text:
    Moore versus Hanover Junction and Susquehanna Railroad Company.
    1. A contract of subscription to stock provided for the building of the H. J. & S. Railroad according to the survey made by the P. & R. Railroad Company. The original route ran within live hundred feet of M.’s mill. This route was changed so as to make it run about twelve hundred feet from said mill. M. contended that this change was material; that it was the location of the original survey which induced his subscription and that his interests were seriously compromised by the alteration, and in a suit against him on his subscription offered evidence to this effect, which the court rejected. Held, that the court erred, and that he should have been permitted to show that the alteration in the route was, as to him and his interest, a material variation.
    2. Miller v. Hanover Junction & Susquehanna Railroad Co., 6 Norris 95, distinguished.
    May 5th 1880.
    Before Mercur, Gordon, Panson, Trunkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 118.
    Assumpsit by the Hanover Junction and Susquehanna Railroad Company against Michael Moore, to recover on a subscription to the stock of said company. Defendant pleaded non-assumpsit.
    By an act approved March 28th 1872, the Hanover Junction and Susquehanna Railroad Company was created a corporation, and it was so decided in Railroad Co. v. Haldeman, 1 Norris 36. It was authorized to build a railroad from “ a point at or near Hanover Junction, in York county, extending to the west hank of the Susquehanna river, in York county.” It was also authorized “ to build a bridge across the Susquehanna river at the most convenient point, to enable them to connect with any other railroad constructed, or that may hereafter be constructed, on the east side thereof, and to extend their railroad on the west side of said river to said bridge, and across on the same to the points of annexion with such other railroads as aforesaid.”
    The company has not built any railroad on the west side of the river, nor any bridge across the river, hut it took subscriptions towards what it commonly calls “ The eastern extension of the Hanover Junction and Susquehanna Railroad,” which subscriptions contained the following conditions :
    “ And it is further agreed, that we, the citizens of Marietta and vicinity, do subscribe the amount opposite our respective names, on the following conditions, viz :
    “That the amount hereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, the same having been adopted at the last meeting of the Hanover Junction and Susquehanna Railroad Company, and it is further agreed, that there shall be a first-class station erected in Marietta by said company.
    “ Further, the said subscription shall only be paid when the sum of |100,000 shall have been subscribed for this purpose,'by the citizens residing at or near the line of said above extension in Lancaster county.”
    This route, commonly called the Reading survey, was well known; it passed through the land of M. II. Moore, defendant, and about five hundred feet from his flour-mill, and, at the time he subscribed in 1873, was staked out through his land, and he was assured that it was under contract and would be built. After he subscribed, and after the road was under contract for grading, the company changed the route, abandoned the route of the “ Reading survey, ” and adopted and graded another line twelve hundred feet farther away from Moore’s mill, and entirely off his land,-and changed the terminus at the Reading and Columbia Railroad nearly a mile, and the change Moore alleged was injurious to him. This was done without any consultation with or consent of Moore, and without any waiver by him of the conditions in the subscription.
    At the trial, before Livingston, P. J., the defendant offered to show that if the road had been built, as staked out through his property at the time he subscribed, it would have been an advantage to his mill property and his milling operations, and that as it is, graded outside of his land and further away from his mill, it is of no advantage.
    Plaintiff objected and the court rejected the offer. (Eighth assignment of error.)
    Also, to show that at the time he made the subscription he would not have made it, if the road was to be built on any other route than the one staked out through his property, and that this road as staked out through his property was the inducement for him to make the subscription.
    Objected to and objection sustained. (Ninth assignment.)
    Also, to ask a witness the following question, which the court disallowed: “Would you have subscribed at the time you did, if you had been informed or had known that the road would be graded or built where it now is, and not on the liiie that was then staked out?” (Seventh assignment.)
    The first point of the plaintiff, which the court affirmed, was as follows: If the jury believe that the railroad was to be built between some point on the Susquehanna river and the Reading and Columbia railroad, in accordance with the terms of the charter of the corporation plaintiff the defendant having failed to show that the modifications of the original survey were not in accordance with what was the understanding of the subscribers as to the real object to be effected, and having failed to show that they were not useful to the public and were prejudicial to the company, the verdict must be for the plaintiff. (First assignment.)
    The court directed the jury to find for the plaintiff. (Sixth assignment of error.) '
    . The first point of the defendant, which the court refused, was as follows: The condition in the subscription signed by the defendant, that the amount thereby subscribed shall be devoted to the building and equipping of the extension of the Hanover Junction and Susquehanna Railroad, according to the survey made by the Philadelphia and Reading Railroad Company, if said location was the inducement to the defendant’s subscription, is valid and binding on the plaintiff, and any change made by the plaintiff of such location or line injurious and disadvantageous to the defendant would release the defendant from his subscription. (Third assignment.)
    Verdict accordingly, when defendant took this writ and alleged that the court erred, inter alia, as set forth in the foregoing assignments of error.
    E. D. North and N. M. North, for plaintiff in error.
    In Miller v. Hanover Junction & Susquehanna Railroad Co., 6 Norris 95, it was decided that the subscriber to this same subscription paper could not set up a parol condition for a line different from that mentioned in the subscription, that he could not set up a condition not in the subscription, and now the court below decides that Moore cannot set up the one that is in the paper. Moore being bound by the written contract, the company and the other subscribers must also be bound. If he could not show a different contract, why should they be allowed to set aside their agreement made with him, and enforce on him an agreement of their own, to which he never gave his consent and which would be of no advantage whatever to him and which he never would .have made. The court below affirmed plaintiff’s first point and thereby said that it was the duty of the defendant “ to show that the modifications of the original survey were not in accordance with what was the understanding of the subscribers as to the real object to be effected, and to show that they were not useful to the public and were prejudicial to the company.” In the Miller case, the court said the understanding of the subscribers was in the written subscription, and no other could be shown, and now the court below says Moore should have shown that, there was no other than the one in the writing — that he could not establish his contract by producing the writing, but must show there was no other understanding. Any change in the route material or injurious to the subscriber, releases him : Plank Road Co. v. Arndt, 7 Casey 317; Culey v. Railroad Co., 30 P. F. Smith 363; Miller v. P. & C. Railroad Co., 4 Wright 239.
    The offers of evidence were to show that the line of the Reading survey was the inducement to Moore to subscribe, that he would not have subscribed to the line as graded, and that the former would have been a benefit, and that the latter was of no advantage to him.
    May 17th 1880.
    We admit that under our theory if the defendant could rest his defence on the violation of the written conditions by the company, the offers would be irrelevant, but under the theory of the court that the violation by the company must be a material one, they were clearly admissible: Caley v. Railroad Co., supra. See also Plank Road Co. v. Arndt, supra.

