author: Mr. Justice Sharswood

text:
    Cass versus Pittsburg, Virginia and Charleston Railway Co.
    1. A subscription to railroad stock was “on condition that in the judgment of the directors * * * a sufficient amount is subscribed * * * to grade and bridge the road, including right of way; * * * otherwise these subscriptions shall be void.” The directors passed a resolution that in their “judgment * * * sufficient stock had been subscribed,” &e. Held, if the board acted in good faith in passing the resolution, the condition was performed.
    2. Evidence that the actual cost of grading and bridging and right of way was much in excess of the amount subscribed, was not admissible for the defendant in a suit for his subscription. The bona fides of the directors’ judgment was to be tested, not by the event, but by what was before their minds when the resolution was passed.
    3. Evidence was admissible for defendant that the agent of the company who procured his subscription agreed to hold it until he should authorize its delivery to the company, and that a person not a director obtained the paper to look at, and without consent of the agent or defendant delivered it to the company.
    4. As a general rule, delivery of the deed as an escrow cannot be made to the grantee.
    5. When an absolute deed is delivered to the grantee his acceptance is presumed; subsequent acceptance relates to the first delivery.
    6. If by a condition a contractor imposes a burden upon the other party, the latter must expressly or impliedly accept before it is binding on both.
    7. The agent who took the subscription was not incapacitated from making such agreement, and had no authority to accept the condition.
    8. Representations made at the time of taking the subscription were not evidence for defendant.
    9. Gross inadequacy of the subscription to the cost at the time the resolution was passed would be evidence of bad faith.
    10. A party may conclude himself before any controversy has arisen by the judgment of the other party or a stranger upon what at the' time of the contract is uncertain.
    11. When notified that an instalment was payable, the defendant replied, that he was not a stockholder and that therefore the notice was error: Held,, that this was a waiver of notice of calls for instalments, under the 8th sect, of Act of February 19th 1849, and the penalty of one per cent, per month was recoverable for non-payment of instalments.
    October 7th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 251.
    This was an action of assumpsit, brought to the September Term 1872 of the court below, by The Pittsburg, Virginia and Charleston Railway Company, against George W. Cass, to recover the amount of the following subscription, and the penalty of one per cent, per month for non-payment of instalments as called for.
    “We, the undersigned, hereby severally subscribe to the capital stock of the Pittsburg, Virginia and Charleston Railway Company, and promise to pay to the treasurer of said company the several sums set opposite our respective names; Provided, and on condition that in the judgment of the board of directors of said company a sufficient amount is subscribed to the capital stock of said company on or before the 1st day of April 1871, to grade and bridge the'road, including right of way, from South Pittsburg to West Brownsville, otherwise these subscriptions shall be void and of no effect.
    “ Name. ' No. of shares. Amount.
    George W. Cass, 400 $20,000”
    The distance mentioned in the subscription is about 56 miles.
    The plaintiffs were incorporated under the Act of April 8th 1867 (Pamph. L. 1867) and its supplements, subject to the provisions of the General Railroad Law of February 19th 1849 (Pamph. L. 79). The 8th section of the law of 1849 (2 Br. Purd. 1216, pl. 25,) provides:—
    “The capital stock of such company shall be divided into shares of fifty dollars each, and shall be called in and paid at such times and places, and in such proportions and instalments, not, however, exceeding five dollars per share, in any period of thirty days, as the directors shall require, of which public notice shall be given for at least two weeks next preceding the time or times appointed for that purpose, in the manner above mentioned; and if any stockholder shall neglect to pay any such proportion or instalment so called for at the time and place appointed, he, she or they shall be liable to pay in addition to the proportion or instalments so called for, at the rate of one per cent, per month for the delay of such payment.”
    The case was tried, Deoember 18th 1873, before Collier, J.
    The plaintiffs gave the subscription in evidence, and the following preamble and resolutions, passed by the board of directors on the 1st of April 1871:—
    “ Whereas, certain subscriptions to the capital stock of this company have been made on condition that, in the judgment of the board of directors of said company, a sufficient amount is subscribed to the capital stock of said company, on or before the 1st day of April 1871, to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville; therefore be it
    “Resolved, That in the judgment of this board the conditions named are fully complied with; that sufficient stock has been subscribed to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville.”
    They gave evidence also that at the meeting of the directors the question whether there was sufficient stock subscribed to go on, in accordance with the subscription, was discussed and considered, and that the same question had been “talked over” by the directors before the meeting.
    They then gave evidence that calls were made for instalmentsevery month; that ten notices of the calls were sent to the defendant, and that he.had not paid any.

      They then gave in evidence the following letter:—
    “ Pittsburg, June 14th 1871.
    “ J. R. Jacques, Esq., Sec’y Pittsburg, Va. and Charleston Railroad Co.
    “ Sir — I received this morning your notice of the 29th May, (date) of a second instalment (I have received no notice of a first instalment) of $5 per share on 400 shares of the capital stock of the Pittsburg, Va. and Charleston R. R. Co., formerly, now Valley R. R.

      a I am not aware of being a stockholder or having subscribed to the stock of this corporation, and therefore your notice to me is in error. Truly yours, Gr. W. Cass.”
    The defendant gave evidence for the purpose of showing that the cost of doing the work, &c., contemplated in the subscription was, at the time of the passage of the resolution by the directors, far in excess of the amount subscribed.
    ■ He gave evidence also that he had no notice of the meeting of the directors on the 1st of April 1871, and was not present at it.
    He also made the following offers of evidence, all which were objected to by plaintiffs, rejected by the court, and several bills of exception sealed:—
    1. To prove the cost of grading and bridging, including right of way, of that portion of the plaintiffs’ road already completed, to wit: the thirty miles of road between South Pittsburg and Monongahela City, and that the cost thereof was largely in excess of the amount of subscriptions to the capital stock of the company on the 1st of April 1871; and that to provide means to complete the same, the plaintiff executed a mortgage on its road, property and franchises for some $700,000, and negotiated the same.
    2. To prove that the plaintiffs’ road (as located on April 1st 1871), beginning in South Pittsburg, passed through that borough and the adjoining boroughs of Birmingham and East Birmingham, taking much valuable private property therein ; and that the cost of right of way through those three boroughs alone was more than the entire amount which had been subscribed to the capital • stock of the plaintiff company prior to and on April 1st 1871.
    3. To prove by W. W. Martin that he was authorized by the board, of dii'ectors to solicit subscriptions to the capital stock of the plaintiffs under a certain form; that on presenting this form to defendant, he declined to subscribe, except upon condition that his subscription should not become valid unless enough was subscribed to grade and bridge the road and secure the right of way to West Brownsville; that accordingly the form of subscription was then and there altered by witness and defendant so as to set forth such condition ; that before such conditional subscription was reported to or accepted by the company, at the request of defendant, witness agreed to hold back defendant’s subscription until defendant should authorize him to hand it to the company, and afterwards Mr. Scott, not then a member of the board, obtained the defendant’s subscription from witness under pretence of merely wishing to look at it, put it into his pocket, and, without consent of witness or defendant, delivered it to the company ; and that in fact defendant’s subscription never was delivered to the company with his consent.
    4. George W. Cass, the defendant, being on the stand, the defendant’s counsel propose to ask the witness what representations were made to him at the time of his subscription to induce him to make the same.
    The plaintiffs, in rebuttal, gave evidence showing estimates, made before the passage of the resolution, of the cost of the work, &c., on the road, tending to show that it would not be in excess of the amount of stock then subscribed.
    The plaintiffs’ 4th point and answer were:—
    The plaintiffs if entitled to recover are entitled to recover twelve per cent, interest on the amount of the subscription.
    Answer. “This point is affirmed. On June 14th 1871, General Cass wrote a letter, which has been read to you, and in which he acknowledges the receipt of a call for the second instalment of the stock subscription. He says: ‘ I am not aware of being a stockholder * * *.’ After that notice, it was not necessary for the company to make any more calls. The defendant can be held as if he had notice, and as the Supreme Court has decided that this one per cent, a month, under the Act of Assembly, is a statutory interest, put on in the way of penalty, and is legal, you will add that to the amount of the subscription, if you find for the plaintiffs.”
    The defendant’s points and answers are: — ■
    1. By the terms and legal effect of the defendant’s subscription, it was necessary, in order to make it finally binding on him, that there should have been enough subscribed reasonably to justify the board of directors in concluding that therewith the road could be graded and bridged fr.om South Pittsburg to West Brownsville, and all rights of way acquired. That the hasty, inconsiderate and unfounded judgment of the board, even if in good faith, would not be sufficient to bind the defendant.
    Answer. “This point is refused. The defendant left it to the judgment of the board, and .agreed to pay whenever in their judgment enough had been subscribed.”
    2. If the jury believe from the evidence, that on the 1st day of April 1871, the amount of subscription to the capital stock of the plaintiff company was grossly inadequate to pay for the grading and bridging of its road from South Pittsburg to West Brownsville, and, as ordinarily intelligent men, the directors of the company must have known the fact, the passage of the resolution of April 1st 1871 does not bind the defendant.

      Answer. “The question for you to determine is, was the judgment of the hoard an honest judgment, made in good faith? The facts alleged in this point are left to you. with the other facts in the case, to aid you in determining the question of good faith. You must find before the defendant can escape, that the board acted in bad faith; but if the board did not act in bad faith the defendant will have to pay his subscription, in accordance with his promise and bargain.”
    3. If the first point be refused, if the judgment of. the board, though unfounded on facts and grossly incorrect, was to bind the defendant, if formed in good faith, then such judgment was quasi judicial and in the nature of an award, and defendant was entitled to notice and.a hearing before the board had a right to decide finally as to whether the condition on which he subscribed had been performed.
    This point was refused.
    The verdict was for the plaintiffs for $25,300.
    The defendant took a writ of error. He assigned for error:—
    1 — 4. The rejection of his several offers of evidence.
    5-7. The refusal of his points.
    8. Affirming the plaintiffs’ fourth point.

