author: Mr. Justice Gordon

text:
    McCarty versus The Selinsgrove and North Branch Railroad Co.
    1. Where subscriptions are made to the stock of a corporation previous to, and for the purpose of procuring a charter, any conditions annexed thereto, whether written or parol, are void. But after the organization of the company a condition is binding; and ordinarily this is so, though it rest in parol only, where except for such condition the subscription would not have been made, and provided the rights of co-subscribers are not affected thereby.
    2. Where previous to signing a subscription to stock in a corporation, the defendant objected to signing, for the reason that certain conditions on which the subscription was to be made, did not appear therein, and was assured by the president of the corporation, that these conditions should be considered a part of the contract, parol evidence of these conditions is admissible in a suit on the subscription, and the non-performance of them is a defence.
    3. Under the General Railroad Law of 1849, before suit can be brought for a subscription, notice of the call therefor must be shown.
    June 18th 1878.
    Before Agnew, C. J., Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood and Mbrcur, JJ., absent.
    Error to the Court of Common Pleas of Snyder county: Of May Term 1878, No. 185.
    Assumpsit by the Selinsgrove and North Branch Railroad Company against William H. McCarty and others, trading as McCarty, Keller & Co., on the following subscription to stock:
    “ We, the undersigned subscribers do hereby take the number of shares of capital stock of the Selinsgrove and North Branch Railroad Company, shares being $50 each, and agree and promise to pay the same at such time or times as the said company may direct, but not to be called for faster than ten per cent, per month. Selinsgrove, December 1873.”
    The company plaintiff was incorporated by an Act of Assembly of May 3d 1871, and some time thereafter, the company having organized, the defendants subscribed for twenty shares of stock. On the 19th of February 1874, the board of directors met and passed a resolution, “ to call in ten per cent, of the capital stock on the 10th of March next.” By some mistake, the secretary of the company failed to record on the minute-book at the end of said resolution the words “and monthly thereafter,” as it was passed ; and on the 9th of March 1876, at a meeting of the board of directors the following resolution was passed:
    “ On motion, the resolution passed February 19th 1874, be so altered as to read as follows, being the true meaning of the resolution : that ten per cent, of the capital stock be called in on the 10th day of March next, 1874, and monthly thereafter.”
    The plaintiffs made a call for ten per cent, at a certain time, and the like amount “monthly thereafter.” No notice personal, by publication or otherwise, was given defendants.
    At the trial the plaintiffs proposed to show that the secretary in recording the minutes of the 19th of February 1874, in relation to the calling in of the stock subscriptions, omitted by mistake to enter the words “and monthly thereafter” in the resolution as it appears in the recorded minutes, and that subsequently at the meeting on the 9th of March 1876, the resolution as originally passed by the board was ordered to be corrected upon the minutes, and was so corrected by direction of the board. Offered for the purpose of showing the call as it was made, and that it does not appear correctly in the original record of it.
    Defendants objected to any parol testimony by this or any other witness for the purpose of showing, any alteration of the minutes of the company for the purpose of affecting the defendants. .
    By the Court. — The object of the evidence is not to overthrow a written contract between the parties by parol evidence, but it is simply to show the resolution as actually passed by the board, and that the secretary made a mistake in transcribing it, and to make the minutes conform to the actual fact. Evidence admitted, to which defendants excepted, and bill sealed. First assignment of error.
    Defendants offer to prove by this and other witnesses that all the subscriptions contained in the book offered in evidence by the plaintiff, of which the subscription of the defendants is one, were obtained for a special purpose; that it was to be applied to the building of the road between Selinsgrove and Burns Junction, and that none of the subscriptions were to be paid until $20,000 bona fide subscribers were obtained, and the money to be raised and the subscription was to be applied to the building of the road between the points above specified; and at the time it was then and there stated to them, the defendants, that the said subscriptions were to be of no force or effect whatever unless the sum of $20,000 of good and valid subscriptions were first had and obtained, and that the said subscriptions were obtained by William A. Meeker, the president of the company, and that at that time the subscriptions were signed by the defendants, they objected to signing the same because the above stated stipulations were not. contained therein; that the said William A. Meeker, president of the said road, then and there assured the said defendants that it was an omission, and that the said subscription should be treated in all respects as if it contained the said above stated stipulations, and that it was upon these assurances that the said defendants then and there executed the same.
    To be followed with proof that the sum of $20,000 good and valid subscriptions to the said railroad, for the purpose of building said part, were never secured, and that the railway between said points has never been built; and that the company is insolvent and unable to build the same ; and by its insolvency has for ever placed it out of their power to build it, and that the said special subscriptions as aforesaid made by all the subscribers thereto were delivered to the company without the authority or consent of the subscribers, and before the said sum of $20,000 of good and valid subscriptions had been obtained, and that the original subscription of the defendant under the conditions aforesaid was for ten shares, and the sum was otherwise increased to twenty-shares, at the special instance and request of W. A. Meeker, president of the company, upon the express agreement at the time of such increase, and as the inducing cause in obtaining the signatures of the defendants to the same. That the whole amount of the subscriptions, to wit, twenty shares, should be counted over a,nd paid by the plaintiff to the defendant, by furnishing the plaintiff with timber and lumber for the purpose of constructing the bridge over Middle creek, and for other purposes for which material and timber were needed on the proposed line of railroad between Selinsgrove and Burns’ Junction, for which the subscriptions were obtained as aforesaid. That the defendants were engaged in the manufacturing of timber and purchased timber to be used as aforesaid, and kept the same for over a year, ready to comply with the agreement as aforesaid made, and that no demand was ever made by plaintiffs of defendants for the timber, and that the timber so purchased was afterwards sold by them at a heavy loss, and that the timber was tendered in pursuance of the aforesaid agreement.”
    This offer, under objection, was excluded and constituted the second assignment of error.
    In the general charge the court, inter alia, said:
    “ If you believe the testimony of the plaintiff, that there was a call made on the 19th of February 1874, for a payment of 10 per cent, of this subscription in a month from that date, together with 10 per cent, every month thereafter, and the resolution would be the best evidence, the defendants would be bound to pay under the call 10 per cent, every month, beginning on the 20th of February 1874, and running on monthly thereafter until all was paid.” Third assignment of error.
    And also charged, “ the mere fact that the defendants were not notified of the call would not preclude a recovery.” Fourth assignment of error.
    Verdict and judgment for plaintiff. The defendants took this writ, and, inter alia, assigned for error the rejection of the foregoing testimony and the instructions above given.

      Simpson and Linn Dill, for plaintiffs in error.
    Notice was necessary before suit brought: Girard Bank v. Bank of Penn Township, 3 Wright 102; McCully v. Penna. Railroad Co., 8 Casey 25; P. & C. Railroad Co. v. Byers, Id. 22; Pitts. & Conn. Railroad Co. v. Graham, 12 Id. 77 ; Buckley v. Columbia Ins. Co., 2 Norris 298. The minutes of the company were evidence of the calls made, but for no other purpose: Comfort v. Leland, 3 Whart. 88.

      The court erred in rejecting the testimony that this was a special agreement or subscription for a certain purpose which was attempted to be wrested for a different purpose. It was a fraud in fact, nor is it essential to the admission of parol testimony that a fraud was originally intended. It is enough that though the parties acted in mutual good faith at the inception of the transaction, an attempt is made to wrest it to a purpose not contemplated, or use it in violation of the accompanying agreement, and a legal delinquency attaches upon an attempted abuse of the writing sufficient to subject it to the influence of parol testimony: Rearich v. Swinehart, 1 Jones 238. Parol evidence is admissible in an action on a writing to show that at the execution of the writing a stipulation had been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing was executed, although such evidence may vary and materially change the terms of the contract: Greenawalt v. Kohne & Myers, 4 Norris 369.
    The case of the Railroad v. Stewart, 5 Wright 54, is applicable to this case, because the offer was to show that the president and some of the directors were the parties who made the representations; and this is recognised as binding authority in Chartiers Railroad Co. v. Hodgens, 5 W. N. C. 313; Hanover Railroad Co. v. Haldeman, 1 Norris 36.

