author: Sterrett, J.

text:
    UNION COUNTY.
    January Term, 1883,
    No. 402.
    May 1, 1883.
    Dill’s Appeal.
    A and his wife, with B, jointly executed a mortgage which was subsequently assigned to C. The mortgagors then conveyed the premises, subject to the mortgage, to D, who agreed to pay the mortgage, but never did it. The day after this conveyance, D conveyed a portion of the mortgaged lands to B, and this portion was subsequently sold by the sheriff to E, the sheriff’s return setting forth that the sale was “subject to a certain mortgage, of which public notice was given at the time of the sale.” D sold the residue of the tract in parcels, one of them to F, upon which a purchase-money mortgage was given, which mortgage was assigned to C for a full cash consideration. C issued execution upon a judgment obtained upon the mortgage, covering the whole tract, and thereupon E presented a petition to the court, claiming an equity which entitled him to pay this judgment and take an assignment of it, to the end that he might collect it from the parcel conveyed to F, in relief of his own parcel. Held, that he had no equity upon which to ground his application.
    Before Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ. ; Mercur, C. J., absent.
    Appeal of Andrew TI. Dill from a decree of the Court of Common Pleas of Union County, discharging a rule to show cause why the Court should not direct the manner of the sale of the real estate of Isaac. Eisenhower and Mary L., his wife, and Elizabeth Ulsh.
    The facts appearing upon the petition of Andrew EL Dill and the answer of Hannah V. Foster were as follows: “Isaac Eisenhower and Mary L.,his wife, on March 1, 1866, owned and were possessed of one hundred and twelve acres of land, situate in West Buffalo township, Union county, and the whole was subject to the dower of Elizabeth Ulsh. On March 1, 1866, Eisenhower and his wife, and Elizabeth Ulsh, joined in the execution of a mortgage to William Cameron on the one hundred and twelve acres of land for $1,000 for money obtained for the use of Eisenhower and his wife, which mortgage was duly recorded. Judgment pro forma was obtained against the mortgagees March 16, 1881, for $1,902 66, and a writ of levari facias, No. 24, March Term, 1882, issued and was stayed by plaintiff. This judgment was assigned to Hannah V. Foster on July 3, 1882, and she issued an alias levari facias. This is the writ the petitioner seeks to stay, as to the land now owned by Mm being .part of the tract originally mortgaged. On February 23, 1871, Isaac Eisenhower, his wife Mary L., and Elizabeth UÍsh, conveyed the one hundred and twelve acres to Charles IT. Shriner, for the consideration of $6,000, and Shriner assumed to pay the Cameron mortgage as part of his purchase-money ; but he did not pay it. On February 24, 1871, Shriner conveyed to Elizabeth Ulsh, thirty-two acres, one hundred and twenty perches of the one hundred and twelve acres for the consideration of $2,000. These-thirty-two acres and one hundred and twenty perches were sold at sheriff’s sale as the j)roperty of Elizabeth Ulsh to the petitioner, A. H. Dill, who received a deed for the same from the sheriff, dated December 16, 1878. The sheriff’s return to the vend. ex. set forth that the property was sold “ subject to a certain mortgage, of which public notice was given at the time of the sale of said premises.” On April 18,1871, Shriner conveyed fifty-three acres, sixty-nine perches of the one hundred and twelve acres to Mrs. Máry M. Zellers, and took a mortgage, dated April 18,1871, from her and her husband, Henry Zellers, for $1,600, the unpaid purchase-money. This mortgage was duly recorded on June 26, 1871. Shriner assigned this mortgage to William R. Foster, who, the same day, transferred it to Hannah V. Foster, for cash in full. Ón this mortgage judgment was obtained December 18, 1878, for the sum of $1,897 87. This mortgage is unpaid and due. On April 4,1874, Shriner contracted to convey eight acres, eighty perches of the one hundred and twelve acres to Jacob Boyer, and made the deed November 27, 1875. On August 17, 1875, Shriner conveyed ten acres more of the one hundred and twelve acres to Henry Zellers. On November 19, 1875, Shriner conveyed the balance of six acres to Charles Thomas.
    The petition averred that the said Hannah Y. Foster will direct the sale of “the said land in parcels, but not inversely, according to the dates of sale by the original vendor, but in such manner as to secure the payment of the William Cameron mortgage, without selling the land of Mary M. Zellers, upon which the mortgage to Charles H. Shriner for $1,600 is a lien, and further showing that your petitioner is ready and willing to pay all sums due .on the William Cameron mortgage,” and prayed “a rule on the said Hannah Y. Foster to show cause why she should not make sale of the real estate herein described, for the payment of said judgment, in the proportion or in the succession in which the properties of the several owners shall in law or equity be liable to contribute towards the discharge of the common incumbrance, to wit: the mortgage to William Cameron, otherwise, upon the payment of such judgment, to assign the same for such uses as the Court may direct.”
    The Court below, Bucher, P. J., filed an opinion, saying, inter alia: “It is claimed that whilst it is true the entire one hundred and twelve acres are liable to pay the Cam eron mortgage, and that the several tracts aliened by Shriner would be liable in the inverse order of the sales, still, as there remains unpaid nearly $2,000 of purchase-money due from Mary M. Zellers, that this should be applied to the discharge of the common debt in relief of all the other vendees. This as a general proposition is correct, if the mortgage given by Mary M. Zellers was coming to Shriner himself. But the fact is that he has transferred or assigned this mortgage to Hannah V. Foster for a moneyed consideration, so as not only to make her a tona fide purchaser, but a- purchaser without notice of the secret and latent equities which existed between Shriner and the several purchasers of one hundred and thirteen acres. ......(Mott v. Clark, 9 Barr., 399 ; Appeal of the Mifflin County National Bank, 2 Out., 150.) Then Mrs. Foster, being a purchaser of a mortgage for value, was not and cannot be affected by any latent equity which -the vendees of Shriner had to insist upon the application of the purchase-money due from Mrs. Zellers to the discharge of the common mortgage.
    This seems very clear in the light of the cases just cited. It is very clear also that Mr. Dill purchased, subject to the Cameron mortgage, and it is equally clear that as between all the other vendees of Shriner, Elizabeth Ulsh being herself a debtor (though only a surety) in the Cameron mortgage, cannot call upon the holder of that mortgage to so use it as not to disturb her until the last vendee’s lands are exhausted. On the contrary, she being the debtor, the other vendees may call upon her to pay it, and claim that her land shall be first exhausted to satisfy the mortgage before their lands contribute, thus reversing the usual order in cases of partial sale of land bound by a common debt. The next question is can Mr. Dill invoke the rule just cited to protect himself, i. e., that he is a vendee for value, and seeing a common mortgage on the whole one hundred and twelve acres might have concluded that the usual rule of taking the lands in the inverse order of sale to discharge the lien, that Mrs. Ulsh being the first vendee would under the rule be the .last to contribute to its payment. But he is charged with at least constructive notice of the existence of the Cameron mortgage, and when he saw that as the law supposes he did see it, he also saw that Mrs. Ulsh was a party to it, and one of her obligors, and he was bound to conclude that, being her own debt, her land would be first taken to discharge it for the benefit of even the subsequent vendees. This is also plain beyond dispute. No case is thus presented for the interference of the court. We therefore refuse to compel Mrs. Foster to assign the Cameron mortgage to the petitioner, although he has offered to pay her full value for the same, to the end that he may so enforce the collection of it as to relieve his own land from contributing to its payment.”
    March 17, 1883. — The Court entered a decree discharging the rule rescinding the stay, and giving the plaintiff leave to proceed, whei’eupon the petitioner took this appeal, assigning for error the decree of the Court.

      Dill '<& Beale for appellant.
    The rule laid down in Mott v. Clark is that the assignee of a mortgage takes it subject to all the equity of the mortgagor, but not to the latent equity of a third person. This principle does not apply to the present case ; first, because Hannah Y. Foster, the assignee of the Zellers mortgage, had notice by the record and constructive notice of every material fact necessary to enable appellant to maintain his cause against her. Second, because the equity invoked by appellant is not a latent equity, but a patent equity growing out of the transaction itself: Wolbert v. Lucas, 10 Bar., 73; Tod ». Gallagher, 16 S. & R., 263.
    Beddow ■». Dewitt, 7 Wright, 326; Wallace Estate, 2 Pittsburgh, 145 ; Wade v. Filan, 5 Lwz., L. Reg., 106; Mullison’s Estate, 68 Pa., 212.
    The assignee of a mortgage takes it subject to all equities between the original parties and not to any secret equities not arising out of the instrument.
    A purchaser at sheriff's sale is not bound to look beyond the record, and here the record showed title in Elizabeth Ulsh, subject only to the payment of the mortgage for which the whole tract was bound: Coyne v. Souther, 61 Penna. State, 455.