      M. W. Aeheson and H. Burgwin, for plaintiff in error.
    A subscription to railway stock on condition is but an offer and has no validity until accepted by the company: Junction Railway Co. v. Reeve, 15 Ind. 236. If the amount subscribed was grossly inadequate for the cost of the road, it was constructive fraud: Tompkins v. Saltmarsh, 14 S. & R. 279. The directors should not haye acted on the subscription without notice to the defendant: McMahon v. N. Y. & Erie Railroad, 6 Smith (N. Y.) 463; Hollingsworth v. Leiper, 1 Dall. 161. The representations made to defendant when making the subscription were evidence: Powelton Coal Co. v. McShain, 25 P. F. Smith 238; Shugart v. Moore, 28 Id. 469. As to the 12 per cent. penalty, they cited Custar v. Titusville Gas & W. Co., 13 P. F. Smith 381; Gray v. Monon. Nav. Co., 2 W. & S. 162.

      J. Balzell and Cr. Sidras, Jr., for defendants in error.
    The subscription of defendant, although conditional, bound him when accepted and acted on by the company: Custar v. Titusville Gas & W. Co., 13 P. F. Smith 381. To permit the validity of the subscription to be determined by the actual cost afterward ascertained, would be submitting the question to the judgment of the jury, not to-the judgment of the directors, and thus making a new contract without the assent of the parties: Nelson v. Von Bonnhorst, 5 Casey 354. As to the 12 per cent. penalty, they cited Hays v. Pitts. & Steub. Railroad Co., 2 Wright 81.

      May 29th 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

The subscription of the plaintiff in error to the stock of the defendants was upon condition “that in the judgment of the board of directors of said company a sufficient amount is subscribed to the capital stock of said company on or before the 1st day of April 1871, to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville.” The board of directors on the 1st day of April 1871 passed a resolution, “that in the judgment of this board the conditions named are fully complied with; that sufficient stock has been subscribed to grade and bridge the road, including the right of way from South Pittsburg to West Brownsville.”

The contention of the plaintiff in error was that this resolution was not a boná; fide exercise of the judgment of the board, and that question was submitted by the learned judge below to the jury and was passed upon by them.

The first two assignments of error are to offers by the plaintiff to prove that the actual cost of portions of the road and of the right of way was much in excess of the whole amount of subscriptions on or before the 1st of April 1871. We are of opinion that these offers were rightly rejected as irrelevant to the issue. The bona fides of the judgment of the board could not be tested by the event. The plaintiff had agreed to be bound by that judgment, and nothing was properly relevant and admissible which did not bear upon the question it presented to the minds of the directors at the time fixed.. They could not be expected to foreknow the future.

The third assignment of error is to the rejection of an offer to prove in substance, that the agent of the defendants by whom the subscription had been procured, before it was reported to or accepted by the company, at the request of the plaintiff, agreed to hold back the subscription until he should authorize him to hand it to the company, and that afterwards a third person, not a member of the board, obtained possession of the paper, under pretence of merely wishing to look at it, put it into his pocket, and without consent of the agent or defendant, delivered it to the company. We think this evidence ought to have been received. It is true as a general rule that delivery of a bond or deed as an escrow cannot be made to the obligee or grantee. That principle, however, does not apply in this case. When a delivery of an absolute deed is made to the party, his acceptance is presumed primá facie, because it is for his benefit. Then subsequent acceptance relates to the first delivery. So it might have been now, had the subscriptions been absolute. But it is different when the condition imposes a burden upon the other party. He must then expressly or impliedly accept before the contract becomes completely binding on both parties. When such contract is made with an'agent he may well agree to hold it as an escrow. Until both sides agree, if revocable by one it must be so also by the other. Martin, the agent, had no authority to accept the conditions and was not incapacitated from making such an agreement by his relation to the company.

The fourth specification of error, on account of the rejection of the offer of the plaintiff to prove what representations were made to him at the time of his subscriptions, cannot be sustained. It was not offered to show by whom the representations were made, nor what they were, and it is clear, according to Custar v. Titusville Gas and Water Co., 13 P. F. Smith 381, the offer was inadmissible and was therefore rightly rejected.

The plaintiff’s first and second points, the refusal to affirm which forms the subject of the fifth and sixth assignments, requested the court to instruct the jury in effect “that the hasty, inconsiderate and unfounded judgment of the board, even if in good faith, or if in point of fact the subscriptions were greatly inadequate,” would not be binding on the plaintiff. tWe think the learned judge was right in refusing to affirm these points. It was in effect to sub-' stitute the judgment of the jury for that of the board, and that at a different point of time from that named in the contract. Their judgment upon the 23d of December 1873 would probably be very different from what it would have been on the 1st of April 1871. Gross inadequacy at that period would have been evidencé of bad faith, but this was not the instruction requested.

The contention that the judgment was quasi judicial, and that it was necessary that the plaintiff should have notice and an opportunity to appear and be heard, has no foundation. It is but one of many instances to be found in the books, that one party may conclude himself beforehand, and before any controversy has arisen, by the opinion or judgment of the other party or of a stranger, upon what, at the time of the contract, is in uncertainty. Without an express stipulation, he is not entitled to notice or hearing.