      George Nauman, William B. Given, and S. S. Reynolds, for defendant in error.
    The authorities cited by the plaintiff in error are all applicable to a case where a contract is made between a subscriber and the company alone, and where there are no other parties interested. In this case the contract was made with others. We submit that, in the first place, to release a subscriber, there must be an alteration of the termini, or of a material part of the route. In Caley v. P. & C. Railroad Co., 30 P. F. Smith 369, it is said that to effect a release, the company must determine to abandon the termini or some material part of the route. And in Plank Road Co. v. Arndt, 7 Casey 317, it is held that there must be an alteration of one of the termini to discharge the subscriber. In this case there was no change of the termini, or alteration of any material part of the route. In fact, there is no case in which it has been held that a change of intermediate points, if not material to the enterprise, was sufficient to release a party subscribing. But in a case like this, we contend that where there is an alteration of the route, it must, to avail any one, be one which discharges all. There must be such a material change in the enterprise as discharges all. A mere inconvenience to one is not enough. Modifications and improvements useful to the public and beneficial to the company and in accordance with the understanding of the subscribers as to the real object to be effected, do not impair the contract of subscription: Everhart v. Railroad Co., 4 Casey 353.
   Mr. Justice Gordon

delivered the opinion of the court,

The main principles involved in this case were examined and passed upon in the case of the Hanover Junction and Susquehanna Railroad Co. v. Haldeman, 1 Norris 36. There, with the same corporation and same subscription list, as in the case now under consideration, it was, by this court, determined that the defendant’s subscription was properly treated as conditional, that the plaintiff had the power to bind itself to the performance of the stipulations contained in such subscription, and that a want of purformance thereof by the company would release the subscriber. In like manner it was held, in Caley v. The Philadelphia and Chester County Railroad Co., 30 P. F. Smith 363, that where the sudseription paper set out the termini and route of the proposed improvement, a material variance from either would operate as a release of a subscriber. As a reason for such conclusion it was said: If the above-stated doctrine be not correct, then has the defendant no remedy; for, as the directors, in changing the route of their road, are acting within the power conferred by the charter, he cannot prevent such change, though violative of the terms of the contract. He, therefore, occupies much the same position, in which, as we have shown, the general stock subscriber is placed when such change is made by virtue of an Act of Assembly.” Following these authorities, and the conclusion necessarily results, that the court erred in not permitting the defendant to show that the alteration made by the company'in the original route of its road, was, as to him and his interests, a material variation. The written contract to which he put his name, provided for the building of the extension of the Hanover Junction and Susquehanna Railroad, “ According to the survey made by the Philadelphia and Reading Railroad Company,” and this ran, it is said, within five hundred feet of the defendant’s mill. If then this was the contract of the parties, on what ground may the plaintiff recede from its part of the bargain and yet hold the defendant ? Is it on the ground that a change of a few hundred feet from the original survey is immaterial, and, therefore, the defendant is not harmed ? But this is the very point of the controversy, and who is to determine it ? The defendant contends that this change was material; that it was the position of the original survey which induced his subscription, and that his interests are seriously compromised by the alteration. If, as was held in Everhart v. The Railroad Co., 4 Casey 339, per Woodward, J., an essential modification in the charter of a company, either as to its objects or methods of execution, will release a general subscription, much more will the direct act of the company, destructive of the terms and conditions of its own contract, work such release. To all the subscribers to the stock of the corporation plaintiff but the defendant the alteration complained of might be indifferent or even advantageous, hence, they could not be heard to complain, whilst as to him, it might be very injurious : a material violation of his contract. To this conclusion the case of Miller v. Railroad Co., 6 Norris 95, has been opposed, but this case and the one in hand are as wide apart as the poles. In that case the defendant, Miller, set up a secret parol condition in order to defeat his subscription, but it was held that he could not be permitted so to do, on the ground that it would be unjust and a fraud upon his co-subscribers to permit him, on such grounds, to escape responsibility, and thus throw upon them an additional burthen. But the defendant, in the case in hand, is attempting to set up no secret parol arrangement, but a condition found in the subscription paper itself, and one to which all knew the company was to be held. We have, therefore, no hesitation in sustaining the 3d, 6th, 8th and 9th exceptions of the plaintiff in error. Not so the 7th exception. The defendant might have been asked whether or not the line of the proposed road, as found upon the ground running through his land, was an inducement for his subscription, but-it partakes too much of the character of guesswork for any one to undertake to say what he would have done under circumstances at the time unknown and unthought of. The plaintiff’s first point ought to have been refused; the doctrine involved in it, as a general rule, is no doubt correct, but it is not applicable to the present case without material modification. The remaining exceptions are dismissed as containing nothing tending to convict the court of error.

The judgment is reversed and a new venire ordered.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Bernar versus Dunlap.
    1. To support an action for malicious prosecution both want of probable cause for the prosecution and malice in the prosecutor must be shown.
    2. Want of probable cause does not establish legal malice to be declared by the court, but it is evidence of malice proper to submit to a jury.
    3. In an action against the prosecutor, if the plaintiff proves he was discharged by the examining magistrate, the burden of proof that there was probable cause, as a general rule, is cast on the defendant. If, however, the plaintiff’s own testimony shows the existence of probable cause, it lifts that burden from the defendant.
    4. In an action for malicious prosecution by B. against D., the magistrate before whom the complaint had been made was called by B. and testified: “ D. was at my office with O.; the latter said he had seen the stolen property in possession of B. My recollection is that G. said they were D.’s property. I then recommended the complaint to be made.” This evidence was uncontradicted. Held, that there was sufficient evidence of probable cause to justify the court in ordering a nonsuit.
    5. Undecided whether the advice of the magistrate should have the same protective power as the advice of counsel learned in the law.
    May 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 107.
    Trespass on the case, by Samuel B. Bernar against Stephen H. Dunlap, for malicious prosecution.
    Bernar was arrested, on the complaint of Dunlap, for the larceny of a pair of gloves. Dunlap did not appear, and the case was dismissed by the alderman. At the trial of the present case, before Livingston, P. J., the plaintiff gave his own testimony, and called various witnesses to prove his good character. He also called the alderman, who testified: “ Mr. Dunlap came to my office in presence of Mr. Curtis, and Mr. Curtis said he had seen Dunlap’s gauntlets in possession of Mr. Bernar; my recollection is that Curtis said they were Dunlap’s gauntlets; I then recommended the complaint to be made. Some three or four days after suit was brought, when the goods were not found, Dunlap came to have the complaint dismissed or discharged; plaintiff didn’t wait for that suit at my office.”
    When the plaintiff rested, the defendant moved for a nonsuit, which the court granted.
    The plaintiff subsequently obtained a rule to strike off the non-suit, and assigned the following reasons therefor: 1. There was want of probable cause shown sufficient to send the case to the jury, since the plaintiff in the criminal prosecution “had been discharged by the examining magistrate,” and the burden of showing affirmatively that there was probable cause rested upon the defendant. 2. There was want of probable cause shown sufficient to send the case to the jury, when the plaintiff proved good character, and that he lived in the same neighborhood where defendant resided, and frequently met defendant, and knew him by sight. 3. Want of probable cause having been shown sufficiently, it was unnecessary to prove malice, that being a question for the jury. 4. There was sufficient evidence produced to either put the defendant to his defence or send the case to the jury.
    The court discharged the rule, Livingston, P. J., saying: “ A full examination of the notes of the trial and the authorities cited, as well as other authorities bearing on the same point, satisfies us that the judgment of nonsuit was properly entered, and should not be stricken off.”
    The plaintiff took this writ, and alleged that the court erred in discharging the rule.

      Benjamin B. Davis, for plaintiff in error.
    It was held in Smith v. Ege, 2 P. F. Smith 419, that where the plaintiff below had been discharged by the examining magistrate, the burden of showing, affirmatively, that there was probable cause rested upon the defendant. It is said in 2 Greenl. Ev. 455: “ The discharge of the plaintiff by the examining magistrate is prima facie evidence of the want of probable cause sufficient to throw upon the defendant the burden of proving the contrary.” Substantially the same view was taken in Secor v. Babcock, 2 Johns. 203, and Stone v. Crocker, 24 Pick. 81. It is also laid down in Israel v. Brooks, 23 Ill. 575, that proof of good character is evidence of want of probable cause. As the plaintiff below in this case showed that the complaint for larceny against him was dismissed by the examining magistrate, and that he possessed a good character at the time complaint was made, this was sufficient evidence of want of probable cause to either put the defendant below on his defence or send the case to the jury.

