. Held, that the expression of the court on a motion in a form so peculiar, was not such a ruling as entitled the defendants to an exception and a review in this court.

      5. A brakemon of defendant was asked: “ Did you omit to do anything you could have done to prevent this accident?” Held, that it was competent to prove all the witness had done, but it was for the jury to decide whether by acts done or duties omitted he had been guilty of negligence.
    6. For the purpose of showing that the plaintiffs had been indemnified for the loss of their son, the defendants offered to show that they bad received $5000, the amount of a policy of insurance on the life of their son. Held, that the court properly excluded this evidence.
    March 24th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Montgomery county : Of January Term 1878, No. 104.
    Case by Elias Kirk and Rachel his wife against the North Pennsylvania Railroad Company, to recover damages for the death of their son, which they alleged was caused by the negligent use of a certain railway siding at Abington station, on the line of the defendant’s road. ,
    The trial was before Ross, P. J. The verdict was for plaintiffs for $3050. The other material facts and the various assignments of error are sufficiently set forth in the opinion of this court.

      Q-. R. Pox and A. D. Swartz, for plaintiffs in error.
    A parent cannot recover for the death of a son who was of age, unless it is established that their family relation continued to exist and that the parents received pecuniary advantage for his services: Pennsylvania Railroad Co. v. Zebe, 9 Casey 318; Caldwell v. Brown, 3 P. F. Smith 453; Pennsylvania Railroad Co. v. Bantom, 4 Id. 495; Railroad Co. v. Rowan, 16 Id. 393; Birmingham v. Dorer, 3 Brew. 69; Railroad Co. v. Adams, 5 P. F. Smith 499.
    The negligence of the deceased contributed to the accident, and the court should have decided this question as a matter of law on the undisputed facts: Railroad Co. v. Armstrong, 2 P. F. Smith 282; Waters v. Wing, 9 Id. 211; Gerety v. Railroad Co., 31 Id. 274; Railroad Co. v. Feller, 3 Norris 226.
    The motion for the nonsuit should have been granted, and it was error to rule that if the motion was insisted upon and refused, the defendants should be precluded from giving any evidence in defence: Smyth v. Craig, 3 W. & S. 14.
    The deceased was engaged about the premises of the railroad company, and was an employee, and not entitled to recover: Act April 4th 1868, Pamph. L.'58; Kirby v. Railroad Co., 26 P. F. Smith 506; Mulherrin v. Railroad Co., 31 Id. 376.

      H. JK. Weand and B. P. Chain, for defendants in error.
    The evidence of the existence of the family relation between the deceased and his parents was properly submitted to the jury, as was, also the reasonable expectation they had of pecuniary advantage therefrom: Railroad Co. v. Adams, supra; Railroad Co. v. Keller, 17 P. F. Smith 300: Central Railroad Co. v. McHugo, 35 Leg. Int. 62; Central Railroad Co. v. Barron, 5 Wallace 90.
    The court’s ruling in regard to the nonsuit was proper: Bevan v. Insurance Co., 9 W. & S. 187; Baker v. Lewis, 9 Casey 301; Howard Express Co. v. Wile, 14 P. F. Smith 201.
    The deceased could not have been guilty of contributory negligence in entering a private building, connected with his own business, the doors of which were closed and barred, and into which cars could enter only by his own permission, and by the opening of the doors.
    The first section of the act of 1868 does not apply to this case. , The deceased was in no sense engaged, at the time of this injury, in or about the road or premises of the defendant company.
    May 7th 1879.
   Mr. Justice Woodward

' This action was brought by Elias Kirk and his wife, the plaintiffs below, to recover damages for the injury they sustained by the death of their son, caused, as they alleged, by the negligence of the servants of the North Pennsylvania Railroad Company. At the trial the court were asked to charge the jury that the evidence did not show such a relation between the deceased and the plaintiffs as to entitle them to recover. It had been shown that the son was twenty-eight years of age when the accident happened. • He had been away from home at intervals after he attained his majority, and had been in business on his own account. He had returned, however, to his father’s house, and for some months had been rendering services of various kinds in his father’s business, for which no compensation was paid him. Elias Kirk testified that when Morris returned from Maryland, he said he would stay .and help the witness, and do anything he should be required to do. Mrs. Kirk said the services of Morris “were of great value,” and that she “considered his advice of more value than that of any others.” In clear and forcible terms that were characteristic of the whole charge, the jury were instructed positively that unless they found that the parental and filial relation was subsisting, and that there was reasonable ground to believe that it would continue to subsist, between the plaintiffs and their deceased son, they could find only nominal damages. There has been no departure from the rule laid down in the Pennsylvania Railroad Co. v. Adams, 5 P. F. Smith 499. The words “parents” and “children” in the Act of the 26tli of April 1855, are used to indicate the family relation in point of fact, as the foundation of the right of action, without regard to age. And “if there be a reasonable expectation of pecuniary advantage from a person bearing the family relation, the destruction of such expectation by negligence occasioning the death of the party from whom it arose will sustain the action.” The charge was in every way unobjectionable, and the question was one which it was the province of the jury to determine.

Was there evidence of negligence on the part of the defendants? Elias Kirk had a coal and lumber yard on the line of the railroad. • A siding ran from the railroad track to a warehouse on Kirk’s land. It was about two hundred and fifty yards in length. The company had built that part of the siding extending from the track to the line of their right of way. The rest of it had been built by Kirk. It was the usage of the company to deliver cars consigned to Kirk upon the siding, and at stated intervals to deposit upon it cars forming part of, and detached from, their own trains. The key of the switch was in the possession of John Quinn, who was in the company’s employment at the time of this occurrence. During the afternoon of the 12th of March 1874, a .flat lumber car was standing on the siding, about one hundred yards distant from the railroad track, and about one hundred and fifty yards from the warehouse. It had no effective brake, and the mooted question whether it had been sufficiently blocked was left to and found affirmatively by the jury. From the track to the point where the, car stood, the grade of the siding ascended; from that point it descended over and along a series of coal-bins, and from the bins was ascending again towards and until it reached the warehouse. The car with a load of lumber consigned to Mr. Kirk, had been transported from Williamsport and placed on the siding five days, before the accident. About four o’clock three flat and fifteen coal cars were detached from a freight train of the defendants on its way to Philadelphia. The switch was changed, and the cars ran by their own gravity upon the siding at the rate of three or four miles an hour. The flat car standing on the track was struck by the foremost of the approaching cars so as to start it, and force it on the down grade over the coal-bins, and on the up grade to the door of the warehouse, which was shut and barred, and which was broken open. Morris Kirk, who was sitting in his father’s office when the sound of the approaching train was heard, hurried towards the warehouse and entered it, and was found afterwards fastened between a leaf of the door which the entering car had broken and a partition within the building, standing upright, dead. When the cars entered on the siding, the brakeman was not on the car nearest to that struck, but on one further back. He was called as a witness, and testified: “I had two brakes; the brake on th'e flat held the cars; there was only one brake on; there was no brake on the last car of my train,” (the one nearest the standing car); “that is, it was not down; if it had been a good brake, I could have checked the train better from the hind car, but that was not so good as the one I was on.”

There was testimony that the car struck by the detached train belonged to the Northern Central Raih’oad Company; that it had been unloaded the day it was received; that a rule pf the North Pennsylvania Company required that it should be taken away qt the end of twelve hours; and that it had remained on the siding five days. When the collision occurred, a portion of the detached train was still on the main railroad track. Upon these general facts the charge against the defendants rested. Although they had no property in the car that was struck, it. was under their control. The right to remove it from the siding-existed, exclusively in. them. They had brought it from Williamsport, and had left it standing in its defective state. And there, was testimony, as has been seen, that the nearest car of the entering train had also a defective brake. The force of the collision produced, by the-speed of the train, was sufficient to drive the. car to the warehouse door and to break the. scantling by which it was fastened. It was. for the jury, in considering all the facts, to ascertain whether they made out the charge or not. What is negligence is always a, question for a jury when the measure, of duty is ordinary and reasonable care, and the standard of the degree of care shifts with, circumstances: West Chester and Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311. The facts which the. testimony tended to prove were substantial, and no standard applicable to them has been judicially settled that would have justified the. court in peremptorily disposing of the. cause.

Leaving the question whether the testimony established a case on which the jury ought to pass, the defendants insisted that it was the duty of the court to declare, as matter of law, that the undisputed evidence showed contributory negligence, on the part of Morris Kirk. This request was properly declined. The fact that the deceased left the office and went hastily to the warehouse was undisputed, certainly ; but the purpose inducing him to do this was. not affirmatively shown. The jury were told that if he acted, negligently, and that negligence in the slightest degree contributed to the.result, the verdict should be and must be for the defendants. The court said: “ Did he act with ordinary prudence and reasonable care under the. circumstances in going into the warehouse, and opening those doors ? If he did not, then there can be. no recovery by the plaintiffs.’ There was no direct proof that Morris Kirk heard,the approaching train, and none that his purpose was to save the property of his father. The inferences necessary to .make out contributory negligence might perhaps have been legitimately drawn by the jury from the facts shown. But surely they could not properly be drawn by the court. On this branch of the case, the answers to the third and fourth points of the defendants were emphatic instructions that there could be no recovery if the jury should find that the negligence of Elias Kirk, or his agents contributed to the injury, or if they should find that the car that was struck was left standing on Mr. Kirk’s siding without being effectively blocked or braked. Certainly the defendants have no reason to complain that upon this point they were treated with injustice.

