text:
    October and November Term, 1881,
    No. 132.
    Guffey versus Harding.
    A rule of court provided that “ if the plaintiff shall file, on or before the return day of the writ, with his declaration or statement, or in oases of appeal on or before the first day of the term to which the appeal is entered, an affidavit stating the amount he verily believes to be due from the defendant,” with a copy of the book entries or instrument upon which suit was brought, he should be entitled to judgment for want of an affidavit of defence. A subsequent rule provided that “ in appeals from the judgments of justices of the peace, no declaration shall be required, but the prothonotary shall enter the plea of nil debet to the transcript, and put the cause upon the issue docket; and, on the trial, the merits on both sides shall be heard, without regard to the form of action.”

      Held, that there was no inconsistency between these rules, and that the latter did not abrogate the former.
    Error to the Court of Common Pleas of Westmoreland County.

    Appeal of John Guffey and J. J. Hazlett, trading as the Westmoreland Coal Company, from the judgment of a justice for $63, with costs, in favor of J. A. Harding, trading as Harding & Bro.

      The transcript was filed January 31st, 1881. On the 3d of February, 1881, the plaintiff filed a narr. copy of account and an affidavit of claim. The affidavit set forth:
    “ That the annexed account against the Webster Coal Company is correctly copied from the book of original entry of Harding & Bro.; that the charges were made in said books at or about the time of their respective dates; that the goods for which said charges were made, were sold and delivered as charged; that the charges are correct, and the account just and true as stated; that there is now due and owing thereon the sum of sixty-one and 17-100 dollars, with interest from the 24th day of March, A.D. 1880; that no part of said sum has ever been paid or in any manner settled, and that there are no deductions or offsets of any kind, except such as are therein specified and credited.”
    On the 5th of March, 1881, the plaintiff entered judgment under the following rule of Court:
    Rule op Court, No. 10.
    “ In actions on recognizances, judgments, mortgages, liens of mechanics and materialmen, municipal claims, transcripts from the Orphans’ Court, policies of insurance, book accounts, bonds, bills, notes, and other instruments of writing, for the payment of money, and all actions on contract for the payment of money, either express or implied, and whether the same be in writing or not, and in appeals from the judgments of justices of the peace, if the plaintiff shall file on or before the return day of the writ, with his declaration or statement, or in cases of appeal, on or before the first day of the term to which the appeal is entered, an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, or where the claim is not evidenced by writing, a brief setting forth a full and detailed statement of the same, verified as aforesaid, he shall be entitled to judgment at any time on or after the third Saturday succeeding the return day of the writ, in original cases, or in appeals, succeeding the first day of the term to which the appeal is entered, unless the defendant shall have previously filed an affidavit of defence, setting forth fully the nature and character of the same.”
    On the 7th of March the defendants took a rule to show cause why the judgment should not be stricken off, contending that the above rule of Court was abrogated by rule No. 19, which is as follows:
    “In appeals from the judgments of justices of the peace no declaration shall be required, but the prothonotary shall enter the plea of m, debet to the transcript, and put the cause upon the issue docket; and on the trial the merits on both sides shall be heard without regard to the form of action.”
    The Court below, Hunter, J., opened the judgment as to the defendant Hazlett, he having shown by affidavit good grounds of defence, but refused to strike off the judgment and discharge the rule.
    To this ruling defendant Guffey excepted and took a writ of error, assigning that the Court erred in entering judgment for want of an affidavit of defence and in refusing to strike off the judgment as to John Guffey.

      Hazlett & Williams for plaintiffs in error.
    With the exception, perhaps, of the learned counsel of the defendant in error, it was the understanding of all the gentlemen of the bar that rule No. 10, as far as it relates to appeals, was abrogated by rule No; 19, and in all the appeals filed since the. adoption of the rule permitting such judgment, a judgment for want of an affidavit of defence is unknown.
    Rule No. 19 dispenses with all interlocutory pleadings. Being inconsistent and repugnant the later rule prevails.

      W H. Klingensmith for defendant in error.
    By rule No. 10 the option is given to the plaintiff' to file his narr., etc., and compel the defendant to file his defence or proceed under rule No. 19. In either ease, or under either rule, the result is the same, viz., a trial on the merits.
    No advantage is taken of a defendant, for .before he can be called upon to exhibit his defence, the plaintiff is required to exhibit his cause of action.
    November 7th, 1881.
   Per Curiam:

We perceive no inconsistency between rules No. 10 and No. 19 of the Court below. The case as against Guffey was clearly within rule 10, and the affidavit of claim was entirely sufficient. If he was not a member of the firm sued as the Webster Coal Company he should have set it up by an affidavit of defence.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    October and November Term, 1881,
    No. 261.
    O’Hara versus Baum.
    1. A writ of error does not lie to an order of Court overruling exceptions to the return of a sheriff upon a writ of restitution.
    2. For a false return the remedy is against the sheriff.
    Error, to the Court of Common Pleas, No. 1, of Allegheny County.

    Exceptions to sheriff’s return upon a writ of restitution.
    September 16th, 1874, A. F. Baum, to the use of S. P. Fulton, recovered a judgment against Michael O’Hara and Frances O’Hara, his wife, for $19,575 upon a scire facias sur mortgage. The cause was removed by writ of error to the Supreme Court, and there the judgment was reversed. While the cause was pending in the Supreme Court a writ of levari facias was issued in the Court below, under which certain real estate therein described was sold by the sheriff. A writ was thereupon issued, directing the sheriff, if the property had been delivered to the plaintiff, to cause restitution, and in case of sale to other persons to cause from the proceeds of the sale, or by demand upon the plaintiff, the amount of the said proceeds to be paid to the defendant, Frances O’Hara.
    To this writ the sheriff made the following return:
    “I do hereby certify and return that at the coming of this writ into my hands, the real estate described in the writ of levari facias herein mentioned had been sold, at sheriff’s sale, by my predecessor in office, to Margaret Wilson, for the sum of seventy-three hundred fifty-seven dollars ($7357). And the property having passed out of the hands of the plaintiff in the writ of lev. fa. before mentioned, I did proceed, as within commanded, to collect said purchase-money from said purchaser, and succeeded in obtaining and having paid to me by said Margaret Wilson the sum of sixty-six hundred and eighty-four dollars and seventy cents ($6684.70), on May 27th, 1879, which is all the money I am able to collect from said purchaser up to the present time. And I further return that I paid out of said sum, on June 2d, 1879, to M. A. Woodward, attorney for M. O’Hara and Frances A. O’Hara (as appears by the records), the sum of fifty-five hundred dollars ($5500), and took his receipt therefor as said attorney. And I further return that inasmuch as there was a question raised as to whom the balance of $1184.70 belongs, as well as the whole amount paid to me by Margaret Wilson, I now return that I hold said balance of $1184.70, subject to the further order of the honorable Court from which this writ issued.”
    To this return the defendant filed numerous exceptions for falsity and insufficiency, which the Court, July 23d, 1881, overruled.
    The defendant then took a writ of error, assigning as error the order of the Court overruling the exceptions.

      M. A. Woodward for plaintiff in error.
    November 14th, 1881.
   Per Curiam:

There is no judgment here on which a writ of error lies. If the return of the sheriff was false, the remedy was by an action against him.

Writ of error quashed.


text:
    October and November Term, 1881,
    No. 232.
    Mutual Building and Loan Association of McKeesport versus McMullen et al.

    Where the charter aud by-laws of an association provided for the election of the treasurer annually, and the condition of the bond executed by the treasurer was that he should account for the moneys, etc., that had or should come into his hands “ during his continuance in said office of treasurer,” and should faithfully perform his duties “during the time of his continuance in said office,” it ,was held' that the sureties were liable only for default occurring during the year in which the bond was executed, and not for defaults occurring in subsequent years for which the same treasurer was re-elected.
    Error to the Court of Common Pleas, No. 2, of Allegheny County. a

    On the 16th of March, 1876, judgment was entered by the Mutual Building and Loan Association of McKeesport against James McMullen, John O. Beil ley, and Margaret McMullen, for $15,000, with costs of suit, and attorney’s commission upon a warrant of attorney to confess judgment in a bond.
    The bond given by the defendants to the plaintiff, dated March 10th, 1876, contained the following condition:
    “ Whereas, The above bound James F. McMullen has been duly elected to the office of treasurer of the said Mutual Building and Loan Association, and by reason thereof, will receive in his custody and control the moneys, securities, and other valuables, goods and effects belonging to the said association.