      May 17th 1880,
    The advice of counsel to excuse the defendant in an action for malicious prosecution must come from a member of the bar: Walter v. Sample, 1 Casey 275. Defendant is not protected by the advice of the alderman.

      B. Frank FsMeman, for defendant in error.
    The court sustained the motion for nonsuit, because the plaintiff had shown that a theft had been committed. A complete absence of any malice against the defendant was apparent, in that the parties were strangers to each other. Dunlap had shown that probable cause, or a reasonable ground for belief of guilt existed in the mind of the prosecutor, because he had been reliably informed that the stolen goods were in the possession of the suspected party; and he had further shown that which must give the prosecutor complete absolution from all liability, viz., that after he had heard all the facts, and they were stated to the alderman, that official advised the bringing of the criminal proceedings.
    To support an action for malicious prosecution, both malice and want of probable cause must be shown: Dietz v. Langfitt, 13 P. F. Smith 234; Le Maistre v. Hunter, Bright. 494; Lyon v. Fox, 2 Bro. R., App. 67.
    A citizen will not be punished who acts fairly and honestly upon the advice of an alderman: Rosenstein v. Feigel, 6 Phila. R. 532; Thomas v. Painter, 32 Leg. Int. 90.
   The judgment of the Supreme Court was entered,

Per Curiam.

It is well settled that to support an action for malicious prosecution both -want of probable cause for the prosecution, and malice in the prosecutor must be shown. Want of probable cause does not establish legal malice to be declared by the court; but it is evidence of malice proper to submit to the jury.

In an action against the prosecutor, if the plaintiff proves he was discharged by the examining magistrate, the burden of proof that there was probable cause, as a general rule, is cast on tho defendant. If, however, the plaintiff’s own testimony shows the existence of probable cause, it lifts that burden from the defendant. Such was the case here. The fact is unquestioned that the property of the defendant was stolen. The plaintiff proved by the magistrate, before whom the complaint was made, that the defendant was at his office with Mr. Curtis, that Curtis said he had seen Dunlap’s gauntlets in possession of"Mr. Bernar; my recollection is that Curtis said they were Dunlap’s gauntlets; I then recommended the complaint to be made.” It is unnecessary now to decide whether the advice of the magistrate shall have the same protective power as the advice of counsel learned in the law. The other fact proved is sufficient-protection. The express and distinct statement of Curtis, made to both prosecutor and magistrate, gave probable cause. Nothing is shown proving that the statement was not honestly made by Curtis, and in entire good faith believed by the defendant. So believing, the defendant made the complaint. This evidence was uncontrad'icted, and fully justified the learned judge in ordering a judgment of nonsuit.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Porter’s Appeal. Eberle’s Estate.
    I- Parol evidence to show what was the actual testamentary intentions of a testator, such as his declarations of what he had done or meant to do, is inadmissible, but it is competent to determine which of several persons or things was intended under an equivocal description.
    2. Where a will is artistically drawn, and evinces an accurate use of technical terms, the presumption that the testator used them in their legal sense, will not be so easily overcome as if the will bears on its face evidence that it was drawn by an illiterate man.
    3. No rule of interpretation requires or permits the well-settled meaning of an apt word in a will to be set aside by a direction which admits of a construction consistent with that meaning.
    4. In a will which was artistically drawn the testator provided: “The note of §4000, dated August 6th 1861, bearing interest at the rate of five per cent, per annum, which I hold against my daughter Mary; and the one of §3000, bearing date the same day at the same rate of interest, which I hold against my son Benjamin, are deemed by me as advancements to the respective drawers thereof; and I order and direct that they be valued and appraised at their full amounts as assets of my estate in the hands of my executors, and to be respectively paid and accounted for by the respective drawers thereof at the first distribution of the residue of my estate, out of their respective shares therein.” Held, that the term advancement was used in its. technical sense by the testator, and it was not affected by the direction of the will, and it was error therefore to charge interest tin the note of the daughter in the distribution of the testator’s estate.
    May 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1880, No. 179.
    Appeal of Mary O. Porter, from the decree of the court, dismissing the exceptions to, and confirming the report of the auditor, in the distribution of the estate of Henry Eberle, deceased. Henry Eberle died in February 1876, leaving five children, and a will dated October 15th 1875, which contained the following clause: “ The note of $4000 dated August 6th 1861, bearing interest at the rate of five per cent, per annum, which I hold against my daughter Mary; and the one of $3000, bearing date the same day, at same rate of interest, which I hold against my son Benjamin F. Eberle, are deemed by me as advancements to the respective drawers thereof, and I order1 and direct that they be valued and appraised at their full amounts as assets of my estate in the hands of my executors, and to be respectively paid and accounted for, by the respective drawers thereof, at the first distribution of the residue of my estate put of their respective shares therein.”
    The note of his daughter Mary, who was intermarried with George W. Porter, was as follows:
    u One year after date I promise to pay to Henry Eberle, Sr., or order, Four Thousand Dollars, without defalcation, for value received, with interest at five per cent, per annum until paid. Witness my hand and seal this sixth day of August, One Thousand Eight Hundred and Sixty-one.
    “ Witness :
    “A. M. Hershey. Mary C. Porter, [seal.]”
    By the terms of his will, the executors of the testator, John H. Zeller, and testator’s son Benjamin F. Eberle, were directed to sell his real and personal property, and the proceeds of his residuary estate were to be divided in equal shares among his five children. When they filed their inventory the executors included therein the two notes of Mary C. Porter and Benjamin F. Eberle, with interest charged thereon to date of filing said inventory. Benjamin F. Eberle accounted for the amount of his note $3000, with the interest $2347.91, and the executors charged themselves with $5347.91. Mrs. Porter claimed that while the principal of her note was to be deducted ■ from her share, under her father’s will, she was not to be charged with interest thereon; that by the terms of said will, said principal was converted into an advancement, and that it did not carry interest.
    The executors’ account was referred to an auditor, A. Slay-maker, Esq., before whom it appeared that when Mary C. Porter gave her note .to her -father, she was a married woman; that she gave said note to her father at his request to secure certain endorsements made by him to her husband, George W. Porter, who died in 1863. The testator subsequently learned that the note was void because of Mrs. Porter’s coverture. Parol evidence was offered of declarations made by the testator in his lifetime, to the effecLthat Porter had gotten the money, and that it went through his hands, and that Mary had no benefit therefrom, and that he thought therefore it was not right to charge her with interest on the money; that he had a notion to try to fix it, and give her a receipt for the interest; that he had come to the conclusion, that to give satisfaction, he must charge Mary with the $4000, but no interest thereon. This evidence was taken, but was afterwards excluded by the auditor as inadmissible.
    The auditor, inter alia, reported:
    “ The testator’s plan for the distribution of his property was manifestly to convert it all — personalty as well as realty — into money, and the fund so produced to distribute equally among his children (except Simon, as to whom it was uncertain whether he was yet living), in the shares of two of them, Mrs. Porter and Benjamin F. Eberle, to be reckoned, however, certain claims which he held against them respectively on notes under seal, both of date August 6th 1861, and alike bearing interest at the rate of five per cent, per annum, of which that of Mrs. Porter was for $4000 and that of B. E. Eberle was for $3000.
    “ The note of the former, having been executed during the lifetime of her husband, was void, and being therefore entirely valueless as an asset of the estate, there was no mode in which the payment of the debt for which it was given could be secured, but by providing in the will for its deduction from her share of his estate. The testator has provided for such a deduction, but has he done so in such terms as to make it inclusive of interest upon the principal ?
    “ The provision on that subject constitutes the fourth item of the will which has already been recited, and need not now be repeated. After describing the notes, it states that ‘they are deemed by me (the testator) as advancements to the respective drawers thereof,’ and if this were all that was said upon the subject, there could unquestionably be no charge of interest upon them. The item, however, does not so end, but proceeds further to provide ‘ that they (the notes) shall be valued and appraised at their full amounts, as assets of my estate in the hands of my executors, and to be respectively paid and accounted for by the respective drawers thereof at the first distribution of the residue of my estate out of their respective shares therein.’
    “ Now, an advancement being an irrevocable gift of the money or property which is its subject, that money or property ceases definitively thereafter to belong to the donor, and of course upon his death is neither to be included in the inventory of his estate, nor appraised as a portion of its assets. It is evident, therefore, that the testator has here used the term without any distinct perception of its technical meaning; and that his intention in the provision is to be determined, not from its use alone, but from the general scope and effect of the phraseology employed to express that intention.
    “ Whatever the testator chose to call these notes, he had unquestionably a right so to dispose of his estate, that the presumptive shares therein of the respective drawers of the notes should be diminished by the amounts for which they were severally given. That he so intended as to the principal is certain ; and, observing the particularity with which, in the final clause of the item under consideration, he has directed the notes to ‘ be valued and appraised at their full amounts as assets of his estate, in the hands of his executors, and (so appraised) to be respectively paid and accounted for by the respective drawers thereof,’ it has seemed to the auditor impossible to escape the conclusion that the diminution -of the shares of the drawers of the notes was intended to include interest as well as principal.