The last assignment of error is to the affirmance of the fourth point of the defendants in error, the plaintiffs below, “that the plaintiff is entitled to recover twelve per cent, interest on the amount of the subscription.” The defendants were incorporated under the Act of April 8th 1867, Pamph. L. 897, and its supplements, subject to the provisions of “An Act regulating railroad companies,” approved February 19th 1849, Pamph. L. 79. The eighth section of the Act of 1849, after providing that the capital stock shall be called in and paid at such times and places, and in-such proportions and instalments, not, however, exceeding five dollars per share in any period of thirty days, as the directors shall require, of which two weeks’ public notice shall be given, proceeds to declare that “if any stockholder shall neglect to pay any such proportion or instalment so called for at the time and place appointed, he, she or they shall be liable to pay, in addition to the proportion or instalment so called for, at the rate of one per cent, per month for the delay of such payment.” Upon receiving notice of the call for a second instalment, the plaintiff in error addressed a nóte to the secretary of the company, in which, after denying notice of the first instalment, he says : “I am not aware of being a stockholder, or of having subscribed to the stock of this corporation, and therefore your notice to me is in error.” After this distinct and unequivocal repudiation of his subscription, it was no longer necessary to give him notice of the calls. It was a waiver of all notice, and operated in all respects as if the notices had been regularly given. Admitting the rate of interest to be a penalty, it was a necessary consequence of his waiver, that it was incurred by the non-payment of the calls without notice. We think there was no error in the affirmance of this point.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    West Hickory Mining Association versus Reed.
    1. *Brown contracted with Manross for sale of land and died, leaving a widow and children, having made no provision for the execution of the contract. The Orphans’ Court, on the application of his administrators, with the consent of record of Manross, decreed specific execution, and they conveyed to Manross. Held, that the decree was conclusive under the Act of February 24th 1834, sect. 15, although there was no notice to the widow or heirs.
    2. By contract for sale of land the estate of the decedent is converted into personalty, over which his personal representatives have absolute control.
    3. A widow and heirs are not entitled to specific notice of an application for an order of sale for the payment of debts.
    4. Where the application for specific execution of a contract for sale of land is by the administrators, &c., of a decedent, notice to the widow and heirs is not necessary.
    5. When land is brought into a partnership as stock, it is, as between the partners, their creditors and one who has knowingly dealt with them for it, personalty belonging to the firm.
    6. General references to dockets and entries scattered through a record are not a compliance with the rules relating to specification of errors; the specific items should be embodied in the assignments.
    7. Anshutz’s Appeal, 10 Casey 375; McKee v. McKee, 2 Harris 231; Sutter v. Ling, 1 Casey 466, distinguished.
    October 19th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Paxson and Woodward, JJ. Gordon, J., did not sit on this case, having been interested as counsel.
    Error to the Court of Common Pleas of Venango county, No. 180: Of October and November Term 1874. ■
    This was an action of debt, brought December 4th 1871, by The West Hickory Mining Association against William Reed, to recover the purchase-money of a tract of land under the following agreement:—
    “This agreement between the West Hickory Mining Association, of the first part, and William Reed, witnesseth, That the said Mining Company have agreed to sell to said Reed one hundred acres of west ends of lots one and two of their lands on West Hickory, as laid out, for the sum of eleven thousand dollars : five thousand to be paid by said Reed on the 1st of January 1871, when a good and acceptable deed is to be made to said Reed, by said company, for said one hundred acres, and the balance, six thousand dollars, to be paid on the 1st of May 1871, secured by bond and mortgage. Witness our hands and seals, this 15th day of October 1870.”
    The defence was that the plaintiffs could not convey a marketable title to the land contracted to be sold.
    The land in question, on the 15th of August 1854, was owned by James Hulings. .On that day, Hulings conveyed to R. J. Brown of Yenango county. On the 5th of January 1856, Brown entered into articles of agreement with John Manross, by which, for the consideration of 560,000 feet of lumber, he sold to Manross a tract of land of 500 acres, of which that in question is part, Manross to deliver 50,000 feet on the 1st of September 1857; 30,000 feet on the 1st of January 1857, and the same amount annually thereafter till all should be delivered; Brown agreeing “ that on the last payment being made, he will make over to Manross such titles as he has to said tract of land,” &c.
    It appeared that at this time Brown was in partnership with W. W. Wallace, as Wallace & Brown. On the 28th of August 1856, by an agreement of that date, the partnership was dissolved, and in consideration of $1000, Brown sold and assigned to Wallace all his interest in the firm, &c., including all claims, &c., due the firm. A statement accompanying the agreement contained, amongst others, this item, “Due on Manross place $5000.” The following clause also was in the agreement:—
    “N. B. All the property of the above description in Yenango, Warren, or any other county of the state of Pennsylvania, or elsewhere, is also included in this agreement; all the real estate of every kind also to be delivered up without delay to said Wallace, and the deeds and titles made out in his name.”
    Brown died intestate May 3d 1862, leaving a widow and a number of minor children. Administration of his estate was granted to J. A. Neill and J. B. Stone.
    Manross having paid to Wallace the balance of the purchase-money under his contract with Brown, Wallace, on the 26th of November 1864, conveyed the land to him.
    On the 2d of November 1864, the administrators of Brown presented a petition to the Orphans’ Court of Yenango county, setting out, that on the 5th of January 1856, Brown, by contract in writing, bound himself to convey to Manross 500 acres of land, &c., for the consideration of 560,000 feet of lumber, in annual payments, as set out in the contract, deeds to be delivered to Manross upon his making the last payment; it further set out that Brown, on the 28th of August 1856, sold and assigned to Wallace, all his right, &c., to the lumber, “being the consideration due from Manross to said Brown that Manross had fulfilled his contract with Brown by paying Wallace the full amount of the purchase-money, but that Brown had died seised of the land without having made provision for the performance of the contract. The prayer was fpr “a decree for the specific performance of the contract.”
    Appended to the petition was the following:—
    “And now, December 2d 1874, John Manross, the respondent, by his attorneys, appears and confesses the facts set forth in the foregoing petition, and joins in the prayer of the petitioners.
    Heydrick & Snowden, attorneys for respondent.”
    The record shows the following:—
    “December 2d 1864, citation awarded, returnable to next term.
    By the Court.”
    “ And now, December 2d 1864, the respondent having appeared and confessed the facts set forth in the petition, the court, upon consideration of the bill and answer, do adjudge the same, sufficient proof of the contracts annexed, and order and decree that the contract be specifically performed, and that the administrators' execute and deliver a deed to the purchaser.
    By the Court.”
    On . the 17th of December 1864, the administrators, &c., of Brown, in pursuance of the decree, made a deed to Manross, and on the 6th of January 1865, Manross conveyed to William T. Neill and John Wilson. About January 6th- 1865, Neill and Wilson sold to Alfred Nevin and David Gilbert a large tract of. land, including that in question; and Nevin and Gilbert agreed to convey to the plaintiffs, who went into possession.
    On the 9th of November 1870, Wilson and Neill entered into a written contract with the plaintiffs in this suit. The contract recited the pendency of an ejectment, by Neill and Wilson against Gilbert and others, and the plaintiffs in this suit, to recover possession of 1200 acres of land, “ known as the John Manross farm;” and by it, Neill and Wilson agreed to sell and convey to the plain-: tiffs the land mentioned in the agreement, for $80,000, payable in instalments, the deed to be made on the second payment; the last payment to be made January 10th 1873; the vendors ,to release such lots as the vendees might sell upon the payment of a sum equal to $75 per acre in discharge of the purchase-money; the vendees (plaintiffs here) to assign to the vendors the contract with Reed, the defendant, for the sale of 100 acres of the land, and the vendors to make a deed to Reed for the 100 acres, upon his payment of the purchase-money, as provided in his agreement with plaintiffs.
    On the 30th of January 1870, Neill and'Wilson executed and delivered to the plaintiffs a quit-claim deed for the land.
    The case was tried April 13th 1874, before Trunkey, P. J.
    The.foregoing- facts were given in evidence. The plaintiffs gave evidence also, by R. C. Brodie, their president, of the tender to defendant of a deed of the premises from them to him, and also of a quit-claim deed from Neill and Wilson to defendant; also that the defendant declined to receive them and pay the $5000, and execute a mortgage for the balance of the purchase-money; and conversations between witness and defendant at the time of the tender, as to where he could ascertain the title to the property, &c.; also evidence tending to show that the defendant went into possession of the land about the time of the execution of the contract of sale.
    The plaintiffs then rested.
    The defendant offered in evidence the exemplification of ,an action of ejectment, brought in 1869, by Neill and Wilson against the plaintiffs and others, for lands, including that in controversy, in which there was a conditional verdict for Neill and Wilson, the plaintiffs in the ejectment, on December 26th 1870, for $53,428.
    The offer was objected to, because the title to the land was in the plaintiffs in this suit; the offer was admitted, and a bill of exr ceptions sealed.
    The defendant then offered in evidence the depositions of Joseph B. Stone and Juliet S. Brown, the widow of Robert J. Brown, taken upon commission. The depositions were objected to by the plaintiffs, because the matter proved in reference to the deed of Mrs. Brown was between other parties; and because some of the interrogatories were leading, and objections to them were filed before the testimony was taken.
    The depositions were admitted and a bill of exceptions sealed.
    Mrs. Brown testified that J. A. Neill, one of the administrators of her husband, wrote letters to her brother which were shown to her, in reference to getting from her a quit-claim deed of her interest as widow, in the premises. The object of the letters was to obtain her signature to a quit-claim deed. Neill represented that suit was about to be commenced against the purchaser of the land and it would be necessary to have a clear title, which they could not give without a quit-claim deed from witness, or an. order from the court, which they could obtain, and that they preferred paying her to paying the court; that they had a title which had some informality that could be rectified by the court, but .they preferred a deed_ from witness; that it would take time and would cost $25. Witness did not then know that she had any title in the land, and said at the time if she had she would not like to make the deed ; she supposed the land had been sold by Wallace & Brown, that firm having been dissolved; she made the deed supposing it to be for the benefit of W. T. Neill and J. Wilson; she supposed the court could have made the deed without her sanction, and it would be no interest to her not to do it.
    The testimony of Stone was to the same effect as to the representations of Neill in letters to him.
    For the plaintiffs, in rebuttal, evidence was given for the purpose of showing that there was no fraud practised on Mrs. Brown in procuring her quit-claim deed.
    Alexander Wallace testified that the Manross land, which Brown had a claim upon, was partnership property of Wallace & Brown; they had furnished supplies to Manross and built him a saw-mill; he gave the property as security ; when they were paid it was to go back to Manross; there were no other funds; Brown said the property was bought from Hulings with partnership funds; there were about $5000 against Manross.
    The following are plaintiffs’ points with their answers :—
    1. The title tendered in this case was sufficient, primfi facie, and conveyed such a title to the property sold to the defendant as he was bound to accept.
    Answer. “ The title of the plaintiffs, as shown, is, primfi facie, good. If not marketable, if such as likely to expose the holder to the hazards of litigation, he was not bound to accept it.”
    4. Under all the evidence in this case the plaintiff is entitled to recover.
    “'Answered in' the negative.”
    The defendant’s second point and its answer were:—
    Upon the whole evidence the case is not such as would entitle the plaintiffs to specific performance, and the verdict should be for defendant.
    Answer. “ If you find the facts as called to your attention in the charge, viz.: That the defendant, at and before the interview with Brodie, was notified where he could inquire concerning the title, that at said interview he was not satisfied with the title and took time to examine it, till the 1st of May, that the plaintiffs did nothing in the meantime, and the defendant on the 8th of May 1871, notified the plaintiffs he would not accept the title and take the land, and that he never took possession, then this point is answered in the affirmative, otherwise the plaintiffs are entitled to recover.”
    The court charged :—
    * * * “The plaintiffs have shown that the title was vested in R. J. Brown. Brown died intestate. The administrators of his estate presented a petition to the Orphans’ Court for leave to prove the contract made by the decedent for .the sale of the land to John Manross, and praying a decree of specific performance. Manross appeared at the same time and admitted the facts, and forthwith a decree for specific performance was made. In pursuance of this the administrators executed a deed. This deed is primfi facie good against the heirs of the decedent. In the proceedings in the Orphans’ Court no notice was given to the widow and children. Unless the heirs had no right to be heard they may yet bring an action and show cause why the decree should not have been made. A party entitled to a hearing cannot be deprived of his rights by a proceeding in the Orphans’ Court of which he had no notice. If heirs are not entitled to notice in a proceeding commenced by the administrators for proof of contract, joined in by a real or pretended purchase, then they have no right to a hearing. Then they have no right to a day in court to show that the alleged contract is void for fraud or other cause, or that in equity the purchaser is not entitled to a decree of specific performance. I do not think that the Act of Assembly intends that the decree shall be final against the heirs when made without notice to them. No cause has been cited where it w'as held to be final. The doctrine in some cases, and the intimation of several judges, including some of the Supreme Court, is, that the heirs are entitled to notice. That where a decree has been made without notice to them, though the title is primá facie good, they are not barred from showing cause to defeat it: Sutter’s Heirs v. Ling, 1 Casey 466.
    “The proceedings of the Orphans’ Court lay in the course of the plaintiffs’ title, and on their face show that the heirs of Brown had no notice. In my opinion, a purchaser entitled to an acceptable title is no.t bound to take one where the heirs of a former owner could bring an action and recover against the primfi facie title by showing that it never ought to have been made. If the vendee chose to take a decree without notice to the heirs, accept a title that may be contested by them, it does not follow that the purchaser is bound to accept it. * * *
    “You will .observe that we submit to you nothing in reference to the quit-claim deed by the widow of B.. J. Brown. The evidence upon that is withdrawn from your consideration. In our instructions we predicate nothing of what is urged against the validity of her quit-claim of dower. It may be inferred that this matter has been hunted up since the beginning of this suit, and that it did not enter into the cause for rejecting the title at the time it was done. Then it appeared good. We prefer to dispose of the cause, and submit it without any consideration of the attack upon that deed.” * * *
    The verdict was for the defendant.
    The plaintiffs took a writ of error and assigned for error:—

      1, 2. Admitting the evidence mentioned in the bills of exception.
    3. The portion of the charge of the court above given.
    4, 5. The answers to the plaintiffs’ points.
    6. The answer to the defendant’s point.