      Alfred Hayes for appellee.
    Ordinarily, where a tract of land, subject to a single mortgage, has been sold by the mortgagor, in distinct parcels, to several vendees, at successive periods of time, the tracts are to be made available in payment of the lien in the inverse order of their alienation : but to this there are exceptions. Mrs. Ulsh was personally liable in the Cameron mortgage.
    Equity calls on her to pay her own obligation; to make good what she promised to do, before she will be allowed to compel them to pay anything in that behalf: Carpenter ». Koons, 8 Harris, 222; Bank ®. Burns, 6 Norris, 491.
    The appellant had actual notice of this mortgage.
    The appellee had neither actual or constructive notice of such facts as will enable the appellant to maintain his cause against her.
    October 1, 1883.
   — The opinion of the court was delivered by

Sterrett, J.

The facts of this case, as disclosed by the petition and answer, are fully stated in the opinion of the Court below. In March, 1866, a mortgage of one hundred and twelve acres of land was made by Isaac Eisenhower, Mary L., his wife, and Elizabeth Ulsh, as security for the payment of their bond for $1,000 in favor of William Cameron. Judgment was afterwards obtained on the mortgage for $1,902 66 debt and interest, and on July 3,1882, the same was assigned to Miss Foster, the appellee. In February, 1871, the three mortgagors, above named conveyed the same premises, subject to the mortgage to Charles 1H. Shriner for the consideration of $6,000, out of which he agreed to pay the mortgage, but never paid it. On the day after the last-mentioned conveyance, Shriner, by deed, not recorded until February 20, 1877, conveyed thirty-two acres of the same land in fee to Mrs. Ulsh. Afterwards the residue of the tract was sold and conveyed by Shriner, in parcels as follows, viz: April, 1871, fifty-three acres and sixty-two perches to Mary M. Zeller; April, 1874, eight and a half acres to Jacob Boyer; August, 1875, ten acres to Henry Zeller, and November, 1875, the residue to Charles Thomas. The part conveyed to Mrs. Ulsh in February, 1871, as above stated, was subsequently sold by the sheriff, as her property, and conveyed to appellant in December, 1878. In the sale to Mrs. Zeller a mortgage for $1,600 purchase-money, recorded June 26, 1871, was given to Shriner and assigned the ¡same day to the appellee, Miss Foster. She is therefore the holder of both mortgages, viz : the Cameron mortgage, which is' the first lien on the whole tract of one hundred and twelve acres, antedating the conveyance to Shriner, and the Zeller mortgage, which is a second lien on the portion conveyed to Mrs. Zeller. As sheriff’s vendee of the portion conveyed to Mrs. Ulsh, appellant contends that he has equities which entitle him to pay the Cameron mortgage and take an assignment thereof, to the end that he may collect the same from the Mrs. Zeller lot in relief of his own lot. The refusal of the learned judge to make an order requiring Miss Foster to accept the'debt, interest, and costs of the Cameron mortgage and assign the security to appellant is the subject of complaint in the several specifications of errors.

In view of the facts, as they appear of record, and for reasons given by the learned judge, we think the order prayed for was rightly refused. As the sheriff’s vendee of Mrs. Ulsh’s interest in the thirty-two-acre tract, appellant occupies no better position than she did before the sale. In her hands the land was bound by the mortgage given by herself and her coobligors to secure their joint indebtedness to the holder thereof. While that remained unpaid she had no equity, as against the holder of the mortgage, that would justify the Court in making an order postponing the sale of her portion of the mortgaged premises until the residue thereof was exhausted. Being one of the mortgagors who created the incumbrance to secure their joint indebtedness, and whose duty it was, at least as between themselves and their creditor, to pay the same, she was in no position to claim the equitable interference of the Court for the protection of her portion of the mortgaged premises. Nor did appellant, by purchasing at a judicial sale or otherwise, acquire any equity on which to ground his application for the order which the Court declined to make. It would have been otherwise, if the sale to him had been clear of all incumbrances ; but it was not. It was made on a judgment, and, as a matter of course, he purchased subject to the mortgage, which is the first lien. It appears, moreover, upon the face of the sheriff’s return that the land was sold subject to the mortgage, of which public notice was given at the time of sale. As was said in Carpenter v. Koons, 8 Harris, 222, there is a wide and palpable difference between one who buys land subject to a mortgage and has a reduction in price equal to the amount of the lien, and another who pays its full value. The assignments of error are not sustained.

'Decree affirmed and appeal dismissed at the costs of appellant.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    WARREN COUNTY.
    January Term, 1883,
    No. 274.
    May 24, 1883.
    Bates v. Short.
    Where there was evidence that an agent was authorized to indorse his principal’s name upon a note in renewal of an old note which had been protested, and that, at the time the authority was given, he told his principal that he “ thought it would be about $410,” and he then indorsed the principal’s name upon the renewal note for this amount; Held, In a suit by the bank which had discounted the note against the principal, that the note was properly admitted in evidence, and that the plaintiff could recover the amount actually due, although the prior note with interest and costs of protest did not exceed the sum of $408 50.
    Before Mercur, C. J.; Gordon, Trunkey, Sterrett, Green, and Clark, JJ. ; Pakson, J., absent.
    Error to the Common Pleas of Warren County.

      Assumpsit by William H. Shortt, president, in trust for tlie Sugar Grove Savings Bank against William Bates upon a promissory note for $410, 'alleged to have been indorsed by the said William Bates.
    The facts, as they apjjeared at the trial before McDermitt, P. J., were as follows :
    In 1878, W. P. Wynn got discounted at the Sugar Grove Savings Bank a note for $400, made by himself and having the name of William Bates indorsed upon it. This note became due on January 25, 1879, and was protested. On January 28, Wynn presented the note in suit for $410, payable to the order of William Bates, dated January 26, and having the name of Bates indorsed upon it. This was also discounted by the bank for Wynn’s account, and the old note was delivered up to him. The bank had no knowledge that the indorsement was not in Bates’ handwriting.

      W. P. Wynn testified, in reference to the second note, as follows:
    “ I wrote William Bates’ name on the back of the note. I wrote the note on the 28th of January, 1879. The night of the 27th I asked him if I could use his name, and he said I could. I told him I would draw up the note and take it to the bank. He says, ‘All right, put my name on the back of it.’ ... I first met Mr. Bates in front of James Letts’ store. He commenced about tbe note. He said he bad got a letter of protest from tbe Sugar Grove Bank. • Tbis was about tbe $400 note that he bad indorsed for me on the Sugar Grove Bank before this one. This last note was a renewal of that. He said t hat he bad got a notice of protest and wanted to know i E I thought I could pay tbe note, and I told him that I could not; that I could not raise tbe money to pay it. He says then that I would have to get it renewed, and be told me to put bis name on tbe back. We were in front of my bouse when be told me that. ... I drew up tbe note tbe next morning and took it to tbe bank, and got it discounted.”
    A witness present at tbe conversation between Wynn and ’ Bates testified that be beard Bates say ‘ ‘ that be would have to get it renewed.”

      G. M. SJiortt, cashier of tbe Sugar Grove bank, testified that the interest on tbe $400 note, at ten per cent., would be $6 75.

      W. P. Wynn being recalled: “I believe I told him (Bates) that I would have to make tbe note $410 . . .
    I told him that I bad no money to pay tbe interest, and there would be some costs of protest. I told him I thought it would be about $410.”
    Bates denied that be had authorized Wynn to sign tbe note in suit or any other one.
    Plaintiff offered tbe note in evidence. Objected to for tbe reason that it is proven on tbe part of tbe plaintiff that tbe indorsement was not written by defendant, and tbe authority to indorse it was to indorse a note for $400 including the interest; tbis note is for $410 and therefore void. Objection overruled under exception. (First assignment of error.)
    Tbe plaintiff submitted tbe following point: ‘ That if the jury believe that W. P. Wynn was authorized by Bates to get tbe protested note at the Sugar Grove bank, on which be was indorser, renewed, by indorsing bis name on a note for that purpose, it was an authority to indorse such a note as by the rule and custom of tbe bank was required and would be accepted in renewal of tbe over-due note.
    ' Answer.- — Tbis point is affirmed, with these qualifications : that tbe defendant would only be liable on tbe note so given for tbe actual amount due tbe bank, with legal interest thereon, and also tbe costs of protest on tbe former note, if it was so indorsed by him. But if the bank, the plaintiff, knowingly took the note in suit for a greater amount than was due thereon, and so took it with the fraudulent intent of collecting more money on it than the defendant owed it, then your verdict should be for the defendant. (Second assignment of error.)
    The defendant submitted the following point, inter alia: That even if the jury believe, from the evidence, that Bates authorized Wynn to renew the $400 note, with interest, and indorse his (Bates) name upon the back thereof as indorser the same as before, and that Wynn drew a note for a larger amount and for other purposes than he was authorized by Bates to do, he exceeded his authority as a special agent of Bates, his act would not be binding upon his principal, Bates, and the plaintiff cannot therefore recover.