      “ In this distribution, therefore, the share of Mrs. Mary Porter will be merely her fifth part of the residue of this estate, after deducting therefrom the principal of her note of August 6th 1861, with interest therefrom from that date to the time of the filing of this report,” * * *
    Exceptions filed to this report were dismissed, and the report confirmed, the court, Livingston, P. J., saying:

      “ We have examined the authorities cited, the will of the decedent, the able report of the learned auditor and minutes of audit, and have felt obliged (though reluctlantly) to arrive at the same conclusions presented to the court by the auditor.”
    Patterson, A. L. J., dissented, holding that the $4000 to the daughter, Mrs. Porter, was an advancement, and did not carry interest.
    From the above decreé this appeal was taken.

      S. N. Reynolds and H. C. Brubaker, for appellant.
    Technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense, and that other can be ascertained: Hawkins on Wills, Prop. 3, sect. 4.
    All the cases prove that the presumption of law with reference to the use of technical words and expressions in a will is that they are to be taken in their ordinary legal sense, and are not to be overcome by other words in the will merely incongruous with such an intention: Doebler’s Appeal, 14 P. F. Smith 15; Green v. Howell, 6 W. & S. 203; Hall v. Davis, 3 Pick. 450.
    It matters not for what purpose the note was originally taken, whether testator intended at the time to hold it as evidence of a debt for moneys loaned which he expected at some future time to recover back, or intended it as an advancement, for by the terms of his will he gave it a distinctive character; he declared the note for $4000 to be an advancement, and thereby attached to it all the usual incidents, one of which was that it should not bear interest, but be valued- as of the time of the gift.

      N. JEllmaker, D. Gf. BsMeman and H. M. North, for appellees.
    Whether the transfer by the father to the child is an advancement or a loan, is a question of intention at the time the transaction is completed, and it cannot be changed afterwards by either of the parties without the consent of the other: Miller’s Appeal, 4 Wright 57; Oller v. Bonebrake, 15 P. F. Smith 338. In this case the father took a note, payable in one year after date, with interest at the rate of five per cent. That is presumed to be a debt and not an advancement: Roland v. Schrack, 5 Casey 125; High’s Appeal, 9 Harris 283. Did the testator intend by his will to change this debt into an advancement? Technical words are taken to be used in their proper technical sense, but they are not permitted to overturn the intent of the testator, when that intent clearly appears to be different: Doebler’s Appeal, supra; Yarnall’s Appeal, 20 P. F. Smith 336, 340. And the intention of the testator, of each will separately, is to be gathered from its own four corners : Provenchere’s Appeal, 17 P. F. Smith 463; Gilbert’s Appeal, 4 Norris 347, 350. The legal construction of a will cannot be affected by the parol declarations of the testator : Comfort v. Mather, 2 W. & S. 450; Woodman v. Good, 6 Id. 169
    May 17th 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

The intention of the testator is the prevailing consideration in applying all rules of construction. It is the intention of the testator expressed in the will that is to govern ;^and this is to be judged of exclusively by the words of the instrument, as applied to the subject-matter and surrounding circumstances. Parol evidence to show what were the actual testamentary intentions, such as his declarations of what he had done or meant to do, is inadmissible ; but it is competent to determine which of several persons or things was intended under an equivocal description. In construing the autograph will of an illiterate man, the meaning of technical language may be disregarded, but no word which has a clear and definite object may be struck out. Technical words and phrases, although prima facie to be taken in their true sense, will not be construed so as to defeat any obvious general intention of the testator, since wills are often prepared by persons wholly unacquainted with the precise technical force of legal words and formulas. In seeking for the expressed intention of the testator, his words are to receive that construction and interpretation, which a long series of decisions has attached to them, unless it is very certain they were used in a different sense. These oft-repeated rules are recalled by the question now presented.

This will is artistic and evinces an accurate use of technical terms. Hence, the presumption that the testator employed them in their legal sense, will not be so easily overcome as if the will bore on its face evidence that it was drawn by an ignorant man. Here is no exhibition of such illiteracy as calls for a departure from the actual meaning of its words to a real or supposed popular sense, but rather such skill as induces belief that its words, which have been judicially defined, were understandingly employed.

An advancement is an irrevocable gift by a parent in his lifetime, to a child, on account of such child’s share in the parent’s estate. It is valued as of the time of the gift. Therefore, interest is not chargeable thereon, unless there be clear expression that it shall carry interest, as was the case in Fickes v. Wireman, 2 Watts 314. Statutory provisions respecting advancements are applicable only to the children of intestates.

When the parent, giving money to a child, takes a note for its repayment, it is a debt. If such note be void because the maker was a married woman, the money is not an advancement. But a parent has power by his will to turn a debt into an advancement, and when he does so, he gives it all the usual incidents, one of which is that it shall be valued as of the date the child received the money. It will not continue a debt as regards interest, and a gift as regards principal, unless he plainly says so: Green v. Howell, 6 W. & S. 203; Hutchinson’s Appeal, 11 Wright 84.

In this case the testator declared that he deemed the note he held against his daughter, Mary, as an advancement, and directed that it be valued and appraised at its full amount, as assets of his estate in the hands of his executors, and to be paid and accounted for by her at the first distribution of- the residue of his estate, out of her share therein. In unmistakable phrase, he turned the debt into a gift to be valued at the date of the note. The word advancement occurs nowhere else in the will, nor is there anything to show it was not used in,its legal sense. The advancement is directed to be valued and appraised at its full amount, as assets for distribution, and to be deducted from her share. Of what date shall it be valued ? Giving every word its proper meaning, at'the date of the gift. Its full amount is the face of the note without interest. To l< be valued and appraised ” has no significance as showing inclusion or exclusion of interest; for even if the note were a debt, mere appraisement means its amount either with or without interest, according to the contract. A debt on interest by contract or overdue, converted into an advancement and directed to be appraised as part of the assets, is taken without interest unless otherwise expressed. No case has been found to the contrary.

We are of opinion that the testator’s intention expressed in his will is not doubtful; but if it be, no rule of interpretation requires or permits the well-settled meaning of an apt word to be set aside by a direction, which admits of a construction consistent with that meaning. It was error to charge Mrs. Porter any interest on the principal sum of $4000, which was made an advancement to her.