      “ Now the condition of the above obligation is such, That if the said James E. McMullen, his executors or administrators, upon request to him or them in that behalf to be made, shall make and give to such auditor or auditors, a just and true account in writing of all such moneys, securities, and other valuables, goods and effects as have or shall, during his continuance in said office of treasurer of said association, come into his hands, custody or control, and shall upon the said account pay and deliver over to his successor in office, all such moneys, securities, and other' valuable effects as by the balance of said account shall appear to be due and belonging to said association. And provided further, That the said James E. McMullen, during the time of his continuance in said office of treasurer, shall in all respects faithfully, fully and promptly perform all the duties pertaining thereto, then this obligation to be void; otherwise to be and remain in full force and effect.”
    In 1879 execution was issued on the judgment. The Court below, September 20th, 1879, quashed the execution and opened the judgment, letting the defendants into a defence.
    The case was then put at issue, and on the trial in the Court below before Kirkpatrick, J., the plaintiff proved the following facts:
    The by-laws of the plaintiff- association provided for the election of its officers, including the treasurer, annually on the first Saturday in December. On the 10th of December, 1875, James McMullen was elected treasurer. The bond in suit was executed March 10th, 1876. He was acting as treasurer at the time. He was re-elected treasurer December 8th, 1876, December 14th, 1877, and December 13th, 1878. About August 9th, 1879, McMullen absconded, owing the association up to September 1st, 1879, a balance of $13,716.
    The Court charged the jury:
    “ As you have discovered, this action is brought by the Mutual Building and Loan Association of McKeesport against the former treasurer and his sureties on his bond. It is claimed by the plaintiffs that this treasurer was largely a defaulter and embezzler in point of fact, and this is established by the undisputed testimony in the case. Eor the purpose of recovering the amount thus short in his accounts this action was instituted and is now pressed against his sureties.
    “ To this action so brought it has been suggested by way of defence (and as it will appear more clearly when we answer plaintiffs’ points) that under the terms of the bond the sureties were only liable for one year, and that at most they only can be held for the year of office first held by him and for which he gave bond. That is the view of the case we entertain after a somewhat careful examination of the authorities bearing on the subject, and after having listened as we have to the very elaborate and learned discussion of the ease this morning. And we so instruct you. This brings us to the point presented by plaintiffs’ counsel, which we will proceed to answer.
    “ 1. The plaintiffs’ attorneys ask the Court to charge the jury, that under the evidence the plaintiffs are entitled to recover the amount of the deficit for the entire period of service as treasurer by James F. McMullen, from the date of his appointment in December, 1875, till he ceased to act in August, 1879.
    “ And in answering thereto, refused.
    “ 2. If the Court refuse to charge as required in the first point, then the Court is requested to charge the jury that the plaintiffs are entitled to recover for any deficit arising out of the transactions of the first year.
    “ Affirmed.
    “If we are in error we can hereafter correct ourselves upon a motion for new trial, and if then we persist in the opinion we now entertain,- our opinion can be reversed by the Supreme Court.”
    Counsel for plaintiffs excepted to the charge.
    February 1st, 1881, verdict for plaintiffs for $245.26, on which judgment was subsequently entered.
    The plaintiffs then took a writ of error, assigning as error the answer of the Court to their first point.

      George Shiras, Jr., and John Ewing Speer, for plaintiffs in error.
    Under the definition of the word “ continue,” it is evident that the meaning of the bond is that'it shall apply to successive terms, and that so long as he shall be treasurer the surety shall be bound.
    Where there is no restriction the officers may continue to hold and exercise their offices after the expiration of the year, until they are superseded by the election and qualification of other persons in their places, as when they are elected for a term and there is no restriction by the constitution of the corporation to that term alone, or where they are elected for a term and until their successors are elected and qualified : Foot v. Prowse, Strange, 625; Queen v. Corporation of Durham, 10 Mod., 146 ; King v. Lisle, Andrews, 163; McCall v. Byram Mfg. Co., 6 Conn., 428; Spencer v.
      Champion, 9 Id., 536 ; Bethany v. Sperry, 10 Id., 200; Plymouth v. Painter, 17 Id., 588; Kelsy v. Wright et ux., 1 Root’s, 83; Wier v. Bush, 4 Litt., 429; People v. Runkel, 9 John., 147; Vernon Soc. v. Hills, 6 Cow., 23; Slee v. Bloom, 5 John. Cha. E., 366; Pindar v. King, 6 Vin. Abr., 296; Tuley v. State, 1 Ind., 500; Kent. Com., 2, 285 n. b.
    Counsel cited Dallas v. Chaloner’s Executors, 3 Dallas, 500; Hutchinson v. The Commonwealth, 6 Barr, 124; Commonwealth v. West, 1 Rawle, 29; Daly v. Commonwealth, 25 P. F. Smith, 331 ; Loan Co. v. The Association, 12 Wr., 446; Wylie v. Gallagher, 10 Wr., 208 ; Commonwealth v. Boynton, 4 Dallas, 282; United States v. Kirkpatrick, 9 Wheaton, 720.

      Charles F. McKenna, Kennedy & Doty, and D. T. Watson for defendants in error.
    Where the bond is general, but the recital therein recites a specific period, general words will be limited by recitals, and sureties will be only liable for the time specified: Lord Arlington v. Merricke, 2 Saund., 411; Amherst Bank v. Root, 2 Metc., 522; Warden St. Saviour’s v. Bostock, 2 Bos. & Pul. (N. R.), 175 ; Peppin v. Cooper, 2 Barn. & Ald., 431; Hassell v. Long, 2 Man. & Sel., 363; Sansom v. Bell, 2 Camp., 39; Building Association v. Price, 16 Fla., 204.
    In this case the minutes show no holding over or default to elect, but a regular succession at each annual election of a treasurer for a specified term, under the by-laws of the association, and the annual auditing and approval of the treasurer’s accounts at the end of each official term of one year, when by election a new term of office began and a new officer was qualified as treasurer, to succeed the official whose term had just expired. To say that it was a continuous holding of office in contemplation of the wording of the bond, which contains no provision, express or implied, for liability for any future or other terms than the existing one to which McMullen was elected, and which term by all the testimony in the case expired December 10th, 1876, would do violence to the plain meaning of the words, and would be working gross injustice to sureties: Manufacturers’ and Mechanics’ Savings and Loan Co. v. Odd Fellows’Hall Association, 12 Wr., 446.
    November 14th, 1881.
   Per Curiam:

The bond of the defendant, as treasurer of the corporation plaintiffs, might undoubtedly have been so drawn as to make the obligors liable not only for the term to which he was then elected, but to any subsequent term he might hold the office by re-election. But it was simply “ during his continuance in said office,” which necessarily meant the term of the office to -which he had then been elected, namely, for one year. We cannot stretch the language so as to make sureties liable beyond the letter of their engagement.

Judgment affirmed.


author: Gordon, J.

text:
    October and November Term, 1881,
    No. 137.
    The Oakland Railway Company versus Thomas.
    Where a writ of error is taken upon a judgment on a verdict, the paper-book of plaintiff in error should contain the whole of the evidence properly certified, and where it contains only disputed and uncertified extracts from the testimony, the judgment will he affirmed.
    Error to the Court of Common Pleas, No. 2, of Allegheny County.

    Case in tort by Ella Thomas against the Oakland Hallway Company, to recover damages for alleged negligence of the employes of the defendant, in allowing a truck-car to jump the track, and run into the end of the house of plaintiff.
    The verdict in the Court below was in favor of the plaintiff, and on it judgment was entered.
    The defendant took out a writ of error.
    The paper-book of the plaintiff in error contained what were designated as “Extracts from the Testimony.” There' was no bill of exceptions, and these extracts were uncertified.

      J. W. Over and T. Mellon for plaintiff in error.

      Charles F. McKenna and Thomas M. Marshall for defendant in error.
   The opinion of the Court was delivered, November 7th, 1881, by

Gordon, J.

The third assignment of error is the only one that we can take notice of, the others not having been assigned according to the rules of this Court.

That assignment read as follows: “The Court erred in taking the facts and evidence involved in the defendant’s sixth and seventh points from the jury, and instructing them ‘ that while the evidence of the defendant, if believed, would justify them in finding that the viewers, in awarding damages against the city for the grading of the street on this property, did assume that the injury to the house was caused wholly by the grading, and they awarded her what they believed to have been the full value of the house as it stood prior to the injury, and that she received the money on the award, yet the evidence fails to show that the plaintiff so made her claim, or understood the damages were so assessed and paid.’ ”

This excepts to the Court’s instruction to the jury, as to the want of evidence on the part of the defendant to sustain a particular point of its defence to the claim of the plaintiff. The learned Judge says there was no evidence on this point, and the counsel for the defendant says there was such evidence. But in order to settle this controversy, we should have before us the evidence given in the Court below ; the whole of it, and that properly certified. Instead-of this, we have what the counsel for the defendant calls extracts from the testimony, and what the counsel for the. plaintiff designates as no testimony at all. Under such a presentation of the case, we can do nothing; the matter resolves itself into a mere question of verity between the Court and the counsel, the Court having the advantage of a prima facie presumption in favor of its correctness, and the counsel unsupported by any legal evidence.

Under such circumstances nothing is left for us but to affirm the case.

Judgment affirmed.


author: Sterrett, J.:

text:
    October and November Term, 1881,
    No. 121.
    Appeal of John Robb et al.

    1. The disqualification of a wife to testify against the estate of her husband is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others have participated.
    2. The findings of facts upon which decrees, either in the Orphans’ Court or Court of Common Pleas, are based are not reversible in the Supreme Court unless they are specially assigned as error.
    3. A decree will be affirmed though the Court below took no notice of the defence of the statute of limitations, which barred a portion of the claim, the balance of the claim being sufficient to justify the decree.
    Appeal of John Robb, Alexander Robb, Mary Robb, Martha Robb, William Robb, and Adam Robb, from the decree of the Orphans’ Court of Allegheny County, making distribution of the proceeds of the real estate of David Robb, deceased.
    David Robb died September 10th, 1877, intestate, owning certain real and personal estate. He left a widow but no children, and his father and mother had been dead for several years. Jane Robb, his widow, took out letters of administration on the estate, and subsequently filed her account, showing a balance in her hands of $1473.70, proceeds of the real estate.
    Before the Court below, Hawkins, P. J., a claim of Mary Stein, a sister of the accountant, was presented for wages. Jane Robb, the accountant, testified as to this claim under objection, as to her competence, in substance as follows :
    My sister -was living with Mrs. Dean in Allegheny. She was getting $3 a week wages there. I was sick; I had poor health and we sent for her. The arrangement was made. Mr. Robb said we had to have some help, and we might as well pay her as a stranger, and she would be better in the house. He knew the wages she was getting at Dean’s, and he said he was willing to pay her whatever she got from strangers. She came. She gave up her situation. Mrs. Dean came over to see whether Miss Stein was coming back, and she said if she would come back she would give her half a dollar more. She came in the fall of 1869, and she was there all the time until Mr. Robb died. During all that time neither Mr. Robb nor I paid her any wages. She didn’t need it, she said' she didn’t care, and he let it go on. She did everything. She attended to the house and did all the work. She did all the washing, and we had a good bit. She attended to the cows and stable, and milked and everything.
    Upon cross-examination the witness said :
    “ This bargain was made when she came there. We made a specific bargain to give her $3 a week. Then Mrs. Dean came over and offered her $3.50, and Mr. Robb said she was worth all to us she was to anybody else.”
    There was no other testimony.
    Counsel for the brothers and sisters of David Robb objected to all that part of the claim which accrued more than six years before the death of the decedent.
    The Court found the facts as follows:
    “ In October, 1869, Mary Stein was employed in the family of John Dean, Esq., at $3 per week. She was induced to leave Mr. Dean to engage in the service of Mr. Robb, whose wife was her sister, and in poor health, and she remained there until his death. Mr. Robb agreed to pay her at the rate of $3 per week when she first went to service for him, but subsequently increased her wages to $3.50 per week. He paid her nothing, and no demand was made. The matter was, however, discussed, and the contract was distinctly recognized as in existence. She did not need the money and he was allowed to have the use of it. There is no doubt she earned the wages promised her. She did all kinds of work, from cooking to cleaning the stable. Mrs. Robb already was in poor health when her sister came and continued, and Mr. Robb was also in bad health for two or three years before his death. Practically, Miss Stein had both of them to take care of, and all the work about to do, and did it faithfully.”
    The Court filed an opinion in which it said, inter alia:

    “ Mrs. Robb was clearly competent to testify to the contract made between her husband and sister. Her exclusion as a witness is limited to confidential communications, and this was not of that nature: Peiffer v. Lytle, 58 Pa. St. Rep., 386.”
    It awarded the balance of $1466.70 remaining after payment of costs to Mary Stein on account of her claim and interest.
    Prom this decree the brothers and sisters of David Robb appealed, assigning as errors :
    1. The Court erred in admitting Jane Robb, widow of decedent, as witness to testify against the estate of her deceased husband.
    2. The Court erred in overruling the defence of the statute of limitations.
    3. The Court erred in decreeing $1466.70 to the claim of Mary Stein, that sum being over $300 in excess of her whole claim as presented by her, including debt, and interest to the date .of decree.
    4. The Court erred in allowing interest on appellee’s claim.
    5. The Court erred in decreeing any portion of the fund to the claim of Mary Stein for wages.

      Whitesell & Son and Weir & Gibson for the appellants.
    At common law husband and wife cannot testify against each other. The rule is founded on public policy. It is not dissolved by death: Monroe v. Twisleton, Peake’s Add. Ca., 220 ; O’Connor v. Majoribanks, 4 M. & G., 435 ; Hitner’s Appeal, 54 Penna. St., 117.
    All the facts the witness testified to she learned from her husband during coverture in consequence of her domestic relations. The statute of limitations began to run against the wages at the end of each week.

      Thomas M. Marshall for the appellee.
    The witness testifies to hearing a contract pnade between her husband and a third party; It was not a confidential communication : Peiffer v. Lytle, 8 P. F. Smith, 392 ; Cornell v. Vanartsdalen, 4 Barr, 374.

      If the wages were due and payable weekly, the interest payable from the end of each week exceeds the amount awarded.
   The opinion of the Court was delivered, October 31st, 1881, by

Sterrett, J.:

It is contended that on grounds of public policy the widow of the decedent was incompetent to testify to the contract on which appellee’s claim for wages is based; that the disqualification incident to coverture continued after the death of her husband, and is not limited to what occurred in their confidential intercourse, but extends to all facts and transactions which came to her knowledge during their marital relations. While the principle, thus broadly stated, has sometimes been recognized, the better and more generally received opinion is that the disqualification is restricted to communications of a confidential natui’e, and does not embrace ordinary business transactions and conversations in which others have participated. This seems to be the principle recognized in our own eases: Cornell v. Vanartsdalen, 4 Barr, 364; Peiffer v. Lytle, 8 P. F. Smith, 386. The Orphans’ Court, adhering to this view of the law, permitted the widow to testify to conversations betiveen her husband, herself, and the appellee, which resulted in a contract of hiring. In pursuance of which the latter entered the service of Mr. Robb in October, 1869, and continued therein until his death, on September 10th, 1877. These conversations, as shown by the testimony, are not, in any proper sense of the term, confidential communications, and there was, therefore, no error in permitting the witness to testify.

From the evidence properly before him, the learned judge found, among other things, that when the appellee first- entered the service of the decedent, he agreed to pay her three dollars per week, “ but subsequently increased her wages to three dollars and a half per week. He paid her nothing and no demand was made. The matter, however, was discussed, and the contract was distinctly recognized as in existence. She did not need the money, and he was allowed to have the use of it.” In the absence of any exception to the finding of these or any other facts in the case, it must be conclusively presumed that the appellee entered the service of the decedent under a contract for wages at $3.00, which was shortly afterwards increased to $3.50 per week. That while the existence of the contract relation was distinctly recognized, she neither demanded nor received any of her wages, but, for the reason stated, permitted the same to remain in the hands of her employer for his use and benefit. These facts necessarily led to the conclusion that the appellee’s claim against the estate exceeded the net balance for distribution, and in the absence of any other valid claim, the whole fund was awarded to her on account. In other words, the decree is based upon and fully sustained by the facts distinctly found by the auditing judge, and not excepted to or assigned for error. The finding of facts upon which decrees, either in the Orphans’ Court or Court of Common Pleas, are based, are not reversible here unless they are specially assigned as error.

Aside from the evidence of an express contract which was found by the Court, the testimony returned with the record, but not printed in full by the appellants, clearly shows that the services rendered by the appellee, from October, 1869, to the death of Mr. Robb, were reasonably -worth at least $3.50 per week. It was shown that in addition to her general household duties, she did all the family washing, attended to the cows, and at times cleaned the stable, and rendered other services outside the ordinary work of a female domestic. The lowest estimate placed on the value of her services by any of the trastees is $3.50 per week.

The complaint in the second assignment is that “ the Court erred in overruling the defence of the statute of limitations.” If in point of fact this was done, it would be error upon the facts of the case as disclosed by the testimony. The statute of limitations was undoubtedly a bar to so much of appellee’s claims as was due and payable more than six years prior to the death of the intestate. In other words, her right to recover was limited to the six years’ services immediately preceding his death, with the interest thereon from the time her weekly -wages -were due and payable. The Court found that shortly after the original contract was made her wages w'ere increased to $3.50. At that rate her claim including interest would be about one hundred dollars more than the net balance for distribution. This was doubtless the reason why the Court took no notice of the defence under the statute of limitations. It was apparent that her claim for that portion of her services not barred by the statute, computed according to the terms of the contract, w'ould exceed the fund for distribution, and, therefore, the question as to the bar of the statute became wholly immaterial.

There is nothing in any of the assignments of error that requires further notice.

Recree affirmed, and appeal dismissed at the cost of the appellants.


author: Per Curiam :

text:
    October and November Term, 1881,
    No. 148.
    Williams versus Holmes.
    1. The indorser of an unnegotiable note, who 'pays it at maturity, is in effect a purchaser, and has all the rights of his assignor.
    2. The maker of such a note, who has it discounted at bank, is stopped from contesting the consideration.
    Error to the Court of Common Pleas of Indiana County.

    Assumpsit by J. E. Holmes, to the use of Peter Coy, against R. H. Williams, upon a promissory note in the following form:
    “ 5500 Indiana, Pa., February 26th, 1877.
    Six months after date, I promise to pay to the order of J. E. Holmes, at the First National Bank of Indiana, the sum of five hundred dollars, without defalcation or stay of execution, value received, and with five per cent, attorney’s commission.
    R. H. Williams.”
    Upon the note was indorsed:
    “ J. E. Holmes,
    Peter Coy. (This note was paid by Peter Coy.)
    H. A. Thompson, Cashier.”
    Upon the trial in the Court below, before Blair, J., the following facts appeared:
    On the 24th of February, 1875, Holmes, the legal plaintiff, sold and conveyed to Hugh Williams, a son of the defendant, a tract of land in Pine township, Indiana County, for $500. On the same day a note, of which the above was-a renewal, and in the same form and with the same indorsements, was drawn by the defendant. He got it discounted at the First National Bank of Indiana, and paid the proceeds to Holmes, who entered a receipt in full on the conveyance.
    On the 7th of October, 1876, R. H. Williams and Hugh. Williams entered into an agreement with Holmes, renting the abovementioned real estate to him for three years, Holmes to pay $100 on the note, and to have the option of buying the real estate at the expiration of the agreement for $400, and the interest on the note. At the maturity of the note, Coy, one of the indorsers, and the use plaintiff, paid it.. The cashier of the bank testified that “ the indorsement on the back of it was to show that he had paid it, so that he: could collect it off' Williams.”

      Counsel for defendant asked the Court to charge upon certain points, which with its answers were, inter alia, as follows:
    2. That if the jury find, from the evidence in the case, that J. E. Holmes, the legal plaintiff in this suit; was first indorser, and Peter Coy, the equitable plaintiff, second indorser on the note in suit, for the accommodation of the defendant, R. II. Williams, and that the said R. H. Williams gave said note to the First National Bank of Indiana, and received therefor the sum of $500, the plaintiffs cannot recover in this suit, even though said Peter Coy paid off said note about the time the same became due and lifted said note out of bank.

      Answer. If the jury believe that R. IT. Williams assumed to pay the purchase-money of the land, instead of Hugh Williams, his son, and for his benefit, and executed the note in suit for that purpose, under an arrangement to that effect between him, his son, and Holmes, and Coy paid the note for the purpose of acquiring the security and enforcing it against the maker, R. H. Williams, he, Coy, would have the same right to recover against the defendant that the bank had, and would be entitled to your verdict for the amount of the note, with interest, less the sums that have been paid. The jury will determine how much has been paid through Holmes under the contract of 7th of October, 1876.
    3. That if the jury find, from the evidence in the case, that J. E. Holmes received no consideration for the note in suit, and that R. H. Williams, the defendant, is not indebted to him, the plaintiff under the evidence cannot recover.

      Answer. If the money borrowed from the bank was received by Holmes, he did receive the consideration of the land, and if R. H. Williams paid nothing he is yet indebted for the land, and would be liable if the facts are found by the jury to be as stated in our answer to the second point.
    4. That under the evidence in the case the plaintiff' cannot recover.