      Answer. — This point answered negatively, as the principle involved in it is explained in onr answer to the plaintiff’s only point. (Third assignment of error.)
    The Court charged, inter alia, as follows:
    “ It is alleged on the part of the defendant that the note is given for an amount greater than ought to have been by some small amount. If this was a mistake made in calculating the amount of the note, it would not prevent the bank recovering all that was due to them. But if the bank added an amount or accepted a note in amount greater than -was due them, and with fraudulent intent collected more money from the indorser, Bates, than he owed the bank, it would vitiate the whole and the plaintiff, could not recover.” (Fourth assignment of error).
    Mat 4, 1882. — Verdict for plaintiff for $484 35, upon wrhich judgment was afterwards entered. Thae defendant thereupon took this writ of error.

      D. I. Ball and Olías. H. Noyes for plaintiff in error.
    An agent, constituted for a particular purpose and under a limited power, cannot bind his principal if he exceeds that power. The special authority must be strictly pursued : 2 Kent. Com., 620 ; Batty «. Carswell, 2 John., 48 ; Noe ¶. Prideaux, 10 East, 158 ; Strohecker «. the Bank, 8 Watts, 188.
    The evidence on the part of the plaintiff went no farther than this : that Bates authorized Wynn to renew a note for $400 by indorsing his name to a new note for the amount of the old one, including the interest for sixty days, which would be four dollars.
    If, however, we admit that there would be implied authority to include usury at the rate charged by the bank, which the cashier testified was ten per cent., and for sixty-three days amounting to $6 75 and the fees for the protest of the old note, which were $1 75, the utmost amount of the note which Bates authorized Wynn to indorse was $408 50. The note offered in evidence was for $410. There was, therefore, no authority shown from Bates to Wynn to indorse the particular note in suit.

      Johnson, Lindsey & Parmlee for defendant in error.
    Wynn’s evidence showed ample authority to indorse Bates’ name for a note for $410. The question of the amount which the bank could recover was an independent and separate question from the question of authority given to Wynn to indorse the note. These questions were plainly and” fairly submitted to the jury, and it is not claimed that the jury found for the plaintiff any more than the amount of the old note with legal interest and protest fees added.
    October 1, 1883.
   — Per Curiam :

We have carefully examined the evidence and considered the several specifications of error. The law is correctly declared and the evidence was sufficient to justify its submission to the jury. There was no error in admitting the note in evidence. There was some evidence of authority in the agent to make it for the sum therein specified.

Judgment affirmed.


text:
    January Term, 1883,
    No. 177.
    May 24, 1883.
    Flacke v. The Commonwealth.
    1. The eighth section of the act of April 20, 1858, P. L., 367, which provides “ That manufacturers and producers of cider and domestic wines, and bottlers of cider, perry, ale, porter, or beer, not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, byster-house, or cellar restaurant, or place of amusement, entertainment or refreshment, shall be allowed to sell the same by the bottle, or domestic wines and cider by the gallon, without taking out license: provided that such liquor is not drank upon the premises where sold, nor at any place provided by such seller for that purpose ” is repealed by section 4 of the act of March 22,1867, P. L., 41.
    2. Persons selling ale and beer by the bottle and not otherwise must take out a license from the Quarter Sessions of the county in which they carry on business, under the second section of the act of April 12, 1875, P. L., 40.
    3. A license from the county treasurer therefore does not authorize the sale of malt or brewed liquors by the single pint and quart bottle.

      Before Meeoue, C. J.; Gordon, Trunkey, Stebrett, Green, and Clark, J. J.; Paxson, J., absent.
    Error to the Court of Quarter Sessions of the County of Warren.

    Indictment of Henry Flaeke for selling liquor without a license, and true bill found thereon.
    On the trial at December sessions, 1882, before Brown, P. J., the only evidence presented consisted of the admissions of the defendant below that he had sold ale and beer as a bottler by the case and in pint and quart bottles, as the purchaser desired ; he also testified that at the time of making such sales he was not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster-house, or cellar, restaurant, or place of amusement, entertainment, or refreshment; that the sales were only of beer and ale, and not to be drank on defendant’s premises, nor at any place provided by him for that purpose ; that at the time of the sales he held a bottler’s license issued to him by the county treasurer of Warren county, of which the following is a copj^:
    “Commonwealth of Pennsylvania, ) Warren County. j
    Be it known that Henry Flaeke, of Warren, has paid me, for the use of the Commonwealth, fifty dollars, which entitles him to bottle cider, perry, ale,'porter, or beer, and sell the same by the bottle, or domestic wine and cider by the gallon, for one year, from November 28,1881, to November 28, 1882, agreeably to the act of Assembly in such case made and provided.
    In witness whereof I hereunto set my hand and affix my official seal, at Warren, the 23d day of November, Á. D. 1881.
    F. M. Knapp, Treasurer.”
    The defendant presented the following point:
    The admitted facts in the case being that the defendant, at the time of making the sales for which this indictment is found, was a bottler of beer and ale, and not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster-house, or cellar restaurant, or place of amusement, éntertainment, or refreshment, and that the sales made by the defendant were only of beer and ale by the single bottle or case, and not to be drank on the defendant’s premises, nor at any place provided by him for that purpose; the defendant at that time holding a bottlers’ license from the county treasurer of Warren county lie cannot be convicted of selling liquor without a license.

      Answer. — This point is answered in the negative. (First assignment of error.)
    The Court charged, inter alia, as follows:
    “Under the admitted facts, it becomes a question of law whether the defendant is, or is not, guilty of the offense of selling malt and brewed liquors without a license so to do, and it is the duty of the Court to advise you on this question.
    By the 32d section of the act of Assembly regulating the sale of intoxicating liquors, passed the 31st day of March, 1856, it is provided, ‘That no person pursuing exclusively the business of bottlers of cider, perry, ale, porter, or beer, and not at the same time following or engaging in any way in the business of keeping any hotel, inn, or tavern, restaurant, oyster-house, or cellar, or place of entertainment, amusement, or refreshment, shall be required to take out a license under the provisions of this law.’
    By a supplement to the act of 1856, passed on the 20th day of April, 1858, it provided, ‘ That manufacturers and producers of cider and domestic wines, and bottlers of cider, perry, .ale, porter, or beer, not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster-house, or cellar restaurant, or place of amusement, entertainment, or refreshment, shall be allowed to sell the same by the bottle, or domestic wines and cider by the gallon, without taking out a license.’
    Under the act of 1856, before referred to, it is provided that such persons, that is, bottlers of cider, perry, ale, porter or beer, ‘ Shall not sell or deliver said cider, perry, ale, porter, or beer in less quantities than a dozen bottles at one time, nor permit any of said liquors to be drank upon the premises occupied in said business.’
    You will notice that, by the act of 1858, the bottlers shall be allowed to sell by the bottle without taking out any license.
    Next in order comes the act of 1867, which provides, ‘That if any person, after the passage of this act, shall sell spirituous or vinous liquors, domestic wines, malt or brewed liquors without having obtained a license authorizing him so to do, such person shall, on conviction in the Court of Quarter Sessions, be fined,’ and so and so.
    In our view of the law the act is entirely repugnant to the provisions of the act of 1858, because, by the act of 1858, bottlers of beer and malt liquors were entitled to sell without any license.
    The act of 1867 provides that license shall first be obtained in order to entitle a party to sell malt or brewed liquors.
    We next come to the act of 1875, which provides, in the second section, ‘ That licenses for the sale of liquors, when not otherwise provided for by special laws, may be granted by the Court of Quarter Sessions, of the proper county, at the first or second session in each year, and shall be for one year.’
    Now, unless there is a special provision in the law for the granting of licenses to bottlers, to which attention has not been called, we take it that the licenses must be granted by the Court, as is provided by this section of the act of 1875.
    Section 4 of the act of 1875 provides ‘ That any sale made of vinous, spirituous, malt, or brewed liquors, or any admixture thereof, contrary to the provisions of the law, shall be taken to be a misdemeanor, and upon conviction of the offense in the Court of Quarter Sessions of the peace of any city or county, the person so offending shall be sentenced to pay a fine,’ &c.
    [From the examination of the acts referred to, we are of the opinion that the license issued by the treasurer to the defendant as a bottler did not and does not authorize him to make sale of malt and brewed liquors by the single pint and quart bottle, as desired by the purchasers, and that in so doing he is guilty, as charged in the indictment, with selling malt and brewed liquors without a license.]
    (Second assignment of error.)
    We are strengthened in this conclusion by the consideration of the extreme care taken by the Legislature in guarding the public against the abuses and dangers incident to the unrestricted retail traffic in malt and brewed, as well as spirituous, liquors. The applicant for an eating-house or restaurant license to sell malt and brewed liquors must be a citizen of the United States. He must give notice of his application. He must come into court indorsed by twelve of his fellow-citizens as a man of temperate habits and of good -moral character. It must appear by certificate that such license is necessary, and before the license is granted, he must give a bond, with sureties, conditioned for the faithful observance of the law regulating the sale of this kind of liquors.
    But if the law as claimed by the counsellor the defendant in this case be correct, then any and every person, citizen and non-citizen, terhperate or intemperate, honest or dishonest, may engage in the business of selling malt and brewed liquors by the drink, simply by paying to the treasurer the sum of fifty dollars, provided only that the drink shall be furnished in the bottle instead of a glass, and that it shall be drank outside the premises of the vendor, instead of at his counter or table. We think that such is not the law, [and say to you that,' under the admitted facts of the case, the defendant is guilty as charged in the fourth count of the indictment.] (Third assignment of error).
    December 5, 1882. — Yerdict guilty, as indicted. The Court then sentenced the defendant to pay a fine of $200 to the Commonwealth and costs of prosecution. (Fourth assignment of error).
    Whereupon the defendant took this writ of error, assigning errors as above designated.

