author: Chief Justice Agnew

text:
    Clark versus Burn et al.

    1. An endorsement of partial payment on a note by one of two promisors, made in the handwriting of the payee, will not avoid the bar of the Statute of Limitations as to the other promisor, in the absence of evidence of payment by the latter.
    2. Coleman v. Fobes, 10 Harris 156, affirmed.
    March 27th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Chester county: Of July Term 1875, No. 48.
    Assumpsit by H. B. Burn and J. R. Hinkson, administrators of Eli W. Hinkson deceased, against Maris T. Clark, on the following note:—
    “$400 Highland, March 30th 1867.
    One year after date we promise to pay 'to Eli W. Hinkson, or order, the sum of four hundred dollars, with interest, without defalcation, for value received. Ferdinand E. Groce,
    Marts T. Clark.”
    With the following endorsements thereon, viz :
    “ Rec’d March 25,’68, on the within one year’s interest.
    Eli W. Hinkson.”
    “ Rec’d March 16,’69, on the within one year’s interest.
    Eli W. Hinkson.”
    “ Rec’d on the-within one year’s interest.
    Eli W. Hinkson.”
    “Rec’d January 11,’.71, on the within one year’s interest.
    Eli W. Hinkson.”
    “ Rec’d April 9,’72, on the within interest for one year
    Eli W. Hinkson.”

      “ Rec’d Sept. 1, 1872, on the within one hundred and two fifty. $102.50. E. W. Hinkson.”
    “ Ree’d March 81,’73, on the within eighteen dollars.
    $18. E. W. Hinkson.”
    Hinkson died in June 1873, and this suit was brought November 4th 1874. Clark caused an appearance to be entered for him, and filed an affidavit of defence, setting forth that he was only surety on the note, that no payments thereon had ever been made by him or with his knowledge; that more than six years had elapsed since the note became due, and that he relied upon' and pleaded the Statute of Limitations. No appearance was entered for Groce, and he made no defence.
    Issue was joined with Clark alone, and the case was placed upon the trial list. It appearing that Groce was the party sued with Clark, before proceeding to trial, on motion of the plaintiff’s counsel, judgment by default was entered against him. A jury was * then empannelled and sworn to try the issue between the plaintiffs and Clark.
    At the trial, the foregoing note was given in evidence. The defendant offered in evidence, the following receipts, which were in the handwriting of E. W. Hinkson.
    “April 9th 1872. Received of F. H. Groce twenty-four dollars, interest on a promissory note. Eli W. Hinkson.”
    “March 31st 1873. Received of F. H. Groce'eighteen dollars on promissory note. Eli W. Hinkson.”
    This was all the evidence offered by either party. The defendant asked the court to charge that, “ under the evidence the plaintiffs cannot recover, and the verdict must be for the defendant.”
    The court reserved the point, and submitted the case on the evidence, with instructions to render a verdict for the defendant, unless it should be found that the defendant participated in making the payments; and in case it should be so found, then to render a verdict for the plaintiffs.
    The jury found for the plaintiffs for $226.26.
    The court, Butler, P. J., subsequently directed judgment to be entered on the verdict, in an opinion, inter alia, saying:
    “ As the case stands we have no positive testimony how, or by whom, the payment was made. Have we grounds for legitimate inference, by which the fact can be ascertained ? This is the question raised by the point.
    “ The facts are that the debt was joint — the obligation and duty to pay, resting equally on both — that payments were made by Groce, personally, and that for these, payments separate receipts were taken in his own name, particularly exhibiting the fact that he paid,
    “ Our impression on the trial was that an inference might legitimately be drawn from these facts, that the payments here involved were by both; that as the duty was on both, both participated in discharging it; and especially as there was evidence that when Groce alone paid (as shown in the two instances referred to), he took receipts in his own name, particularly exhibiting the payment by himself; that the inference was one of fact, to be drawn by the jury, or not, as might seem reasonable. And as'this impression has not been removed, we must disaffirm the point, and direct judgment to be entered, on the verdict.”
    This action of the court was assigned for error by defendant.

      J. Smith Futhey, for plaintiff in error.
    — There was no evidence to justify the submission to the jury of the question whether Clark had participated in the payments. The case of the plaintiffs below rests wholly on the fact that Hinkson, the holder of the note, made endorsements thereon of payments of interest and on account of principal', without specifying by whom the payments were made. In England, and in this country generally, such endorsements do not take the note out of the statute, without evidence that the endorsements were made with the knowledge of the party sought to be charged: 3 Pars, on Cont. 75, and cases there cited.
    They are not evidence unless it affirmatively appears that the payments were made within the prescribed period: Cremer’s Estate, 5 W. & S. 331. These endorsements are admissible because they are declarations made against defendant’s own interest: Shaffer v. Shaffer, 5 Wright 51; but this rule has heretofore been allowed to prevail only where there was one party to the instrument, and did not touch the question as to the effect of the endorsement where there were two or more signers to the instrument. To remove the bar of. the statute, there must be a new promise, or circumstances from which one can be properly implied, and it is confidently submitted that simple endorsements of payments on the instrument, made by the holder, without more, are not to be treated as evidence of a new promise by all of several debtors. Such endorsements are simply evidence of payment, but do not prove who made them; the burthen of showing which, beyond a reasonable doubt, is on the party seeking to avoid the bar of the statute.
    The court below seemed to think, there was some evidence in the fact that Groce held separate receipts for two of the payments endorsed on the bond, and left room for the inference to be drawn, that Groce made no payments except where such separate receipts could be produced, and consequently that Clark may have made the rest of the payments. These receipts were not produced by the plaintiffs below, but by the defendant, as evidence that Groce made all the payments endorsed on the bond as was alleged, and to show, so far 'as independent evidence could be reached, that such was the case.

      The possession of these receipts was no evidence that they wero the only payments made by Groce, and give no room for the inference that he made no other payment.