      Answer. This point is refused.
    The Court charged the jury, inter alia:

    “ The next ground of defence is that pla ntiff cannot recover at all, for the reason, as we understand, that Holmes, who is the legal plaintiff, has been paid, he having received the money that was borrowed from the bank. In other words, that he has no claim against R. H. Williams. In considering whether this defence is effective or not, we must regard the manner in which the alleged payment was made. The plaintiff contends that when the contract of sale between Holmes and Hugh Williams was made, R. II. Williams stepped in and became paymaster under the contract instead of his son Hugh. The article of agreement was with Hugh, but it is clainied that instead of Hugh paying the money or executing this note, his father became the maker in his stead. Therefore Holmes, if the jury believe that to be the fact, had as much claim against R. II. Williams under the note, as he would have had against his son Hugh. And if the note had not been paid, as it is said, or if the money had not been borrowed from the bank, but the note stood here simply as a note from R. H. Williams to Holmes, then there could be no question about the right-of Holmes to recover on the note as against R. H. W'illiams, unless Williams could show want or failure of consideration or other defence. [Instead, however, of the maker of the note paying it, the money, it seems, was borrowed out of the bank. The defendant did not pay the note, but when it was discounted or purchased by the bank, it is alleged by defendant that the money was handed over to Holmes. That, in effect, paid Holmes — that is to say, he got the money from the bank, but it was not paid to him by R. II. VHlliams to the discharge of his own liability on the note. The liability of R. II. Williams on that note, as between him- and the bank, remaihed the same after the delivery of the money to Holmes as it was before, and there was nothing to prevent the bank from collecting the note from R. H. Williams.] \It has been held that a note of this kind, accompanied with a provision to pay attorney’s commissions, is not negotiable. ¡ If it was a negotiable security, then it would pass from hand to hand, and the maker of it, although there was a failure or want of consideration, or he had otherwise a good defence between him and the payee, could not set up that defence as against an innocent purchaser for value. But when the note is not negotiable, as in this case, then the maker has the same defence against any person into whose hands the note may fall as he would have against the payee himself. Mr. Williams, the defendant here, has therefore the right to make the same defence against Coy that he could against Holmes, if the suit was brought by him. If there has been any failure or want of consideration, or any other defence, he has the privilege of setting it up. This is our impression of the ease as it appears to us.”
    Counsel for defendant excepted to the answers to the points, and to that part of the charge within brackets.
    June 9, 1880, verdict for the plaintiff for $479.60, on which judgment was entered.
    Defendant then took out a writ of error, assigning as errors, that portion of the judge’s charge excepted to, and the answers to the points.

      J N. Banks and D. B. Taylor for plaintiffs in error.
    _ . The note on which suit is brought was not negotiable, and the indorsement thereon by Coy created no liability on his part to pay it: Woods v. North, 3 Norris, 407. His payment of the note was therefore entirely voluntary, and he acquired thereby no right of action thereon against Williams : Pownal v. Ferrand, 6 B. & C., 439 ; Exall v. Partridge, 8 Term Reports, 310; Kent Com., vol. ii, *616 and 617.
    That he may have thought himself liable, can make no difference: Irvine v. Hanlin, 10 S. & R., 219; Real Estate Saving Institution v. Linder, 24 Smith, 371.
    There is not the slightest evidence in the case that the note was given for the purchase-money of the land. No witness said so, and no witness intimated such a thing. It was error in the Court to submit this as a question of fact to the jury when there was no evidence to sustain it: Ashbridge v. Kenyon, 15 Leg. Int., 158; Sartwell v. Wilcox, 8 Harris, 117.
    The answers of the Court to the second and third points submitted by the defendant were evasive and unfair; in fact they were not answers to the points at all, but instructions how the jury should find if they believed a different state of facts from those stated in these points. The tendency of these instructions, as also of the general charge, was to mislead the jury, and the judgment should be reversed : Fisher v. Larick, 3 S. & R., 319 ; Pennsylvania Railroad Company v. Berry, 18 Smith, 272 ; Garrett v. Gonter, 6 Wright, 146 ; Philadelphia & Reading Railroad Company v. Spearen, 11 Wright, 303.
    The act of Coy was not a purchase of the note. He paid it.

      Silas M. Clark for defendant in error.
    The defence is purely technical and utterly devoid of merit. Williams got the land he bought, never paid for it, is in the possession to this day, and now it is most ungraciously urged that Peter Coy, who ignorantly but innocently paid the debt for which he was, perhaps, not legally liable, is therefore a volunteer.
    Defendant is estopped.
    If the payer of a note stands by and sees it assigned to a third person without giving the assignee notice of an existing defence, he shall afterwards pay the amount of the note to the assignee, although the consideration thereof should have entirely failed; and whether his conduct proceeded from ignorance or design: Decker for use v. Eisenhauer et al., 1 P. & W., 476 ; Rudy v. Wenner, 16 S. & R., 21; Watt’s Appeal, 28 Smith, 870; Ackla v. Ackla, 6 Barr, 228; Waters Appeal, 11 Casey, 523; Reel v. Elder, 12 Smith, 308.
    One is estopped from alleging the truth when his assertion of a falsehood, or his silence, has been the inducement to action by another party, which would result in loss but for the estoppel: Patterson v. Lytle, 11 Penna. State, 53 ; Musser v. Oliver, 21 Ibid., 362; Troxell v. Lehigh Crane Iron Company, 42 Ibid., 513 ; Ayres v. Wattson, 57 Ibid., 360.
    A party may be estopped by his acts or declarations, made even in mistake of his rights, if by them others have been led to the expenditure of money: Newman v. Edwards, 10 Casey, 35.
    A party will be estopped from taking advantage of action in which he has acquiesced for his own benefit: McCully v. P. & C. R.R., 32 Penn. State, 25; Guiterman v. Landis, 1 W. N. C., 622; Com. v. Moltz, 10 Barr, 531.
    November 7, 1881.
   Per Curiam :

That the bank had an unquestionable right of action against the maker cannot be disputed. Coy in point of fact purchased the note, as the memorandum upon it by the cashier shows. Why then, especially as the note was never negotiable, did not Coy stand in the shoes of the bank? The maker had no more equity against Coy than against the bank. In presenting the note to the bank he was estopped from contesting the consideration.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 102.
    Orr versus Seiler.
    1. A purchaser from a tenant told the landlord that he had bought three signs and a partition. One of the signs and the partition belonged to the landlord. The landlord informed his agent, and the latter, on examining the premises and failing to see the sign, without authority caused the arrest of the tenant. In point of fact, the sign was on the roof of the house, and the purchaser had carried off the partition without permission of the tenant. At the hearing the tenant was discharged. Held, in an action by the tenant against the agent for malicious prosecution, that these facts did not constitute probable cause.

      2. The plaintiff was entitled to recover exemplary damages.
    S. When one accused of crime has been discharged by the examining magistrate, and brings an action for malicious prosecution against the prosecutor, the burden of proving probable cause is on the defendant.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Case by .Victoria A. Seiler against James L. Orr and. W. H. Gerdes for malicious prosecution.
    On the trial in the Court below before Stowe, P. J., these facts appeared:
    The husband of the plaintiff' occupied a building of W. H. Gerdes, one of the defendants, as tenant, and carried on the business of selling liquors. He died January 31st, 1879, and the plaintiff took out letters of administration, and continued the business until the latter part of April, 1879, when she left the premises. In the front room was a partition, and on the roof was a sign, about four feet wide and nearly as long as the house, having the words “ wines and liquors” painted on it. These belonged to Gerdes. The plaintiff also had two signs out front. In the latter part of April, 1879, the plaintiff had a public sale. The invoice of goods sold given to the purchaser included three signs, but at the sale the plaintiff told the auctioneer that the sign on the roof did not belong to her. It was not sold, and remained on the roof at the time of the trial. There was an ice-box back of the partition, and the purchaser in getting it out knocked the partition down and carried off the pieces. Gerdes was not aware of the removal until June. He then saw the purchaser, who told him that he had bought three signs and a partition. Gerdes did not authorize a prosecution.
    Orr, the other defendant, testified that he was the agent of Gerdes to collect rents, and continued:
    “ He (Gerdes) said that they had broken the partition out of the back room; it would damage it for renting; and I asked him, ‘ Was the partition yours?’ and he said, ‘ Certainly, it was mine, and they had stole the sign;’ and I said, ‘ In case they did I would certainly make them bring that back or attend to it.’ That was about the sum and substance of what passed between us, and I went around to Squire Neillie’s, and 1 spoke to the squire about it. I told the squire these things had been taken away by them, and I went and looked, and I didn’t think of looking on top of a three-story house for a sign. I looked on the cornice. I didn’t see no sign there on the front, and Mr. Gerdes had described it as a large sign. I went right to the squire’s; I was angry, because I thought they had come and taken the sign too, and I went to the squire’s and talked to the squire; said these parties have taken these things away, what would be proper to do ? He said, ‘ You should enter a charge of larceny against them,’ and I said, ‘ If that is what is right, you had better do it.’ ”
    Orr then made information charging the plaintiff with larceny of the sign and partition, and she was arrested. On the hearing before the alderman she was discharged.
    Counsel for plaintiff ask§d the Court to charge, inter alia :

      2. That malice is of two kinds: malice in law and malice in fact; that by the former is understood to bé ill-will generally ; the latter, malas animus, directing the party from improper motives to do a wrong act intentionally towards the plaintiff.
    5. That when one accused of crime has been discharged by the examining magistrate, the burden of showing probable cause is thrown on the prosecution, in an action against him for malicious prosecution.
    7. That in estimating the damages, if the jury should find for the plaintiff, they are not confined simply to the actual damage, if any, sustained by the plaintiff, but have the right to take into consideration all the circumstances of aggravation attending the case, and to assess the damages by way of punishment on the defendants, for their wanton and reckless use of criminal process for the purpose of intimidation, or to compel the payment of money, or the restoration of property alleged to have been stolen.
    These points the Court affirmed.
    Counsel for defendants asked the Court to charge, inter alia:

    2. That if the jury believe that the defendant, Gerdes, was informed by Roerhig that Mrs. Seiler had sold to him, Roerhig, the sign and partition, and that he had possession of the partition, and Gerdes, believing this, communicated it to the defendant, Orr, and Orr, acting on this information, and after inspecting the premises, was of the belief that the sign and partition were both taken away, and being of the honest belief that Mrs. Seiler, the tenant, had disposed of them to Roerhig, he had probable cause of making the information.
    4. That there is no special damage alleged or proved in this case, and no such conduct on the part of either defendant as would justify a verdict for more than merely compensatory damages.
    These points the Court refused.
    Defendant excepted to the answers to the points.