      Wilbur & Sclmur (Brown <& Stone with them) for plaintiff in error.
    By the act of the 31st of March, 1856, P. L., 207, bottlers of beer, selling not less than one dozen bottles at one time, were not required to apply to the Court of Quarter Sessions for a license, but were assessed and returned by the same person and in the same manner as provided for the appraisement of mercantile taxes, and paid not less than fifty dollars to the county treasurer, who issued to them what may be designated as a treasurer’s license. That the Legislature designated as a license such paper as was received in this case by the plaintiff in error -from the treasurer, is apparent from the legislation in regard to breweries and distilleries. (See act of April 10, 1849, P. L., 576, secs. 31 and 32). The Legislature in the acts of 1856, 1858, 1867, and 1875, regulating the sale of liquor,' uses the word license as applicable either to a license granted by the treasurer or the Court of Quarter Sessions, and not as particularly specifiying a privilege granted by Court of Quarter Sessions only. (See also the proviso to the 5th section of the act of 1858, P. L., 366).
    Hence it is apparent that when the Legislature provided that bottlers “shall not be required to take out a license under the provisions of this law,” they meant the license granted by the Court of Quarter Sessions. And that a bottler, having paid $50 to the county treasurer and received a license from him, was entitled to sell as provided in the said thirty-second section of the act of 1856.
    The act of April 20, A. D. 1858, P. L., 365, is a supplement to the act of 1856.
    The eighth section provides, “That manufacturers and producers of cider and domestic wines, and bottlers of cider, perry, ale, porter, or beer, not otherwise engaged in the sale of intoxicating liquors, nor in keeping any tavern, oyster-house, or cellar restaurant, or place of amusement, ■ entertainment, or refreshment, shall be allowed to sell the same by the bottle, or domestic wines and cider by the gallon, without taking out a license: Provided, That such liquor shall not be drank upon the premises where sold, nor at any place provided by the seller for that purpose.”
    Under these acts bottlers procured a license from the county treasurer for $50, and sold by the bottle or case, without other license. The question here is whether subsequent legislation has made any change in this respect.
    Manifestly, the legislation of 1856 and 1858 remains as before, except as modified by this act in relation to the granting of licenses to inns and taverns, and restaurants, and the difference in the fine and imprisonment to be imposed by the fourth section. The legislation of 1856 and 1858 relating to bottlers survived the act of 1867, the three acts being in pari materia, and part of the same system: Commonwealth v. McQuirk, 28 P. F. Smith, 300; Mayor v. Davis, 6 W. & S., 279 ; Erie v. Bootz, 22 Smith, 199; Jefferson County v. Reitz, 6 Smith, 44.
    The legislation is not repealed by the act of 12th April, 1875, P. L., p. 40. The first section of that act repeals the local option law; the object of the second section is simply to fix time when the Court shall grant such licenses as they are authorized to grant by previous legislation. The third section regulates the price and classification of licenses and provides that a bottlers’ license shall not. be less than $50.

      Wm. Swanson, district attorney, and Johnson, Lindsey & Parmlee for defendants in error.
    The right advocated here by counsel on the other side is one against which the Legislature has been fencing for over two hundred years : Act of September 22,1676, Duke of York’s Book of Laws, p. 30.
    The thirty-second section of the act of 31st of March, 1856, was repealed, eo nomine, by the twenty-second section of the act of the 20th of April, 1858.

      The acts of 1856, 1858, 1867, and 1875 refer alone to licenses to be granted by the Court of Quarter Sessions. The allegation that bottlers of beer, otherwise termed beer-houses, are to obtain license, anywhere else to prosecute their nefarious business of beveraging the community, without limit as to number, certificate of character, assurance of nationality, or accountability for abuse, is not only unsupported by the legislation, but is at cross-purposes with both the Legislature and the people of Pennsylvania. No argument as to the legislative intent can add force to the explicit language of the statutes.
    October 1, 1883.
   — Per Curiam :

We concur in the correctness of the law as declared in the charge of the Court. The facts are unquestioned.

Therefore, on the opinion of the learned judge

Judgment affirmed. .


author: — Per Curiam:

text:
    January Term, 1883,
    Nos 66, 67, 74.
    May 21, 1883.
    Appeal of the Union Oil Company, Moerck and Falconer’s Appeal, Appeal of Wm. R. Bole, Guardian, et al.

    1. Upon a grant of ore lands “expressly reserving from this conveyance for the party of the first part, his heirs and assigns, the one eighth part of all the minerals or oil product produced on or from said land, to he divided between them on the land;” it was held, that the language of the reservation designated a right in the grantor to the one eighth of the oil raised to the surface by the grantee, his heirs and assigns, at the pleasure and expense of the grantee and his heirs and assigns, and that, as then and not till then could the “ product ” be said to be produced, the grantor was entitled to his share without any deduction for expenses in producing it.
    2. The measure of damages for the non-delivery to the grantor of his share of the oil so produced is the actual market value of the oil at the date of refusal to deliver with interest from that date.
    3. The rule applicable to stocks on a failure to deliver should not be applied to a chattel like oil.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.; Clark, J., absent.
    Appeals of the Union Oil Company, of Moerck & Falconer, and of Wm. R. Bole, guardian of W. H. Bartle, minor child of Wilmot Bartle, deceased, et al., from a decree of the Common Pleas of Warren county.

    Amicable action in equity between William B. Bole, guardian of W. H. Bartle, minor child of Wilmot Bartle, deceased; Thomas Jefferson Limber, administrator of Wilmot Bartle, deceased; James W. Smith, trustee; Jane Hannah, Kate McNamara, and David McNamara, her husband, in right of said Kate ; Priscilla A. Coleman, Elizabeth Hastings, and E. 0. Hastings, her husband, in right of said Elizabeth, complainants, and the Union Oil Company, Frederick Moerck, and W. T. Falconer, defendants.
    The cause was submitted by agreement filed to be heard and determined by W. D. Brown, P. J., in chambers, subject to the right of appeal from his decision.
    The substantial facts, as found by the case stated and by the master, were as follows: The complainants were heirs, representatives, and cestais que trust of Wilmot Bartle, in whom, in 1876, was vested the title to lot No. 646, in Cherry Q-rove township, Warren county, Pennsylvania, containing about one hundred and sixty-five acres of land. On May 8,1876, Bartle conveyed the same tract to Charles Martin and Christian C. Larsen, by deed of general warranty containing the following reservation: “Expressly reserving from this conveyance for the party of the first' part, his heirs and assigns, the one-eighth part of all the minerals or oil product produced on or from said piece of land, to be divided between them on the land.”
    Subsequently, the interest of the Larsens in and to ninety-three acres of the tract became vested in the Union Oil Company by deed, and the remainder, less fifteen acres conveyed by Larsens to Nelson, having become vested in Moerck and Falconer, who leased it to the Union Oil Company.
    The Union Oil Company has been in possession since May, 1882, and has extracted large quantities of petroleum and expended large sums of money in the erection of derricks, machinery, &c. In May, 1882,' it received written notice from the complainants of their claim to the one eighth of all the oil produced, and a demand for its delivery. The totai amount produced from the commencement of production to July 3, 1882, was 65,537.84 barrels. This oil the Union Oil Company sold. The total amount pi’oduced from August 1, 1882, to September 30, 1882, the date of the entry of the action, was 118,105.84 barrels. One eighth of this latter amount was run into the united pipe lines and stands to the credit of the Union Oil Company, and is designated as “disputed royalty.”
    In the case stated, the parties left it to the Court to determine “ what proportion of said oil and its products the plaintiffs, and each of them, are entitled to, and for what proportion of the expense and development of production, if any, the defendants are entitled to be credited as against the plaintiffs and each of them,” and to appoint “a master to state an account against the defendants in accordance with the principle of such decree.”
    Maroi-i 27,1883. — The Court filed the following opinion (after stating the facts): “As between the plaintiffs and the Union Oil Company, defendant, the only question for determination is : Do the words quoted operate as an exception, leaving in the grantor the one eighth of the oil in place ? If so, the plaintiffs and the company are tenants in common of the oil, and as incident to such tenancy the company must be allowed for the one eighth of its reasonable expenditures for the common benefit.. But I am of the opinion that the words used do not indicate an intention that the grantor should retain an estate in the oil in place. Such intention would have been clearly expressed by ending the clause with the word ‘oil’ and the added words, ‘products produced on or from said piece of land, to be divided between them on the land,’ would be meaningless. I think it reasonable to conclude that the parties made use of these added words for some purpose, and although that purpose may not be clearly expressed, the impression on my mind is that they were used to designate a right in the grantor to the one eighth of the oil when, and only when, the grantees, their heirs and assigns, should, at their own expense and at their own pleasure, raise the same to the surface. After the delivery of the deed, the grantor had no right, and the grantees w7ere under no obligation, to operate the land for the purpose of producing oil. The rights of the grantor were contingent upon production by the grantees. If produced by the grantees, then the right of the grantor attaches to the one eighth of the ‘product produced,’without any accountability for the costs of production.”
    The Court decreed that the Union Oil Company account, “without any deduction on account of development and production,” and appointed Charles Dinsmore master to state the account in accordance therewith.