At the close of the case of the plaintiffs in chief, the defendants moved for a nonsuit, unless the court should be of opinion that they would thereby be precluded from offering any evidence if the motion should be overruled, in which event the motion would not be made. The court expressed the opinion that the defendants would be precluded by such a motion made and overruled. An exception was taken and a bill.sealed, under which the first and second errors have been assigned. The expression of the opinion of the court on a motion in a form so peculiar, was not such a ruling as entitled the defendants to an exception and a review here.

On cross-examination, the defendants proposed to ask William Daub, the brakeman, this question : “ Did you omit to do anything you could have doné to prevent this accident ?” The rejection of this question is the subject of the fourth assignment of error. It was competent to prove all that was done by the witness. But it was for the jury to decide whether by acts done or duties omitted he had been guilty of negligence.

In the fifth assignment, error is alleged to have been committed in rejecting an offer to prove by Elias Kirk that he had a policy of insurance on his son’s life. The admission of this testimony would have been a violation of what is understood to have been the principles of construction uniformly applied to the Acts of 1855 and 1868. In the Pennsylvania Railroad Co. v. Keller, 17 P. F. Smith 300, the defendants in the court below took the ground “ that any recovery must be strictly limited to a pecuniary consideration for a loss actually shown to have resulted from the negligence of the defendants.” Chief Justice Thompson said: “ The construction contended for would, beyond a question, deny compensation for death by negligence in almost every conceivable case. * * * But there is another aspect of it which will result from the principle insisted upon, viz.: that the test of the right to recover being ‘the pecuniary damages clearly proved to have been suffered,’ (Act of the 4th of April 1868), it will follow that all those who, from youth, old age, or other circumstances, are non-producers, may become the victims of negligence without compensation to survivors. Nay more, the corollary of the postulate would prevent compensation where the survivors are actually benefited by the death, either as gainers by the distribution of the property of the deceased, or by the riddance of a troublesome charge. The controversies that would arise, if this weré the rule, would be repugnant to the sensibilities of every person.”

It was admitted at the argument that the answers to the fifth and sixth points of the plaintiffs relating to the duties of common carriers, were abstractly accurate. . The objection made to them was that they had no application to the cause on trial. There was nothing in them to confuse the issue or mislead the jury.

In the eighth point of the defendants, they asked for instructions that if the jury should find that Morris Kirk lost his life while lawfully engaged on or about the roads, works, depots or premises of the company, or about any train or car therein or thereon, although he was not an employee of the company, the plaintiffs could nor recover. The point was refused, for which the tenth error was assigned. The evidence scarcely tended to show that the death, occurred under any of the conditions stated in the point. It would seem that everything which the defendants could properly ask was accorded. In answering their sixth and seventh points, the court charged that there could be no recovery if the jury should find that the deceased voluntarily placed himself in the position of danger in which he was killed, for the purpose of saving property or protecting it from injury.

The eleventh assignment of error was not pressed.

Judgment affirmed.

Chief Justice Sharswood and Justice Paxson dissented, upon the ground that there was not sufficient evidence of negligence to submit to the jury.


source: Caselaw Access Project

author: Mr. Justice Truhkey Mr. Justice Green

license: Public Domain

text:
    The Burd Orphan Asylum versus The School District of Upper Darby.
    Testatrix by her will provided for the establishment of an asylum, whose object should be the maintenance and education of white female orphan children, of not less than four years or more than eight: first, who shall have been baptised in the Protestant Episcopal Church, in the city of Philadelphia; second, the samp class of children baptised in said church, in the state of Pennsylvania; third, all other white female orphan children, between the said years, without respect to any other-description or qualification whatever, except that at all times, and in every case, the orphan children of clergymen of the Protestant Episcopal Church shall have the preference. The will contained further directions, that the form of worship and instruction should be that observed and taught in the Episcopal Church, and appointed the bishop of said church and his successors the perpetual visitor. Held, that the asylum is a “ purely public charity,” within the meaning of section 1, article 9 of the constitution, which provides, that the legislature may exempt from taxation institutions of purely public charity, and that said institution was within the letter of the Act of May 14th 1874, and therefore exempt from taxation.
    March 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Delaware county: Of. January Term 1877, No. 50.

      Casé stated, wherein the School District of Upper Darby was plaintiff, and the Rector, Church-wardens and Vestrymen of St. .Stephen's Church in the City of Philadelphia, Trustees of the Burd Orphan Asylum of St. Stephen’s Church, were defendants.
    The casé as stated was as follows:
    Eliza Howard Burd, deceased, late of the county of Philadelphia, by her last will and codicils thereto, proved April 11th 1860, devised and bequeathed, inter alia, to the defendants, who are a corporation, a large amount of property in trust “to establish an asylum for poor white female orphans,” to be called “ The Burd Orphan Asylum of St. Stephen’s Church.” The will thus declares1 the object of the asylum:
    “ The objects of the said asylum shall be to maintain, educate, and at a suitable age and time (to be judged of and determined by those to whose management I have intrusted the asylum), to place out to be instructed in proper employments — First, the white female-orphan children of legitimate birth, of the-age of not less than four years, and of not more than eight years, who shall have been baptised in the Protestant Episcopal Church in the city of Philadelphia. Secondly, the same class of children baptised in the said church in the state of Pennsylvania; and thirdly, all other white female orphan children, of legitimate birth, not less than four years of age, and of not more than eight years, without respect to any other description or qualification whatever, except that at all times, and in every case, the orphan children of clergymen of the Protestant Episcopal church shall have the preference.” * * *
    “ I desire, and do hereby direct, that in the building erected for the asylum, there shall be an. apartment prepared and set apart as a chapel, to be kept sacred for the worship of Almighty God, Father, Son and Holy Ghost, in conformity with the rites and ceremonies of the Protestant Episcopal Church. And I do hereby positively direct and enjoin that all the children received into' the asylum, shall be faithfully instructed, as part of their education, in the principles of the precious gospel of my God and Saviour Jesus Christ, as they are held and taught by the Protestant Episcopal Church in the United States, and that no other system of religion shall be taught there; and moreover, that all the worship held therein shall be according to the ritual of said church, and no other.” * * *
    “ The rector, church-wardens and vestrymen of St. Stephen’s Church are hereby authorized to control and manage the said Burd Orphan Asylum according to their best judgment and discretion, and to adopt regulations for the government of the same, provided their proceedings shall not be in conflict with the laws of the Commonwealth of Pennsylvania, with the principles and canons of the Protestant Episcopal Church, or with the directions herein given and the objects herein specified; and the Right Reverend the Bishop, for the time being, of the Protestant Episcopal Church of the diocese in which the city of Philadelphia may be, is authorized to. be and constituted a perpetual visitor of said institution, with full power to inquire, as such, into all abuses and violations of this trust, and, whenever deemed necessary by him, to interfere by legal proceedings for their correction.”
    The defendants, upon the receipt of the property thus devised and bequeathed them, purchased a piece of land in Delaware county aforesaid, containing something less than forty-five'acres, and erected thereon a building for an orphan asylum,.which building was first occupied in September 1863.
    Since that time the asylum has been open continuously for the reception of white female orphan childi’en, according to the provisions of the will, who have been received without regard as to their residence as to either state or county. These children are maintained and educated at the asylum until they arrive at the age of eighteen years. The whole number of children that have been received and enjoyed the benefits of the asylum is one hundred and twenty, sixty of whom are at the present time being maintained and educated at the asylum.
    Connected with the asylum is a church or chapel, capable of seating four hundred persons, in which divine service is held twice a day every Sunday, according to the rites and ceremonies of the Protestant Episcopal Church, the said services being conducted by a duly ordained minister of that church; and these services are, by direction of the trustees, free to all, and attended by many of the neighbors as their parish church.
    With the exception of the chapel, so used as aforesaid, the land and buildings of the asylum are devoted exclusively and entirely to the maintenance and education of the orphan children received into the asylum, in accordance with the provisions of the will. A copy of said will is hereto annexed and made part hereof.
    The defendants are a corporation, incorporated May 21st 1823, under the Act of Assembly of April 6th 1791, in such case made and provided, by the title of “ The Rector, Church-wardens and Vestrymen of St. Stephen’s Church in the City of Philadelphia.”
    There have been levied upon the real and personal property of the defendants, as trustees aforesaid, according to the adjusted valuation thereof furnished by the commissioners of Delaware county, as per schedule hereto annexed, for school purposes, taxes for the years 1874, 1875 and 1876, amounting in the aggregate to $232.13, the amount for each year being stated in said annexed schedule. These taxes were levied by the plaintiff in June of each year, for the said three years respectively, and are admitted to be correct apportionments of the said taxes on the amount of real and personal property belonging to the defendants, but which the said defendants object to paying on the ground that the said property is exempt from taxation under the laws of the Commonwealth.
    If the court shall be of opinion that the real and personal property of the defendants, used as aforesaid, is thus taxable for the benefit of the school directors of Upper Darby, then judgment to be entered for the plaintiffs for the sum of $282.13, or for such part thereof as the court shall determine the said property is taxable for, according to the schedule annexed. If the court shall be of opinion that the said property is not thus taxable at all, judgment to be entered for the defendants. Costs to follow the judgment, and either party reserving the right to sue out a writ of error.
    The court, Clayton, P. J., delivered the following opinion:
    “ The defendants are the trustees of a charitablé institution, founded by Eliza Howard Burd. They claim that, under the constitution and laws of Pennsylvania, their property is exempt from the payment of school tax. The ninth article of the constitution of Pennsylvania declares that all taxes shall be uniform upon the ■same class of subjects, but that the legislature may, by general laws, exempt ‘institutions of purely public charity,’ and that all laws exempting other than the property enumerated therein shall be void. Under this power in the constitution, the legislature, by general law, Act of May 14th 1874, P. L. 158, exempted from taxation ‘all hospitals, universities, colleges, seminaries, academies, associations and institutions of' learning, benevolence, or charity, founded, endowed and maintained by public or private charity.’