      February 12th, 1880, verdict for the plaintiff for $500. Plaintiff subsequently entered a nolle prosequi as to the defendant, Gerdes, and entered judgment against the defendant, Orr.
    Orr then took out a writ of error, assigning as errors the answers to the points.

      Charles C. Dickey for plaintiff in error.
    The Court below, in effect, made the issue of the trial turn upon the question of the actual guilt or innocence of the plaintiff, by the instruction that the discharge by the magistrate cast upon the defendant the burden of showing probable cause for the prosecution.
    The proof of probable cause is an indispensable element in the plaintiff’s case: Kirkpatrick v. Kirkpatrick, 3 Wright, 288; Dietz v. Langfitt, 13 P. F. Smith, 234; Stewart v. Sonneborn, 8 Otto, 187 ; Good v. French, 115 Mass., 201.
    The damages should have been confined to compensation: Lister v. Perryman, L. R., 4 Eng. and Irish Appeals, 521.

      C. S. Fetterman and S. A. Johnston for defendant in error.
    Smith v. Ege, 2 P. F. Smith, 419 ; Travis v. Smith, 1 Barr, 234; Prough v. Entriken, 1 Jones, 81; Schofield v. Ferrers, 11 Wr., 194; Nagle v. Mullison, 10 Casey, 48 ; McBride v. McLaughlin, 5 Watts, 375 ; Abrahams v. Cooper, 31 P. F. Smith, 232 : Mayfield v. White, 1 Browne, 241; Porter v. Seiler, 11 Harris, 424.
    November 14th, 1881.
   Per Curiam:

We find no error in the answers of the learned Court to the points presented. There was nothing in the information given to Gerdes, and communicated by him to Orr, which made probable cause for the latter to institute a prosecution for larceny. As it appears that the proceeding was a wanton and a reckless one, and especially if the design was to get back property alleged to have been wrongfully taken, which, if it was true, could only be remedied by a civil action, there was no error in the instruction to the jury on the subject of damages.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 283.
    Appeal of the Pittsburgh, Allegheny, and Manchester Passenger Railway Company et al.

    1. An act of Assembly incorporating a passenger railway company authorized it to lay tracks along certain streets of the city of Allegheny, “ Provided, that before said company shall use and occupy any of said streets, the consent of the councils of the city or borough within which the said street lies, shall first be obtained by ordinance duly passed.” By a supplementary act, which contained no direction requiring the consent of councils, the company was authorized to lay tracks between certain points, the route between which was partly within the city limits. Held, that before tracks could be laid under the later act, the consent of councils must be obtained.
    2. Acts in pari materia must be construed together.
    3. Though the company was incorporated in 1859, and the supplementary act was passed in 1861, the company was subject to the act of March 19, 1879 (P. L. 9), which provides that no street passenger railway shall be constructed without the consent of the local authorities.
    Appeal from Court of Common Pleas, No. 2, of Allegheny County, in equity.
    Bilí by the city of Allegheny against the Pittsburgh, Allegheny and Manchester Pailway Company, setting forth that the defendants were engaged in tearing up the cartway of certain streets of that city for the purpose of laying a railroad along those streets without authority of law, the consent of the councils of said city not having been asked or obtained, and praying that defendant be enjoined from tearing up said cartway and laying said rails, and be compelled to restore said streets, etc.
    The defendant in its answer averred that the work was being done under authority of the act of Assembly of May 16th, 1861, and that the consent of councils was not requisite.
    The master to whom the case was referred, reported the following facts, as established by the bill, answer, and proofs:
    The act of incorporation of the defendant company, approved April 12th, 1859 (P. L., 788), provided in §§ 1 to 7, for the organization of the company, described the kind of road to be built, named the streets and highways in Pittsburgh, Allegheny, the borough of Manchester, etc., on which the tracks of the railroad might be laid, gave power to the company to hold real estate, and to erect buildings and improvements, fixed the capital stock of the company, and divided the same into shares, provided for the issuing of letters patent to the company, conferring general and some specific corporate powers, regulated the declaration of dividends, gave the power to the corporation to borrow money, and regulated transfer of stock.
    The eighth section required the company, in constructing their railway, to conform to the grades established, or thereafter to be established, of the several streets traversed by the said railway, and to keep said street, from curb to curb, in perpetual repair, at the proper expense of said company, and contained the following proviso: “ Provided, That before said company shall use and occupy any of said streets the consent of the councils of the city or borough within which said street lies, shall first be obtained by ordinance duly passed.” . . . The ninth section provided the terms and conditions on which the said railwray company might acquire the right to use any plank-road or bridge. The other sections of the act provided the terms and conditions on which other passenger raihvay companies might use the tracks of the company incorporated by this act, required the company to purchase certain omnibus lines, defined the amount to be paid to the cities of Pittsburgh and Allegheny and the borough of Manchester upon cars and dividends, related to the gauge of the tracks, provided penalties for injury to the company’s property, related to the grading and paving of streets, laying gas and water pipes, fixed the fare to be charged on the cars, required the cars to stop at certain points, and limited the time within which the work of constructing the road was to be begun and finished. “ This act,” says the master, “ fully defines the powers of the corporation, and describes the streets and places on and over which their principal business of carrying passengers was to be carried on.”
    On May 16th, 1861, another act was passed by the General Assembly, entitled, “ A supplement to an Act incorporating the Pittsburgh, Allegheny and Manchester Passenger Railway Company ” (P. L., of 1862, p. 568), which contained but one section, as follows:
    “ Section 1. Be it enacted, etc., That the Pittsburgh, Allegheny and Manchester Passenger Railway Company be and they are hereby authorized and empowered to construct or extend their railway, by single or double track, from Federal Street, along Lacock Street, to Bank Lane, in the city of Allegheny ; and from the intersection of Federal and Ohio streets, in said city, along Ohio Street to Duquesne Borough; and, also, from Ohio Street to Spring Garden, in Reserve Township.”
    The company thereupon constructed a railway on La-cock Street, and from Federal Street along Ohio Street to Duquesne Borough.
    On May 24th, 1881, the board of directors of the defendant company resolved to build a branch railway from Ohio Street to Spring Garden, selected Chestnut Street and Spring Garden Avenue as the streets upon which to construct said railway, and gave orders to tear up the cartway of said streets, upon which this bill was filed by the solicitor of the city of Allegheny.
    The master further reported that there were five practicable routes for a portion of the way from Ohio Street to Spring Garden; for the rest of the way there was but one practicable route. The master proceeded to report: “The supplementary act of 16th of May, 1861, gave power to construct or extend tracks over streets and over a locality not mentioned in the original act. The plaintiff contends that this supplementary legislation did not extend the franchises and powers of the company. It was simply an addition to' the territory in which the powers and franchises might be exercised and used. . . . The defendants, however, claim that the granting clause of the act of 16th of May, 1861, has a much larger scope and significance, and in effect relieves the company of the burden of the proviso to the eighth section of the act, which requires the previous consent of the city or borough in which the street lay before the defendant company could lay its tracks on any street; but it is admitted by the defendants that all or nearly all of the provisions of the act of incorporation are applicable to the streets and places named in the supplementary act, especially such as relate to the grading of streets, the payment of tax on cars and dividends, and the requirement to keep the streets clean and in repair.” ....
    “ The object of the proviso in the original charter doubtless is to preserve the public rights in the streets. Bailway tracks might be a public nuisance on some streets. In some large cities they have been excluded from the great thoroughfares, while in others the cars are required to be run on single tracks, going on one street and returning on another. The councils of the city, representing the people of the municipal corporation, are supposed to be the proper judges of the wisdom and propriety of giving up the use of the streets of the city to passenger railway companies. There is nothing unreasonable in the proviso, nor is there any reason why it should be strictly construed, being in aid of the public interest. What potency can be found lurking in the granting-words of the supplementary act of the 16th of May, 1861, strong enough, though unseen, to repeal a proviso in a statute with which it is in no way inconsistent, and introduced into the statute for the protection of the public interests? The original act incorporating the company, and the supplementary act of May 16th, 1861, are in pari materia, and are to be construed together. The latter statute refers to the former to show the existence of the defendant company, its powers and franchises, and the law of its being and operation. The defendant company is referred to in the supplementary act as a corporation in existence, but it would be difficult to tell what its powers were, how it conveyed passengers, whether by horse or steam power; where its tracks were laid, the extent of its tracks, whether it had other powers besides those of carrying passengers, what obligations the company had assumed to the State or to the city where its operations were being carried on, without the reference which it makes in the title to the act of incorporation. The supplement, in its very nature, recognizes the act of incorporation and all legislation preceding the supplement, except in so far as it may be changed or modified by the supplement itself. The supplement and original act are in effect but one act, and the various provisions are to be construed in reference to each other and together, unless there be inconsistency and repugnancy, in which case the latest statute is to prevail. . . .
    “ Again, while the northern terminus of the proposed extension, to wit, Spring Garden, is fixed and determined by the act, the point of departure from Ohio Street is wholly uncertain. As shown by the testimony and found by the master, there are at least five different routes by which the company could have reached Spring Garden from Ohio Street over the streets of the city of Allegheny, but the supplementary act designates no route, nor does it even provide that the route shall be on and over streets. The words ‘street’ or ‘ highway ’ do not occur in this act. There is no power granted to use or occupy any street, much less a roving power to place their tracks on any of the streets north of Ohio Street, and east of Federal, and west of Dnquesne Borough. It seems to the master that the legislative intention was merely to legalize the extension of the road from Ohio Street to Spring Garden, in conformity with the charter of incorporation.”
    That, acts in pari materia must be construed as one act, the master cited Union Canal Co. v. O’Brien, 4 Rawle, 358-360 ; Transportation Co. v. N. J. Central Railroad, 4 Vroom, 229.
    The act approved 19th March, 1879, entitled, “Anact to provide for the incorporation and/or the government and regu

      lation of street railway companies now incorporated, or which may hereafter be incorporated, in cities of the second and third classes in this commonwealth” (P. L., page 9), in the sixteenth section, provides that “ no street passenger railways, or any branch or extension thereof, shall be constructed within the limits of any city, borough, or township, without the consent of the local authorities thereof, and subject to the conditions imposed thereby.”
    This act the master further reported is applicable to the defendant.
    The master therefore reported that a perpetual injunction should be granted.
    Decree having been entered in accordance with the report, the appeal was taken.