      The master found, as matter of law:
    “ First. That the sale of plaintiffs’ share of the oil from time to time, down to and including the 31st of July, 1882, by the Union Oil Company, was a conversion of such oil from the dates of the several sales; that this conversion was not made under circumstances of outrage that would entitle plaintiffs to exemplary or punitory damages.

      Second. That the measure of damages for such conversion is the'actual market value of the oil at the dates of such conversion, to which interest should be added from such dates to the time of entering the decree in this case.

      Third. That the same rules, in fact, apply to plaintiffs’ share of the oil produced in August and September, 1882. Plaintiff having demanded the oil, and the same having been refused, such demand and refusal amount to a conversion in law, and plaintiffs must be understood, in bringing their action, to be seeking the recovery of that only for which they may recover damages for such unlawful detention or conversion.”
    He stated an account in favor of complainants against the Union Oil Company in $14,764 75. f Exceptions were filed to the master’s report, both by plaintiffs’ and by defendant’s company, which the Court, April 14,1883, dismissed.
    It decreed “ that the Union Oil Company, defendant, pay to the plaintiffs $14,764 75 and costs of this suit, and it it is further ordered and decreed that the said Union Oil Company deliver to the said plaintiffs the one eighth of the oil produced on the premises described, supra, from and after September 30,1882.”
    The plaintiffs thereupon took one of above appeals, assigning for error, inter alia, the action of the Court in not decreeing that the defendant deliver to plaintiffs the oil in controversy, in not decreeing that the defendants pay to plaintiffs the highest market price of oil between the dates of production and that of filing the bill, and in not charging defendant with the market price of oil at the time of filing the bill.
    The defendant company also appealed, assigning for error, inter alia, the decree of the Court that defendant company account to the plaintiff for the one-eighth part of all the oil produced from the land described in the statement of facts, without any deduction on account of the development or production.

      Thomas Roddy, William R. Bole, II. L. Richmond, junior, and R. Brown for William R. Bole et al.

      The prayer of the bill is for the delivery of the oil itself. The decree must conform to the prayer of the bill; the account to the decree: Horton’s Appeal, 13 Penna., 67. The decree entered by the learned judge is clear and specific; it is for one eighth of the oil, clear, and the duty devolved upon the master was simply to find the quantity of oil produced from the date of the opening of the territory until the time of filing of the bill or entry of the decree. If it should be assumed that the master could go beyond the question of finding and stating the amount of oil produced to a given period, and state the monetary or market value thereof, these appellants claim, in such event, that the highest market price reached between the time of production and the filing of the bill should be taken.
    Oil, as .at present bought and sold, is analogous to and partakes of the nature of stocks and bonds, its sale being transacted by certificates from pipe lines. The true measure of damages for this case is to be found in Neiler ■». Kelly, 19 Smith, 403; and in Work v. Bennett, 20 Id., 484 ; Punk v. Haldeman, 53 Penna., 229. See also Johns-town Iron Co. v. Cambria Iron Co., 8 Casey, 241; Carnahan v. Brown, 60 Pa., 23; Union Petroleum Co. v. Bliven Petroleum Co., 72 Penna., 173.
    In reply to the cases cited in support of the construction claimed by the other side, it is enough to say that in every case the deed expressly reserved to the grantors not only the ore but the right to enter and mine the same. The right of plaintiffs here is incorporeal and contingent on the production. There was no obligation on the vendees of Bartle to produce the oil, but when they did, then eo insianti the right attached : Clement ■». Youngman, 4 Wr., 346.

      John O. Hall, J. B. Brawley, and Johnson, Lindsey & Parmalee for the Union Oil Company.
    The Union Oil Company and the representatives of the Bartle and Pattison one eighth interest are tenants in common, and being tenants in common, the Oil Company is bound only to account for one eighth of the profits. A credit should therefore have been allowed us in the account stated by the master for one eighth of the cost of production. The language of the clause in the deed, upon which the plaintiffs below rest their claim, [see supra] operates as an exception, by virtue of which the title to one eighth of the oil was retained in the grantor, his heirs and assigns.

      The word “produced” in the clause in question has only the force of “found” and in this view the exception is analogous in its language to that construed in Baker v. McDowell, 3 W. & S., 358, and in Shoenberger ». Lyon, 7 W. & S., 184, in each of which cases the language used was held to be an exception. On the question of construction, see Whitaker v. Brown, 10 Wr., 197; 3d Washburn on Real Property, chapter 5, section 4, pi., 57 ; Caldwell v. Fulton, 7 Casey, 475. That we are liable to account only for the profits upon construction is correct, is shown by 4 Kents’ Commentaries, 369 ; Gregg v. Patterson, 9 W. & S., 198; Coleman’s Appeal, 12 Smith, 278. The price for which we must account is the price we have received for the oil: Greenwood’s Appeal, 11 Norris, 181.
    October 1, 1883.
   — Per Curiam:

These three appeals are from the same decree, and were argued together. We think the learned judge correctly held that the language of the reservation designated a right in the grantor to the one eighth of the oil raised to the surface by the grantees, their heirs and assigns, at their expense and pleasure. Then and not till then was the “product jrroduced.” The grantor was entitled to his share without any deduction for expenses in producing it. We discover nothing in the whole case to sustain any of the numerous specifications of error. The measure of damages and the time for their ascertainment were correctly stated. The rule applicable to stocks on a failure to deliver should not be applied to a chattel like oil. Damages for the non-delivery of oil under the facts shown were correctly measured by the ordinary rule applicable to chattels generally.

In view of the whole case we think no one of the appellants has just cause to complain of the decree.

Decrees affirmed, and the several appeals dismissed ’ at the costs of the respective appellants therein.


author: — Pee Cttkiam :

text:
    WASHINGTON COUNTY.
    October and November Term, 1883,
    No 148.
    October 17, 1883.
    Le Moyne’s Appeal.
    1. A petition by a distributee to the Orphans’ Court prayed that a decree, made a year and a half before, confirming the partial account of certain executors, should be set aside upon the ground of gross error in the amount of commissions charged for services, of which the petitioner had become aware since the final confirmation. JTelA, that since the petition did not allege that the accountants should have charged themselves with any item omitted from their account, and since it omitted to state any reason why the petitioner did not or could not, by the exercise of reasonable diligence, have discovered all of the errors before final confirmation, it was not error upon demurrer to dismiss the petition.
    2. The petition was substantially a bill of review.
    3. As a matter of right a review can be had only for error apparent on the face of the record or for new matter that has arisen since the decree.
    4. It may be had ex gratia for new evidence as to facts discovered after decree made, which could not have been procured by the exercise of due diligence before.
    Before Merctjr, C. J.; Gordon, Paxson, Sterrett, Trunkey, Green, and Clark, JJ.
    Appeal of John Y. Le Moyne from a decree of the OrpÍRins’ Court of Washington County, dismissing his petition for review of the account of the executors of Dr. F. J. Le Moyne, deceased.
    On March 11, 1881, Julius Le Moyne and Y. Harding, executors of the estate of Dr. P. J. Le Moyne, deceased, filed their account in the register’s office of Washington county, and it was subsequently confirmed by the Orphans'’ Court. On November 9, 1882, John Y. Le Moyne, of Chicago, Illinois, filed a petition setting forth “that the petitioner is a son, and one of the heirs at law of the said F. J. Le Moyne, deceased, and is interested in the distribution of his estate ; that on the 11th day of March, 1881, the executors of the last will and testament of said decedent settled in the proper office a partial account of their trust, and that said account was duly confirmed by this Court.
    Since the final cozifirmation of said accouzit the petitioner has become aware of gross error therein as follows:
    The compensation claimed by and allowed to the executors is $9,500, which, is largely in excess of what they should legally and properly receive, for the following reasons:

      First. The accountants claim and receive commissions of about five per cent upon the proceeds of real estate, to wit, $27,549 82. So far as the petitioner is informed, no extra services were rendered nor unusual expense encountered in making sales, and he is advised and believes that this charge is excessive.

