text:
    Lippincott et al. versus Low.
    1. Whether covenants in an agreement are dependent or independent, is to be determined by the intention of the parties.appearing in the instrument.
    2. If independent they are to be treated as if on separate pieces of paper.
    3. Covenants in the agreement in this case held to be independent.
    March 30th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1871, No. 311.
    Ejectment by James Low against Edward Lippincott for an undivided half of three tracts of land; the writ issued July 9th 1868; the defendant’s interest in the land was afterwards sold at sheriff’s sale, and the purchasers, Henry C. Patterson and William H. Lippincott, were on their application made defendants.
    The plaintiff and Edward Lippincott, on and previously to the loth of June 1866, were partners in the lumbering business, and owned the land in dispute with other lands as tenants in common.
    They entered into the following agreement:—

      “ This agreement of dissolution of partnership, heretofore existing between James S. Low and Edward Lippincott, made this 15th day of June 1866, witnesseth, That the said James S. Low and Edward Lippincott, do hereby agree to divide the property of the firm as follows :—
    “ James S. Low will take the lot of land he now lives on, and the lot purchased, &c. * * * The said Edward Lippincott will take all the hemlock timber, &e., * * * except the chestnut, all of which, on said lots, will be the property of the said James S. Low. The said Low is also entitled to all the hemlock timber growing on 2J acres of land, &c. * * * It is also agreed that the said Low or his assigns shall have the preference over parties in contracting to cut and deliver the timber on the lots above named, &c. * * * The said Edward Lippincott will take all the other real and personal estate belonging to the firm of Low & Lippincott, and all rents, profits and debts due from the firm, except such as are above apportioned to James S. Low, and assumes to pay all the debts due from the firm, and also to pay a note given Jacob Stultz by James S. Low, and also to pay the said James S. Low, his heirs or assigns, the sum of $4000 as follows : $100 at the delivery of these presents, the receipt of which is herewith acknowledged, and $1000 with interest on all sums unpaid on or before the 1st day of April next, and the balance in equal annual payments with interest. If the said Edward Lippincott fails to make the payments as above mentioned, or any of them, it is agreed that the said James Low shall be entitled to claim the interest which he before possessed in the property, and in all improvements made thereon. It is further agreed that the said Lippincott shall remove the timber from the Wesley lot within three years, &c., * * * and from the other two lots within ten years, &c., * * * in consideration of which he agrees to leave all buildings, at the expiration of the term of ten years erected thereon by him, but reserves to himself the right to remove all machinery, and the engine and boilers of the mill, and he also agrees not to locate his mill so as to deprive the said Low of the use of the water-power afforded by the West Branch of Murray’s Run.” * * *
    The first payment of $100 was made June 15th 1866, and $234 were paid by E. Lippincott, May 17th 1867, for interest on the agreement.
    The plaintiff gave in evidence the foregoing facts, except the sheriff’s sale to Patterson and W. H. Lippincott, which was given in evidence by the defendants.
    The plaintiff’s point was :—
    The plaintiff is entitled to recover the land described in the writ to be released upon the payment of the balance of the unpaid purchase-money at such time as may be fixed by the jury.
    The defendants’ points were:—

      1. The plaintiff having brought this action for the specific performance of the agreement of dissolution, cannot recover, because he has not included in his writ all the real estate and timber rights agreed by said contract to be conveyed to Edward Lippincott.
    2. The verdict in this case should be upon condition that defendants pay to plaintiff the $4000 and the interest thereon, and also that he tender to plaintiff, or file in the court for their use, a conveyance of the real estate agreed to be conveyed by the said Edward Lippincott to the plaintiff, and that plaintiff shall execute to Edward Lippincott, or those entitled to his rights, a conveyance of all the lands and timber rights agreed to be conveyed to said Lippincott by said Low.
    3. The conditional verdict should be so framed as to cover the entire agreement, and provide for the performance of all the covenants therein contained by the respective parties, and should not omit to provide for the performance of any of the covenants on the part of either of the parties.
    4. Plaintiff having brought this action for the specific performance of the said agreement, the verdict must cover the entire contract, and he cannot go for a performance of part of the covenants in the agreement and exclude other covenants in the same agreement.
    5. The agreement given in evidence is an entire contract, and specific performance canpot be decreed as to only part of the covenants therein contained, nor can a verdict be rendered which would amount to a decree of partial performance only.
    The court (Gamble, P. J.) charged:— * * * “We instruct you that the plaintiff is entitled to a conditional verdict for the lands described in his writ, to be released upon the payment of the balance of the purchase-money due upon the agreement of June 15th 1866, within such time as you may deem reasonable. The plaintiff, in the mean time, to execute and file a deed of conveyance to Henry C. Patterson and William H. Lippincott, to be delivered to them upon the payment of the amount of the verdict and negatived all the points of the defendant.
    The verdict was, “ The jury find the undivided half interest in the lands described in the writ for the plaintiff to be released by the said plaintiff, and deed of conveyance made to the said Patterson and Lippincott, defendants, upon their payment to the plaintiff of the sum of $4661, with interest, in ninety days from this date, the said sum being the whole amount of purchase-money owing and due upon the lands described in the writ.”
    Judgment having been entered on the verdict, the defendants took out a writ of error, and assigned for error the denial of their points and the portion of the charge given above.

      May 8th 1871,

      S. Linn (with whom were S. S. Cummin and W. IT. Armstrong), for plaintiffs in error,
    cited Peebles v. Reading, 8 S. & R. 484.

      R. P. Allen (with whom was H. 0. Parsons), for defendant in error,
    cited Dougan v. Blocher, 12 Harris 28.

   The opinion of the court was delivered,

by

Sharswood, J.

Whether covenants in an agreement are dependent or independent's a question to be determined by the intention of the parties as it appears on the instrument: Addison on Contracts 865, Ingersoll’s ed. If they are independent, they are to be treated in all respects as though they had been written on separate pieces of paper. Thus, a contract for the purchase and sale of a large plat of ground, consisting of several different lots or tracts, may make the purchase and sale of each tract a separate and distinct contract, though in the same writing. It is like a several bond, executed by several. It will be treated as such both at law and in equity. Among many other cases in our books illustrative of this principle I may refer to Stoddart v. Smith, 5 Binn. 355; Barclay v. Tracy, 5 W. & S. 45; Bredin v. Agnew, 3 Id. 300; Wright v. Smyth, 4 Id. 527.

The articles of agreement between James S. Low and Edward Lippincott contain covenants which are clearly of this character. In the terms of the dissolution of their partnership, they made first a specific division of certain assets of the firm. Low took certain lands — Lippincott certain timber. Then it was agreed that Lippincott should take all the other real and personal estate, and in consideration thereof assumed to pay all the debts of the firm, and to pay Low $4000 in instalments. This last is certainly a distinct agreement, entirely independent of the previous stipulations for the specific division of the property. It stands apart and by itself. What is added, however, makes this still more plain. “ If the said Edward Lippincott fails to make the payments as above mentioned, or any of them, it is agreed that the said James Low shall be entitled to claim the interest which he before possessed in the property, and in all improvements made thereon.”

It is evident, therefore, that the learned judge below was perfectly right in refusing to charge as requested by the defendants below, and these refusals constitute all the errors which have been assigned here.