    “ In order to ascertain the true sense of this enactment, it must he construed in conformity with the foregoing clause of the constitution, and must therefore be read as though the words ‘ purely public’ were inserted after the words ‘ benevolence or charity.’ .To read the act in any other way would be clearly unconstitutional. All that the constitution requires is, that the object of the institution shall be a purely public charity. It may be founded, endowed and maintained by private charity; that is to say, by private benevolence, good-will, liberality and alms-giving. Most public charities are so endowed: 2 Kent 274. The only question, therefore, to be now decided is, whether the institution of which the defendants are the trustees is a ‘purely public charity;’ if it is, then the plaintiffs admit it to be exempt from taxation, but if not, the judgment must be for’ the plaintiffs upon the case stated.
    “ The cases cited by the plaintiffs’ counsel do not apply with the force he contends for. They mostly relate to the distinction between public and private corporations; but it is quite clear that a charitable corporation may be strictly a private one, yet the charities it dispenses may be purely public. The question in this case is not, whether the Burd Orphan Asylum of St. Stephen’s Church is a public or private corporation, but whether the charity the corporation dispenses is of a, purely public nature. This depends upon the extensiveness of the objects of the institution. A college or a hospital founded by a public benefactor, which extends its benefits to the people of any municipal division of the public, no matter how small its territorial limits may be, is a public charity; thus a hospital for the use of the people of a particular parish, though a private corporation, is nevertheless a public charity. Every charity which is extensive in its object may, in a certain sense, be called a public charity: Attorney-General v. Pearce, 2 Atk. 88.
    “ A charity need not be universal in order to be a public one. It may be for the poor, the blind, for widows, or for orphans of a parish or township, or of a city, county, state or government. Our constitution requires that the charity shall not only be of a public nature, bnipurely of a public one. A charity, therefore, restricted to a particular religious denomination, or to persons baptised in a certain faith, is not a purely public charity, no matter how extensive its object may be among the persons of the religious faith to whom it is restricted. When the people of Pennsylvania adopted the present constitution, they saw proper to restrict the charities, which were to be exempt from taxation, to purely public ones. As before stated, they did not mean those only which might be founded or endowed by the public, but they required that the objects should be public, and they inserted the adverb purely before the word public for some purpose. We have no authority to strike it out. The word in its ordinary meaning signifies: without any mixture of that which is foreign; without connection with, or dependence upon, anything else; absolutely, entirely. If the charity depends upon a religious test, or is restricted to a particular sect, or if the preference is to be given to persons baptised in a certain faith, in such a manner as probably to absorb the entire benefit of the founder’s bounty, it is not a, purely public charity.- By applying these principles to the institution in question, we can easily ascertain whether it is such a purely public charity as is contemplated by the constitution and Act of Assembly, as above cited.
    “The institution known by the name of the ‘Burd Orphan Asylum of St. Stephen’s Church’ is a private corporation. Mrs. Burd, by her will, proved April 11th I860, devised to the corporation a large amount of property in trust to establish the institution. The object of the institution, as declared by its charter, is to educate and, at a suitable age and time, to place out to be instructed in proper employments :
    “ 1. The white female orphan children of legitimate birth, of the age of not less than four years and not more than eight years, who shall have been baptised in the Protestant Episcopal Church, in the city of Philadelphia.
    “ 2. The same class of children baptised in the said church, in the state of Pennsylvania, and

      “ 3. All other white female orphan children of legitimate birth, not less than four years of age and not more than eight years, without respect to any other description or qualification whatever, except that at all times, and in any case, the orphan children of clergymen of the Protestant Episcopal Church shall have the preference.
    “ The institution is to be presided over by the Bishop of the Protestant Episcopal Church of the Diocese of Pennsylvania, and a chapel is to be maintained therein for religious worship, according to the Protestant Episcopal faith.
    “ Can this institution, in any proper sense, be called a purely public charity? Upon a cursory view, the third class of persons entitled to the benefits of this charity would appear to be the general public, being white female orphans, of the age named; but, upon a careful reading, even this apparent public benefit is postponed to the daughters of Protestant Episcopal clergymen throughout the world. It is to be taken for granted that the institution is limited in its capacity. It would most likely be filled by orphans who have been baptised in the Protestant Episcopal Church in the city of Philadelphia. If any. room remains the orphans, so baptised, throughout the whole state of Pennsylvania, are to be next provided for, and if there is still accommodation for more, then the daughters of Episcopal clergymen throughout the world are to be received before the children of the general public of the city of Philadelphia, or any other place, can enter it. The exclusion, therefore, of the general public is so great as to amount to almost absolute rejection. Perhaps the object of the word purely, in the constitution, was to meet just such delusive public charities as this.
    “While, therefore, the institution is highly beneficial to the public, and its object very commendable, it is clearly not a purely public charity, and not included within the Act of Assembly-exempting its property from taxation for school purposes. Judgment is therefore ordered for the plaintiff, on the case stated, for $232.13.”
    The defendants took this writ, and assigned this order for error.

      Ludovie O. Oleemann, for plaintiffs in error.
    A private corporation may be denominated a public charity. “Public,” in this connection, cannot mean “ universal,” and it is not at all inconsistent with the idea conveyed by the word “public,” that it should mean one class of many into which the public is divided. Thus a blind asylum is only for the blind in the community; a deaf and dumb asylum, for the deaf and dumb only; a hospital, for the sick and injured; a sailor’s “snug harbor,” for sailors only: Attorney-General v. Pearce, 2 Atk. 87; Ommanney v. Butcher, Turn. & Russ. 260; Dartmouth College v. Woodward, 4 Wheat. 670.
    It is not inconsistent with the idea of a public charity that it. should be confined to the poor of a particular township: County of Lawrence v. Leonard et ah, 2 Norris 206. A public charity is one where those who are to take are strangers to the donor or testator: Philadelphia v. Fox, 14 P. F. Smith 170; Allen v. McKean, 1 Sumn. 296. This institution does not exclude the public. There certainly could be no more general and comprehensive description of a class than the third, for which provision is made, viz.: orphan children, between certain ages, without respect to any other description or qualification whatever. The direction to take from the other classes, is only where the number applying is too great and simply furnishes a means of selection. Such has been the practical construction placed upon it by the trustees, and there are now children within the asylum from all parts of the state. If among those applying there are orphans of clergymen of the Protestant Episcopal Church, they are to be preferred; but if none of these apply, there is no preferment or exclusion. There are no cases cited by the defendant in error in which a preference was not given to a portion of the public to the exclusion of the rest: as hospitals for the blind, institution for the poor of a certain district, &c.
    This case falls directly within the definition of a “ purely public charity,” as given in the case of Donohugh v. The Library Co., 5 Norris 306. The court was of opinion in that case that the word “purely” was used to exclude charitable institutions, apparently public, but in which there was mixed up some private gain. Here the property of the asylum is devoted exclusively and entirely to the maintenance of orphan children.
    The public character of this institution cannot be taken away because a peculiar faith is taught therein. Such a consideration cannot influence the determination of this question: Magill v. Brown, Brightly 346; sect. 3 of Constitution; Warde v. Manchester, 56 N. H. 508; Price v. Maxwell, 4 Casey 28; Foreign Missionary Society’s Appeal, 6 Id. 425; McGirr v. Aaron, 1 P. & W. 49; Beatty v. Kurtz, 2 Pet. 580.