      Q-uthrie $ Byles, Neill ¿f- Neill and B. J. Beid, for plaintiffs in error,
    referred to Act of February 1834, Pamph. L. 75, sect. 15, 1 Br. Purd. 276, pl. 10. Where the application for specific performance is by the executor or administrator of the vendor, notice is required only to the purchaser: Sutter v. Ling, 1 Casey 466; Anshutz’s Appeal, 10 Id. 375. Executors and administrators are representatives of the real assets, not of the heirs: Hays v. Shannon, 5 Watts 548; Horner v. Hasbrouck, 5 Wright 169.
    Under the previous Acts of Assembly on this subject, no notice was required to heirs ; the decree to executors or administrators to make the deed was final: Meanor v. McKowan, 4 W. & S. 303; Riddlesberger v. Mentzer, 7 Watts 141; Atkin v. Young, 2 Jones 15. Wherever a chancellor would compel specific performance, the Orphans’ Court is bound under the statute to decree it: McFarson’s Appeal, 1 Jones 508. By a sale, as to the vendor the land is converted into personalty and the purchase-money is therefore assets in the hands of his personal representatives : Thompson v. Adams, 5 P. F. Smith 479. The plaintiffs were not bound in advance to remove any cloud that might by possibility be on their title: Dalzell v. Crawford, 1 Pars. 37; 1 Sugden on Vendors 400; Speakman v. Forepaugh, 8 Wright 363. The transaction between Manross and Brown was a mortgage: Colwell v. Woods, 3 Watts 188; Kerr v. Gilmore, 6 Id. 405; Reitenbaugh v. Ludwick, 7 Casey 131; Harper’s Appeal, 14 P. F. Smith 315. The land was assets of Wallace & Brown: Lacy v. Hall, 1 Wright 360. Land held as partnership property is personalty: Meily v. Wood, 21 P. F. Smith 488; Abbott’s Appeal, 14 Wright 234; Kramer v. Arthurs, 7 Barr 165. Brown’s assignment to Wallace passed a perfect title to Wallace: Kenrick v. Smick, 7 W. & S. 41; Garver v. McNulty, 3 Wright 473; Ogden v. Brown, 9 Casey 247.

      J. M. Breden, and Dodd $ Bee, for defendant in error.
    A decree in the Orphans’ Court for specific performance is void unless there be notice to the heirs: McKee v. McKee, 2 Harris 231; Story’s Eq. Plead., sect. 72, 160, 177; Anshutz’s Appeal, 10 Casey 375; Sutter v. Ling, 1 Id. 466. The burden was on the plaintiffs to exhibit a good title: Negley v. Lindsay, 17 P. F. Smith 217; Hilliard on Vendors 221, 237, 210, 211. A purchaser will not be compelled to take a title which is not marketable: Speakman v. Forepaugh, 8 Wright 363; Swayne v. Lyon, 17 P. F. Smith 436. Although this is a common-law action, it is governed by equitable principles: Fisher v. Worrall, 5 W. & S. 478; Colwell v. Hamilton, 10 Watts 413; Nicol v. Carr, 11 Casey 381.
    May 8th 1876.
   Mr. Justice Woodward

delivered the opinion of the court

The plaintiffs held only an equitable title to the tract of land which was the subject of the agreement between them and the defendant on the 15th day of October 1870, the date of its execution. While a conveyance had been made to the West Hickory Mining Association by Dr. Gilbert and Mr. Nevin, yet the deed to those gentlemen, executed by William T. Neill and John Wilson on the 6th of January 1865, was held in escrow, a balance of purchase-money remaining unpaid. This deed is not on the record, nor in the case, for, though read upon the trial, it was afterwards withdrawn by the plaintiffs. In the interval between the date of. the agreement and the tender of the conveyance by Mr. Brodie to the defendant, on the 3'lst of January 1861, a quit-claim deed dated on the 30th of January 1871, from Neill and Wilson and their wives to the plaintiffs, had been procured. To meet an apprehended objection that the dower interest of the widow of Robert J. Brown was outstanding, a quit-claim deed from her to Neill and Wilson had been obtained on the 1st of November 1870. Under an arrangement with John Manross, Mr. Brown had received a conveyance of a body of lands, including the tract in controversy, and had entered into a written agreement, on the 5th of January 1856, to “make over” to Manross.the title he held to these lands on payment of the consideration stipulated for in the agreement. In December 1864, on the petition of the administrators of Mr. Brown, then deceased, a specific performance of this agreement was decreed by the Orphans’ Court of Yenango county, and on the 17th of that month the administrators executed a deed in pursuance of the decree to Manross, from whom Neill and Wilson derived their title.

The most prominent question on the trial appears to have had relation to the adequacy of the proceedings in the Orphans’ Court to transfer the interest of Mr. Brown in the land. It was objected that notice was not given to his widow and heirs, and that the decree was therefore not final and conclusive against them. This view was adopted by the court. The jury were told that the “ proceedings of the Orphans’ Court lay in the course of the plaintiff’s title. A purchaser entitled to an acceptable title is not bound to take one when the heirs of the former owner could bring an action and recover against the primá facie title by showing that it never ought to have been made.” The 15th section of the Act of the 24th of February 1834, has provided that “whenever any person shall, by a bargain or contract in writing, bind himself to sell and convey any real estate in this Commonwealth, and shall die seised and possessed of such real estate, without having made any sufficient provision for the performance of such bargain or contract, it shall be lawful for the executors or administrators of such decedent, or for the purchaser of such real estate, or other person interested in such contract, to apply by bill or petition to the Orphans’ Court having jurisdiction of the accounts of such executors or administrators, setting forth the facts of the case, and after due notice of such bill or petition to the purchaser, or to the executors or administrators and heirs of the decedent or devisees of such estate, as the case may require, to appear in such court on a day certain and answer such bill or petition; if there be cause, such court shall have power, if the facts of the case be sufficient in equity, and no sufficient cause be shown to the contrary, to decree the specific performance of such contract, according to the true intent and meaning thereof.” When the petition of the administrators of Mr. Brown was presented, the counsel for the respondent endorsed a written appearance confessing the facts set forth in the petition, and joining in the prayer of the petitioners. This was held by the court to be such notice as the circumstances of the case required. It was adequate if the words of the statute are applied in their plain and obvious sense. Three alternative directions are given — one of which is to be pursued as the facts of a particular case shall make it requisite and appropriate. In the first instance, purchasers; in the second, executors or administrators and heirs of a decedent, and in the third, executors or administrators of a decedent and the devisees of the estate are entitled to notice. No accepted principle and no rule of practice is infringed by this construction. By the execution of the contract the estate of the vendor is converted into personal property, and over that, for purposes of collection and administration, the personal representatives have absolute and unlimited control. And this construction is in exact accordance with both the letter and spirit of subsequent legislation. The Act of February 8 th 1848 authorizes the executors or administrators of a deceased tenant in common to execute a deed for lands, sold by contract, in which he joined with his co-tenants in his lifetime, “ where the surviving vendor or vendors desire to perfect the title,” and where the executors or administrators shall be “ satisfied with the performance by the purchaser or purchasers of the stipulations of such contract.” The only condition required for the exercise of the authority thus conferred is, that the executors or administrators, before receiving the purchase-money, shall execute and file in the Orphans’ Court a bond with security, to be approved by a judge of the court, for the faithful application of all moneys that shall be received under the provisions of this act. By the Act of April 9th 1849, an action of ejectment may be maintained by the executors or administrators of any decedent in their own names when the object is to enforce the payment of purchase-money due and owing on a contract for the sale of land. Notice to the heirs is requisite under neither of these statutes. Of the Act of 1849 it was said by the present Chief Justice, in Thompson v. Adams, 5 P. F. Smith 479, that it “ applies only to the executor or administrator of the vendor, and is founded on the principle that, as to the vendor, the land is converted by the sale into personalty, and the purchase-money is, therefore, assets in the hands of the personal representatives. The executor or administrator having a right to sue for and receive the purchase-money, the legislature added the remedy against the land, to make his pursuit more effective.” It has long been thoroughly settled that the widow and heirs of a decedent are not entitled to a specific notice of an application for an order of sale for the payment of debts: Murphy’s Appeal, 8 W. & S. 169; Weaver’s Appeal, 7 Harris 416; Wall’s Appeal, 7 Casey 62; Stiver’s Appeal, 6 P. F. Smith 9. It is apparent from this review that a rule which would interpolate into the Act of 1834 a requirement for notice to heirs of a petition by an executor or administrator for specific performance of a contract for a sale of land, would disturb the symmetry of principle that pervades the legislation by virtue of which estates of decedents are administered. It is not meant that any special mischief would flow from the introduction of such a rule, but to invite the interference of heirs in the settlement of the personal estates of decedents would establish a novel, awkward, and incongruous practice.