      Hampton & Dalzell and A. P. Brown for appellant.
    The greater part of the proposed extension is without the city limits, and the legislature never intended to make this grant dependent on the councils of Allegheny. The charter of 1859 and its supplement contain the proviso, and the acé of 1861 does not. The effect of the proviso should be limited to the enacting clause of the particular act in which it occurs: Pearce v. Bank of Mobile, 33 Ala., 693; Detroit v. Detroit Co., 12 Mich., 333; Jersey City v. Railroad Co., 5 C. E. Green’s Ch., 360.
    The route adopted was within the power conferred by the act, and the Court has no right to interfere with choice of roads where the termini are indicated in the act: Parke’s Appeal, 14 P. F. Smith, 137.

      W. B. Rogers and D. T. Watson for appellee.
    A corporation claiming rights against the public, especially concerning the use of public streets, must show undoubted authority from the State. Commonwealth v. Erie and N. E. Railroad, 3 Casey, 339; Commonwealth v. Central Passenger Railroad, 2 P. F. Smith, 506.
    All other charters of passenger railroad companies in Allegheny County, and all, or almost all, in Philadelphia County, require the consent of councils to be obtained to street occupation, and the new Constitution, art. 17, section 9, provides to the same effect. This settled policy of the State will regulate the interpretation of doubtful acts: Stevenson v. Deal, 2 Parsons, 212; Keeling’s Road, 59 Pa. St. 358; Philadelphia v. Lombard Street Passenger Railroad, 5 Phila., 248.
    The defendant having permissive authority to locate the branch to Spring Garden for twenty years, never acted on this authority, but by locating its route along Ohio Street in 1866, exhausted its powers. It was then competent for the legislature to subject the defendant company to any reasonable conditions with reference to this right. The enactments are not in pari materia: Rich v. Keyser, 4 P. F. Smith, 86.
    November 14th, 1881.
   Per Curiam:

We affirm this decree upon the opinion of the learned master in the Court below.

Judgment affirmed, and appeal dismissed at the cost of the appellant.


text:
    October and November Term, 1881,
    No. 287.
    Bell versus Lafferty.
    The holder of certificates of stock in a corporation, which were delivered to him with powers of attorney, signed in blank by the owner, as collateral security, but which stock was not transferred on the books of the company, cannot recover from the trustee of the company the amount of a dividend of its assets paid bona fide, and without notice, to a third party, who produced a later assignment of the dividend from the owner without the certificates.
    Error to the Court of Common Pleas, No. 1, of Allegheny County.

    Assumpsit by James M. Bell, trustee of the Western Savings Bank, against Hugh Lafferty.
    The following case was stated for the opinion of the Court below, in the nature of a special verdict:
    On November 1st, 1873, the South Side Fire Insurance Company, a corporation under the laws of Pennsylvania, doing business in the city of Pittsburgh, issued three certificates of stock to John Brown, two for twenty shares each, and one for ten shares, in the following form :
    THE SOUTH SIDE INSURANCE COMPANY.
    Number 73. Shares, 20.

      This is to certify, That John Brown, Esq., is entitled to twenty shares of one hundred dollars each in the capital stock of the South Side Insurance Company, on which fifty dollars cash has been paid in, balance secured by note. Transferable in person, or by attorney, on tbe books of said company, at their office in the city of Pittsburgh, on surrender of this certificate.
    Witness, the seal of the company and the signatures of the president and secretary, at Pittsburgh, Pa., this 1st day of November, 1873.
    E. B. Brown,
    President.
    [seal.] Edward Krieg,
    Secretary.
    On August 8th, 1874, John Brown signed the blank powers of attorney for the transfer of said stock to an unnamed party on the back of each of said certificates, and delivered said certificates to the plaintiff' as collateral security for the payment of a promissory note of that date for $1700, given by him'to said plaintiff for money then loaned to him. The note was not paid, but on July 14th, 1875, was finally renewed at four months for $1700, and on its renewal Broivn again pledged the stock as collateral, but the powers of attorney still remained in blank as aforesaid. This note still remains wholly due and unpaid. The said certificates of stock, ever since August 8th, 1874, have remained in the possession of tbe plaintiff, but lie never gave any notice of such possession or of his interest therein, either to the South Side Fire Insurance Company or to the defendant, until March 13th, 1878, when he notified Lafferty thereof by the following letter:

      “ Thompson, Bell & Co., Bankers,
    Pittsburgh, March 13th, 1878.
    “I-Iugh Laeeerty, Esq., Ass, S. S. Ins. Co.
    “ Dear Sir : We hold fifty shares of the South Side Insurance Company stock of which you are assignee, and understand that a dividend or dividends have been paid. This stock is in certificate in name of John Brown, and we have held the same since the early part of 1874. Please take notice that the dividends on said stock are due and coming to us. Yours truly,
    “James M. Bell,
    “ Cashier "Western Savings Bank.
    At No. 566, September Term, 1875, in the Court of Common Pleas, No. 1, of Allegheny County, Pennsylvania, on August 7th, 1875, upon the petition of its stockholders, the South Side Fire Insurance Company was decreed dissolved, and on May 13th, 1876, Hugh Lafferty was by the Court appointed trustee of said company. At the dissolution of the company Brown appeared by its books to be the owner of the fifty shares of stock aforesaid, and there was nothing to indicate on the books any transfer of said stock by him.
    On July 13th, 1876, out of the assets of the company, Lafferty declared a dividend to the stockholders of $15 per share, and on February 13th, 1877, a further dividend of $8 per share. Each of these dividends, at the time it was declared, was publicly advertised in the Pittsburgh Daily Dispatch on four successive days, but plaintiff, in point of fact, saw none of said advertisements.
    At the time the company went into dissolution it was expected that its assets would pay to the stockholders fifty per cent, of the stock owned by them.
    At the time the first dividend was declared the Union Savings and Deposit Bank presented to Lafferty the following paper:
    “For value received, we, the undersigned, John Brown, R. A. Brown, and J. C. Brown, do hereby assign, transfer, and set over to the Union Savings and Deposit Bank that dividend of the South Side Fire Insurance Company soon to be declared by said South Side Fire Insurance Company, and estimated to be fifty per cent, of the entire amount of the stock now owned and paid up by us in said company. The same to be applied toward the payment of our note.
    “ Witness our hands and seals this 1st day of October, A.D. 1875.
    “ John Brown. [seal.]
    “ R. B. Brown. [seal.]
    “John C. Brown.” [seal.]
    By this paper Brown intended to transfer to said bank whatever might be realized upon the stock in the settlement of said company. On the faith of this paper, and without any knowledge or notice of the claim of James M. Bell, trustee, Lafferty paid the full amount of the first and second dividends, to wit, $1150, to the Union Savings and Deposit Bank.
    On February 19th, 1879, Lafferty declared a third and final dividend of $1.50 per share of stock, but before he had paid over the amount thereof, viz., $75, accruing on Brown’s stock, he received notice from the plaintiff, as set forth.
    At the time of paying the dividends to said Union Savings and Deposit Bank the certificates were not produced or required to be produced by Lafferty.

      It is the usual practice of all corporations to refuse to allow stock to be transferred without the return of an outstanding certificate.
    The assignment was made to the Union Savings and Deposit Bank as collateral security for a debt actually due and owing by said Brown to the bank at the date of the exhibit.
    If the Court should be of the opinion that upon the foregoing statement of facts, the plaintiff is entitled in this action to recover from the defendant any or all of the foregoing dividends declared by him, then judgment to be entered for the plaintiff and against the defendant for the amount of such of said dividends as the Court may be of opinion that the plaintiff is entitled to recover, with interest from the date at which said dividends were declared and costs of suit. And if the Court shall be of opinion that the plaintiff is not entitled in this action to recover any of said dividends, then j udgment to be entered for defendant, with costs.
    The Court entered judgment as follows:
    “ Under the facts within stated we are of opinion that the plaintiff' is entitled to recover the amount of the dividend paid by the defendants after notice of plaintiff’s claim, but not for the amount paid before such notice. Judgment is therefore now directed to be entered for plaintiff and against defendant for $75, with interest from the date said notice was given.”
    Plaintiff then took a writ of error, assigning as error the above ruling of the Court.

      Thomas M. Marshall for plaintiff in error.
    The mere fact that Bell had not transferred the stock on the books of the company is not important. He could have enforced his right at any time: Wood’s Appeal, 11 Norris, 379. The assignment to the Union Savings Bank did not in terms cover the stock in question. Lafferty knew the certificates were out, and should have required their production: N. Y. & N. H. R.R. Co. v. Schuyler, 34 N. Y., 30. The advertisement of the dividends goes for nothing unless the plaintiff had actual notice.

      John S. Ferguson for defendant in error.
    Plaintiff has kept silence for four years. The corporation has been dissolved by decree of Court for over two years. Plaintiff cannot now invoke the doctrine of constructive notice.