      Alfred P. Reid, for defendant in error.
    — An endorsement on a note of a payment on account, in the handwriting of the holder, proved to have been made within six years from the date of the note and time of suit brought, is evidence which will prevent the operation of the Statute of Limitations: Addams v. Seitzinger, 1 W. & S. 248; Cremer’s Estate, 5 W. & S. 331; Burr v. Burr, 2 Casey 284. The endorsements are evidence of payment: Shaffer v. Shaffer, 5 Wright 54.
    It is an inference for the jury to draw that the payments credited were made by the maker of the note. That they were so made is a reasonable and proper conclusion, based upon the duty to pay. The same is true where they are joint debtors. Where both are equally under obligation to pay, the same inferences against both are as logical and necessary. There was no evidence that Clark was a surety. It is a reasonable presumption, that when one debtor makes a. payment on a joint obligation, he does so as the agent of all liable, and with the money of all, as it is in relief of all.
    It is fair to conclude also, that if Groce made all the payments endorsed on the note, he would have taken receipts, as he did in the two instances when he made the payments.
    April 4th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The judgment in this case overturns an express decision, and takes a step backward from the modern doctrine upon the Statute of Limitations. Groce and Clark gave their joint note to Ilinkson. Hinkson endorsed payments of interest and principal on the note within six years from its date; but failed to specify by whom the payments were made; and no evidence was given to show that any payment was made by Clark. Upon this state of facts was the bar of the Statute of Limitations removed as to Clark ? The simple proposition is that a general endorsement by the plaintiff will take the case out of the statute as to all the parties. This contravenes the principle of Shaffer v. Shaffer, 5 Wright 54 (opinion by Judge Strong), that it is the payment which raises the presumption of an acknowledgment of the debt, the endorsement being only evidence of the payment, the time of which must be otherwise proved. Clearly he only,- who made the payment, can be presumed to acknowledge the debt. To- assert that because one man pays, another acknowledges, is so palpably illogical, I am at a loss to understand the ratiocination. If we observe the source of the evidence, the case is still worse. This source is the party himself. Concede that his entry of payment being against his interest when proved to have been, made within six years, it may be accepted as prima facie evidence of the fact of payment by some one; this is its whole effect. When this entry is used to renew a debt barred by the statute, by what kind of legal reasoning can an entry which specifies no one'be made to cover this defendant, or how can a payment be imputed to one who is not known, or shown to have made it ? If the creditor can thus by a general entry, designating no one making the payment, bind all and prevent the bar of the statute, he does by his entry, what the party who made the payment cannot do, he has constituted him as tbe agent of the others to make an acknowledgment,. having the force of a new promise to pay the residue. This proves the unsoundness of the position that the entry affords a prima facie presumption, calling on the defendant to repel it. Evidence, to be prima facie, must apparently apply to the defendant. Rut this entry, which is the only evidence, applies not to him, and to assume that he is bound by it, is to assert that he, whoever it was who made the payment, is authorized to make an acknowledgment binding on him to bar the statute. This is palpably unsound. On principle, the case is with the defendant. But to sustain the decision the case of Coleman v. Fobes, 10 Harris 156, must be overruled. That case in express terms overruled Zent’s Amr. v. Heart, 8 Barr 337. Coleman v. Fobes was a well-considered case, and contains a searching examination of the authorities, as well as the principles applicable to the statute. It is also on all fours with this case. The entry on the note was in these words: “ Received, Smethport, January 18th 1840, on this note $12.18.” In the parol proof, it was shown that the payment was made by a surety in the note, and the court below held that the payment took away the bar of the statute as to the principal. This court reversed the judgment, holding that even a surety was not the agent of the principal to make an acknowledgment to take the case out of the statute; and that the acknowledgment stands on the footing of a new. promise, which one joint debtor cannot make for another. Coleman v. Fobes is, moreover, wholly at variance with the doctrine of a prima facie presumption. Eor if a bona fide payment by a surety accepted, and endorsed by the creditor in general terms, designating no one, cannot raise an acknowledgment by the principal to take the case out of the statute, much less can a mere endorsement of payment, designating no one, raise an acknowledgment of each and all the debtors, to stand as the equivalent of a new promise to bar the statute. Mere joint promissors are not .the agents of each other, and even partners whose agency has ceased by dissolution, cannot bind each other by a new promise or an acknowledgment: Levy v. Cadet, 17 S. & R. 126; Searight v. Craighead, 1 Penna. 135; Houser v. Irvin, 3 W &. S 347; Schoneman v. Fegley, 7 Barr 433. The theory of the law, says Gibson, C. J., is not that the old promise is revived, but that the subsequent confession of the debt is evidence of a new one, and he who has no authority to act for another cannot bind him by acknowledging that he is indebted, or by expressly promising for him that he shall pay: Houser v. Irwin, supra. The force of Coleman v. Fobes is sought to be broken by stating that the affirmative evidence of payment by the surety proves that the principal did not acknowledge the debt. But that is a concession to the weakness of this case. It admits that the party who did not make the payment is not bound; and yet without any evidence that he did pay, imputes the payment to him for the very purpose of barring the statute, when the undoubted rule is that a barred debt cannot be taken out of the statute, unless by the clear, unqualified and precise acknowledgment of the debtor himself, or by a new promise to pay. Now, to impute an acknowledgment to him, without evidence, that the act from which the inference is drawn is his act, is to raise a legal inference from that, which is or may be the act of another. This is plainly contrary to the undoubted and well-settled doctrine of the statute, that its bar can be set aside, only by the acknowledgment of the party himself who pleads it. Hence, to raise a new promise, or its equivalent acknowledgment, from a prior joint duty to pay, is to rest the evidence of a new duty to pay, upon a duty already barred by the statute. It confounds the effect of payment by him who made it, with the evidence which must be given by the creditor to raise a new promise by him who did not make it. It is from the act of payment only, an acknowledgment is inferred. It requires a second inference to reach him, who did not make the payment. This is not only contrary to the doctrine upon the statute, that its bar cannot be removed, except by a clear, unequivocal and certain acknowledgment, but contrary to the general rule of evidence that an inference cannot be founded on an inference. It is said if such an endorsement -will not bind both, it will bind neither. True, but this is only the legitimate effect of the statute which creates the bar; and then how can an uncertain and equivocal endorsement by the creditor have a greater force than an uncertain or equivocal acknowledgment by the debtor ? Neither can toll the statute. It can be tolled only by an express promise or an acknowledgment, so certain and unequivocal, that not only the debt, but the debtor is made certain. The position that a general entry of payment by the creditor, designating no one, will be the evidence of a new promise to pay, after the duty to pay is barred, by the statute, of all who subscribed to the original duty to pay, conflicts with all the modern decisions upon' the necessity of certainty in the acknowledgment. The rule is forcibly stated by Justice Sharswood, in Johns v. Lanz, 13 P. F. Smith 324. “ The decisions of this state (he remarks) apply very strict rules to acknowledgments to take a case out of the Statute of Limitations, and very rightly so. We mean to adhere to them in letter and spirit. The present state of the law is well summed up by our Brother Agnew in one of the latest. In order to take a case out of the operation of the statute, the acknowledgment of the debt must be clear, distinct and unequivocal. It must be so distinct and palpable in its extent and form as to preclude hesitation.” Citing Wolfensberger v. Young, 11 Wright 516. The same rule is stated by Justice Read, in McClelland’s Ex’rs v. West, 9 P. E. Smith 487. “It must be an express acknowledgment of a subsisting debt. Nothing but an unequivocal admission of indebtedness is such evidence of a promise to pay as will take a case out of the Statute of Limitations.” Now take the case before us — a note drawn by two, or it might be half a dozen persons, and payment of five dollars endorsed, designating no one. What is more uncertain or equivocal ? As a fact on which a new promise is to arise, who paid it ? This is not merely equivocal, but unknown. What right has a jury, from an unknown fact, to infer a certain and distinct conclusion ? All the authorities agree that the presumption of a promise arises on the act of payment, not the duty of pajnnent. The duty of payment arises on the original promise, but non constat who performed this duty ? and this is the only basis of a presumption. In this case, who made the endorsed payment ? Who says Clark did ? He furnished no evidence against himself — it is no legal conclusion. If it be, the law removes the bar of the statute by a legal inference, and not the party by his promise or acknowledgment. The effect is the law raises the new promise, and not the only party who can waive the bar. Yet we are asked to hold that the creditor’s uncertain act, his loose entry, is a clear, distinct and unequivocal acknowledgment, or new promise, of Maris T. Clark, who is connected with the efficient act by no proof whatever, and say to him, though discharged by lapse of time: “Prove yourself clear.” This is a plain inversion of the doctrine of the statute, that there must be an agency to make, and to receive the acknowledgment or promise. “To be binding (says Justice Paxson), it ought to be made under circumstances which indicate an actual intention to pay the debt, not a mere loose declaration:” McKinney v. Snyder, 28 P. E. Smith 500. Here Clark never said or did anything. Many cases furnish illustrations of the rule. One will suffice: Weaver v. Weaver, 4 P. E. Smith 153. All proclaim the sound doctrine that the statute is not to be frittered away by mere presumptions. The statute has no favor with a jury, which seldom rises to the compre- . hension of the philosophy, that partial evil is often universal good.

Judgment reversed, and a venire facias de novo awarded.

Sharswood, Merour and Paxson, JJ., dissent; Paxson, J., filing a dissenting opinion.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Beale versus The Pennsylvania Railroad Company. Miller et at. versus Same.
    The PennsylvaniajRaih'oad Company filed a petition in the Common Pleas’ setting forth that under the provisions of its charter it had surveyed and located the route for a new line of road, and reciting that it was unablo to agree with the owners of property as to the damages to be awarded them, prayed for the appointment of viewers to assess the same. Viewers were appointed, and filed their report. One of the company’s exceptions thereto was on the ground that “ since the report of the viewers,” it had altered the route of its road through the land of some of the property-holders,’and the court set aside so much of the report as assessed the damages to them, and then confirmed the rest of the report. Held, that this action of the court was final,’ and the subject of appeal. Held, further, that the location of the road by the company was an appropriation of the land, and after the assessment of the damages, the right thereto was vested in the owners, and could not be divested by a subsequent change of route.
    March 27th 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Certiorari to the Court of Common Pleas of Chester county: Of January Term 1878, Nos. 33 and 36.
    These writs were taken respectively by James M. Beale and others, and Mary P. Miller and others, who alleged that the court erred in their ruling upon the exceptions filed by the Pennsylvania Railroad Company to the report of viewers appointed to assess the damages sustained by the owners of land appropriated by said company in straightening and improving the line of their railroad. The facts are stated in the opinion of this court.
    . R. Jones Monaghan, for the plaintiffs in error. —
    The “location” of the new road was an “appropriation” of the land, and vested in the owners the right to compensation. Physical occupation was not necessary and the right could not be divested by change of route. When the company has “ chosen, selected and adopted the land,” by whatever manner that selection is indicated, they have talcen the land within the contemplation of the statute: Wadhams v. Railroad Co., 6 Wright 310; Harrington v. The Commissioners of Berkshire, 22 Pick. 263; Heise v. Railroad Co., 12 P. F; Smith 72; Neale v. Railroad Co., 2 Grant’s Cases 137. The railroad company has no authority under the statute to choose a different route at will until they secure an award of damages to suit them: Neal v. Pittsburgh Railroad Co., supra: Darlington et ux. v. United States, 1 Norris 383. The judgment of the court below, setting aside the report of viewers, was in effect a dismissal of the petition or quashing of the proceedings and was final, and the subject of appeal: Mifflin v. Railroad Co., 4 Harris 188; Heise v. Penna. Railroad Co., 12 P. F. Smith 71; Snyder v. Railroad Co., 5 Id. 344.

      Wm. Darlington, contra.
    — No final judgment was entered. Either party may proceed to a new view and assessment of damages. The confirmation is the final decree or judgment. Here the report as to these parties was not confirmed but set aside. No writ of error, therefore, lies, and these writs should be quashed: Straub v. Smith, 2 S. & R. 382; Logan v. Jennings, 4 Rawle 355; Hill v. Irwin, 8 Casey 314; Chadwick v. Ober, 20 P. F. Smith 264.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

These two cases were argued together. They present the same question.

On the 3d of February 1876, the defendant in error presented its petition to the Common Pleas, setting forth that it had surveyed, located and marked on the ground, the route of a new line of railroad between certain points named; that it passed through the lands of the appellants and twenty-nine other persons, setting forth their names; that it had been unable to agree with any of the owners of the lands in regard to the damages, and praying for the appointment of viewers to' assess the same. Viewers were appointed. On the 10th of March they assessed the damages. The report of the viewers was filed on the 19th of June. The same day the company filed three exceptions thereto. They were to the excess of damages found, and to the irregularities attending the assessment. Afterwards, but on the same day, the company filed an additional exception, setting forth that it had caused the view of the railroad, through the land of the appellants, “ to be revised and laid upon ground different from that upon which it was laid when said assessment was made;” that the company had approved the revised line, whereby the former line was superseded. On the 25th September, the court dismissed the three exceptions first filed, but sustained the “additional” one. Thereupon it confirmed absolutely the report as to the twenty-nine other claimants; but set it aside as to the plaintiffs in error. The assignments of error are to treating this change of line as an exception to confirmation, and to setting aside the report by reason thereof.