Judgment affirmed.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Bigoney versus Stewart.
    1. Unless the mode of executing rules be defined in them or by an Act of Assembly, it is the duty of the Supreme Court to determine the sufficiency of their execution, and in doing this reliance is generally placed upon the interpretation of the court below.
    2. A notice was, that depositions would be taken between 8 a. m. and 11 p. m. The depositions were closed at 8| p. m., the justice certifying that no one appeared up to that time to cross-examine, “the witnesses and myself retired from the place of examination and did not return that night.” Held, that the court below being of opinion that a reasonable time had been afforded for cross-examination, properly admitted the deposition.
    3. A reasonable time must always be given for cross-examination, or the testimony should be rejected.
    March 30th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Clinton county: No. 333, of January Term 1871.
    This was an action of assumpsit, on a promissory note, brought February 9th 1870, by A. A. Stewart against E. W. Bigoney.
    The single question raised by the assignments of error was the admission of the deposition of J. B. Williams, taken on the part of the plaintiff.
    On the 13th of July 1870, the plaintiff entered an ex parte rule to take depositions on ten days’ notice. He afterwards gave the following notice:—
    “To Jesse Merrill, Esq., attorney for defendant.
    “ Take notice, that in pursuance of a rule of court, of which the above is a copy, the deposition of A. A. Stewart et al., witnesses, to be read in evidence on the trial of said cause, will be taken between the hours of 8 o’clock A. M. and 11 o’clock P. M., on Wednésday, the 3d day of August, a. d. 187 0, at the office of Theo. S. Wilson, in the borough of Clarion, Clarion county, in the state of Pennsylvania, before the said Theo. S. Wilson, Esq., or some other person competent to take the same at the said time and place.”
    On the trial, before Mayer, P. J., the plaintiff offered in evidence the following, viz.:—
    “Depositions of witnesses produced, sworn, or affirmed and examined by me, the 3d day of August, A. D. 1870, at the office of Theo. S. Wilson, at Clarion, between the hours of 8 o’clock A. M. and 11 P. M., by virtue of the annexed rule,” &c. * * *
    “A. A. Stewart sworn, deposeth and saith,” &c. * * *
    “ J. B. Williams sworn, deposeth and saith,” &e. * * *
    “ I hereby certify that the above witnesses were duly qualified and examined at the time and place stated in the above caption, and subscribed their depositions in my presence, and that the ex-animation of said witnesses was closed by me at 8J o’clock P. m. of said day, and up to that time there was no one appeared as attorney for defendant to cross-examine the witnesses, at which time the witnesses and myself retired from the place of examination, and I did not go back that night.
    May 8th 1851,
    “In testimony, &c. “Prank M. Arnold, J. P.”
    The defendant presented the following affidavit:—
    “Personally appeared before me, James B. Knox, who, being first duly sworn according to law, deposeth and saith, that on the third day of August, A. D. 1870, at 9 o’clock p. M., he received a letter from Jesse Merrill, Esq., attorney at law, Lock Haven, Pa., enclosing a copy of a rule to take depositions on the part of the plaintiff, in the borough of Clarion, on the third day of August, a. d. 1870, between the hours of 8 o’clock A. m. and 11 o’clock p. M., with directions to appear and cross-examine for the defendant, immediately on the receipt of the letter and notice by mail. That he went to the office of Theo. S. Wilson, Esq., the place designated in the rule for taking the depositions, who stated to the deponent that he was attorney for the plaintiff in the above-stated case, and that depositions had been taken in the case, on a rule, that evening. Your deponent then notified him that he .appeared for the defendant, and- demanded the privilege of a cross-examination. Mr. Wilson replied that the witnesses had returned to their homes, and it would be impossible for him to produce them for cross-examination at that late hour of the day. The deponent further states that the witnesses were not produced, and therefore no cross-examination was had. ”
    The deposition of J. B. Williams was objected to, because the certificate of the justice before whom testimony was taken, as well as the deposition of Knox, shows that the justice and witnesses closed the examination and left the office two hours and a half before the expiration of rule and notice, during which time defendant’s counsel appeared to cross-examine.
    The objection was overruled, and a bill of exceptions sealed.
    The verdict was for the plaintiff. The defendant took out this writ of error, and assigned for error the admission of the deposition.

      Cr. O. Diese and J. Merrill, for plaintiff in error.

      O. S. McCormick, for defendant in error.
   The opinion of the court was delivered,

by Thompson, C. J.

Unless the mode and manner of executing rules of court be defined in the rules themselves, or by an Act of Assembly, it necessarily becomes the duty of the court to determine the sufficiency of the execution of them. In doing this, “ we rely greatly,” as my brother Agnew said, in Fleming v. Beck, 12 Wright 309, “ upon the interpretation of the court 'below of its own rules.”

The execution of the rule to take depositions in this ease was held by the learned court below, in respect to the objection that the witnesses were not kept for cross-examination until the last moment of time fixed in the rules, rightly decided. The time fixed for taking the testimony was between the hours of 8 o’clock A. M. and 11 o’clock p. M., and the justice, in certifying to the execution of the rule, states that the depositions were closed at half past 8 o’clock P. M., of the day fixed, and no one appearing up to that time to cross-examine, “ the witnesses and myself retired from the place of examination, and I did not go back that night.”

The learned judge exercised his judgment that this afforded ample time to the opposite party to appear and cross-examine, if ■he meant to do so. And certainly it was, on any reasonable calculation. A reasonable time must always be given the opposite party for that purpose. If not, the testimony should be rejected, if the party appeared in such reasonable time and found the depositions closed and the party and his witnesses gone. But this was not the case here. There was therefore no error in admitting the testimony taken on the rule. As to the special exceptions to the reading of certain portions of the depositions of the witnesses, we regard the portions objected to as entirely immaterial to the issue, and we need not further discuss them.

Judgment affirmed.


author: by Sharswood, J.

text:
    Moore versus Cornell.
    1. An assignment of a mortgage-debt carries the mortgage with it.
    2. Whatever will give the money secured by a mortgage will carry the mortgaged premises.
    3. The great object of the Act of 1848 was to secure a married woman’s > property from her husband and his creditors.
    4. The Act of 1848 did not confer upon a married woman any power or capacity which she did not possess before, except to make a will, bind her estate for necessaries and perhaps its repair or improvement.
    5. The assignment of her mortgage without her husband joining, is void.
    6. The assignment of a wife’s mortgage by husband and wife without the acknowledgment required by the Act of 1848, is invalid.
    7. Haines v. Ellis, 12 Harris 253, distinguished.
    March 31st 1871. Before Thompson, C. J., Read and Shars•wood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: Of January Term 1871, No. 354.

      The record in the court below showed a scire facias sur mortgage, issued August 12th 1868, by Amanda E. Cornell, for the use of A. C. Moore, against John Eutermarks, administrator d. b. n. of W. W. Willard, deceased. The verdict, June 1st 1870, was for the plaintiff for $2323.04. On the 30th of September the court ordered that “ a feigned issue be joined to try the right to the judgment recovered in this case, in which issue, A. C. Moore who claims to be the equitable owner thereof by assignment, shall be made plaintiff, and Amanda E. Cornell defendant, the issue to be joined on a wager in the usual form,” &c.
    The facts were these :—
    On the 11th of August 1863, W. W. Willard made a mortgage to Amanda E. Cornell, then the wife of Alonzo Cornell, to secure the payment of $2144. The following assignment was endorsed on the mortgage :—
    “ For value received we hereby assign to A. C. Moore all our right, title and interest in the within mortgage, except two hundred and forty-eight dollars, with interest from 5th of March 1864, which has been assigned to R. Watrus, and is for his use.
    Witness our hands and seals the 19th day of May, A. D. 1864.
    Alonzo Cornell. [l. s.]
    Mrs. A. E. Cornell, [l. s.] ”
    There was no acknowledgment of any kind of this assignment.
    Alonzo Cornell, the husband of the plaintiff in the scire facias, died before the issuing of that writ.
    On the trial of the feigned issue before Gamble, P. J., the plaintiff, Moore, offered the mortgage and assignment in evidence. They were objected to by the defendant, rejected by the court, and a bill of exceptions sealed. The plaintiff offered no other evidence, and the court directed a verdict for the defendant which was rendered accordingly.
    The plaintiff took a writ of error, and assigned the rejection of the evidence and the instructions of the court for error.