      A. Lewis Smith, for defendant in error.
    Admission to this institution is qualified and governed by a religious test, and the question for decision is whether such an institution is, or can be “a purely public charity.” The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives to it its public character: Donohugh v. Library Co., supra; Philadelphia v. Fox, 14 P. F. Smith 169; Babb v. Reed, 5 Rawle 151.
    The constitution forbids any preference or appropriation to any denominational or sectarian institution. Yet the distinguishing feature of this charity is the sectarian character engrafted upon it •by its donor. It is pointedly exclusive in its requirements, as to religious connection. • It is delusive to rest upon the third qualification for admission as showing the public character of the institution. The most exclusive religious establishment conceivable could be made a public charity if that kind of interpretation is to govern. The donor has only to place the public so far off that they will never be reached, and his gift will be secured from taxation all the same as if exclusively public. No court could graduate the scale or determine the limit.
    In the Donohugh Case, the word “purely” was construed to mean “completely, entirely, unqualifiedly.” Are we at liberty to give this most emphatic word a qualified or secondary meaning, and especially one not in harmony with the other parts of the constitution ? It is said that it was inserted to exclude institutions administered for private gain. But these are not “public charities” at all, and the word “ purely” in that connection becomes useless. It is conceded that a private institution may be a public charity, but it cannot be a purely public charity unless it can be administered as the state herself would administer it, were she the trustee or founder of it.
    May 5th 1879.
   Mr. Justice Truhkey

delivered the opinion of the court,

' The clear and convincing opinion of the learned judge of the Common Pleas comprises all that need be said in support of the judgment. He puts the case on the true ground, namely, that the charity is not purely public, for the reason that it is practically limited to white female orphan children, who shall have been baptised in the Protestant Episcopal Church. His reasoning upon the essential point, accords with the doctrine of Donohugh’s Appeal, 5 Norris 806, where it was'held that private institntions for purposes of purely public charity, and not administered for private gain, may be exempted from taxation. It was there said, “ The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. The smallest street in the smallest village is a public • highway of the Commonwealth, and none the less so because a vast majority of the citizens will certainly never derive any benefit from its use. It is enough that they may do so if they choose. So there is no charity conceivable which will not, in its practical operation, exclude a large part of mankind, and there are few which do not do so in express terms, or by the restrictive force of the description of the persons for whose benefit they are intended. Thus, Girard College excludes by a single word, half the public, by requiring that only male children shall be received; the great Pennsylvania Hospital closes its gates to all but recent injuries, yet no one questions that they are public charities in the widest and most exacting sense. * * * Next, and last, we have to consider the force to he given to the word ‘ purely’ in the constitutional phrase, ‘ purely public charity.’ In this connection, and in its ordinary sense, the word purely means completely, entirely, unqualifiedly, and this is the meaning we. must presume the people to have intended in adopting it in their constitution.” Per Mitchell, J., in C. P.

From the foregoing, it is at once seen that a public use, whether for all men or a class, is one not confined to privileged persons. The smallest street is public, for all have an equal right to travel on it; but a way used by thousands, which may be shut against a stranger, is private. Would Girard College be a public charity if the male children entitled to admission were limited to sons of deceased Masons or Odd Fellows ? If Pennsylvania Hospital closed its gates to all hut Methodists or Baptists, having recent injuries, the people would not believe it a purely public charity in the intendment of their constitution. A charity for the poor of a parish or township is public; but not, if confined to poor Presbyterians in the municipality.

Public charities may be restricted to a class of the people of the state or of a municipal division; at the same time, they must be general for all of the class, within the particular municipality. “ Thus, a blind asylum is only for the blind in the community.” If it be completely public, all the blind in that community are on, an equal' footing, and should its capacity be insufficient for all, there is no mistaking justice in the order of admission. To open its doors only to the blind of a particular religious denomination, or of a beneficial association, or of a. political party, shuts them against the public. A known and recognised class, though not generally poor, or diseased or decrepit, may be the subject of a public charity, as sailors; yet if the endowment were limited in its benefits to sailors who are members of a designated sect, there could hardly be two opinions of its character.

Private or individual gain in a pecuniary sense, is not the sole test. “ The true test is to be found in the objects of the institution.” Where these are to advance the interest of a party, of an association, of a private corporation, of a religious denomination, and the like, however beneficial to the public their growth and success may be, there is a private object to gain; the institution is not unqualifiedly public. In such cases the purpose is wholly private, or the private blends with the public. •

The constitution prohibits appropriations “to any denominational or sectarian institution, corporation or associationand of money raised for public schools, to be “ used for the support of any sectarian school.” It forbids exemption from taxation of all property, except such as may he devoted to public purposes and uses. Among the public purposes, “actual places of religious worship” are named, thereby excluding from the exception other property held by religious societies. How can it be said that an institution for the support and education of the orphan children of a distinct denomination of Christians, may be exempted from taxation within the spirit of the constitution ?

Judgment affirmed. .

Chief Justice Sharswood and Justices Mercur and Páxson, dissented.

On May 20th 1879, “The Church Home for ChildrenJ” united in an application for a re-argument of the case and through its counsel, George Tucker Bispham, Esq., assigned the following, reasons therefor: >

It is a charity incorporated by the laws of this Commonwealth, whose constitution authorizes it to maintain and educate orphans and desitute white children, to be received without regal’d to the religious belief of their parents, but to be trained in the faith of the Protestant Episcopal Church of the United States. By an Act of the Legislature, passed in 1860, its real estate, which is in the county of Philadelphia, has been exempted from- taxation. It had believed that, by reason of being “an institution of charity,” it came within the provisions of the Act of the 14th of May 1874, and was, therefore, still exempt from taxation.- And such has been the view heretofore adopted by the proper authorities.

The petitioner does not believe that its claim for exemption from taxation rests entirely on the same basis as that of the Burd Orphan Asylum, and it is advised that the decision of the court recently made will not necessarily affect it. Certainly it will not be conclusive as to its rights. It unites, however, in the petition for a re-argument, as it believes that, upon careful reconsideration, the Burd Orphan Asylum will be considered as exempt from taxation, and a fortiori, that the property held by the petitioner will be exempt.

Its view of the questions involved is, in brief, as follows:

1. It involves the constitutionality of the Act of 14th of May 1874, under which the corporation in question was expressly exempted as “ an institution of benevolence or charity,” and the act, though not referred to in the opinion, is in effect decided to be unconstitutional.

In five states similar constitutions have been identically interpreted by their various legislatures, and the constitutionality expressly sustained by the court. It is submitted that this question is too important to be determined without the fullest presentation and investigation.

2. It is conceived that no logical distinction can exist between classification by creed and classification by race, age, color, sex, birth, or physical or mental disabilities.

3. The constitutional provisions that the legislature shall not appropriate money to any sectarian institution, was not intended to apply to laws exempting such institutions from taxation; for,

Ludovie O. Gleemann and William Henry Rawle, for plaintiff in error.

The Burd Orphan Asylum is a charity, and none the less so because it benefits a particular religious denomination: Domestic Society’s Appeal, 6 Casey 425; Price v. Maxwell, 4 Id. 23; Witman v. Lex, 17 S. & R. 88; Mayer v. Society, 2 Brewster 386; Evangelical Association’s Appeal, 11 Casey 316; Beatty v. Kurtz, 2 Peters 566; Trustees v. Beatty, 28 N. J. Eq. 570; Goodell v. Union Association, 29 Id. 33; De Camp v. Dobbins, 31 Id. 670; Convention v. Portland, 65 Maine 92; Vidal v. Girard, 2 Howard 199; McGirr v. Aaron, 1 P. & W. 49; Magill v. Brown, Brightly’s Rep. 346; Perry on Trusts 701, 702, 733, 734.

(a) Otherwise the constitution would be inconsistent with itself, as it expressly authorizes exemption laws as to “ actual places of religious worship,” which are necessarily and invariably sectarian, and burial-grounds, which are usually so.

(l>) Classification by creed has always existed in tax-exemption laws, not only as to churches, but as to charities, such as hospitals, schools, &e.

(a) And for this obvious reason: The religious sympathies of men towards charity can be reached in cases where more abstract philanthropy would fail to touch them, and it is both the duty and the policy of the state to take advantage of that fact in aid of the public duty, and in case of state appropriation.

4. In other states there have been decisions which, under similar constitutions and statutes, expressly- recognise the validity of such classification by creed as exists in the case at bar.

The Supreme Court ordered a re-argument, which was made before the court on the 25th of March 188.0; there being on the bench Sharswood, C. J., and Mercur, Gordon, Trunkey, Sterrett and Green, JJ. (The latter was appointed, by the governor to succeed Hon. Warren J. Woodward, who died in September 1879.)

In the statement of facts by the plaintiff in error at the re-argument, after a review of the three qualifications for admission to the asylum, it was said :

“ Religious belief being, therefore, a mere question of education, and not of admission; in other words, the question being not one of exclusion, but of preference, the trustees have always received such children of the required age and sex as have applied; and have never acted upon the directions of the will in,regard to preferred classes, being advised that those directions only applied when there were more applicants than could be received.”
“ The assumption of the learned court.below, and upon which the cause was ruled; that ‘ ihe exclusion of the general public • is so great as to amount to almost absolute rejection,’ was not warranted by anything appearing of record, and, as matter of fact, the contrary is true. In case of a vacancy at the asylum, any destitute, white female child of the prescribed age could ask the aid of the court to admit her, unless there were other preferred applicants then demanding admission.”

The asylum is a public charity, not being established for private ends, and being open to the indefinite public of the specified class.

An error sometimes arises (and to the layman it is often insurmountable) from the use of the words “ the public.” The law says the charity must be “indefinite,” and yet every one knows that there can be no.charity wide enough to include all classes within it, and hence the law, while wholly excluding, as not within the class of charity, mere beneficial associations, suffers almost all kinds of discrimination and exclusion within the class of charity.

This asylum is a public charity administered by a private corporation : Allen v. McKeen, 1 Sumner 296; Dartmouth College v. Woodward, 4 Wheat. 670; Philadelphia v. Fox, 14 P. F. Smith 170; Attorney-General v. Pearce, 2 Atk. 87; Humphries v. Little Sisters, 29 Ohio 206; McDonald v. Massachusetts Hospital, 120 Mass. 432; City v. Indianapolis Home, 50 Ind. 215; Clement v. Hyde, 50 Vt. 716; Warde v. Manchester, 56 N. H. 508; Wright v. Linn, 9 Barr 438. As it is neither founded nor conducted for either individual or corporate profit, it is a purely public charity : Donohugh v. Library Co., 5 Norris 306; Gerke v. Purcell, 25 Ohio 229; City v. Indianapolis Home, supra; McDonald v. Hospital, supra.