      Doty Dower, for defendant in error.
    No notice of calls for the payment of subscription need be made in cases of this kind: Gray v. Monongahela Navigation Co., 2 W. & S. 162; Grubb v. Mahoning Navigation Co., 2 Harris 306, and Bavington v. The Pittsburgh & Steubenville Railroad Co., 10 Casey 358-364. The cases cited by the plaintiffs in error are not in point.
    The written subscription could be contradicted by parol testimony : Kennedy v. The Erie & Wattsburgh Plank-road Co., 1 Casey 224; Seitzinger v. Ridgway, 4 W. & S. 472; Bertsch v. The Lehigh Coal and Navigation Co., 4 Rawle 139, and Woods v. Wallace, 10 Harris 171.
    If the defendants wanted- to’ have a condition in their subscription that they should have the right to pay it in lumber, they could have written that condition over their names when they signed it, and then the company could have known what they wanted, and would have had an opportunity to accept or reject it with such condition. This was not done, and therefore they cannot complain of the company because they accepted it as an unconditional subscription, and the court committed no error in rejecting the evidence, no matter what representations on this subject were made by the party taking the subscriptions: Chartiers Railway Co. v. Hodgens, 5 W. N. C. 313; Cass v. Pittsburgh, Virginia & Charleston Railway Co., 30 P. F. Smith 31. The subscriptions made by the defendants below are in writing and unconditional; and the company which, is composed of a number of other subscribers, signed subscriptions of the same character. If these defendants were permitted to prove parol conditions to their subscriptions, they might possibly be relieved from its payment, and the others forced to pay. This would be inequitable and unjust.
    October 7th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

Where subscriptions are made to the stock of a proposed public corporation, previous to and for the purpose of procuring a charter, any conditions annexed thereto, whether written or parol, are void. But after the organization of the company, a condition is binding and obligatory, and ordinarily, this is so, though it rests in parol, if, except for such condition, the- subscription would not have been made. The latter part of this proposition is subject, however, to the qualification that the rights of co-subscribers are not affected thereby: Bowser v. Bedford, 12 Wright 29 ; Caley v. The Railroad Co., 30 P. F. Smith 363 ; Graff v. The Railroad Co., 7 Casey 489, and Miller v. The Railroad Co., ante, 95.

Now, as at the time the defendants entered into the contract in suit, the plaintiff was a chartered and fully organized corporation, it had all the powers to make contracts, conditional or unconditional, by deed or in parol, that are possessed by natural persons. This being so, it remains to inquire whether the offer of the defendants comes within the rules which permit the introduction of oral testimony to add to or vary the terms of a written instrument. And, first, supposing the proposed oral conditions to be admissible, as between the company and the defendants, would their interposition prove to be injurious to, or in fraud of, the rights of co-subscribers? Would the effect be to relieve the defendants from payment whilst their fellows in the common adventure would be still held ? An affirmation of this proposition determines the question against the offer proposed. For it would be intolerable that one, who had joined with others in a common undertaking, should be permitted to escape from the common burthen by the interposition of a condition of which his co-obligors had no knowledge. The inequitable character of such a transaction becomes obvious when we reflect, that one in this manner would not merely relieve himself, but would thereby add to the burthen of the others.

But the offer, proposes nothing of this kind; for the alleged conditions were common to all subscribers. All might have taken advantage of them, and though some may not have seen fit so to do, yet that is no fault of the defendants, and, for such reason, they cannot be deprived of a common right. The proposed proof was that all the subscriptions, contained in the book, offered by the plaintiff, were obtained for a special purpose; that they were to be applied to the building of a branch from the main road, at Burns Junction, to the town of. Selinsgrove, and that these subscriptions were not to be of force until they represented an amount fully equal to $20,000. These stipulations were reasonable and proper. The subscribers desire to have the road built to Selinsgrove; for this purpose and none other they will agree to pay their money, and that there may be a reasonable certainty that this design be fulfilled, they stipulate that if the subscriptions do not amount to a figure that will insure this reasonable certainty, then the whole adventure is to be treated as abandoned. Had the company fulfilled the first condition,'by building the road to Selinsgrove, the second might be disregarded, for the main design, to wit, the construction of the improvement, being accomplished, the necessity for the second would fall, and the subscriber could not allege a want' of consideration for the money which he had agreed to pay. But the company did nothing of the kind; it did not build the road, hence, any one can see that it would be a most inequitable perversion of the agreement should these people be compelled to pay for that which was not embraced in their compact; that is, for the construction of the main line instead of the branch.

It is true these provisions were oral, but the offer was to prove that the defendants, and their co-subscribers refused to put their names to the contract until they were assured, by the president of the company, that they should form part of the terms of that contract and be of the same force as though written therein. This offer brought the proposition within the rule which allows of the introduction of parol evidence to add to or vary the terms of a written contract, for it is clear, that the attempt to enforce the writing, without the oral conditions, was but an attempt to enforce what was not the contract of the parties, and if successful, would be a fraud on the rights of the defendants. In order to prevent a result of this kind the offer should have been admitted.

The third and the fourth assignments, covering as they do, the same subject-matter, may be considered together.

By the contract the subscriptions were payable at such time or times as the company should direct, “but not to be called for faster than ten per cent, a month.” As this corporation is made subject to the General Railroad Act of 1849, we must construe the above contract with reference to the provisions of that statute. The 8th section thereof provides that “the capital stock of such company shall be divided into shares of $50 each, and shall be called in and paid at such times and places, and in such proportions and instalments, not, however, exceeding $5 per share in any period of thirty days, as the directors shall require, of which public notice shall be given for at least two weeks next preceding the time or times appointed for that purpose.” It does seem, therefore, that the statute contemplates notice, and unless the officers of this corporation may disregard this plain precept, they cannot move until it has been complied with.

It is urged, however, that publication of notice is necessary only when the penalties for non-payment, subsequently provided for, are sought to be enforced, and this reading of the act is supposed to be sustained by the cases of Gray v. The Monongahela Navigation Co., 2 W. & S. 162, and Grubb v. The Mahoning Navigation Co., 2 Harris 306. But these cases are not in point, since the facts involved therein are not similar to those in the case now in hand. In the first there was not only notice by publication, but there was also evidence of personal notice, and the exception was only to the fact that the publication did not set out the full name of the company, an exception purely technical and amounting to nothing in a suit for the price of the stock subscribed. In the second there was no provision in the act of incorporation requiring notice of any kind previously to a suit for the subscriptions; hence, it was held that if the defendant was aggrieved for want of notice he should have pleaded the matter in abatement, but could not avail himself of it on the general issue.

On the other hand, in the case of Sinkler v. The Turnpike Co., 3 P. & W. 149, where the act of incorporation did provide for notice by publication, we have it said by Mr. Justice Kennedy, that no action could be maintained for the defendant’s subscription, nor any part of it, until the managers had fixed the time and had given notice as required by the act.

Authority, however, in the case under review, beyond the statute itself, is not necessary, for there is nothing therein that is in the least degree ambiguous. Notice is just as positively required as are calls and apportionment, and if the latter are necessary, so is the former. This corporation cannot go outside of its charter for its power to sue, and that power, as found within that instrument, must be exercised, if at all, under the conditions therein prescribed. We do not say that the spirit of the act would not be complied with by a personal notice, but we do think that neither the spirit nor letter of the act is complied with when there has been a total neglect of notice of any kind; nor are we disposed, by a forced construction, to abolish, or even relax, a condition which, whilst it fairly protects the subscriber, is not cumbersome to the company.

The exception, covered by the first assignment, taken to the ruling of the court on the offer of the plaintiff to prove by its secretary that the words “and monthly thereafter,” were omitted by mistake, in the resolution of February 19th, ordering the call for the stock subscriptions, is not sustained. The learned judge properly said that the object of the evidence was not to impeach the writing as a contract between the parties, but only by the correction of a mistake to make the minutes conform to the fact.

The judgment is reversed, and a new venire is ordered.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Trutt versus Spotts.
    1. A. conveyed to B. a lot bounded by streets described upon a plan referred to in the deed, “ together with all the ways, &c.,” belonging to said lot, Covenant was brought for an alleged obstruction in the use of the streets, Held, to be the proper form of action.
    2. A covenant does not require express words. Any words which show the party asserted in a deed that a matter material to the contract had been done, amount to a covenant that it has been done.
    3. Covenant of warranty distinguished.
    4. Bellinger v. Burial-ground Society, 10 Barr 135, also distinguished.
    June 19th 1878.
    Before A&new, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood,'J., absent.
    Error to the Court of Common Pleas of Union county: Of May Term 1878, No. 154.
    This was an action of covenant brought by David Trutt against Benneville Spotts, upon certain clauses of a deed of conveyance. Plea: covenants performed absque hoc.