      S. Linn (with whom were J. J. Metzger and W. H. Armstrong), for plaintiff in error.
    A married woman may assign, convey and dispose of her separate estate, real and personal, with her husband’s consent and concurrence, according to the forms known to the law before the passage of the Act of 1848; the form prescribed by that act is only required where the. husband seeks to sell or encumber her property: Haines v. Ellis, 12 Harris 253; Black v. Galway, Id. 18. The mortgage is but a chose in action, and an assignment of it does not require a separate acknowledgment by the wife: Craft v. Webster, 4 Rawle 242; Bright on Husband and Wife 78; Fay v. Cheney, 14 Pick. 399; Smith v. Dyer, 16 Mass. 18.

      May 8th 1871,

      H. H. Oummin and H. 0. Parsons, for defendant in error.—
    All the requirements of the Act of February 24th IT 70, must be complied with, or the interest of the wife does not pass, and the instrument is void as to her: Kirk v. Dean, 2 Binney 346; Watson v. Bailey, 1 Id. 470; Evans v. Commonwealth, 4 S. & R. 272; Jourdan v. Jourdan, 9 Id. 273; Sweigart v. Berk, 8 Id. 299. Since the passage of the Act of 1848, the decisions of the court, as to the separate estate of the wife, and its conveyance or encumbrance, have been to construe the Act of 1770 and the Act of 1848 as statutes in pari materia : Glyde v. Keister, 8 Casey 85; Keen v. Coleman, 3 Wright 299; Steinman v. Ewing, 7 Id. 63; Rumfelt v. Clemens, 10 Id. 455; Michener v. Cavender, 2 Id. 335; Louden v. Blythe, 3 Casey 22; Stoops v. Blackford, Id. 213; Phillips v. Bank of Lewistown, 6 Harris 394.
   The opinion of the court was delivered,

by Sharswood, J.

A mortgage, though in form a conveyance of land, in virtue whereof the mortgagee may maintain ejectment, and recover and hold the possession until paid, is nevertheless in substance only a security for a debt. It is but a chose in action,— personal estate. A devise of a man’s personal estate carries with it all his mortgages. A mortgage is discharged by payment, and an assignment of the debt transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it: Wentz v. Dehaven, 1 S. & R. 317; Rickert v. Madeira, 1 Rawle 329; Asay v. Hoover, 5 Barr 35; Craft v. Webster, 4 Rawle 255; Simpson v. Ammons, 1 Binn. 175; Smith v. Shuler, 12 S. & R. 240. Before the Married Woman’s Act of April 11th 1848, Pamph. L. 533, it was well settled that the husband could by an assignment for a valuable consideration, without the consent of his wife, transfer his wife’s choses in action including her mortgages, and thereby bar her right if she survived him. The husband might sell his wife’s chose in action, but could not give it away freed from the incidents of the marriage: Hartman v. Dowdel, 1 Rawle 281; Siter’s Case, 4 Id. 468; Webb’s Appeal, 9 Harris 248. The Act of 1848 took away this power of the husband by enacting that “ every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman,, shall continue to be the property of such woman as fully after her marriage as before, and all such property, of whatever name or kind, which shall accrue to any married woman by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property, and the said property, whether owned by her before marriage or which shall accrue to her afterwards, * * * shall not be sold, conveyed, mortgaged or transferred, or in any manner encumbered by her husband without her written consent first had and obtained, and duly acknowledged before one of the judges of the Courts of Common Pleas of this Commonwealth, that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given and of her own free will.” It will be observed that the language of this act is precise that the property of such married woman “shall be owned, used and enjoyed” — it does not say aliened or transferred. Indeed the great object of the Act of 1848 was to secure the property of a married woman against her husband and his creditors. It did not confer upon her any power or capacity which she did not possess before, except that of making a will, and of binding her estate by a contract for necessaries, or perhaps, though this, for one, I doubt, a contract for the repair or improvement of her real estate. Hence it was held by this court in Stoops v. Blackford, 3 Casey 213, that an assignment of a mortgage by a married woman without her husband joining in the instrument is void. In that case our brother Williams, in the District Court of Allegheny county, in his opinion below said: “ Nor did it (the Act of 1848) authorize the mortgage, transfer or assignment of the wife’s estate by the husband, except in the mode prescribed by the act. The mortgage in this case was not transferred or assigned in accordance with the provision of the statute which requires the wife’s written consent, duly acknowledged before one of the judges of the Common Pleas, to be first obtained.” The judgment in that case was affirmed in this court. It follows necessarily that an assignment by the husband and wife, without the acknowledgment required by the act, is as invalid as an assignment by either alone would be. This provision was aimed not merely at the legal power which the husband before possessed, but at the influence which he could still continue to exercise, and was but the carrying out of the settled policy of our jurisprudence in regard to the deeds and conveyances by married women of their real estate. The case of Haines v. Ellis, 12 Harris 253, holds no other doctrine. It was there decided that a deed executed by husband and wife, and acknowledged as required by the Act of 1770, was a valid conveyance of the wife’s interest. “ The Act of 1848, as now understood,” said Chief Justice Lewis, “ makes no change in the mode of alienation, although it does in the nature of the wife’s estate. A married woman’s estate can only be conveyed or affected either by uniting with her husband in a deed separately acknowledged according to the Act of 1770, or by some act of the husband under ‘a previous written consent of the wife,’ duly acknowledged according to the Act of 1848. The object of the statute last named was to protect her estate from being encumbered or conveyed by her husband, or taken by his creditors against her consent, and not to enable her to sell, encumber or give it away without his consent.” It does not appear in that case how the deed was acknowledged, nor was it material, for it was provided by the 10th and 11th sections of the Act of April 9th 1849, Pamph. L. 526, that all deeds of married women executed and acknowledged according to the provisions of existing laws previous to the Act of 1848, should be deemed sufficiently executed and acknowledged. This act was retrospective as well as prospective. See also the Act of April 18th 1853, § 23, Pamph. R. 573.

Judgment affirmed.


author: by Read, J.

text:
    Hays versus Hinkleman.
    1. An upper landowner has a right to discharge waters which by nature rise in, flow or fall upon his land, upon the lower lands, so long as the natural course of the water or drainage is not diverted.
    2. Ilinkleman’s land was injured by a large body of water flowing from Hays’s land in time of a severe storm. Held, that Hays was responsible if he contributed to the damage by a diversion of the natural flow of the drainage.
    March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Agnew, J., absent. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 352, to January Term 1871.
    This was an action on the case brought, May 9fch 1867, by Adam Hinkleman against William R. Hays, to recover damages for injury to real estate occasioned by the construction of a drain.
    The plaintiff was the owner of a tract of 7 acres of land on which were a house and stable; the land was situated on the declivity of a hill, below and adjoining the land of the defendant. The water which collected upon the land of the defendant passed down on to the land of the plaintiff, tearing a large gully in his field, destroying a valuable spring of water, injuring the foundations of his house, uprooting fruit-trees and damaging hay in his stable. The plaintiff alleged that the water was diverted from its natural course and conducted upon his land by means of a ditch dug by the defendant above on his own land.
    The defendant answered that his land lay so as to discharge its waters in part toward the plaintiff’s land; that whilst he was farming in the usual way, a heavy rain-storm fell washing his field in ditches, one of which taking the course of a furrow leading toward the plaintiff’s land, caused what was alleged to be an artificial ditch, and directed the flood complained of upon the land of the plaintiff across a road whose gutters were insufficient.
    The facts sufficiently appear in the opinion of Judge Read.
    The defendant submitted the following points:—