It is submitted that the constitutional provision was intended to exclude — 1. Charities not public, as a gift to the donor’s “poor relationsAttorney-General v. Bucknall, 2 Atk. 328. 2. Charities founded with a view to profit. 3. Charities which, though free from private profit, were for organizations not in themselves legal charities, as Masonic orders, dramatic associations, beneficial societies, &c.: Swift v. Easton Society, 23 P. F. Smith 362. 4. Institutions connected with public charities, but not used for the purposes of charity, as parsonages, real estate producing rental, &c.: Mullen v. Commissioners, 4 Norris 289; Christian Association v. Donohugh, 7 W. N. C. 208; New Orleans v. St. Patrick Association, 28 La. Ann. 512. But it was not intended to exclude public educational charities, neither founded nor conducted for profit, and in actual use for the purposes of their organization. It was not intended to apply to an exemption which treats all sects alike.

We contend, therefore,

1. The primary object of the testatrix was to found an asylum for orphans, and the direction in favor of Episcopalian children is secondary, being merely one of preference and not of exclusion, and in nowise alters the legal status of the institution. 2. The fact that the orphans are, as .part of their general education, to be instructed in the Christian religion as taught by the Episcopal Church, in nowise detracts from the public charitable nature of the institution. And, apart from the foregoing : 3. The appellant is a “purely public charity” within the constitutional provision, being an institution certain and definite in its objects, and uncertain and indefinite as to those constituting the class to be benefited thereby, being open to the indefinite public of the specified class, and being neither founded, endowed, nor maintained for private or corporate profit. 4. The appellant is directly within the legislative interpretation of the constitutional provision, being “ an institution of learning founded, endowed or maintained by public or private charity;” and this express legislation is, and has been declared to be constitutional.

Henry O. Howard and A. Leivis Smith, for defendant in error.—

To restrict the power of the legislature to exempt property was plainly the intent of the convention which gave us the present constitution. The abuse of the privilege of exemption had become so flagrant as to demand a remedy. Institutions of charity to be entitled to exemption must be “purely public.” This language was intended to have a strict construction. The charities authorized to be exempted are only those which are completely and entirely public. Does this asylum' come within this definition of the term ?

It is open to a certain class of children, to wit: “White female orphan children of legitimate birth, of the age of not less than four years, and of not more than eight years.” Had the classification stopped here, the institution would undoubtedly be purely public. Then if two children of the prescribed color, sex, birth and age were applicants, they could, so far as classification is concerned, stand on a common footing, and if both could not be admitted for want of room, there would be nothing in the charter of the charity to prefer one over the other; and if the trustees unjustly or wrongfully preferred one over the other, a court of equity could remedy the evil. But it is not so. The donor saw fit to impose a further and a sectarian classification, which it is submitted cannot be recognised by the laws of this state.

We hold then that a charity founded on a religious belief, and from the benefits of which the general public are not only excluded, but from which all the orphans of the state are practically excluded, except those born or baptised in a particular faith, is not purely public.

The argument of the'plaintiffs in error (that all charities are restricted from necessity) has no application, nor is it of any force to argue that blind asylums are for the blind alone, &c. These are restrictions made for the proper development of the benevolence, and for its good government.. They are as inherent in the proper working of charities as the division of labor is in the progress of society at large, found after long experience to he the best means of dispensing to the entire community the beneficent results of charitable action. There is no taint of partiality or exclusiveness about them. They are not classified by reason of incidental qualities or preferences foreign to the infirmities themselves, but because of these very infirmities.

Mr. Justice Green

delivered the opinion of the court, June 7th 1880.

The Burd Orphan Asylum is an institution of learning, benevolence and charity, founded, endowed and maintained by private charity. It is directly within the letter of the Act of 14th May 1874, and is therefore prima facie exempt from taxation. In Donohugh’s Appeal, 5 Norris 306, that act was held to be constitutional. This court has frequently ruled that the whole power of taxation is one of the exclusive functions of the legislative department of the government. The legislature has said that this class of property shall not be taxed, and that declaration must prevail, unless it is an unlawful exercise of legislative power. It can only have that character by being a clear violation of some definite provision of the constitution. We have decided that this act is not subject to that objection, and that decision is., not questioned. But it is claimed that to extend the protection of the act to this particular property W'ould be doing violence to article ix. of the constitution, which authorizes the legislature to exempt from taxation certain public property, places of religious worship “ and institutions of purely public charity.” In cases of doubt the legal presumption is in favor of the constitutionality of legislative enactments, and if this were a doubtful case, this principle would require us to give the act the benefit of the doubt when applied to property expressly exempted by its terms.

It is conceded that the devise in question has created a charity which is public in the strict sense of that expression. But it is urged, that it is not purely public, and hence that to apply the language of the act to this particular case, would be a violation of the constitutional provision. Now it must be conceded and it has been ■decided, here and elsewhere, that the word “purely” is not to have its largest and broadest significance when used in this connection. In the opposing line of thought it is admitted that the word is to have a limited meaning. It is not contended that a charity to be purely public must be open to the whole public, nor to any considerable portion of the public. Without doubt an asylum for the support of fifty blind men or an equal number of paupers would not be obnoxious to the objection that it was not “purely public.” A charity for the maintenance of disabled seamen, or of aged and infirm stone masons, resident in the city of Philadelphia, would undoubtedly be a purely public charity. And so also would a charity for the education and maintenance of the children of such persons. And if such a charity should be limited to the white female orphan children of such persons between the ages of four and eight years, such limitations, though they would very greatly restrict the class and the number of the beneficiaries, would constitute no valid objection to the purely public character of the charity. But seamen and stone masons are only designated classes of persons distinguished by their occupations. A charity for the support of poor widows, or indigent old men, or the insane poor, of a city, county, borough or township would be equally a purely public char ity, no matter how small would be the number of the beneficiaries or how limited the class.

Why, then, would not a charity for the support of poor Episcopalians, Catholics, Jews or Presbyterians of a state or city, be purely public; or a charity for the education and maintenance of the orphan children of such persons ? No private gain or profit is subserved; the objects of such a charity are certain and definite, and the persons benefited are indefinite within the specified class. The circumstance that the beneficiaries are to be of a particular religious faith is only of importance as designating the class. It indicates a certain portion of the whole community who are to be recipients of the charity. It has the same effect in this respect as the words seamen, stone masons, blind persons, poor widows, &c., in the cases already mentioned. For the purpose of defining the class of persons, who, as distinguished from all other persons in the community, are to enjoy the benefit of the donor’s bounty, the legal effect is the same, whether the words used be seamen, Episcopalians, blind persons, Catholics, poor widows,-Jews, stone masons or Presbyterians. The argument that to sustain, as purely public, a charity in favor of persons of a particular religious faith, would be to maintain sectarianism, is of no weight. It is not discrimination in favor of a sect, for it is treating all sects alike. It is not even extending a preference to sectarians; it is merely recognising them as a class of persons. We see no reason why that community which ranges persons into classes, so far as this subject is concerned, may not be a community of religious faith, as well as of occupation, condition in life, sex, color, age, disability, physical or mental, or nationality. As to the meaning of the word “purely,” when used in this connection, we concur in the construction which was given by the Supreme Court of Ohio in the case of Gerke v. Purcell, 25 Ohio St. Rep. 229, that, “ when the charity is public, the exclusion of all idea of private gain or profit is equivalent in effect to the force of ‘purely,’ as applied to public charity in the constitution.”

But there is another and a broader ground upon which this particular charity must be sustained as purely public. It is this: the third class of persons enumerated in the will of the testatrix as the objects of her bounty are, “all other white female orphan children of legitimate birth, not less than four years of age, and of not more than eight years, without respect to any other description or qualification whatever, except that at all times and in every case the orphan children of clergymen of the Protestant Episcopal Church shall have the preference.” It will of course not be disputed that if this were the only class of beneficiaries mentioned in the will, the charity would be purely public in the strictest sense.

Does the circumstance that two other classes .are first named take away that character, and if so, how? The learned judge of the court below stated and answered this question by saying that “ the exclusion of the general public is so great as to amount to almost absolute rejection.” This position makes the legal character of the charity to depend upon a question of fact. The argument assumes, for the purpose of testing the quality of the charity as being “ purely public,” that the orphan children of the general public cannot be admitted (because they are in point of fact excluded by the numbers of the persons to be admitted) in the first and second classes. Now in legal contemplation the persons of the third class are beneficiaries upon the same title, and with the same abstract rights as those of the first and second. In any case of application for admission by one of the third class, it would be no answer to say that there were other orphan children? in the city or state who were of the Episcopal baptism, and had the other qualifications, and therefore the applicant could not be admitted. If there were actual vacancies in the asylum for more pupils, and no applications from persons of the first or second class, undoubtedly the applicant would be entitled to admission. And further, when once admitted such pupils would not be liable to be ejected in order to make room for subsequent applicants of the first or second class.