    The facts were as follows: Prior to 1872 Benneville Spotts, being the owner of a considerable tract of land in the borough of Mifflinburg, employed a surveyor to lay out a portion of it in building lots. This was accordingly done. A plan of the “Addition” was prepared by the surveyor, showing the streets and alleys named and the lots numbered, and Mr. Spotts carried on the sale of lots according to this plan. In August 1872, he sold a lot to David Trutt, by a deed containing, inter alia, the following language:
    “All that certain messuage and lot of ground situate on the north side of Market street in Spotts’s addition to Mifflinburg, marked with number seven (7), adjoining lot number (3) on the west, Cross street on the east, and alley on the north, containing in depth one hundred and twenty-six feet, and in width sixty feet, be the same more or less. It being part of a larger tract of land which Charles Moll, * * * for the consideration therein mentioned did convey unto the said Benneville Spotts, who is the proprietor of said addition. Together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges," hereditaments and appurcenances whatsoever thereunto belonging, or in any wise appertaining * * *.”
    The deed also contained a clause of general warranty. Trutt built a house upon his lot and a fence around it, and Spotts having retained possession of all the streets and alleys in his “Addition,” having cultivated the remainder of the tract up to the line of Trutt’s fence, and having fenced in the whole tract in one general enclosure, brought this action of covenant to recover damages for having been deprived of the free use of the streets, alleys and ways of said “Addition.”
    The narr. recited textually from the deed the description of the property, the clause conveying “all and singular the improvements, ways, &c.,” and continued: “And the said defendant did, by the same deed, covenant to and with the said plaintiff, his heirs and assigns, that he the said defendant, his heirs, executors and administrators would warrant and for ever defend the said premises to the said plaintiff, his heirs and assigns, against him, the said defendant, his heirs and against all and every other person or persons whomsoever lawfully claiming or to claim the same, or any part thereof.
    “And the said plaintiff avers that the said defendant hath not opened the streets and alleys mentioned in said ‘ Spotts’s Addition to Mifflinburg,’ and hath deprived said plaintiff of the free use of said streets and alleys, and of the right of way, the ways, and other rights and liberties, as in said covenant mentioned, and hath retained the same for his own use and profit and in his own possession.
    “And so the plaintiff saith, that the said defendant, though often requested, hath not kept the covenants so by him made as aforesaid, but hath broken the same, &c.”
    Upon the trial, before Bucher, P. J., the plaintiff offered in evidence his deed from the defendant, for the purpose of showing the covenant on which the suit was brought. The defendant objected, that there was no covenant in the deed to support the action, and the court excluded the evidence, saying:
    “ There is no covenant in the deed to meet the declaration. There is no covenant whatever, save that of a general warranty. The offer is simply to show that the plaintiff has -been,deprived'of the right of passage in and out of the streets adjacent to the land-described in the deed. There can be no recovery for breach of warranty without proof that the grantee has been ousted by a title paramount. If the plaintiff has been wrongfully deprived of the right of enjoyment of the streets adjacent to the land conveyed, the remedy must be by a different form of action. We sustain the objection and reject the evidence.” Exception.
    Plaintiff then offered the. deed again, in connection with the draft of “Spotts’s Addition,” to be followed by evidence that the defendant, contrary to the clause of warranty, asserted a superior title to the land conveyed, for the purpose of showing the covenant and breach. Defendant objected because the plot was not attached to the deed nor referred to in it, and because the possession of Spotts or assertion of title in himself could not sustain the action. Evidence rejected. Exception.
    The plaintiff offering no further evidence, the court directed a verdict for the defendant, upon which judgment was afterwards entered. This writ of error was thereupon taken, and the rejection of the plaintiff’s evidence assigned for error.

      Samuel M. Onvig, for plaintiff in error.
    The declaration was sufficient, the covenant being set out according to its legal effect: 2 Tr. & H. Pract. 32.
    The streets and alleys were conveyed to the centre: Cox v. Freedly, 9 Casey 128; and the warranty was of the whole property conveyed : West v. Stewart, 7 Barr. 124; Rawle Cov. 205. Any words in a deed which assert a material thing to have been done make a covenant that it has been done : Christine v. Whitehill, 16 S. & R. 98.
    The reference to a plot incorporates it in the deed: Birmingham v. Anderson, 12 Wright 253.
    No counsel appeared for defendant in error.
    October 7th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

All the assignments of error are to the rejection of evidence. They present the same general question. The contention is whether covenant will lie to redress the alleged grievance.

It is a well-established rule of law that a conveyance of lands bounded on a highway gives the grantee a title to the middle of the road, if the grantor had title to it, unless he reserved it, either expressly or by clear implication: Paul v. Carver, 12 Harris 207; Id., 2 Casey 223; Cox v. Freedley, 9 Id. 124.

The defendant in error was the proprietor of the portion of the town in which the lands in question lie. He sold and conveyed, by deed under seal, to the plaintiff, “ all that certain messuage and lot of ground situate on the north side of Market street, in Spotts’s addition to Mifflinburg marked with number seven, adjoining lot number three on 4he west; Cross street on the east, and alley on the north * * * being part of a larger tract of land conveyed unto the said Benneville Spotts, who is the proprietor of said addition. Together with all and singular the improvements, ways, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging or in any wise appertaining.” This language clearly imports that the streets named did exist; that they were located adjoining the lot conveyed; that they' were then open to public use, and that all the privileges and benefits incident to streets were a part of the ways belonging and appertaining to the lot. They are not referred to merely as descriptive of the boundaries, but their actual location is unquestionably averred. It is a substantial part of the contract, and creates a covenant of its truthfulness; Dailey v. Beck’s Executors, Brightly’s Rep. 107. A covenant does not require any express words. Any words which show the party asserted in a deed, that a matter material to the contract had been done, amounts to a covenant that it has been done: Shep. Touch., Covenant, page 160; Com. Dig., Covenant, p. 268. A false description may avoid the deed and give covenant against the grantor. It may be descriptive and also an assertion of something more than description. A recital may and often does import a warranty: Pow. on Contracts 143. The defendant did not sell, nor did the plaintiff buy, a lot situate in the central part of a farm, removed from roads, and without access thereto. Such was not the understanding of the parties. The conveyance was of lot No. 7 in defendant’s addition to the town. It matters not that the plot of this addition was not attached to the deed. The reference therein to the lot by number made the plan evidence of its location. As the lot was located by the streets, and by another lot of a designated number, all of which were a part of the plan or plot of the town, a knowledge of the plan was necessary to ascertain the actual location on the ground of the lot; and also the intention of the parties to the contract: Birmingham v. Anderson, 12 Wright 253. The view we take of this case giving the plaintiff his action of covenant does not conflict with the general rule that a covenant of warranty protects only against an ouster from the possession. The action lies by reason of the defendant’s covenant not being verified by the facts. Nor is the conclusion we have reached necessarily in conflict with Bellinger v. Burial-ground Society, 10 Barr 135. There the street had actually been laid out by the public authorities before the conveyance was executed of the lot bounded thereby. The street was subsequently vacated by the same authorities. That case- was therefore unlike the present case. The learned judge therefore erred in excluding the evidence offered.

Judgment reversed, and a venire facias de novo awarded.


author: Chief Justice Agnew Per Curiam.

text:
    Commonwealth ex rel. Chase versus Harding et al.

    1. The fact that art. 5, sect. 5, of the new constitution, provides that “ whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law,” does not of itself constitute a separate district, when a county attains that number of inhabitants, but simply indicates a certain basis, upon which at the proper time and in the proper manner judicial districts may be created by the legislature.
    2. The proper time at which to create these judicial districts is at decennial periods, as provided in the 14th section of the Schedule to the Constitution, as follows: “ The General Assembly shall, at the next succeeding session after each decennial census, and not oftener, designate the several judicial districts as required by the constitution.” At such periods the counties which have reached the constitutional requirement can be declared by law to have arrived at the period of separation from all others judicially, and the way prepared for passing into the new relation.
    3. The effect of the 13th section of the Act of 1878_, is to suspend the erection of the new county, as to judicial purposes, until a proper constitutional provision can be made for the organization of the new county, in the mode the constitution provides for such county.
    4. Where a county entitled to an Orphans’ Court is divided, under the Act of 1878, the jurisdiction of said court is confined to the old county. The new county is not entitled to a separate Orphans’ Court, but under the constitution, the judges of the Common Pleas become the judges of the Orphans’ Court, and the register of wills is entitled to all the ordinary powers of the office at law, and does not become the clerk of the Orphans’ Court, as in a county entitled to a separate Orphans’ Court
    October 7tb 1878.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey JJ.

      This was an ■ application to the Supreme Court for a mandamus by the Commonwealth, ex relatione Aaron A. Chase, against the several judges o.f the courts of Luzerne county, to compel them to meet and organize the new courts of the new county of Lackawanna, which had been created out of a portion of the old county of Luzerne.
    The petition set forth that the relator, Aaron A. Chase, is a citizen and tax-payer of the county of Luzerne, residing in that portion which has been designated a new county, called Lackawanna, and that he has a judgment of record in said Luzerne county which is a lien on lands lying in said proposed new county of Lackawanna, which he is'desirous of proceeding to collect; and that he has unliquidated demands against persons residing in said county which he wishes to reduce to judgment.
    That by virtue of an act entitled, “An Act to provide for the division of counties of this Commonwealth, and the erection of new counties therefrom,” approved April 17th 1878, an application was filed with the Secretary of Internal Affairs, by citizens of Luzerne county, for a division of said county, and the erection of a new county to be called Lackawanna, and commissioners were appointed, who performed their duties under said act; an election was ordered by the Governor and duly had, at which a majority of the votes cast was in favor of the proposed new county, whereupon the Governor issued his proclamation declaring the same on the 21st 'day of August 1878, and appointed officers for the said county.
    Whereupon, by the requirements of said act, it became the duty of Hon. G. M. Harding, Hon. John Handley, Hon. Wm. H. Stanton and Hon. D. L. Rhone, they being the judges of the several courts of Luzerne county, to meet on the second Monday thereafter, to wit, on the second day of September 1878, and organize the courts of said new county of Lackawanna, fix the number of terms and return days, and do all things necessary in the premises and preside over and hold said courts, the said new county pf Lackawanna belonging by the terms of the said act, to the Eleventh Judicial District, of which the defendants are judges. Yet the defendants have refused and still do refuse to meet and perform the duties aforesaid, or any of them. Whereof, your petitioner is liable to suffer great loss and damage by reason of his inability to know certainly in what court or county, or in what manner to pursue his 'remedies against his debtors.
    Your petitioner, therefore, prays that a mandamus may be issued to the said G. M. Harding, John Handley, Wm. H. Stanton and D. L. Rhone, commanding them to meet and organize the courts of the said new county of Lackawanna, fix the number of terms and return-days, and do all things necessary in the premises and to preside over and hold the said courts.