      Second. The accountants claim and receive commissions of about five per cent upon the whole amount of the inventory, to wit, $170,861 10. This charge is excessive and unreasonable, because:
    1, The individual indebtedness of the executors is included in said inventory, as follows :
    Indebtedness of Julius LeMoyne,.......$30,513 12
    Indebtedness of V. Harding,. ........ 27,240 05
    Total,..................$57,762 17
    Upon this sum the petitioner is advised and believes no commissions should be allowed.
    2. The following items form part of the said inventory :
    Indebtedness of John V. LeMoyne, ...... $13,082 37
    Indebtedness of Mrs. C. L. Wills,...... 6,149 15
    Indebtedness of Mrs. H. L. Wade,...... 495 40
    Bequest to Julius LeMoyne,......... 583 00
    Bequest to J. and M. LeMoyne,....... 657 50
    Bequest to Hr. F. LeMoyne,......... 220 00
    Bequest to daughters (library,). . ...... 40 00
    Total,.................... $21,227 42
    Upon this sum the petitioner avers that the compensation allowed is excessive, for the reason that the only duty required or performed was the taking of receipts for the several amounts from the respective heirs.
    3.The indebtedness of the petitioner, as set out in the inventory, is $13,082 37, being $4,532 62 with interest thereon, "counted at the rate of tender centum per annum, from 1st of January, 1861, to 12th November, 1879. At the legal rate of interest this indebtedness would amount to only $9,667 81, showing an excess of $3,414 56.
    Upon this excess no commissions should have been allowed.

      Third. The accountants claim credit for the sum of $16,664 18 as “ uncollected and undisposed of” assets. Upon this sum, which is embraced in the inventory, no commission should have been allowed. On account of these errors the balance for distribution is largely reduced, to the prejudice of the interests of the petitioner and other heirs.
    ITe therefore prays,

      First. That the decree confirming said account be lifted, and a rehearing be granted as to so much thereof as is alleged to be erroneous.

      Second. That your Honor grant such other and further relief as justice and equity may require.”
    The executors filed a demurrer to the petition upon the grounds—
    1. That the petitioner does not aver that error of law appears in the decree confirming said account.
    2. That no new matter was alleged.
    3. That nothing was averred which the petitioner could not have known before the confirmation, by using reasonable diligence.
    April 25, 1883. — The Court below, Hart, J., filed the following opinion:
    ‘jit is now well settled that under the acts of 15 March, 1832, and 14 April, 1835, the confirmation of a partial account of an executor or administrator is a definitive decree and conclusive as to the matters contained in it, and from which an appeal will lie to the Supreme Court: Rhoads’ Appeal, 3 Wr., 186; M’Lellan’s Appeal, 26 Sm., 231. It is, therefore, clear that the partial account settled by Hr. LeMoyne’s executors on the 11th of March, 1881, was a distinct account; not, as had been ruled under the act of 1819, an unfinished and partial settlement, which could be overhauled when the last and final account came in, possibly twenty years thereafter; the whole series of accounts being considered and treated as a unit. The confirmation of the account was, as I have said, a final decree; as much so as if the account had embraced and settled the entire trust committed by the testator to his executors. From that decree of confirmation all parties interested have a right of appeal at any time within three years to the Supreme Court. That much is undoubted. The only question is as to the power which the Orphans’ Court has to go behind its own decree, and examine into and correct alleged errors and mistakes.
    Prior to the passage of the act of 13 October, 1840, Sec. 1, P. L., 1, there was no limit to the time within which a review of any of its proceedings by the Orphans’ Court could be allowed. In analogy to the rules and practice in courts of chancery, the Orphans’ Court, it was held, could review and correct errors in its proceedings, if equity and justice required, and no intervening rights of creditors, purchasers, or other third parties prevented, even after the lapse of twenty years and upward : Georges’ Appeal, 2 Jones, 260. And the law is so yet, except as to accounts of executors, administrators, and guardians, to which only the 1st section of the act of 1840 applies. As to these, that is, accounts of executors, &c., the Supreme Court, in construing and applying the act of Assembly, seems to have determined that where a bill for a review is presented within five years after final confirmation, the Orphans’ Court has no discretion, but must grant the review, provided the petition alleges error of law apparent on the record; new matter, or new evidence. But, where the allegations fall short of this, then the petition is to be dismissed: Russell’s Estate, 10 Casey, 258 ; Kin ter’s Appeal, 12 Sm., 318.
    There are some cases which would seem, at first glance, to conflict with this general statement of the law on this subject; but, when examined closely, I think they will be found to harmonize with it. Of this class of cases is Bishop’s Appeal, 2 Casey, 470. Lowrie, J., in delivering the opinion of the Court, says: The final decrees of the Orphans’ Court may be corrected in various forms, depending on the time and the grounds of the application. 1. On mere motion, as to clerical errors and matters that are necessary to make the decree accord with the form that is usual in the kind of case, and that, as the case appeared, and is remembered by the Court, would have been inserted or omitted if it had been suggested to the Court. 2. On petition for a rehearing, setting forth the grounds of the application and verified by oath or affirmation. This applies in cases of decrees by default, and even of decrees on hearing, if applied for during the term, or perhaps after that, if nothing has been done under the decree to prevent it: 12 S. & R., 206. 3. By bill of review, which is a separate suit, founded on error of law appearing on the record, &c. In this case, by the way, although it is stated by the reporter, that the appeal was from the decree of the Orphans’ Court in relation to a bill of review, yet that would seem to be an error on his part; because Judge Lowrie, in the conclusion of his opinion, says : The petition in the present case is a petition for rehearing after a decree by default, and, presumably, it was presented at the same term, or shortly after.
    In McNeel’s Estate, 18 Sm., 412, a bill was presented for a review of the executrix’s account, setting forth that she had not produced to the appraisers a large amount of assets which were known to her and were in her possession. The Court below dismissed the bill for the reason that it did not assert any error of law apparent on the face of the record, nor aver the existence of any new matter, nor of any new proof, which might not have been used at the time the decree was passed. The Supreme Court reversed this decision ; but the reversal was upon the ground that the omission of nearly two thirds of the estate in the inventory and in the account was a fraud, or its equivalent.
    These, and similar cases which I need not refer to, do not contravene the general rule borrowed from chancery practice and said by Lewis, C. J., in Riddle’s Est., 7 Har., 431, to be the first of the ordinances of Lord Chancellor Bacon, that a bill of review can be brought in only two cases. The first is for error in law, apparent on the record, without further examination of matters of fact; and the second is for new matter which hath arisen after the decree. And he adds: A bill of review may also, by special leave, be allowed for new proof that has come to light after the decree, &c. Now, it seems to me, the case presented by the petitioner is not within any of the limitations of this rule. It must be borne in mind that the admissions of fact involved in the demurrer cannot avail the petitioner where, as here, the question is one of jurisdiction. A want of jurisdiction of the subject-matter, it is well said, is an inherent and incurable defect, which cannot be waived by any acquiescence of the parties.
    The complaint is that the accountants were allowed excessive commissions, to wit: five per cent, on the whole amount of the inventory, which was $170,861. Among otlier reasons it is alleged that this'was an excessive charge, because the individual indebtedness of the executors, amounting to $57,762 17, is included in the inventory ; and because the indebtedness of three other heirs and certain bequests, amounting to $21,227 42, are likewise included, and in regard to which the only trouble the executors had was in the giving and taking of receipts. Another reason assigned is .that commissions were charged on three or four thousand dollars in excess of the petitioner’s indebtedness ; and also on $16,664 18, returned in the inventory, but credit taken for in the account as uncollected and undisposed of assets. These are serious allegations ; but they are not matters appearing on the record. The credit of compensation to the executors reads in the account: By allowance to accountants $9,500. Ifc is not stated how the amount ol this compensation was arrived at. It must be presumed, in the absence of record evidence to the contrary, that the register, acting in his judicial capacity, made the allowance for what seemed to him to be good and sufficient reasons. As has been held by our Supreme Court in numerous cases, there is, and in the nature of things there can be, no fixed, invariable rule for determining the compensation of trustees. It is a question, in each case, depending upon the quantum of the estate, the time spent, and the trouble, responsibility, and labor incurred in the administration and settlement of the trust. These considerations, we must assume, were all taken into the account and carefully weighed by the register when in view of all the evidence before him he fixed the compensation of these executors; and, therefore, it cannot be said, notwithstanding the admissions of the demurrer, that there is error apparent on the record. It follows, as a necessary sequence, that the petitioner has not presented such a case as entitles him to a review as a matter of right.
    Has the Court a legal discretion to grant or refuse the petitioner a rehearing in regard to this item of the account ? The decree of confirmation was a decree in default. No exceptions were filed by any of the parties in interest, and under the Court rules its confirmation became absolute, as a matter of course, and without any scrutiny or examination by the j udge. In Bishop’s Appeal, supra, one of the modes in which the Orphans’ Court can correct its final decree is, as we have seen, upon petition for a rehearing. -. . This applies in cases of decree by default, and even of decree on hearing, if applied for during the term, or perhaps later than that, if nothing has been done under the decree to prevent it. It would seem, then, that under certain circumstances a rehearing may be granted even after the term at which the decree was passed. In an application by a party in default he must not only point out the specific errors complained of, as the act of 1840 requires ; but he must go further and account in a satisfactory way for his delay in not excepting to the account at the proper time and in not presenting his application for rehearing at an earlier date ; otherwise he must be deemed guilty of such laches as will deprive him of the equitable relief, to which he might, under different circumstances, have been entitled.
    In the present case the application was not made until more than a year and a half after the decree of confirmation of the account. The petitioner assigns no reason or excuse for this long delay. He simply states that he has learned of the error complained of since the final confirmation of the account. But it is evident from the papers of record in the proceeding that he was of full age at the time. As one of Dr. LeMoyne’s sons, he must be presumed to have known that his father had left a large estate and that he himself would eventually be entitled, under the will, to a share in the residuum, after payment of the specific legacies. It must be assumed, therefore, that he kept himself informed as to the progress of the executors in the settlement of the estate, with a view to taking care of his own interests, or, that if he failed to do so, he was guilty of such laches as would forfeit his right to invoke the equitable discretion of the Court at this late day.
    The mere fact that he is a resident of another State can, I apprehend, make no great difference. He could at any time have ascertained the status of affairs by letters of inquiry, or through a friend or agent. In fact, his means of free and rapid communication with Washington were almost as facile as though it had been a suburb of Chicago. And it is to be observed here, that he does not allege that he had no notice of the filing of this account with the register. In the absence of such averment it must be assumed that he had received such notice. And, further, in the absence of any and all excuse for his delay, which he was bound to render if he had any, it must be assumed that it was delay without excuse. It may have been that he acquiesced at first in the compensation allowed the executors as all the other residuary legatees did, because he was willing they should receive so much, though, perhaps, it was more than the strict rule of law would have entitled them to, or else because he supposed that much was due them by ex debito justitiae. In either case, or whatever may have influenced him to be silent for so long a time, he is too late now in starting an objection to the account, after resting in apparent content with it for much the greater part of two years.
    The demurrer is sustained and the petition dismissed at the cost of the petitioner.”
    The complainant thereupon appealed, assigning for error the action of the Court in sustaining the demurrer and dismissing his petition.