      1. The defendant’s land being the superior heritage, or located above the plaintiff’s, there was an easement or right on the inferior or lower lands for the discharge of all waters which by nature vise in, flow or fall upon his said land, and the lower must necessarily be subject to all the natural flow of water from the upper one, the inconvenience' arises from its position, and is usually more than compensated by other circumstances.
    2. The owner of the upper or superior heritage has a right to improve and use his lands for agricultural or mineral purposes in the ordinary manner, although the volume of water on the lower is thereby increased.
    3. Unless the jury believe, from the whole evidence in the cause, that the defendant made a tortious or wrongful use of his premises, to the injury of the plaintiff, their verdict must be for the defendant.
    4. If the jury believe that the alleged damage was occasioned, in whole or in part, from waters collected by the ditch at the road from other lands than those of the defendant, their verdict should be for the defendant.
    5. If the jury believe that the damage to the plaintiff, if any, was occasioned by flood, storm or other natural cause (the defendant cultivating his premises in the ordinary manner), no tort can be imputed to him, and the plaintiff cannot recover.
    6. The plaintiff, not having, by law or length of time, obtained a prescriptive right to have the defendant use his natural drainage in any particular manner, the defendant has a right to use the advantages of his position without committing tortious acts to the immediate injury of the plaintiff, and the verdict of the jury should be for the defendant.
    7. If the jury believe the evidence on the part of the defendant, the plaintiff has no cause of action.
    The court answered the 1st, 2d, 3d and 5th points affirmatively, adding as to the 1st, “ so long as the natural flow of the water or drainage is not divertedas to the 2d, “ the improvement or use of his lands in the ordinary manner must be understood to mean a legal manner, consistent with all the natural rights appertaining to his neighbor’s lands;” and as to the 5th, “if the jury believe that the defendant did not contribute to the damage by a diversion of the natural flow of the drainage from the defendant’s field;” and denied the 4th, 6th and 7th points.
    The verdict was for the plaintiff for $180.
    The defendant took a writ of error, and assigned for error.the answers to the points.

      Gf. W. Youngman, for plaintiff in error,
    cited Kauffman v. Griesemer, 2 Casey 407; Martin v. Riddle, Id. 415; Miller v. Laubach, 11 Wright 154.

      May 8th 1871,

      It. P. Allen (with whom was J. J. Metzger), for defendant in error,
    cited Miller v. Laubach, Kauffman v. Griesemer, supra; Lloyd v. Carter, 5 Harris 216; 1 Am. Law Reg. 249.
   The opinion of the court was delivered,

by Read, J.

This case turns almost if not entirely upon a question of fact, which the jury have determined in favor of the plaintiff. The water from the defendant’s land ran over into the plaintiff’s land in a torrent, which tore a deep gulley in plaintiff’s field, destroyed a valuable spring of fresh water near his house, injured the foundations of his house, washed away a quantity of manure from his barn-yard, spoiled his stock of hay in his stable, uprooted two apple trees, besides washing gravel into his barn-yard and over his meadow. It was not denied that the damage done was serious.

There was a basin or winter spring in defendant’s field in which a large quantity of water is collected from the snow and rain, and for some time each spring it flows in a very considerable stream, the natural course of which is into a hollow or ravine, or what is known as Hays’s run, and is carried off through Hays’s land to Lycoming creek. The courses of this drainage are all on Hays’s land, and prior to 1866 all this water was drained in that way alone. In 1865; what is called a ditch by the plaintiff, and a furrow by defendant, was made by the defendant to a point beyond the summits of the intervening ridge at the western side of Hays’s field so as to carry water from the basin to the declivity above the land of the plaintiff, and in 1866, the water took this new channel for the first time, and caused the damage above stated. The finding of the jury has settled that this was a ditch dug by the defendant, which turned the water from its natural course and threw it on the land of the plaintiff.

The charge of the learned judge is not complained of, nor was it reduced to writing, and the errors assigned are to the answers to certain of the defendant’s points.

The addition to the affirmative answer was necessary to the 1st point in view of the actual facts of the case as stated above, and the same is true of the addition to the answer to the 2d point.

The 4th point was properly negatived, as it asked the court to say, If part of the damage was occasioned by other waters collected by the ditch the verdict should be for the defendant, — which would have been a palpable error.

So the answer to the 5th point was properly qualified by adding to the point, If the jury believe that the defendant did not contribute to the damage by diversion of the natural flow of the drainage from the defendant’s field.

Seeing no error,

The judgment is affirmed.


text:
    Willard’s Estate.
    1. A testator gave a bequest to his mother for life, at her death “ to revert to my children and heirsand to his wife real estate for life, at her death “ to revert to my heirs afrlaw share and share alike, to those heirs who shall be living or entitled to be represented in said estate.” After his death a child was born. Held, that such child was not provided for by the will, within the 15th section of Wills Act of April 8th 1833.
    2. A reversionary interest, whether vested or contingent, is not a provision for an after-born child within the statute.
    3. “ As to the residue of my estate, I want one-half secured to the benefit of my wife.” Held, that this passed the personal estate to the wife absolutely and the real estate in fee.
    4. “ The residue” means whatever is not specifically given in whatever part of the will it may be found, unless the whole will shows it was not so intended.
    5. An obscure will construed.
    March 31st 1871. Before Thompson, O. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeals from the decree of the Orphans’ Court of Lycoming county: Of January Term 1871, No. 365, 372. In the estate of W. W. Willard, deceased.
    The decedent died on the 2d of September 1864, having made his will dated the 29th of August preceding, as follows:—
    “ Item First: I will the interest of three thousand dollars to my beloved mother, Clarissa Willard, of Williamsport, Lycoming county, Pennsylvania, during her natural life, to be paid to her in semi-annual payments of ninety dollars, on the first days of July and January in each year after my decease, and at the death of my mother this bequest to revert to my children and heirs.
    “ Item Second: As to the residue of my estate, I want one-half secured to the benefit of my beloved present wife, Catharine Emily Willard, and I also will to my beloved wife the whole of the house and lot in which we now reside, valuing the same at seven thousand dollars, to be hers during her natural lifetime. All the residue of my estate shall be for the benefit of my two little girls, Anna C. Willard and Lizzie P. Willard, for their use and benefit for them and their heirs forever.
    “ At the decease of my beloved wife this bequest of seven thousand dollars to revert to my heirs at law, share and share alike, to those heirs who shall be living, or entitled to be represented in said estate.” * * *
    The testator died leaving the said Catharine E. Willard enceinte, and two children, Anna C. Willard and Lizzie P. Willard, by a former wife. Anna C. died on the 24th of February 1865, unmarried, without issue and intestate. On the 25th of February 1865, the widow, Catharine E. Willard, gave birth to a son, called Waldo Wickham Willard.
    B. C. Wickham was appointed guardian, &e., of Waldo Wickham Willard, and J. W. Maynard was appointed guardian of Lizzie P. Willard.
    The administrator d. b. n. of the testator having settled his account, O. H. Reighard, Esq., was appointed auditor to distribute the balance in his hands.
    On the hearing before the auditor, on behalf of Lizzie P. Willard, evidence was offered to prove the situation of the testator’s family, at the date of the will, the value and kind of his property, what he considered his estate worth, the testator’s knowledge of his wife’s situation, &c., to show what estates he intended should pass by his will., The evidence was heard under objection; but as it was not considered by the auditor or the court, it need not be stated.
    The auditor reported: 1. That no provision had been made in the will for Waldo W. Willard, who was in ventre sa mere at its date and at the testator’s death, and that as to him the testator died intestate: and 2. That Catharine E. Willard, widow of the testator, was entitled to half the residue of the estate absolutely, first deducting therefrom the house and lot valued in the will at $7000.
    The Orphans’ Court confirmed the auditor’s report.
    The widow and the guardian of Lizzie P. Willard appealed to the Supreme Court. Their assignments of error were to the decree of the Orphans’ Court so far as it was against them respectively.