      The material sections of the Act of April 17h 1878, Pamph. L. 17, Purd. Dig. 2102, as applicable to this case, are as follows :
    Sect. 1. Be it enacted, &c., That whenever any county of this Commonwealth shall attain to a population of one hundred and fifty thousand or more, or that has already reached the same, it may be divided, and a new county erected therefrom, upon consent of a majority of the qualified electors of the proposed new county district voting at an election to be called for such purpose.
    Sect. 2. Persons desiring the erection of a new county, as aforesaid, shall file in the office of the secretary of internal affairs an application, setting forth the name of the county proposed to be divided, its area in square miles, and the population at the preceding United States census, a particular description of the boundary line of the proposed division, and the distance of the nearest point thereof to the county seat, the name of the proposed new county, the names of the towns and municipalities or parts thereof that will be included, its number of square miles and population; said application shall be signed by, not less than one thousand of the taxable inhabitants of the said proposed new county district, and shall be verified by the oath of not less than six qualified electors.
    Sect. 3. Whereupon the secretary of internal affairs shall immediately notify the governor and the secretary of the Commonwealth, who, together with the secretary of internal affairs, shall immediately consider said application, and if it shall conform to the constitutional requirements respecting the erection of new counties, they, or a majority of them, shall forthwith appoint three disinterested commissioners, not residents of the county affected, to inquire into and make report concerning the same.
    Sect. 4. Said commissioners shall be sworn to perform their duties with fidelity, and they or a majority of them shall forthwith cause an accurate survey of said proposed new county district to be made, and establish and mark the boundary line of division of the old county; they shall estimate as nearly as possible the population of the proposed new county district, and within sixty days from the time of their appointment shall file in the office of said secretary of internal affairs an accurate report of all the facts in the premises, together with an accurate map of the proposed new county; if it shall appear from such report that said new county may be established without conflicting with the constitutional provisions as to territory, population, and the nearest distance of the boundary line to the county seat, then the governor shall issue a proclamation ordering an election to be held by the qualified voters of the said proposed new county district.
    Sect. 11. The governor shall immediately appoint and commission for the new county the necessary county officers, as provided by law, who shall perform the duties, have the power and be subject to the like qualifications as have county officers of this Commonwealth, and shall continue .in office until the next general election, and until their successors shall be duly elected and qualified.
    .Sect. 13. The judicial, senatorial and representative districts shall, for the time being, remain unchanged; and on the second Monday after the proclamation of the governor establishing said new county, the judges of the several courts of the said county, or a majority of them, shall meet and organize the several courts thereof; they shall determine and fix the number of terms, return-days, and do all things necessary in the premises, up to which time the power, authority and jurisdiction of the officers of the old county over said new county district shall remain unabridged, but from thenceforth shall cease and determine, except as to judges of the courts.
    Sect. 14. The lien of all mortgages, judgments, mechanics’ liens, verdicts, and all records which shall have been made and entered in the original county, up to and including the day of the organization of said courts, shall not be affected by the establishment of said new county, but to proceed thereon certified copies thereof shall be made by the prothonotary or other proper officer, which shall be entered by the like officer of the new county, and like proceedings had as in the original.
    On the 6th of September 1878, a rule was granted to show cause why a writ of mandamus should not issue as prayed for, and on the 26th of September 1878, Judges Harding, Handley and Stanton filed their answer, which admitted the facts as set forth in the petition, and then averred, “that our refusal to comply with the apparently plain mandate of the statute referred to by the rélator, is based not upon any desire or thought on our part to avoid the discharge of official duty, but solely and exclusively upon the fact that immediately after the county of Lackawanna was created agreeably to the statute, to which the relator has referred at length in his petition, His Excellency, John E. Hartranft, Governor of Pennsylvania, acting doubtless in pursuance of some proper warrant or authority, or supposed proper warrant or authority, appointed. and commissioned the Hon. Benjamin S. Bentley to be president judge of said county.
    “We would further add that when the time arrived for the discharge of the duties enjoined upon us by the provisions of the act under which the said Lackawanna county was created, the said Benjamin S. Bentley, having taken the proper oath of office as president judge, pursuant to his said appointment and commission, was present in said county, and, as we are informed and believe, then and there assumed and took upon himself, and still continues to assume and take upon himself, all and every of the judicial duties appertaining therein and thereto, notwithstanding the fact that the statute creating the said county, in plain terms, as it would seem, imposes the discharge of said duties upon us.”

      A copy of the appointment and commission of Benjamin S. Bentley, dated August 22d 187 8, was appended to this answer.
    Judge Rhone, of the Orphans’ Court, filed a separate answer, as follows:—
    “ That so much of the relator’s statement in the second paragraph of his petition as relates to the passage of the Act of Assembly cited by him, and the various proceedings in pursuance of such act, are true; but he alleges as matter of law, that the balance of the relator’s statement, as contained in the second paragraph of his petition is untrue, so far as it relates to the organization of a county called ‘ Lackawanna,’ and the duties of your respondent in the premises, for the reasons following, to wit :
    “1. That John F. Hartranft, Governor of the Commonwealth of Pennsylvania, has appointed and commissioned Hon. Benjamin S. Bentley, judge of the several courts of the county of Lackawanna, including the Orphans’ Court, as stated by the Hon. G. M. Harding, Hon John Handley, and the Hon. W. H. Stanton, in their answer to the proceeding, and that your respondent is informed and believes the said Benjamin S. Bentley has organized and is holding the said Orphans’ Court of Lackawanna county.
    “2. That the Act of Assembly cited by the relator does not establish a separate Orphans’ Court in said county of Lackawanna, and that your respondent is not appointed, commissioned, or otherwise authorized by law, to organize or hold any other court than that of a separate Orphans’ Court for the county of Luzerne.
    “ Your respondent, further answering, saith that for the reasons stated, and none other, he hath refused and still doth refuse, to go to the county of Lackawanna and organize an Orphans’ Court or assist in organizing the other courts thereof.”

      M. W. Palmer and Stanley Woodward, for the plaintiff.
    The action of the executive in assuming the existence of a new district, and in appointing a judge, is based entirely upon what we regard as a misconstruction of art. 5, sect. 5 of the constitution of 1873, which is in the following language: “ Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial districts, and shall elect one judge learned in the law,” &c. This section, whether judged by the ordinary rules of construction applied to constitutions, as fundamental law, or by the subsequent provisions -of the same instrument, is merely directory. It assumes a certain basis upon which, at the proper time and in the proper manner, judicial districts are to be erected by the legislature, but it does not create the districts. This, under.all our constitutions, has been the duty and function of the legislature alone : Commonwealth v. Clark, 7 W. & S. 127 ; Commonwealth v. Maxwell, 3 Casey 460. Again, if the section is an independent and self-executing enactment it should be more specific in its provisions. It prescribes no method to ascertain the requisite 40,000 population. How is the executive to be informed on this point? Suppose an election should make it clear that in a given county there were more than 40,000 people, can the governor proclaim it a new judicial district and appoint a judge to preside over its courts ? Since the adoption of the constitution there are doubtless counties which have increased from less to 40,000 population. Does this fact authorize the executive to proclaim them separate judicial districts ?
    But section 13 of the Schedule to the Constitution directs, “ The General Assembly shall, at the next session after the adoption of this constitution, designate the several judicial districts as required by this constitution.” This section was evidently designed to set in motion the machinery of the new system, and in pursuance of it the legislature enacted the Act of April 9th 1874, under which the county of Luzerne was again designated as the Eleventh Judicial District. Nor is this all. As if to render doubt impossible, the very next, or 14th section of the schedule provides: The General Assembly shall at the next succeeding session after each decennial census, and not of tener, designate the several judicial districts as required by the constitution.”
    It would seem clear then, that the territory embraced in the Eleventh Judicial District, on the 9th of April 1874, when it was duly organized as a separate district in pursuance of law and in the manner prescribed by the constitution, still remains the Eleventh Judicial District. It is not claimed that any legislative action has intervened to create a new district. But it is alleged that in some way, by the automatic effect of the constitution itself, the erection of a new county has resulted in the creation of a new judicial district. We answer in a two-fold way. We say first, this cannot be, for the reason that the constitution cannot, and does not execute itself; and secondly, that by the very terms of the constitution itself, judicial districts are to be designated by the legislature after each decennial census, and not oftener.