Decree reversed, and it is ordered that the record be remitted to the Orphans’ Court for further proceeding. Costs of this a-ppeal to be paid by the executors out of the moneys of the estate.


author: Mr. Justice Paxson,

text:
    Rudy's Appeal.
    1. Where land is sold at sheriff’s sale only those creditors whose claims were liens on the land at the time of the sale, and the owner of the land, can participate in the distribution of the proceeds.
    2. Land of H. was sold as the property of K., who was the vendor of H. The proceeds were awarded to a judgment-creditor of II. and the balance to H. as owner. R., a judgment-creditor of K., whose judgment had not been revived, as against LI., claimed the fund on the ground that II. had made a prior promise to K. to pay R.’s judgment, and that he had by a parol contract with K. assumed the debt and.promised to pay it. Held, that R. had no standing to participate in the distribution.
    May 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 69.
    Appeal of Benjamin L. Rudy, executor of John Rudy, a judgment creditor of Michael Kauffman, from the decree of the court distributing the proceeds of the sheriff’s sale of certain land, sold as the real estate of said Kauffman.
    The land was sold under two writs issued from the Court of Common Pleas: Benjamin Rudy, executor of John Rudy, deceased, v. Michael Kauffman, April Term 1879, No. 42, and Benjamin Rudy v. Michael Kauffman, April Term 1879, No. 43.
    Wm. Aug. Atlee, Esq., was appointed auditor .to report distribution. He found the facts as follows:
    The land sold by the sheriff, under these writs, was two acres of land in Lancaster county, the title to which, before the 1st of April 1877, was in Michael Kauffman. On November 10th 1876, Michael Kauffman and Charles F. Hearing entered into articles of agreement, wherein Kauffman agreed to convey the land to Hearing on April 1st 1877, for the sum of $1250; on April 2d 1877, Hearing paid Kauffman $300, and Kauffman signed but did not deliver the deed; in the latter end of June 1877, Hearing paid $50 more to Kauffman, and the deed was duly delivered. This deed was never recorded, but John Rudy and Benjamin Rudy both knew of the sale. Hearing went into possession of the land in January 1877.
    At the time of the delivery of the deed the land was subject to the lien of two judgments, one John Rudy v. Michael Kauffman, of January Term 1873, No. 1257, for $800, and one Benjamin Rudy v. Michael Kauffman, of January Term 1874, No. 1536, for $100. These sums, with the $350 paid in cash, make up the sum of the purchase-money, $1250, and it was agreed between Kauffman and Hearing that Benjamin Rudy was to get the balance; this was their agreement, as Kauffman testifies; Hearing testifies that his bargain with Kauffman was that he was to pay the $900 judgments to Rudy ; tne testimony all shows that the land was bought subject to these judgments. Some time after the delivery of the deed it was handed by Hearing to A. B. Hackman, Esq., for some purpose, which some of the witnesses call a surrender, but the land was never reconveyed, and the title remained in Hearing until the sale by the sheriff.
    On April 6th 1878, John Rudy revived to January Term 1878, No. 1626, by amicable scire facias, the judgment of January Term 1873, No. 1257, for $800, against Michael Kauffman alone, Charles T. Hearing's name not being mentioned in the scire facias or signed to it; and on February 17th 1879, Benjamin Rudy sued out to March Term 1879, No. 18, against Michael Kauffman, defendant, with notice to Charles F. Hearing, a scire facias to revive the judgment of January Term 1874, No. 1536, on which judgment was subsequently obtained.
    The $300 paid by Hearing to Kauffman on April 2d 1877, was borrowed by him from Isaac L. Landis, to whom he gave a bond with warrant dated that day. On this bond judgment was entered by Mr. Landis, December 24th 1878, to. November Term 1878, No. 215.
    John Rudy died and Benjamin Rudy became the executor of his will before the date of the sale.
    •The real estate Ayas sold on March 8th 1879, to Benjamin Rudy, on executions issued on the judgments of January Term 1878, No. 1626, and January Term 1874, No. 1536, and the net proceeds amount to $569.70. Benjamin Rudy, claiming to be the first lien creditor to an amount sufficient to cover this, presented his receipt for the money to the sheriff, under the Act of 1846, but his right to the money was questioned by Isaac L. Landis, an interested party.
    The auditor then reported “ that the judgment of January Term 1878, No. 1626, was not a lien on the land at the time of the sale, as it was revived, after the defendant had sold the land, against the defendant alone, Avithout notice to the terre-tenant: Armstrong’s Appeal, 5 W. & S. 352. The judgment of January Term 1874, No. 1536, was still a lien when execution Avas issued and the land sold, and must be first paid.”
    “ Objection was made to the payment of the judgment of Isaac L. Landis v. Charles F. Hearing, of November Term 1878, No. 215; the position being taken that a sale of real estate on an' execution against a former owner does not divest the liens against the terretenant, and that, therefore, his lien creditors cannot participate in the fund. The auditor decides that a judicial sale divests all estates acquired and all liens entered after the entry of the lien on which the sale is founded; that the money then represents the land, and is distributable among the respective successive owners and their lien creditors in their regular order. The sale on the writ. Ex. Doc., April Term 1879, No. 43, conveyed this land, discharged from the estate and title of Charles E. Hearing, and from all liens against him, as well as from those against Michael Kauffman, and the judgment of Isaac L. Landis is entitled to be paid out óf the proceeds.
    “But a question more difficult of solution remains. After payment of the judgments of Benjamin Rudy and Isaac L. Landis, a balance is left. To whom is this balance to go ? To Charles E. Hearing, as owner of the real estate sold, or to Benjamin Rudy, as executor of John Rudy, deceased, who claims under judgment of the January Term 1873, No. 1257, revived to January Term 1878, No. 1626?
    “When Hearing received his deed he took the property, ‘ subject to the $900,’ as Mr. Landis testifies Hearing told him ; Kauffman testifies that Hearing paid only $350 of the purchase-money, Benjamin Rudy was to get the balance; that this was the agreement between him and Hearing; Hearing testifies, ‘ My bargain with Kauffman was, that I was to pay the $900 judgments to Rudy.’ The judgment last above referred to is one of these judgments. While there can be no doubt that .this is a parol agreement, which cannot, therefore, affect subsequent judgment creditors, does it not affect Hearing’s right to claim this balance ? If he had made no agreement in regard to paying this money or taking the land subject to it, if the transaction was only such as the records, articles of agreement and deed show, he would undoubtedly be entitled to it. But does not this evidence materially affect his right? It undoubtedly gives John Rudy’s executor a right of action against.him, and, in the auditor’s opinion, gives him a right to interpose here and claim this balance of the money made out of the land specifically devoted by Hearing to the payment of the debt; it is an equitable lien good between the parties. If the deed had contained a clause subjecting the land to the payment of this sum, then Hearing and all others would be precluded from participating in the proceeds of the sale until it was paid; Hearing, having by contemporaneous parol agreement for sufficient consideration, as he only paid the balance, agreed to pay it, and having made the land, so far as he was concerned, subject to the debt, and, therefore, the particular fund oiit of which it was to be paid, is he not precluded from participating in the fund until it is paid? Is he not estopped from claiming any of the proceeds of this land until all the debts to which he made it liable are paid ? This judgment was duly kept alive against Kauffman; Hearing had agreed that the land should be subject to it, and the auditor decides that he cannot come upon this fund until the judgment is paid, and that the balance must be awarded to Benjamin Rudy, executor of John Rudy, deceased.”
    Rudy excepted, on the ground that the auditor erred in paying the Landis judgment in preference to his $800 judgment, and Hearing excepted because the auditor awarded the balance to said $800 judgment, instead of to him as owner.
    The court, Livingston, P. J., delivered the following opinion:
    “ There can, we think, as the case was presented, be- no doubt of the correctness of the report of the auditor, so far as it relates to the awarding to Benjamin Rudy the principal and interest due on his judgment to January Term 1874, No. 1536, $129.17, and to Isaac L. Landis, on his judgment to November Term 1878, No. 215, the principal and interest due thereon, $324.36, but we think that, although the learned auditor has presented the matter in the strongest possible light, he has erred in awarding the balance remaining after the payment of those judgments to Benjamin Rudy, executor of'John Rudy, deceased, to wit, $77.17.
    “ He has decided and reported, and, in our judgment, very properly too, that Rudy’s executor had no right by lien in law to claim priority over the judgment of Landis as to this fund. He should have gone farther, and decided and reported that Rudy’s executor could have no claim as a lien-creditor on the money for distribution. The judgment which he held was at one time a lien on the land sold by Kauffman to Hearing, but he had revived it after the sale to Hearing against Kauffman alone, and did not include Hearing, the purchaser and terre-tenant; by this proceeding the judgment became a lien on the remaining land owned by Kauffman only, and the land sold to Hearing was entirely relieved therefrom.
    “ It does not appear that at the time the agreement hetwreen Kauffman and Hearing was written, anything was said or any agreement made with-reference to the payment of the Rudy judgments. There is nothing stated in either agreement or deed with reference to these judgments. It is true, that when he came to pay for the property and get his deed, Hearing had not money enough, and he then agreed, after paying $350 of the purchase-money, to pay the Rudy judgments and upon this agreement or arrangement Kauffman delivered to him the deed. Hearing after-wards stated to Rudy, or his executor, that he had promised Mr. Kauffman to pay, and he would pay, the Rudy judgments, but this did not and could not revive the lien or continue the old lien, nor did it create a new lien, nor did it make Rudy’s executor a lien-creditor, so as to enable or entitle him to participate in the funds for distribution. These judgments at the time of the sale to Hearing were a lien on all the real estate of Kauffman situate in Lancaster county, including that sold to Hearing.' But at the time of the sale of Hearing’s real estate by the sheriff' the judgment held by Rudy’s executor was a lien on Kauffman’s real estate only, and no lien or encumbrance on the property sold by the sheriff. The executor was not even a general creditor (viewed in a legal point) of Hearing, whose property was sold. He had, as the learned auditor states, promised to pay to Rudy’s executor this debt of Kauffman, but it may well be doubted whether this promise could, under the Statute of Frauds, have been enforced.