In other words, in such a case the only adequate reply that could be made to an applicant of the third class would be, that at the time of the application the asylum was already full. But that reply would be good in any case of a purely public charity. Hence, the only barrier to admission would be one that is common to all the classes and peculiar to none. How then can it be said that it is not a purely public charity because it is not open to the general public ? In law it is open to them, and hence, by a court defining its legal meaning, it must be held to be purely public. .

But it is said that the children of the general public will be in point of fact excluded, because the preferred classes will always exhaust the physical capacity of the charity. How do we know this, or what right have we to assume it? We certainly cannot assume it as a matter of law, for it is a pure matter of fact; and we cannot adopt it as a fact, because there is no evidence in support of it on this record. This cause comes before us on a case stated, and we are confined to the facts there set forth. Nothing of this kind is there alleged, and we have no right to infer it. The only assertion in the ease stated that relates to this subject implies the very reverse of this allegation, because it states that “ children have been received without regard as to their residence as to either state or county.”

If it were proper to dispose of the question by considering the probabilities as to the facts, we think they favor the theory that the children of the third class would have free admission to the asylum. The limitations are so sweeping and numerous that they reduce the preferred beneficiaries to an extremely small class. They must be of Episcopal baptism, which, at once, makes an immense reduction in the possible applicants. Further, they are to be white females and orphans, and between the ages oí four and eight years. Each one of these qualifications diminishes enormously the number of those who are preferred. There are probably many Episcopal congregations in which there is not a single child coming within all these limitations. Moreover, there are other extensive limitations, not fixed by the will, but which would be practically operative. All female orphan children who have means or friends to provide for them, would as a general rule abstain- from entering a charity school, especially one from which they are to be placed out at some employment. Outside of Philadelphia and a few neighboring counties this charity would be but little known, and this want of knowledge would increase with increasing distance. It must be considered, therefore, that orphan children whose nearest relatives are ignorant of the charity, and those who are unwilling to receive its benefits should be excluded from the computation. We can hence readily see how extremely small in number must be the preferred classes of beneficiaries likely to seek admission to this charity. We are not informed as to how many children can be accommodated, but it is not less than sixty, as that number are now provided for. The case stated, says: “A large amount of property” was given by the testatrix to establish the asylum, and that a tract of forty-five acres was purchased upon which the buildings were erected. If there is money enough there is certainly ground enough upon which to maintain a much larger number than sixty. In any event it is apparent that we are not at liberty to conclude, either as matter of fact or law, that the capacity of this charity is or will be exhausted by the reception of such applicants of the first and second classes as may desire to avail themselves of its benefits. As to .the exception in favor of the children of Protestant Episcopal clergymen, all who would be at all likely to seek admission, are already included in the first and second classes. As to those living out of the state, we are not informed whether any such have ever sought admission, but the probable number would be so very small as not to affect the result. We are of opinion that the appellant is a purely public charity within the constitutional provision, and is within the letter of the Act of 14th May 1874, and therefore exempt from taxation.

Judgment reversed, and judgment is entered here in favor of the defendant on the case stated with costs.

Justices Gordon, Trunkey and Sterrett, dissented.


author: Mr. Justice Gordon

text:
    Gheen, Morgan & Co. versus Johnson.
    1. M. & Co., who were bankers and brokers, gave to J. a letter to their correspondent, G., a broker in Philadelphia, stating, “ this will introduce to you J. Any orders he may give you, please execute on our account and advise us.” G. took his orders from J. in the purchase and sale of stocks, but reported to M. & Co. and made his calls upon them for the necessary margins. In their accounts M. & Co. also treated J. as dealing directly with them, and he was charged on their books with the stocks, commissions and interest and credited with the proceeds of sales. Held, that M. & Co. were the agents of J., and they could not ignore G.’s agency, and cast the responsibility of a loss upon J., simply because his orders were taken and obeyed in the purchase and sale of the stocks.
    2. G. deposited a margin with B., another broker, without demanding security therefor, but, according to the custom of the Board of Brokers, it was optional with G. to do so. He acted in good faith, and when the deposit was made with B., the latter was in full credit. Held, that there was no evidence of negligence, such as would make G. responsible for a loss occurring through B.’s insolvency.
    3. The law implies a promise from brokers, bankers or other agents, that they will severally exercise competent skill and proper care in the services they undertake to perform, but it neither implies nor requires anything more.
    March 24th 1879.'
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Chester county: Of July Term 1877, No. 13.
    Assumpsit by John R. Johnson against Francis H. Gheen, William H. Morgan and George B. Hickman, trading as Gheen, Morgan & Co., to recover a balance alleged to be due to plaintiff from defendants on certain transactions in stocks. Defendants pleaded non assumpserunt, payment, payment with leave and set-off. At the trial, before Butler, P. J., the following facts appeared. The defendants were bankers and brokers in West Chester, Pennsylvania. Johnson, who did business with the firm, lived at Downing-town, a few miles distant. Desirous of having some dealings in stocks, Johnson applied to the firm for a letter of introduction to their correspondent in Philadelphia, and they gave him the following:

      “West Chester, Pa., May 16th 1876.
    John W. Gilbough, Esq., Philadelphia. — Dear Sir: — This will introduce to you Mr. John R. Johnson, of Downingtown. Any orders he may give you please execute on our account] and advise us.
    Yours truly,
    Gheen, Morgan & Co.”
    On the 14th day of July 1876, Johnson called on Gilbough at Philadelphia, presented his letter of introduction from the defendants, and gave Gilbough orders to sell for him two hundred shares of Hestonville Passenger Railway stock, at 34f, sellers 30. The order was given verbally by Johnson to Gilbough, and Johnson was subsequently informed personally by Gilbough of the sale. On the same day Gilbough advised Gheen, Morgan & Co., of the sale by letter, as follows:
    “Philadelphia, July 14th 1876.
    Messrs. Gheen, Morgan & Co. — Dear Sirs: — 1 sold for John R. Johnson to-day, two hundred Hestonville R. R. at 34f, s. 60. Also advised you by wire.
    Resp’y yours,
    J. W. Gilbough.”
    On the next day, July 15th, Johnson called on Gilbough and gave him directions to sell for him four hundred shares of Heston-ville at 35, sellers 60. This order Gilbough executed, informed Johnson personally of the sale, and also advised the defendants by letter, as follows:
    “Philadelphia, July 15th 1876.
    Messrs. Gheen, Morgan & Co. — Dear Sirs : — lour telegram of to-day is received. I sold for John R. Johnson to-day four hundred Hestonville at 35, sellers 60. This makes six hundred shares in all, and we had better have $3000 margin, as the stock is very active, and margins are being called all the time. Omitted to notify you of sale of one hundred Titusville at 10, s. 60, yesterday.
    Respect, yours,
    J. W. Gilbough.”
    On July 18th 1876, Johnson called in person on Gilbough, and ordered him to sell one hundred shares of Hestonville at 36, sellers 60, and one hundred shares at 37, sellers 60. Both these sales were made by Gilbough and reported to Johnson in person, the last one hundred shares having been sold for 87f, sellers 60. The sales were also reported to Gheen, Morgan & Co. in the following correspondence:
    “Philadelphia, July 18th 1876.
    Messrs. Gheen, Morgan & Co. — Dear Sirs: — Your telegram of to-day is received. I sold, to-day, for J. R. Johnson, one hundred Hestonville at 36, s. 60. Also have an order from Mr. Johnson to sell another one hundred at 37, s. 60. Please to confirm the order. Please keep me margined on all this Heston-ville, as the market is excited and advancing, and prompt responses have to be made to keep contracts good.
    Respectfully yours,
    J. W. Gilbough.”
    “Philadelphia, July 20th 1876.
    Messrs. Gheen, Morgan & Co. — Dear Sirs: — Your favor of the 19th inst. with stated enclosure is received. Draft on N. Y. for $2350.58. I sold for J. R. Johnson to-day, one hundred Heston-ville at 37f, s. 60.
    Respectfully yours,
    J. W. Gilbough.”
    In- response to this call for margin, Gheen, Morgan & Co., on the 19th of July 1876, enclosed to Gilbough a draft on New York for $2350.50, as margin on sales of Hestonville stock made by Gilbough for plaintiff, and on the day following sent $2500 more as margin. On the day of its date they sent the following letter to Johnson:
    “West Chester, Pa., July 20th 1876.
    John R. Johnson. — Dear Sir: — Will you favor us by giving us additional margin on your Hestonville ? We were called upon from Philadelphia and had to send $2500 to-day. You will oblige us by giving this your early attention.
    Yours truly,
    Gheen, Morgan & Co.”
    To this letter Johnson paid no attention until July 26th, when all the sales had been made by Gilbough for him, and Gheen, Morgan & Co,, had sent as margin for his contracts made through Gilbough, the sum of $4800. On July 26th, he came over from Downingtown to see Gheen, Morgan & Co., and assigned to them a judgment bond of $4000, as collateral for the $4800 advanced by them on margins, and promised to come over the next day and bring them money or further security. This he never did, and on July 29th, they again wrote him as follows :
    “West Chester, Pa., July 29th 1876.
    Mr. John R. Johnson, Downington, Pa. — Dear Sir: — You will please come over on Monday morning and bring us margin on your stock contracts. Our' reports to-day quote Hestonville at 41f. You will please bring sufficient with you to margin it up to 45 at least.
    Yours truly,
    Gheen, Morgan & Go.”