    It may be objected to this view of the case, that the framers of the constitution had in mind only existing counties, and did not contendíate the application of the 14th section of the schedule to new counties to be organized out of parts of old ones. To this it may be answered that while the power to “ designate districts,” is to be exercised only at stated intervals, the right to attach counties new or old to districts already existing, is quite a different right, and is not infringed. Grant then, for the sake of argument, that the members of the constitutional convention had specially in view old counties only, it still remains true, that a new county may, for the time being, be attached to a judicial district already existing, and await the decennial census for separate organization as a district.
    If section 13 of the Act of 1878, means anything it is:

      1. That the judicial district in which the new county is located, is to remain unchanged, until legally altered.
    2. That the judges now-in office, or a majority of them, are to meet on the second Monday after the proclamation of the governor, establishing a new county, and organize the several courts thereof.
    3. That until the judges have so met, and organized the courts, the power, authority and jurisdiction of the old county officers over the territory of the new county, remain unabridged; but that thereafter the new county officers are to exercise their respective functions.
    4. The judges of the courts are especially excepted, and are distinctly recognised as the judicial officers of the new county.
    Under the 13th section of the Act of 1878, the judges of the county of Luzerne were compelled to organize courts in the new county. The judges failed, so-to do, and refused when requested. They make answer the appointment of Judge Bentley. The most obvious course for us would have been by writ of quo warranto before Judge Bentley, but it wras doubted whether under the constitution he had a jurisdiction over the state,

      Alfred Hand, Cornelius Smith and E. Merrifield, for the Bar of Lackawanna county.
    The Act of 1878 is not a special but a general law. The report of the commissioners set forth the population of the old and the new county so that the facts as to population are on record. The requirements of this act are in perfect harmony with the constitution. The governor, finding that the population was 40,000 persons, established a special judicial district, being obliged to do so by the constitution, and finding nothing in the act against it. Under the act the executive has a right to commission a new judge, and this judge would hold the courts in the new county. The governor simply filled a vacancy created by the Act of Assembly. The legislature has the power to ascertain whether a county has a right to a new judicial district before the decennial census, and it has done so in the act. This act is to create new counties, and in their creation a new judicial district springs up as provided by the constitution. Judge Bentley is not a party to this cause. A quo warranto would lie against the judges of the county having jurisdiction over the state.
    Is the plaintiff entitled to this writ, and can the judgment be amended so as to remedy the difficulties complained of? Has the relator a clear legal right to have done that which he seeks ? Has he any other remedy ? What business is it of -the relator whether the title of the officers of the county is a good or bad one. It is nothing to him whether the judge is de jure or de facto. If it is his business he should have raised the question directly and not collaterally. There is no difficulty in applying for a writ of quo warranto, and Judge Bentley could have heard the case or called in another judge. If the organization of the courts is not proper let him test that legally.
    [C. J. Agnew. — The constitution did not require that upon the creation of the offices that there should be an immediate right to appoint.]
    ■ It created a vacancy. The moment a county was created the' office was established, and a vacancy at once occurred which could not be filled until the time for election fixed by law, and meantime the governor had the right to appoint.
    As a legal proposition we have no hesitancy in saying the first part of sect. 5, art. 5 of the constitution does execute itself. The moment Lackawanna county was established, and it was legally and officially ascertained that it contained a population of more than 40,000 inhabitants, the two facts necessary to set in motion and operation the constitution were established. The result of such operation was a separate judicial district, and the election of a judge learned in the law as a constitutional right. The election of a judge necessitated the appointment of a judge by the governor.
    Sect. 14 of the schedule refers alone to the designation of districts, not their creation, except so far as sect. 5, art. 5 provides for the creation out of the counties not constituting separate districts. It in no way interferes with the creation of districts by the constitution. The new county act provides for the appointment of commissioners to ascertain whether the constitution has been complied with, and their ascertainment settles that question for all purposes of the constitution.
    On the 14th of October 1878 the Supreme Court made the following order, the opinion to be filed thereafter :
    Per Curiam. — And now, October 14th 1878, it is ordered that a writ of peremptory mandamus issue to Garrick M. Harding, president, and John Handley and William II. Stanton, additional law judges of the Court of Common Pleas of the Eleventh Judicial District, forthwith to meet and organize the several courts of the new county of Lackawanna, and perform all the duties enjoined upon them in and by the Act of General Assembly of the 17th of April A. D. 1878; and as to the said D. L. Rhone, judge of the Orphans’ Court, the said rule be discharged.
    November 21st 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The principal question, and turning point of this case is, whether the new county of Lackawanna became a separate judicial district under the fifth section of the fifth article of the new constitution immediately upon its erection, and by that fact; or whether it remains within the Eleventh Judicial District, according to the provision in the 13th section of the Act of 17th April 1878 (Pamph. L. 17). and must- be organized under it. The 5th section of the 5th article reads thus; “ Whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district, and shall elect one judge learned in the law; and the General Assembly shall provide for additional judges as the business of the said district may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge, not learned in the law, is abolished in counties forming separate districts; but the several associate judges in office when this constitution shall be adopted shall serve for their unexpired terms.” This section, it will be seen, has no relation to new counties, but operates on all counties, old and new, according the number of inhabitants in them, and affects existing districts, as already arranged by law. The new constitution found the state already districted, and therefore to be re-districted before it could take effect. Under this section the organization of separate districts consisting of a single county, and that of single districts composed of several counties are different; the former having but one judge who holds all the courts alone, and additional law judges when necessary for the dispatch of business; the latter having three judges, one of whom, the president, is learned, and the other two not learned in the law; the president being a judge of every county in his district, and the associate judges only of one county. The number of inhabitants in a county is an unknown fact, except as it may become known through the decennial census taken by the United States. This connects the question with the 14th section of the schedule, which will be noticed presently. Now it is obvious that as the 5th section referred to operates upon an existing arrangement of districts throughout the state, and as counties having-a population less than forty thousand are necessarily comprehended with others in districts having a president judge, who presides in each and every county of the district, a most uncertain and confusing state of judicial affairs, followed by ruinous consequences, would happen, if, whenever a county reached the number of forty thousand inhabitants, it became ipso facto a separate judicial district, by the simple mandate of the 5th section of the 5th article, and without preparatory legislation. Its organization would change instanter; the associates not learned in the law, elected and commissioned long after the adoption of the constitution, dropping out; and the president of the whole district becoming the sole judge in the new district. There would arise perplexing questions of jurisdiction likewise, if the fact of the required population determines the operation of the constitution, and not its legal ascertainment by an act of legislative power. If the fact determines, then the time of the fact also governs, and who shall (outside of the legal mode) determine when this took place ? And if it had taken place long before the change in organization took place, what effect will the acts of associates have, acting after their offices expired by virtue of the very terms of the same section ? It is evident that if the constitution executes itself, without legislative aid to determine the number of inhabitants and prepare the way for the passage of the county, having the required population, from the old into the new relation, the confusion would be inextricable, and the consequences ruinous. It is also obvious, as the constitution is not confined to new counties, but applies to old and new, that the latter must follow the same rule.

Now we are prepared to see the relevancy and effect of the 14th section of the schedule, which seems to be out of place, but which has no ambiguity in its interpretation. It reads thus: “ The General Assembly shall at the next succeeding session after each decennial census, and not oftener, designate the several judicial districts, as required by this constitution.” The italics I have made mark its operation. The duty recurs after each census, but not oftener. It is evident the convention intended to confine the arrangement of districts to decennial periods when the census would authoritatively, and with certainty, declare the population of each county. These counties having reached the constitutional requirement, can be declared by law to have arrived at the period of separation from all others judicially, and the way prepared for passing into the new relation. Thus the provisions of the 5th section of the 5th article, and the 14th section of the schedule harmonize with each other, and the separation of a county from all others to form a district by itself, under a new and different organization of its courts, becomes a matter of certainty, and innocuous adaptation to other relations and counties; and this shows also that the argument founded upon the estimate of the population, by the commissioners appointed under the Act of 17th April 1878 is inapplicable. The purpose of that estimate is declared by the act itself. The report of this commission is expressly stated to show whether the new county can be erected without conflicting with the constitutional provisions as to territory, population and the nearest distance of the boundary line to the county seat.” The estimate is but a part of their report for this special purpose, and was not intended by the legislature for a different purpose, while no provision was made in the act for the execution of a different purpose, the 13th section, on the contrary, retaining the new county within the.Eleventh Judicial District. It is manifest that an estimate is not a census, and is to precede the erection of the county, and not to affect its character as a judicial district after it has been erected. Thus it is evident the estimate was no foundation for the exercise of any executive function, either by way of declaring the county a separate judicial district or of appointing its officers. The power of separation is legislative, to he exercised at the time when the constitution provides, and not executive.