The defendant in error asks us to quash the writs, on the allegation that the action of the court was not final. We think this position is unsound. The application was limited to the assessment of damages on the route which the company “ had surveyed, located, and marked on the ground.” On that petition neither the court nor the jury could have assessed damages for any other route. By confirming the report as to part of the claimants, and setting it aside as to the others, for the reasons stated, the case was as finally ended against the appellants, as it was in favor of the other claimants. A change of route through the lands of the plaintiffs having been made, a new petition and new proceedings would he necessary to assess the damages. • The action of the court was final. It was substantially a dismissal of the claims of the plaintiffs in error for want of jurisdiction in the pending case.

The other branch of the case is, whether the court erred in setting aside the report as to the plaintiffs in error for the reasons given ? If the application had been made to amend the description or location of the route, and to send the case to viewers again, there would have been some plausibility in the motion : Pennsylvania Railroad Company v. Lutheran Congregation, 3 P. F. Smith 445. The court would then have considered it, and decided, according to its sound discretion, whether it was within the spirit and meaning of the laws permitting amendments. But nothing of the kind was asked for. No request was made to bring within the jurisdiction of the court, the claim for damages arising from the new location.

The action of the court was substantially to strike from the records these claims for damages which had become vested in the claimants through the action of the company. Its petition showed a right to claim damages. The report of the viewers set forth the measure of them. The duty to pass upon them was imposed on the court.

This application for the assessment of damages was made under the supplement to the Act of 13th April 1868, Pamph. L. 319, incorporating the defendant in error, and its several supplements. When no trial by jury is given the evidence bearing on the merits of the case cannot be brought before us for review. This makes it more necessary that the court should keep within the undoubted limits of its authority. The “ location” made by the company was an “ appropriation” of the land, under the Act of 10th April 1867, Pamph. L. 993; Wadhams v. Lackawanna & Bloomsburg Railroad Co., 6 Wright 310; Heise v. Pennsylvania Railroad Co., 12 P. F. Smith 67. An actual location and appropriation then having been made, it is manifest that the court did not give due effect to the rights of the claimants. It was said in Wadhams v. Lackawanna & Bloomsburg Railroad Co., supra, that when the railroad has been located, the land has been taken and appropriated for the public use, the right of the landowner to sue for his damages is complete, and he may recover all which may be caused by the location, and by the subsequent construction.

The company had averred of record the actual location, and legal appropriation of the land. The jurisdiction of the court had thereby attached. That jurisdiction could not be divested, after the viewers had assessed the damages, by a change of the route by the company.

It is true, in disposing of this case we must look at the record only. We cannot go beyond it; nor is it necessary to do so. The record shows clearly and distinctly that every other exception was dismissed, and this additional one only was sustained. Assuming all tlie facts therein stated to be true, as we- do, yet we think them insufficient to sustain the action of the court. íf the company could once thus stop the action of the court as it is about to confirm a report assessing damages, what legal impediment is there in the way of it again changing the route so as to defeat a second assessment of damages, and so on ad libitum.

The Acts of Assembly to which we have referred, give very large discretionary powers to this company, in regard to the change of lines of its roads, and the appropriation of lands adjoining or contiguous thereto. But there is nothing in their letter or spirit which will permit the company to roam at pleasure over a person’s land, changing the route as often as it is dissatisfied with the amount of damages assessed, thereby defeating the action of the court in a case pending. The recognition of such a power would be fraught with too great mischief to be sanctioned by any just rule in the administration of the law. As then, no other objections existed than those which we have declared insufficient, the report should have been confirmed. Therefore,

Judgment reversed in each case, and the report of the viewers is confirmed absolutely.

Paxson and Woodward, JJ., dissent.


author: Mr. Justice Trunkey

text:
    Darlington’s Appeal.
    1. AVhere parties have a special confidential or fiduciary relation, which affords the power and means to one to take undue advantage, or exercise undue influence over the other, a transaction between persons so situated is watched with extreme jealousy and solicitude; and if there be found the slightest trace of undue influence or unfair advantage, redress will be given to the injured party.
    2. Such a relation exists between man and wife; and where there are transactions between them, courts will apply the same rules which govern dealings between attorney and client, principal and agent, guardian and ward, trustee and cestui que trust, and will require, when the husband claims a benefit arising from any such dealings, that it be shown affirmatively that he acted in perfect good faith, and took no advantage of his influence or knowledge, and that whatever contracts he made, were fair, adequate and equitable. If no such proof is established, courts of equity will avoid his contracts on the ground of constructive fraud.
    3. • The conveyance of a wife’s estate for her husband’s use will be held void, unless it affirmatively appears from the attending circumstances, or otherwise, that it was her voluntary act, and not induced by undue influence.
    4. The certificate of a magistrate to the acknowledgment of a deed of her separate estate'by a married woman to her husband, will not avail, wher innocent purchasers have not intervened, to prevent her heir from avoiding the deed on the ground of undue influence on the part of the husband.
    5. Where a bill in equity is inartistic and incomplete, but has substance by which to amend, if necessary, amendment will be allowed in the Supreme Court. '

      6. Where a 'hill in equity is filed to enforce compliance with an award, and it appears that a married woman had not been joined by her husband in the submission to the arbitrators, and was not therefore bound, the court will nevertheless grant appropriate relief, if the complainant’s bill discloses substantial grounds therefor.
    March 28th 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson Woodward and Trunkey, JJ.
    Appeal from, the Court of Common Pleas, of Chester county: Of January Term 1878, No. 172. In Equity.
    This was a bill in equity, filed by Jacob H. Darlington against Job Darlington, Franklin Darlington, Hoopes Darlington, Sidney D. Pennock, Samuel Dixon and Hannah J. Dixon, his wife, to compel them to pay to him the value of a certain farm in Chester county, according to an award made by certain referees mutually chosen by the parties, or to convey and release to him, all right, title and interest, in the said farm, and also to pay to him the sum of $1000 and interest, according to said award, and six months’ rent of said farm.
    The facts were substantially as follows:
    Joshua H. Darlington, the complainant, is the only son of Joshua and Martha T. Darlington, who were married in September 1841. She was the second wife of her husband. By the first, he had five children named in the bill — Job, Franklin, Hoopes, Sidney and Hannah. The last is intermarried with Samuel Dixon. At the time of her marriage, Martha was about thirty-six years of age, and she was the owner of a farm of about seventy acres of-land, near West Chester, and a lot of ten acres of woodland besides. Within less than two months after her marriage, she joined her husband in a conveyance of all her real estate, to John H. Brinton, Esq., for the consideration of one dollar, and he, at the same time, for the same consideration, conveyed the property to Joshua Darlington. In these conveyances, á life-estate was reserved to Martha.
    The deed was acknowledged before a justice of the peace. In reference to the conduct of Martha at the time of the acknowledgment, a witness, who was present, testified: “ I, of course, observed her manner; I don’t think she said anything, except to answer the queries put to her; she signed when asked to sign, or when the paper was presented to her, without any hesitation, but I don’t remember anything in her manner that was particularly striking, except this: that while she signed without hesitation, I thought she was brought to that act with some reluctance. She seemed not to be cheerful in what she was doing; she seemed reluctant.”
    The deeds were not recorded until January 2d 1868, their existence having been kept a secret because it was feared an old aunt of Martha’s, who was living with Darlington and his wife, “would be disturbed and uneasy if she knew of the transaction.” Shortly after his marriage, Joshua Darlington also reduced all his wife’s choses in action to possession.
    On December 9th 1863, the ten-acre piece of woodland was conveyed by Joshua Darlington and wife, to John Noble, in fee, for $1000, and the purchase-money paid to the husband, which he appropriated to his own use.
    Martha Darlington died in the month of March 1872. She is alleged, in the bill, to have been a woman of weak mind, easily' influenced, and always in poor health.
    Joshua Darlington died November 8th.1872.
    Soon after his death, this controversy arose: Jacob H. Darling-ton, as the only child of his mother, claimed the farm that had belonged to her, and the value of the wood-lot. The claim was resisted, and all the parties, including Mrs. Dixon, her husband, however, refusing to unite with her, agreed to submit all matters in variance as to the distribution of the estate, to referees, who should “hear the parties, their proofs and allegations, and determine and award'what proportion of said estate equitably belongs to each of the said children — the said farm for this purpose, to be considered as the property of Joshua Darlington, deceased.” The referees sat on the case, heard the parties and made an award.
    By that award, made March 2d 1873, they determined that the farm, worth in their judgment, $18,000, equitably belongs to Jacob H. Darlington, and they awarded the same to him, or $18,000 of the estate of the said Joshua Darlington in lieu thereof, and $1000, the proceeds of the sale of said wood-lot, and also, half the rent of the farm for the year ending April 1st 1873, and interest on the said $1000 for six months, up to April 1st 1873 — and further, that the said Jacob is entitled to retain, without accounting to his father’s estate, whatever money, property and securities were handed him by his father after his mother’s death, out of her chest.
    They also awarded, that all the other real and personal estate of the said Joshua Darlington, equitably belongs to the other children, exclusive of the said Jacob, to be divided amongst them equally, and that the said Jacob should pay one-half of the expenses of the reference, and the other parties the other half.
    Soon after the award was rendered the complainant supposing the award would be complied with without objection, took possession of the farm, and the title-deeds, so far as they were in possession of the father, were placed in his hands; and he requested the other parties to the award, including the said Hannah, to release to him. They refused to do so. He thereupon called upon them to elect whether they would yield to him the farm, or pay to him the value, as found by the referees, $18,000; he offering to release all his interest to them, on payment of that sum. They refused to elect. He then elected to take the $18,000 in lieu of the farm.