    No response was ever made by Johnson to these letters, nor was there any additional margin ever placed with Gheen, Morgan & Co. by Johnson to cover the sums sent to Gilbough. • During all these transactions between Johnson and Gilbough, Gheen, Morgan & Co. had no intercourse with Johnson upon the subject. They did not advise Johnson of the sales of Hestonville, that being always done by Gilbough direct. Their whole agency in the matter was to keep Gilbough secure in margins on such sales as he from time to time made in obedience to Johnson’s directions to him, and to this end Gheen, Morgan & Co. sent $4800 of their own funds to Gilbough. Johnson was daily in Philadelphia, gave all orders for sales of Iiestonville in person; was in the gallery of the stock board room and Gilbough’s office constantly, and followed his own judgment in all these stock transactions.
    Of the eight hundred shares of Hestonville stock two hundred-were sold on 14th July 1876, to Bond, Moxey & Co., at 34|, sellers 30, and on July 15th 1876, two hundred shares at 35, sellers 60, making in all four hundred shares. To secure these sales, Bond, Moxey & Co. called on Gilbough for margin, and to cover these sales for Johnson, Gilbough, on July 22d and 27th 1876, deposited with Messrs. Bond, Moxey & Co. $2475. Johnson was informed by Gilbough of the sales of four hundred shares to Messrs. Bond, Moxey & Co., and of their call for margin, and of the money having-been furnished by the defendants. Messrs. Bond, Moxey & Co. were brokers in Philadelphia and members of the Board of Brokers; they represented the parties that were purchasing Hestonville stock and were buying that stock largely. Johnson had talks with Mr. Bond, a member of that firm, and reported what he learned through him to Gilbough. On or about July 29th 1876, Hestonville Railroad stock declined, and when Messrs. Bond, Moxey & Co. were called upon to make good their purchase of four hundred shares of that stock, they were unable to fulfil their contract; the margin on their hands, $2475, was forfeited and charged up against Johnson in the settlement between himself and Gheen, Morgan & Co. It was to recover this sum, $2475, thus deposited as margin, together with the difference between the price at which Bond, Moxey & Co. had purchased the four hundred shares and 27J, the price at which Johnson purchased stock to cover his sales, that this action was brought.
    On the stock transactions in Hestonville, which were made good, Johnson derived a profit of $971.73, and this Gheen, Morgan & Co. paid to him.
    The defendants submitted the following points, to which are appended the answers of the court:
    1. The letter of introduction, dated May 16th 1876, given by the defendants, introducing the plaintiff to John W. Gilbough, created no liability upon the part of the defendants to the plaintiff, for the subsequent conduct of the said John W. Gilbough, in the purchase and sale of stocks, for and on account of the plaintiff, by the said John W. Gilbough.
    Ans. “ This is true. Of itself the letter did not create such liability. But it is evidence for your consideration, with other facts tending to show the relation of the parties, and thus bears on the question of liability.”

      3. There is no liability upon the part of the defendants to the plaintiff in this action for the conduct of John W. Gilbough, in the purchase or sale of stocks made by him for the plaintiff, in pursuance of orders or directions given to him by the' plaintiff, without their intervention or previous knowledge.
    Ans. “ This point is true. That is, if the defendants were not connected with the plaintiff as his agents-respecting this business; if Mr. Gilbough was his agent — not theirs, in this transaction— they are not responsible here.”
    4. If John W. Gilbough, acting in pursuance of orders or directions given him by the plaintiff to sell for him (the plaintiff) 400 shares of the stock of the Hestonville Passenger Railway, on or about the 15th day of July 1876, sold said stock to Bond, Moxey & Co., who were, at the time of said sale, members of the Board of Brokers in good and regular standing, and said sale was in pursuance of the rules governing the said Board of Brokers, then there is no liability on the part of the defendants to the plaintiff in this action, for any loss that may arise from such sale.
    Ans. “ This is true as respects the loss of sale. But the controversy here is about the loss of money deposited as margin, and presents a different question, of which we will speak more fully in the general charge.”
    5. If the jury believe that the plaintiff, in pursuance of a letter from the defendants, calling for margin upon sales of stock made for him through John W. Gilbough, and in pursuance of his (the plaintiff’s) order, did deposit a sum of money or securities with the defendants, to be applied in that way and for that purpose, then there can he no recovery in this action'for the amount of the margin so deposited and applied, and their verdict with respect to the same must be for the defendants.
    Ans. “ This point is true, unless it appears that the money was lost through negligence of the defendants, or an agent employed by them about the business.”
    The verdict was for plaintiff for $2551.22. The defendants took this writ, and, inter alia, assigned for error the answers to the foregoing points.

      Charles S. Pennypaclcer, John J. Pinherton and Wayne MacVeagh, for plaintiffs in error.
    In view of the fact that Gheen, Morgan & Co., living at West Chester, gave a letter of introduction and of guaranty for Johnson to Gilbough, and did nothing else except receive advices of the transactions, while Johnson managed his own transactions with Gilbough personally, it is confidently submitted that the relation of principal and agent existed between Johnson and Gilbough to precisely the same extent and with precisely the same consequences as attached to the same relation between Gheen, Morgan & Co. and Gilbough, and that there could be no responsibility on the part of Gheen, Morgan & Co. to Johnson for any default or negligence on the part of Gilbough.
    In these transactions, Johnson unquestionably had two agencies employed, and it is not very important which is considered the principal agency, and which the ancillary or sub-agency.
    As matter of fact, it is believed that the testimony proves Gilbough to have been the principal agent of Johnson in these transactions, and Gheen, Morgan & Co. only the ancillary agents; but as Gheen, Morgan & Co. were first employed, in order of time, it cannot make any difference, even if they are regarded as the principal agent, and Gilbough as the ancillary or sub-agent; for the doctrine is as well established as almost any legal doctrine can be established, that the first agent employed is not responsible for any alleged negligence of any ancillary or sub-agent employed by him about the same business, with the knowledge and recognition of the common principal: Story on Agency 247, 274, 407, 474 ; Whart. on Agency, sect. 247. There was not sufficient evidence to justify the submission to the jury of the question whether the deposit of margin by Gilbough with Bond, Moxey & Co., or the failure to, exact a counter-margin, when the stock in question was rapidly advancing and the balance of the contract was largely in their favor, was, or was not, an act of negligence. The loss on the margin deposited with Bond, Moxey & Co., was an incident of the sale of the stock to them. There was no evidence in the cause that Gilbough committed any error or neglected any duty. His action was in conformity with the custom in making stock contracts. The defendants_ were entitled to an affirmance of their fifth point.

      William B. Waddell and P. Frazer Smith, for defendant in error.
    Gheen, Morgan & Co. were the agents of Johnson, and Gilbough was acting for them, as he was a member of the Board of Brokers in Philadelphia, and defendants were not. The relation of the parties is shown at the outset by the letter of introduction of May 16 th 1876.
    Gilbough followed explicitly the directions contained in this letter. He regularly advised Gheen, Morgan & Co. by telegraph and letter, .of all that was done. His correspondence was exclusively with them, and they advised Johnson by letter. Gheen, Morgan & Co. opened an account current on their books with Johnson, showing tbe purchase and sale of stocks, and the profits arising therefrom were carried into their cash-books. These accounts were furnished by Gheeii, Morgan & Co. to Johnson. Gilbough at no time furnished Johnson with any accounts, but always accounted to Gheen, Morgan & Co. for all profits on his transactions in Johnson’s stocks.
    Anong these credits was the item of “ margin deposited with Bond, Moxey & Co.” This deposit was made by defendants. Bond, Moxey & -Co. called on Gheen, Morgan & Co. through Gilbough for margins, and they were put up. Gheen, Morgan & Co. failed to require a margin from Bond, Moxey & Co., although, by the rules of the board, either party could call for margins at any time. Had Gheen, Morgan & Co. required margins from Bond, Moxey & Co. this loss would not have occurred. Gilbough discovered his error, and saw the force of this mistake when the market broke, for he then called upon Bond, Moxey & Co. for margins.
    The object of margins being to secure the dealers from loss, it was the duty of Gheen, Morgan & Co. to protect their principal by . requiring from Bond, Moxey & Co. a deposit or margin. They were bound to consider the contingency of a failure on the part of Bond, Moxey & Co. They knew the extent of their purchases, and therefore their greater liability. The measure of duty in this case was ordinary and reasonable care, and therefore what was negligence was a question for the jury: Philadelphia City Passenger Railway Co. v. Hassard, 25 P. F. Smith 367. So where the standard of duty is a shifting one: Glassey v. Hestonville Passenger Railway Co., 7 P. F. Smith 172. Where a higher degree of care is demanded under some circumstances than under others — where both the duty and the extent of its performance are to be-ascertained as facts, the jury alone can determine what is negligence, and whether it has been proven : Chrissey v. Hestonville Railway Co., 25 P. F. Smith 83. Such being the law, the learned judge very properly left all the'facts to the jury to determine the question of negligence.
    May 7th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

Were there any point raising the question of the legality of the transactions between the parties now before us, we must needs give this case but short shrift; for the evidence clearly reveals the fact, that the money claimed in this suit is the product of certain successful adventures in stock gambling. According to the statements exhibited by the defendants, the value of the stocks alleged to have been bought and sold for and on account of the plaintiff, amounted to some $20,000. Eor these .stocks he paid not one dollar in money, and the only consideration of value which passed between the parties was the assignment of a four thousand dollar bond, which was executed by Johnson to the defendants, as collateral security, not for the stocks, but for certain margins by them advanced for him, and which bond afterwards, on settlement, was reassigned to him. Payment for these stocks was not required; the sale of them was a -mere pretence; not a single share was either tendered or demanded’; Johnson’s dealings were solely on margins, and for this purpose alone was the credit of the defendants loaned to him.