It follows from these views that when the new county came into existence as a part of the Eleventh Judicial District, having a president judge already in commission, there was no vacancy in that office to be filled, and nothing upon which the commission of the governor could take effect. He might as well attempt to issue a commission to fill Judge Pearson’s place in Dauphin county. Having no power to appoint, the commission to Judge Bentley was waste paper and void. He is not even a defacto judge, there being no office to be filled, no commission to be issued, and no authority in the governor to act. Even a de facto officer must have some color to act. There was no separate district, and the character of the county in its judicial aspects had not been changed. The Act of Assembly gives no color, but the contrary, and the commission has not the sanction of law. It is better, therefore, to grant the mandamus at once than to suffer new complications to arise by delay.

But the mandamus cannot go to the judge of the Orphans’ Court, whose jurisdiction after separation is necessarily confined to his own .county, Luzerne. The new county is not entitled to a separate Orphans’ Court, but under the constitution the judges of the Common Pleas become the judges of the Orphans’ Court, and the register of wills will be entitled to all the ordinary powers of the office at law, and he does not become the clerk of the Orphans’ Court, as in a county entitled to a separate Orphans’ Court. The 22d section of the 5th article makes the creation of a separate Orphans’ Court a subject of express legislative power; while the Act of 17th April 1878 has not only provided no such Orphans’ Court, but has said nothing about the judge of the Orphans’ Court in the provision for organization. There can be no assumption, therefore, of the creation of a separate Orphans’ Court in the new county. The effect of the erection of the new county was to make the judges of the Common Pleas the judges of the Orphans’ Court, to confer on the register of wills the actual power, and to limit the jurisdiction of Judge Rhone to his own county. He cannot constitutionally be a judge in two counties, one of which is not entitled to a separate Orphans’ Court. The mandamus cannot go to him. But while Lackawanna is not a separate judicial district, its organization presents more difficulty, owing to its peculiar relations. The constitution has made no provision for the effect of the division of a separate judicial district consisting of a single county. The organization of such a separate district is constitutionally different from that of a county connected with others. In the separate district one judge learned in the law fills all the courts without associates. Additional law judges may be given for the dispatch of business, but not ordinary associates. But a county connected with others is entitled to three judges, one the president of the courts of all the counties in his district, and the other two associates, not learned in the law, in the single county, and not in the others. This raises the question, how far the additional judges 'of Luzerne county can be made temporarily associate judges of Lackawanna county, a seeming anomaly. It is clear that the 13th section of the Act of 1878 retaining, “ for the time being,” the new county in the Eleventh Judicial District, and directing the judges of that district to organize the courts of the new county, does carry in the additional as well as the president judge. This compels us to meet the difficulty already presented, the want of any constitutional provision for the separation of a separate single county district into two parts, one of which is not entitled to a separate judicial district organization. It is evident, under the new constitution, that there is no such thing as a separate single county judicial district, consisting of two counties entitled to different organizations. The thing is not only an anomaly, but contradictory. The power to divide Luzerne county, though a separate judicial district, is undoubted; and, therefore, the repugnancy existing in the constitutional provisions for erecting new counties, and creating separate judicial single county districts, must be resolved upon the general powers conferred upon the legislature. The power to create new courts to supply the wants of the state is undoubted: 1st sect. 5th art.; Green’s Case, 8 P. E. Smith 226. The power to create new counties is clear, under the 1st section of the 2d article. The prohibitions in the 13th article do not touch this question, while they imply all other unexcepted necessary powers. We have, therefore, a case within the general powers of legislation, not forbidden by any special provision, and necessary for temporary organization, to comply with the mandate of the 11th section of the Declaration of Rights, that all courts shall be open, and all persons shall have remedy by due course of law and justice administered without denial or delay. Now, in substance, this is nothing more than to hold that the effect of the 13th section of the Act of 1878 is to suspend the erection of the new county, as to judicial purposes, until a proper provision can be constitutionally made for the organization of the new county in the mode the constitution provides for such a county. If this cannot be done, then a constitutional anomaly has arisen for which there is no remedy, and a single county, constituting a separate judicial district, cannot be divided; a consequence we cannot admit, in view of the general legislative power over the subjects of the courts and new counties. We are of opinion, therefore, that the temporary organization of the courts of Lackawanna county, under the 13th section of the Act of 1878, is constitutional and proper, and that the rule for a Tnn.ndfl.wms as to the judges of the Court of Common Pleas of Luzerne county must be made absolute, but must be discharged as to the judge of the Orphans’ Court.

Before the opinion was filed in this case, Hon. Benjamin S. Bentley petitioned the Supreme Court as follows:

“ That he is president judge of the several courts in and for the county of Lackawanna; that in accordance with the Act of Assembly, said county was erected, containing a population of more than 40,000. That thereby its judicial connection with the county of Luzerne was severed, and a vacancy created in the office of president judge of the several courts of record. That on the petition of members of the bar and many citizens of Lackawanna county, Governor Hartranft appointed and commissioned petitioner to be president judge of the several courts of record in and for the county of Lackawanna. That the petitioner accepted the same, took the oath of office, and changed his residence in obedience to the requirements of the constitution, by removing from the city of Williams-port, Lycoming county, Pa., to the city of Scranton, in the county of Lackawanna. That he relinquished the practice of the law and placed his business permanently, in other hands. That he organized the several courts of said new county of Lackawanna, fixed and determined the number of terms and return-days, and all things necessary in the premises.

“ And your petitioner cannot but feel that he is entitled, as a matter of courtesy, if not of right, to be put upon record as a party, and be heard in any proceeding affecting him personally and officially in so large a degree.

“ Your petitioner, therefore, prays that he be made a party in this proceeding, that a re-argument be granted, and a rule to show cause why the mandamus heretofore issued shall not be vacated.

On the 21st of November 1878, this court refused the petition, in an opinion saying,

Per Curiam.

Since the opinion was written in this case,- a,nd before filing it, Mr. Bentley has petitioned us to be permitted to become a party, and to be heard against the mandamus heretofore ordered to be issued, and under which the judges of Luzerne county have already acted. We fail to perceive any mode by which he can become a party to the legal proceedings against the judges of ' Luzerne county. Yet we have examined the reasons set forth in his application with care to see whether we ought to have arrived at a different conclusion in the mandamus case and find none.

Nevertheless, we look upon his case as one of hardship, deserving legislative relief for the injury he has suffered by accepting a commission not asked for, and erroneously issued without fault on his part.

The prayer of his petition is refused.


author: Mr. Justice Woodward

text:
    In re Road in O’Hara Township.
    1. Viewers were appointed to view, and if proper to lay out a public road. They filed a report, wherein the road was laid out between certain points, fixed the damages, and directed that they should be paid by the petitioners for the road. Held, that the viewers, had no authority to direct how, when, or by whom the damages should be paid, but that such imposition of damages was not necessarily fatal to the report, and might be treated as mere surplusage.
    2. The court confirmed the report of the viewers, but made two orders, one directing that the order to open the road should not issue, until the damages were paid, and a subsequent one, that the order to open the road should issue at once, but that the road, should not be opened on the lands of persons, to whom damages had been awarded, until payment of these damages was made. Held, that this confirmation, and these orders, were erroneous.
    3. A'conditional order of confirmation is not a compliance with the Act of February 24th 1-845.
    October 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1877, No. 240.
    On the 8th of May 1875, certain citizens and residents of O’Hara township filed a petition praying for a public road from the Sharps-burgh and Kittanning turnpike to the northern end of Maple street, on the line of the West Penn Railroad, in the borough of Sharps-burg. Viewers were appointed to view- and locate the road as prayed for if it was thought proper. The report of the viewers laid out the road as prayed for, and concluded as follows:
    “ After endeavoring to procure releases from persons through whose property said road passes, we have assessed the following damages: to Henry L. Dingier, one hundred dollars; to Gotlieb Shrode, fifty dollars; to Mrs. Cabel, fifty dollars; to J. J. Robinson, fifty dollars, and to Anthony Fuchs, one hundred and fifty dollars, said damages to be paid by the petitioners.”
    This report was endorsed by the court as follows: “ The within report returned and presented in open court, -and thereupon the same is approved and ordered to be filed. The road, when opened, to be thirty-three feet wide.”
    Subsequently, some fifty citizens filed a remonstrance against the opening of the road, and exceptions to the report of the viewers, which the court at a later date overruled, and confirmed the report, but directed that the order to open the road should not issue until the damages were paid, as provided in the report.
    On the 14th of July 1877, another petition was presented by thirteen citizens, reciting: “ That it would be difficult and inconvenient for many of the petitioners for said road to pay said damages at present, as many of them are poor people and cannot spare the money necessary to do so. That a portion of said road can be opened without disturbing the property of the, persons to whom damages were awarded in said report of viewers.” And therefore, praying “the court to make an order modifying said order of November 23d 1875, so as to allow an order for the opening of said road to be issued at once, and providing that said road shall not be opened upon the lands of any said persons to whom said damages have been awarded until said damages are paid as provided in said report.”
    The court endorsed this petition : “And now, July 21st 1877, the within 'petition presented in open court, and on due consideration thereof, the court grant the prayer of the petitioners, and do order and direct the order to open the said public road to be issued at once by the clerk, the said road, however, not to be opened on the land of parties to -whom damages have been awarded by report of viewers, until isaid damages are paid to them, as provided in said report.”
    The exceptants and the township took this writ, assigning for error the overruling the exceptions to the report of viewers; the order of November 25th 1875, and the last order of July 21st 1877, above noted.