      “ There was no lien, therefore, held by either Kauffman or Rudy’s executor against Hearing, or the real estate owned by him and sold as Kauffman’s, at the time of the sale by the sheriff, and neither of them can, so far as the claim of Rudy’s executor against Kauffman is concerned, participate in this distribution.
    “ The exceptions filed by counsel for Mr. Hearing are, therefore, sustained, and the report of the auditor reformed accordingly.”
    From this decree this appeal was taken.

      W. R. Wilson, for appellant.
    The auditor finds the fact, which none of the parties disputed, that Hearing bought the real estate on condition or under and subject to the payment of the two judgments held by Rudy; such was the distinct agreement of the parties. Having found the agreement of the parties, we ask, what is there in the law to prevent this contract from being carried out ? The court below seems to think that the verbal agreement is obnoxious to the Statute of Frauds, because Hearing had promised to pay Kauffman’s debt. The answer to this is, that Hearing promised to pay his own debt, because the Rudy judgments were part of the purchase-money of the property he bought and obtained.
    The mere fact that the agreement was not made a part of the deed is not fatal as between these parties and others having notice of it.
    It is true, Kauffman, and not Hearing, was sold out, but Landis can only claim through Hearing; that is, Landis’s judgment is only a lien on Hearing’s interest as acquired by his contract with Kauffman, and according to which Hearing was bound to pay the $900 Rudy judgment. Whether the $800 judgment had lost its lien as against Hearing is immaterial, because by the contract between the parties, Kauffman and Hearing, agreed to by Rudy, the holder of the bond, that judgment was considered as a charge .on the land. Landis’s judgment is a lien only on Hearing’s interest in the land, and this interest can only be made available by selling out Hearing. If Landis is willing to become the purchaser of this interest, as sheriff’s vendee on his own judgment, he may try the value of his title by bringing ejectment against Rudy, as the sheriff’s vendee on his execution^against Kauffman.

      M. Brosius and A. F. Hostetter, for appellees.
    Landis’s judgment takes precedence of Rudy’s : Ficke’s Appeal, 21 P. F. Smith 447; Sames’s Appeal, 2 Casey 184; Fursht v. Overdeer, 3 W. & S. 470; Armstrong’s Appeal, 5 Id. 352; McCray v. Clark, 1 Norris 457. On the distribution of the proceeds of a sheriff’s sale, only lien-creditors can participate: Smith v. Reiff, 8 Harris 364. Rudy’s $800 judgment, had ceased to be a lien before the date of the execution, and could not, therefore, participate.
    June 19th 1880.
    The appellant’s argument, that Hearing’s agreement to take the land subject to the Rudy judgment creates an equitable lien, is without substance. Appellant has not brought up the deed from Kauffman to Hearing, but it is conceded that it contained no condition whatever concerning the purchase-money. It was an executed conveyance, subject of necessity to all subsisting liens, but containing no mention of the Rudy judgment. In such a case there is no lien for the unpaid purchase-money.
    To create an estate upon condition of the payment of purchase-money, which would revert to the vendor on the breach of the condition, requires that such intention be expressed in apt words in the deed: Bortz v. Bortz, 12 Wright 382; Perry v. Scott, 1 P. F. Smith 119; Hiester v. Green, 12 Wright 96.
    There is no equitable lien for purchase-money after the title has passed, unless it is in some manner expressly charged upon the land: Kauffelt v. Bower, 7 S. &. R. 64; Trinity Church v. Watson, 14 Wright 518; Strauss’s Appeal, 13 Id. 353.
   Mr. Justice Paxson,

delivered the opinion of the court,

Whenever the real estate of a debtor is sold by the sheriff the proceeds must be distributed among the lien-creditors, and the surplus, if any remaining, must be paid to the debtor: Act of 16th June 1836, sect. 93, Pamph. L. 777. That is precisely what the court below did here. The appellant, however, is not satisfied with the decree, hence this appeal. The difficulty which the appellant has to meet is that the lien of his testator’s judgment has expired. It was revived against the original defendant without joining the terre-tenant. After the lien was lost by this omission, Hearing, the terre-tenant, confessed a judgment in favor of Landis. The property was sold on a judgment against Kauffman, Hearing’s vendor, and it was contended by appellant that because the real estate was sold as the property of Kauffman'and not of Hearing, the proceeds must go to Kauffman’s lien-creditors; that is to say, to the appellant’s judgment, the lien whereof had expired. We need not discuss this proposition. That there is nothing in it is settled by a host of authorities. I will only refer to Ficke’s Appeal, 21 P. F. Smith 447.

It was said, however, that even if the lien of appellant’s judgment had expired, he was entitled to the fund for the reason that Hearing had made a parol promise to Kauffman to pay this judgment, and that he kept back so much of the purchase-money. This would be wrenching the recent “under and subject” cases out of all manner of shape. The most that can be said is, that Hearing may have made himself liable to an action on the part of the holder of the judgment. That such a promise could galvanize into life this dead lien so as to entitle it to claim the proceeds of a sheriff’s sale is a proposition exceedingly difficult to sustain.