While there are enough of dicta in the authorities to inspire some doubt, it is believed that the construction which the language of the statute contains is not inconsistent with any definitive judgment of this court. In McKee v. McKee, 2 Harris 231, the application was on behalf of the purchaser. No citation was issued, and no notice of the petition was given to either the legal or personal representatives of the decedent. A guardian ad litem, was appointed at the time when the application was made. A commission was issued to examine witnesses, of which notice was given to the guardian, and under which the deposition of a single witness was taken. On the return of the commission, and one day after the taking of the deposition, the court made a decree adjudging the proof sufficient, and directed it to be certified. With all this the proceeding was in the Orphans’ Court, which was authorized only to enforce specific performance, while the contract was proved and the decree made under the act regulating proceedings in the common-law courts. A record so made up could only be treated as absolutely void. Anshutz’s Appeal, 10 Casey 375, decided that where both the vendor and vendee of real estate are deceased intestate, upon a proceeding in the Orphans’ Court by the administrator of the vendor to enforce the specific execution of the contract, the administrators and heirs of the vendee, and all persons deriving title under them or interested in the contract must he made parties. In concluding the opinion,. Judge Read said, that “for security the heirs of the vendor must also be notified.” The remark must be regarded as referring to the special duty required by the facts of the special case, for, in discussing the provisions of the Act of 1834, the judge had previously said: “ The application may be by bill or petition by the executors or administrators of the decedent, or by the purchaser or other person interested in the contract. Due notice of such bill or petition is to be given in the, first case to the purchaser, and in the second case to the executors or administrators and heirs of the decedent, as the case may require.”

In Sutter’s Heirs v. Ling, 1 Casey 466, specific performance of a contract had been decreed on the petition of the administrator of the vendor, and a conveyance in pursuance of the decree had been made to the vendee. Ejectment for the land was brought by the vendor’s heirs, who claimed the right to recover on the single ground that they had not been made parties to the proceeding. The court below held, that the application having been made by, the administrator of the intestate, notice was not required to be given to the guardian or heirs, and that the deed to Landis (the vendee) conveyed a good title.” The jury were accordingly instructed to return a verdict for the defendants. In affirming the judgment, Judge Lewis said: “The decree and the deed made in pursuance of it are primé facie evidence for the purchaser, although the heirs of the vendee had no notice of them. The want of notice might entitle the heirs to go into evidence to show that the decree ought not to have been made.' But nothing of the kind was attempted here. The justice of the decree is not in any manner impeached.” It is a fact worthy of observation that the opinion did not refer to the Act of 1834 in even the remotest way. The principles relied on in the discussion of the case were almost exclusively derived from English equity authorities. The argument rested mainly on a doctrine that was stated in these words: “If either party to a contract die before completion, the equitable right to the land on the death of the vendee will pass to his devisee or heir, and the same right to the purchase-money on the death of the vendor will pass to his executors or administrators, for whom the heirs or devisees will be trustees:” 1 Jacobs & Walker, 499; 12 Simons 263; Adams’s Equity 140; 2 Kent 477, n. a; 2 Vernon 212; 1 Jarman on Wills 147; Sugden V. & P. 141.” Surely a passing remark in an opinion in such a case, discussed on such grounds, cannot be seriously treated as an authority upon ■the construction of the Act of 1834.

Upon its face the title which the plaintiffs tendered to the defendants on the 31st of January 1871, was unobjectionable. Adequate provision had been made by the contract of the 9 th of November 1870, for releasing the land sold to the defendants from the lien of the purchase-money unpaid; a conveyance had been obtained from Neill & Wilson, and the plaintiffs held the release of the dower of the widow of Robert J. Brown.

It was alleged at the trial that Mrs. Brown had been induced to execute this release by fraudulent representations made to her by Joseph A. Neill. This was a ground of defence set up against a title having all appearances of regularity. If the fact had been proved to the satisfaction of the jury that the instrument was void on the ground alleged, it would have established such a defect as would defeat the claim of the plaintiff on this branch of the case, undoubtedly. But it was still a question for the jury. The allegation-was made against the written title and the parol evidence was introduced to overthrow it. The issue was presented in a form to make a trial and decision by the jury indispensable.

There are other aspects in which it is necessary that this cause should be considered. While the deed from James Hulings to Robert J. Brown was absolute in its terms, it was alleged by the plaintiffs that it was in reality a mortgage, and was held to secure advances made by Brown to John Manross out of the firm of Wallace & Brown. The contract already referred to, of the 5th of January 1856, contained a stipulation that Brown should transfer to Manross the titles he held under the deeds from Hulings and others on the delivery by Manross of 560,000 feet of lumber. On the 28th of August 1856, the firm of Wallace & Brown was dissolved, and all the interest of Brown in the partnership assets and credits was assigned to Wallace. In the inventory of these assets and credits, the claim against Manross was included. Theitemwas, “Due on Manross place $5000.” The agreement contained this provision: “All the real estate of every kind also to be delivered up without delay to said Wallace, and the deeds and titles made out in his name.” On the 26th of November 1864, a deed to Manross for the lands described in the agreement of the 5th of January, was executed and delivered by Wallace and his wife. In addition to the documentary evidence, Alexander Wallace was called as a witness. He testified as follows: “ I knew the property belonging to Manross that Wallace & Brown had a claim on. It was a partnership property. Wallace & Brown had furnished Manross supplies and built him a saw-mill. He gave the property as security, and when they were paid the property was to go back to Manross. No other funds than those of the firm. Land was bought from Hulings with partnership funds, as I understand from Brown. There was about $5000 against Manross. I understood Brown that as soon as the property was paid for, Manross was to have it back.” Mrs. Brown said in her deposition, I was entirely ignorant at the time (of the execution of the release of dower) that I had any legal title or claim whatever as the widow of Robert J. Brown in the land, supposing that said land had been sold by the firm of Wallace & Brown, and the firm having been dissolved.” The conveyance by Hulings to Brown was made on the 15th of August 1854, and the contract between Brown and Manross was not entered into until between sixteen and seventeen months afterwards, and in order to make the transaction a mortgage, the agreement for defeasance must have been contemporaneous with the execution of the deed. Whenever there is in fact an advance of money to be returned within a specified time on the security of an absolute conveyance, the law converts it into a mortgage, whatever may be the form adopted, or whatever may be the understanding of. the parties Harper’s Appeal, 14 P. F. Smith 315. If the actual contract was legally a mortgage, the assignment by Brown of his interest in the firm assets transferred his claim to this land, and the subsequent conveyance by Wallace to Manross amounted to satisfaction. There was evidence on which the jury might have been justified in finding that Brown took the conveyance from Hulings merely as security for the advances of his firm to Manross.

The question should have been submitted to the jury also, whether, under all the evidénce, the lands which Hulings conveyed to Brown were partnership property. If they were, while the statutory form of transfer would be still required, they became stamped with all the characteristics of the other assets of the firm, as to all purposes of management and control, all incidents of lien, and all qualities of title and estate. It was held in Kramer v. Arthurs, 7 Barr 165, that, when land is brought into a concern as stock, it is, as between partners and a person who has knowingly dealt with one of them for it, to be treated as personal estate belonging not to the partners individually, but to the company collectively. One partner of a firm engaged in distilling, bought a lot adjoining their distillery, with the intention of using it for business purposes, paying for it money of the firm, but taking title in his own name. The lot was not used as intended. Upon distribution of the proceeds of the sale of the lot, it was held that it was partnership property; that the partners were not tenants in common; and that the decree of the court awarding the proceeds to the judgment of an individual creditor of one of the firm was error: Erwin’s Appeal, 3 Wright 535. The same principle was applied in Abbott’s Appeal, 14 Wright 234, and Meily v. Wood, 21 P. F. Smith 488. So far as partners and their creditors are concerned, real estate belonging to the partnership is in equity treated as mere personalty, and governed by the general principles of the latter, and so it will be deemed in equity to all other intents and purposes, if the partners themselves have purposely impressed upon it the character of personalty: Story on Partnership, § 93; If the transaction between Brown and Manross was in substantial effect a mortgage, or if the lands were held hy Wallace & Brown as partnership assets, the question arising upon the release of dower by Mrs. Brown could have nó real significance.

The objection to the admission of the record of the suit brought in Forest county by Neill & Wilson against the Mining Association had no substantial foundation. The evidence was perhaps of no special importance, but the suit was referred to in the agreement of the 9th of November 1870, which the plaintiffs had shown, and that made it technically admissible. The facts disclosed by the depositions of Joseph B. Stone and Mrs. Brown were relevant. Some of the interrogatories may have been objectionable as embodying material facts, as capable of a simple affirmative or negative answer, and as indicating the- answer at the same time. But the error has not been properly assigned. The admission of the depositions was resisted on the trial on account of what was called “ the leading interrogatories and answers thereto,” to which objections had been filed before the testimony was taken. The same words have been used in the specification of the alleged error. General references to documents and entries scattered through a record are not a compliance with the rules. The specific items objected to ought to be embodied in the assignment.

Judgment reversed, and a venire facias de novo awarded.


author: Per. Curiam.

text:
    Westmoreland County versus Fries.
    1. The Act of April 4th 1868 provides, “ All mortgages, judgments, recognisances and moneys owing upon articles of agreement for the sale of real estate * * * shall he exempt from all taxation except for state purposes.” Held, that mortgages, judgments and recognisances, although not given for the sale of real estate, are exempt.
    2. The words, “ for the sale of real estate,” are confined to articles of agreement.
    October — 1875.
    Before Agnew, C. J., Siiarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1874, No. 18.
    This was an amicable action and case stated filed October 4th 1873, between the County of Westmoreland, plaintiff, and Jesse Fries, defendant.
    The facts agreed upon were the following:—
    “ The defendant holds a mortgage against H. H. Null, recorded in the Recorder’s office of said county, and judgments against Joseph, Samuel H., William M., Philip and F. M. Null, entered in the Court of Common Pleas of said county, for money lent, the same not being for purchase-money of real estate. The assessor of the borough of West Newton assessed the same at $13,000, upon which the commissioners of Westmoreland county, on 1st January 1873, assessed the same at the rate of eight mills for county purposes, amounting to $104.
    “ If the court should be of opinion that the plaintiff is entitled to recover, then judgment to be entered for the plaintiff for the sum of one hundred and four dollars; but if not, then judgment to be entered for the defendant.”
    Judgment was entered, November 10th 1873, for the defendant.
    The plaintiff took a writ of error, and assigned for error: entering judgment for the defendant.
    The Act of Assembly under which the question in this case arose, was passed April 4th 1868 (Pamph. L. 61), and applies to Westmoreland county, amongst others. It is stated at large in the opinion of the Supreme Court.