      John Barton, for plaintiff in error.
    The court had no right to attach a condition to the order confirming the report of viewers: In re Road in Lathrop Township, 1 Norris 126.

      S. A. Johnston, for defendants in error.
    October 21st 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

In directing the payment by the petitioners of the damages assessed and reported, the viewers exercised a power which the law had not conferred on them. The Act of the 17th of May 1874 made it the duty of all persons appointed in the several counties of the Commonwealth to view or review any public or private road or bridge, to endeavor to procure releases from all claims for damages likely to arise from opening the road or building the bridge, and to assess and report the amount of the damages where releases could not be obtained. This act was general, and applied to all highways, except those laid down on plans of municipal corporations, the opening of which was under the control of the municipal officers. Rut its object was only to require the procurement of releases and the ascertainment of damages by the same viewers who should lay out a road or locate a bridge. In other respects, local legislation relating to highways was left undisturbed. The concluding clause of the act provided that the assessment should be conclusive, or be subject to appeal, review or modification, according to existing laws in the different counties of the Commonwealth. In the county of Allegheny, the duty of road-viewers was defined by the third section of the Act of the 24th of February 1845, in terms almost identical with those used in the Act of 1874. After assessing damages, the viewers were required to “make report thereof,” and “return the same, together with all releases obtained, to the proper court.” They were not authorized to direct how, when or by whom the damages should be paid. The mistake, however, was not necessarily fatal to the report. The imposition of damages upon the petitioners could have been treated as surplusage, and set aside.

There was more serious irregularity in the approval of the report endorsed the 8th of June 1875, and in the two orders of the court made on the 25th of November 1875, and the 21st of July 1877. By the first of these orders, the report was confirmed, but it was directed that the order to open should not be issued until the damages should be paid. By the second, it was directed that the order to open should be issued at once, but that the road should not be opened on the lands of persons to whom damages had been awarded until payment of those damages should be made.' All this action was manifestly the result of haste and inadvertence. The fourth section of the Act of 1845 made it the duty of the court to examine carefully the amount of damages assessed, and to confirm the report if satisfied that the amount was such that the public interest would be subserved by its payment and the opening of the road. Upon confirmation, the damages were directed to be paid as provided by law. The section concluded with these words: “But if said court shall not be satisfied, the said report shall not be confirmed, unless the same (the damages) shall be paid first by the petitioners.” A conditional order of confirmation was not a compliance with the statute. This was decided in 1877, in a ease from Susquehanna county, to which the Act of 1845 was extended by the Act of the 8th of April 1846. There a report had been “ confirmed finally on payment of one-half of the damages awarded to Gr. W. Reese, within ten days.” It was held that the order was repugnant to the Act of the 13th of June 1836, and to the Act of 1845, since it put the record and effect of the decree in abeyance until payment of the damages, an act necessarily done in pais, as the law has made no provision for payment into court as an equivalent to payment to the party: In re Road in Lathrop Township, 1 Norris 126. The decrees made here were at least equally objectionable. Except under very peculiar circumstances, an attempt to open parts of a road under such an order as the last one would be impracticable. If dissatisfied with the award of damages, the court had simply to withhold confirmation until the petitioners should relieve the county by taking the burden on themselves.

The orders of the Court of Quarter Sessions made on the 8th of June 1875, the 25th of November 1875 and the 21st of July 1877, are reversed and set aside; and it is ordered that the record be remitted for further proceedings in that court.


text:
    Crosky versus Dodds.
    A devise of land to certain persons “ to enjoy and hold the same as tenants in common,” and which gives no right, nor use, possession or enjoyment thereof, to any other person or person's, vests a fee-simple in said devisees.
    October 9th 1878.
    Before Agnew, C. J., Sharswood, MerCUr, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas. No. 1, of Allegheny county: Of October and November Term, 1878. No. 1.
    Ejectment by Sarah Dodds against Eliza Crosky, for the undivided half of a tract of land. David Crosky, by his will, dated in 1839, made the following provision :
    “ And it is my desire and will that they aforesaid, Ann Crosky my wife, my daughter Ann Crosky, my daughter Mary Crosky, and my daughter Elizabeth Crosky, and the survivor or survivors of them, shall enjoy the south half of my place, containing fifty acres and allowance (being the balance after the fifty acres I have already conveyed to my son David), situated in Pine township, to hold the same as tenants in common.”
    At the time the testator, David Crosky, made his wdll he had four daughters and three sons. All are dead except the plaintiff. By virtue of conveyances made during their lifetime, their interest and that of their mother in the south half of the place became vested in David Crosky, their brother. He died, leaving his wife, Eliza Crosky, the defendant, and children to survive him.
    Eliza Crosky is in possession of the premises, and claims that the clause in the will of David Crosky permitting the testator’s wife and daughters, Mary, Ann and Elizabeth, and the survivor or survivors of them, to enjoy the south half of his place, vested in them a fee-simple, and that their interest having become vested in her husband by conveyances from them, that the plaintiff below has no title to any part of the premises. Sarah Dodds, the plaintiff below, was married at the time her father made his will. She claims that the clause in the will above referred to vested only a life-estate in her mother and sisters in the south half of her father’s farm; and that all of her brothers and sisters except one, David Crosky, having died without issue, that she is entitled to the undivided half of the same as one of the heirs of her father, David Crosky, for which interest this ejectment was brought.
    The other material facts are stated in the opinion of this court.

      Thomas M. Marshall, for plaintiff in error.
    Since the act of April 8th 1833, all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by devise over, or words of limitation or otherwise in the will, that the testator designed to devise a life-estate.
    A devise of the income and profits of land is a devise of the land itself: 2 Jarman on Wills 534; Leech v. Robinson, 24 P. F. Smith 276; Silknitter’s Appeal, 9 Wright 365; Wilson v. McKeehan, 3 P. F. Smith 79; Drusadow v. Wilde, 13 Id. 170. The word “enjoy” with survivorship is certainly as large and comprehensive as the “rents and profits.’ And in the language of the statute of 1833 there are “ no words of limitation” or “ devise over” showing an intent to restrict the scope of enjoyment of the land devised. The law favors “ that construction which vests an estate absolutely at the earliest possible period:” Fulton v. Fulton, 2 Grant 28; Zerbe v. Zerbe, 3 Norris 147.

      J. Q. McCombs and J. W. Over, for defendant in error.
    The testator does not say that he gives the fifty acres to his wife and' three daughters, or that he wills or devises it to them. He simply expresses his desire that they should enjoy it. This word in its common acceptation only means the temporary use of a thing. It does not signify anything permanent or stable. The thought of the testator was that their enjoyment of and interest in the land would terminate with their death.
    October 21st 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of ejectment. The plaintiff in error claimed title under the last will and testament of David Crosky. After giving a small specific legacy to several of his children, the testator gave to his wife and three unmanned daughters, and “ the survivor or survivors” of them, all his personal estate. Then follows the clause on which the contention arises: “ And it is my desire and will that they, aforesaid, Ann Crosky my wife, my daughter Ann Crosky, my daughter Mary Crosky, and my daughter Elizabeth Crosky, and the survivor or survivors of them, shall enjoy the south half of my place, containing fifty acres and allowance (being the balance after the fifty acres I have already conveyed to my son David), situated in Pine township, to hold the same as tenants in common.” This action was for the land thus devised. The jury found for the plaintiff below, subject to the opinion of the court, on the question of law reserved, whether the devisees took a life estate or a fee-simple. If the former, then judgment to be entered on the verdict in favor of said plaintiff, if the latter, judgment to be entered for the defendant below non obstante veredicto. The court entered judgment for the plaintiff below. The true construction of this clause in the will, presents the only question in the case.

The 9th section of the Act of 8th April 1833, Purd. Dig. 1475, pi. 10, declares, “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise, in the'will, that the testator intended to devise a less estate.”

The clause cited shows it was the testator’s “will” that the devisees named should “ enjoy” the land devised and “ hold the same as tenants in common.” There is no devise over of these lands. There is neither any other specific devise of them, nor any residuary disposition of them. He declares that he had already conveyed a part of the lands to his son. “ The balance,” that is, all the residue of said lands, he gave to his wife and daughters named, to “ enjoy” together. The will gave no right, nor use, possession or enjoyment thereof, to any other person or persons. The devisees Could not fully “ enjoy” these lands, without taking the rents, issues and profits thereof. It is manifest that the testator did not intend to give them any less interest than the rents, issues and profits. If he intended to devise those, it is a devise of the land itself as fully as he held the same, unless it appears in the will that he intended to devise a less estate: France’s Estate, 25 P. F. Smith 220. We discover no language in the will indicating an intention to give these devisees less than a fee-simple. The testator manifestly intended to devise all his real estate. Unless the fee passed under the clause in question, we are forced to the conclusion, that as to this, he died intestate. Such a conclusion is unwarranted by any language therein contained: Shinn v. Holmes, 1 Casey 142; Hall v. Dickenson, 7 Id. 76 ; Schoonmaker v. Stockton’s Adm’r, 1 Wright 461. But in order to reduce a devise of real estate to less than the whole estate of the testator therein, such an intention must appear in the will. If, therefore, the language used threw some doubt over the question, yet we could not say that it thereby followed that such a restricted intention appeared in the will. Due effect should still be given to the statute by declaring the whole estate of the testator passed: Shirey et al. v. Postlethwaite et al., 22 P. F. Smith 39. The learned judge erred in holding the devisees took a life-estate only, and the judgment entered on the reserved question must be reversed.