      B. S. Bentley, Jr., and Bentley, for J. W. Maynard, guardian of Lizzie P. Willard, appellant.
    'Where the gift is to children who shall be living at the time of testator’s death, the rule is that a child in ventre sa mere is not to be considered as living at the death of the testator, and, therefore, not included. Yet the rule being adopted on a presumed intention of the testator, the presumption may be rebutted by other parts of the will, aided as it may be by the state of the property, and the situation of the family: Swift v. Duffield, 5 S. & R. 39.
    As to the devise to the widow: It makes no difference in a devise to a feme covert whether she have a trustee or not: Wright v. Brown, 8 Wright 224; Sheets’s Estate, 2 P. F. Smith 266. Where the will is evidently drawn by an unskilful man, the terms used shall receive their popular not their technical meaning: Harper v. Wilson, 2 A. K. Marsh.; Fetrow’s Estate, 8 P. F. Smith 426; Coates’s Appeal, 2 Barr 129; Pennock’s Estate, 8 Harris 268; Horwitz v. Norris, 10 P. F. Smith 261. Evidence may be given to aid the construction : Letchworth’s Appeal, 6 Casey 178; Torbert v. Twining, 1 Yeates 432; Iddings v. Iddings, 7 S. & R. 111; Yundt’s Appeal, 1 Harris 575; Wallize v. Wallize, 5 P. F. Smith 243; Fonnereau v. Poyntz, 1 Brown Ch. R. 480; Evans v. Knorr, 4 Rawle 69.

      May 8th 1871,
    AT. AT. Qummin and AT. 0. Parsons, for Catharine E. Willard, appellant, and B. C. Wickham, guardian of W. W. Willard, appellee.
    “Secured to the benefit of” without restriction, when applied to personal property, creates an absolute estate: Hellman v. Hellman, 4 Rawle 450; Schriver v. Cobeau, 4 Watts 130; Garret v. Rex, 6 Id. 14; Silknitter’s Appeal, 9 Wright 365. The heir cannot be disinherited, except by express devise or necessary implication: Bender v. Dietrick, 7 W. & S. 284.
    The evidence was inadmissible to alter or to explain the will: Redfield on Wills, part 1, pp. 498, 539, 540, 544, 545; Roper on Legacies, vol. 1, pp. 222, 273, 407, 451; Torbert v. Twining, 1 Yeates 432 ; Iddings v. Iddings, 7 S. & R. 111; Yundt’s Appeal, 1 Harris 581; Wallize v. Wallize, 5 P. F. Smith 242.
    Under the Act of 2th of April 1833, sec. 15, Pamph L. 250, Purd. 1018, pi. 18, a child had after the making of the will must be provided for, or the testator dies intestate as to such child: Walker v. Hall, 10 Casey 483; Kenebel v. Scrafton, 2 East 575 ; McKnight v. Read, 1 Wharton 213 ; Hollingsworth’s Appeal, 1 P. F. Smith 518; Edwards’s Appeal, 11 Wright 153; Coates v. Hughes, 3 Binney 498; Fransen’s Will, 2 Casey 203; Walker v. Hall, 10 Casey 483; Silknitter’s Appeal, 9 Wright 366 ; Hellman v. Hellman, 4 Rawle 444; Schriver v. Cobeau, 4 Watts 130; Garret v. Rex, 6 Id. 14; Jauretche v. Proctor, 12 Wright 470; Train v. Fisher, 15 S. & R. 145; Amelia Smith’s Appeal, 11 Harris 11.
   The opinion of the court was delivered,

by

Sharswood, J.

In regard to the admissibility of the parol evidence of Henry F. Snyder, the scrivener who drew the will of William Waldo Willard, as to his understanding of what the testator intended.it would be in the teeth of every precedent, and a virtual repear of the Act of Assembly, which requires all wills to be in writing: Iddings v. Iddings, 7 S. & R. 111; Asay v. Hoover, 5 Barr 21; Kelley v. Kelley, 1 Casey 460; Wallize v. Wallize, 5 P. F. Smith 242; Best v. Hammond, Id. 409; Aspden’s Estate, 2 Wall. Jr. 438.

Three questions arise upon the construction of the will ex visceribus, the answers to which dispose of all the other assignments of error.

The first is, did the testator die intestate as to the interest of his after-born and posthumous son Waldo Wickham Willard ? That depends, under the language of the 15th section of the Act of April 8th 1833, Pamph. L. 251, upon another question, whether the said after-born son was provided for in the will. The testator at the date of his will had two daughters, to whom by name he made an immediate devise and bequest of one-half of the residue of his estate. He had bequeathed to his mother the interest of $3000 for life — after her death to his children and their heirs. He leaves to his wife for life the house and lot on which he resided, valued at $7000; this bequest, at her death, to revert to his heirs at law, share and share alike, to those heirs who shall be living or entitled to be represented in said estate. Had then the testator in these bequests made provision for a child or children who might thereafter be born ?

It is earnestly contended, that as this child would certainly be entitled to his equal share of these reversionary interests, he cannot be said not to be provided for. The statute does not say fully nor equally provided for. It may be true, that if it clearly appears by the terms of the will that an after-born child was within the special intention of the testator, if there was any provision, no matter how inadequate, the words of the statute would be satisfied. Where, however, an immediate provision is made for children by name, who are living at the date of the will, and the interest which the after-born child takes is a reversion and by general words and not by special description as an after-born child, it would be a very strained construction to hold such a child to be provided for. The Act of February 4th 1748-9, 2 Miller’s Laws 22, used the words not named in any such will.” The present words “ not provided for in any such will” were first introduced by the Act of March 23d 1764, Hall & Sellers 309, and have been continued in all subsequent acts. It is probable that the intention of the alteration was twofold: first, that merely naming without providing for after-born children would not be sufficient, as was the case in Walker v. Hall, 10 Casey 488; and, secondly, if the after-born child would take with the other children under general words, without being specially named or described, such devise or bequest would be a provision. Here, however, there was in effect no present provision whatever. For all the purposes of education and support, and that for an indefinite period, this son is left entirely dependent upon his mother, unless, indeed, by a sale of his reversionary interest. In Edwards’s Appeal, 11 Wright 153, where there was a subsequent marriage and birth of a child, and there was devised to the lady who was afterwards married to the testator a life estate with a contingent remainder to her children, it was held that as the devise to the wife was revoked by the marriage, the remainder would fall with it; but Chief Justice Woodward remarked, that if this were not so, “ then the question would arise whether a contingent remainder was such a provision as the 15th section of the Statute of Wills contemplates, and we should probably conclude that it was not; for we believe the legislature meant a present vested interest, and not a future and contingent one.” But how could even a vested reversionary interest be a provision, unless by a present sale of such reversionary interest ? A contingent interest could also be sold. An interest may be vested as in this ease, although the period when it shall fall into possession is uncertain. Such an interest could not be sold for the maintenance and education of the minor, except at an enormous sacrifice. Yet what could an Orphans’ Court do under such circumstances ? Refuse to sell, and throw the child for maintenance and education on the public ; or make a scanty provision for a short period by an immediate sacrifice of all his future estate. We hold, then, that a reversionary interest, whether vested or contingent, is not a provision for an after-born child within the words or spirit of the statute.

The second question which is presented is, whether the widow of the testator, Catharine Emily Willard, took an absolute estate in the personalty and a fee simple in the realty of the half paid of the residue given and bequeathed to her. As to the residue of my estate, I want one-half secured to the benefit of my beloved present wife, Catharine Emily Willard.” As to the personalty, it can hardly be even doubted that these words pass to her the absolute interest, and as to the realty, the word “ estate,” which does not refer to the subject-matter, but to the interest which the testator had in it, would carry the fee according to all the authorities : French v. McIlhenny, 2 Binn. 20 ; Morrison v. Semple, 6 Id. 97; Cassell v. Cooke, 8 S. & R. 289 ; Campbell v. Carson, 12 Id. 56; Foster v. Stewart, 6 Harris 24; Schriver v. Meyer, 7 Id. 87; Wood v. Hills, Id. 513; but independently of that rule of construction, the 9th section of the Act of April 8th 1833, Pamph. L. 250, now provides “ that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.” So far from there being any such contrary intention manifested in this instance, the other provisions of the will only tend to confirm the "conclusion that the testator intended his wife to have the estate real and personal absolutely, and not for life. The devise of the house and lot on which he resided to his wife for life, and the devise over after her death, and the entire absence of any devise over of the residue, seem to put this question beyond the limits of even a reasonable doubt.