After paying the liens the court below awarded the balance of the fund to the owner of the land sold. This was in strict conformity to the Act of Assembly. But here again the appellant interposes and says: It is true I have lost my lien, but Hearing promised to pay my judgment, and he has that much of the purchase-money in his hands. The appellant seems to forget that a mere contract creditor has not even a right to be heard upon a question of distribution, nor can he take a writ of error. This is settled law: Smith v. Reiff, 8 Harris 364. The promise to pay the judgment was at most an agreement to indemnify the vendor; it was not a promise to pay out of the land, nor did the promise run with the land; it created no estate upon condition which would revert to the vendor upon breach of condition. To create such estate the intention must be expressed by apt words in the deed : Hiester v. Green, 12 Wright 96; Bortz v. Bortz, Id. 382; Perry v. Scott, 1 P. F. Smith 119. Nor is there any equitable lien for the purchase-money. After the legal title has passed the lien must be expressly charged upon the land: Kauffelt v. Bower, 7 S. & R. 64; Strauss’s Appeal, 13 Wright 353; Trinity Church v. Watson, 14 Id. 518.

There is no room for estoppel. The appellant’s testator parted with nothing and did nothing by reason of Hearing’s promise to pay his judgment. If the money is lost, it will be by reason of his laches in not reviving his judgment so as to hold the terretenant.

The decree is affirmed; and the appeal dismissed at the cost of the appellant.


author: Mr. Justice Sterrett

text:
    The Farmers’ Mutual Fire Ins. Co. versus Barr.
    1. Where a condition of a policy of insurance requires suit to be brought ■ within six months, and it is a part of the contract as contemplated by both parties at the time the risk was assumed, the insured eannot be released from this condition by a mistake in the policy as to the time when the risk commenced.
    2. While the refusal of the company to recognise its liability may operate as a waiver of its right to insist on preliminary proof of loss, &c., it does not relieve the insured who claims the contract was in full force, when the fire occurred, from bringing suit within the six months. His failure to do so is a bar to any claim he may have against the company, and the result cannot be avoided by setting up the receipt given for the premium by the agent of the company and ignoring the terms and condition of the contract as it was contained in the policy of insurance.
    May 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 176.
    Debt by John K. Barr and Hettie A. Barr, for the use of said Hettie, against the Farmers’ Mutual Fire Insurance Company of Pennsylvania, on a contract of insurance. Defendant pleaded nil debet.
    The material facts were these: On May 3d 1870, John K. Barr signed an application to the Farmers’ Mutual Fire insurance Company of Pennsylvania for an insurance on his property to the amount of $8800. On May 31st 1870, he paid the company $48.80 as premium for his policy, which had been issued May 6th 1870. On May 19th 1873, a portion of the property insured was destroyed by fire. A day or two after the fire Barr called on John II. Zeller, an agent of the company, and was informed that the policy had expired. The company denied all liability, and refused to pay.
    1 It alleged that in the fall of 1869 G. R. Hendrickson, who had become its agent, called upon Barr and solicited an extension of his insurance in the said company to the barn and other buildings on Barr’s premises. Hendrickson at the same time made the necessary surveys. Barr, in the latter part of April 1870, signed an application, filled up then or subsequently by Hendrickson, for.an insurance to the amount of $8800 upon all his buildings, to take effect, as the company alleged, on the 3d day of May 1870, the time of the expiration of a former policy. At the time of making the said application, Barr received from Hendrickson the following receipt or certificate:
    “ Mutual Rate.
    2-cent Rev. Stamp. “ This certifies that John K. Barr, of West Hempfield township, in the county of Lancaster, has made application to the Farmers’ Mutual Insurance Company of Pennsylvania for insurance upon the property Specified in said application to the amount of $8800. That he has given a note for $192.20, and has paid in addition $48.80, and that he will be insured upon the property specified in said application $8800 for three years from date if the same be approved by the directors.
    “Amount paid, “$48.80.
    May 31st 1870. G-. R. Hendrickson, Agent.”
    A policy of insurance, dated May 6th 1870, was issued by the company, insuring the property of Barr to the amount of $8800 for the term of three years, beginning at noon of the 3d day of May 1870, instead of 31st day of May 1870, as contemplated by the above contract of insurance. This policy of insurance was sent to Hendrickson, the agent, and by him forwarded to Barr by mail. Barr had the policy in his possession from the time it was sent him by Hendrickson until the 11th day of September 1871, on which day it was assigned to S. H. Reynolds, a lien-creditor. On the 19th day of May 1873, while Barr was absent in New York, the fire occurred which destroyed a part of the property insured.
    On the day after the fire Barr w’ent to Mr. Zeller, who was then agent of the company, gave him notice of the loss, and was ready to make proof of its extent. Mr. Zeller informed Barr that he had received notice from the office of the company that he was not insured; that his insurance had run out, and showed him the books, and told him his policy had expired. This was the first intimation Barr had that there was any discrepancy betAveen the dates of the policy and his contract of insurance as represented by the receipt.
    On October 9th 1873, íavo attachments in execution were issued by judgment-creditors of Barr out of the Court of Common Pleas of Lancaster county to October Term 1873, in each of which the plaintiff in error was garnishee. After trial there was a verdict against the company in each case in favor of the attaching-creditors —in the first for $2748.76 ; in the second for $554.44. The judgments in these eases were aftenvards affirmed by this court, and on June 20th 1878, the company paid these amounts and the costs.
    On the 13th of March 1877, Ban' assigned to his wife, Hettie Barr, all his “interest, right, title and claims” that he held against the company, and on the 11th of May 1877, this suit was brought. On the trial the plaintiff claimed the Avhole amount for which the destroyed property was insured, with interest, less the amounts paid to the attaching-creditors.
    The twelfth condition annexed to the policy Avas as follows:
    “ It is furthermore hereby expressly provided that no suit or action of any kind against the company for the recovery of any claim upon, under or by virtue of this policy shall be sustainable in any court of law- or equity, unless such suit or action shall be commenced within the term of six months next after the cause of action shall have accrued; and in case any such suit or action shall be commenced against said company, after the expiration of six months next after the cause of action shall have accrued, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim thereby so attempted to be enforced.”
    The last condition annexed to the policy was as follows:
    “ The insurance under this policy shall cease at and from the time the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity ; and should there, during the life of this policy, an encumbrance fall or be executed upon the property insured sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the-company thereto, then and in that case the policy shall be void.”
    The following assignments of error will show the questions raised in the court below.
    1. The court (Patterson, A. L. J.), erred in their answer to the defendant’s second point.
    Point. — The plaintiff’s loss having been sustained on May 19th 1873, and the defendant having immediately afterwards denied all liability therefor, whatever cause of action the plaintiff had, accrued at the end of three months from such denial, and this suit, brought May 11th 1877, more than six months after his alleged cause of action had accrued, is barred by the twelfth condition of the policy limiting the plaintiff’s right to sustain an action to six months from the time, his cause of action accrued, which condition is binding on plaintiff, and the verdict must be for the defendant.
    Ans. “This point we decline to affirm.”
    2. The court erred in holding that the suit was not barred.
    3. The court erred in overruling defendant’s offer to prove that the actual cash value of the buildings destroyed by fire on the 19th of May 1873, and insured in this policy, was not over twelve hundred dollars, and that the actual cash value of the other property destroyed at that time, and covered by this insurance, was not over thirteen hundred dollars, making the entire loss not over twenty-five hundred dollars.
    4. In overruling defendant’s offer to show that the actual cash value of the buildings of John K. Barr, destroyed by fire on the night of the 19th of May 1873, and covered by this policy of insurance issued by this company, was not over twelve hundred dollars at that time.
    5. In overruling defendant’s offer to prove that he was well acquainted with these buildings and their value, and that immediately before their destruction by fire, the buildings that were covered oy this insurance policy were not worth over. twelve hundred dollars.
    Verdict for plaintiff for $1006.08, and after judgment, defendant took this writ and alleged that the court erred, as set forth above.