Judgment reversed, and now October 21st 1878, judgment in favor of the plaintiff in error, non obstante veredicto.


author: Mr. Justice Sharswood

text:
    Chess’s Appeal. Middleswarth’s Estate.
    1. A legacy is to be deemed vested or contingent, just as the time when it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substantial gift, and it is only implied from the direction to pay, the legacy is contingent. But this rule is not to prevail where a contrary intention is to be collected from the words or circumstances.
    2. The fact that a devise gives an interest which is a contingent one, does not affect the right of transmissibility, unless the contingency is one which affects the capacity of the second taker. \
    3. A testator gave real estate to his son, and should he die without legitimate issue then the property was to be sold and distributed among his grandchildren. Held, that the representatives of the grandchildren, who died before the son’s death, should share in the distribution with the grandchildren then living.
    4. Kelso v. Dickey, 7 W. & S. 279, and Hopkins v. Jones, 2 Barr 69, followed.
    October 10th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Panson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1878, No. 267.
    Appeal of William Chess from the decree of the court distributing the fund in the hands of John Hickman, administrator d. b. n. c. t. a. of the estate of Moses Middleswarth, deceased.
    Moses Middleswarth died in 1842, leaving a will, wherein he devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, that the land should be sold, and after paying certain legacies the balance should be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike.
    On the assumption that his devise was an estate in tail, Jonathan Middleswarth executed an appropriate deed to bar it, and the land having been reconveyed to him, he sold it to Blackmore. Jonathan Middleswarth died on the 8th of June 1869, without issue, never having been married. The four executors of the will being dead, letters of administration d. b. n. c. t. a. were issued to John Hickman, who, in 1871, instituted an action of ejectment, and recovered the land devised to Jonathan. (See Middleswarth’s Administrator v. Blackmore, 24 P. F. Smith 414.) Under the powers, and in pursuance of the directions contained in the will, the administrator sold the real estate which was the subject of the devise in question, and after payment of the specific legacies above referred to, taxes and the expenses of the administration, there remained in court for distribution among the grandchildren of the testator the sum of $11,020.
    The grandchildren referred to are described in another part of the will as the “legitimate children of my son Jesse Middleswarth, now deceased, the legitimate children that is or may be born of my daughters Zibia Henry, Mary Chess, Euphemy Coulter, Anne Fryer, Hannah Coulter.” All the daughters were married and had children at the date of the will.
    The grandchildren of the testator, excluding those who died before his decease, were thirty-eight in number. Of these twenty-one died before Jonathan Middleswarth ; seventeen were living at the time of his decease, all of whom survive. The only question before the Orphans’ Court when making the distribution, w7as whether the legacies were vested at the death of Moses Middlesvrarth, the testator, or were contingent on the death of Jonathan Middleswarth without issue, and took effect as vested legacies on his death. The court held that the legacies were vested on the death of the testator, and decreed accordingly.
    William Chess, one of the grandchildren, took this appeal.

      R. B. Carnahan, for appellant.
    Where there is no gift but by 'a direction to pay or divide and pay at a future time or on a given event, or to transfer “from and after” a given event, the vesting will be postponed till after that time has arrived or that event has happened, unless from particular circumstances a contrary intention is to be collected: Leake v. Robinson, 2 Meriv. 387; Booth v. Booth, 4 Vesey 399 ; Moore v. Smith, 9 Watts 403; Donner’s Appeal, 2 W. & S. 372; Seibert’s Appeal, 1 Harris 501; Bowman’s Appeal, 10 Casey 19; Lamb v. Lamb, 8 Watts 185; McClure’s Appeal, 22 P. F. Smith 417. This case is within the very terms of the rule which declares a legacy to be contingent where the words “payable,” or “ to be paid,” are not used, and there is no gift in express terms ; but the bequest is inferred from a direction “to divide,” or “to divide and pay,” at a future time, or on a given event, or from and after a given event, or “if,” “when,” “in case of,” &c. Such expressions annex the time to the substance of the legacy.

      John Gf. Bryant and John T>. Shafer, for appellee.
    Whilst the legacies in question were contingent until the death of Jonathan, the death of a legatee did not preclude the possibility of the happening of the contingency, and therefore did not determine the interest; and such a contingent interest is transmissible to the personal representatives upon death: 1 Jarman on Wills 777, and cases there cited; Winslow v. Goodwin, 7 Metc. 363; Hopkins v. Jones, 2 Barr 69; Kelso v. Dickey, 7 W. & S. 279; Williams on Executors, pp. 795 and 797, and cases there cited, 5 Am. ed. The contingency could happen as well after the legatee’s death as before; whilst in the cases cited for the appellant it could only happen in the legatee’s lifetime, and consequently his death before its happening terminated his contingent interest, and .there was nothing to transmit. The question of transmissibility could not arise; the only question being that of the contingency of the legacy.

      October 21st 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

Moses Middleswarth by his last will devised certain real estate to his son Jonathan, directing that in case his said son should die without leaving any legitimate issue, the land should be sold, and after paying certain legacies, the balance remaining to be equally divided amongst all his legitimate grandchildren, born or to be born, share and share alike. The question which is presented for decision upon this appeal is whether the interest thus given to his grandchildren was transmissible to their representatives on their death before the period when the division was to take place.

No doubt it is the general rule that a legacy is to be deemed vested or contingent just as the time when it is to take effect shall appear to be annexed to the gift or the payment of it. Where there is no substantive gift, and it is only implied from the direction to pay, the legacy is contingent. But this ruléis, of course, subject to the necessary exception that a contrary intention is not to be collected from the words or circumstances. In McClure’s Appeal, 22 P. E. Smith 414, our late lamented brother, Williams, in an elaborate and exhaustive opinion has shown that there are many cases in which this general rule is not applicable.

In Chew’s Appeal, 1 Wright 23, it was said by Mr. Justice Strong, that “ generally a bequest after the death of a particular person to whom an antecedent interest is given in the same will, is held not to denote a condition that the legatee shall' survive such a person — not to define when the interest shall' vest, but only to mark the time when the gift shall take effect in possession, that possession being deferred merely on account of the life-interest limited to the person on whose death the gift is to take effect.” So in McClure’s Appeal, Mr. Justice Williams said: Though there be no other gift than in the direction to pay or distribute in futuro, yet if such gift or distribution appears to be postponed for the convenience of the fund or property, or where the gift is only postponed to let in some other interest, the vesting will not be deferred till the period in question.” Thus, in the common case of a legacy or gift to A., and on his death to B., no one doubts that both interests, the present and the future, vest together at the same instant. Attaching a contingency to the gift of the second bequest ought not and does not affect the ease unless that contingency relates to the capacity of the second legatee or donee to take. In a legacy to A., and if he dies before attaining the age of twenty-one, then to B., the interest of B., though dependent upon a contingency, is transmissible. It would be different if the gift over was to B. at twenty-one, for if he should die before attaining that age, he could never take, and could therefore have nothing to transmit. It was in accordance with these principles that the case of Kelso v. Dickey, 7 W. & S. 279, was decided. There a testatrix bequeathed a legacy to her daughter under the following contingency: “ In case she dies before the age of twenty-five, or without issue horn, then to be divided equally between my sister and brothers.” The daughter died without issue before she arrived at twenty-five. It was held that the legacy was so vested in the sister and brothers of the testatrix as to be transmissible to their personal representatives in the event of their death before the daughter of the testatrix. Mr. Justice Sergeant said: “ The contingency on which the legatees over were to take was not a contingency annexed to their capacity to take; such, for example, as their living to a certain time; but an event independent of them and not affecting their capacity to take or transmit the right to their representatives, and such a contingent interest has frequently been decided to be vested so as to be transmissible to representatives.” To the same effect is Hopkins v. Jones, 2 Barr 69. These cases are in point and rule that which is before us.

Had the- devise been to Jonathan and on his death then to be divided among the grandchildren, no one could question the transmissibility of their interests. That they were to take only in case he died without legitimate issue, though it made their interest dependent upon a contingency, did not change its character in this respect, because it was not a contingency which affected at all their capacity to take. Whenever the contingency happened, if ever it did. happen, they would be entitled. The inclination of the courts is always in favor of the vesting of legacies, because in ninety-nine cases out of a hundred it is the intention of the testator that his bounty should be transmitted to the children or family of the beneficiary, otherwise indeed full effect is not given to it.

Decree affirmed and appeal dismissed at the costs of the appellants.