Thus far we agree with the conclusions of the learned court below upon the construction of this will, but after a very attentive consideration of the argument presented in the auditor’s report and by the able counsel in their printed argument, we have not been able to concur in the judgment upon the third question, which is, whether the house and lot specifically devised to the widow for her lifetime, is to be considered as a part of and in-eluded in the previous bequest to her of one-half of the residue of the estate. There is, it must be confessed, considerable difficulty in ascertaining what the testator did mean, and it is highly probable that his real intention has been obscured by the arrangement of the will, which may have been the work of the scrivener. Certainly the natural construction of the words, “ and I also will to my beloved present wife the whole of the house and lot in which we now reside,” is, that this gift was in addition to what had been before given. But the difficulty is to explain and reconcile with this construction the fact that this gift is made to her at a valuation, and that not the house and lot but this valuation in money is given over as if it had been a pecuniary legacy upon the decease of the wife. The learned auditor argues that the whole estate of the testator is converted into personalty; that at the death of the wife the house and lot are to be sold, and $7000 of the proceeds are devised over, and that the residue must be the wife’s. At least this is my understanding of the argument. It may have been really the intention of the testator, but I cannot see that he has used language to express it. It appears to me that this is all an ingenious conjecture for the purpose of reconciling and explaining what appears to be an incongruous declaration. Suppose, on the sale of the house and lot, upon the death of the wife, it does not fetch $7000, is it to be made up from the wife’s moiety of the residuary estate ? The argument, to be consistent, requires it. Obscurity often arises in the construction of a will from the improper collocation of its different members or parts. “ The residue” of a man’s estate, in testamentary language, means whatever is not specifically devised or bequeathed, and in whatever part of a will it may happen to be found it ought to have that meaning, unless the whole will taken together shows clearly that it was not so intended. A will bequeathing the residue of personalty passes everything not otherwise effectually disposed of: Bouvier’s Diet., Residue. If a man were to begin his will with a bequest or devise of all his residuary estate, and then proceed to make various bequests and devises, it would not vary the proper construction of either. Now let us put this will in the natural and proper order of the items. First, I give $3000 to my mother for life — on her death to my children. Second, I give to my wife for life my house and lot, valued at $7000; upon her death this bequest of $7000 to my heirs at law. Lastly, as to the residue of my estate, I give one-half to my wife, and the other half to my daughters. Would any doubt remain as to its proper construction in this the natural order of its parts ? Besides, is it not clear, as has been already shown, that the gift of the half of the residue to the wife was in fee or absolutely ? There is nothing in the will to contradict this idea. But if the house and lot is to be regarded as a part of the moiety of the residue given to the wife, a very considerable part of the residue is not devised to her absolutely. The natural construction of the words as well as that which would result from the natural arrangement of the several gifts and bequests, gives her the absolute interest in the moiety of the entire residue, after deducting thereout the house and lot devised to her for life. There is nothing unusual or unreasonable in this. The testator meant that his widow should continue to reside in his dwelling-house, and that she should have the means to enable her to do so. It may be that the valuation was an act of mere caprice, or that he intended on the death of his wife the full value of the house and lot should fall into the residue, to be divided between his wife and daughters, subject to a bequest of $7000 to his heirs at law. It is unnecessary to decide any question in advance of its actually arising. Sufficient unto the day is the evil thereof. We hold, then, that the devise of the house and lot to Catharine E. Willard for life is in addition to and not a part of the half of the residue of the estate given and bequeathed to her in fee.

This litigation has grown out of the obscurity of the will, and has been rendered necessary by it. It is proper, therefore, th'at the costs of all the parties should be borne by the estate.

Decree reversed and record remitted, that the proper decree may be entered in the court below conformably to this opinion; the costs of all parties below and in this court to be paid out of the estate.


text:
    Melvin’s Case.
    1. In a petition for contesting an election, alleging that it was not held at the places appointed by law, &c., it is not material that it does not allege that the irregularities were committed for the purpose of advancing the election of the respondent and defeating the complainant.
    2. If material.it is an informality which may be amended.
    3. Setting out the facts and averring that the election was undue and that the respondent was illegally and wrongfully elected and the contestant duly elected, is sufficient to give the court jurisdiction.
    4. Holding the election at the place fixed by law is essential to its validity.
    5. It seems that on the destruction of the designated building on the eve of an election, it might be held on the same or contiguous ground.
    6. In such case the necessity must be absolute, not merely convenient.
    7. Necessitas non liabet legem.

    8. A committee of the legislature deciding a contested election, acts in a judicial character.
    9. If an election be held at a place not fixed by law, the returns should be stricken out by the return judges.
    10. A whole election district may be stricken out on showing an entire disregard of conformity to the law in holding it, either by design or ignorance.
    11. Where an election was not opened till 2 o’clock p. at., the law requiring it to be opened between 6 and 7 o’clock a. ar., the return should be rejected.

      March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Williams, J.,' at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of McKean county: No. 419, of January Term 1871.
    In the matter of the contested election of Charles C. Melvin as treasurer of the county of McKean.
    On the 20th of December 1870, twenty-seven qualified electors of the county of McKean presented a petition to the Court of Quarter Sessions; setting forth:—
    “That the officers of the general election held for the said county on the 11th day of October last, returned that at said election Charles C. Melvin received 804 votes for the office of treasurer of said county, and John R. Chadwick received 762 votes for the said office of treasurer. The petitioners complain that the said election was undue and illegal, and that the said John R. Chadwick was duly elected treasurer of said county, and not the said Charles C. Melvin; and they set forth the following facts on which their complaint is founded, by which it will appear that the said John R. Chadwick was elected treasurer aforesaid: * * * That in the election district of Wetmore the said election was not held at the house of William Toby, the place fixed by law, &c., and also the place designated in the sheriff’s proclamation, but was in fact held at a place about three miles distant therefrom, to wit, at the schoolhouse at Wetmore station. And therefore your petitioners aver that the election in said district was illegal and void, and that the votes in said district ought not to be counted, whereas the same were returned by the board of election to the return judges as 47 votes for Charles C. Melvin, and 4 votes for John R. Chadwick, for the said office of treasurer, and by the said judges included and counted in the general result, whereby the said Charles C. Melvin was illegally and wrongfully returned, and certified as elected to the office aforesaid, when in fact the said John R. Chadwick was duly and legally elected to the said office. * * * That the place of holding the general elections, in the district of Bradford is fixed by law at .the school-house in Littleville, and that the sheriff in his proclamation designated the school-house in Little-ton as the place for holding the election. Whereas the election * * * was held at a place more than half a mile distant therefrom, to wit, at a school-house on the opposite side of the Tunangwant creek to the place known as the village of Littleton;” averring as in the former specifications ; and that there were “ counted by the return judges 183 votes for the said Charles C. Melvin, and 114 votes for the said John R. Chadwick, &c. * * * That the place for holding elections .in the district of Hamlin is fixed by law at the Aldrich school-house, and was so designated by the sheriff in his proclamation, whereas the said election * * * was held at a place more than half a mile distant therefrom, to wit, in a vacant house owned by the estate of the late Abel Stanton, deceased;” * * * averring illegality, &c., as in the former specifications, and that there were counted for Melvin 20 votes, and 4 votes for Chadwick, “ materially affecting the result of said election.” “ That at the said election, &c., in the district of Corydon, the board of election failed and neglected to open the polls between the hours of 6 and 7 o’clock, A. M., as by law they are required to do, but * * * did not open the said polls until after the hour of 2 o’clock, p. M., of said day. * * * And further, that at the said election, in the district of Liberty, the returns made by the inspectors and judge of election to the prothonotary of the Court of Common Pleas, were not enclosed in a sealed cover and directed to the said prothonotary as required by law, but were returned in a loose, negligent, fraudulent and illegal manner. Your petitioners therefore aver that by reason of such undue, fraudulent and illegal manner of conducting the said election in said districts of Corydon and Liberty, the votes of said districts ought not to be counted, whereas the officers of the said election did * * * count the same as 196 votes for Melvin, and 65 votes for Chadwick,” &c. The petitioners averred for the reasons specified, “ the vote in the said districts ought to be rejected and not counted, which would give the said Charles C. Melvin 358 votes, and the said John R. Chadwick 575 votes, for the said office of treasurer.”
    On the 3d of January 1871, the respondent moved to quash the petition for the following reasons:—
    1. The petition does not allege that the matters complained of were committed for the purpose of obtaining or procuring the election of the said Charles C. Melvin to the office of county treasurer, or defeating the said John R. Chadwick contrary to law.
    2. The petition does not allege that illegal votes were polled and counted for the said Melvin, or that legal votes were polled for, and not counted for the said Chadwick sufficient to change the result of said election, or that the said Charles C. Melvin did not receive a majority of the legal votes for county treasurer polled at said election,
    3. The 4fch specification in said complaint alleging irregularities in holding the election in Corydon township, and making return thereof, and the alleged irregularities in making the returns from Liberty township are too general, vague, uncertain and defective in this, that it blends together the votes of the said two districts, thereby preventing the respondent in case of answer, from answering said specifications from the statements therein made.
    4. That if all the allegations in said petition are proven to be true, the same are insufficient to change the result of said election.
    5. The petitioners do not pray for any relief, decree or order in the premises, or for any time or place of hearing.
    March 2d 1871. The court quashed the petition.