No authority is needed to show that courts of justice will not lend their aid to enforce a contract such as that above stated. Nevertheless, since the parties themselves have refused to raise the question of the legality of this transaction, I cannot see how we can convict the learned judge of the court below of error for not doing that which he had no opportunity of doing. Had the defendants chosen to confess judgment, I suppose the court could not have refused to enter it; and so, if the defendants refused to avail themselves of a defence which they might have had, the court cannot be blamed for not forcing it upon them.

We are thus forced to take the case as we find it, and to treat the transactions of these parties as lawful and valid. Our first inquiry, then, is, whether the instructions of the court as to Gil-bough’s agency, were or were not correct ? For whom was Gil-bough operating ? Who was his principal, and to whom did he account? The letter of introduction of May 16th, which-Johnson bore from the defendants to Gilbough, of itself answers these questions. “This will introduce you to Mr. John R. Johnson, of Downingtown. Any orders he may give you, please execute on our account, and advise us.” His orders were to be executed for them; on their, not his, account, and they were to be kept advised. The reason for these instructions is obvious: Johnson was their customer; they were brokers in West Chester, and in order to conduct the business in which Johnson intended to engage, it was necessary that they should have a correspondent who was a member of the Board of Brokers in Philadelphia. Hence it was, as we find by the subsequent dealings of the parties, that Gilbough obeyed the instructions of Gheen, Morgan & Co. to the letter. He fulfilled Johnson’s orders in the purchase and sale of stocks, but he reported to Gheen, Morgan & Co., and made his calls upon them for the necessary margins, and they, in turn, reported to Johnson and made their calls- upon him.. Gilbough never recognised Johnson as his principal, and if he in anything obeyed the orders of Johnson, it was only by reason of the previous instructions of Gheen, Morgan & Co., and thus Johnson’s orders were, in effect, the orders of that firm.

But again, the defendants, in their accounts,- treat the plaintiff as dealing directly with themselves. He is charged with the stocks, commissions and interest, and he is credited with the proceeds of the sales. In these accounts the name of Gilbough nowhere appears, and whatever he may have received for his services, he received from the defendants, and not from the plaintiff. After thus assuming the responsibility of this whole business, they cannot ignore Gilbough’s agency and cast the responsibility of it upon Johnson, simply because, in pursuance of their instructions, Johnson’s orders were obeyed in the sales of stocks. These orders may have some force, as bearing upon the question of Gilbough’s negligence, but not otherwise; and even as to this, they amount to no more than if given directly to the defendants. On this branch of the case we have no fault to find with the rulings of the court.

The final, and only remaining question for consideration is the answer to the defendant’s fifth point. The court was asked to charge, that if, in pursuance of a call for margins on stock sold for and on the order of the plaintiff, he deposited money or securities to be applied in that way, there could be no recovery for the amount of the margin so deposited and applied. The answer was, “ this point is true, unless it appears that the money was lost through the negligence of the defendants, or an agent employed by them about the business.”

This answer assumes that there was evidence sufficient to charge the defendants with negligence in the conduct of the plaintiff’s business. We are obliged to say that we have not been able to discover any such evidence. According to the evidence of Gilbough and the statement of the defendant in error, four hundred shares of Iiestonville had been sold short, on Johnson’s account, to Bond, Moxey & Co., to be delivered within sixty days, seller’s option, at $35 per share. As this stock soon after commenced to rise in the market, Bond, Moxey & Co. made a call upon Gilbough for margin, and he, thereupon, deposited with them some $2500. For the amount of this margin, lost through the failure of the firm above named, this suit is brought. There was nothing irregular in the transaction itself; it was quite proper, under the circumstances, for the one party to call a margin and for the other to furnish it. It was only by thus meeting the call for margin that the contract upon part of Johnson could be maintained, for, as he had no stock, he could'not meet the emergency by a tender. Had, then, Bond, Moxey & Co. remained solvent the transaction would have been unexceptionable, though the margin had all been consumed by the rise in the price of the Hestonville stock. Thus, the matter resolves itself into the question, whether tbe defendants were responsible for the insolvency of Bond, Moxey & Co.; ought they to have provided for a contingency such as this ? In this transaction it was their duty to exercise reasonable care, such as a prudent man would exercise in and about his owm business. Did they or their agent exercise such care ? There does not appear to be any evidence to the contrary. For all that appears, these parties were perfectly good when the contract was made and the money, for the margin, deposited with them. As matters then stood, it does not appear that there was the slightest degree of imprudence in trusting them with this amount of money, and the more so as the balance on the contract was then in their favor. It is true, according to the testimony of Mr. Maris, Gilbough might have called for a counter-deposit; he says, however, that when the contract has been running for some time, and there is a balance in favor of one party or the other, the party in whose favor the balance is, will frequently call for a margin without making a deposit himself. He further says, that if stock is sold on seller’s option, and the stock advances, the purchaser will, in that event, call a margin in order to insure a delivery of the stock at the end of the time. It would thus seem, that these deposits are intended to insure an execution of the contract, and not to provide against the contingency of insolvency, and that, ordinarily, these calls are made by the party in whose favor is the balance. Following this general custom, Bond, Moxey & Oo. called a margin, and it was .regularly met by Gilbough’s deposit. To say, under such circumstances, that he should have required security, for the return of the deposits, from a firm in full credit, would be to say that he must have exercised a degree of care which would be equivalent to an insurance against possible loss. This, however, is asking too much of an agent. The law implies a promise from brokers, bankers, or other agents, that they will severally exercise competent skill and proper care in the service they undertake to perform, but it neither implies nor requires more than this: Wingate v. The Mechanics’ Bank, 10 Barr 108.

The judgment is reversed.


author: Per Curiam.

text:
    Price versus Kirk.
    1. An architect who simply provided the plans and specifications for a building, is not entitled to a lien against said building, for his labor.
    2. Bank v. Gries, 11 Casey 423, distinguished.
    March 26th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term, 1879, No. 98.
    Scire facias sur mechanic’s lien issued by Benjamin D. Price against William S. Kirk.
    The claimed filed set forth:
    “ The amount claimed to be due is $195, for drawings, plans and specifications, and for labor and services in and about directing and overseeing the same, furnished from October 5th 1874, to November 29th 1875, by the claimant as an architect, for and about the erection and construction of said building.”
    The defendant pleaded that the work and labor set forth in the claim were not the subject of a mechanic’s lien.
    The case was heard without a jury by Butler, P. J., who found the following facts:
    “ That the plaintiff is an architect; that his claim is for preparing drawings and specifications for the house against which his lien is entered and (in his own language) three visits to West Chester to locate the building and explain the drawings to mechanics. We find, however, that he visited West Chester but once to explain the drawings; that this was before the building was commenced and consumed a very short period of time. He did not superintend the construction of the house or have anything to do with it, other than has been stated.”
    The court also found that the lien was not filed in time, but this question was not raised at the trial.
    In an opinion the court, inter alia, said:
    “ It is difficult to see how plaintiff can be held to have performed ‘work for or about the construction of the building.’ The claim filed is for ‘ drawings, plans and specifications, and for labor and services in and about directing and overseeing the same.’ It is further stated that these plans were for the construction of a building. The drawings of plans and specifications of itself, is not ‘ work’ within the meaning of the statute; not work in the ordinary sense of the term. An architect is not a mechanic or laborer. The plaintiff here has no better claim to a lien than the scrivener who copies specifications or draws contracts for the building or the surveyor who draws the plan upon the ground. Judgment must, therefore, be entered for the defendant.”
    This action was assigned for error by the plaintiff who took this writ.

      R. Jones Monaghan, for plaintiff in error.
    This case seems to be ruled by Bank v. Gries, 11 Casey 423. Services of the kind for which the plaintiff seeks the lien are embraced in the meaning of the statute. In rendering such services, a party certainly “ performs labor,” and furnishes labor and skill. The labor is performed and labor and skill furnished “for erecting” and “constructing” a building: Knight v. Norris, 13 Minn. 473.

      William B. Waddell, for defendant in error.
    It is submitted that the cases referred to by the plaintiff in error, were dependent on something more being done by the architect than merely drawing plans and specifications. He either superintended or assisted in superintending the erection of the building.
    In Bank v. Gries, supra, the work was overseen and directed by the architect. See Rush v. Able, post, page 153.
    May 5th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

Without referring to the finding of the court that it would appear from the record and evidence that the lien was not filed within the time provided by the statute, we are of opinion that upon the facts'as found by the learned judge, to whom it was submitted without the intervention of a jury, the plaintiff had no lien. In Bank v. Gries, 11 Casey 423, the architect was employed not only to make plans and specifications for the building, but to direct and oversee its erection in accordance therewith. His claim, therefore, was for work done about the erection of the building within the words of the law. The mere drawing of the plan and writing' out the specifications is no more of this character than would be the work of an attorney in preparing the contract.

Judgment affirmed.