      This bill was then filed to compel the parties to perform their part of the award, and was referred to a master, who reported that the award was binding on all parties except Hannah J. Dixon; that she being a married woman was not bound by it, although she signed the submission, attended before the referees, and took part in the contest; that the respondents having refused to elect, the complainant was entitled to elect, and having elected to take $18,000 in lieu of the farm, he recommended a decree in favor of the complainant for four-fifths of that sum with interest, and also for four-fifths of the sum of $1000, with interest. He further reported the complainant was not entitled to recover any rent of the farm for six months prior to the 1st of April 1873, the amount of the said rent having been left uncertain.
    „ To this report exceptions were filed by both parties.
    The complainant objected to the report.
    1. Because the auditor had decided that the award was void as to Hannah J. Dixon, and that the title to the farm and vood-lot were legally vested in Joshua Darlington by the conveyances.
    2. Because he had not decided that the conveyance by Martha Darlington, of her real estate to her husband, under the circumstances and taken in connection with her mental imbecility, were prima facie evidence of undue influence on his part.
    3. Because he had not reported that the award of arbitrators ought to be sustained in all particulars.
    4. And because he had decided that the award, as respects the rent, was uncertain and void.
    The respondents, inter alia, objected to the report:
    That the master ought to have concluded, that the award did not conform to the submission; that he ought to have found the award not final and decisive, and therefore incapable of being enforced; that he ought to have found that the respondents had not a full and fair hearing before the arbitrators ; that the award being void as to one respondent, ought to have been found void as to all, and incapable of being enforced; that the master ought to have found, that an alternative award like this could not be enforced.
    After argument upon these exceptions the court, Butler, P. J., in an opinion, inter alia, said:
    The plaintiff’s case (as presented by his bill), is founded on the award alone ; whether he could sustain a claim for the farm, independently of it, we need not, therefore, inquire. The question is not before us. We agree with the master, that Mrs. Dixon is . not bound by the award. She was incompetent to join in the contract on which it rests. This would be so, we think, even if it did not embrace (as it does), the transfer of land. We also agree with him that the aw'ard is nevertheless binding on the other defendants and that its observance should be enforced. ' Aware of Mrs. Dixon’s coverture, they are presumed to know that she was not bound, and might not perform. With this knowledge they proceeded with the case at great length, involving a large expenditure of time, labor and money, and took the chances of a favorable result. Justice, therefore, requires them to stand by what was done: Summerville v. Painter, 8 Wright 110 ; Russel on Arbitrators 22, 26, 529, 637.” The court then decreed that the award was binding upon all the defendants except Dixon and his wife, and it was ordered that all the defendants except them should make a conveyance of their estate in the land to the complainant. The complainant appealed, and among his assignments of error were the following :
    1. The court below erred in deciding that the validity of the conveyance, by which the real estate in the bill mentioned was transferred from Martha Darlington to her husband, was not presented for decision in this case.
    2. In deciding that Hannah J. Dixon, one of the defendants below, was not bound by the award, for the specific performance of which the bill in this case was brought.

      Joseph J. Lewis and Wayne Ma.cVeagh, for appellant.
    — In the execution of these deeds under the circumstances of this case the presumption is that the wife acted under the undue influence and control of her husband: Weeks v. Haas, 3 W. & S. 523; Louden v. Blythe, 4 Harris 539; Drury v. Poster, 2 Wallace 31; Methodist Church v. Jaques, 3 Johns. Ch. Rep. 96; White v. Wager, 32 Barb. 255. Courts are jealously watchful of gifts between persons in relations of trust, dependence and confidence: Milnes v. Busk, 2 Ves. 488; Kurger v. Kurger, 8 Barb. 272; Huguenin v. Baseley, 14 Ves. 273; Stiles v. Stiles, 14 Mich. 75; Witbeck v. Witbeck, 25 Id. 441; McRae v. Battle, 99 N. C. 109; Wilson v. Bull, 10 Ohio 212; Calhoun v. Calhoun, 2 Strob. Eq. 236; Cooke v. Lamotte, 15 Beav. 234; Cobbot v. Brock, 20 Id. 524; Page v. Horne, 11 Id. 235; Swisshelm’s Appeal, 6 P. F. Smith 486. It is not an adequate answer to these well-settled principles of law to say that there was a separate acknowledgment of the wife in pursuance of the Act of Assembly, for this court has repeatedly declared that slight importance is to be given to such examinations as are made at acknowledgments: Schrader v. Decker, 9 Barr 14; Louden v. Blythe, supra.

    The question, therefore, remains, whether a wife of weak mind may be divested of her property by her husband, and the title vested in him by the mere presentation of a deed executed and acknowledged by her, according to the forms of law. The learned court below evaded this question by declaring that it did not arise, as the bill was framed only to secure the specific execution of the award, but it is believed that a very slight examination of the bill will establish the error of this position. The bill sets forth at length the grounds upon which the conveyance in question is alleged to have been invalid, and distinctly prays, either for a specific performance of the award, or for a conveyance of the apparent right of each of the defendants to the real estate in said conveyance, mentioned to the plaintiff. It is difficult to conceive how the validity of the conveyance could have been more distinctly and clearly raised, or relief from it more distinctly demanded. The plaintiff having offered the defendants the right to elect whether they would convey him the farm, or pay him the purchase-money, and such right of election having been distinctly refused by them, it is believed that it thereupon became his right and privilege to make such election. No other construction of the relative rights of the parties would harmonize the award, and give effect to its alternative provisions in this respect.
    Mrs. Dixon was authorized, as a matter of law, to join in the agreement, and is concluded by the submission made in pursuance of it: Darlington’s Appeal, 1 Harris 431; McMahan v. McMahan, 1 Id. 380; Willard v. Willard, 6 P. F. Smith 127.

      Abner Pyle, William M. Hayes and Greorge W. Biddle, for appellees.
    — The assumption on the part of Jacob that any right to elect whether he would take the farm or the $18,000 devolved upon him, is the fundamental error in the plaintiff’s case. Whenever arbitrators award that the party against whom they decide shall perform either one of two acts, the option of choosing which of the two acts that party will perform lies with the party himself. Where an award is made against a party, he has a right, when a suit is brought against him on the award, to plead performance. This plea, if proved, is a complete bar to such an action. Now, an award against the party in the alternative, gives him a right to plead performance of either alternative, in bar of such action on 'the award. Jacob has brought suit on the award, and if the defendants were to plead “ performance ” to the bill and set up that they had conveyed the farm, such a plea would be good under its very terms. But such a plea could not, of course, be good if Jacob had a right to elect that he should have $18,000 instead.
    Mrs. Dixon, being a feme covert at the time she affixed her signature and seal to the submission, the award was not binding. This submission involves the title to real estate, and the only way a married woman can convey real estate in Pennsylvania is under the Act of 1770, which provides that her husband shall join with her, and her separate acknowledgment be taken in the prescribed form, neither of which requisites were here performed. By the general rule of the common law, the sole submission of a feme covert is void: Morse on Arbitration and Awards 27.
    There was no evidence before the court below to show that Mrs. Darlington was incompetent to execute the conveyance of the 8th of November 1841. Whatever the law may be in other states, in Pennsylvania Mrs. Darlington had a perfect right, if she chose to do so and understood what she was doing, to transfer her property in the manner mentioned, to her husband. All the authorities in this state show that where the requirements of the Act of 1770 are complied with, a prima facie title in the grantee is shown. It is true that in many cases this court has expressed its opinion that great importance is not to be attached to the examination of the wife in pursuance of the Act of Assembly, but it is always where the prima facie presumption of the acknowledgment is overthrown by rebutting testimony. The only evidence that the plaintiffs attempt to adduce is of duress and undue influence. This evidence, as stated by the master, wholly fails to prove these allegations. The master before whom it was adduced so finds. The only other competent evidence to avoid the deed would be of legal incapacity to make the contract. But Mrs. Darlington was married in September 1841. No change whatever in her mental condition is alleged to have taken place between September 1841 and November 1841, two months later. If, therefore, she was competent to enter into the contract of marriage, she was certainly competent to enter into the much less important one, of conveying property to her husband.
    May 6th 1878.
   Mr. Justice Trunkey