      May 8th 1871,
    The petitioners took this certiorari, and assigned the quashing the petition for error.

      B. Brown, for certiorari,
    cited the Acts of Assembly fixing the places for holding the elections in the district complained of and the general election laws: Juker v. Commonwealth, 8 Harris 493. Contested Election of John C. McGhee to Legislature: House Journal of 1856, 204; Contested Election Cases in Philadelphia in 1867, 1 Brews. 162; Skerrett’s Case, 2 Pars. 509.

      J. B. Qlarh, contra.
    The record of a contested election can only be reviewed upon certiorari, — not the merits: Chase v. Miller, 5 Wright 412; Ewing v. Filley, 7 Id. 384; Contested Election Cases, 2 Brews. 90. He cited also, on other points, Mann v. Cassidy, 1 Id. 26 ; Skerrett’s Case, 2 Pars. 509; Contested Election of 1867, 1 Brews. 173; Stevenson v. Lawrance, Id. 132, and cases there cited; People v. Cook, 4 Selden (N. Y.) 89; Thompson v. Ewing, 1 Brews. 111; Boileau’s Case, 2 Pars. 505. Philadelphia Contested Election Cases, 2 Brews. 110; Weaver v. Given, 1 Id. 140; Carpenter’s Case, 2 Pars. 541; Ewing v. Filley, 7 Wright 384; Kneass’s Case, 2 Pars. 561.
   The opinion of the court was delivered,

by Thompson, C. J.

We think the court below committed a clear error in quashing the complaint of the requisite number of citizens of McKean county, complaining of an undue election of the respondent as county treasurer at the general election of 1870. It sets forth what is claimed as material violations of the election laws in three districts or townships, giving sufficient majorities to elect respondent over the contestant by an aggregate of 32 votes in the county. The complaint is for holding the elections in these three districts at different places from those established by law and designated in the sheriff’s proclamation, to wit, in Wetmore township, the place of holding the annual elections, as fixed by law, was at the house of William Toby in said township; whereas it is alleged it was held at the school-house at Wetmore station, three miles distant, without authority of law, and at which were cast, returned and counted for Charles C. Melvin, respondent, 47 votes, and for the contestant, John R. Chadwick, 4 votes. In Bradford township, the place fixed by law for holding the election and designated by the sheriff’s proclamation, was the school-house in the village of Littleville; whereas the election was not held there, but at a school-house more than half a mile distant, across Tunangwant creek, at which place there were cast, returned and counted 183 votes for the respondent, and 114 votes for the contestant. In Hamlin township the election it is alleged was not held at the Aldrich school-house, the place fixed by law and the sheriff’s proclamation, but at a vacant house more than half a mile distant, at which were cast, returned and counted for the respondent 20 votes, and for the contestant 4 votes.

The complainants allege that these township returns were illegal, and should not have been counted in the return of the election for treasurer, and which, if not, would leave the aggregate vote of the county, if not otherwise changed by uncounted votes, if any, in favor of the respondent, or by deductions from the contestant, to stand 358 votes in favor of the former, and 575 for the contestant, giving the latter a majority of 271 in the county.

The learned court quashed the petition on motion, because it was not alleged in it that these irregularities were committed for the purpose of advancing the election of the respondent and defeating the complainant. This was not material, we think, or necessary; had it been, the petition might have been amended; it was merely formal. The complaint is of an undue election, and that the respondent was illegally and wrongfully elected, and the contestant duly elected and entitled to the return; this was sufficient to give jurisdiction. Another reason for quashing the petition was that it did not allege that illegal votes were given at these districts enough to change the result of the election. A third was, insufficiency of the complaint in specifying the irregularities complained of in Corydon and Liberty townships. A fourth was, that if all the allegations in the petition were true they are insufficient to change the result of the election; and lastly, that no decree or order has been prayed for in the petition, or time or place fixed for a hearing.

The second and fourth reasons for quashing the appeal seem entirely to ignore, as of no consequence, a compliance with the law fixing the places for holding the election in these districts by acts of the legislature and court, to wit, by the Act of 5th of March 1841, in Bradford township, at the school-house in Little-ville; by the Act of 4th of February 1859, at the Aldrich schoolhouse, and in the township of Wetmore by the Court of Quarter Sessions of McKean county, at the house of William Toby. The complaint shows that the election for 1870 was not held at either of the above-mentioned places,, but at other and entirely different places, neither fixed by law nor by the action of the court.

The places for holding the general elections in this Commonwealth have always been fixed either directly by the legislature or by the courts under authority given by the legislature, or by a vote of the people under the Act of 20th of April 1854. Hundreds of acts in our statute books fully attest this legislative supervision of the appointment of places for holding general elections, and it is extended to all possible contingencies which may occur; for instance, where a particular building is designated as the place for bolding the elections in a township or district, and is destroyed, changed or altered, so as to be unsuited for the purpose, another place must be assigned by the proper court, subject to the action of the electors under the Act of 1854: see Act of 17th April 1866. Even in case of the existence of a contagious disease’s rendering a change necessary, the place for holding the election must in that case be designated by the governor, and notice thereof given by the sheriff at least seven days before the day of the election: see 9.4th section of the Act 2d July 1839.

Can it therefore be maintained, in view of these provisions of law, that the places fixed for holding elections are merely directory, and may be disregarded by the election officers without any other effect on the poll than that which takes place in all regularly defined districts? We assuredly think not. What is the meaning of the requirement in the Act of 1839, of the notice to be given by the sheriff by proclamation of the time and place of holding the general elections, if not to notify voters where they are to assemble for the purpose of voting? This duty is mandatory upon the sheriff. A fixed place, it seems to me, is as absolutely a requisite according to the election laws as is the time of voting. The holding of elections at the places fixed by law is not directory; it is mandatory and cannot be omitted without error. I will not say that in case of the destruction of a designated building on the eve of an election the election might not be held on the same or contiguous ground as a matter of necessity — neeessitas non hdbet legem. But then the necessity must be absolute; discarding all mere ideas of convenience. It is, however, not necessary to adjudicate authoritatively as to this. To move the place of election three miles from that designated by law, or from a village and across a considerable stream a half a mile or more distant from the village, where it ought to have been held, or from a designated school-house to a vacant house more than a half a mile distant therefrom, without authority or any absolutely controlling circumstances, must render the election therein void, and if the votes taken be counted, constitute an undue election. This was decided by a committee of the House of Representatives of this state, in setting aside an election return from Potter county, which gave the seat to the contesting member, Mr. Beck, against the sitting member, Mr. McGhee. The sole ground was that the election had been held at a place not fixed by law in one of the townships in that county, but at another place: House Journal 1856, page 204. This was not a decision by the House in its political character, as suggested, but by a committee in a judicial character. There were one or more distinguished lawyers upon it. Indeed, the election laws are generally as well understood by laymen in tbe country, as by lawyers, and it is no argument against that decision that laymen were of the committee.

