text:
    Pennsylvania Railroad Company, Appellant, v. Bogert.

      Statutes—Repeal—Substitute.

    A subsequent statute revising the subject-matter of a former one and evidently intended as a substitute for it, although it contains no express words to that effect must operate to repeal the former to the extent to which its provisions are revised and supplied.

      Statutes—Repeal—Grade crossings—Railroads—Highways—Acts of June 13, 1836, P. L. 551, and June 7, 1901, P. L. 531.
    The Act of June 7,1901, P. L. 531, repealed the Act of Junó 13, 1836, P. L. 551, in so far as the latter related to highway crossings of a railroad at grade.
    The act of June 7, 1901, transferred from the quarter sessions to the common pleas jurisdiction of the crossings of railroads over highways. If at the time the act of 1901 went into effect, proceedings were pending in the quarter sessions, such proceedings became a nullity.

      Road law—Railroads—Grade crossings—New crossing.

    The crossing of a highway leading from a bridge in course of construction over a railroad near the exit from the bridge will be considered a crossing “ hereafter established ” within the meaning of the Act of June 7, 1901, P. L. 531, where it appears that although there had been a crossing over the railroad by a road leading from an ancient ferry, the contemplated crossing was not only in a different place on the trades, but was intended to accommodate more people.
    A court of equity will under the Act of June 7,1901, P. L. 531, enjoin the construction at grade over a railroad of a highway leading from a county bridge, where it appears that the proposed crossing was at the foot of a hill, at the entrance of the railroad shifting yard near a water tank and station, that ten passenger trains and more than twenty freight trains passed the point every twenty-four hours; that the travel to the station on the crossing would be largely increased by the completion of the bridge, and that an overhead crossing could be easily made at an increased cost of only $4,000 to the county.

      Equity—Remedy at law—Road law—Railroads—Act of June 7, 1901, P. L. 531.
    A bill in equity to regulate the crossing of a highway over a railroad will not be dismissed on the ground that there is an adequate remedy at law by petition under the Act of June 7, 1901, P. L. 531, where it appears that there are several distinct parties all necessary to the litigation, whose rights, duties and obligations are not clearly defined.
    To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy -at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor, must be an adequate and complete one. And when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.
    While objection to the jurisdiction can, generally, be made at any stage of the proceedings, objections to the jurisdiction of equity on the ground that proceedings should have been instituted on the law side of the court will not be entertained, unless made within a reasonable time after bill filed. Such objection should be taken advantage of by demurrer.
    Argued April 12, 1904.
    Appeal, No. 270, Jan. T., 1908, by-plaintiff, from decree of C. P. Columbia Co., Sept. T., 1903, No. 3, dissolving injunction in case of Pennsylvania Railroad Company v. William Bogert, George W. Sterner, W. H. Fisher, Commissioners of Columbia County, and Samuel Knecht and William J. Hosier, Supervisors of Mifflin Township, Charles Reimard, Contractor, and the King Bridge Company, Subcontractor.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for an injunction. Before Little, P. J.
    The_ case is stated in the opinion of the Supreme Court.

      Error assigned was decree dissolving injunction.

      E. M. Hinckley, with him L. E. Waller, for appellant.

      J. B. Robison, for the commissioners of Columbia county.

      Grant Herring and Willard, Warren Knapp, for King Bridge Company.
    October 10, 1904 :
   Opinion by

Mr. Justice Dean,

It is impossible to gather a clear chronological history of this case from the jumbled-up records in the paper-books before us. It seems, there were proceedings- in the court of quarter sessions to No. 7, December sessions, 1900, whereby the county commissioners were authorized to construct a county bridge across the Susquehanna river at Mifflinville in Columbia county. We gather from the paper-book in No. 114, January term, 1903, that the viewers and reviewers appointed by the quarter sessions reported in favor of a grade crossing at the southern approach thereto. Confirmation of this report was resisted by the railroad company but it was confirmed absolutely by the court of quarter sessions on July 7, 1902.

Then on March 2,1903, the county commissioners petitioned the court of common pleas, under the Act of June 7, 1901, P. L. 531, to direct a grade crossing of the railroad tracks under the provisions of that act because the last named act went into effect before the decree of confirmation absolute was made in the court of quarter sessions of the report of bridge viewers, and setting out as reasons for directing a grade crossing under the later act, the facts reported by the viewers and reviewers in the court of quarter sessions. To this the railroad company filed answer, that no necessity for a grade crossing existed; that an overhead crossing could easily be made at but little additional expense. The court below in opinion filed, declared that the decree of confirmation absolute in the court of quarter sessions was conclusive on both parties, and therefore directed that the petition in the common pleas under the act of 1901, be dismissed at the costs of the petitioners.

From this order, in effect refusing an overhead crossing under the act of 1901, the railroad company appealed to this court. The case was heard at June term, 1903, at Harrisburg. See 206 Pa. 420. Unfortunately, the hearing developed that to end by final decree the litigation, certainly one party in interest and possibly three had not been made parties to the suit and that we could make no decree binding on all until all had an opportunity to be heard, we therefore expressly declined to decide the merits of the case, but after giving our views as to the true intent and meaning of the act of 1901, we further said: “ Under these circumstances Ave have thought it best without deciding the other question to turn over the appellant to the more plastic and convenient remedy of a bill to enjoin the construction of the bridge in such manner as will require the highway to cross the railroad at grade. This appeal is therefore dismissed without prejudice.”

When it is noticed that the court below in its opinion filed refusing a decree for a grade crossing gave as its controlling reason that the act of 1901 had no application, because the proceedings in the court of quarter sessions were conclusive and determined that the crossing was made under act of 1836, our decision, that this was a new grade crossing and if allowable at all must be allowed under the act of 1901, was, in effect, giving a binding construction to the act of 1901. It is a prohibitory act intended to discourage and abolish grade crossings ; its wholesome effects are not to be frittered away and nullified by any intense desire of a particular local sentiment in a community favorable to a much needed public convenience; a local sentiment which is often regardless of the general public and reckless as to grave consequences in the future. It is a law on the statute book to be heeded by all and especially by courts to whom is confided the grave duty of enforcing obedience to the laws according to their true intent and meaning.

In July, 1903, the railroad company filed this bill in equity against the county commissioners and the other defendants to restrain by injunction the construction of the grade crossing. After hearing, a preliminary injunction was awarded. It had been in force some weeks when the supervisors were heard on their application for grade crossing under the act of 1901. On hearing, the court, on October 26,1903, granted in opinion filed their application for a grade crossing and the same day dismissed the railroad company’s bill for an injunction. From both decrees the railroad company has appealed.

We will first pass on the appeal from the decree dissolving the preliminary injunction and dismissing the bill, for the court so blends the facts and reasons in both proceedings that this decree is, practically, a consequence of both. Besides appellant at our suggestion, when the controversy was first before us, adopted this method of proceeding, which at the time we thought and still think, the most appropriate one for settling the dispute. Nor was it at all improper for the parties to submit in this case the testimony taken in the other cases before the same judge, nor for him to consider his findings of facts and conclusions of law in framing the present decree. But in so doing he has made it necessary for us in reviewing him to follow the same course.

We have seldom had occasion to notice a case where so much time and labor have been expended by counsel and court on either wholly immaterial questions or on those purely incidental to the main issue; such as the purely collateral question whether the railroad company had an indefeasible right to land upon which its tracks were laid and of which it had been in undisputed possession for nearly a quarter of a century,- or whether it was estopped from contesting the right of the county to a grade crossing when the company as a common carrier had transported for a contractor part of • the material out of which the bridge and crossing were to be constructed and like wholly collateral and trivial questions. The real question here, and the one on which a decision depends, is, ought the highway under the act of June 7, 1901, to cross the tracks of this railroad at grade ? The court below, February term, 1908, after hearing on petition of the county commissioners, decided that it had not, because it had decided in another court that it had; on appeal from that decree to this court on June 3, 1903, we in effect approved of that refusal but for very different reasons.; so far as concerned the parties before the court, we on a technical objection sent the case back, that the township authorities and all others interested who were not parties, might in equity be heard. When this bill was filed and the case came again before the court below, with’ the addition of the township supervisors and contractors as parties, the court made a wholly opposite decree to the first one for other reasons, and authorized a grade crossing.

Plaintiffs aver that defendants are about to cross the railroad tracks at grade under the provisions of the Act of June 7, 1901, P. L. 531, and then in the seventh paragraph of the bill aver:

“ That said proposed grade crossing is at the foot of a hill and across the throat of plaintiff’s railroad yard, where the shifting of trains and drilling of cars keeps said track in more frequent use, and close upon its railroad station and water tank, and if constructed, would be very dangerous to the public whether traveling upon the highway, or upon this portion of the railroad, over which ten passenger and.more than twenty freight trains of very great length pass daily.”

In the face of the previous proceedings in the case, it is hard to treat the answers of the township supervisors with patience, because they are so manifestly evasive. This is the substance of the supervisors’ answer:

“For further answer your respondents say that as supervisors aforesaid, they are not interested, nor have they taken any part in the construction of the bridge mentioned in plaintiff’s bill; neither have they nor are they about to construct any approach thereto from the south in such a manner that the said highway will cross plaintiff’s railroad at grade.”

This answer was filed the 8th of August, 1908, the bridge being then in process of construction and planned with approaches across the railroad tracks. In about a month thereafter, the same supervisors presented a petition to the court to authorize a grade crossing, that it was necessary and that it was their duty to construct it.