delivered the opinion of the court,

An act or contract, though not originating in any evil design or contrivance to injure another, yet tending to deceive and mislead, or violate private confidence, is a constructive fraud, equally reprehensible with actual fraud, and prohibited by law. Constructive fraud often exists where the parties to the contract have a special confidential or fiduciary relation, Avhich affords the poAver and means to one to take undue advantage of, or exercise undue influence over the other. Wherever, from such relation, considerable authority or influence necessarily exists on the one side, and a corresponding reliance and confidence is placed on the other, a party will not be suffered to abuse this authority or influence by extracting any advantage to himself. A transaction betAveen persons so situated is watched with extreme jealousy and solicitude, and if there be found the slightest trace of undue influence or unfair advantage, redress Avill be given to the injured party. Owing to the near connection between the parties, in many relations, the transaction in itself is considered so suspicious as to cast the burden of proof upon the person Avho seeks to support it, to shoAv that he has taken no advantage of his influence or knoAvledge, and that the arrangement is fair and conscientious. Eor instance, the relation betAveen attorney and client gives rise to great confidence and to very strong influences by the attorney over the actions, rights and interests of his client. Tho attorney is presumed to have the power to gain by the necessities, good-nature, liberality and credulity of his client, and to obtain undue advantages, bargains and gratuities. Hence the law often interposes to declare transactions between them void, which, between other persons, would be unobjectionable. This doctrine is said to rest upon the importance of preventing a general public mischief, which may be brought about by means, secret and inaccessible to judicial scrutiny, from the dangerous influences arising from the confidential relation of the parties. The principle, that while the relation of client and attorney subsists in its full vigor, the latter shall derive no benefit to himself from the contracts, or bounty, or other negotiations of the former, supersedes the necessity of any inquiry into the particular means, extent and exertion of influence in a given case, a task often difficult and ill-supported by evidence, which can be drawn from any satisfactory sources. On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client; and, on the other hand, it is not necessarily void throughout, ipso facto. But the burden of establishing its perfect fairness, adequacy and equity is thrown upon the attorney. If no such proof is established, courts of equity treat tire case as one of constructive fraud. In dealings between principal and agent, or guardian'and ward, or trustee and cestui que trust, the same principles prevail, with a larger and more comprehensive efficiency; and the burden of proof is upon the agent, the guardian, or the trustee, who claims a benefit arising from the transaction, to show the utmost good faith on his part, that he took no advantage of his influence or knowledge, and that he brought everything to the knowledge of the •other party which he himself knew.

The foregoing principles are too familiar for citation of text-book or report. It is equally unnecessary to show by authority that the most dominant influence of all relations is that of the husband over his wife. From the proud and untutored savage to the cultured and refined Anglo-American, the wife is affectionately anxious to please her husband. This is first in her heart, whether she be in the menial service of a rude hut, or in daily toil for support of her family, or in charge of an elegant mansion. When he commands, she obeys; when he persuades, she yields; when he gently hints a wish, she grants. When treated almost as a servant — when governed and corrected as a child, as did our sturdy ancestors — or when confided in as a companion and equal, her will is subdued to her lord. True, there are exceptional women, whose nature is unaffected by marriage, who cannot yield or bend, and, as wives, would not be happy, save with effeminate husbands; but these are not so numerous as to cloud perception of the mental and moral differences of the sexes. The common-law rights and disabilities, consequent on marriage, grew out of these differences, and the husband’s power and influence distinctly appear. “.By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything; and is, therefore, called in our law-french a feme covert, foemina viro eo-operta; is said to be covert-baron, or under the protection and influence of her husband] her baron, or lord; and her condition during her marriage is called her coverture.” One of the reasons for suspension of her legal existence is said to be “ for her own security in guarding her against her husband’s influence over her by disabling her from disposing of her own property.” The disability to dispose of her own property, of course, related to her land, which she or her heir could hold and enjoy after the end of the husband’s estate therein. By marriage, he became entitled to all his wife’s personalty and the use of her lands. Under advancing culture and civilization, modern legislation has materially changed the common law respecting the rights and disabilities incident to the marriage relation. In Pennsylvania, the wife may hold and enjoy her own property, and easy modes are provided for her disposal of it. But the unity of person remains, resting on a foundation older than the common law, and the husband’s influence over his wife, so strongly expressed by the common-law writers, ■ will end only with the marriage relation itself. The unfeeling greed, that, in a less refined age, transferred alj the wife’s personal property and the use of her real estate to her husband, is not entirely extinct. Many a husband, in all sincerity, believes the common-law rule better than the statute, for the former accords with his avarice. Such an one, as well as one who cares not for right, is inclined to get control of his wife’s property; and to that end, if she does not readily and quickly yield, will subject her to like importunities as sent Martha Darlington weeping and asking advice; yet, in a little time, against the advice, compelled her to make a deed, acknowledged in due form, vesting her estate in her husband. Surely, if anywhere, the rule that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence, and that the arrangement is fair and conscientious, should be applied in a case where the wife conveyed her property to her husband.

In Weeks v. Haas, 3 W. & S. 520, Gibson, C. J., said, in speaking of husband and wife: “Her dependence on him is more entire than the dependence incident to any other of the domestic relations; and the law relaxes its grasp on no means within its power to prevent him from misusing it. When it is her purpose to give him her land, the accomplishment of it by means of a conveyance to a convenient friend cannot be prevented, yet the step is so obviously the consequence of the husband’s avarice, that it is seldom to be commended.” When it is truly her purpose to give him her land it ought not to be prevented. But in determining if that ivas her purpose, when the step is obviously the consequence of her husband’s avarice, will a rule of proof be adopted less favorable to her than to a client who dealt with his attorney, or to a principal who dealt with his agent ? Ought not the r,ule to be more strictly adhered to as the relation is closer and more confidential? or as the one party is stronger and the other weaker ?

The same great judge said, in Watson v. Mercer, 6 S. & R. 49: “ The subordinate and dependent condition of the wife, opens to the husband such an unbounded field to practice on her natural timidity, or to abuse a confidence, never sparingly reposed in return for even occasional and insidious kindness, that there is nothing, however unreasonable or unjust, to which he cannot procure her consent. The policy of the law should be, as far as possible, to narrow, rather than to widen the field of this controlling influence. * * * Where the conveyance is to a trustee, for the purpose of an immediate -reconveyance to the husband, what honest mind would feel regret, that in the hurry of accomplishment, some circumstance, merely formal, was omitted, by which the wife and her family were rescued from his rapacity ? The very circumstances of a reconveyance ought to be satisfactory evidence of fraud by undue influence; and although I do not know that a chancellor would set aside the wife’s deed on the same ground on which he interferes to defeat an advantage gained by a parent or guardian, while their influence over the child or ward is supposed to continue, still it ought to induce a court to lay hold of the slightest extrinsic circumstance to effect the same purpose.” This dictum, uttered half a century ago in an ejectment, where the parties stood in like relation as in the pending case, and where the deed was held void for defective certificate of the wife’s acknowledgment, shows that the judicial mind, observing the fruits of the act of 1770, was aroused to the importance of applying the rules relative to persons holding confidential relations, to transactions between husband and wife. So long as their common-law rights and disabilities were unaffected by statute, there could hardly have been occasion for application of those rules to them; but when statutes secure to married women their property, with right of its enjoyment and disposal, occasions arise when they need and ought to have the full benefit of rules established for the protection of persons, whose relations to others give the latter the power and means of exerting an undue influence over, the former. The conveyance of a wife’s estate for her husband’s use will be held void, unless it affirmatively appears, from the attending circumstances, or otherwise, that it was her voluntary act and not induced by his undue influence.

Coming to'the facts of this case: In 1841, Joshua Darlington, aged forty-four years, a widower with five children, married Martha T. Haines, aged thirty-six years. Her father died in 1811, leaving no widow and no other child. From him she inherited the lands described in the bill, except a small lot she purchased before her marriage. She had considerable personalty when married, and her husband lost no time in reducing it into his possession, making it absolutely his own. In about two months after their marriage, by procurement of the husband, deeds were prepared, one of which he and his wife executed, for a nominal consideration, conveying all her land to John H. Brinton, reserving to her a life estate; and, immediately, Brinton conveyed the same land to Joshua Darlington. These deeds he kept secret from her friends till 1868. He sold a lot in 1863 for $1000, which he received, and at that time took counsel to enable him and his wife to convey, without revealing the deeds executed in 1841. It is probable as a fact, as well as a legal presumption, that she knew the contents of the deed to Brinton. No act was done or omitted to vitiate the acknowledgment. It seems she was not too imbecile to make a contract, but was dull of hearing, defective in speech, of infirm health, and mentally weak. Her husband rarely permitted her to make purchases, which act is excused by his having absorbed all her personal estate; and, from the day of his marriage, doing nothing but practising economy so as to live on the income of the property derived from his wife. The master says that there is no evidence that he exerted undue influence over his wife to induce her to convey the land. The master thinks that in going to her neighbors, crying, complaining that her husband had got all her money and wanted her to give him the land, and asking advice, and saying she would never give it to him, “only proves that the subject was fully considered by her, and that she had opportunity of consulting with her friends, that she solicited their advice, and that she had resolved at that time not to yield to her husband.” Without specially noting the inferences of the master, it is enough that there is no affirmative evidence that it was the purpose of that woman, free from her husband’s undue influence, to give him the land, nor that his conduct was fair and conscionable. On the contrary, a weak-minded woman, having no near relations, soon after her marriage, is brought into the presence of her husband’s attorney, and of his convenient friend, and of a magistrate; was there a very short time, but long enough to reluctantly convey the legal title of her land to her husband, and there is not a word in support of its fairness but the magistrate’s certificate. What is that certificate worth, under the circumstances ? As evidence, it has just the value of a declaration made in presence of her husband’s friend, and also of his attorney, at the time of the execution of the deed. That deed, acknowledged in due form by the wife, is as open to avoidance for actual or constructive fraud of her husband, as would be the deed of a client, duly acknowledged, for like cause done by his attorney. This is too plain for question.