      R.R. Co. v. Schuyler, supra, has never been followed in this State. Our rule is that the certificate is but secondary evidence: Bank of Commerce’s Appeal, 23 P. F. Smith, 59.
    November 21st, 1881.
   Per Curiam:

The Court below were entirely right in giving judgment on the case stated only for the amount paid after notice of the plaintiff’s claim. Until the defendant received such notice he was bound to pay to the party who appeared by the stock-book as the owner of the shares.

Judgment affirmed.


author: By the Court :

text:
    October and November Term, 1881,
    No. 161.
    Birmingham and Elizabeth Turnpike Road versus The Commonwealth.
    1. A turnpike company was incorporated under acts providing that, in case the company did not kéep the road in perfect order and repair, said fact having been first found by inquisition, the right of the. company to collect tolls should cease, till the road had been put into good repair: Held, that such acts were for aggrieved individuals, and that the remedy of the Commonwealth by quo warranto remained intact.
    2. The Act of 21st March, 1806 (P. L. 558), does not apply to such case.
    3. Evidence that the revenue of the said road was not sufficient to keep it in repair, was properly excluded from the jury.
    Error to Court of Common Pleas, No. 1, of Allegheny County.

    This was a proeeeding by quo warranto to try the title of the defendants to exercise the rights and franchises of a corporation.
    The Commonwealth filed an information, setting forth the act of incorporation of defendant, dated March 31st 1836, •authorizing the defendant to make a turnpike road between points therein mentioned, and averring, inter alia, as follows :
    “ 3. That pursuant to said authority said corporation was •organized and constructed the road mentioned in said act of Assembly, and for many years maintained the same in reasonably good order and repair, and during said time took tolls thereon, from persons passing thereover with their vehicles.
    “ 4. That about ten years ago said company permitted said road to get out of repair and ceased to do work thereon of any benefit, so that the same became during certain seasons of the year well-nigh impassable; that from said time until the present, during each and every fall, winter, and spring, when said road was in such bad order, condition, and repair as aforesaid, the said company permitted the toll-gates thereon to be thrown down and open, and ceased to take toll from passengers over said road, but in the summer-time, when by reason of good weather said road became again passable, would re-erect the toll-gates thereon and refuse to permit passage thereon, unless upon the full payment of tolls.
    “ 6. That although frequently notified of the said bad condition of said road, and requested to repair the same, the said corporation has declined and refused to repair said road, and to maintain it in good, or even reasonably fair condition, and although totally abandoning it during the fall, winter, and spring of each year, have uniformly insisted during the summer season upon taking toll for passage thereon, and have refused to permit the public to travel thereover without the payment of tolls.
    “ 7. And it is further charged and averred that for ten years last past, by reason of the wilful and persistent neglect-of said corporation to repair and maintain said road, the same has been a public nuisance, and the source of damage and loss to all persons and parties whose business require them to travel over the same, and that said road now remains in said condition and is now a public nuisance and source of damage as aforesaid.
    “ 8. That not only has said corporation, by reason of its abandonment for a large portion of the year during each and every year for ten years last past of its right to take tolls, lost said right, but in addition thereto, it has, as is now averred,by wilful misuse and abuse of its franchises forfeited its right to be a corporation and to take tolls upon said road.”
    And praying the Court to grant a writ, to be served upon the said the President, Managers, and Company of the Birmingham and Elizabethtown Turnpike Road, commanding them to be and appear in your Honorable Court at a time therein fixed, to show cause why they claim to exercise the right and franchises of a corporation.
    The respondents in their answer denied that they had ceased to do work on the road, but they admitted “ that at certain periods of the year, that is to say, from late in the fall until early spring, or between the middle of April and 1st of May, or thereabouts, the said road did become comparatively in a bad condition, owing to the loamy condition of the ground and the influence of rain and frost, and while said road was in such condition the gate or gates were allowed to be and remain open, and the collection of tolls suspended until said road was restored to a good and suitable condition for the public using the same.
    “ 3d. And further answering say, that the tolls collected for about ten years past, averaged about eight hundred dollars annually, all of which, save so much thereof as were paid to collectors, and applied to necessary incidental expenses, were applied, according to the best judgment of respondents, in repairing and maintaining said road, so that said road was, during the greater part of each year, in a reasonably good and safe condition, and was prevented, by means thereof, from falling, during the winter and early spring, into a much worse condition.
    * * * * *
    “ 8th. And further answering say, that said Commonwealth, by reason of any of the matters or things charged in said suggestion and not herein traversed or denied, ought not to have or maintain said writ of quo warranto, and is not in law or equity entitled to a decree of forfeiture of any rights, privileges, or franchises of said company, or of its corporate existence ; for that they say that by an act of Assembly of this Commonwealth, entitled ‘An act authorizing the governor to incorporate a company for making an artificial road-from the bank of the river Susquehanna, opposite the borough of Harrisburgh to Pittsburgh/ approved the 24th day of February, one thousand eight hundred and six, it is provided by section 14th, inter alia, in substance, that in case said company shall neglect to keep said road in perfect order .and repair, said fact being first found by inquisition, as therein provided, the right of said company to demand or •collect tolls shall cease until said road shall be put in good and perfect order and repair, as will more fully appear by reference to said act. And that by a supplement to the foregoing act, approved the ninth day of March, eighteen hundred and fourteen, section seven, incorporating ‘ The President, Managers, and Company of the Greensburg and Pittsburgh Turnpike Road Company/ it is therein provided that the said company ‘ shall have and possess all the privileges, authorities, and powers, and be subject to all the duties, qualifications, penalties, and restrictions, as are given and granted by the act to which this is supplementary,’ as by reference thereto will more fully appear. And that by an act of Assembly, approved the thirty-first day of March, eighteen hundred and thirty-six, incorporating said defendant company, it is provided that said company shall have like powers, authorities, and privileges, and be subject to all the duties, qualifications, restrictions, penalties, fines, and forfeitures, and be entitled to like tolls and profits, in proportion to the distance, as are given and granted to the President, Managers, and Company of the Pittsburgh and Greensburg Turnpike Company by the several acts of this Commonwealth; wherefore the said defendant company prays that it may be dismissed and discharged by the Court hereof and from the premises charged in said suggestion.”
    The Commonwealth demurred to the eighth paragraph of the answer, and joined issue as to the residue.
    On the trial the respondents presented the following points:
    “1. The acts of Assembly of Permsylvania under which the Birmingham and Elizabeth Turnpike Company is incorporated, and the general laws of the State having provided a remedy for the matters complained of in this case, which remedy is exclusive, there can be no recovery by the Commonwealth in this proceeding. Answer refused.
    “ 2. That under the pleadings there can be no verdict for the Commonwealth. Answer refused.”
    They also offered evidence that they had employed men during the summer to keep the road in as good condition as the revenues of the company would permit, and had expended all tolls and receipts on the road. This evidence was excluded.
    Verdict for the Commonwealth and judgment thereon that the corporation defendant be dissolved and its charter forfeited; that it be ousted and altogether excluded from its franchises, powers, and privileges, and that the Commonwealth recover costs.
    The respondent took a writ of error, assigning for error the sustaining of the demurrer to the eighth paragraph of the answer, the exclusion of the above evidence, and the manner and form of entering judgment on the verdict.
    The act of February 24th, 1806, § 14 (P. L., page 349), is as follows:
    “ And be it further enacted by the authority aforesaid, That if the said company shall neglect to keep the said road in good and perfect order and repair for the space of fifteen days, and information thereof shall be given to any justice of the peace of the proper county, such justice shall issue a precept, to be directed to tbe constable, commanding him to summon three judicious freeholders, to meet at a certain time, in the said precept to be mentioned, at the place in the said road complained of; of which meeting notice shall be given to the keeper of the gates or turnpikes between which the defective place is, and the said justice shall at such time and place, by the oath and affirmation of the said freeholders, inquire whether the said road or any part thereof, is in such good and perfect order and repair as aforesaid, and shall cause an inquisition to be made under the hands and seals of himself and a majority of the said freeholders; and if the said road shall be found by the said inquisition to be out of order and repair, according to the true intent and meaning of this act, he shall certify and send one copy of the said inquisition to each of the keepers of the turnpikes or gates between which such defective place shall be, and from thenceforth the tolls hereby granted to be collected at such turnpikes or gates, for the intermediate distance between them, shall cease to be demanded, paid or collected, until the said defective part or parts of the said road shall be put into good and perfect' order and repair as aforesaid ; but if the same shall not be put into good and perfect order and repair before the next Court of Quarter Sessions of the proper county the said justice shall certify and send a copy of the said.inquisition to the justices of the said Court, and the said Court shall thereupon cause a process to issue and bring in the bodies of the person or persons intrusted by the company with the care and superintendence of such part of said road as shall be found defective as aforesaid, and shall direct a bill of indictment to be sent to the grand inquest against the person or persons intrusted as aforesaid, and upon conviction shall give such judgment according to the nature and aggravation of the neglect, as the said Court in their discretion shall judge proper. Provided, The fine in no instance shall be less than ten dollars nor exceeding one hundred dollars, and the fine so imposed shall be recovered in the same manner as fines for misdemeanors are usually recovered in the said counties, and shall be paid to the supervisors of the highways of the place ■where the offence was committed, to be appropriated to repairing such highways as the township or county is bound to repair at the public expense thereof.”
    The act of March 21st, 1806 (P. L., p. 569, § 18), is as follows : “ In all eases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of Assembly of the Commonwealth, the directions of the act shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such, cases further than shall be necessary for carrying such act or acts into effect.”

      Thomas C. Lazear and S. Schoyer, Jr., for plaintiffs in error.
    The remedy given by the act of February, 1806, is exclusive under the act of March 21st, 1806. Koch v. Water Company, 15 P. F. Smith, 288 ; Commonwealth v. Capp, 12 Wright, 53 ; R. R. Co. v. McLanahan, 9 P. F. Smith, 23.
    The common-law rule is that a special remedy, given by statute, is exclusive. Commonwealth v. Leech, 8 Wright, 332; Shaeffier v. Jack, 14 S. & R., 426; Dunn v. Commonwealth, Ibid., 431; High on Extraordinary Remedies, §§ 16, 617, 649.

