author: Mr.’Justice Brown,

text:
    Pennsylvania Railroad Company’s Case.

      Railroads■ — Safety gates — Boroughs—Ordinance—A ct of April 3,1851, P. L.' 320 — Powers of borough.

    A borough organized under the general borough Act of April 3, 1851, P. L. 320, has no power to require a railroad company at the latter’s expense to erect, maintain and operate safety gates at street crossings in the borough.
    Municipal corporations possess and can exercise only such powers as are granted in express words or are necessarily or fairly implied in or incident to those expressly granted, or those which are indispensable to the declared objects and purposes of a municipality.
    In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others, — ■ not even with municipalities through whose limits railroads may run — for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains at grade crossings, which are always more or less dangerous, and the failure to perform this duty is negligence, for the consequences of which those are responsible upon whom it is imposed. What particular means, however, shall be employed to protect the public when using streets or highways at railroad crossings is left to the company operating the road, the law merely demanding and requiring reasonable care in view of all the circumstances. There is no common-law duty on the part of the company to station a flagman or erect gates at a crossing; but the failure of the company to do so is to be considered with other facts in every given case in determining whether the company was negligent. Per Bkown, J.
    Argued Oct. 26, 1905.
    Appeal, No. 77, Oct. T., 1905, by the Pennsylvania Railroad Company, from judgment of Superior Court, April T., 1905, No. 101, affirming order of Q. S. Allegheny Co., March T., 1904, No. 56, dismissing petition to declare void an ordinance of the borough of North Braddock.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from Superior Court.
    The facts appear by the opinion of the Supreme Court, and by the report of the case in 27 Pa. Superior Ct. 113.

      Error assigned was the judgment of the Superior Court.

      M. W. Acheson, Jr., of Patterson, Sterreit AcTieson, for appellant.
    Boroughs in Pennsylvania have no express power to require railroad companies to erect safety gates and the grant of general powers has been limited to the express powers: Millerstown Boro. v. Bell, 123 Pa. 151.
    While the question under discussion, as a question of a borough’s power, would seem never to have been before the Supreme Court, that court has indicated that the matter of safeguarding crossings has been confided by the law to the railroad company’s discretion: Seifred v. Penna. R. R. Co., 206 Pa. 399 ; Lehigh Valley R. R. Co. v. Brandtmaier, 113 Pa. 610; Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405.
    The following common pleas decisions are, we submit, well considered cases: Archbald Borough v. D. & H. Canal Co., 3 Lack. Jur. 189; Hazleton v. R. R. Co., 11 Pa. Dist. Rep. 644 ; Com. ex rel. Boro, of Mount Holly Springs v. R. R. Co., 26 Pa. C. C. Rep. 293.

      William Yost, for appellee.
    At common law corporations have power to make by-laws for the general good of the corporation : Commissioner v. Gas Co., 12 Pa. 318 ; Fisher v. Harrisburg, 2 Grant, 291; White v. McKeesport Boro., 101 Pa. 394; Sayre Borough v. Phillips, 148 Pa. 482.
    The supervision and safeguarding of railroad crossings clearly comes within the police power over streets granted in the act of 1851: Sayre Borough v. Phillips, 148 Pa. 482.
    The whole subject has been previously reviewed by the Superior Court, and the power of boroughs to safeguard railroad crossings recognized in Commonwealth v. Philadelphia, Harrisburg and Pittsburg Railroad Co., 23 Pa. Superior Ct. 205.
    January 2, 1906:
   Opinion by

Mr.’Justice Brown,

The question raised on this appeal is as to the power of the borough of North Braddock to pass an ordinance approved April 7, 1904, entitled “ Ordinance No. 133, requiring The Pennsylvania Railroad Company to erect and maintain and operate safety gates at the point where the tracks of said railroad company cross Fourth street in the borough of North Braddock and imposing a penalty for any failure to comply with.the provisions hereof.” By the first section of- the' ordinance the appellant is required within sixty days Irom its approval to erect, maintain and operate safety gates at the point designated in the title, for the warning and protection of those traveling upon Fourth street. By the second section a penalty is provided for failure to comply with the requirement of the first.

It is to be first observed, as is very properly stated by counsel for appellant, that the question is not, (a) Whether the borough may itself erect and maintain gates ; (b) nor whether a given crossing ought to be protected by gates; (c) nor whether in a given case, a railroad company might be found guilty of negligence in failing to have gates; (&) nor whether the law ought to compel railroad companies to maintain gates. It is as to the power of a borough to require a railroad company to do a particular thing, which, in the judgment of the borough, the company ought to do at a particular point for the safety of the public in connection with the operation of its road. In the present case the question is as to the power of this borough to require the Pennsylvania Railroad Company to adopt what it regards as proper means for the protection of the public at a designated point crossed by the tracks of the company. It is not pretended that the tracks are not lawfully on the street, nor that the railroad company has not the right to run its cars over them.

In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others — not even with municipalities through whose limits railroads may run — for division of it would be the shifting of it in every case of accountability for failure to properly operate the road or run the cars. But, while this is true, corresponding duties of the highest order are imposed exclusively upon those having the control and management of railroads. One of these is to adopt and use suitable and adequate means to give notice of approaching trains at grade crossings, which are always more or less dangerous, and the failure to perform this duty is negligence, for the consequences of which those are responsible upon whom the duty is imposed. What particular means, however, shall be employed to protect the public when using streets or highways at railroad crossings is left to the company-operating the road, the law merely demanding and requiring reasonable care in view of all the circumstances. There is no common-law duty on the part of the company to station a flagman or erect gates at a crossing; but the failure of the company to do so is to be considered with other facts in every given case in determining whether the company was negligent. Among our cases announcing this rule are: Philadelphia & Reading R. R. Co. v. Killips, 88 Pa. 405 ; Lehigh Valley R.R. Co. v. Brandtmaier, 113 Pa. 610 ; Seifred v. Penna. R. R. Co., 206 Pa. 399.

What is attempted by the appellee in the present case ? Having no voice in the operation of the appellant’s road, it undertakes to do what the common law itself does not do. It assumes to declare how the railroad shall perform a public duty at a particular point, and would substitute its judgment for that of the board of directors as to what kind of protection shall be afforded at the grade crossing, but with no corresponding responsibility resting on it for the inadequacy of the means which it declares must be adopted. If it has power to require the appellant to erect safety gates, it has the power to require the adoption, from time to time, of such other means as in its judgment ought to be adopted by the company for the protection of the public at street crossings. The power for which it contends would be practically unlimited.

That the appellee is attempting to substitute municipal control for that of the railroad company itself at a particular point by declaring just how the duty of the company must be there performed, is too plain for discussion. If the borough, in its judgment, ought itself to adopt means for the protection of the traveling public at this or any other point within the municipal limits, there is nothing to prevent it from doing so ; but, before it can interfere, as it would by this ordinance, with the railroad company in its performance of its duty to protect the public at the crossing, it must show authority from the legislature to do so, expressly or impliedly conferred. The power which it would exercise maybe a desirable one, but courts cannot recognize it unless it exists.

Municipal corporations possess and can- exercise such powers only as are granted in express words, or are necessarily or fairly implied in or incident to those expressly granted, or those which are indispensable to the declared objects and purposes of the municipality : 1 Dillon on Municipal Corp. (4th ed.), sec. 89 ; 20 Am. & Eng. Ency. of Law (2d ed.), page 1139. Doubt as to corporate power is resolved against its existence, and this is no less true of a municipality than of a private corporation, for the source of the power of each is the same. Answer may be made to this that a municipality, as the representative of the state, has imparted to it inherent police power. This is true, and it is contended that the appellee is but exercising such power; but the distinction is overlooked that it is not itself, at the expense of the public, undertaking to exercise control over the streets and to protect the public at the railroad crossing, but is attempting to require some one else to do so at its own expense. It has undoubted power to do the former if it will, but, to do the latter through the ordinance which it has passed, authority to enact the same must appear. The use of the street in crossing it is a public use of it by the railroad company having a legislative right to so use it on an equality with any natural person, except as such right may be limited in the grant of it, and the attempted interference with this right must fail, unless the borough can point to its power to so interfere, expressly or impliedly existing.

Among the express powers conferred upon boroughs' by the act of 1851, the one sought to be exercised here does not appear. By the first clause of the second section of that act borough authorities are empowered generally “ to make such laws, ordinances, by-laws and regulations, not inconsistent with the laws of this commonwealth, as they shall deem necessary for the good order and government of the borough.” In the succeeding twenty-five clauses of the same section are found the powers expressly conferred, but the power to pass this ordinance is not one of them. In Borough of Millerstown v. Bell et al., 123 Pa. 151, this court, through Paxson, J., said: “ The general powers referred to in the first section must be confined to the particular subjects referred to in the succeeding sections.” Without now committing ourselves to this, it is clear that the good order and government of a borough, referred to in the first clause, are not involved in the ordinance. The good order of a borough can be preserved and it can' be properly governed, no matter how many railroads cross its streets by legislative permission, and no matter how fast cars may, run over them. We assume this is the clause designated by the Superior Court as the “ general welfare clause ”— “ broad enough,” in the opinion of that court, “ to cover the municipal legislation complained of.” For the reason just given we cannot concur in this.

The uase of Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., 23 Pa. Superior Ct. 205, was relied upon by the Superior Court as authority to sustain the action ,óf the lower court. In that case the Superior Court held that .the three following cases were authority for the power of a borough to pass such an ordinance as is now under consideration : Penna. R. R. Co. v. Duquesne Borough, 46 Pa. 223 ; Township of Newlin v. Davis, 77 Pa. 317, and Pennsylvania Railroad Co. v. Irwin, 85 Pa. 336. An examination of. these cases does not justify reference to them as authority for the power claimed by the appellee. In' the first, the railroad company, which had become the owner of the canal, succeeded to the duty of maintaining a bridge over it. Having failed to perform that duty, it was held that the borough authorities, as the proper public officers to look after the public highways, had the right to repair the bridge and to recover the expense :of: doing so from the railroad company. In the second, the action was against a township for injuries resulting from a defective bridge. All that was decided was that it was the duty of the township to properly maintain it. In the third, the railroad company changed the location of a public road, necessitating the building of a bridge, and it was simply decided that, the company having failed to rebuild and repair the bridge, the township could recover the cost of doing so from the company. A fourth case cited by the Superior Court, in Commonwealth v. Philadelphia, Harrisburg & Pittsburg Railroad Co., is Pennsylvania Co. v. Watson, 81* Pa. 293. The reference was intended to be to another case reported in the same volume— Pennsylvania Co. v. James, 81* Pa. 194 — in which there appears , the language quoted in the opinion of the Superior Court as to the police powers of boroughs. But, turning ,to. the charge of the court below, as found on page 198, it appears that power had been conferred by the legislature to pass the ordinance which was under consideration. The legislature might, of course, have done so here, but it has not. By the Act of March 7, 1901, P. L. 20, cities of the second class are authorized to enact ordinances requiring the erection of safety gates and the placing of flagmen at the intersection of railroads with public streets, and by the Act of May 23, 1889, P. L. 277, the same authority is conferred upon cities of the third class.

As the borough of North Braddock had no power to pass the ordinance complained of it is declared to be invalid, and the order of the Superior Court, affirming the order of the court below sustaining it, is reversed, the costs below and on both appeals to be paid by the appellee.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Nicolette Lumber Company, Appellant, v. People's Coal Company.

      Common carriers — Demurrage—Lien—Detention of barges.

      (A carrier of lumber on barges, even if ho is a common carrier, has no lien on the lumber for demurrage for the delay in unloading the barges at their destination, and he has no right to retain possession of the lumber ■until such demurrage is paid. If he has sustained damage by reason of the delay he has his remedy by an ordinary action. There is no lien for demurrage unless it is stipulated for in the contract. 7;
    Argued Oct. 26, 1905.
    Appeal, No. 86, Oct. T., 1905, by plaintiff, from judgment of Superior Court, April T., 1904, No. 106, affirming judgment of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 832, on verdict for defendant in case of Nicolette Lumber Company v. People’s Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from judgment of Superior Court.
    The facts appear by the opinion of the Supreme Court and by the report of the case in 26 Pa. Superior Court 575.

      Error assigned was the judgment of the Superior Court.

      William M. Hall, Jr., for appellant.
    There is no such thing known to the law as a lien for demurrage or use of the harges under the facts in this case: Grove v. Barclay, 106 Pa. 155; Chicago* etc., Ry. Co. v. Jenkins, 103 Ill. 588; Fuller v. Bradley, 25 Pa. 120.

      Henry A. Davis, for appellee.
    Where the owner neglects to remove his goods in a reasonable time the carrier’s liability becomes that of a warehouseman, and a right of lien has always been one of a warehouseman’s rights: Shenk v. Philadelphia Steam Propeller Co., 60 Pa. 109; McCarty v. N. Y., etc., R. R. Co., 30 Pa. 247.
    January 2,1906':
   Opinion by

Mr. Justice Brown,

This is an action of replevin brought for the recovery of possession of lumber, which had been transported on barges of the defendant from the mill of the plaintiff in West Virginia to Pittsburg, under a freight contract of $2.00- per thousand feet. This charge was paid before the institution of the replevin and is not involved in the case. It seems there was a delay of some days after the lumber reached Pittsburg before the plaintiff or its consignees demanded the barges from the defendant for the purpose of taking them further up the Allegheny river to the point of delivery designated' in the contract. The delay is alleged to have been due to the low state of the water, rendering navigation impossible. Be this as it may, the instructions to the jury were, that if the plaintiff or its consignees neglected to receive the barges upon their arrival at Pittsburg, after reasonable notice from the defendant to do so, it was entitled to a verdict for demurrage, for the reason that it had a lien on the lumber for such claim. Under these instructions there was a finding for the defendant for 1525.40. On appeal from the judgment on this verdict the Superior Court affirmed it, holding that the defendant, as a common carrier, had a claim for demurrage which was a lien on the lumber, by virtue of which it had a right to retain, the property until the amount of the lien was paid.

The question on this appeal is not as to the right of the appellees to demand and recover compensation for the detention of its barges, if they were unreasonably detained by the appellant, but is as to its right of lien upon the lumber, entitling it to retain possession of the same until its alleged lien was paid. If it had such a lien, it was entitled to retain possession of the property until the lien was discharged; if it had not, it unlawfully detained the lumber from the plaintiff, even if its barges had been unreasonably detained.

In an action of replevin nothing can be tried but the right of possession of the property in controversy. In this case the lumber admittedly belonged to the plaintiff, which could not be denied the possession of it by the defendant, unless the latter had a superior right of possession. A mere claim for compensation for the prolonged use of its barges could give it no such right, unless the right to such compensation created a lien on the property on the barges — a lien on the lumber for the demurrage.

Even if it be conceded, as held by the Superior Court, that the appellee was a common carrier, by what rule of the common law, or by what statute, had it any such lien as it asserted and as the Superior Court recognized? The parties to the contract for carrying the lumber might have provided for it in their contract, and if so, the appellant would be bound by it; but there was no such agreement. That none exists in the absence of it is so well settled that we need do nothing more than call attention to some of the many authorities upon the subject.

When a shipper of goods commits them to a common carrier for shipment to a given point, he does so under a contract that fixed freight charges will be paid. The business of the common carrier is to carry freight, and to carry it for compensation to be paid either at the time of shipment or before the consignee is entitled to receive it. The amount to be paid is as well known to the shipper as to the carrier, and, as it is to be paid before the consignee receives the goods, it is a lien upon them until paid. But in the absence of any provision in the contract for demurrage, caused by the shipper or his consignee, it is not taken into account, for it is not reasonably to be anticipated in any case, either by the shipper or carrier. It is the exception in connection with the business of the common carrier, and, therefore, there is no rule of the common law applicable to it beyond the one that requires the delinquent shipper or consignee to pay for his detention of the cars, not anticipated or provided for in the contract of shipment.' ' This is the Hábil--' ity that attaches to every one to pay reasonable compensation for the use and occupation of the property of another' hot' used or occupied in pursuance of any contract; but out of such a condition no lien on the personal property on the premises so used and occupied can arise, because, if for no other reason, the amount' of the liability is not fixed. For what amount is a common carrier, in any ease, to have a lien for demurrage when the amount to be paid for it has not only not been fixed by a contract, but is in dispute and is to be settled by a jury ?

If any lien could exist in the present case, it would be a common-law lien, which is “ a right in one man to retain that '■ which is in his possession belonging to another, till demands' of him, the person in possession, are satisfied. . . , It is-founded upon the immemorial recognition of the common law of a right'to it in particular cases, or it may result from the established usage of a particular trade: ” 19 Ain. & Ency. of Law, (2d ed.), p. 7. “ The lien allowed to the carrier by the law extends only to his charges for the transportation ' of the goods, and does not include expenses for warehousing them; nor damages for the breach of collateral contracts or covenants by the shipper, even when incorporated in the bill of lading; nor extend to the payment of port charges ; nor to ' damages for detention beyond the time fixed by the contract for receiving, or loading or unloading the goods ; nor to compensation for delay in the nature of demurrage : ” Hutchinson on Carriers, sec.'478. “ There is no lien for demurrage unless it is stipulated for in the contract: ” 9 Am. & Eng. Ency. of •' Law, (2d ed.), p. 270. All liens are created by law or by contract of the parties ; and when the law gives none, neither party can create one without the consent or agreement of -the other. ' Hence, the consignee of goods shipped by railroad is.' not bound by rules and regulations of the company providing for a lien for demurrage, though published, without his or the ' consignor’s assent thereto when the contract for shipping the goods was made. Even a knowledge of such rules, without assent thereto, will not affect the shipper or consignee. . A - common carrier has no lien upon goods for damages arising from the neglect of the consignee to take them away within a - reasonable time after notice to him of their .arrival: Chicago & Northwestern Ry. Co. v. Jenkins, 103 Ill. 588. The inconvenience or expense occasioned by the detention of cars constitutes a claim in the nature of a demurrage, but the carrier must seek his redress in the ordinary manner for the breach of an implied contract to pay for the use and occupation of the cars. lie cannot enforce it by a detention of the goods: Crommelin v. New York & Harlem Railroad Co., 4 Keyes (N. Y.), 90. “ The right of a common carrier to a lien extends to charges connected with the expenses of transportation strictly: ” 2 Redfxeld on Railways (6th ed.), p. 193. Attention need not be called to more authorities upon this subject. The judgxnent of the Superior Court, affirming the judgment of the court below, must be reversed.

Judgxnent reversed and a venire facias de novo awarded.


text:
    McGrunnegle v. Pittsburg & Lake Erie Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Description of land — Amendment.
    A judgment on a verdict for plaintiff in railroad condemnation proceedings will not be reversed because the trial judge refused to permit the petition to be amended by striking therefrom descriptions of land below low-water mark in a river, where it appears that the amendment was not asked for until after twenty-three witnesses for plaintiff had been examined as to value without objection, and it also appears that the court in its charge clearly and distinctly instructed the jury that they could allow compensation to the plaintiff only for land which she owned, and which did not extend beyond low-water mark.
    An owner of land fronting on a navigable river has no right to make any filling beyond low-water mark, nor to put any structure or filling even between high- water line and low-water line that would be an obstruction to the use of that part of» the river for navigation.
    Remarks made by witnesses and even by the court as to the effect of fillings below high-water mark and beyond low-water mark, are not grounds for reversal, where the jury is fully, clearly and distinctly instructed that the effect of such fillings cannot be considered in determining values.
    Argued Oct. 26, 1905.
    Appeal, No. 90, Oct. T., 1905, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 47, on verdict for plaintiff in case of -Maria L. McGunnegle v. Pittsburg and Lake Erie Railroad Company!
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Kennedy, P. J.
    At the trial defendant made the following motion :
    Mr. Smith: I desire to present this morning an amendment in the bond case at No. 314, February Term, 1903, and in this proceeding which is as follows :
    And now, to wit: October 24, 1904, comes the Pittsb.urg & Lake Erie Railroad Company by its counsel and moves the court to amend the description of the land to be condemned by striking out the words together with all the land lying between the harbor line and the low-water .line of the Ohio river.”
    Mr. Ferguson: That is objected to as too late. It is specially objected, that the railroad company having elected to condemn and having filed its bond, it is now too late to abandon the condemnation, either in whole or in part.
    Motion refused.
    To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [1]
    D. K. McGunnegle, a witness for the plaintiff, was asked this question:
    “ Q. Do you know where the low-water line of the Ohio river was in front of your mother’s property, before the Davis island dam was constructed, with reference to the harbor line ? ”
    Mr. Smith: What do you propose to prove ?
    Mr. Ferguson: We propose to prove in connection with the petition of the railroad, filed in this case, defining what it condemned, that the low-water line of the Ohio river, in front of the property of the plaintiff, was between the harbor line, as shown on the petition, and Brunot island.
    Objected to as incompetent and irrelevant for the reason that, under the laws of this state, “ pool full ” being the stage of the water when the water is just abreast of Davis island dam is, for the purposes of this case, and for any other purpose, low-water line. Counsel for the defendant desire to state also, that in this proceeding it is not the intention, or it was not the anticipation that any rights whatever could be possibly acquired under this proceeding beyond the harbor line, the intention being merely to take whatever title Mrs. McGunnegle had under the grants from the commonwealth and the mesne conveyors.
    The Court: Objection overruled.
    To which ruling of the court counsel for defendant except. Exception allowed and bill sealed. [2]
    Mr. Ferguson : Q. How is that, Mr. McGunnegle ? A. The low-water line is outside of the harbor line through our property.”
    J. W. Mayes, a witness for the plaintiff, was asked this question :
    “ Q. If that laud had been filled up out to the harbor line, would you put the value at 1100,000, or what would you put it at ? ”
    Objected to.
    The Court: Objection overruled.
    To which ruling of the court counsel for defendant except. Exception allowed and bill sealed. [3]
    “ A. No, if that was filled up I would add considerable to the price of that land, at least one-third.”
    At the request of counsel for the defendant, the court stated the following for the record :
    Addressing counsel for defendant, the court asked whether he would guarantee that this company, the defendant, would not fill beyond “ pool full ” line. This remark was made during the argument of counsel, counsel for plaintiff arguing that the railroad company, as the successor of the plaintiff, had a right to build to the harbor line, and counsel for the railroad company arguing that they had not.
    Now, counsel for defendant move the court to withdraw a juror and continue the case.
    Motion refused. [4]

      Fdwin W. Smith, of Reed, Smith, Shaw <f Beal, for appellant.

      J. S Ferguson, with him F. G. Ferguson, for appellee, cited: Johnston v. Callery, 173 Pa. 129; Fischer v. Catawissa R. R. Co., 175 Pa. 554.
    January 2, 1906:
   Opinion by

Mr. Justice Brown,

On February 25, 1903, the Pittsburg and Lake Erie Railroad Company filed its bond to secure to Mrs. Maria L. Mc-Gunnegle compensation for land -which it had appropriated for railroad purposes. It is located in the borough of Espíen, Allegheny county, and is minutely described by metes and bounds in the petitions for the approval of the bond and appointment of viewers. The quantity is given as 6.757 acres, “ together with all the land lying between the harbor line and the low-water line of the Ohio river.” Harbor line is aline established by the secretary of war, in pursuance of an act of Congress, and beyond it “ no piers, wharves, bulkheads, or other works shall be extended, or deposits made, except under such regulations as may be prescribed from time to time by him.” This line is at from fifty to three hundred feet from low water, which in this case is “ pool full.” “ Pool full,” indicating’ low water, is “ the surface of the water when it lies just even with the crest of the Davis island dam when it is up.” This is the definition given by H. C. Gould, an assistant engineer in the service of the United States, and is conceded all around to be correct. The absolute title of Mrs. McGunnegle extended from the land already occupied by the railroad company only to high water, and in the space intervening between that line and low water, or pool full, she had but a qualified fee, her right there being subject to the public right of navigation: Lehigh Yalley Railroad Co. v. Troné, 28 Pa. 206; Freeland v. Pennsylvania Railroad Co., 197 Pa. 529. Beyond the low-water line the title remained in the commonwealth, and the appellee had, therefore, no right or ownership whatever between it and harbor line, the space which the appellant distinctly stated it would take in the condemnation proceedings.

On appeal from the award of the viewers, the question of the amount of compensation to which the appellee was entitled was submitted to a jury, and the four errors specified are alleged to have been committed on the trial before that body. The case was called on Monday, October 20,1904, and on that and the following day twenty-three of the twenty-five witnesses called by the plaintiff were examined. Each one called as to the amount of damages sustained was examined, without objection by the defendant, as to the value of the land, which, in its petitions for the approval of its bond and the appointment of viewers, it said it would take, amounting to 6.757 acres, “ together with all the land lying between the harbor line and the low-water line of the Ohio river.” Some of these witnesses fixed the damages by valuing the land by the acre, and there was testimony as to the quantity between harbor line and pool full, and between pool full and high-water mark. On the third day of the trial, and just before the plaintiff closed, the defendant moved to amend the description of the land to be condemned by striking out the words “ together with all the land lying between the harbor line and the low-water line of the Ohio river.” This was objected to as being too late, and a special objection was made that the railroad company, having elected to condemn and having filed its bond, could not abandon the condemnation, either in whole or in part. The amendment was refused and two more witnesses were then called by the plaintiff, who also testified, without objection, as to the value of the land taken, including the space between pool full and harbor line.

The first assignment relates to the refusal of the court to allow the amendment asked for by the appellant.. It is urged that it should have been allowed, because, as Mrs. McGunneglo admittedly did not own the land lying beyond low water towards the river, the railroad company was not taking it from her, and her right to compensation was limited to her ownership, extending only to pool full or low water. The reason for refusing the amendment is not given by the learned trial judge, and we need not conjecture what it may have been, for the refusal could have done no possible harm to the defendant, in view of the clear, distinct and correct instructions given to the jury, that they could allow compensation to the plaintiff only for the land which she owned, and which did not extend beyond low-water mark. If the amendment had been allowed, the defendant could not have asked for more from the court than was said by the learned trial judge in support of its theory as to what land it could take. We might allow the amendment here, and, if so, there would be nothing in the record, so far as the quantity of land taken is concerned, of which the appellant could make any complaint; and the jury were most definitely instructed that for such quantity only could they allow compensation. In the general charge the learned and careful trial judge said: The land is situated in the Borough of Espíen, fronting on the Ohio river between the old right of way of the defendant company and low-water mark of the Ohio river. ... We have had testimony here showing not only the location of this property, but the location of what is called the harbor line, which, for the purposes of this case, I instruct you, is outside of the property taken by the railroad company, that is, it is towards the channel of the river. The property line, for the purposes of this case, is low-water mark, as established by the line you have heard called ‘ pool full ’ in the course of the trial. That is to be taken as the low-water line for the purposes of this case, and the property taken and appropriated by the railroad company is the property lying between the old right of way of the railroad company and low-water line.” Nine points were submitted by the defendant and each of them was affirmed. Five of them were as follows: Third. “ That under the laws of this state, the plaintiff has an absolute title in fee only to the high-water mark, with a qualified title between high and low-water mark, subject to the right of navigation.” Fourth. “ That for the purposes of this case, the low-water mark is the line of the water at ‘ pool full,’ which is the line of the water when it is just at the crest of the Davis island dam.” Fifth. “ That the owner of the land has no right to put any structures or filling into the river beyond low-water line.” Sixth. “ That no owner of land has the right to put any structures or filling between high-water line and low-water line that would be an obstruction to the use of that part of the river for navigation.” Eighth. “ That the verdict of the jury cannot be based upon any use of the land which would contemplate a filling of the river to the so-called harbor line under the testimony in this case.” And in the ninth the defendant stated its whole case in asking for the instruction, “ that the verdict of the jury in this case cannot be more than the value of the plaintiff’s land, computed to low-water mark, at the time of the taking, less the value of any use that the plaintiff may make of it not inconsistent with its use for railroad purposes.” As already stated, the case went on without a single objection made by the defendant to the testimony of any witness as to what damages had been sustained by the plaintiff for taking the land which, in its proceeding to condemn, it alleged extended to harbor line, and all of which it said it would take; but in the end the limit of the plaintiff’s land to be taken by the defendant was definitely fixed by the court at “pool full,” or low water, and the case was submitted to the jury just as the defendant asked that it be submitted. As a basis for their verdict, there was ample testimony as to the value of the land which the defendant could and does take. The refusal to allow the amendment could not, therefore, have harmed the appellant. Even if it had been allowed, the case would have been submitted just as it was submitted, by affirming every point presented by the defendant. Of the correctness of the general charge there could be, and is, no complaint. The first assignment is dismissed.

By the second assignment error is alleged in allowing D. K. McGunnegle to testify as to where the low-water line was in front of his mother's property before the Davis island dam was constructed. This testimony probably ought to have been rejected, for the line of low water before the construction of the dam was not the question before the jury; but the admission was harmless, in view of the instructions contained, not only in the general charge, but in the specific answer to defendant’s fourth point, “ that for the purposes of this case, the low-water mark is the line of the water at pool full, which is the line of the water when it is just at the crest of the Davis island dam.” And so of the third assignment, complaining of the admission of the testimony of J. W. Mayes, that if the land had been filled up out to the harbor line he would add to the price of the land at least one-third, for in the answer to defendant’s eighth point the jury were told that the verdict could not be based upon any use of the land which contemplated a filling of the river to the harbor line. The same instruction was contained in the answer to the fifth point.

It does not appear just when the trial judge made the remark complained of in the fourth assignment. It was made during the argument of counsel, which may have been a running discussion between them during the trial, in which the court intervened and made the remark attributed to it; but, whenever made, the defendant was not harmed by it, even if the jury heard it, for they were told that neither the defendant nor any one else could fill beyond low water. The correct instructions went further in stating that an owner of land fronting on a navigable river has no right to put any structures or filling even between high-water line and low-water line that would be an obstruction to the use of that part of the river for navigation.'

The assignments are all dismissed and the judgment is affirmed.


author: Me. Justice Pottee,

text:
    Kountz’s Estate
    (No. 1)

      Will — Trusts and trustees — Devise—Perpetuities—Violation of rule against perpetuities — Vested and contingent interests.

    Testatrix after making certain bequests directed as follows: “The rest of my estate I give to my husband in trust for my children and grandchildren." Numerous active duties were given to the trustee, together with very extensive discretionary powers. The income was devised to the immediate children for life, and at their death to their spouses for life. In case any child died without leaving either spouse or issue, its share of the income was to go to the surviving coheirs. Testatrix then continued as follows: “After the decease of the last of my immediate children and the lapse of ten years from the date when my youngest grandchild shall become of age, the principal of the whole estate shall be equally divided among my grandchildren." Held, (1) that the estate in the grandchildren was a contingent remainder; (2) that the period fixed by the will for the gift to the grandchildren to take effect was too remote, and that the will violated the rule against perpetuities; (3) that as the gift to the grandchildren failed, the antecedent particular estate also failed, and the property covered by the trust passed to the heirs at law under the intestate laws.
    Where a gift is only implied from a direction to pay it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be. •
    A vested remainder is an estate to take effect after another estate, for years, for life, or in tail, which is so limited that if the particular estate were to expire or end in any way at the present time, some.certain person would become thereupon entitled to the immediate enjoyment.
    Argued Oct. 26, 1905.
    Appeals, Nos. 107, 108, 109 and 110, Oct. T., 1905, by Caroline B. Jones et al., from decree of O. C. Allegheny Co., Sept. T., 1904, No. 346, dismissing exceptions to adjudication in Estate of Peninah W. Kountz, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      George B. Gordon of JDalzell, Scott Gordon, with him R. H. Hawkins, for appellant.
    The estate in the grandchildren is not a vested one: McBride v. Smyth, 54 Pa. 245 ; Pleasonton’s App., 99 Pa. 362; Cascaden’s Estate, 153 Pa. 170; Johnston’s Est., 185 Pa. 17 9 ; Raleigh’s Estate, 206 Pa. 451; Gerber’s Estate, 196 Pa. 366 ; Palmer v. Holford, 4 Russ. 403; Bull v. Pritchard, 5 Hare, 567; Dodd v. Wake, 8 Simons, 615.
    The will creates a perpetuity: Knowle’s Est., 208 Pa. 219; Hillyard v. Miller, 10 Pa. 326; Penna. Co. v. Price, 7 Phila. 465; Schukneeht v. Schultz, 212 Ill. 43 (72 N. E. Repr. 37).
    No portion of the trust is valid: Eldred v. Meek, 183 Ill. 26 (55 N. E. Rep. 536) ; Gerber’s Estate, 196 Pa. 366 ; Penna. Co. v. Price, 7 Phila. 465; Hillyard v. Miller, 10 Pa. 326.

      William H. McOlung, with him Thomas I). Ohantler and William M. McGill, for appellee.
    If the gift to the grandchildren vests in them absolutely at the date of the death of the last surviving child of the testatrix, the bequest does not offend the rule against perpetuities : McClure’s App., 72 Pa. 414; Ross v. Drake, 37 Pa. 373; Minnig v. Batdroff, 5 Pa. 503; Carstensen’s Est., 196 Pa. 325; Safe Deposit & Trust Co. v. Wood, 201 Pa. 420.
    The grandchildren take a vested estate in remainder; the void provision as to the time of distribution does not vitiate the antecedent gift: Phila. v. Girard’s Heirs, 45 Pa. 9.
    January 2,1906:
   Opinion by

Me. Justice Pottee,

The question in this case is whether the trust created by the will of testatrix violates the rule against perpetuities.

Mrs. Peninah W. Kountz died in November, 1899, survived by her husband, W. J. Kountz, and five children. A sixth child, W. J. Kountz, Jr., died three months before his mother. By her will, dated January 8, 1898, Mrs. Kountz appointed her husband, William J. Kountz, executor and devised and bequeathed her residuary estate, as follows :

“ Fifth: The rest of my estate I give to my husband in trust for my children and grandchildren.
“ Sixth: He shall manage my real estate to the best advantage according to his judgment. For that purpose he may lease or sell all or part thereof, and invest the proceeds as he may consider best. Under no construction of this will shall purchasers be required to see to the application of the proceeds.
“ Seventh : He shall keep my stocks, bonds, money and the rest of my personal property invested in safe securities so as to yield a regular periodical income. The whole income from the real and personal property (less such reasonable expenses and charges, if any for management, as said executor may choose to withhold) shall be divided as follows:
“ 1. While all my said children continue to live each shall have one-sixth of the aggregate net income, unless in the discretion of my said executor any one should receive either more or less than the one-sixth.
“ 2. Should any of my said children die leaying children, but no husband or wife, as the case may be, that parent’s share of the income shall go to his or her children, in equal parts.
“ 8. Should any one leave a husband or a wife, but no child such husband or wife shall have his or her spouse’s share of the income for life, provided that he or she ‘has always had and maintained a good character and does not marry again ; ’ in case of marriage ‘ or proof of bad character ’ his or her right shall immediately cease.
“ 4. Should any one leave a husband or a wife and children, the deceased parent’s share of the income shall be-given to the surviving parent for the use of the survivor and children.
“ 5.- Should any one die without leaving a spouse or a child that one’s interest in the income and principal shall go to the surviving co-heirs, the children of any deceased heir to take such heir’s portion.
“ 6. After the decease of the last of my immediate children and the lapse of ten years from the date when my youngest grandchild shall have become pf age, the principal of the whole estate shall be equally divided among my grandchildren.”

Other clauses of the will conferred additional and very extensive discretionary powers upon the trustee.

The court below held that in the will an antecedent gift was made to the grandchildren as a class, under which such of them who were in existence at the death of the testatrix took immediately a vested interest, subject to opening, to let in after-born members of the same class. In his opinion the subsequent provision postponing the time of distribution of the principal of the estate until ten years from the date when the youngest grandchild shall have become of age, was not of the substance of the gift, and while the provision for this postponement was undoubtedly void, yet, in his opinion, it did not vitiate the gift, which, it was held, was already complete in the grandchildren.

The appellants contend that the conclusions thus reached by the court below are incorrect, and maintain that as under the will the distribution of the corpus among the grandchildren is not to take place until ten years after the youngest child has become of age, (a period beyond a life or lives in being, and twenty-one years and a fraction thereafter) no interest or estate will vest in the grandchildren until that period arrives. And, further, that the trust cannot stand because a part violates the rule against' perpetuities, and the whole must therefore fall, and the estate be distributed to the next of kin, under the intestate laws.

The pivotal fact, then, upon which this case turns, is whether under the terms of the will, the estate in the grandchildren is vested or is contingent. In the first place, it is apparent that the testatrix intended to vest the estate in trust in her husband, and in him alone, for the benefit of her children and grandchildren, and in certain contingencies for the benefit of the spouses of deceased children. Beyond doubt also the trust was active, or special, for the trustee had numerous duties to perform. He was to manage the real estate in accordance with his judgment. He could sell or lease all of it, or any part thereof, and invest the proceeds as he saw fit. He was to keep the personal estate invested in safe securities, and distribute the income. He had power to preserve the estate or to dispose of it in whole or in part to the children, either in his lifetime or by his will. The power given to the trustee is so broad that he was at liberty to free the corpus of the estate partially or wholly from the trust and bestow it upon the immediate children for their own use. In fact he did exercise this power in" so far as the stocks and bonds and personalty were concerned. The court below recognized and sustained this right in the trustee, as is shown by the second opinion filed in this case, wherein it is Said: “ The will of Peninah Kountz conferred upon her husband very large powers over her estate .... the whole estate was vested in him in trust for their children and grandchildren .... in addition and far more extensive were her directions in the eighth and ninth clauses. These reposed entire confidence in his judgment, and a power in effect unlimited to do as he saw fit with her estate, either in his lifetime or by his will.” And further on, “ The authority to give outright to their children by her will is not limited to her executor’s lifetime ; coupled with it was the distinct authority to do additional things either in his lifetime or after his death; he not only was authorized to modify her dispositions, but in connection therewith he was empowered to make other and different gifts. They are not equivalent expressions; but were intended not only to enable him to limit or enlarge the estate she had given, but to make entirely new dispositions thereof. He was to be the judge of what was the best for their descendants; in the exercise of that judgment he saw fit to give absolutely to their children, .... the present benefit of the whole of the personal estate.” But, coming to the vital point in the case, was the estate in the grandchildren a vested remainder ? The fifth paragraph of the will is as follows : “ The rest of my estate I give to my husband in trust for my children and grandchildren.” The court below construed this as being in itself a distinct and substantive gift to the grandchildren as a class and as making a complete devise to them. We cannot so regard it. It seems to us that the important element, and the significant feature of the clause, is its vesting of the estate in the trustee. Mention of the fact that it was for the benefit of the children and grandchildren, was only incident to the creation of the trust whose terms and conditions were yet to be defined. It was as if she had said, I give the rest of my estate to my husband in trust for the purposes and to be administered upon the conditions hereinafter set forth. Nothing is determined or defined in this paragraph of the will as to the extent or quality of the estate which the children or the grandchildren were to have. If we were to regard this as the substantive portion of the gift, we would lie without any hint of the scheme which the testatrix had clearly in mind, and which she outlined so definitely in the various clauses of the succeeding paragraph of her will.

It is not until we come to the sixth clause of paragraph seven, that we find the real intent of the testatrix expressed, with regard to the corpus of the estate, and there we find that it is to be divided among her grandchildren, after the decease of the last of her immediate children, and the lapse of ten years from the date when her youngest grandchild shall have become of age. Even here there is no direct and explicit gift of the principal; it is only implied from the direction to divide. Chief Justice Gibson said in Moore v. Smith, 9 Watts, 403: “ Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality; insomuch that if the one is future and contingent, so must the other be.” And in Smith on Executory Interests, sec. 314, it is said: “ Where there is no gift but in a direction to pay or transfer or divide among several persons at a future period, though the future period is annexed to the payment, possession or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide, constitutes the devise or bequest itself; and, therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment.”

We must note, then, that the corpus of the estate is devised to and vested in the husband as trustee. No grandchild takes anything until its father and mother are both dead. The income is devised to the immediate children for life, and at their death to their spouses for life, and it is not until the death of both the child and the spouse, that any of the income goes to a grandchild. And in such case the grandchild takes only such portion of the income as would have gone to the parents. In case any child died without leaving either spouse or issue, its share of the income was to go to the surviving coheirs. The intent of the testatrix is plain, that her children should have no control over the estate, and that her grandchildren should have iio control until all her children had died, and ten years had elapsed after her youngest grandchild arrived at lawful age. It will be noticed, too, that the gifts of income to the grandchildren of testatrix are not in the same proportions as the gifts of the principal. They take only such shares of the income as their respective parents received. The income is therefore to be divided among them per stirpes. The parents were to receive one-sixth each of the net income, though this proportion was subject to variation at the discretion of the trustee. But when the distribution of principal is reached, it is to be equally divided among all the grandchildren, that is, per capita.

It will be noticed that we do not have here the case of income and principal to be paid to the same person in the same right. The testator has not given the principal to be paid at a future time, with income or maintenance in the meantime. On the contrary, there are distinct gifts of the income to the children and of the principal to the grandchildren.

In Spencer v. Wilson, L. R. 16 Eq. 501, and the following cases there cited, Batsford v. Kebbell, 3 Ves. 363 ; Leake v. Robinson, 2 Mer. 363 ; Vawdry v. Geddes, 1 Russ. & My. 203; Watson v. Hayes, 5 My. & Cr. 125 ; Peek’s Trusts, L. R. 16 Eq. 221, it was held that where there are separate gifts of the income and the capital of the estate, the latter does not vest until the period of distribution. The application of this test to the present case would determine the interest of the grandchildren as contingent. But, in any event, the remainder in the grandchildren could only be deemed vested in case they had the right to immediate possession whenever and however the preceding estate determined. A concise rule is found in Tiffany on the Modern Law of Real Property, sec. 120 (5) as follows: “ It is frequently stated that the capacity of a remainder to take effect immediately in possession, if the particular estate were to terminate, is the criterion of a vested as distinguished from a contingent remainder!”

In the authorities cited by the author in support of this proposition we find the following : “ It is not the uncertainty of ever taking effect in possession that makes a remainder contingent ; for to that, every remainder for life or in tail is and must be liable; as the remainderman may die, or die without issue before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent: ” Fearne on Contingent Remainder, 216.

“As distinguished from a vested remainder, a contingent remainder is an estate in remainder which is not ready, from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine : ” Williams on Real Property, *267.

“ It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession — if the possession were to become vacant — distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.” Quoted from 4 Kent’s Comm. *203, note («) in Doe, Lessee of Poor, v. Considine, 73 U. S. 458, 476.

“ A vested remainder is one by which a present interest passes to the party, though to be enjoyed in future, and by which the estate is fixed to remain to a determinate person after the particular estate is spent. He has an immediate fixed right of future enjoyment. A remainder is contingent when it is limited to take effect on an event which may never happen till after the preceding particular estate ends, or is limited to a person not in being or not ascertained. ... It is the present capacity of taking effect in possession, if the possession were to become vacant, not the certainty that it ever will become vacant while the remainder continues, which distinguishes a vested from a contingent remainder. In other words, in the former the enjoyment is uncertain; in the latter the right to that enjoyment:” Williamson v. Field, 2 Sandf. Ch. (N. Y.) 533, 552.

“ A vested remainder is one that takes effect in interest and right immediately on the death of the testator, although it may not take effect, indeed, if it be a remainder, it cannot take effect, in possession and enjoyment, until the death of the devisee for life, or other determination of the particular estate. . . . A present capacity of taking effect in possession, if the possession were to become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. In general, the law favors that construction which holds a remainder vested, rather than that which considers it contingent, when the question is doubtful.” This is from the opinion of Chief Justice Shaw, in Brown v. Lawrence, 57 Mass. 390, 397.

“ A remainder is contingent when it is limited to take effect on an event which may never happen, or which may not happen until after the preceding particular estate ends, or is limited to a person not in esse or not ascertained. A present capacity of •taking effect in possession, if the possession become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. In other words, in the former the enjoyment is uncertain, in the latter the right to that enjoyment is uncertain.” 1 Boone on Real Property (2d ed.), sec. 173.

In addition to these authorities, we find the following from Mitchell on Real Estate & Conveyancing in Penna. 227 : “ A vested remainder is an estate to take effect after another estate, for years, for life, or in tail, which is so limited that if the particular estate were to expire or end in any way at the present time some certain person would become thereupon entitled to the immediate enjoyment.”

In the present case the particular estate is the life estate of the immediate children of testatrix. If this estate yere to terminate immediately, would the remainder in the grandchildren take effect immediately ? Clearly not, by reason of the limitation to that future date, ten years from the time when-the youngest grandchild shall have become of age. The remainder in the grandchildren is subject to this condition precedent, that it is only after the death of the last of the immediate children and the lapse of ten years from the date when the youngest grandchild shall have become of age, that the remainder to the grandchildren can take effect in possession. As a result, then, of this test, we must conclude that the estate in the grandchildren is a contingent remainder. The bequest is to the grandchildren as a class, living at a certain time, that is, after the death of the last of the children and ten years after the youngest grandchild shall have become of age. The existence of a particular grandchild at that future date is a condition precedent to his right to participate in the division of the corpus of the estate. To hold that the interest, of the grandchildren vested, would be to give to them an estate which would be transmissible or alienable during the continuance of the particular estate. We cannot find any such intent in the will. On the contrary, it seems clear to us that the chief purpose of the testatrix was to tie up the estate and place it beyond the power of either children or grandchildren, to interfere with the distribution she purposed to have made after the death of all her children, and ten years after the date when her youngest grandchild should become of age. This period was too remote, and the gift made to take effect at that time is void under the rule against perpetuities. That being the case, the antecedent particular estate would fail also and the heirs at law of the testatrix are entitled to immediate possession: Johnston’s Estate, 185 Pa. 179; Gerber’s Estate, 196 Pa. 366.

The assignments of error are all sustained and the decree of the orphans’ court is reversed.


author: Mr. Justice Potter,

text:
    Kountz’s Estate
    (No. 2).
    Argued Oct. 26, 1905.
    Appeal, No. 112, Oct. T., 1905, by The Fidelity Title & Trust Company, from decree of O. C. Allegheny Co., Sept. T., 1904, No. 346, dismissing exceptions to adjudication in Estate of Peninah W. Kountz, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal dismissed.
    January 2,1906:
   Opinion by

Mr. Justice Potter,

In the opinion which we have this day filed in the appeal of Caroline B. Jones et al., ante, p. 390 from this same decree, we have hold that the trust created by the will of Mrs. Peninah W. Kountz violates the rule against perpetuities, and is therefore void. As her entire estate is distributable at this time, under the provisions of the intestate law, it is unnecessary to pass upon the questions raised by this appeal. It is therefore dismissed at the cost of the appellant.


author: Mr. Justice Elkin,

text:
    Roth v. Reiter, Appellant.

      Contract — Tort—Set-off—Unliquidated damages.

    In an action on a contract unliquidated damages arising out of a tort independent of, and disconnected with, the transaction sued on, cannot be recouped by way of equitable defense.
    Argued Oct. 27, 1905.
    Appeal, No. 93, Oct. T., 1905, by defendant, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1903, No. 449, on' verdict for plaintiff in case of Jacob Roth v. Henry Reiter.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on promissory notes. Before McCltjng, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $5,945.09. Defendant appealed.

      JError assigned was in giving binding instructions for plaintiff.

      Sehoyer £ Hunter, for appellant,
    cited: Heck v. Shener, 4 S. & R. 249; Gaw v. Wolcott, 10 Pa. 43 ; Eckel v. Murphey, 15 Pa. 488 ; Pownall v. Blair, 78 Pa. 403; Glennon v. Lebanon Mfg. Co., 140 Pa. 594; Harper v. Kean, 11 S. & R. 280; Bixby v. Parsons, 49 Conn. 483; Gordon v. Bruner, 49 Mo. 570; Hemphill v. Eckfeldt, 5 Whart. 274.

      W. A. Challener, with him I. S. Stentz, for appellee,
    cited: Gogel v. Jacoby, 5 S. & R. 117 ; Nickle v. Baldwin, 4 W. & S. 290 ; Hunt v. Gilmore, 59 Pa. 450.

      January 2, 1906:
   Opinion by

Mr. Justice Elkin,

This is an action of assumpsit to recover upon two notes held by the plaintiff upon which the defendant is an accommodation indorser. The notes not having been paid at maturity by the maker, they were protested in due form and this suit was instituted to enforce collection from the indorser. The defense set up is that the notes were given in consideration of the purchase price of plaintiff’s interest in partnership property, and that before the maturity of said notes the plaintiff entered the partnership premises and forcibly took possession of the business and properly of said partnership and has ever since retained possession thereof. It is therefore contended that the alleged tortious act of the plaintiff is equivalent to and must be treated as a total failure of the consideration for which the notes were given.

It is conceded in this case, and it is the law, that in an action on a contract, unliquidated damages arising out of a tort independent of, and disconnected with, the transaction sued on, cannot be recouped by way of equitable defense. This rule of law needs no citation of authorities to support it. It is, however, earnestly contended that the defendant in the present case had a right to recoup the damages arising from the alleged tortious act against the amount of the notes, because said tortious act was directly connected with the transaction in consideration of which the notes were given. The appellee asserts that the tortious act complained of grew out of a separate transaction and the court below has so found in the following language: “ It appears possible that there was a tort committed against the maker of this note by the plaintiff in this case but it was not a part of this transaction and therefore cannot be used to extinguish this indebtedness.”

There was sufficient evidence to justify the conclusion of the learned court, and this is an end of the case. It might be added that the burden of proving failure of consideration rests on the defendant: Conmey v. Macfarlane, 97 Pa. 361. This burden has not been met by the defendant in this case.

Judgment affirmed.


author: Mk. Chief Justice Mitcheul,

text:
    Riggs v. Bair, Appellant.

      Sale — Delivery of possession — Coffee—Execution.
    On an issue to determine the ownership of certain coffee levied upon as the property of the defendant in the execution, the plaintiff in the issue claimed that he had bought the coffee from the defendant in the execution and left it with the seller to be roasted; that the seller had set .apart plaintiff’s purchase in different piles from the other stock, in the same room, and "on the front bag of each pile a tag was sewed, giving the plaintiff’s name and address, the kind of coffee, and the number of bags. The coffee was to be roasted and delivered to plaintiff as he should from time to time .order. The plaintiff paid part cash, and gave notes for the balance which he subsequently paid. Held, that the delivery was valid against the execution creditor.

      Practice, C. P. — Trial—Reservation of question of law.

    A reservation “whether there is any evidence to go to the jury entitling plaintiff to recover,” is not a good form. If the reserved question is susceptible of clear and simple statement, it is much the better practice to so state it and thus raise the issue of law directly.
    Argued Oct. 27,1905.
    Appeal, No. 126, Oct. T., 1905, by-defendant, from judgment of O. P. No. 3, Allegheny Co., Feb. T., 1904, No. 1, for plaintiff in case of E. H. Riggs v. H. C. Bair.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Feigned issue to determine the ownership of certain coffee.
    The facts are stated in the opinion of the Supreme Court.
    Evans, J., after stating the facts, delivered the following opinion:
    Binding instructions were given for the plaintiff, subject to the question of law reserved, to wit: whether there was any evidence to go to the jury to sustain the plaintiff’s claim to this coffee. The real question reserved was whether the setting apart of the coffee as narrated above constituted such a delivery as would make the sale a valid one against execution creditors.
    The rule of law that a sale of personal property without a delivery to the vendee is a fraud against creditors has long been the rule in this state and has not been modified by any recent decisions. But as to what will constitute a delivery in a particnlar case has been reformed to meet the changed requirements of business from what they were 100 years ago. This modification, and the reason therefor, has been so well set forth by Mr. Justice Dean in the case of the Keystone Watch Case Company v. Bank, 194 Pa. 535, that we quote at large from that opinion:
    “ In the eighty years that have elapsed since the decision of Clow v. Woods, 5 S. & R. 275, the rigor of the rule laid down in that case, and it is the leading one in this state, has been greatly relaxed. Nor, considering the progress in population and wealth and the change in methods of conducting business, could it have been strictly adhered to without great obstruction to business and hardship to individuals. Under that ruling the cases were rare where as to creditors the ownership of chattels could be in one and the possession in another; in such circumstances, with few exceptions, the transaction was constructively fraudulent as to creditors. But in the long line of cases following it, step by step, the rule has been so softened that now it may be said, with few exceptions, where the purpose of the contracting parties was as between themselves an honest one, and there was no concealment, as to creditors, of its true nature, the contract is not constructively fraudulent; in other words, the law will be slow to hold the parties scamps constructively if the contract, in view of its purposp, was actually an honest one.”
    We do not understand the court to have meant in the case just quoted that there was any change in the rule laid down in Clow v. Woods, but that what would be a sufficient delivery of possession now, owing to the changed conditions of business, might not have been a good delivery at the time the latter case was decided. And this is the meaning of the opinion of the court in White v. Gunn, 205 Pa. 229.
    “ Bess than a year ago we said ‘ There has been no deviation from the general rule that delivery of possession is indispensable to transfer of title by the act of the owner that shall be valid against creditors.’ What, however, would be a sufficient delivery of possession and retention of it in one case might not be in another ; and in saying that the rigor of the rule requiring the purchaser to take and keep possession of property purchased by him has beon relaxed, nothing more was meant thau that the law does not have nor set up an unbending test of the sufficiency of delivery and retention of possession to be applied in all cases, but that in passing upon the sufficiency of possession taken by"the purchaser in a particular case, there must be taken into consideration the character of the property, the use to be made of it,-the nature and object of the transaction, the position of the parties and the usages of trade or business.”
    Let us apply this rule to the case in hand: the purchaser was buying coffee from the company that roasted his coffee, and the Huff Company it must be borne in mind, were not only dealers in coffee; they stored coffee and roasted it for the trade. The transaction was an honest one. The price paid for the coffee was the current price for that article. The purchaser paid part cash and gave bankable notes for the balance, which he subsequently paid. He left his coffee with the Huff Company to be roasted, as he had been doing for seven or eight years. We do not understand the defendant to contradict the proposition that he could leave the coffee with Huff and still make the sale to him valid as against creditors. Certainly no one would insist that Riggs should have shipped his coffee to Wellsville and reshipped it back to Pittsburg in order to have it roasted. But it is contended that the separation from the coffee of the vendor was not complete. True, they might have placed Riggs’ coffee all in one pile; they might have marked every individual sack; but how that would have been more of an identification of his coffee than what was done in this case we are at a loss to see. Each pile was marked by a tag which told to the person who looked at it that that coffee was sold to E. H. Riggs, giving the number of bags so sold, which corresponded with the number of bags in the row. And if there was a row of coffee on either side of this Riggs row belonging to the Huff Company, it was separate and distinct from it, both by actual space and by the markings on the Riggs’ coffee. And so as to the weighing of the coffee. It is alleged that this was not an accurate weighing, and that there would have to be another weighing out before the actual shipment of the coffee to Riggs. Certainly with the weighing that was done Riggs could have demanded and received all of the coffee that had been set apart to him; and that is all that is in question in this ease. If all pf his poffee had not been set apart to him, and if, as between liim and Huff, he had a claim for other coffee, that is not material here, as he is only claiming what was set apart; but if Huff had weighed out to him in the manner in which he did more than 7,000 pounds of coffee, still Riggs could claim the amount set apart. And as the evidence goes to show that this was the ordinary, customary way of weighing out large quantities of coffee such as this, there can be no question but what this was a proper weighing. “ Unusual and unnecessary formalities in such transactions are generally a badge of fraud rather than of honesty: ” Garretson v. Hackenberg, 144 Pa. 107.
    We are of opinion that the admitted facts in this case show that a delivery of the coffee was made to Riggs, and the sale was valid against execution creditors of the Huff Company.
    Judgment should be entered for the plaintiff on the verdict.

      Error assigned was in entering judgment -on verdict for plaintiff.

      B. B. Petty, with him Shiras $ Dickey, for appellant.
    The coffee was left with the vendor, apparently, simply for the convenience of the vendee. This, we contend, is not a sufficient reason to account for want of actual delivery and transfer of possession: Trnnick v. Smith, 63 Pa. 18; Rafferty v. McKennan, 1 Atl. Repr. 546; Dougherty v. Haggerty, 96 Pa. 515; Lehr v. Brodbeek, 192 Pa. 585; Stephens v. Gifford, 137 Pa. 219; Brawn v. Keller, 43 Pa. 104; Barlow v. Fox, 203 Pa. 114.

      A. S. Moorhead, with him John N. Dunn, for appellee.
    The evidence established a delivery: Clow v. Woods, 5 S. & R. 275; Keystone Watch Case Co. v. Bank, 194 Pa. 585; White v. Gunn, 205 Pa. 229 ; Winslow v. Leonard, 24 Pa. 14; Crawford v. Davis, 99 Pa. 576; Shaw v. Levy, 17 S. & R. 99.
    January 2, 1906:
   Opinion by

Mk. Chief Justice Mitcheul,

Plaintiff bought of the Huff Company some thousand pounds of green coffee, at specified prices, and received an invoice showing the kinds and the quantity of each. Payment was made partly in cash and partly in a note subsequently paid. The good faith of the transaction was not impeached, but defendant in this issue, a levying creditor, disputed the sufficiency of the delivery.

The purchase was made in the office of the Huff Company and plaintiff did not see the coffee, but bought on description, as he had done in previous dealings. Plaintiff was a retail dealer who did not sell green coffee, and he testified that the arrangement was that Huff should put the coffee aside for him, mark it, and keep it stored until he gave orders for roasting. No charge was to be made for storage if Huff did the roasting, and a written memorandum to that effect was put on the invoice. All this was in accordance with the custom of the parties in dealings for several years previously.

The coffee was in the storage,- room on a different floor, and was in bags piled up according to convenience, the kinds being kept separate. ■ On the day of the sale, or the next day, the plaintiff’s purchase was set apart in different piles from the Huff stock, in the same room, and on the front bag of each pile a tag was sewed, giving the purchaser’s name and address, the kind of coffee, and the number of bags. Exactly how this was done is thus detailed by the witness : “We took the order for the first item of coffee, whatever it called for; I went to the piles and found how much was in the pile, and if there was enough in that pile to make it, I marked it, and if there wasn’t I would go to another until I did get enough; and if there was too much in the pile, I would take away until there was enough left to make out the amount.” “ Q. Now, take this order of 7,000 pounds of Mocha coffee; tell us how you put that up and what you did. A. That first order was in three separate piles; each pile was marked with a tab to the front bag, sewed on — how many bags there were in the order and what kind it was, so anybody could see it as they would go along through the aisle. . . . . Q. Now, Fas there any weighing done by you? How did you ascertain that the fifty-four bags marked there in the left hand margin amounted to 7,000 pounds ? A. There were five bags taken off the pile and weighed and the average weight of the bags estimated from those five, and then counted from that.”

The facts not being disputed, the judge below directed a verdict for plaintiff, reserving the question of law “ whether there is any evidence to go to the jury entitling the plaintiff to recover.”

We have already had occasion at this term (Duplex Press Co. v. Clipper Co., ante, p. 207), to say that while this is a permissible form of reservation in an appropriate case, it is not a good form for general use and is not appropriate here. A reservation whether on all the evidence the plaintiff is entitled to recover, would have been bad in form, and yet there is no real difference between that and the question reserved here: Casey v. Pennsylvania Asphalt Paving Co., 198 Pa. 848; Mayne v. Fidelity, etc., Co., 198 "Pa. 490. There is no difficulty in ascertaining and expressing the real question at issue and intended to be reserved here. It is very clearly stated by the learned judge himself in his opinion; the real question reserved was whether the setting apart of the coffee as shown by the uncontested evidence was a good delivery as against the vendor’s creditors. Where, as in this case, the reserved question is susceptible of clear and simple statement, it is much the better practice to so state it, and thus raise the issue of law directly.

As the learned judge below, however, dealt with the case on the basis of the real question, the error in form becomes immaterial.

On the main question of delivery the judgment is affirmed on the opinion of the court below.


text:
    Glassport Lumber Company, Appellant, v. Wolf.

      Mechanic’s lien — Subcontractor—Covenant against liens.

    A subcontractor has no power to file a mechanic’s lien where the building contract duly filed of record in the prothonotaiy’s office, contains a stipulation as follows: “The contractor covenants and agrees that he will not permit any person or persons to file any mechanics’ liens for materials furnished and labor performed to said building and premises, nor will he file any liens himself.”
    Argued Oct. 27, 1905.
    Appeal, No. 127, Oct. T., 1905, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1905, No. 345, discharging rule for judgment for want of a sufficient affidavit of defense in case of Glassport Lumber Company v. Nicholas Wolf, James J. Butler and Anna Wolf.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on an injunction bond. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.

      William M. Hall, for appellant,
    cited: Gordon v. Norton, 186 Pa. 168; Creswell Iron Works v. O’Brien, 156 Pa. 172; Lucas v. O’Brien, 159 Pa. 535; Bithell v. Diven, 18 Pa. Superior Ct. 178; Plumbing Co. v. Powell, 13 Pa. Superior Ct. 426.

      I. S. Stentz, with him JR. A. Hitehens, for appellees,
    cited: Fidelity Mut. Life Assn. v. Jackson, 163 Pa. 208; Benedict v. Hood, 134 Pa. 289; Morris v. Ross, 184 Pa. 241; Scheid v. Rapp, 121 Pa. 593; Schroeder v. Galland, 134 Pa. 277 ; Waters v. Wolf, 162 Pa. 153.
    January 2,1906:
   Opinion by

Mr. Justice Brown,

This is a suit on an injunction bond given by the appellees when Nicholas Wolf, one of them, filed a bill to restrain the appellant, a subcontractor, from filing a mechanic’s lien against his hotel building in the city of McKeesport. By a decree of this court the injunction awarded by the court below was dissolved and the bill dismissed, because Wolf had an adequate and complete remedy at law if the appellant had no right to file the lien: Wolf v. Glassport Lumber Co., 210 Pa. 370. The sole question on this appeal is as to that right.

On November 12, 1903, F. E. Shallenberger, as contractor, entered into a written agreement with Nicholas Wolf for the erection of the building against which the appellant claims to have a right to file a lien. In that agreement there is the following stipulation : “ The contractor covenants and agrees that he will not permit any person or persons to file any mechanics’ liens for materials furnished and labor performed to said building and premises, nor will he file any liens himself.” This is all that is said in the agreement on the subject of liens for work done or materials furnished. The Act of June 26, 1895, P. L. 369, provides that no agreement for the erection of a building shall operate to defeat the right of a subcontractor to file a mechanic’s lien unless the contractor specifically covenants that the subcontractor shall not file it. In the Act of June 4, 1901, P. L. 431, as amended by the Act of April 24, 1903, P. L. 297, this requirement of a special covenant against liens to defeat the right to file them does not appear, but, instead, the language of the act is, “ If the legal effect of the contract between the owner and the contractor is, that no claim shall be filed by any one, such provision shall be binding.” We are, therefore, simply to determine the legal effect of the words used in this contract.

The stipulation is not only that the contractor will not file any lien, which in itself would be sufficient to bar a subcontractor : Schroeder v. Galland et al., 134 Pa. 277 ; Ballman v. Heron et al., 160 Pa. 377; but there is a covenant that no other person or persons shall be permitted to file mechanics’ liens. To say that these words, standing alone and not to be read with any other part of the agreement to ascertain their real meaning, can have any other legal effect than to deprive the contractor and all others furnishing through him work or materials for the building of the right to file liens, would be to read them as no layman would understand them. They create an express covenant, “so plain that every mechanic and materialman, though of limited education, can understand it at a glance,” and the advice of no lawyer is needed as to their legal effect : Nice v. Walker, 153 Pa. 123. Their meaning would be no less unmistakable if the words suggested in that case had been used: “ No lien shall be filed against the building by either contractor or subcontractor; ” and the stipulation in this case is binding, because the act says it shall be when filed of record, as it was, in the prothonotary’s office within the time prescribed, as notice to all and for protection to the owner of the building.

Four cases have been cited, by counsel for the appellant as authority for its right to file a lien. They are Nice v. Walker, supra; Creswoll Iron Works v. O’Brien, 156 Pa. 172; Lucas v. O’Brien, 159 Pa. 535, and Gordon v. Norton, 186 Pa: 168. No one of them is authority for the right asserted by the appellant. In the first, the contract contained neither an express covenant against liens nor any implied one depriving a subcontractor of his right to a lien. This appears from the sixth and seventh clauses of the contract — the essential portions of it — which are quoted at length in the opinion of Paxson, C. J. As to Creswell Iron Works v. O’Brien, and Lucas v. O’Brien, we said, in Fidelity Mutual Life Association v. Jackson, 163 Pa. 208, that they were “ cases in which the provisions of the contract were consistent with a privilege on the part of a subcontractor to file a lien, and contained nothing exclusive of such a right.” That the contract in each of these cases contemplated the filing of a lien is manifest from the clause providing that no payment should be made to the contractor until any lien filed against the building had first been removed. In the last case — Gordon v. Norton — the second clause of the contract provided that the contractor should deliver a full and complete release of all liens, and by the eleventh he agreed that he would not himself file any liens against any one of the sixty-five houses nor suffer or permit any liens to be filed against any one of them that in any manner might affect, impair or take priority over the liens of certain mortgages held by the German-American Title and Trust Company. There was no covenant against filing liens, and, as said by the present Chief Justice, the concluding clause of the eleventh section “might well be taken to indicate that the-whole provision was meant as a mere stipulation that no liens filed should be held to take priority or affect the mortgages.”

The cases cited by the appellee need not be reviewed. As authorities requiring the court below to discharge the rule for judgment it is sufficient to call attention to Ballman v. Heron, 160 Pa. 377, and Fidelity Mutual Life Association v. Jackson, 163 Pa. 208.

The order discharging the rule is affirmed.


author: Per Ctjrtam,

text:
    United States to use v. Mercantile Trust Company of Pittsburg, Appellant.

      Statute of limitations — Bond—Release of surety.

    A surety on a bond under seal is not released from liability on the bond, because the statute of limitations has run against the debt for which the bond was given as security.

      Bond — C orporation — Seal.
    A bond signed in the name of a corporation by the vice-president, with the corporate seal affixed, attested by the secretary, is a sealed instrument, and it is immaterial that the seal is not opposite the vice-president’s signature.
    Argued Oct. 27, 1905.
    Appeal, No. 193, Oct. T., 1905, by-defendant, from order of C. P. No. 1, Allegheny Co., Oct. T., 1905, No. 535, making absolute rule for judgment for want of a sufficient affidavit of defense in case of United States of America for the use of Frank A. Bailey and Richard Jones, partners as Wilson Bailey & Company, now for the use of Frank Shannon v. The Mercantile Trust Company of Pittsburg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The bond in suit concluded as follows :
    “ In witness whereof, the parties hereto have executed this instrument this 20th day of April, 1897, the name and corporate seal of said surety being hereto affixed and these presents duly signed by its vice-president, pursuant to a resolution of its board of directors, passed on the 24th day of February, 1897, a copy of the record which is on file in the War Department.
    “ In presence of:
    “ J. F. Casey, as to E. J. Hillings. [Seal]
    “ John Costello, as to H. B. Httlings. [Seal]
    Attest: “ Edwin Lewis Porter, Secretary. [Seal]

      “ The Mercantile Trust Company,
    “ By Charles Holmes, Vice-President.”

      The defendant filed an affidavit of defense which was in part as follows:
    This defendant is advised and therefore avers that the bond given was given to secure the payment of the debts of Hulings Brothers, and that this defendant is only liable for such debts as could be collected from Hulings Brothers.
    Defendant avers, and cites plaintiff’s statement of claim to substantiate the same, that the claim in this case is for goods sold and delivered more than six years before the beginning of this action, to wit: between the dates of January 2, 1897, and . November 13, 1897, this suit having been brought July 29, 1905, a period of seven years, eight months and sixteen days from the time when the last item was furnished in said account.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Homer L. Castle, of Stone & Stone, for appellant,
    cited: Meade v. McDowell, 5 Binney, 195; Shimer v. Jones, 47 Pa. 268-; Campbell v. Sherman, 151 Pa. 70; Searight’s Estate, 163 Pa. 210 ; Martin v. Frantz, 127 Pa. 389.

      David S. McCann, with him J. L. Ritchey, for appellee,
    cited: Presbyterian Church v. Conlin, 11 Pa. Superior Ct. 413; Mundorff v. Singer, 5 Watts, 172; Kindt’s App., 102 Pa. 441; Lord v. Ocean Bank, 20 Pa. 384; United States v. Simpson, 3 P. &. W. 437; Winton v. Little, 94 Pa. 64; Searight’s Estate, 163 Pa. 210; Campbell v. Sherman, 151 Pa. 70.
    January 2, 1906:
   Per Ctjrtam,

As the principals, the contractors, signed the contract under seal, it is difficult to perceive the basis of the averment in the affidavit of defense, that this defendant is only liable for such debts as could be collected from ” the contractors. While it may be that the use plaintiff was too late to recover on Ms book account against the contractors, yet it is very clear that he could recover against them on this bond.

But independent of that the bond in suit is security for the debt to the use plaintiff, and like any other collateral is not released until the debt has been paid, though the right of action on the debt itself may be barred by the statute of limitations. After its limit has expired its own statute may of course be pleaded, but in the meantime the principal’s discharge is not available as a defense : Winton v. Little, 94 Pa. 64.

The bond is clearly intended as a sealed instrument by the appellant. It is signed in the name of the corporation by the vice-president, and the corporate seal is affixed, attested by the secretary. This is a very common, if not the usual, method of execution of sealed instruments by corporations. The fact that the seal is not opposite the president’s signature does not affect the plain intent of the instrument.

Judgment affirmed.


author: Per Curiam,

text:
    First National Bank, Appellant, v. The McKinley Coal Company.

      Equity — Attachment—Fraud—Corporation.
    A court of equity will not issue an attachment to compel officers of a corporation to restore to the corporation assets of the company where the court finds as a fact that there was no fraudulent misappropriation of the assets.
    On a creditor’s bill against a corporation and its officers and stockholders, the court entered a decree that the defendants “must refund and repay so much of the stock, bonds, and assets of the corporation received by them or either of them as may be necessary to pay the plaintiff’s judgment, with interest and costs.” Held, that no attachment could issue upon the order since it imposed no exact duty on the respondents.
    Argued Oct. 27, 1905.
    Appeal, No. 196, Oct. T., 1905, by plaintiff, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 6, refusing attachment in case of First National Bank of Pittsburg v. The McKinley Coal Company, W. H. McKinley and Ernest H. McKinley.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potteb, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity by a judgment creditor against a corporation, its officers and stockholders for an account.

      The case resulted in a decree quoted in the opinion of the Supreme Court.
    The plaintiff thereupon filed a petition for an attachment.
    Collier, P. J., dismissed the petition, saying:
    We have again gone over the case with care, and have failed to find anything in the decree itself to justify the issuing of an attachment on the ground of fraud, or in the findings and pleadings to show that the conduct and acts of the defendants were fraudulent, and with fraudulent intent.
    The only finding bearing at all on the question is one that there was-a misappropriation by the defendants; but this is far from finding that there was a fraudulent misappropriation. At any rate, until it is determined how much, if any, of the stock now held by the plaintiff is applicable to the payment of the plaintiff’s judgment, the court would not allow the attachment as prayed for to issue.

      Error assigned was decree refusing attachment.

      Levi Bird Buff, with him L. B. D. Reese, for appellants,
    cited: Batdorf’s Estate, 2 Dauph. Co. 287; United States v. Caruther’s, 15 Fed. Repr. 309.

      Eomer L. Castle, of Stone Stone, with him H. S. McKinley, for appellees,
    cited: Berger v. Smull, 39 Pa. 302 ; Ex rel. Scott v. The Jailer, 1 Grant, 237; McCarrell v. Mullins, 141 Pa. 513.
    January 2, 1906 :
   Per Curiam,

The finding of the court below was that certain stocks in the hands of the individual respondents were the property of the coal company, and assets for the payment of its debts, and that such assets had been “ improperly disposed of.” On the present application for an attachment, the court, after again going over the case with care, refused to find that the conduct of the respondents was fraudulent, or that there was a fraudulent misappropriation of the assets. This would seem to bring the case within the rule in McCarrell v. Mullins, 141 Pa. 513.

But there is a second reason why the attachment should not issue, alluded to by the learned judge, though not dwelt upon. The decree was that the defendants “ must refund and repay so much of the stocks, bonds and assets of the McKinley Coal Company, received by them, or either of them, as may be necessary to pay the plaintiff’s judgment, with interests and costs.”

This was an indefinite order which imposed no exact duty on the respondents. Until the required amount was liquidated, the decree was wanting in the precision necessary for its enforcement by attachment.

Decree affirmed.