By the 15th section of the Act. of July 1839, the inspectors and judges are required “ to meet at their respective places appointed for holding the election in the district to which they respectively belong, before 9 o’clock in the morning of the second Tuesday of October of each and every year,” &c. Where is there any authority for meeting elsewhere ? I find none. But this was disregarded as to the places fixed in the case in hand, without even an attempt to show an overruling necessity justifying it, if we might concede that that might justify it. It seems to us that if the judges could carry and hold the election in districts half a mile distant from the appointed places, they might carry and hold them throe miles, as they did in one district complained of; and if they might go three miles distant, as they did in one district, they might without altering the principle of action in the least, go ten. It would assuredly inaugurate a fruitful source of fraud, and furnish a most fertile field of litigation. We cannot give our assent to any such practice. In Juker v. Commonwealth, 8 Harris 484, it is said that where the law prescribes a time and place for holding a corporation election the officers may not hold the election at another time and place. Without elaborating this point further, we regard the elections held in the districts named as void, for the reasons suggested, and hold that the returns should have been stricken out by the return judges if the facts be as alleged, and so far they are not disputed.

That a whole election district may be stricken out, on showing an entire disregard of conformity to law in holding it, either by design or ignorance, is now well settled: 8 Harris, supra. In the minority opinion of this court in the cases of the contested elections of 1868 (2 Brews. 108), referred to in the argument of respondents’ counsel for a contrary doctrine from that claimed here misquotes that opinion. It is there said, I maintain that there is nothing which will justify the striking out of an entire division but an inability to decipher the return, or by showing that not a single legal vote was polled, or that no election was legally held per Thompson, C. J. The last we hold is what occurred here, to wit, that no election was legally held in the districts mentioned in the complaint of the petitioners. The doctrine of striking out entire divisions was held by the Common Pleas in that case and in Batturs v. Megary, 1 Brews. 162, in which we are referred to a decision in 1859 by Judge Taylor in Blair county to the same effect. In my opinion, however, this ought never to be done where a legal election as to time and plaee is held, although fraudulent votes shall have been received. The remedy in such a case is to purge the polls by striking out the fraudulent votes if possible.

We need not notice the suggestion that the county treasurer is not within the general election laws requiring time and place to be fixed for the election, as is the case with other offices. This is so obviously erroneous we will not spend time with it.

We think that if the facts be as stated in the petition in regard to Cory don township, viz., that the election was not opened till 2 o’clock P. M. of said day, instead of between 6 and 7 A. M., as required, the return should have been rejected; but I think this complaint is not sufficiently averred, as it is conjoined in its injurious effect to the contestant with Liberty township. It should have been set forth 'separately. If necessary, this being formal, perhaps might be amended by stating the loss of votes occurring to the contestant in each of these districts. Rut it is likely that this will not be necessary if the other complaints in the petition be made out. It seems that amendments are allowable in cases of this kind: Contested Election Cases 1868, 2 Brews. 89; opinion of the majority of this court, per Agnew, Justice.

In conclusion, we think the learned court erred in quashing the petition in this case, and that the order to that effect be reversed; and it is now ordered that the same be reinstated on the record, and that the Court of Quarter Sessions of McKean county do proceed to hear, consider and decide this case in accordance with law and the views herein expressed.

Proceedings reversed and ordered to be remitted.


text:
    Wetmore Township.
    1. The court has not authority to alter the lines reported by commissioners appointed to change the lines of a township.
    2. It is the duty of the commissioners to return with their report a map or plan of the proposed new township and the alterations of the lines of existing townships, unless natural lines dispense with it.
    3. The map is to be filed with the report and becomes part of it and of the record of alteration.
    4. If the court are convinced of errors and improprieties in the report, it has power to recommit it to the same commissioners or set it aside and appoint a new view.
    5. The court cannot assume the duties of the commissioners and lay down new lines.
    6. Green Township, 9 W. & S. 22, adopted; Warwick Township, 6 Harris 372, not recognised.
    March 31st 1871. Before Thompson, C. J., Read and Sharswood, JJ. Williams, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of McKean county: No. 377, to January Term 1871.

      May 8th 1871,
    On the 30th of December 1868 a number of residents of Sergeant and Wetmore townships, in McKean county, petitioned the Court of Quarter Sessions for the annexation of parts of Sergeant and Hamlin townships to the township of Wetmore, and in their petition they set out the lines by which they desired the annexation made. Commissioners were appointed, who reported that they had “ made a plot or draft of the township of Wetmore as at present laid, and of the line of said township as proposed to be altered by the annexation of portions of Sergeant and Hamlin to the same, the line of which said Wetmore township to be as follows, viz.: beginning, &c. (describing the line by numbered warrants); and stated that in their opinion the lines of the three townships should be so altered. On the 23d of December 1869 the court confirmed the report of the commissioners, adopting the line established by them through Sergeant township, but changing the line so as to take in five warrants and five parts of warrants in Hamlin township, whereas the commissioners in their report had included fifteen warrants and the five parts of warrants.
    The citizens opposed to the decree of the court took out a certiorari from the Supreme Court, and assigned the decree thus changing the report of the commissioners for error.

      JR. Brown, for certiorari,
    cited Green Township, 9 W. & S. 22; Act of April 15th 1834, § 14, Pamph. L. 539, pi. 17; Henderson and West Townships, 2 Watts 269; Harrison Township, 5 Barr 447 ; Macungie Township, 14 S. & R. 67; Sewickley Township, 9 Casey 297; Warwick Township, 6 Harris 372.

      W. A. Williams, contrfi.
   The opinion of the court was delivered,

by Thompson, C. J.

The petition in this case prayed for an alteration of the lines of Wetmore township, to include portions of Hamlin and Sergeant townships. When the commissioners reported the lines as prayed for, the court not being satisfied with them, altered, at its own instance, and confirmed them as altered. We think this exceeded the powers of the court under the 13th and 14th sections of the Act of April 15th 1834. Where commissioners are appointed in such cases it is their duty to return with their report a map or plan of the proposed new township, or the alterations of the lines of existing townships unless natural lines dispense with it. The map or draft is to be filed with and becomes part of the report and record of the alteration. The court cannot therefore change this; otherwise there would be a discrepancy between the lines designated on the draft and those confirmed, which would lead to difficulties. If the court are convinced of errors and improprieties in the report, it has power to recommit it to the same commissioners, or set it aside and appoint a new view, but cannot assume the duties of commissioners itself and lay down new lines. This is the doctrine laid down by Kennedy, J., In re Green Township, 9 W. & S. 22. He says: “ Thus in contemplation of law at least, if not in fact, it appears that the court decreed a division of the township without any commissioners having been appointed to inquire into the propriety of its being done as it was done, which we think was contrary to the true meaning of the act.” This was said in a case like the present, where the lines were changed by the court. It is supposed this decision is overruled by the case of Warwick Township, 6 Harris 372, but an intention to do so is not apparent. Whilst this decision is at variance, it is true, in some ¡Tffepects with the case first cited, we regard that case as the true construction of the Act of Assembly in a case where there is a view and draft by commissioners.

For these reasons we think the confirmation of lines altered by the court was error, and the decree of confirmation is to be reversed, leaving the court to confirm or set aside the report of the commissioners as to them may seem just.

Proceedings reversed.