      J. Latta and Johnston Moorhead, for plaintiff in error.

      3. O. J. A. Marchand, for defendant in error.
    November 4th 1875,
   Judgment was entered in the Supreme Court,

Per. Curiam.

The Act in question is entitled “ An Act to promote the improvement of real estate by exempting mortgages and other securities from taxation, except for state purposes, in certain counties of this Commonwealth.” The title makes no reference to the purchase-money of real estate as the intended subject. The enactment is : “ That all mortgages, judgments, recognisances and moneys owing' upon articles of agreement for the sale of real estate, made and executed after the passage of this act, shall be exempt from all taxation except for state purposes ; and that from and after the first day of December next no taxes of any description shall be assessed or collected, except for state purposes, on or from mortgages, judgments, recognisances or moneys owing upon articles of agreement for the sale of real estate, whether made and executed before or after .the passage of this act. Provided, that nothing in this act shall be construed to apply to mortgages, judgments, or articles of agreement given by corporations.” It is very clear that the words “ for the sale of real estate” are confined in their application to agreements for the sale thereof, and do not extend to mortgages, judgments and recognisances. They were introduced to limit the exemption of moneys due upon agreements; otherwise the exemption would extend to agreements of all kinds upon which money might be due, many of which would be purely personal, and have no reference to the improvement of real estate, and thus conflict with the title of the act. Besides, recognisances are never given for the sale of real estate, though often given for owelty in partition and upon judicial decrees. The exemption of mortgages is general because they encumber real estate, and by relieving the land from the tax which the mortgagee may by law add to his interest without usury, the. ability of the mortgagor to( improve his real estate is increased. We think the court committed no error in deciding that the mortgage was free from taxation, except for state purposes.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Manhattan Life Insurance Co. versus McLaughlin.
    1. The object of the 1st sect, of Act of June 16th 1836 (Voluntary Arbitrations), is to furnish a mode for terminating in one submission as many controversies as might exist between the parties.
    _2._The 3d sect, of the act, providing for consent to a rule of court submitting the facts and reserving questions of law to the court, &c., must be in writing.
    3. When the submission under the 3d section is of an action pending, there need be no stipulation that it be made a rule of court; that is implied.
    4. The agreement in writing fixes and defines the powers of the referees.
    5. It was agreed by writing filed that a case pending “be referred to (three referees) without exception or appeal.” The referees made an award for plaintiff and added that the parties had agreed they should certify to .the court their finding of the facts and that the award should be reviewed by the court ; they reported the facts. On exceptions the court, on questions of law arising on the facts, set aside the award and entered judgment for the defendant. Held to be error.
    6. The averment by the referees accompanying their award that a change had been made in the powers committed to them could not be permitted to contradict the writing.
    7. The agreement certified by the arbitrators being without authority, the facts reported by them were not before the court, which had therefore no power of revision, and judgment should have been entered on the award.
    8. McCahan v. Reamy, 9 Casey 535; Rogers v. Playford, 2 Jones 181: Shisler v. Keavy, 25 P. F. Smith 79, followed.
    October — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Cordon and Woodward, JJ.
    Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1875, No. 220.
    This was a capias in case, issued to December Term 1871 of the court below, by the Manhattan Life Insurance Company of New York against John Y. McLaughlin.
    The affidavit of claim by the plaintiffs was that the defendant was indebted to them in the sum of $6838,69, exhibited by a bill of items annexed to the affidavit and arising under the following circumstances : The defendant was appointed agent of the plaintiffs April. 16th 1868, and continued until about April 1st 1871; during which time he collected money for plaintiffs which he was required to report monthly; that he ostensibly so reported, but that he failed to report the amounts .contained in the bill of items, which he received and, with intent to defraud the plaintiffs, converted to his own use. The plaintiffs concluded their affidavit with a prayer that a capias might issue and defendant be held in sufficient bail, &c.
    Upon this affidavit the court held the defendant in $7000 bail, and afterwards, on application, abated the capias and discharged the sureties in the bail-bonds.
    The parties then filed the following agreement:—
    “And now, January 29th 1873, it is hereby agreed that the above case be referred to J. W. Kirker, J. S. Ferguson and J. W. Hall, Esquires, without exception or appeal.”
    The arbitrators met first on the 25th of March 1873, and sat by adjournment on a great number of days.
    Their award, after setting out the various meetings, was as follows :—
    “And now, October 4th 1873, arbitrators met at the time and place appointed, and having fully heard the evidence and allegations of the respective parties, do award in favor of the plaintiffs the sum of $7867.91.
    “ And the said arbitrators do certify to the court, that it was agreed between the respective counsel of said plaintiffs and defendant, that the said arbitrators should certify to the court their findings with reference to the facts attending the authority to said plaintiffs to do business within the state Pennsylvania and the appointment of said defendant as agent of said company, it being understood and agreed by the said parties, through their respective counsel, that upon said findings the award of the arbitrators should be reviewed by the said Court of Common Pleas, with the right to either party to sue out a writ of error to the decision of the court.”
    Then follow findings of fact by the arbitrators as to the matters above stated: amongst others, that the defendant had not been appointed, as required by the Act of April 11th 1868, relating to foreigu insurance companies.
    The defendant filed exceptions to the award, that as the defendant had not been appointed as required by the statute, and the claim being based on the violation of a statute, the plaintiffs could not recover.
    The court (Sterrett, P. J.) set aside the award and directed that judgment be entered for the defendant with costs.
    The plaintiffs took a writ of error; they assigned for error:—
    1. Quashing the capias and releasing the sureties.
    2, 3. Setting aside the award.
    4. Allowing exceptions to be filed, the parties having agreed in their submission that the award should be final without exceptions or appeal.

      F. M. Magee and T. M. Bayne, for plaintiffs in error.
    The reporter received no paper-book from the defendant in error.
    November 22d 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

This record shows an agreement in writing, to refer a pending suit. The first section of the Act of 16th June 1836, Purd. Dig. 77, pl. 2, relating to “Voluntary Arbitrations,” makes it lawful “ for all persons desirous to end by arbitration any controversy, suit or quarrel, except such as respects the title of real estate, to agree in writing that their submission of the same to the award or umpirage of any person or persons shall be made a rule of any court of record of this Commonwealth having jurisdiction which the parties shall choose.” The object of this section was to furnish a mode by which all persons might terminate in one submission as many controversies as might exist between them, excluding only those respecting the title of real estate. The 3d section of the Act of 16th June 1836, Purd. Dig. 78, pl. 4, makes it “lawful for the parties to any suit to consent as aforesaid.” That is, in writing, as required by the first section “ to a rule of court for referring all matters of fact in controversy in such suit to referees as aforesaid, reserving all matters of law arising thereupon for the decision of the court, and the report of such referees, setting forth the facts found by them, shall have the same effect as a special verdict.” When the submission is under this section, of an action pending, it is not necessary to stipulate that it be made a rule of court. If a contrary intent does not appear, consent will be implied: Painter v. Kistler, 9 P. F. Smith 331; Reading Industrial Manufacturing Co. v. Graeff, 14 Id. 395.

The agreement in writing fixes and defines the powers given to the referees. The written agreement, filed of record in this case, contains no stipulation, either expressed or implied, that the referees should find the facts only, and the court declare the law thereon. It was expressly agreed that the case be referred to the. three referees named “without exception or appeal.”

It has been frequently held that the parties to a suit may, by such an agreement, put the award of referees heyond the reach of further inquiry or revision: Rogers et al. v. Playford, 2 Jones 181; McCahan v. Reamy, 9 Casey 535; Shisler v. Keavy, 25 P. F. Smith 79.

Under this agreement in writing, that their award should be' final, the referees were appointed. They reported that after being duly sworn, and after numerous meetings and adjournments, and having fully heard the evidence and allegations of the respective parties, do award in favor of the plaintiff the sum of seven thousand eight hundred and sixty-seven and 91-100th dollars.”

Having thus made their award, they went on to certify substantially, that it was agreed between the respective counsel of the parties, that they should certify to the court their finding of the facts on which they based their award, and that the award should be reviewed by the court, and thereupon they report the facts.

On exceptions filed by the defendant to the sufficiency of the facts thus returned, the court set aside the «whole award and entered judgment in favor of the defendant.

All the assignments of error, except the first, which is not sustained, relate to this action of the court.

The question presented is, whether this certificate by the arbitrators of a parol agreement of the counsel of the parties, and the arbitrators’ finding of facts, justify the judgment of the court below.

We have shown the statute requires the agreement of submission to be in writing, and that it was in writing. Under that written agreement alone the arbitrators were appointed. By its express terms their decision was to be final without exception or appeal. They made an award full and complete in itself.

Can an averment by them of a radical change of the duties and powers delegated to them in writing, repudiated by the plaintiff, be permitted to contradict the written agreement? We think it cannot. The power of revision taken from the court by the written agreement of the parties cannot thus by the naked certificate of the arbitrators be restored to the court. It is in conflict with the rules of evidence, which will not permit a written instrument to be contradicted by parol, except for fraud, mistake or trust. Neither is alleged in this case. If, however, it be claimed that the parol agreement was subsequent, and superseded the written agreement, it is fully as objectionable. It is not claimed that it proves a common-law submission. The effect then would be to prove a parol submission of a pending suit, under a statute, when the statute authorizes a submission by agreement in writing only.