The county commissioners in their answer to this seventh paragraph, deny the statements therein, but avér that: “ They have no duty to perform with respect to the railroad crossing or the making of a highway beyond the bridge,” while in a former petition they had asked authority to construct a grade crossing. On proper exception filed to these answers, the court might have ordered defendants to more particularly answer, or in default thereof, have ordered the bill to be taken pro confesso and have made decree accordingly. But the railroad company filed no exceptions; instead it joined issue and we suppose, to speed a final hearing, put the case on the trial list.

As already noticed, when this equity proceeding was commenced, the report of bridge viewers in the court of quarter sessions had been confirmed, to wit on the 7th of July, 1902, but the act of the 7th of June, 1901, was then a law upon the statute book and by its terms took effect June 1,1902.

The final decree and most of the proceedings in the quarter sessions case were made after the act of 1901 had become a law. In so far as concerned highways and bridges crossing railroads, both are general acts relating to the same subject and the older act is clearly modified by the later one. By the act of 1836 the court of quarter sessions had power to change the course of a road so as to suit the location of a new bridge; but no such power is given that court by the act of 1901 where such change involves the crossing at grade of the tracks of a railway; that power is expressly given the common pleas by the last act and all the details for its exercise pointed out. This particular power of authorizing grade crossings of railroads no longer exists in the quarter sessions by the act of 1901. Notice the scope of the third section of that act:

“ Every municipality or other authority hereafter constructing a highway .... across an existing railroad shall construct the same above or below the grade thereof, unless permitted in the manner hereinafter provided to construct the same at grade.”

And the manner hereinafter provided is set out in section 4, by petition to the common pleas, which shall by evidence, by appointment of commissioners or otherwise satisfy itself that such construction is reasonably required. When this act went into effect, before final decree in the quarter sessions, it practically suspended all further proceedings in that court, and the court, which it must be assumed had full knowledge of the law, should have so declared. The new statute, so far as it related to the highway crossings of a railroad at grade, was substituted for the old and the quarter sessions had no longer jurisdiction in that particular; its proceedings therefore became a nullity. “ A subsequent statute revising the subject-matter of a former one and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former to the extent to which its provisions are revised and supplied: ” Commonwealth v. Cromley, 1 Ash. 179; Stoever v. Immell, 1 Watts, 258; North Canal Street Road, 10 Watts, 351, and many subsequent cases. Therefore, we hold these proceedings cannot be sustained under the act of 1836.

Was the decree one that should have been made under the act of 1901 ? As is wisely said by the present chief justice when the same case was before us last year :

“The settled policy of this state, legislative and judicial, is against the future increase of grade crossings. The act of June 19, 1871, gave the courts jurisdiction over crossings of one railroad by another at grade, and this court has more than once expressed its regret that the control did not extend to the crossing of a railroad and an ordinary highway. This control the act of June 7, 1901,. has now given, any grade crossing which hereafter comes before the court, comes with a heavy burden of proof upon it.

“ Under the conceded facts, the crossing involved in this controversy is a new grade crossing and as such is prohibited by the act of 1901. The fact that it is incidental to the relocation of an existing highway under the act of 1836 does not relieve it of the ban of the act of 1901. The language of section first, of the latter act is that ‘ all crossings hereafter established ’ shall be above or below grade. This-is a crossing in a different place, and is, therefore, 4 established ’ after the date of the act.”

This is a new grade crossing. It is true, an ancient ferry-had a landing a short distance below the bridge and the passengers crossed the tracks some on foot and same by vehicle but the contemplated crossing was not only in a different place on the tracks but was intended to accommodate more people ; it was in every reasonable sense a new one and not a mere perpetuation of an old one. So that it was fairly within the meaning of the act a crossing 44 hereafter established,” and therefore controlled by the provisions of the act of 1901. There was an agreement of counsel, filed in a companion case to this equity suit and argued here with it to admit in evidence the proceedings in County Commissioners v. Penna. Railroad, which proceedings related to the same crossing; also both court and counsel have used almost indiscriminately the proceedings and facts developed in the second suit, Supervisors of Mifflin Township v. The Penna. Railroad Co. in their argument and opinions in this suit, therefore we, in justice to them, must follow in the use of the same material; indeed it is proper that we should all do so for the cases are so blended that we could not otherwise intelligently consider the law and the evidence. As we have shown this bill is properly filed under the act of 1901. The two most important averments of plaintiff’s bill are the seventh and eighth; the seventh we have heretofore quoted, averring the dangerous character of the proposed grade crossing; the eighth is as follows :

44 That at the very place of said proposed grade crossing the high ground, along whose base at the edge of the river bank plaintiff’s railroad is laid, affords a most advantageous opportunity for an overhead crossing to the level of the village street, which is about eighteen feet higher than the plaintiff’s railroad tracks, and 170 feet distant therefrom across the village common, said street being upon about the same level as' the Berwick road with which said bridge connects, some 500 feet from its northern end.”

First are the averments of the seventh paragraph of the bill true ? The learned judge has found they are not. We think they are. The proposed crossing is at the foot of a hill; there is no conflict in the evidence in this particular; any one of ordinary observation is aware that to descend upon railroad tracks from an ordinarily steep highway is more dangerous than to ascend to such tracks or even to cross them at a level, for teams cannot so easily hold back the vehicle nor can the driver so easily control the team. Then at the other side the traveler emerging from the bridge is immediately on the railroad tracks. That the exact place of the proposed. crossing is an obstruction in conducting the railroad business clearly appears; it is just at the entrance of the railroad shifting yard, near the water tank and station, the one much used by the railroad all through the day, the other by the public. Ten passenger trains and more than twenty freight trains pass over these tracks every twenty-four hours. The extent of the travel to the station on the crossing will be largely increased when the bridge is completed and in use by the public. The Susquehanna river cuts the .county in two nearly equal halves; it has a population of about 64,000 ; the nearest bridge above this one is at Berwick five miles up stream; the nearest below is at Bloomsburg eight miles. It is obvious that even at present the ordinary use of the bridge by the numbers who would find it necessary or convenient to use it would be very large. The numbers of those using such a bridge would probably annually increase. But to establish the extensive use of such a bridge and the crossing which would be practically a part of the same, we need not look further than the opinion of the learned judge himself in his decree of July 7, 1902, confirming the report of the viewers in which he says: “ The bridge when constructed will be a necessary public improvement. It will be more appreciated if it be built so commodious, strong and substantial that the people can pass rapidly over it with their horses and burdens. In view of the legislation giving to street railway companies the right of occupancy of the bridge uncertain instances it would seem to be a reasonable precaution that the piers for the bridge should be built sufficiently long and of such a degree of strength and durability, so as to accommodate not only a wide superstructure for the bridge, but also for any other use now authorized by law.” And this was the kind of bridge which was authorized and which the commissioners seek to build with a crossing over the railroad tracks only thirty to forty feet distant from the exit of travel over the bridge, a bridge not only commodious enough for present travel, foot passengers, horses and vehicles, but for street cars. Such a grade crossing would not only obstruct traffic oh the railroad, but would be a constant menace to the public. There was considerable oral evidence, to some extent contradictory, as to the element of danger in such a crossing. Most of the witnesses called by the county had opinions based on theories such as the comparatively limited use that would be made of the bridge and crossing and that the view of the railroad in either direction was not much obstructed. Quite a number of thoroughly experienced railroad men testified that in their opinion the crossing would be highly dangerous. But without regard to mere opinion, the established conceded facts warrant no other conclusion than that it would prove a perilous crossing. A demand so importunate as to induce the county officers to construct a bridge at a cost of $96,000, the grand jury to approve, the court to confirm, shows of itself that the completion of the structure would be followed by a very extensive use. Besides, the location of the bridge in a somewhat populous county over a considerable river, the only bridge in an interval of thirteen miles, further demonstrated the extent of the use. It could not be used without at the same time also establishing a crossing and to establish a grade crossing would establish a constant peril to the public. We think the learned judge of the court erred in not so finding and affirming the seventh paragraph of plaintiff’s bill.

As to the eighth paragraph which avers that an overhead crossing could be easily made at a comparatively moderate expense, we think that should also have been affirmed as a fact. The policy of the commonwealth and this court with reference to grade crossings has been frequently and in no uncertain terms announced. It is, that the murderous grade crossing must go. It would seem to be intimated in the argument of counsel for appellees that the proper construction of the act of 1901 is, that it is an enabling act, to facilitate grade crossings of railroads by highways. We are of a wholly different opinion; it is a prohibitory act. Perhaps, in the absence of the act of 1901, under a liberal interpretation of the act of 1836, this crossing might have been constructed; but the act of 1901 so far as relates to grade crossings of railroads has taken its place. Unless the particular case comes under the special provision of that act, the party whether supervisors, county or railroad company, petitioning for a grade crossing, has no standing in court, and then as the Chief Justice remarked in the former case, the party comes with a heavy burden of proof. And so he should. When he asks to construct for public convenience, what in all probability will prove a death trap to few or many of the public, he should be able to show clearly, as we said in Pittsburg, etc., Railroad Co. v. Southwest Penna. Ry. Co., 77 Pa. 173, an “ imperious necessity ” for such crossing. It is not enough to make out serious inconvenience to the public if the crossing be not authorized; courts will not stop to compare and calculate the value of life and limb and weigh that value against a loss to the public by inconvenience ; nor will they weigh that value against a few thousand dollars additional expense and call the latter excessive, but that is just what the court did here when it ruled: “ The oniy way to provide for a crossing over the railway is either by granting this application for permission to construct a crossing at grade, or by the alteration of this nearly completed bridge in accordance with the plans of respondent.” The additional expense involved in the alteration was what impelled the court to overrule the eighth averment of plaintiff’s bill. This additional expense was $16,300; it would have compelled the county to elevate the superstructure by raising the stonework of the piers; the railroad company offered to pay two thirds of this sum; this would have made the cost of alteration to the county in the plans about $4,000. It is argued that the company might have refused to pay the money; but the offer was formally made at the hearing and the court by proper order could have compelled compliance with it. The overwhelming testimony of competent.engineers clearly shows that a change in the physical structure of the bridge could have been easily made to avoid a grade crossing; the contour of the surface on each side of the river made the place peculiarly adaptable to an overhead crossing and the court below within the plain intention of the act should, on the evidence, have enjoined the respondents from constructing a crossing at grade. One of the reasons moving it to make the decree is, that the bridge was nearing completion; there is a contradiction in the testimony on that point which we do not decide ; there is little or no contradiction as to the feasibility and cost of alteration; manifestly, in view of the evidence it was grave error not to enjoin respondents. The decree was in no'real sense a compliance with the true intent and meaning of the act of assembly. '

We review the case on the record before us as it stood at the date of the appeal, but while the appeal was pending the whole superstructure of the bridge was swept away by the flood of February, 1904; this is asserted by appellants in their paper-book and admitted by respondents in theirs, so that in the reconstruction of the bridge a change in the height of the piers will probably be all the alteration necessary in the plans.