Here there are no innocent purchasers. The plaintiff is the heir of Martha T. Darlington. The defendants stand in the shoes of their ancestor. They have the bare legal title, but the equitable title is in the plaintiff.

The plaintiff claims the award is valid; and all the defendants, except Samuel Dixon and wife, say, though believing it defective, they have determined to abide by it. Hence, as between them, the award will be treated as valid. The arbitrators say, the farm “ equitably belongs to the said Jacob H. Darlington, and they did award the same to him, or $18,000 of the estate of said Joshua, in lieu thereof.” The court was right in holding that the plaintiff was entitled to the farm, unless the defendants elected to pay the money.

Samuel Dixon and Hannah J., his wife, are parties to the bill. They repudiate the award, as is their right. They objected to inquiry into such matters of dispute, as were left unsettled, by reason of the invalidity of the award as to her. The master took the testimony and the parties were fully heard upon the merits. The learned judge was of opinion that the case as presented by the bill is on the award alone. In this we think .there was error. The bill is not so artistic and complete as is desirable, yet has substance by which to amend; and, if need be, amendment would be allowed here. The learned counsel for defendants waived that formality, if the court were of opinion the bill has substance as against Dixon and wife. The second paragraph, after describing the lands, adds: “ which two tracts of land the said Martha was induced by the persuasions and influence of her husband to convey to him.” And the fourth- avers: “ That the said Martha was of weak mind, easily influenced, unacquainted with the forms of business, had little intercourse with society, and little knowledge of her rights of property, and during her whole life infirm in health.” In case of refusal to decree a specific performance of the award, there is a prayer.for decree that the defendants, including Dixon and wife, convey to the plaintiff the said farm, and pay the said $1000, received by Joshua Darlington for the lot he sold, with interest; and prayer for further relief. The plaintiff is entitled to a decree against all the defendants.

This cause having been argued by counsel, upon consideration the judgment is reversed, and it is adjudged and decreed as follows :—

1. That the defendants, Job Darlington, Franklin Darlington, Hoopes Darlington, Sidney D. Pennock, and Samuel Dixon and Hannah J., his wife, within thirty days after notice of this decree, release and convey unto Jacob IT. Darlington and his heirs, all their title and estate in the tract of land, containing about seventy-eight acres, described in the bill, free from encumbrance created by them or any of them.

2. That the said defendants assign and transfer to said plaintiff their respective claims of and in the estate of Joshua Darlington, deceased, to amount of $1000 and interest thereon, from October 1st 1872, being amount of money received by said Joshua on sale of wood-lot described in the bill, in such manner that the administrators of the estate of said Joshua may pay said $1000 and interest as if a debt owing to said plaintiff, and so that sum, with interest, shall be first paid to said plaintiff before distribution of the estate to the heirs.

. 3. That the said plaintiff retain for his own use, and shall in no manner be required to account for or pay for any moneys, securities or other things given or handed to him by said Joshua in his lifetime, as respects the said Job, Franklin, Hoopes and Sidney D., and, as against them, the plaintiff’s right and title thereto shall be absolute.

4. That said plaintiff, within thirty days after notice of this decree, assign and transfer all his legal and equitable title and interest of and in the four-fifths part of the other real and personal estate of said Joshua Darlington, deceased, to said Job, Franklin, Hoopes and Sidney D., and their heirs.

5. That said Job, Franklin, Hoopes and Sidney D., within thirty days, pay to the plaintiff four-fifths of one-half the rent of said farm for the year ending April 1st 1873, with interest from that date; and, if the parties do not agree upon the amount, a master be appointed to ascertain the same.

6. That the costs of this action, including costs of appeal, be paid by the defendants.

7. That the record be remitted for the execution of this decree.


text:
    Brown’s Appeal.
    A son being about to leave his father’s house to learn a trade, the father verbally agreed if he would remain at home and work on the farm until he was twenty-one years of age, he would give him §1000. The son remained, and when reached his majority, another verbal agreement was made, whereby he was to continue at home and work on the farm for the wages usually paid in the neighborhood. He remained for seven years, and when leaving, the father promised to give him §500 for his services during these years. Three years thereafter, the father finding he was insolvent, confessed a judgment to the son for $1500, upon which execution issued, and the father’s personal property was sold. Subsequent execution-creditors claimed the fund, on the ground that the son’s judgment was a fraud upon them and void. 1-feld, that the consideration for such a preference was valid and the debt justly due, and the judgment given therefor was valid, and not a fraud upon creditors.
    March 29th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkby, JJ.
    Appeal from the Court of Common Pleas of Chester county: Of July Term 1877. No. 102.
    Appeal of Samuel P. Brown from the decree of the court, confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the personal property of John Brown. It appeared that the appellant, when sixteen years of age, and living with his father on a farm, commenced negotiations with a party for the purpose of learning a trade. His father, being unwilling that he should leave home, verbally agreed to give him $1000, if he would remain at home and work upon the farm until he reached his majority. This offer ivas made in the presence of the father’s brother, and was accepted. When appellant reached the age of twenty-one years, another verbal agreement was entered into with his father, under the terms of which the appellant was to receive the usual wages paid in the neighborhood, if he would continue to work on the farm. He remained for seven years, and when he left his father promised to give him $500 for the work of those years. Three years thereafter, the father discovering he was insolvent, at the request of the son, gave him his judgment-note for $1500, payable on demand, which was entered upon the same day, and an execution issued thereon. The personal property of the father was sold, and realized $772.90. Before the auditor this fund was claimed by the appellant and three junior execution-creditors. The auditor, inter alia, reported:
    “Now what is the evidence in this case, touching the two claims, that it is alleged went to make up the $1500 judgment of Samuel P. Brown? We will consider each claim separately. First, as to the $1000 claim. Samuel P. Brown testified that in the spring of 1861, when sixteen years of age, he contemplated learning a trade, but that his father desired him to remain at home, and work for him until he was twenty-one: offering, if he would do so, to give him $1000. This offer he accepted, and remained with his father for the time specified. The testimony of John Brown was to the same effect, he saying that ‘ the first debt to my son Samuel arose from a promise to give him $1000 in place of learning a trade.’ As to the $500 claim, Samuel testified that after coming of age, he remained with his father until he was twenty-eight years old, when he went in the spring of 1873 to work for his uncle, Mendenhall Brown. The $500 was for work done after coming of age, between 1866 and 1873. No contract for wages was alleged, but he says, ‘ it was then (when about leaving home) just agreed upon as being $500.’ The testimony, of John Brown relative to this claim was to the same effect. Samuel further testified, ‘ when I lived with my father, I had a horse and carriage of my own part of the time; the balance of the time I used his, whenever I felt like it. I lived in my father’s family as a son, and was treated in every particular as such. I went and came nights and Sundays as I pleased; not so much as other boys; didn’t run about much through the week; did not keep any account of how much I worked or how much I idled; I took no note or written agreement about either the $1000 or $500. I first suggested the giving of this judgment at home, about two weeks before it was given. There was no interest in judgment, nor had there been any paid on either the $1000 or $500 up to that time.’

      “ Taking then, the testimony of Samuel P. Brown and of his father, John Brown, as entirely true, it, in the opinion of your auditor, shows that the giving of the $1500 judgment was an attempt to perpetrate a legal fraud. The promise to give the son $1000 for work done during his minority, when the father was entitled to the control of his child and the fruits of his labor, was without consideration, and amounted to nothing more than a promise to give his son that amount of money, which he failed to carry out until sixteen years afterwards, when he was in insolvent circumstances, as he admitted, and his son knew, and when any such gift was a legal fraud upon his creditors, and as to them void.
    “ As to the other sum, $500, which went to make up this judgment, there was no contract or agreement for wages either proven or alleged; the son remained at home and continued to work for his father, after he was twenty-one, the same as before; he lived in his father’s family, not as a servant or laborer, but ‘ as a son, and was treated in every particular as such.’ No accounts were kept, no memoranda of settlements made, no notes given, but when about to leave his .father’s house, ‘it was just agreed upon as being $500,’ that his father owed him.
    “ This, therefore, amounted to nothing more than a promise to make the son a gift of $500, which, remaining unexecuted until after the parent had become insolvent, was, as against his creditors, fraudulent and void.”
    The auditor, therefore, disallowed the claim of the appellant, and awarded the fund to the other execution-creditors, and directed that the costs should be paid by appellant. The latter excepted, and the court, Butler, P. J., dismissed the exceptions, and confirmed the report. This appeal was then taken, assigning this decree for error.