It follows, then, that the certificate of the arbitrators was with- , out authority; the facts therein recited were not legally before the court, and the court had no power of revision.

This view of the case makes it unnecessary to consider those alleged facts. They are not legally here. The learned judge, therefore, erred in setting aside the award and in entering judgment in favor of the defendant. The plaintiff was entitled to a judgment on the award. The assignments are sustained.

Judgment reversed. And now, judgment is entered in favor of the plaintiffs on the award.


author: Per Curiam.

text:
    Commonwealth ex rel. Snyder versus Mitchell.
    1. A case was submitted to the court under Art. V., sect. 27, of the Constitution, and Act of April 22d 1874 (dispensing with a jury); judgment was entered April 10th and same day exceptions taken and sealed by the judge below; a writ of error was taken April 18th without further proceeding. Held, that the judgment was not final, the writ of error was premature and it was quashed.
    2. The provision of the Constitution does not execute itself, the practice under it is regulated by the 2d sect, of Act of 1874.
    October — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to tbe Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875, No. 122.
    The proceeding in this case was a mandamus.
    On the 21st of September 1874, N. Snyder & Co. petitioned the court, setting forth that the water committee of the city of Pittsburg invited sealed proposals for furnishing certain water-pipes upon specifications, terms, &c., stated; that the petitioners submitted proposals for furnishing the pipes in accordance with the specifications, terms, &c., at a price which was $5000 less than any other offer; that they were responsible persons, &c., and accompanied their offer with sufficient sureties; that the city acting through their councils were about to award the contract to other persons at a bid higher than the petitioners ; they prayed for a mandamus against Thomas J. Mitchell and others, the water com-, mittee of the city councils, the city councils and the city of Pitts-burg, not to award the contract to any person whose proposals were higher than the petitioners’, and to award it to the petitioners.
    Depositions were taken and an alternative mandamus was awarded; the respondents put in an answer, raising issues of fact to which the relators filed a replication.
    The parties, on the 23d of January 1875, filed an agreement, submitting the case to the decision of the court, under Art. V., sect. 27, of the Constitution of 1873, and the Act of April 22d 1874 (Pamph. L., pp. 16,109); and further agreeing “that the said answer on file in this case he taken and considered as the return of defendants to said alternative mandamus as fully and in all respects as the same was intended, and that the depositions on file be taken and considered as the testimony in the case, to be used by both parties as if retaken on the trial of the issue in this suit, so far as the same are pertinent and relevant to the issue.”
    The constitutional provision is :—
    “ The parties, by agreement filed, may in any civil case dispense with trial by jury and submit the decision of such case to the court having jurisdiction thereof, and such court shall hear and determine the same; and the judgment thereon shall be subject to a writ of error as in other cases.”

      The Act of Assembly enacts :—
    Sect. 1. Substantially as in the clause of the constitution.
    Sect. 2. “ The decision of the court shall be in ■writing, stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel and the conclusions of law, and shall be filed in the office of the prothonotary or clerk of the proper court where the case is pending, as early as practicable, not exceeding sixty days after such decision shall have been made from the termination of the trial, and notice thereof shall be forthwith given by the prothonotary or clerk to the parties or then-attorneys, and if no exceptions are filed thereto in the proper office within thirty days after service of such notice, judgment shall be entered thereon by the prothonotary or clerk; if exceptions to the findings of facts or conclusions of law be filed within said thirty days, the court or the judge thereof who tried the case in vacation may, upon argument, order judgment to be entered according to the decision previously filed, or make such modification thereof as in justice and right shall seem proper, subject always, nevertheless, to review by writ of error or appeal in the Supreme Court, such writ of error or appeal to be taken in the time and manner and with the effect prescribed by law.”
    After filing the agreement, the docket entries show as follows and nothing more:—
    “ April 10th 1875, judgment ordered to be entered for defendant. By the Court.”
    “April 10th 1875, plaintiffs except and bill of exceptions sealed at their instance. ■ E. H. Stowe, [seal.J”
    . “ April 18th 1875, writ of error filed.”
    The record did not show that “ the decision of the court,” stating the facts found, and the conclusions of law, was filed in the prothonotary’s office.
    When the case came up for argument, the respondents moved to quash the writ of error, on the ground that the provisions of the Act of Assembly had not been complied with.

      T.. 8. Bigelow and J. F. Slagle, for motion.
    TP. H. Sutton and A. M. Brown, contrá.
    October 14th 1875,
   The order quashing the writ of error was entered in the Supreme Court,

Per Curiam.

We are of opinion that this writ of error was prematurely taken. The 27th section of the fifth article of the New Constitution does not execute itself so as to be independent of the legislation necessary to regulate the practice under it. It vests the right in the parties, by agreement in civil cases, to dispense with trial by jury and submit the decision of the case to the court having jurisdiction to hear and determine it, subject to a writ of error as in other cases. But when and how shall the court hear and decide the case ? The jury being dispensed with, the hearing implies a trial before the court and the determination of the facts as well as the law. What law shall govern the court in this proceeding, and compel the judges to place the case in a situation to give the party his writ of error, in such manner that he* may reap its advantage ? The Constitution does not say the court shall put in writing the facts found, or answer the positions taken by the parties in writing. It is simply to hear and determine. How hear and determine? How shall a record be made to exhibit the errors of the court ? This the second section of the Act of 22d April 1874 answers. When shall the court determine after the hearing ? This also is answered. How shall the party have the finding of the facts revised if he think there has been error, and when shall he be compelled to seek his redress ? Besides, the court itself may have fallen into error it would correct. Without the law there is no regulation, no compulsory proceeding, and the whole matter would rest in the discretion of the court. Such a mode would be unsatisfactory. The truth is, the constitutional provision would be a mockery without the necessary regulation of the statute to carry it into execution and give it full effect.

The judgment in this case was therefore not final, but was subject to the proceedings in the court below, by exception and otherwise, to bring the case to a legal conclusion.

The writ of error was therefore premature, and is to be quashed.


text:
    Finney et al. versus Somerville.
    1. The Act of March 28th 1871, authorizes any person to enter on certain streams and erect “ upon their own lands, or upon the lands of another,” &c., dams, &c., for the purpose of floating lumber, and provides that such person shall “ have thereon a right of way exclusive,” &c., upon filing bond, &c., and that “ owners of land along the stream claiming damages to land or depreciation of its value, because of the erection of such improvements and of the right of way,” shall have them assessed by proceeding in the Quarter Sessions. The plaintiff owned a mill and dam on his own land on a stream ; the defendants, on their own land, higher up the stream, erected a “ splash dam ;” by letting out the water in large quantities logs were carried down and injured the plaintiff’s dam ; and the retaining of the water in defendants’ dam for considerable times, and the flooding of plaintiff’s wheels when let out, interfered with working his mill. Held, as the improvements were not on plaintiff’s land the act did not apply, and the plaintiff’s remedy was by a common-law action.
    2. The Act of 1871 gives no authority to erect “splash dams;” and defendants could not, by virtue of the act, unreasonably diminish the waterpower of plaintiff by retaining the water, nor flood his land by castjng an unusual quantity on it.

      3. The act could not confer such powers on private persons ; they can he given only to corporations organized for public purposes.
    4. The plaintiff’s mill and part of his dam were in one county and part of the dam in an adjoining county: Held, that under the Act of June 13th 1836, sects. 79, 80 (Actions Real), the whole was a “single tenement,” and suit could be brought in either county.
    October — 1875.
    Before Asnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of erro.r to the Court of Common Pleas of Qantbria county: Of October and November Term 1875, No. 23 and 24.
    To September Term 1872, of the court below, William H. Somerville brought an action on the case for nuisance against A. C. Einney, S. D. Barrows, John Mellon and other Mellons; and to June Term 1878, of the same court, the same plaintiff brought a like suit against S. D. Barrows, John Mellon and other Mellons.
    Both cases were tried together December 10th 1873, before Dean, P. J.
    The plaintiff owned a grist- and saw-mill in Clearfield county, near the line of Cambria county, on Chest creek, a tributary of the Susquehanna; the line between the two counties crossed the dam of the mill, both dam and mill being on plaintiff’s land. The Mellons owned timber land higher up on both sides of Chest creek. In August 1870, Finney and Barrows, under a contract with the Mellons, commenced the erection of a splash dam about eight miles above the plaintiff’s mill.
    The erection of defendants’ dam was made under the Act of March 28th 1871, Pamph. L. 237, 2 Br. Purd. 1268.
    This act provides that when any person shall have entered upon any stream tributary to the West Branch of the Susquehanna river, not having been declared a highway, and erected on his own or another’s land under written authority, any dam, &c., or improved the stream for the purpose of floating timber thereon, such person shall have a right of way exclusive and personal, upon filing in the Court of Quarter Sessions of the proper county a bond with approved sureties, conditioned to pay all damages to property along the stream by reason of the erection of the improvements ; also filing in the recorder’s office of the proper county a statement, under oath, detailing the facts on which the claim to the right of way is founded, &c. Any owner of land along the stream claiming damages for injury to said land or depreciation of its value because of such improvements and the right of way, may petition the Court of Quarter Sessions, and the court shall appoint viewer's to assess the damages and report in the same manner as damages are assessed for opening roads. Such report, being approved by the court, shall be final and conclusive.
    Finney and Barrows filed a bond and statement as required by the Act of Assembly; the bond had no revenue stamps.