It is further argued by counsel for the township supervisors that equity is without jurisdiction because the statute gives exclusive jurisdiction by petition to the common pleas in the proceeding there prescribed., It must be noticed that when the case came before us at Harrisburg and was argued, that for reasons then apparent in the argument on both sides, the statutory proceeding attempted to be put in force , had not reached all the proper parties to the issue, nor had it reached the real merits of the issue. It was aptly remarked by the chief justice in the opinion filed in that case, that the statutory method of proceeding is closely assimilated to a proceeding in e.quity and he says, “ whether we might not take up the case aS if'on an appeal in regard to an injunction is far from clear,” and just whose duty, whether that of the county or the township supervisors, it was, to construct a crossing was also not clear. He then says: “ Under these circumstances we have thought it best, without deciding the other questions, to turn Over the appellant to the more plastic and convenient remedy of a bill- to enjoin the construction of the bridge.” Whether in the beginning, there might be sought- a highway crossing at grade, where the precise statutory proceeding in form pointed out in the act would be held to be exclusive, we do not now decide. We do hold that1 under the facts, here developed, it is not-exclusive in this - case. There- are four distinct parties defendants to this bill, the county commissioners, township supervisors, contractor for the bridge proper, and contractor for the iron superstructure. The first two have certain duties to perform as public officers ; the second are under obligations as individuals to perform contracts. In the former proceeding, just what were their respective duties as public officers under the law, or what the obligations of the other two defendants under their contracts was involved in much doubt. Whether, even if a decree could have been made in a proceeding by petition under the statute and whether it could have reached all, whose rights might have been affected by it was far from clear. The statute does not expressly give exclusive jurisdiction to the law side of the court. Under such circumstances, we are remitted to well-established rules to determine the jurisdiction. The most comprehensive statement of the rule and the one which has been followed by this court ever since its announcement in 1850 by Judge King in Bank of Virginia v. Adams, 1 Parsons, 534, is as follows : “ To induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law to induce equity to decline the exercise of its jurisdiction in favor of a suitor must be an adequate and complete one. And when from the nature and complications of a given case, its justice can best be reached, by means of the flexible machinery of a court of equity, in short where a full, perfect and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.” Or as Story states in sec. 33, “ The remedy at law must be plain; for if it be doubtful and obscure at law equity will assert a jurisdiction.” Or as this court stated it in Appeal of Brush Electric Co., 114 Pa. 574, “ A bill may be sustained solely on the ground that it is the most convenient remedy.” It has also been held that where the. remedy is doubtful equity will entertain a bill.

Here were five parties, each one affected, either officially or individually or in its corporate capacity by the. proposed grade crossing and each having separate interests, to some extent antagonistic, depending on the evidence; a comprehensive and just decree could only be made by ascertaining the exact nature of the duties and obligations and rights of each; the remedy most adequate was clearly in equity. Equity alone after full hearing of all the parties could make a proper decree. It would be oppressive and burdensome to hold that plaintiff should institute against each of defendants concerned in the construction of the bridge and crossing, one or more suits at law to stop the work.

But besides the lawful jurisdiction of equity because of the inadequacy and inconvenience of the proceeding by petition under the statute, the objection of respondents to the jurisdiction comes too late. The bill was filed and answer made thereto by each one of the four parties ; no one of them raised a question as to the jurisdiction; issue was joined and hearing had, preliminary injunction awarded and afterwards dissolved and bill dismissed; no demurrer was filed. Objection in this case is first made to the jurisdiction in the argument in this court. While objection to the jurisdiction can, generally, be made at any stage of the proceedings, objections to the jurisdiction of equity on the ground that the proceedings should have been instituted on the law side of the court, will not be entertained, unless made within a reasonable time after bill filed. “ Whether a case may be brought in the chancery form is only a question of form and not of jurisdiction, and the objection is waived if not made in due season: ” 1 T. & H. Pr. sec. 91. “ It must be taken advantage of by demurrer and not by objection to the jurisdiction of the court: ” Adams v. Beach, 1 Phila. 99. To the same effect are Edgett v. Douglass, 144 Pa. 95; Drake v. Lacoe, 157 Pa. 17; Shillito v. Shillito, 160 Pa. 167. So that on both grounds we hold that this decree is sound in equity.

As to the parties to the bill, it does not appear that either Charles Reimard, the contractor for the bridge, or the King Bridge Company were at all concerned by their contracts in the grade crossing; their contracts called for only the construction of the bridge and its superstructure. As to them the bill is dismissed; as to the county commissioners and township supervisors the decree of the court below dissolving the injunction and dismissing the bill, as to them, is reversed ; the bill is reinstated and it is directed that injunction issue enjoining them, their agents and servants from constructing a crossing at grade over the tracks of appellant’s railroad. It is further ordered that said county commissioners and township supervisors pay the costs.


source: Caselaw Access Project

author: Mr. Justice Dean,

license: Public Domain

text:
    Groff v. Groff, Appellant.

      Evidence—Proof of signature—Subscribing witness—Experts.

    In an action on a promissory note where the issue turns on the genuineness of the signature of the maker, the case must be submitted to the jury if one of the subscribing witnesses testifies positively that he saw the maker sign his name, and that he and the other subscribing witness signed their names as witnesses.
    Inan action on a promissory note where the issue turned upon the genuineness of the signature of the maker, several witnesses, not experts, testified that from frequent sight of the maker’s signature, they were able to tell it when they saw it. They were then shown the note in dispute, and asked whether in their opinion it was the signature of the maker; to which they generally answered that they did not believe it was his signature. On cross-examination counsel placed a paper on which was written the name of the maker inside of an envelope, but so that through an aperture cut in the envelope, the entire name could be plainly seen. The witnesses were then asked whether the signature was genuine. Quite often it was shown that the witnesses were mistaken. None of the witnesses limited the scope of their knowledge to a signature as appended to a note or check or other document. Held, that the method of cross-examination pursued was not improper.
    There is no rule of evidence which prohibits the use for comparison of a genuine lead pencil signature.
    Comparisons of genuine signatures with an alleged spurious signature are for the jury, and not for nonexpert witnesses. Expert witnesses are permitted to make comparisons under the Act of May 15, 1895, P. L. 69.

      Evidence—Witnesses—Expert witness—Competency of witness.

    A party cannot complain of the rejection of the evidence of a person called as an expert, where the testimony of the alleged expert himself leaves it doubtful whether he was qualified to act as an expert.

      Evidence—Expert—Comparison of signatures—Act of May 15, 1895, P. L. 60.
    There is nothing in the Act of May 15,1895, P. L. 69, which permits an expert witness to write a copy of a disputed signature upon a blackboard, and then by alleged copies of authentic writings institute a comparison between them and the copy of the alleged forged signature. The act only authorizes expert comparison and opinion of genuine signatures and disputed signatures when they are placed in juxtaposition.

      Interest—Province of court and jury.

    In an action upon a promissory note where the genuineness of the signature was disputed, it is not error for the court to charge that if the jury should find the signature to be genuine their verdict should be in favor of the plaintiff for a sum stated, which sum was made up of principal and interest.

      Argued May 17, 1904.
    Appeal, No. 222, Jan. T., 1903, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1899, No. 82, on verdict for plaintiff in case of Maria Groff v. Abram E. Groff and Wayne I. Groff, executors of Solomon C. Groff, deceased.
    Before Mitchell, C. J., Dean, Fell, Pot-tee and Thompson, JJ.
    Affirmed.
    Assumpsit upon a promissory note. Before Butler, J., specially presiding.
    At the trial the issue turned largely upon the question of the validity of the signature to the note in suit. When James Diller, a witness for defendant, was under cross-examination, he was asked this question:
    “ Q. I offer to show the witness a signature, to be marked ‘ W. B. No. 1,’ purporting to be—that is, the name is ‘ Solomon C. Groff,’ and to ask him whether or not, in his judgment, and from the basis from which he has testified in the other case, he is able to say, whether or not, that is Solomon C. Groff’s genuine signature.”
    Mr. Davis: What I want to know, your honor, is, whether that is a signature seen through a slip cut on an envelope, or whether it is pasted on the outside of the envelope ?
    Mr. Hensel: It is a signature on a paper which paper is in the envelope, and the signature and no other part of the paper is seen through the aperture.
    Mr. Davis: Now, I object to that.
    Objection overruled. Defendants except. Bill of exceptions signed, sealed and filed for the defendants. [1]
    Objections to similar questions in cross-examination were made as to other witnesses. [2-8]
    Mr. Hensel: I offer the paper, “ W. B. No. 9,” signature of Solomon C. Groff, which was identified by Curtis Miller.
    Admitted. . . .
    Mr. Davis : Out of abundant caution, as some of these test papers which were admitted were written in pencil, we want an objection and exception.
    The Court: Yes, sir. All right, sir.
    Mr. Davis : Let us see what papers they are.
    Mr. Hensel: “W. B. No. 9.”

      Bill of exceptions signed, sealed and filed for the defendants. [9]
    Mr. Davis: Now, if the court please, I would make, as an offer, to show the signature to the will of the late Solomon C. Groff to this witness, being a test paper already admitted in evidence, and ask her, by comparison, to explain the differences in the two signatures.
    The Court: Well, do you offer this witness as an'expert on handwriting ?
    Mr. Davis: No, I don’t offer her. .
    The Court: There isn’t any doubt but that the witness, on cross-examination, in order to test his accuracy, may have all sorts of signatures presented to him; but that you, in chief, may have him make a comparison, the jury is not aided by it, because it is just as competent to make it as the witness. . . .
    Offer disallowed. Defendants except. Bill of exceptions signed, sealed and filed for the defendants. [10]
    Webster A. Melcher, a witness for defendants, was asked this question :
    “ Q. In your judgment, which handwriting wrote the name of ‘Solomon C. Groff’ to the note in suit?”
    Objected to by the plaintiff, because he has not testified that either of them did.
    The Court: We understand that; but he is asked now.
    Mr. Hensel: Which of those two ?
    “Q. If any, if either.’’
    Objected to by the plaintiff because he has only made a casual examination.
    The Court: Well, that is the point.
    Mr. Hensel: That is the objection, as tbe question is now amended.
    The Court: It seems to me that expert testimony is received as a matter of necessity, the courts recognize that—it is opinions—and it is not too much to ask, before an expert expresses an opinion, that he shall have exhausted every reasonable effort to be certain of the premises, and, in view of what the witness has said, I don’t think it would be light to admit his answer to that question. He has admitted, distinctly, that he has not made, at all, such an exhaustive examination as he might have made, and an opinion is certainly proper and receivable only when the person giving it has made every reasonable effort to prepare himself to give it intelligently. For those reasons, we sustain the objection and note an exception, if you desire.
    Defendants except. Bill of exceptions signed, sealed and filed for the defendants. [11]
    Rauch Gihon was offered to write on the blackboard a signature of the maker of the note.
    The Court: In the very nature of things, she can’t reproduce accurately. No living being could.
    Mr. Davis: It isn’t for that purpose, your honor. It is for the purpose of getting the characteristics of the handwriting.
    The Court: I understand the- witness to say that her effort is—as it apparently is—to reproduce on that board an exact similitude, so far as she can.
    Mr. Denlinger: As nearly as possible;
    The Court: Well, that she can’t do, at all. It isn’t possible for her to do it.
    Mr. Davis: She is reproducing those signatures as nearly correct as it is possible for her to do, for the purpose, if the court please,' of illustrating, by the writing on the board, her testimony as she will give it in relation to those genuine signatures.
    The Court: In the case of the other witness here, the signatures, as he contended, represented the characteristics. He ■presented, I say, a signature, the name, that was intended, as he claimed, as he testified, to show the peculiarities that amounted to characteristics, as gathered from all the test papers. That we permitted him to do. . . . But it is going very much further to permit this witness to produce what she called a reproduction of something that exists, and to produce it by her. Now, we don’t propose to have that done in the presence of the jury, because, no matter what the purpose of it is, it is denied you, it being misleading. The comparison ought to be, so far as it is a purpose to compare the genuine with that which is said not to be, between those two facts, and those facts alone, and not something that is on the blackboard.
    Mr. Davis: If the court please, we will simply ask the witness to give the characteristics of the test signature.
    The Court: We simply rule now, in view of what we have said, that we will not permit any use to be made, of any kind, nor to be exhibited to the jury, those names on that blackboard, and they might just as well be rubbed off now.
    Mr. Hensel: I ask that they be erased and the blackboard be removed.
    Defendants except. Bill of exceptions signed, sealed and filed for the defendants. [12]
    The Court: No, I don’t say that the blackboard be removed; but I say that those names be rubbed off.
    Mr. Hensel: "Well, that is all I care for. I ask now that somebody be directed to erase.
    The Court: Somebody just erase those names.
    One of the tipstaves erases the names from the blackboard.
    Defendants now offer to show, by the witness on the stand, Anna R. Gihon, enlarged copies of signatures of Solomon C. Groff, deceased, as made by her on the blackboard, of test papers, or some of them, admitted in evidence, and also an enlarged copy of the signature to the note in suit, for the purpose of enabling her to explain to the jury the different characteristics of the genuine signatures and disputed signature.
    Objected to by the plaintiff.
    The Court: Disallowed. . . .
    Defendants except. Bill of exceptions signed, sealed and filed for the defendants. [13]
    The court charged in part as follows:
    [You will not render your decision hastily, but only after due and anxious deliberation, by a most thorough and exhaustive examination and consideration of all of the evidence, recalling, as far as you can, the manner of each witness on the stand, his apparent ability and inclination, or otherwise, to give you accurate information, regarding the presence or absence of any interest that might result in bias,-—I say, by this process, by this character of investigation, you will determine whether it is established, by fairly preponderating proof, that the signature to the note in suit was written by Solomon C. Groff.- If it is not, your verdict will be for the defendants, and you will so announce. If it is established that Solomon C. Groff signed the note in suit, then your verdict will be in favor of the plaintiff for $4,800.] [15]
    Verdict and judgment for plaintiff for $4,800. Defendant appealed.

      Frrors assigned were (1-15) rulings on evidence, quoting the bill of exceptions ; (15) above instruction, quoting it.

      B. F. Davis, with him J. W Denlinger, for appellant.
    Where a witness has testified that he is familiar with a person’s handwriting, it is not permissible, on cross-examination, to test his knowledge by showing to him other papers irrelevant to the case and asking of him his opinion as to their genuineness : Andrews v. Hayden, 88 Ky. 455 (11 S. W. Repr. 428) ; Massey v. Farmers’ National Bank of Virginia, 104 Ill. 327; Bacon v. Williams, 79 Mass. 525; Howard v. Patrick, 43 Mich. 121 (5 N. W. Repr. 84) ; Pierce v. Northey, 14 Wis. 9; Tyler v. Todd, 36 Conn. 218 ; Van Wyck v. McIntosh, 14 N. Y. 439; Bank v. Mudgett, 44 N. Y. 514.
    Letter press copies of letters are not competent to establish a standard for comparison of handwriting: Cohen v. Teller, 93 Pa. 123.
    Comparison may be made by the jury between the disputed signature and those of the party well authenticated, and, also, by witnesses who have knowledge of. his handwriting, but this rule does not extend to experts: Ulmer v. Gentmer, 3 Penny. 455 ; Bank of Pennsylvania v. Haldeman, 1 Penrose & Watts, 161; Foster v. Collner, 107 Pa. 305; Aumick v. Mitchell, 82 Pa. 211; Haycock v. Greup, 57 Pa. 438.
    An expert testifying as to handwriting may make use of blackboard illustrations for the purpose of illustrating and explaining his testimony: Hagan v. Carr, 198 Pa. 606.
    It was the province of the jury to fix the amount of the interest, and not that of the court; the jury should find when it begins to run and when it quits running, and they can even go so far as to determine whether any interest should be allowed or not: Eckert v. Wilson, 12 S. & R. 393; Uhland v. Uhland, 17 S. & R. 265.

      W- TJ. Hensel, with him M. G. Schaeffer, for appellee.
    October 10, 1904:
   Opinion by

Mr. Justice Dean,

This suit in the court below was on a note under seal dated March 3,1898, payable one day after date in the sum of $3,700 with power of attorney to confess judgment. The note purports to be drawn by Solomon C. Groff in favor of his son’s wife Maria Groff. Solomon C. Groff being dead the daughter-in-law brings this suit against his executors to recover the amount with interest. They plead non assumpsit and non est factum. This issue really turned almost wholly on the latter plea. Much evidence was introduced by the defendants to sustain this plea and considerable by plaintiff to establish the genuineness of the instrument. This evidence was submitted to the jury and they found for plaintiff. We now have this appeal by the defendants who assign nineteen errors, fourteen to rulings on admission or rejection of evidence and five to instructions to the jury.

Before adverting to the evidence of the expert and nonexpert witnesses who testified with more or less positiveness to the genuineness or falsity of the signature, we notice first, the direct evidence as to what occurred, as alleged by plaintiff at the execution of the note. There are two attesting witnesses to it, Nathan Groff and G. F. Groff. One of them, G. F. Groff, is the husband of Maria Groff, the plaintiff, and Solomon C. Groff being dead is therefore incompetent; the other, Nathan Groff, is her son and not disqualified, and was called as a witness by her. He testified he was thirty years old and that he saw the note signed by Solomon C. Groff, his grandfather. The paper then being placed in his hands, he testified as follows: “ Q. Is that your name ? A. Yes, sir. Q. Did you write it? A. Yes, sir. Q. Whose name is underneath your name? A. G. F. Groff, my father. Q. Who is G. F. Groff? A. My father. Q. State whether or not you saw your father, George F. Groff, write his name there as a subscribing witness. A. Yes, sir. Q. Now, I ask you to look at the signature, ‘Solomon C. Groff,’ and state to the jury if you saw him write that name. A. Yes, sir. Q. Who wrote the name there, ‘ Solomon 0. Groff ’ ? A. Solomon C. Groff. Q. State whether or not you witnessed that paper at the time he wrote it. A. Yes, sir. Q. Where was that done? A. In the kitchen. Q. Of whose house ? A. Our house.”

This witness was subjected to a most thorough cross-examination which in no respect served to shake his statement in chief, therefore no matter how doubtful in itself might be his testimony, or how doubtful it might be made to appear subsequently in the trial by the opinions of other witnesses, as to the falsity of the signature, his truthfulness had to be determined by the jury. If they believed him, that was an end of defendants’ case; for if the court below did not help them by a new trial we cannot do so here by finding a wholly different fact. We have not even an inclination to do so. We make these remarks simply because we do not care to follow the learned counsel for appellant in his argument wherein he makes so vigorous an assault on the credibility of this witness.

The assignments of error as to rulings on offers of evidence are altogether independent of the testimony of the' attesting witness, for putting him out of the case entirely it would have been possible to sustain the note or establish it to be a forgery on the opinions of competent witnesses as to the genuineness or spuriousness of the signature. There was much evidence of this character on both sides. The first eight assignments raise the substance of appellant’s complaint as to the court’s rulings on the evidence. A number of witnesses testified on behalf of defendants, that they had known Solomon C. Groff, were familiar with his signature and would know it when they saw it; they then, in most cases, stated particularly their opportunities for becoming familiar with the signature and that they could form a judgment as to the genuineness of it from their knowledge of it; they did not pretend to testify as experts but as men who from frequent sight of his signature were able to tell it when they saw it. After thus qualifying themselves to give an opinion, counsel for defendants would place before the witness the note in dispute, followed by this question, “ What is your opinion and belief as to that signature ? ” followed generally in substance by the witness’s answer, “ I don’t believe that is his signature.” Then, on cross-examination, counsel for plaintiff declaring his purpose to test the extent of witness’s ability to form such a judgment as he professed to possess, exhibited to him a paper on which was written the name “ Solomon C. Groff ” which was placed inside an envelope, but so that through an aperture cut in the envelope the entire name could be plainly seen, and asked, “ In your judgment is that Solomon C. Groff’s genuine signature ? ” Sometimes the witness answered it was, and at times that it was a forgery. Quite often it was shown the witness was mistaken. Counsel for defendant strenuously objected to tbe method of cross-examination as unfair to the witness, because he was not called as an expert in handwriting but only as one familiar with the signature of Solomon C. Groff, and as such a witness he was entitled to have placed before him the whole paper containing the signature. This would have been a good objection if the witness’s knowledge had been limited to a sight of the signature on a check, bill, note, bond or other such writing; the jury would have known that his familiarity with the signature was not thorough, but limited, and would have given it weight accordingly. But notice the scope of the witness’s knowledge as stated by himself. That he might not misunderstand, the court itself in one instance put the question thus : “ Do you understand the question ? Have you such a knowledge of this decedent’s handwriting, that on being presented with a signature purporting to be his you could say on sight whether it is his or not? That is the question. Answer. Yes sir, I could form a judgment.” In every other instance either the counsel or the court put before the witness substantially the same question when the isolated name “Solomon C. Groff ” was placed before the eyes of the witness. From the mistaken answers it is clear that in most cases the witness had no such extensive or thorough knowledge of the signature as he professed. This was not untruthfulness, but to use a common term, it was only because many of the witnesses thought themselves “smarter” than they really were; but there was no deception or unfairness, as argued, in this method of cross-examination when the real purpose is considered.

If the witness had answered, “ I could distinguish the signature if I saw it appended to a note or check or other document, but standing by itself I could not be sure,” the court would doubtless have sustained the objection of defendants’ counsel, but as the record stands, we see no error in the court’s rulings. The authorities cited by counsel for defendants in view of the examination in this case are without application. The opinion of Judge Cooley in Insurance Co. v. Throop, 22 Mich. 146, itself shows the distinction between most of the cases and the one on hand. He says: “ A man may recognize even a casual acquaintance, his whole person, size, height, carriage, peculiarities of deportment may be observed, when if he were compelled to judge by a single feature, or even by a view of the whole face, he might easily be deceived in consequence of luis missing something on which his recognition in part depended. Any examination based on such a partial view might be useful, if entrapping the witness were the purpose to he accomplished.” But the object here was not to entrap the witness but to ascertain the existence of a most important fact; there was not a single letter on the note written by the maker except his signature, therefore that signature must determine the witness’s ability to testify with a reasonable degree of certainty, for he in effect had said he had such ability. Every single feature of it appeared in the specimen presented to the witness and from his own statement he was competent to judge from the written name alone whether it was genuine or false. By the assumption of such thorough knowledge, a knowledge which few men care to assume, even in respect to their own handwriting, the witnesses fairly subjected themselves to the searching cross-examination complained of. In the cases cited not one of the witnesses professed such ability as these witnesses. In the case referred to, the witness demanded to see the whole writing, an insurance application, before he would testify to his own signature. We see no merit in the first eight assignments of error and they are overruled.

The ninth assignment that it was error to permit the use of an admittedly genuine lead pencil signature as a standard of comparison is also overruled. First it is denied that the signature was made with a pencil; it is alleged that it is in what is called indelible ink; but assume that it was in pencil, there is no rule of evidence that we are aware of, which prohibits the use for comparison of a genuine lead pencil signature.

As to the tenth assignment, from Travis v. Brown, 43 Pa. 9, to Foster v. Collner, 107 Pa. 305, without a break, we have held that comparison of genuine signatures with the alleged spurious signature, are for the jury. Even as late as Rockey’s Estate, 155 Pa. 453, speaking by our Brother Thompson, present justice, we held that comparisons were for the jury alone, that even experts could not make them. Less than two years afterwards, the act of 1895, supra, was passed permitting besides the jury expert witnesses to make comparisons. This sufficiently sustains tbe rulings of the learned trial judge as to nonexpert witnesses.

The eleventh assignment relates to the testimony of W. A. Melcher called by defendants. Undoubtedly this witness was qualified to testify as an expert and the court excluded part only of the testimony sought to be elicited from him, but what part? He had studied, analyzed and compared the signature of Solomon C. Groff on the note with specimens of his admittedly genuine signature; it followed that he was qualified to express an opinion as to Groff’s signature. But then in the course of his examination the witness was asked to express an opinion as to whether the signature had not been written by another person whose name was on the note or who had filled in part of the writing in the note. He had made only a partial examination of this person’s writing, had not analyzed nor critically examined it. It was objected to by plaintiff’s counsel ■ because he had not sufficient knowledge as an expert to testify as to this third person’s writing, although he could testify to the disputed signature. The trial judge sustained the objection. This is objected to as error. A careful reading of this witness’s testimony does not leave the correctness of the exclusion free from all doubt; from what he said himself as to his competency, it is very clear that in his opinion he was not competent, but from the examination he states he made, it is not so clear that he was incompetent. Nevertheless as counsel calling the witness was bound to clearly satisfy the court of his competency, we think he failed to come up to the measure of proof required to qualify him as an expert and there'was no error in excluding the rejected testimony.

The twelfth and thirteenth assignments complain that an expert witness called by defendants was not permitted to write a copy of the disputed signature upon a blackboard and then by alleged copies of authentic writings institute a comparison between them and the copy of the alleged forged signature. None of the cases prior to the act of 1895 nor that act itself authorize such a method of comparison. The act only authorizes expert comparison and opinion of genuine signatures and disputed signatures when they are placed in juxtaposition; there was no attempt to so place them by the expert; she sought only to place simulations of genuine signatures with a simulation of tbe disputed, signature in juxtaposition on the blackboard. She might illustrate her thought or meaning by any kind of a diagram or writing on the blackboard, but this would not be a comparison of the genuine with the forged signature as was attempted by this expert and claimed to meet the requirements of the act, for all the signatures were simulated. How far and what shape an examination of an expert may take and still be within the terms of the act we will not now undertake to say; we only say that this method was not placing the genuine and disputed signatures in juxtaposition. It is argued that this leaves the standard of comparison to be determined' by the personal views of the trial judge; this is in great measure true, and so it ought to be. He in most cases is more competent to judge .correctly in such a matter than we; he presides in the court room where the expert with his blackboard and chalk makes his illustrations and diagrams and can at once correctly decide whether he is making a comparison of genuine and alleged spurious signatures such as intended by the act or is going outside the case to picture an expert’s fancies.

The fourteenth assignment is wholly groundless. The fifteenth assignment complains that the court instructed the jury that if they found Solomon C. Groff made the note they should allow plaintiff interest. This was clearly correct; if they found the note genuine, they then found a debt due and pa}r-able as if of the day of its date; the law then fixed that lawful interest was payable; even if the jury had not added interest the court could have done so after they brought in their verdict. It is true, where damages for the exercise of the right of eminent domain are awarded, interest is generally in the discretion of the jury; and so in some cases of trespass, but on a debt past due and payable evidenced by contract, interest is demanded as of right.

The remaining three assignments have no merit warranting notice.

All the assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Potter,

text:
    Iseminger v. York Haven Water & Power Company, Appellant.

      Negligence—Sidewalk—Hole in sidewalk—Contributory negligence—Province of court and jury.

    In an action against a water company to recover damages for personal injuries, it appeared that the plaintiff, a woman, was injured by falling into a hole twenty-four inches in diameter and six feet deep that had been dug in the pavement of a city street by direction of the defendant. The hole was located almost directly in front of steps that led to the office of a cold storage house, and twenty inches of its diameter were in the sidewalk. In digging the dirt had been thrown into the street and there was nothing on the surface of the pavement to indicate that the hole was there. It was dug in the morning and left unguarded; the accident occurred in the middle of the afternoon. At this part of the street the distance between the curb and the building line was ten feet, but of this space only four feet nearest the curb line were paved. On the remaining space was a grass plot extending from the west end of the storage house to the office steps, crossed near the middle by a walk leading from the pavement to the engine room. The plaintiff and another woman went together to the storage house on business. They came on the street by way of an alley at the west end of the building, but turned to the east before they reached the pavement and walked on the grass plot to the engine room door. They saw the engineer sitting on the office steps, and walked on to the end of the plot to the paved way leading from the steps to the pavement. Here they stood a short time facing the building and talking to the engineer. Then they turned to the right to go further east on the pavement. In turning the plaintiff took one step backward and sideways, and fell into the hole. Both women wore sunbonnets, which obstructed a side view. Neither of them had seen the hole, nor anything that would indicate that the pavement was unsafe. Held, that it was for the jury to say whether the plaintiff was guilty of contributory negligence in taking the step backward without first looking behind her.

      Evidence—Carlisle Table—Charge.

    A trial judge sufficiently instructs the jury as to the weight to be given to the Carlisle Tables when he says that the result set forth in the table is not to be taken as a fact in the case, but only as an aid in arriving at what might be the continuation of life, and that the duration of life depends largely upon the condition of health, habits and conduct of the person.
    Argued May 18, 1904.
    Appeal, No. 26, Jan. T., 1904, by defendant, from judgment of C. P. York Co., Aug. T., 1902, No. 117, on verdict for plaintiff in case of Almira F. Iseminger and Charles E. Iseminger v. York Haven Water & Power Company.
    Before Mitchell, C. J., Dean, Fell, Potter, and Thompson, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Bittenger, P. J.
    For the facts see Iseminger v. York Haven Water & Power Company, 206 Pa. 591.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiffs for $5,835. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant, and in admitting in evidence the Carlisle Tables.

      Henry C. Niles, of Niles Neff, and Nevin M. Wanner, for appellant.

      Charles A. H&wkins, of Black Hawkins, with him W. B. G-emmill, for appellees.
    October 10, 1904:
   Opinion by

Mr. Justice Potter,

When this case was here before, as reported in 206 Pa. 591, we were of the opinion that under the particular state of facts connected with the accident, the question of the contributory negligence of the plaintiff was not to be determined by the court as matter of law, but that it should be left to the jury.

Under the first five assignments of error here presented, the defendant company now urges that the trial judge should have held, as matter of law, that the failure of the plaintiff to see and avoid the hole in the sidewalk into which she stepped made her guilty of contributory negligence.

We feel now, as we did when the case was under consideration before, that the question is a close one. But a careful examination of the evidence has not shown any material change in the facts upon which our former conclusion was based. As our Brother Fell then said, “We are not disposed to relax the rule, repeatedly stated, that persons walking on city streets are bound to use their eyes, and watch where they are going, and that failure to do this will defeat a recovery for injuries that could have been avoided by the exercise of this reasonable care.” But we are not yet convinced that the trial judge should have taken the responsibility of saying that the plaintiff was negligent in failing to see and avoid the hole in the sidewalk, into which she fell. There is much in the evidence upon which to base strong argument to the jury that she. was negligent, but not enough, we think, to justify the court in withdrawing this question from the jury. There was a pile of earth and loose bricks and a pole in the street, and these objects might well have warned any one walking towards them in the street; but the only danger to which one walking upon the sidewalk was exposed was the hole, extending twenty inches within the curb. Plaintiff was not even walking directly along the sidewalk, but had come along the grass plot to the vicinity of the excavation, before stepping upon the pavement, and had there stopped with her companion to talk to a third person.

There was evidence to show that plaintiff was looking towards the person with whom she was talking, and had her attention distracted by the conversation, and that in leaving the spot she stepped backward into the hole, which she said she had not seen. As was said in the former opinion, “ the exceptional facts may make the case a close one, and place it near the border line, but as there was at least a doubt whether the plaintiff exercised ordinary care under the circumstances, the question was for the jury.” These assignments are therefore overruled.

Complaint is also made in the sixth assignment of error that the Carlisle Tables of mortality were admitted against the objection of the defendant, to prove the expectancy of life upon the part of the wife. But the jury were not left to infer that the plaintiff’s expectancy of life was definitely established by the tables. On the contrary, the trial judge in his charge told the jury that the result set forth in the table was not to be taken as a fact in this case, but only as an aid in arriving at what might be the continuation of life of the plaintiff. Attention was called to the absolute uncertainty of life, and the fact that in any event the duration of her life would depend largely upon her condition of health and upon her habits and her conduct. It is true that the introduction of mortality tables as evidence is liable to abuse unless carefully guarded by the court, owing to the tendency to give to them too much weight, without taking into account the particular circumstances of the individual case. The care which should be exercised by the court in admitting such evidence was clearly pointed out in Kerrigan v. Penna. R. R. Co., 194 Pa. 98. In the present case, we think the instructions given by the court to the jury, as to the weight to be given to the tables, were adequate. The sixth assignment of error is therefore overruled, and the judgment is affirmed.


text:
    Bucher v. Northumberland County, Appellant.

      Negligence—Counties—Quasi corporations—Defective sidewalk in front of county buildings.

    A county in Pennsylvania cannot be held, liable for the negligence of its officers in failing to keep in good condition the sidewalks in the public street in front of the county buildings.
    Counties are very generally recognized as quasi corporations upon which duties wholly involuntary are imposed. They possess no power and can incur no obligations not authorized by statute.
    Argued May 23, 1904.
    Appeal, No. 217, Jan. T., 1903, by defendant, from judgment of C. P. Northumberland Co., Jan. T., 1903, No. 217, on verdict for plaintiff in case of George D. Bucher v. Northumberland County.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Auten, J.
    At the trial it appeared that on January 3, 1899, the plaintiff fell on an icy pavement of the courthouse in Sunbury. At the trial defendant presented, inter alia, the following points :
    18. A county is not a municipal corporation, it is merely a quasi corporation and can exercise only such powers and must perform only such duties as are given it by the state ; it is an involuntary civil division of the state, created by statute to aid in the administration of the government. It is created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent or concurrent action of the people who inhabit it, and it is merely the agent of the commonwealth. Answer: We will affirm that point; but we say to you, gentlemen of the jury, that we do not see its application to the case on trial. [17]
    19. County commissioners are public officers elected under the general laws, and perform their duties, which are public under the authority of the state, and they are accountable to the public alone for their negligence. Answer: In its application to the case we refuse the point as drawn. [18]
    20. The state not being chargeable with the negligence of its officers or agents, and the county being merely a subdivision and the agent of the commonwealth, it is not liable as such for the negligence of its officers. Answer: Refused. [19]
    21. A county is not liable at common law for the negligence of the county commissioners. Answer: Refused. [20]
    15£. Under all the evidence in this case there can he no recovery because the county is not liable. Answer: Refused. [21]
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned among others were (17-21) above instructions, quoting them.

      Charles C. Lark, county solicitor, with him Fred. B. Moser, for appellant.
    The defendant county being a quasi corporation and a political subdivision thereof and the agent of the state is not liable to the plaintiff in this case: Com. v. Marshall, 3 W. N. C. 182; Kittanning Academy v. Brown, 41 Pa. 269; Vankirk v. Clark, 16 S. & R. 286 ; Chester County v. Brower, 117 Pa. 647; Com. v. Brice, 22 Pa. 211.
    Counties being merely parts of the state government, they partake of the state’s immunity from liability. The state is not liable except by its own consent; and so the county is exempt from liability, unless the state has consented; counties are not liable to implied common-law liabilities as municipal corporations are : Russell v. Men of Devon, 2 Term Rep. 667; Hamilton County Commissioners v. Mighels, 7 Ohio St. 109; Kincaid v. Hardin, 53 Iowa, 430 (5 N. W. Repr. 589) ; Jasper County v. Allman, 142 Ind. 573 (42 N. E. Repr. 206); Ford v. School District, 121 Pa. 543; Sheppard v. Pulaski County, 13 Ky. L. Rep. 672 (18 S. W. Repr. 15) ; Lefrois v. Monroe County, 162 N. Y. 563 (57 N. E. Repr. 185); Wehn v. Gage County, 5 Neb. 494.

      Charles M. Clement and John F. Schaffer, with them M. U. Taggart, for appellee.
    A county is liable in damages for injuries due to a defective sidewalk along county property : Lamoreux v. Luzerne County, 116 Pa. 195 ; Chester County v. Brower, 117 Pa. 647; Erie City v. Schwingle, 22 Pa. 384; Wilkinsburg Borough v. Home for Aged Women, 131 Pa. 109; Phila. v. Penna. Hospital, 143 Pa. 367; Grier v. Sampson, 27 Pa. 183.
    October 10, 1904 :
   Opinion by

Mr. Justice Potter,

This action was brought to recover damages for personal injuries resulting from a fall upon the sidewalk in front of the courthouse of the defendant county. The plaintiff alleges that his fall was due-to the failure of the defendant to remove an accumulation of ice and snow from the pavement.

The main question for consideration upon this appeal is whether a county in this state can be held liable for the negligence of its officers in failing to keep in good condition the sidewalk in the public street in front of the county buildings.

It is strongly urged by the appellant that the defendant county, being a'quasi corporation and a political subdivision of the state, is not liable to the plaintiff in this case. In support of this contention it is suggested that the courthouse is built primarily for the accommodation of the courts, on ground, the legal title to which must be held by the county. That courts are institutions of the state, and in maintaining the courthouse, the county acts as the agent of the state, and the state not being liable, its agent cannot be.

The plaintiff in bringing this action seems to proceed upon the theory that the county, as an abutting property owner, occupies precisely the same position as any private individual owner, or any corporation holding property for private use. But the title to the ground occupied by public buildings is vested in the county only for public use. Section 9 of the Act of April 15, 1834, P. L. 537, declares that the titles of courthouses, jails, prisons and work houses together with the lots of land thereunto belonging, “ shall be and they are hereby vested in the respective counties for the use of the people thereof, and for no other use.” By section 10 of the same act the commissioners are required, having first obtained the approbation of two successive grand juries and of the court of quarter sessions, .... to erect such building or buildings as may be necessary for the accommodation of the courts.

Counties are very generally recognized as quasi corporations upon which duties wholly involuntarily are imposed. They possess no power and can incur no obligations not authorized by statute. The general rule is thus stated in Dillon on Mun. Corp. sec. 997: “ In the United States there is no common-law obligation resting upon quasi corporations, such as counties, townships, and New England towns, to repair highways, streets or bridges within their limits, and they are not obliged to do so, unless by force of statute. Even when the legislature enjoins upon corporations of this character the duty to make and repair roads, streets and bridges, and confers the power to levy taxes therefor, the general tenor of the decisions is to treat this as a public and not a corporate duty, and to regard such corporations in this respect as public or state agencies, and not liable to be sued civilly for damages caused by the neglect to perform this duty, unless the action be expressly given by statute.”

In Com. v. Brice, 22 Pa. 211, it was held that the principle that the public is not chargeable. with the negligence of its officers is applicable to county officers. It was said (page 214) : “ The fact that a county has certain rights recognized in law as its own, does not sever it as a body from the state i but only distinguishes it in the state, and as a part of it, and allows local officers to enforce, in the name of the county, certain rights and duties which otherwise would have to be enforced in the name of the state. The institution of local divisions is merely a means of government, and counties and their officers are but parts of the machinery that constitutes the public system. This form of administration is no more a division of the government than is the allotment of particular localities, or particular functions, to what are usually called state officers.”

In the case of Kittanning Academy v. Brown, 41 Pa. 269 (p. 272), this court said : “ If counties were municipal corporations, they would have the power of regulating their internal policy by what the old Romans called leges municipales. But they lack the legislative faculty, and so are not, strictly speaking, corporations. Still, they are quasi corporations. They can perform many of the functions of proper municipalities. They can sue and be sued, can purchase, hold and alien lands, can appoint agents to execute their will, and can evidence their acts by a common seal. But because they cannot legislate, everything done by the agents of a county must be first authorized by the legislative power of the state.”

The present chief justice, in Briegel v. Philadelphia, 135 Pa. 451, calls attention to the different measure of liability which applies to quasi corporations not having full municipal functions, and quotes from 2 Dillon on Mun. Corp. sec. 961: “ It is essential .... to bear in mind the distinction .... between municipal corporations proper and quasi corporations. The decisions hold the former class of corporations to a much more extended liability than the latter, even where the latter are invested with corporate capacity and with the power of taxation.”

In Pennsylvania the duty of maintaining highways is statutory, and we must look to the statute for its nature and extent: Rapho Twp. v. Moore, 68 Pa. 404.

The duty of caring for public roads and small bridges has been placed upon townships; while the erection of larger bridges and the maintenance of public buildings seems to have been imposed upon the counties. But no statute of this state has been brought to our attention which imposes upon the counties any liability for negligence in the care of the highway or of the sidewalk in front of the county buildings.

The Act of May 24, 1887, P. L. 203, authorizes the county commissioners, by and with the approval of the courts of common pleas of the county, to join with the authorities of a city, in grading, paving and improving so much of the streets as are in or alongside of the grounds upon which such public buildings stand. The act has no application to the present case.

The great weight of authority in other states is conclusive against imposing any such liability, as the plaintiff here seeks to fasten upon the county. For an elaborate collection of the authorities upon the subject, see the note to Hughes v. County of Monroe, as reported in 39 L. R. A. 33. The reasoning upon which these cases stand is based upon the doctrine that a county is a subordinate political division of the state, standing in the same attitude, and cannot therefore be sued, without statutory permission authorizing such action. An example of such reasoning is found in the opinion of the Supreme Court of Minnesota, in Dosdall v. Olmstead County, 30 Minn. 96, upon facts closely resembling those of the present case. The court there said: “ The sole question to be determined in this case is the liability of the county of Olmstead for an injury alleged to have been suffered by plaintiff from falling through a broken sidewalk upon the courthouse premises, belonging to the county, which had become unsafe and dangerous through the negligence of the county commissioners, whose duty it was to keep the same in repair.

“For the purposes of civil administration, the state has created the subordinate political division of counties and towns (townships). Their officers are public officers, selected or appointed under the general laws, and perform their duties, which are public, under the authority of the state. They are bodies politic, with limited powers defined by law, and are hence frequently called quasi corporations: Dillon on Mun. Corp. (2d ed.) sec. 10 a. They are created wholly for a public purpose. The liability in this case is predicated upon the fact that the defendants, the board of county commissioners, are the agents of the county, and that the plaintiff has suffered personal injury from their official neglect. They are the agents of the county in this sense, that the powers of the county can only be exercised through them, because the public can only act through officers. The functions of these officers are public. They are only such as the law enjoins. It is their duty to keep the courthouse in repair, because the law of the state commands it. It is a duty which they owe to the public, and they are accountable to the public alone for their negligence. It is not necessary here to refer to the distinction existing between mere neglect of official duty, and affirmative acts of individual officers resulting in special injuries, or between officers whose duties are wholly public, and those who owe a special duty to those whom they serve for a compensation, as in the case of sheriffs, county clerks, etc.

“ Where, however, a corporation receives a charter from the state, the enlarged powers granted, and the nature of the duties expressly or impliedly enjoined, have led to the distinction existing between municipal corporations proper, and quasi corporations with limited statutory powers, as respects the question of liability to individuals for the negligence of their officers or agents. The almost unbroken current of the authorities is that, as to the latter class of corporations, no such liabilities attach unless expressly provided by statute. This doctrine is too well and too long established to be questioned, and should be regarded as the recognized policy of the state, which the legislature alone should change.”

A multitude of other authorities to the same effect are to be found. In the present appeal it is argued that as the duty of maintaining highways has been imposed upon townships in Pennsylvania, and consequent legal liability for neglecting to repair has been implied, no good reason exists for making a distinction which exempts counties from the same responsibility. But the answer is that the legislature has seen fit to make this distinction. The statutory duty is imposed upon townships to open, construct and keep in repair all public roads within their limits: Union Township v. Gibboney, 94 Pa. 534.

Under the Act of June 26, 1895, P. L. 336, counties are empowered to improve or construct certain roads, which shall thereafter be maintained as county roads, and kept in repair at the expense of the county. But this does not apply to a street or highway within the limits of a borough or city. With this exception, the care of highways outside the boroughs and cities is left to the townships.

Under section 11 of the Act of April 15, 1834, P. L. 537, it is made the duty of the commissioners of the county to keep the public buildings in repair. But this does not include the repair of the sidewalk, for the sidewalk is no part of the buildings, and it is a part of the street. The street includes the whole of the land laid out for public use as a highway: McDevitt v. People’s Nat. Gas Co., 160 Pa. 367. We cannot see in the provisions of the act of 1834, any intention upon the part of the legislature to make the county liable to a private action for a failure to repair the sidewalk. No other statute imposing any such liability has been brought to our attention, and clearly in the absence of a statute imposing such responsibility, the county cannot be held.

The twenty-fifth assignment of error, which is the refusal of binding instructions in favor of the defendant, is sustained. It is unnecessary to discuss «any of the other assignments.

The judgment is reversed.

       Also reported 14 N. W. Repr. 458.—Reporter.


author: Per. Curiam,

text:
    Swank v. Fretts, Appellant.

      Contracts—Option—Agreement to sell coal—Time.

    An agreement to sell land with no obligation on the other party to buy, and vendor to make a deed on specified notice from the other party, but no obligation to give such notice, is an option and time is of its essence.
    On a bill in equity for the cancellation of an agreement, it appeared that the plaintiff, an owner of coal, agreed in writing to sell the coal at a certain rate per acre. The agreement contained the following provisions: “The deed to be made for the above-described tract of coal and mining rights by the party of the first part, their heirs or assigns, on fifty days’ notice in writing by the party of the second part, his heirs or assigns. ... A failure of the second party to make first payment within fifty days from the above date shall render this agreement null and void.” There was no agreement on the part of the defendant to buy. No payment was ever made and no notice of acceptance given, up to the filing of the bill, two years and a half after the date of the agreement. Held, that the plaintiff was entitled to a decree.
    Argued Oct. 10, 1904.
    Appeals, Nos. 142 and 143, Oct. T., 1904, by A. E. Fretts et al., from decree of O. P. Westmoreland Co., No. 468 in equity in case of William M. Swank v. A. E. Fretts and C. B. Coon.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Bill in equity for the cancellation of an agreement in writing. Before Doty, P. J.
    By the agreement “the party of the first part (plaintiff) hereby agrees to sell to the party of the second part, exclusively, all the different veins of coal on, in and under that certain tract of land situate ....

      “The said coal to be paid for as follows, at the rate of fifty ($50.00) dollars per acre. One dollar on the signing of this agreement and the balance in payments as are hereafter designated. It is hereby agreed that second party has the right to mine and carry away all of said coal and with all the mining rights and privileges necessary or convenient to such mining and removal of the same .... together with the right of mining and removing under said prescribed premises other coal or matter belonging to or that may hereafter belong to said second party, his heirs or assigns, and' to convey the same to said second party, his heirs or assigns, by deed of general warranty in fee simple and clear of all incumbrances. The deed to be made for the above-described tract of coal and mining rights by the party of the first part, their heirs or assigns, on fifty (50) days’ notice in writing by the party of the second part, his heirs or assigns. A good deed with general warranty to be made whenever the unpaid purchase moneyr is secured by bond with mortgage on the premises. One-third of the purchase money in two equal annual payments bearing five per cent, interest. First party reserves the right to drill for oil and gas. A failure of second party to make first payment within fifty days from above date shall render this agreement null and void. If second party accepts the coal in and under the above-described land he also agrees to take the McKee farm as per article of agreement of January 11, 1901.”
    The court found as a fact that Fretts- did not accept within the stipulated time, nor did he make any payment on account of the purchase money.
    The court entered a decree in favor of the plaintiff.

      Error assigned was the decree of the court.

      William S. Rial, with him Edward B. M’ Oormieh, for appellant.
    The right to declare a forfeiture must be distinctly reserved: Thompson v. Christie, 138 Pa. 230.
    It is incumbent on the vendor to demand performance on the day fixed in the agreement. The forfeiture clause is inserted for his benefit and on a default he ought to have asserted his rights under it: Brown v. Vandergrift, 80 Pa. 142; Galey v. Kellerman, 123 Pa. 491; Springer v. Natural Gas Co., 145 Pa. 430; Hatton v. Johnson, 83 Pa. 219; Davis v. Stuard, 99 Pa. 295; Eberz v. Heisler, 12 Pa. Superior Ct. 388 ; Pomeroy on Contracts, sec. 394; Vankirk v. Patterson, 201 Pa. 90.

      O. E. Whitten, with him M. If. Me Geary, Babe M. Marsh, and J. R. Smith, for appellee,
    cited: Neill v. Hitchman, 201 Pa. 207; McMillan v. Philadelphia Co., 159 Pa. 142.
    November 4, 1904:
   Per. Curiam,

The language of the agreement is that the party of the first part (plaintiff) “ agrees to sell,” but there is no agreement of the other party to buy, and any obligation to do so is negatived by the last sentence, “ If the second party accepts the coal . ... he also agrees to take the McKee farm,” etc. The vendor was to make a deed “ on fifty days’ notice in writing by the party of the second part,” but there was no obligation to give such notice. The agreement ivas clearly an option and time was of its essence: McMillan v. Phila. Co., 159 Pa. 142; Neill v. Hitchman, 201 Pa. 207.

The duration of the option is somewhat uncertain, but as it was provided that a failure to make the first payment within fifty days from the date should render the agreement void, that was the apparent limit of the time for acceptance. It is admitted that no payment was ever made and no notice of acceptance given up to the filing of this bill, nearly two years and a half after the date of the agreement.

Decree affirmed at costs of the appellant.


author: Pee Cueiam,

text:
    White’s Assigned Estate.

      Assignment—Sale—Judgment—Lien—Distribution.

    An owner of an equitable interest in eoai entered into an agreement to sell the coal to a purchaser. Thereafter judgments were entered against him. Subsequently he made a special assignment to certain creditors of the money coming to him from the sale, and after this made a general assignment for the benefit of all his creditors. The general assignee filed a bill in equity against the purchaser for an accounting. As a result of this litigation the purchaser was compelled to convey the property to the general assignee. The assignee then sold and conveyed the coal without any order of court, as provided by the act of February 17, 1876, P. L. 4. Held, that the judgments were not entitled to participate in the fund.
    Argued Oct. 10, 1904.
    Appeal, No. 144, Oct. T., 1904, by John L. Ridinger, Assignee of Peter S. Pool & Son, from order of C. P. Westmoreland Co., Aug. T., 1896, No. 284, dismissing exceptions to auditor’s report in the matter of the Voluntary Assignment of James White.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to report of J. E. Keenan, Esq., auditor.
    The material facts were found by the auditor as follows:
    On April 5, 1892, Rebecca McGrew and William M. McGrew, as parties of the first part, agreed to sell to James White & Company a certain body of coal known as Pittsburg or six-foot vein of coal underlying lands in Sewickley township, Westmoreland county.
    On April 20, 1892, James White entered into an agreement with the Westmoreland Coal Company wherebj'- said first party, among other things, agreed to sell and convey all the coal underlying the tract of land containing 144 acres above mentioned, at the price of $200 per acre.
    Attached to said agreement is the following : “ James White, above named, having delivered deeds for his interest in above described coal to the undersigned, being the party designated by the purchaser to receive the same and take title, it is now understood that the full sum of $200 per acre shall hereafter be paid to or accounted for to said James White, as stipulated in the above agreement by said Westmoreland Coal Company.
    “ Paul H. Gaither. [Seal.] ”
    On April 28, 1892, on ex. records from Washington county, four judgments were entered in Westmoreland county in favor of Peter Pool & Sons against James White. These judgments were regularly revived by sci. facias issued against James White, with notice to E. E. Robbins, assignee.
    On January 15, 1894, James White assigned to Robert Galey, Martha Barnes, M. Gisal, Laird & Keenan, Robbins & Kunkle and Marchand & Gaither the balance of purchase money owing him by Paul II. Gaither, trustee, or the Westmoreland Coal Company on sale of coal properties by him to them by articles of agreement on April 20, 1892.
    On May 19, 1896, James White and his wife executed and delivered to Edward E. Robbins a deed of voluntary assignment of all his property for the benefit of his creditors.
    At July term, 1898, common pleas court, No. 2, of Allegheny county, sitting in equity, E. E. Robbins, assignee of James White, filed a bill against the Westmoreland Coal Company for an account, and it was so proceeded in that a decree was entered pursuant to which the Westmoreland Coal Company and Paul H. Gaither, trustee, by a special warranty deed, dated September 30, 1901, for the consideration of $994.68 conveyed the undivided one-half interest in said sixty-one acres 143.36 perches of coal, with mining rights, to E. _E. Robbins, assignee of James White. And the said E. E. Robbins, assignee, by his deed dated December 26, 1902, for the consideration of $6,190.85, conveyed the same coal with the mining rights to the Penn Gas Coal Company. The assignee sold this coal at private sale without an order from the courts of Westmoreland county.
    The auditor disallowed the claims of the judgment creditor.
    The court, in an opinion by Doty, P. J., dismissed the exceptions to the auditor’s report.

      Error assigned was the order of the court.

      Edward B. M’Cormich, for appellant.

      John B. Head, with him James S. Moorhead, for appellee.

      Edward E. Bobbins, with him J. E. Eunkle, Hays $ Noble and Thomson Thomson, for M. Gisel, Martha Barnes, Robert Gailey’s Estate and Robbins & Kunlde were not heard.
    November 4, 1904 :
   Pee Cueiam,

The auditor found in the first place that the agreement of April 5, 1892, was not a sale, but merely an option, and that under it White never acquired any estate in the coal itself, ñor any interest on which the Pool judgments could attach as liens.

But secondly, the auditor, conceding for the sake of argument that White did take an equitable interest in the coal itself, found that he conveyed the whole of such interest to the Westmoreland Coal Co., on April 20, 1892, prior to the entry of the Pool judgments in Westmoreland county. In January, 1894, White assigned to certain parties the balance of purchase money due from the coal companies and in May, 1896, made a general assignment for the benefit of creditors. If therefore any surplus of purchase money remained in the hands of the coal company, not passing under the special assignment of 1894 it became an asset in the hands of the general assignee in 1896. Difficulties in regard to title and incumbrances led to litigation between the assignee and the coal company, which resulted under a decree of the common pleas No. 2 of Allegheny county in a conveyance by the coal company to the assignee in 1901. We have not the record of this suit before us (though part of the litigation came to this court and is reported as Robbins v. Coal' Co., 198 Pa. 301), but the auditor reports upon, it as follows : “ The same court of equity which by its decree changed the personal property belonging to the estate of James White, for the time being, into real property, directed E. E. Robbins, assignee, to hold in trust and dispose of said real property, for the satisfaction of certain claims specified in said decree.

“ The effect of that decree in equity was to place the title of said coal in the said Robbins as a trustee, to be held by him for the purpose of sale and distribution of proceeds thereof in money to and among the parties specified in said decree. It was not intended by that decree to convert the personal property into real estate for the purpose of changing the manner of distribution. The Court looked upon the fund as being personal property'—-of the same nature as when it was in the hands of the Westmoreland Coal Company—and treated it as such. It further recognized the fact that the assignee held said property subject to certain prior existing equities. Had the Court thought otherwise, it would not have attempted to suggest a distribution based on the assignment of January 15, 1894.” The auditor therefore reported that the fund now in controversy should be treated and .distributed as personalty. We are of opinion that this was the correct view.

The learned court passing oyer the interest of White, the judgment debtor, in the land at the time the judgments were entered, as “ a question that possibly need not be determined now ” reached the same conclusion as to the distribution upon the other facts in the case. After the conveyance to him under the decree of the common pleas above mentioned the assignee, without an order of court, made a sale of the coal from which the fund now in court was produced. On this the learned judge below said, “ The judgments were entered long prior to the sale and undoubtedly were liens on any real estate owned by James White at the time. The sale, however, was made by the assignee of James White without the order of any court. There was no application under the Act of Feb. 17, 1876, P. L. 4. The assignee made a conveyance with the same effect as if a sale had been made by the assignor himself. A sale by the judgment debtor would not disturb the liens. A sale by the assignee would have no greater effect. Admitting the judgments were liens, they were not discharged by the sale made by the assignee. And as they were not discharged, they are not entitled to share in the distribution.”

The decree entered is amply sustained on either of the ground's adopted by the auditor and the court.

Decree affirmed at costs of appellant.