      H. M. North and J. Hay Brown, for plaintiff in error.
    The suit was brought on a contract of insurance, the evidence of which, the plaintiff below contended, was the receipt of May 31st 1870. That a receipt for the premium can form a contract of insurance is not disputed, but it is equally clear that such an insurance is to be regarded as made upon the terms and subject to the conditions in the ordinary forms of policies used by the company at the time: State Fire & Marine Ins. Co. v. Porter, 3 Grant 123; The Eureka Ins. Co. v. Robinson, Rea & Co., 6 P. F. Smith 256.
    Barr, the plaintiff, testified that he received the policy, and the agent of the company testified it was in the ordinary form. The plaintiff is therefore subject to the conditions of the policy. This suit was not brought until nearly four years after the fire. The pendency of the attachment did not excuse the failure of the plaintiff to sue within six months after his cause of action accrued : Schroder v. Keystone Ins. Co., 2 Phila. R. 286. A stipulation requiring the assured to enforce his legal remedy within a prescribed period is valid. Whatever cause of action the plaintiff had accrued as soon as the company denied its liability and refused to pay. • The stipulation was binding, and the plaintiff not having brought his action within the prescribed time, is barred: Wilson v. Ætna Ins. Co., 27 Vt. 99; Riddlesbarger v. Hartford Ins. Co., 7 Wallace 386.
    Where the parties specify in the contract of insurance what shall .be the mode and manner of ascertaining the value of the “ property destroyed by fire, the law will enforce their agreement, as when they agree that the loss or damage shall be estimated according to the true and actual cash value of the property at the time the same shall be destroyed: Flanders on Fire Insurance, 608; The Commonwealth Ins. Co. v. Sennett, Barr & Co., 1 Wright 205.

      8. H. Reynolds and B. McMullen, for defendant in error.—
    This is. not a suit brought upon, under or by virtue of a policy of insurance, but upon a contract for a policy which was not issued. We have here a contract for insurance not consummated on the part of the insurer by the issuing of a policy — a contract which, though fully performed on the part of the applicant, was repudiated by the insurance company when the time for the performance of. its part had arrived, and it was asked to do that for the undertaking of which it had received and retained the consideration. When Barr made his application, he stipulated for an insurance to commence on May 31st 1870, and continue until May 31st 1873, and paid his premium for that time. He was therefore entitled to a policy covering the entire period. The policy that was issued covered twenty-eight days less than that period, and was equivalent to no policy at all, inasmuch as the fire occurred .during the twenty-eight days which it did not cover. When the time arrived when Barr expected to invoke the protection of his policy, he was told there was no policy iii force. His application to the company then, as now to the court, was therefore to have the policy reformed, or in other wmrds, to have á policy issued in accordance with his contract, and not to enforce a policy which had no existence.
    May 17th 1880.
    The company refuses us the protection and benefit of its policy, ' and at the same time seeks to bind and limit us by its terms. The claim now made is not on the policy but on the agreement for one not performed. The refusal of the policy was equivalent to a denial of all liability made within the time in which proof was required: Weeks v. Lycoming Ins. Co., United States Circuit Court, District of Vermont, February Term 1878, vol. 6 of the Reporter, 165.
   Mr. Justice Sterrett

delivered the opinion of the court,

In view of the facts conclusively established by the testimony in this case, the plaintiff below had no right to ignore all the terms and conditions of the policy issued in pursuance of his application, and maintain an action on the receipt of the company alone. It is not pretended that the contract of insurance was to be evidenced solely by the receipt given for the premium. On the contrary, it was distinctly understood by both parties that a policy, in the form used by the company, should be issued as the evidence of their contract.

The application of the plaintiff below, as expressed on its face, was for insurance by the company for the term of three years from the 3d day of May 1870;" and a policy, in strict conformity thereto, was issued and retained by him without objection until September 1871, when, with the assent of the company endorsed thereon, he assigned it to Mr. Reynolds as collateral security. No misunderstanding appears to have arisen until after the fire, which occurred May 19th 1873, sixteen days after the risk, as stated in the policy, had expired. According to the application, as well as the letter of . the policy, the insurance had then expired, and the plaintiff below had no claim upon the company. He contended, however, that his contract was for insurance to commence on the 31st instead of the 3d of May 1870, and in support of this position he produced the company’s receipt, dated May 31st 1870, in which it is recited that he has made application for insurance, &c., “ that he has given a note for $195.20, and has paid in addition $48.80, and that he will be insured upon the property specified in the application $8800, for three years from date, if the same be approved by the directors.” He accordingly insisted, and rightly as it may be assumed, that the risk did not expire until May 31st 1873; but the company relying upon the application and the policy issued in pursuance thereof, denied its liability and refused to do anything towards adjusting the loss. While the parties were thus disputing as to whether the insurance had expired before the property was destroyed or hot, two attachments in execution on judgments against the insured were issued, served on the company and prosecuted to judgment, which was afterwards affirmed by this court: The Farmers’ Mutual Insurance Co. v. Bair et al., 6 Norris 124. In May 1877, nearly four years after the fire, the plaintiff brought this suit to recover the residue of insurance money not covered by the attachments, and based his claim exclusively on the receipt above mentioned, ignoring entirely the policy and all the terms and conditions thereof.

If it was true, as he alleged, that the company agreed to insure his property for three years from May 31st 1870, he had a right to have the policy reformed, or treated as reformed, so as to correspond with the correct date; but he could not ignore the patent fact that the contract with the company, when he paid the premium, was for insurance to be evidenced by a policy such as was then used by the company, containing the terms and conditions of the contract, and that such a policy had actually been issued and retained by him without objection until after the property was destroyed, and then the only complaint was that the date at which the risk commenced was the 3d instead of the 31st May 1870. If the suit had been on the policy so reformed as to give the correct date of the risk, and thus conform to the contract as he alleged it was, the insuperable obstacle of the delay in bringing suit would have been directly encountered. The twelfth condition of the policy required suit to be brought within six months, and this'was undoubtedly a part of the contract as contemplated by both parties at the time the risk was assumed. The insured could not be relieved from this condition by a mistake in the policy as to the time when the risk commenced. There was nothing to explain or excuse the condition. The pendency of the attachments did not prevent the delay of more than three years beyond the time specified in the commencement of suit on the policy. While the refusal of the company to recognise its liability, on the ground that the risk had expired, may have operated as a waiver of its right to insist on preliminary proof of loss, &c., it did not relieve the plaintiff, who claimed that the contract was in full force, when the fire occurred, from bringing suit within six months. His failure to do so was a bar to any claim he may have had against the company; and this result could not be avoided by basing his action solely on the receipt and ignoring the terms and conditions of the contract as it actually was.

The' first and second assignments of error are therefore sustained.

The view we have taken of the case renders it unnecessary to consider the remaining assignments; but, assuming, as the learned judge of the Common Pleas did, that there was evidence tending to establish the liability of the company, the testimony, to which the third, fourth and fifth assignments relate, should have been received. If the company was liable at all, the measure of its liability was the value of the property at the time it was destroyed, not exceeding the amount insured thereon, with interest. The offers were to prove that the buildings destroyed were not worth more than $1200, and the personal property not more than $1300, making the entire loss not exceeding $2500. The witnesses appear to have had sufficient knowledge of the property to justify the admission of their testimony as to its value. ’ One of the offers was to prove by the witness that he was well acquainted with the buildings and their value, and that they were not worth over $1200. The remaining errors are not sustained.

Judgment reversed.