      Doiogan & Todd for appellant.

      The appellant has not been guilty of such laches as would forfeit his right to invoke the aid of a court of equity : George’s Appeal, 2 Jones, 260 ; Mitcheson’s Estate, 11 W. N. C., 240; McNeel’s Estate, 18 Smith, 412.

      Aiken &. Duncan for appellees.
    It is well settled that a decree confirming an executor’s account can be modified or set aside only in one of three ways, namely ; (1) by motion to correct clerical errors or other matters of form and not of substance ; (2) by a petition for a rehearing, and (3) by bill of review predicated on error apparent on the record or on newly discovered matter: Bishop’s Appeal, 26 Pa. St., 470.
    If this is to be treated as a move in the original proceeding, and not a matter of right given by the act of 1840, then it is a question within the discretion of the Court below whether it sliould grant the relief prayed for : Bishop’s Appeal, 26 Pa. St., 471; Hamill’s Appeal, 88 Pa. St., 367.
    But treating the petition as a bill of review, filed under the claim of the appellant that he is entitled to the relief prayed for, not as a matter of grace, but as a matter of right, the Court properly sustained the demurrer and turned the petitioner out of court.
    The right to such a bill exists only in the two cases in which it was allowed before the passage of the act of 1840, that is to say, (1) for error apparent on the face of the record, and (2) for new matter that has arisen since the decree: Green’s Appeal, 59 Pa. St., 238; Biddle’s Estate, 19 Pa. St., 433; Hartman’s Appeal, 36 Pa. St., 70; and the proceeding is to be governed by the rules that had controlled courts of equity before the passage of the act of 1840: Bussell’s Appeal, 34 Pa. St., 258; Scott on Intestate Law, 498.
    The only questions open on a bill of review for error apparent are such as arise upon the pleadings, proceedings, and decree, and the evidence cannot be looked into ; and if the evidence be set out in the bill, a demurrer should be sustained on that ground alone: 2 Dan. Ch. Pr., (5 Am. ed.,) 1578, note; Ibid., 1577, note; Biddle’s Estate, 19 Pa. St., 433.
    October 29, 1883.
   — Pee Cttkiam :

The application of the appellant was substantially a bill of review. As a matter of right a review can be had in two cases only. One for error apparent on the face of the record, the other for new matter that has arisen since the decree : Green’s Appeal, 9 P. F. Smith, 235. It may be allowed ex gratia for new evidence as to facts discovered after decree made, which could not have been procured by the exercise of due diligence before.

No one of these grounds is averred in the petition. It is not alleged that the accountants should have charged themselves with any item which is omitted from their account filed and confirmed. The question is purely whether the appellant may now' show that they then charged an excessive sum for their services. Presumably he had notice of the sum charged before the account was confirmed. He appears to have been satisfied' with it. More than a year and a half after the same was filed fie made this application to open the decree. It is true, in his petition he alleges that since the final confirmation of the account he has become aware of gross errors therein ; but he wholly omits to state'any z’easons why he did not, or could not, by the exercise of reasonable diligence, have discovered all those errors before -the account was finally confirmed. His claim for relief must rest on his averments. We therefore think the learned judge was clearly right in sustaining the demurrer, and in dismissing the petition.

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


text:
    WESTMORELAND COUNTY.
    November Term, 3882,
    No. 33.
    October 2, 1882.
    The Baltimore and Ohio R. R. Co. v. The Sulphur Spring Independent School District of Sewickley Township.
    1. In an action against a railroad company for injuries to a building by a flood, which injuries were alleged to have been caused by the failure of the defendant to keep its culvert in proper condition, there was evidence that two of the three barrels of the culvert were nearly closed up. The Court charged the jury that if the company constructed the culvert in a reasonably skillful manner, and in such a way as to vent the water in cases of ordinary freshets, and kept the same in proper repair, they liad done all that could be asked of them. Subject to this charge the Court affirmed plaintiff’s point that if the jury believed from all the evidence in the case that the three barrels of the defendant’s culvert, if open and free from obstructions, would have been sufficient under the circumstances to have vented and discharged such a quantity of water as would have prevented the damage, the plaintiff was entitled to recover. Held, not to be error.
    2. The Court further charged that “ if the ordinary state of repairs in which the culvert was kept was not good, long time would not be an excuse; but if the culvert had been kept in an ordinarily good state of repairs before and up to the time of the flood, and you believe this was an extraordinary flood, the defendant would be relieved from responsibility, any want of proper repairs of the culvert not being the proximate or producing cause of the damage.” Held, not to be error.
    3. A court would in no case be justified in directing a jury to find a special verdict.
    4. A court may, in their discretion, recommend a special verdict, but it is a discretion this Court will not review and reverse for their refusing to exercise it.
    Before Sjiarswood, C. J.; Merour, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. •
    Error to the Court of Common Pleas of Westmoreland County.

    'Case by tlie Sulphur Spring Independent School-District of Sewickly township, Westmoreland county, against the Baltimore & Ohio Railroad Company, lessee of the Pittsburgh & Connellsville Railroad Company, to recover damages for the loss of a school-house, through the alleged negligence of the defendant.
    Upon the trial in the court below, before Hunter, P. J., the following facts appeared:
    Shaner’s Run passes under the railroad of the defendant and empties into the Youghiogheny river. Where the road crosses the run was a culvert with three openings called “barrels,” with divisions between them built of stone. One of these barrels was twenty-eight and three fourth inches wide and four feet seven inches high ; the second was twenty-six inches wide and four feet four inches high ; and the third was thirty-one and one half inches wide and four feet six inches high. The schoolhouse stood in the hollow above the crossing. The railroad was nine and one half inches lower than the top of the foundation of the school-house. Previous to July 26, 1879, the culvert had been sufficient to vent the water there. On that day there was a very heavy rain. The flood raised up in the hollow, overflowed the railroad and carried away the tracks and ballast. The water was two and one half feet above the rail and about three hundred feet wide. The school-house was floated off of its foundations, carried across the railroad into the river, and broken to pieces.