      Charles H. Pennypacker, for appellant.
    — Does this relationship of parent and child repel the collection of an honest debt, and imply that the transaction here detailed is a fraud upon-John Brown’s creditors ? The auditor, who is sustained by the court below, treats the $1000 promised to the minor as a mere gift, without consideration, because the father was entitled to his son’s services, and was not bound to pay him. It is very well settled that when a contract is made between a minor and an adult, the adult is bound, though the minor may not be: Titman v. Titman, 14 P. F. Smith 485; Addison on Contracts, § 82; 1 Parsons on Contracts 330.
    The conversation in 1861 between John Brown and his son Samuel was, in effect, an emancipation of Samuel. The relations between them assumed a new phase. A father may emancipate a minor child: Galbraith v. Black, 4 S. & R. 207; McCloskey v. Cyphert, 3 Casey 220; United States v. Mertz, 2 Watts 406. The amount due was fixed upon, settled and determined four years before the judgment was given. Such a liability can be enforced, and is made out by the evidence in this case: Neel’s Adm. v. Neel, 9 P. F. Smith 349.

      William M. Hayes, for appellees.
    — This judgment was confessed by a father to his son when the former was insolvent, and is clearly fraudulent and void as to creditors. The finding of facts by an auditor, which has been approved by the court below, will not be disturbed by this court on appeal, unless for flagrant error.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This is a case of the distribution'of the proceeds of the sheriff’s sale of personal property. The contention is as to the validity of the judgment in favor of the appellant against John Brown. The auditor found it in law fraudulent and void. The court overruled all the exceptions, confirmed the report, and decreed that the fund be paid on subsequent executions. From that decree this appeal was taken.

The fund for distribution is $772.90. The judgment of the appellant is $1500. It was on a judgment-note executed and entered of record on the 13th December 1876. Execution was issued thereon, and put in the hands of the sheriff on the same day. The levy was made on the day following. This execution was first in order of time. The consideration of the judgment was services rendered by the appellant to his father, John Brown. $1000 thereof for services while he was a minor, and $500 for services after he was of full age.

That a father may so manumit his son as to authorize him to contract with an employer, and receive his earnings to his own use, is well established: Galbraith v. Black, 4 S. & R. 207; United States v. Mertz, 2 Watts 406. He may do this, although he be insolvent: Holdship v. Patterson, 7 Id. 547. Although he be legally entitled to the wages of his minor son, he is not bound to claim them for the benefit of his creditors: McCloskey v. Cyphert, 3 Casey 220. In this last case it was said by Mr. Justice Black, “ This emancipation of the son from the father’s control may be as perfect where they both live together under the same roof as if they were separated. The father’s renunciation of all legal right to the son’s labor is not the less absolute because other family ties continue unbroken.” He may so relinquish his right to the services of his minor son that he cannot re-assert that right either against’ the son or other person: Torrens v. Campbell, 24 P. F. Smith 470.

The uncontradicted evidence shows that in the spring of 1861, when the appellant was sixteen years old, he was negotiating with one Harris to learn a trade. His father was unwilling that he should leave home, and proposed, if he would not go, but remain ' with him, until he became of age, that he, the father, would give the appellant $1000. The son assented to this, and remained. This agreement is sworn to by both father and son, and by Mendenhall Brown, a brother- of John’s, who was present at the conversation, and heard the arrangement. Harris testified that in conversation he had that same spring with the father, in relation to the proposed bargain between the son and the witness, the father said he had arranged with his son to stay with him, and that he, the son, was to have $1000. The appellant afterwards made the same statement to the witness. About the same time William McFarlan swears the son informed him of this arrangement, and John D. Dorian swears the father told him the same. The evidence of an agreement to pay for the appellant’s services after he became of age is not so strong, nor need it be, as the father was not then entitled to. his wages. Mendenhall Brown swears that when the bargain was' made in 1861, the father told the appellant that after he became twenty-one, he would pay him what other people paid. The appellant testifies: “The spring I reached twenty-one years of age I had an agreement with my father. He agreed to give me as much as anybody else would give me if I staid on with him. * * * I went to work. * * * The wages in the neighborhood at that time were $225 to $240 per year.” lie continued in the service of his father seven years after he became of age, leaving in 1873. He further testified that when he left in 1873 it was agreed that these services should be $500, and his father agreed to allow him that sum. The father swore that he then thought, and always has since the work was done, that his services were worth more than $500.

No witness contradicts these facts sworn to in behalf of the appellant’s claim. The auditor does not find they are not proved. On the contrary, he says “ he has treated the testimony of Samuel P. and John Brown * * * as true.” He appears to base his conclusion that the judgment is “in law, fraudulent and void,” on other grounds. He rests it mainly on the circumstances under which the judgment-note was given. It is shown that then, John Brown was largely indebted, and far beyond his ability to pay. That he and the appellant expected other executions would be issued against the former, in a few days: and that this judgment was given with the intention of enabling the appellant to issue execution, in advance of those likely to be issue by other creditors. If, however, the consideration was honest and the debt justly due, it was, no fraud on the other creditors to thus prefer the appellant. Except as against a bankrupt law, a debtor may prefer one creditor to another, and such preference -is not fraudulent either in law or in fact: Uhler v. Maulfair, 11 Harris 48; Hart v. Covenhoven, 9 Id. 327; Hopkins v. Beebe, 2 Casey 85. A debtor may even prefer a bona fide creditor, by a confession of judgment, although the claim was not enforceable at law: Keen v. Kleckner, 6 Wright 529. It therefore follows that undue effect was given to the fact that the judgment was confessed with a view of giving the appellant a preference over creditors. In so holding, it is not necessary to impair any of the authorities declaring the eifect that should be given to an auditor’s finding of facts: but we dissent from the legal conclusions deduced from those facts. All the facts found, did not justify the conclusion that the judgment was “ in law, fraudulent and void.”

The auditor has not found at what time, the debt due to any of the appellees, originated. A careful examination of the evidence fails to show, that in 1861, or 1866, or 1873, when John Brown made these several contracts with the appellant, that he was indebted to any other person who could bé injured thereby. As then no just cause is shown for postponing the claim of the appellant, all reason for imposing the costs of the audit on him is removed.

Decree reversed at the costs of the appellees; and it is now ordered, adjudged and decreed that the costs of the audit be paid out of the fund, and the residue thereof, to wit, $678.90, be paid to the appellant on fi. fa. No. 57, January Term 1877.


author: Mr. Justice Paxson

text:
    Klaer versus Ridgway.
    The rule that a deed or grant must be construed most strongly against the grantor, applies with especial force to a reservation or restriction in a deed, whereby there is a withholding of something from the grant.
    April 1st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court .of Common Pleas of Pike county: Of July Term 1877, No. 122.
    Case by Jacob Klaer against Warren K. and George K. Ridgway, to recover damages for the diversion of water from a run, to the injury of the grist-mill of plaintiff. ■ At the trial it appeared that, in 1866, John C. Mott was the owner of a tract of land at Milford, in Pike county, lying along the Sawkill creek, on which, was erected a grist-mill and saw-mill, which were supplied with power by a small dam across the Sawkill on his land, which turned the water into a dug-race along the bank, from which a flume at the lower end carried water to the grist-mill, and farther up a flume led to the saw-mill. From the grist-mill flume water was taken to a spoke-factory.
    On September 22d 1866, Mott, being the owner of the grist-mill and saw-mill, conveyed to Jacob Klaer a piece of this land, which he had. before leased to him for a spoke-factory, and on April 1st 1868, being still owner of all the rest of the property, conveyed to the plaintiff the grist-mill and five acres of land. The material portion of both these deeds, will be found set forth in the opinion of this court.
    After the death of Mott, the defendants purchased of his executors the saw-mill, and also erected a dam above the one mentioned on the same tract, and when there was not sufficient water to run the grist-mill to its full capacity would draw off the water to their saw-mill and diminish the speed of the grist-mill and injure the grinding .and business, at other times stopping the grist-mill entirely, and would close their dam and let down the water at their own pleasure. This greatly injured the plaintiff’s business, and he brought this action to recover damages.
    In addition to the foregoing evidence, it was proposed, on the part of the defence, to ask one of the defendants whether at the time of the building of the reservoir dam, the plaintiff -was not there frequently looking on, and did not make suggestions, as to how it ought to be built, and whether he made any objections thereto ; and further, to ask one of defendants, if after the completion of the same, he made a proposition to plaintiff, that he, plaintiff, should have the right to draw the water whenever he was in particular need of it for present work, and that when defendants had urgent work on hand and plaintiff had not, the defendants should draw -the water and 'have the preference.
    The evidence, under both of these offers, the court, under objection, admitted and sealed exceptions.
    A.mong the points presented by the plaintiff were the following, subjoined to which are the answers of the court.
    1. That under the deed of John C. Mott to plaintiff of April 1st 1868, for the grist-mill property, he had a right to use for any purpose (except a saw-mill) as much water from the grist-mill flume as was required by the grist-mill to run it to its highest capacity at that time.
    Ans. “Refused.”
    2. That he might take the water from the grist-mill flume at any point, and might use it at the spoke-mill, or lor running any other machinery (except a saw-mill) that suited his business or convenience.
    Ans. “ Refused.”
    3. That under the deed of September 22d 1866, from John C. Mott to Jacob Klaer for the spoke-mill, Klaer had the right to use six-horse power of water from the grist-mill flume at any time, when there was sufficient for the grist-mill, without regard to the sawmill.
    Ans. “ Refused. ’ ’
    4. That when plaintiff became the owner of the grist-mill and spoke-mill, he became entitled to use from the grist-mill flume, six-horse power of water more than was sufficient to run the grist-mill to its full capacity on the 1st of April 1868, and he might apply it all at the spoke-mill, or all at the grist-mill, or he might divide the water to suit his convenience and business.
    Ans. “Refused.”
    7. That plaintiff had a right to change the flume to the dug-race to suit himself, provided he did not draw from the dug-race more water than he was entitled to under his two deeds.
    Ans. “Refused.”
    8. That if the jury believe from the evidence that defendants had drawn water from the dug-race, and had thereby impeded and affected the running of the grist-mill, when plaintiff was not drawing from his flume more water than he was entitled to for any purpose, then plaintiff is entitled to recover.
    Ans. “ Plaintiff’s eighth point is affirmed, with the qualification that plaintiff must not have been drawing more water than he was entitled to for his grist-mill.”
    In portions of the general charge, the court, Waller, P. J., said,
    “ [The restriction in this,deed limited the spolce-mill to the use of water which would not interfere’ with, or prevent the running of the grist-mill and the saw-mill, and to a non-user of the water when necessary to the running of the other mills.]
    “ [These deeds did not and do not confer upon Jacob Klaer and his assigns the unrestricted right to run his spoke-mill to the exclusion of the saw-mill. As we understand these deeds, the plaintiff had the first right to the water for his grist-mill, of the capacity and power as then constructed.’ The saw-mill had the next right to water to run it, and the spoke-mill had the right to use of the. surplus water. If plaintiff had not work for his grist-mill, he had not the right to appropriate the water to his spoke-mill to the exclusion of the saw-mill. He was limited, as we have said, to the reasonable use of water for that grist-mill, so long as he ran it.”]
    The verdict was for. defendants, and after judgment thereon, plaintiff took this writ, and among his assignments of error were the admission of the evidence noted above, the answers to his points, and the portions of the charge in brackets.