      W. B. Rodgers and D. T. Watson for appellee.
    November 21st, 1881.
   By the Court :

The remedies provided for in the charter were for aggrieved individuals, and the remedy of the Commonwealth by quo warranto was intact. It is not a case, therefore, in which the act of 21st March, 1806, has any application. It certainly was no answer that the revenue derived from the road was not sufficient to keep it in repair. There was, therefore, no error in the rulings of the learned Court, and the judgment of ouster was entirely right.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 245.
    Euwer versus Henderson.
    1. A. and B. owned adjoining lots. A. being about to build upon his lot, it was agreed by parol between them that A. should build the wall of his house partly upon B.'s land, and that B. should repay to A. one-half of the cost of the wall when B. should use it. Afterthe house was partly built, B. sold bis lot to O., who erected a building thereon, used a portion of the wall in so doing, and gave a bond and judgment to A. for one-half of the cost of the part so used. O. afterwards became insolvent, and B. bought back the property at sheriff’s sale. Held, That A. had no right of action against B.
    2. The bond of O. was accepted as payment, and all claim against B. was thereby merged and extinguished, and could not be revived by his purchase of C.’s title.
    3. The act of April 10th, 1849, ? 4 (P. L. p. 600), discussed.
    Error to tbe Court of Common Pleas of Lawrence County

      Assumpsit by John C. Euwer, administrator of John N. Euwer, deceased, against Anthony Henderson. Pleas non assumpsit, payment with leave, etc.
    The facts of the case are sufficiently set forth in the opinion of the Court below, Bredis, J., upon a question of law reserved at the trial:
    “In the fall of 1873,plaintiff's intestate and defendant (brothers-in-law) were the owners of adjoining lots fronting on the principal street of the city of New Castle, the buildings on which had been destroyed by fire. During that fall defendant erected on the rear of his lot a stone building, since known as the ‘ Stone Fort,’ the west walls of which were placed one-half on the land of plaintiff. In February, or March, 1874, the piaintiff’s intestate commenced the erection of a brick storehouse on the front part of his lot, and built one-half of the east wall on the adjoining lot. The jury have, by their verdict, found that defendant, who was the owner of the adjoining lot when the excavation was made, and while part of the cellar wall was building, gave his consent to one-half the wall of Euwer’s storehouse being erected on his ground, and verbally agreed to pay half the cost of the west wall aforesaid, when he used it.
    “ Before completion of the cellar wall, on the 23d of April, 1874, defendant sold his lot to Captain Gilliland. Gilliland paid part of the cost of the cellar wall to Long, the builder thereof, at Euwer’s .request, and settled with Euwer for one-half the brick wall erected after his purchase, giving Euwer his judgment-bond for the amount, which bond remains unpaid. Afterwards the title of Gilliland was purchased by defendant at sheriff’s sale, and defendant revested with the ownership of said lot.
    “ The plaintiff’, on the trial of this action, contended that the use of the wall by Gilliland, vendee of the defendant, was a use under the agreement between plaintiff and defendant, and in law a use by defendant, and made defendant liable to pay for one-half of the wall used by the building erected by Gilliland on the adjoining lot purchased from defendant. The jury were instructed, if they found from the evidence that defendant agreed to pay for one-half of the wall (about to be erected by plaintiff between the lots), on said wall being used by defendant, to render a verdict for plaintiff for one-half the cost of the wall used, -with interest from date of use, reserving the question whether the evidence showing such use to be by defendant’s vendee, and not by defendant, the plaintiff could recover.
    “ The city of New Castle has no ordinance on the subject of party walls, and there is no statute on the subject affecting this case, unless it be § 4, of act of 1849, No. 377 (P. L. 600).

      “ Without contract, therefore, Euwer would have had no right to build the wall beyond his own line, and, if he did so, the ad joiner could have treated it as a trespass, and compelled it to be taken down, or could have used it without paying anything for it. See Sherred v. Cisco, 4 Sandford, 480. We are of opinion that the parol license to erect the wall, followed by the expenditure of money in its erection by Euwer, was, after such erection, not revocable by Henderson, or his assigns. See Le Fevre v. Le Fevre, 4 Sergeant & Eawle, 244, referring to Short v. Taylor. Sufficient importance was not, however, we think, given at the trial to the fact that when Gilliland purchased, the cellar wall was not completed. We can see no reason why the license might then not have been revoked on paying to Euwer the amount expended by him on the faith of such license. This position was not, however, taken at the trial, and can, therefore, have but an indirect bearing on the question before us. Defendant was, of course, under no obligation to use the wall to support any building he might see fit to erect on the adjoining lot. He was only to pay when he used it; the use was optional with him. This is not the case of Burlock v. Peck, 2 Duer, 90, where defendant bound himself in writing to pay for one-half the wall when used, a covenant broad enough under the circumstances to cover use by a grantee of defendant.
    “We are of opinion that since the act of 1849, if not always, outside the city of Philadelphia, the first builder’s interest in a party wall is ‘ in law what it always was in fact, an interest in the realty,and not a mere personal right:’ Knight v. Beenken, 6 Casey, 374. That a verbal agreement to pay the half cost of the wall, when the party promising uses the wall, does not alter the legal position of the parties. It is but an agreement to do what the law would compel him to do. The owner of the house has no charge against anybody for the half thus built on his neighbor’s land, but the wall is his own, and the neighbor cannot use it without paying for so much of it as he intends to use, and on paying he may use it, and then the wall becomes a common wall, and each lot becomes appurtenant to the other, so far as needed for its support. The owner of the wall has, therefore, a contingent claim against the adjoining lot-owner, that he shall pay for his share of the wall before using it, though it is half on his own ground. The price to be paid is consequently a fixed lien on the lot, to be enforced by i’estraining the full use of it until the wall is paid forEoberts v. Bye, 6 Casey, 377.
    “ Though the statutes in regard to party walls in the city of Philadelphia are not in force in the city of New Castle, yet the principles thereby adopted are entitled, we think, to weight in deciding the question before us. The agreement of Euwer and Henderson had the effect of putting them in the same position towards each other in regard to their party walls, as though they had been subject to the statutes in force in Philadelphia. If Euwer had exercised his clear right to restrain the use of the wall until paid for, this difficulty could not have arisen. If Henderson had not become re-vested with the ownership of the adjacent lot, we doubt if this action would have been thought of by Euwer. Euwer’s dealings with Gilliland were inconsistent with a claim on defendant, and his demand has no equity, except the subsequent use by Henderson of a wall for which he had not been compensated.
    “ We think the view we take of the law protects the rights of all parties. Euwer is now dead. A few years will relieve his estate from any liability on verbal promises made by him. To hold that Henderson’s right to compensation for a future use of the party wall of the ‘ Stone Fort ’ is only against Euwer would be consistent with plaintiff’s position here, but not with justice or equity.
    “ If the contract has the effect claimed by plaintiff, why is the claim not for half of the entire wall ? Why should plaintiff’s right of recovery be measured and limited to so much of the wall as used by defendant’s vendee? Will plaintiff be entitled to a new action on every additional use of the wall ? All these difficulties and inconsistencies vanish when the principle we have adopted as ruling this ease is applied. It is simple, clear, and effective, and, while it secures rights, avoids litigation, does justice to the original parties to the agreement, and to their heirs and assigns forever.
    “ And now, to wit, November 3d, 1880, the counsel for plaintiff agreeing that judgment shall be entered for defendant non obstante veredicto, as though the point reserved had been broad enough to cover the fact admitted, that defendant’s agreement to pay for the wall when he used it was not in writing, and that defendant sold to Gilliland by articles of agreement before the brick wall, for half of which this suit is brought, was commenced, the Court do, on payment of jury fee, direct the prothonotary to enter judgment in favor of defendant non obstante veredicto.”

    The .entry of judgment for defendant was assigned for error.
    The act of April 10th, 1849, § 4, is as follows:
    “ In all conveyances of houses and buildings, the right to and compensation for the party wall built therewith, shall be taken to have passed to the purchaser, unless otherwise expressed, and the owner of the house, for the time being, shall have all the remedies in respect to such party wall as he might have in relation to the house to which this is attached.”
    This act applies only to Philadelphia County.

      Dana & Long and McMichael & McConnell for plaintiff in error.
    The act of 1849 applies only to Philadelphia. This was an express contract, not running with the land, but personally binding Henderson: Weld v. Nichols, 17 Pick., 538 ; Bloch v. Isham, 7 Am. Law Reg., N. S., 8 ; Burlock v. Peck, 2 Duer, 90.

      D. B. and E. T. Kurtz for defendant in error.
    The contract put the parties in the same position with regard to party walls as residents of Philadelphia County, under the act of 1721, under -which it has been held that the first builder has no lien upon the land of the second builder, but that his claim is a personal charge against the builder of the second house: Ingles v. Bringhurst, 1 Dallas, 341 ; Hart v. Kucher, 5 S. & R., 1 ; Todd v. Stokes, 10 Pa. St., 156.
    The obligation to pay rests only on the party using the wall, and when he uses it. In Bloch v. Isham, supra, the covenant was to pay when the covenantor, his heirs or assigns, used the walls; and in Burlock v. Peck, supra, the covenantor was to pay for the wall when used. Henderson did not use the wall within the spirit of the contract.
    October 31st, 1881.
   Per Curiam:

We are of the opinion that the judgment of the Court below was right. Henderson was originally liable upon his personal contract to pay for the party wall when he used it. He never did use it. It was broken into, and used by his vendee, Gilliland, who gave his bond and judgment to Euwer, not in any sense as collateral for Henderson, but as payment. The claim against Henderson was merged and extinguished, and it could not be revived by Henderson’s subsequently becoming the purchaser at sheriff’s sale of Gilliland’s title.

Judgment affirmed.