      Tbe plaintiff declared against defendants for an unlawful use of tbe water of the stream, by retaining it so as to deprive him of tbe use of it for considerable lengths of time and for opening their dam for the purpose of floating their logs down the stream, injuring the plaintiff’s dam, damming up his tail-race by back-water, so that his mill could not run.
    The first case was for injury up to the bringing of that suit; the other for injury afterwards. The defendants pleaded not guilty, and filed a special plea, setting out that the improvements had been made under the Act of 1871, and averring that the plaintiff’s only remedy for the injury to his mill and water-power was by the mode prescribed by that act.
    The plaintiff gave evidence that he had suffered by the action of the defendants the injuries averred in his declaration ; that the dam of defendants backed the water three or four miles; that they opened three gates 18 feet wide and 8 feet high; that over 200 square feet of water would rush out; that the logs carried by the flood thus made broke plaintiff’s dam; that his mill was stopped by back-water, the flood would begin to fall in about five hours; that the defendants’ dam kept back the water so that the plaintiff could not grind for considerable periods of time; he gave evidence also as to the amount of damage which he bad sustained.
    The defendants gave evidence in answer to the plaintiff’s case and in support of their special plea.
    The plaintiff submitted a number of points. Five of them raised the constitutionality of the Act of 1871; two of them raised the question whether the bond filed in the Quarter Sessions by the defendants could be given in evidence in consequence of not having a revenue stamp.
    These points were affirmed, but reserved.
    The defendants’ first point was :—
    Under the admitted facts in this case, Chest creek being a tributary of the West Branch of the Susquehanna, and the defendants having complied with the provisions of the Act of Assembly of the 28th of March 1871, entitled “ An Act to allow the improvement of creeks and rivulets,” the plaintiff is barred by the provisions of that act from maintaining this action, and the verdict of the jury must be for the defendants.
    The court, holding that this point depended upon the decision of the question raised by plaintiff’s first five points, reserved it.
    The defendants’ third point and its answer were:—
    If the jury believe that the damage (if any was done to plaintiff) was exclusively to the mill and mill-dam of the plaintiff, and that they were within the county of Clearfield, the plaintiff cannot maintain this action in the county of Cambria, and the verdict should be for the defendants.

      Answer : “ This is correct, hut the proof is that the larger part of the mill-dam, and this is a part of the mill property, was in the county of Cambria, and this was testified to by one at least of the witnesses of the defendant.”
    The court charged:— * * *
    “ The damages complained of by the plaintiff are to his mill property. The mill property is the mill itself; that is, the buildings and machinery, the ground appertenant thereto, and necessary to its use and enjoyment as a mill, the mill-dam, the head-race, and the tail-race, these including what is known as a mill property. The mill property, therefore, lies partly in Clearfield county and partly in Cambria county. In any fair view of the evidence in this case, and under the Act of Assembly making provision for such case, the plaintiff, we hold, has properly instituted this suit in Cambria county, and so far as the evidence in this case is concerned, his suit is shown to have been instituted in this county, where the realty alleged to have been damaged is partly situated. If there was any dispute as to the location of the property in the evidence, that would be a question for your determination, but the defendants themselves, by one of their witnesses, prove that the line cuts the mill-dam a few feet above the breast, leaving the larger portion in Cambria county ; therefore the mill property is partly in both counties. * * *
    “The purpose in view of these defendants in erecting the dam was a lawful one, the purpose of conducting the timber to market, and so far as enterprises of the kind are lawful they are laudable and commendable. To develop the resources of a neighborhood, make that valuable which before was valueless, by constructing improvements and furnishing facilities for reaching market, is at all times commendable. The plaintiff could have no reason to complain of the defendants for merely doing this much, and they, under the right from Mellons, had a right so to do. The plaintiff, Somerville, had also the right to use the water of the creek in prosecuting his business. Both owned or had possession of land adjoining the stream.
    “ Each lawfully could use the water of the stream. It by no means necessarily follows that every use made of it by either of them was lawful. The use by the upper landowners to be lawful must be such as does not seriously deprive the lower landowner on the stream of his right to the reasonable use of it. If by retaining the water in the splash dam, the water of the stream was sensibly diminished, so as to cut off the supply necessary to run the plaintiff's mill; or if, after collecting water, in the dam, it was discharged in such unusually large volume or quantity as to be destructive to his property, or to dam up by back-water his tail-race, and thus stop his mill, this would be an unreasonable or unlawful use of the water, for which the defendants would be answerable in damages to the plaintiff, because it would deprive him of a reasonable use of it, and he being the lower landowner has a right also to the reasonable use of the water, without being deprived of that use by the act of the upper landowner. This is the law applicable to landowners either adjoining or upon the same stream.
    “It cannot be questioned that the use of water for the purpose of running a grist-mill, such as the one owned by the plaintiff, was a reasonable úse by the plaintiff. We do not understand it to be alleged that the extent to which he used it was an unreasonable use. He would not have a right to demand all the water, and because he did not get it all, to say then that the use by the upper owner was unreasonable. He would have the right to the reasonable use of a reasonable quantity for his purpose — running a gristmill ; and he would have a right to that reasonable quantity, notwithstanding all of it, or a large portion of it, was necessary to and was taken by the upper landowner. If the quantity used by the plaintiff below at his grist-mill was a resonable quantity, did the defendants, by the construction of the splash dam and the use to which it was put, seriously interfere with the use made of the water by Somerville at his mill, or did they deprive him of-that to which he had the right to claim by reason of his ownership of the land on the bank of that stream; or at other times did they turn the water on his property in such large quantities as to back it up in his tail-race and stop his mill and destroy his dam ? * * *
    “The defendants had a right to the reasonable use of this stream in floating logs. * * * If, by the use of it in splashing out logs, they did not seriously interfere with the plaintiff s reasonable use of it below, or deprive him of the reasonable use of it below, then their use of it could not be said to be unreasonable, that is, the defendants’ use of it. It is a question for you, taking into view here all the circumstances of the case, the surroundings of that stream, its nature, size, and the uses to which it was put. If the plaintiff’s use of it was obstructed and seriously injured, as is claimed by him, his mill stopped for days, his property destroyed by the splashes, that would be an unreasonable use of it by the defendants, it cannot be questioned; such a use as Avould be a wrongful one so far as it injuriously affected this plaintiff, and they would be answerable in damages.
    “ On the contrary, if the evidence shows, as the defendants claim, that the splashes did no injury, detained no water when water was scarce, and that when the stream was full the plaintiff had as much water as he needed for his grist-mill, no matter what use they made of it; that when the water was discharged the backwater therefrom caused no stoppage of the water-wheel, as is claimed by the plaintiff, or, if any, so slight as to be scarcely appreciable or ascertainable; or if the dam was carried away by an unusual though natural flood, then this use of it caused no injury to the plaintiff, and could not be said to be unreasonable, and would not be answerable in damages. It is for you, under the evidence, to determine this question. If the use by the defendants was a reasonable one, they would not be answerable for damages. If it was unreasonable they would be responsible for such damages as the plaintiff has shown that he has sustained.” * * *
    The verdict was for the plaintiff; in the first case for $446.50, in the second case for $1341.16.
    The court afterward entered judgment on the verdicts for the plaintiff on the reserved points.
    The defendants took a, writ of error, and assigned for error the charge of the court and the answer to their third point, the refusal to affirm their other points, and the answers to the plaintiff’s points.

      F. A. Shoemaker, J. P. Linton and R. L. Johnston, for plaintiffs in error.

      Cr. M. Reade, for defendant in error, as to jurisdiction,
    cited Act of June 13th 1836, sect. 79, 80, 1 Br. Purd. 55, pl. 1, 2; 1 Bac. Abr. 56-58; Oliphant v. Smith, 3 Penna. R. 181; 1 Com. Dig. 250, 251.
    November 8th 1875.
   Mr. Justice Gordon delivered the opinion of the court,

It is unnecessary for us to review the opinion of the learned judge below, on the reserved points involving the constitutionality of the Act of 28th of March 1871 (Purd. Dig. 1268), as that opinion, as we view the matter, in nowise affects the case. The damage complained of by the plaintiff below arose from the unlawful use by the defendants of their dam, which, it was conceded, was erected for a lawful purpose. None of the plaintiff’s land was taken or used by the defendants. Their improvements were upon territory to which the plaintiff had no claim; nor is it alleged that they assumed a permanent control of that part of Chest creek flowing over his land. Had they so done, a very different question would have been raised. The complaint of the plaintiff was that the defendants so used their dam as sometimes to cut off the water from his mill, at other times to flood out his wheels, and that, upon one occasion, they precipitated so great a mass of water and logs upon his improvements as seriously to injure them by sweeping away a large part of his dam. If this were so, and the jury have so found, they were acting extra the Act of Assembly, and could not justify themselves under its provisions.

The act gave them no authority to erect or maintain splash dams, and had it conferred such power, they were bound so to use it as to do no injury to the property of those below them. They could thereby neither unreasonably diminish the power of the plaintiff by retaining the water, nor flood his land by casting an unusual quantity of water upon it. The statute neither did nor could confer such powers, as those claimed by the defendants, upon private persons. Only corporations organized for public purposes can be clothed with such privileges; to such and such only may the legislature grant the Commonwealth’s right of eminent domain.

The learned judge instructed the jury, that the defendants had the right to use the water of the creek in a reasonable manner, so as neither to deprive the plaintiff of the use of it, nor to damage his lawful structures: holding them responsible only for the negligence and improper exercise of their rights.

In this there is nothing which merits our disapproval, for, by all authority, the case was well put to the jury: Hetrich v. Deachler, 6 Barr 32.

As to the question of jurisdiction, that is settled by the fact that not only is part of the tract of land, on which the plaintiff’s mill is built, in the county of Cambria, but so also is the pond or water basin which is a necessary adjunct or appertenance to the mill. This then being a “single tenement” lying in both Clearfield and Cambria counties, the case falls within the 80th sect, of the Act of June 13th 1836, and was therefore well brought in the latter county.

The judgment is affirmed.