      John Hamilton, for the plaintiff, testified :

      “Prior to July 26, two of these barrels were nearly closed up. The one next McG-ughen’s lot was entirely closed, and another one was nearly closed, that is, the middle one.....They were in that condition four or five years.” This testimony was confirmed by other witnesses for the plaintiff.
    A number of witnesses for the plaintiff testified that in their opinion, if the barrels had been in good condition, the school-house would not have been carried away.

      J. T. StntMe, for the defense, testified, inter alia:

    “In the morning of the 26th of July, 1879, I was cleaning out the culvert at Shaner station. It was my business to clean out the culverts. We had one barrel cleaned out altogether, and the second one partly cleaned. It would have taken a short time to finish it. The third one we hadn’t touched at all. I suppose it might have taken us half an hour or an hour to finish the second one. I could see through it. There was only rubbish at the mouth of it.”

      Bigiswmnd Lowe, a civil engineer, testified for the defendant, inter alia :

    “It would require a culvert with a span of forty feet and sixteen feet high to carry that amount of water through. The track is twenty-three feet from the bed of the stream. The structure required to go on the top of the culvert would have to be ten feet high, which would make the height of the track twenty-six feet. Such a culvert could not be put in there, as the dump is not that high. It requires one hundred and twenty chambers and barrels like those that are there now to carry that amount of water.”
    Another engineer corroborated this testimony.
    The Court charged the jury, inter alia, as follows:
    “All that can be asked at the hands of the defendant is that they have observed proper engineering skill so as to avoid injury to others that might arise from the construction of the road in obstructing the natural flow or passage of the water. If the company constructed the culvert in a reasonably skillful manner, and in such a way as to vent the water in cases of ordinary freshets, and kept the same in proper repair, they have done all that can be asked of them. Beyond this they are not held to any responsibility, and for anything else they cannot be called on to account. Therefore, if this were an extraordinary flood, unusual, and one not to be expected — in plain terms, if it was the act of Gfod that swept the house away — the defendant is not responsible, and if you so find your verdict should be for the defendant. No one can be called upon to provide against unforeseen occurrences.
    It was the duty of the defendant, however, in the construction of the culvert, and in keeping the same in proper repair, to take into consideration the size of the stream and the extent to which the same might be swollen in*cases of ordinary freshets, and also to take into consideration the location, the surrounding territory, and the probabilities of the collection of waters from the hills adjacent in cases of ordinary freshets. All these things should have been reasonably guarded against by the defendant. If the defendant company did thus construct this culvert, and afterwards kept it in proper repair, they have done all that can be asked of them. There may be occasions, however, where damage results from the concurrent or combined act of God and the negligence or fault of a party. Where this is so, in order to render the party responsible, the negligence on his part concurrent with the act of God must be the real producing cause of the injury. Clothing our language in the words of the Supreme Court, they say that ‘in the present case,’ a case then under consideration before the Court, ‘ if the culvert was so unskillfully and negligently constructed as to be insufficient to vent the ordinary high water of the stream, the railroad company building it would have been liable for the injury thereby caused. The apparent facts indicated the duty. The stream, though small, must find a vent or overflow the adjacent land and undermine the railroad. Its size, the character of its channel, and the declivity of the circumjacent territory which forms the water-shed, indicated the probable quantity of water to be passed through. Proper engineering skill should observe these circumstance's, and supply the means of avoiding the injury which would result from locking up the natural flow, or obstructing its passage so as to cause a reflux in times of ordinary high water. Beyond this prudent circumspection cannot be expected to look, and there is therefore no liability for extraordinary floods, those unexpected visitations, whose comings are not foreshadowed by the usual course of nature, and must be laid to the account of Providence, whose dealings, though they may afflict, wrong no one.’
    Keeping in mind, therefore, these general-principles or rules of law, by which you are to be governed, you will inquire in the first place whether this was an extraordinary flood, and whether it was this extraordinary flood that destroyed the property of the plaintiff. If it was that alone, and was thus the act of God, and the railroad company upon their part were not to blame, then of course the plaintiff cannot recover.
    If, upon the other hand, the railroad company, by any neglect of theirs in keeping this culvert in proper repair so as to give vent to the water in cases of ordinary floods or freshets, combined with the act of God to produce this damage or injury, and that act of the company in neglecting — if there was any neglect, and this is a question of fact for the jury — was the producing cause of the damage, then they would be responsible. You will observe that, in order to entitle the plaintiff in this case to recover, the fault must be brought home, and laid down at the feet of the railroad company, that it was by reason of their neglect, if there was any neglect, that this damage was caused to the plaintiff. In the language of the Court, this must be the producing cause and not some trivial or unimportant neglect. It must be such neglect as would be sufficient, concurring with the act of God, to produce the damage.”
    Counsel for the plaintiff submitted the following point: “If you believe, from all the evidence in the case, that the three barrels of the defendant’s culvert, if open and free from obstructions, would have been sufficient, under the circumstances, to have vented and discharged such a quantity of water as would have prevented the damage ■done to the plaintiff’s school-house, the plaintiff in this action is entitled to recover.”

      Answer. — We have in our general charge commented on the principles of the law governing this case, and have substantially answered the point. You will take the instructions we have given and now affirm the point as explained in the general charge‘1.
    Counsel for the defendant presented, inter alia, certain points, which were as follows :
    “1. That they shall find specifically whether or not the flood in, Shaner’s Hollow, on the 26th of July, 1879, was an extraordinary flood.”
    “2. That they shall find specifically the length of time the rain-fall continued; the number or amount of cubic feet of water that passed into the hollow per second when the flood was at its height; the number or amount of cubic feet of water that the barrels of the culvert would empty or vent per second, if perfectly clear.”
    “8. That they shall find specifically what was the proximate cause of the school-house being carried away.”

      Answer. — “If by these points it is meant that you must formally set forth in your finding certain specific facts, we must decline so to instruct you.
    “In coming to your conclusion, however, you should satisfy your minds as to whether this was an extraordinary "flood; that you also take into consideration the length of time the rain-fall continued; the amount of water that passed into the hollow, the capacity of the culvert, if open and free from obstruction, to vent the water, and also the proximate cause of the damage.
    “All these things are proper for your consideration, and it is your duty to inquire of the same, so as to enable you to come to a just and intelligent verdict.”
    6. “That if this was an extraordinary flood, and the culvert was in the ordinary state of repair that it had been for a long time previous to that time, the plaintiff cannot recover.” •
    “ Answer. — If the ordinary state of repairs in which the culvert was kept was not good, long time would not be an excuse; but if the culvert had been kept in an ordinaria good state of repairs before and up to the time of the flood, and you believe this was an extraordinary flood, the defendant would be relieved from responsibility —any want of proper repairs of the culvert not being the proximate or producing cause of the damage.”
    June 12, 1880. — Verdict for the plaintiff for $1,525 88, upon which judgment was afterward entered.
    The defendant then took out a writ of error, assigning as errors the answers to the above points.

      Maride & McCullough for plaintiff in error.
    Ordinary care in maintaining and operating the culvert was all that was necessary: The Pittsburgh, Port Wayne & Chicago R. R. v. Gf-illeland, 6 P. P. Smith, 445 ; Hey v. Philadelphia, 31 P. P. Smith, 44; McCully u. Clark & Thaw, 4 Wright, 399.
    The Court erred in -its answer and affirmance of the plaintiff’s point, because the general charge does not comment on the law that requires ordinary care and ordinary repair of the culvert at the hands of the defendant at all, but in every instance holds the defendant to keeping the culvert in “ proper repair ” without defining in any way what proper repair was, and leaving the determination of what was a proper condition to a jury. All the world knows that in a trial against a railroad corporation a measure of diligence of the defendant left to the jury cannot be perfect enough not to be condemned. It was error not to define specifically, either in the general charge or in the point, what proper repair was: Pa. R. R. Co. r. Berry, 18 P. P. Smith, 272 ; Penn’a R. R. Co. v. Kerr, 12 P. P. Smith, 353.

      Hazleit & Williams, Jas. 8. Moorhead, and John F. Westling for defendant in error.
    The culverts were not in “proper repair.” Proper repair is such a condition of care and attention as the law would require under ordinary circumstances. That is, if the culverts were in ordinary condition, then they were in proper order and repair, in the eye of the law
    October 16, 1882.
   — Per Curiam :

The answers of the learned Court below to the various points of plaintiffs and defendant complained of in the specifications of error were in conformity to the opinion delivered when the case was here before. The Court in no case would be justified in directing the jury to find a special verdict, and the first three points were therefore properly refused. A Court may, in their discretion in a proper case, recommend a special verdict, but it is a discretion this Court will not review and reverse for their refusing to exercise it.

Judgment affirmed.