      II G. Jessup and G. W. Bull, for plaintiff in error.
    — It is a general rule of construction applicable to grants of water-powers, that when the question arises whether by a grant of sufficient water to propel a particular kind of machinery, the terms employed are used merely to indicate the quantity of water intended to be granted, or to restrict the use of the water to the machinery specified, the former construction is to be favored, when the language of the grant will admit of such construction. The grounds upon which this rule rests are twofold:—

      1. It is more beneficial to the grantee without being more onerous to the grantor, that he should be permitted to apply the water to any machinery he pleases not requiring a greater amount of power than that specified in the grant.
    2. It is supported by public policy. The interests of the community will generally be best promoted by allowing an unrestricted application of the power to such machinery as will be most profitable to the owner: Ashley v. Pease, 18 Pick. 268.
    There is another rule of construction equally well settled. It is that in every grant, it being the act of the grantor, all doubtful expressions are to be taken in a sense most favorable to the grantee: Cromwell v. Selden, 3 N. Y. 256; Angell on Watercourses, 6th ed., § 149 a; Pratt v. Lamson, 2 Allen 281; Tourtellot v. Phelps, 4 Gray 374.

      G. G. Waller and D. M. VanAulcen, for defendants in error.—
    At the time Mott sold the spoke-mill he owned and retained the other two mills, and it would hardly be supposed that he would cripple and render comparatively useless either of them. What was his intention? There can be no room for doubt as to what was intended in the grant of the spoke-mill. Words of restriction could not be more clear and positive. “No use whatever shall be made of said water for any purpose which shall in any manner interfere with the grist-mill or the saw-mill.” It was also limited to a six-horse power; But, says plaintiff’s counsel, “ This is obscure.” The word grist-mill -is used, and then grist-mill and saw-mill. If the parties did not mean to include the saw-mill, why insert it ? It is there, put there by the parties and made a condition of the grant, and cannot be argued away. The grant distinctly limits the quantity of water to be used, but does not limit the kind of machinery. Klaer, by the change in his race, flume and wheel and by increasing the capacity of the spoke-mill, and necessitating a greater supply, creates low water, and then complains. In construing a deed, the court must look into the circumstances under which it was made, as evidencing the intention of the parties: Cox v. Freedley, 9 Casey 124.
    May 6th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

The assignments of error from one to eight inclusive, raise substantially the same question and may be considered together. In each of them the complaint is that the court below erred in its construction of the deeds from John C. Mott to the plaintiff.

At the time of the execution and delivery of the deed of September 22d 1866, Mott was the owner of two mills, a grist-mill and a saw-mill. Prior to that date he had leased to the plaintiff a piece of ground for a spoke-factory. All of these mills were supplied Avith water from the Sawkill creek. On the day above mentioned Mott conveyed to the plaintiff the land previously leased to him for a spoke-factory, with the right “ of using the Avater for the uses and purposes of the property hereby conveyed, equal to six horse-power, Avith the privilege to take the same from the race leading to the grist-mill of said Mott where it is now taken. And in case said race leading to the said grist-mill shall be abandoned, the said party of the second part shall have the right and privilege to take and use said water from the dug-race on the Dingman side of the Sawkill creek, at such point most convenient to the said party of the second part. Provided, hoAvever, that the grant of water as above described shall in no Avay interfere with the grist-mill of the party of the first part; but it is expressly understood that the said gristmill is in all cases to be first supplied, and in case of Ioav water the said grist-mill shall be entitled to the exclusive use of the AYater if necessary to drive said mill; and provided further, that no use Avhatever shall be made of said water by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the sawmill of the said parties of the first part. And it is further understood and agreed, that the said John C. Mott, his heirs, executors and administrators, Avill not erect any building on the adjoining premises or permit the same to be erected, or engage himself in the business of making spokes and hubs, or sell or permit any other person or persons to do so.” Each of the above provisoes has a distinct object. The first is to limit the grant of water so that it shall in no Avay interfere with the supply for the grist-mill. The grist-mill is in all cases “to be first supplied,” and in case of Ioav Avater “shall be entitled to the exclusive use of the water.” The language of this proviso is explicit. It refers to the quantity of water granted, and subordinates the spoke-mill to the grist-mill. The latter must first run, then if there was water enough left, the plaintiff could run his spoke-mill. Having secured this primary object and protected his grist-mill from loss of water necessary to its operation the grantor proceeds to protect both the grist and sawmill from competition by restricting the purpose to which the water is to be applied. Upon this point the language of the second proviso is equally clear and explicit. It says: “No use Ayhatever, shall be made of said Avater by said party of the second part, his heirs, executors or administrators, for any purpose which shall in any manner interfere with the grist-mill or the saw-mill of the said parties of the first part.” This restriction has no reference to the quantity of water to he used by the spoke-mill; it merely limits the purpose to which the water shall be applied. It shall not be used for any purpose which shall in any manner interfere with the grist-mill and saw-mill. That is to say, the plaintiff should not erect a rival grist or saw-mill and use the water to run it. This is the obvious meaning of the second proviso. It does not, and was not intended to protect the saw-mill against the use of the water for the spokc-'mill, but only against its use for a purpose detrimental to the saw-mill.

So much is clear. On the 1st of April 1868 Mott, being still the owner of the grist-mill and saw-mill, conveyed the grist-mill to the plaintiff by a deed containing the following clause : “ Also the right and privilege to the use of the water from the race and dam belonging to said Mott, sufficient to run a grist-mill upon the premises hereby conveyed, of the capacity and power as the mill now constructed; or the said Klaer may use the water to the same extent as now used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill), in lieu, and place of the water now used by said grist-mill; but in no case is said Klaer, his heirs or assigns, to have the right to use any more water than is now necessary for said grist-mill.” Thus the plaintiff became the owner of both the spoke-mill and the grist-mill; Mott continuing to be the owner of the saw-mill. After the death of Mott the defendants purchased the saw-mill from his executors, and they now have whatever water-right was left in Mott after the conveyances above mentioned, and no more. What was that right ? He had first conveyed to plaintiff the right to the extent of six-horse power of the water left after supplying the grist-mill. He then conveyed to him the grist-mill, with the right to use sufficient water to run it as of its then present power, or to “ use the water to the same extent as used by said grist-mill for any other purpose of propelling or running machinery (except for a saw-mill) in lieu and place of the water now used by said grist-mill.” It is a familiar rule that a deed or grant must be construed most strongly against the grantor. This applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant. Here the grantor limits the quantity of water to the amount then required for the grist-mill, 'but restricts the purpose to which it shall be applied only to the exclusion of a sawmill. He excludes such use to protect the saw-mill which he still owned, hut,for any other purpose the plaintiff was at liberty to use the water. It is clear that under the two deeds from- Mott to the plaintiff, the water as between the parties must be applied, first, to the grist-mill; second, to the spoke-mill; and third, to the saw-mill, owned by Mott. The latter would have no right to use the water for the saw-mill until the grist and spoke-mills had been supplied. It is equally plain that under the last deed to plaintiff he would have the right to shut down the grist-mill and run the spoke-mill as against Mott, and his grantees of the saw-mill.

This covers all that is really important in the case. The remaining assignments refer to the admission of evidence, and may be briefly disposed of. It was error to admit the evidence contained in bill of exceptions No. 2, (9th specification). It was irrelevant, and may have misled the jury. It is not material whether the plaintiff objected to the building of the dam. ‘ The defendants had a right to construct a dam upon their own premises. It was only its use that could injure the plaintiff, and it is of its use only that he complains. Equally objectionable was the evidence referred to in the tenth assignment. It proved merely an unaccepted proposition, and had no bearing upon the question whether the defendants had used water which of right belonged to plaintiff’s mill.

All of the assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded.