author: Mr. Justice Mestrezat,

text:
    Houseman v. International Navigation Company, Appellant.

      Land, law — Islands—Warrant, survey and patent — Act of January 27, 1806, 4 Sm. L. 26S — Accretions.
    The act of January '27, 1806, conferred on the land office authority to issue a patent for an island in the Delaware river. It appeared in an action of ejectment to recover an interest in such island that a patent was issued in pursuance of the warrant and survey. The warrant recited that the application was made pursuant to the provisions of the act of 1806, for an island in the Delaware river “lying at the mouth of the Schuylkill, near the upper end of Fort Island;” that the board of property issued an order for its appraisal by three appraisers; that two of the appraisers had made a report that they had appraised the land at $2.00 per acre, a one-third part of which had been paid to the state treasurer. Held, that the warrant, survey and patent were prima facie evidence that the conditions of the act of 1806 had been fully observed by the officials of the land office, and that the plaintiff in the ejectment was not required to show by evidence dehors the warrant, survey and patent, that the island was a natural island, that it had a soil capable of cultivation, and that the appraisers had regard for the soil in making their appraisement.
    In such a case the presumption is that an officer performs his duty, and that his acts are regular and in conformity with the requirements of law. If the performance of any precedent act is necessary to the validity of the official act, there is a presumption in favor of his official act, which amounts to presumptive proof of the performance of the precedent act.
    Accretions or the gradual and imperceptible additions to an island become a part of the original land, and the title to the accretions is vested in the owner of the original island. If it is doubtful on conflicting testimony whether land in dispute is accretions to an original island, the question is one of fact for the jury.

      Ejectment — Evidence—Record of previous suit.

    In an action of ejectment for an undivided interest in land, the plaintiff may offer in rebuttal the record of a previous ejectment wherein the defendant was plaintiff to show that in the former suit the defendant in the second suit relied upon the same chain of title to recover the other undivided interest as that relied upon by the plaintiff in the second suit.
    Argued Jan. 17, 1906.
    Appeal, No. 192, Jan. T., 1905, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1899, No. 59, on verdict for plaintiff in case of Samuel F. Houseman v. International Navigation Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in the fortieth ward of the city of Philadelphia. . Before von Moschzisker, J.
    The facts are stated in the opinion of the Supreme Court.
    Plaintiff presented the following points :
    1. The warrant issued upon the application of Thomas K. Wallace, the survey and appraisement made in pursuance thereof and the patent of August 14, 1822, from the commonwealth to Wallace are prima facie evidence that the property therein described was in fact an island in 1822, and that it was properly patentable under the act of January 27, 1806. Answer : In answer to this first point, I will say that, while not affirming this point as stated, the papers which have been put in evidence in this case by the plaintiff as the application and proceedings in the land office of one Thomas K. Wallace, under which the patent to him was issued, are legitimate subjects for the consideration of the jury in deciding whether the land comprised within the original Wallace grant was or was not an island at the time of that grant, and whether or not it was properly patentable as such under the act of January 27,1806, and after the lapse of the great number of years from the date of these proceedings, as shown by these papers, and in the absence of any direct proof to the contrary or proof from which they could reasonably make a finding to the effect that it was not an island as it is designated in the patent and other state papers, this patent and the other papers in evidence might well be accepted by the jury as in the nature of prima facie evidence as stated in this point. [1]
    2. The patent of August 14,1822, conveyed to Thomas K. Wallace a valid fee simple title to the island therein described and its appurtenances. Answer: In answer to this second point, I will say that if the jury find that the land comprised within the original Wallace grant was an island, then, after the lapse of the long number of years since the date of that patent, the jury would be justified in presuming that'all of the proceedings leading to the issuance of the patent were regular, and in treating the patent as conveying a valid fee simple title to the island therein described and its appurtenances. [2]
    11. The island to which Wallace acquired title from the commonwealth under the patent of August 14, 1822, is admitted by the disclaimer and plea filed by the defendant in this case to be a part of the premises described in the plaintiff’s writ, and the premises so described and claimed by the plaintiff are identical with the boundaries of Cabin island as shown upon the Gillingham plan of October 7, 1891. It is, therefore, admitted of record by the defendant that the island originally patented to Wallace is part of Cabin island, as shown upon the said plan of October 7, 1891. Answer: In answer to this eleventh point, I will say that the land covered by the Wallace patent is stated by the disclaimer and plea filed by the defendants in this case to be a part of the premises described in the plaintiff’s writ. You have the evidence of the surveyor, Gillingham, that the description in the plaintiff’s writ is coextensive with what the plaintiff now calls Cabin Island. If you believe this testimony, which has not been denied, to be correct, it, therefore, follows that the defendants have practically stated in their own disclaimer that the part as to which they disclaim and which they describe particularly as an undivided interest in the tract or parcel of land described in the patent to Wallace, is not a part and parcel of Cabin island as shown by the plan of October 7, 1891, which you have in evidence. [8]
    12. Cabin island, as shown upon the Gillingham plan of October 7, 1891, is proved by the uncontradicted evidence to have been within the memory of persons now living a tract separated from Provence island by a channel or waterway, and from the government property by a gut, gully or ditch. There is a presumption of fact that such portion of the property within these limits as lies outside the metes and bounds specified in the Wallace patent is appurtenant to the island conveyed to Wallace, and not to land on the northwestern side of the back channel or to laud on the southwestern side of the big gut. Answer: In answer to this twelfth point, I will say that there is evidence in the case that the land called Cabin island, as shown on the Gillingham plan of October 7, 1891, was within the memory of persons now living, a tract apparently separated from Province island by a channel or waterway, and in front of the government property by a gut, gully or ditch. As to what this evidence proves and as to whether it is uncontradicted or not is a matter entirely for you to consider. As to the balance of the point, I will say that there would be a presumption of fact that the land formed by accretions exclusively to the fast land of what was originally the island which lias been called in this case Cabin island, would belong to that island, and not to tbe land on the northwestern side of the back channel, or the land on the southwestern side of the big gut, this being subject, of course, to your finding that such an island as Cabin island existed as a distinct entity. [4]
    Defendant presented these points :
    8. As the appraisers’ return has not been produced, and there is nothing to show that they had valued the soil of the alleged island as required by the act of January 27, 1806, and as the only evidence in the case shows that the Wallace tract was a part of a mud marsh and not an island within the meaning of the act, it is not an island the state could convey, under the general law. Answer : Refused. [5]
    9. There being no evidence that the Wallace tract, upon the conveyance of which the plaintiff rests his title, was an island having a soil within the meaning of the act of January 27, 1806, the officers of the land office were not authorized by the act to grant the warrant for the survey of the land in question, therefore the plaintiff acquired no title, and the verdict must be for the defendant. Answer: In answer to this ninth point, I will say that the matter has already been sufficiently answered in my géneral charge and my answers to other points, and I refuse to further answer it. [6]

      10. Unless the juiy believe that the plaintiff secured an island having a soil capable of cultivation and not a mud flat when he purchased the Wallace tract, the verdict must be for the defendant. Answer: In answer to this tenth point, I will say that the matter has already been sufficiently answered in my general charge and my answers to other points, and I refuse to further answer it. [7]
    11. If the jury believed that the tract of land called locally Cabin island was not a natural island within the meaning of the act of 1806, but merely a continuation of the swamp forming part of Mud island, the government property, the verdict must be for the defendant. Answer : I refuse to answer this eleventh point as stated. I have already charged you on the same matter, and will refer to the subject again towards the end of my charge. I call attention to the fact that while the point is stated in the past tense, no dates are given therein. [8]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned among others were (1-8) above instructions, quoting them; (18) admission in evidence of the record of the suit of International Navigation Company against Thomas Perkins; (24) that the charge was inadequate and insufficient.

      Charles Biddle, with him Biddle Ward, for appellant.
    The plaintiff did not establish the location of the island which he claimed: Kelly v. Graham, 9 Watts, 116.
    An examiniition of the act of 1806 and the decisions under it, clearly establish that the land office was an agent for the state with limited power vested in them, that that power must be construed strictly, and that it was the duty of anyone relying upon a patent issuing from the land office to show that that office acted within the scope of its authority in issuing such a patent: Hunter v. Howard, 10 S. & R. 243; Skeen v. Pearce, 7 S. & R. 303; Allegheny City v. Reed, 24 Pa. 39; Poor v. McClure, 77 Pa. 214; Straub v. Dimm, 27 Pa. 36; Campbell v. Galbreath, 1 Watts, 70; Burd v. Seabold, 6 S. & R. 137.
    The Perkins record was inadmissible: Chase v. Irvin, 87 Pa. 286; Timbers v. Katz, 6 W. & S. 290; Combs v. Hodge, 62 U. S. 397.

      George Wharton Pepper, for appellee.
    A plaintiff in ejectment is not required to show by other evidence than the patent itself, that the land office, as agent for the state of Pennsylvania, had authority to issue the patent.
    It is not incumbent upon a plaintiff claiming under a patent to a island under the act of 1806, to prove affirmatively, by evidence additional to that offered in this case by the plaintiff that at the time of the granting of the' patent the island was a natural island, that it had a soil capable of cultivation, and that the appraisers had regard to the soil in making their appraisement: Lackawanna Iron & Coal Co. v. Fales, 55 Pa. 90; Harkrader v. Carroll, 76 Fed. Repr. 474; Bank of U. S. v. Dandridge, 25 U. S. 64; Jackson v. Cole, 4 Cow. (N. Y.) 587; Coxe v. Deringer, 78 Pa. 271; Nofire v. United States, 164 U. S. 657 (17 Sup. Ct. Repr. 212); Wray v. Ho-ya-pa-nubby, 18 Miss. 452; Ward v. Barrows, 2 Ohio St. 241; Tecumseh Town Site Case, 3 Neb. 267; Valley Twp. v. Bridge, etc., Co., 4 Kan. App. 622 (45 Pac. Repr. 660).
    The Perkins record was properly received: Pope v. Allis, 115 U. S. 363 (6 Sup. Ct. Repr. 69); Lincoln v. Wright, 23 Pa. 76.
    April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

By an act of assembly approved January 27, 1806, 4 Sm. L. 268, 1 Purd. 1194, the officers of the land office of the state were directed to issue a warrant for airy unappropriated island in the rivers Delaware, Ohio and Allegheny under certain conditions and limitations prescribed in the act. Upon application made for a warrant, the land office was required to appoint three disinterested reputable persons to estimate and value the land in such island. These appraisers were required before entering upon the performance of their duties to take an oath that they would estimate and make a true valuation of the land per acre contained in the island, and that they were not interested in the purchase of any island in the river. They were required to value the land in the island by going upon it and having regard to the soil, wood, fisheries, other advantages and local situation; and they or any two of them having agreed on the real valuation per acre of the land contained in the island, were required to certify the same to the secretary of the land office, who should thereupon issue a warrant to the applicant after he had first paid to the commonwealth at least one-third part of the amount of the real valuation of the island. The balance of the purchase money was a lien on the land until paid, which was to be within four years after the date of the warrant, when a patent should issue to the applicant.

In pursuance of the above act of assembly, the secretary of the land office, on July 80, 1821, issued a warrant to Samuel Cochran, Esq., authorizing him to survey or cause to be surveyed to Thomas K. Wallace an island in the Delaware river, if not already appropriated, and to make return' to the land office for confirmation. This warrant recites that Wallace by an application in writing dated June 30, 1820, and filed in the land office, had requested to take up an island, “ situate in the river Delaware in Kingsessing Township, Philadelphia County, lying at the mouth of Schuylkill, near the upper end of Fort Island and opposite State Island, about one fourth of a mile southeast from said island.” The warrant also recites that the board of property issued an order on June 30, 1820, for the valuation of the island to three persons named therein, requesting them to appraise the island; that by the report of two of the appraisers in writing, dated July 4, 1821, the island was valued at $2.00 per acre, the one-third part of which was paid into the office of the state treasurer. In pursuance of the warrant, the deputy surveyor of Philadelphia county surveyed the-island on June 7, 1822, and returned the survey and draft of the island to the land office.

On August 14, 1821, the land office issued a patent to Wallace granting him “ a certain island, in the river Delaware, situate in Kingsessing Township, in the County of Philadelphia,” which is followed by a description of the island by courses and distances and a-statement that the island contained twenty-one and one-quarter acres. The patent recites that the island was surveyed in pursuance of a warrant dated July 30, 1821 and granted to Wallace.

Wallace’s title to the island became vested in Bastían and Laiferty, the latter of whom became the owner of the undivided one-third part thereof, which subsequently became vested in Samuel F. Houseman, the plaintiff.

By an act of assembly approved April 15, 1795, 3 Sm. L. 223, tbe commonwealth of Pennsylvania ceded to the United States “ the island commonly called Mud Island, situate in the river Delaware, together with all improvements thereon erected, placed or being.” No other description of the island granted is given. By deed dated August 29, 1899, the secretary of war and the secretary of the navy, in pursuance of authority conferred by an act of congress, conveyed to the defendant in this action, the International Navigation Company, “ the right, title and interest of the United States in and to all that tract of land, situated in the County of Philadelphia and State of Pennsylvania, at the junction of the Schuylkill and Delaware Rivers, and bounded and described according to a survey thereof made by William H. Jones, District Surveyor and Regulator of the Twelfth District of Philadelphia, on the seventh day of October, 1891, as follows.” The deed contains a description by metes and bounds of the island conveyed without giving the acreage, and excepts from the grant “ the area embraced within the courses and distances given in a patent made by the Commonwealth of Pennsylvania to Thomas K. Wallace on the fourteenth of March, 1822.” The habendum includes “the appurtenances, accretions and alluvion thereto belonging.” By a recital in the deed it appears that the grant conveys “ the right, title and interest of the United States in and to so much of the land described in deed by John W. Ashmead and wife to the United States, dated the twenty-eighth day of March, eighteen hundred and fifty-one, being in the vicinity of Fort Mifflin, on the Delaware, lying outside the dike or river bank and eastward of the fort, as will .... not be prejudicial to the interests of the United States.” In pursuance of a warrant dated March 13, 1851, the deputy surveyor of Philadelphia county surveyed to Ashmead “an island in the river Delaware (sometimes called Cabin Island), Kingsessing Township, Philadelphia County, at the mouth of the river Schuylkill, within about one quarter of a mile southeast from State Island ” except that part of the island patented to Thomas K. Wallace. A patent was issued to Ash-mead on March 27, 1851, and he, by deed dated March 28, 1851, conveyed the island to the United States.

This was an action of ejectment brought September 13,1899, to recover “ a tract of land composed partly of marsh or cripple covered with water at high tide, and partly of fast land, according to the survey made thereof, October 7, 1897, lying in the Delaware to the northeastward of Fort Mifflin and outside of that portion of the United States Government dike or river bank, extending in a northwesterly direction in the Fortieth Ward, formerly the Twenty-seventh Ward, Philadelphia, and described as follows . . . .” containing 111-1/10 acres. The defendant filed a disclaimer as to the undivided one-third of the portion of the premises named in the writ, which contains twenty-one and one-quarter acres and is described in a patent of the commonwealth to Thomas K. Wallace, his heirs and assigns, recorded in the land office at Harrisburg in Patent Book H., No. 20, page 306; and as to the residue of the lands described in the writ the defendant pleaded “ not guilty.”

The plaintiff claims that the land described in the praecipe and writ, exclusive of the twenty-one and one-quarter acres, covered by the Wallace survey and patent, has been formed by gradual accretions to the island granted to Wallace, and that he is the owner, as shown by his title above recited, of the undivided one-third of the Wallace island and hence, of the undivided one-third of all the. additions thereto made by the accretions. The defendant company claims that Mud island included the twenty-one and one-quarter acre tract, and the land claimed by the plaintiff to be accretions to Cabin or Wallace island, that the Ashmead tract included a portion o‘f the land in dispute, and that the deed of the United States made in 1899, conveyed to the company the land described in the prsecipe and writ and claimed by the plaintiff. The defendant company contends that the land in dispute had always been a mud flat and had been separated from the other portion of Mud island by a ditch dug for the purpose of draining a certain portion of the mud flat, around which a dike had been constructed, and that in 1897 and 1898 the company had dumped mud and soil on it and thereby converted the flat into arable land.

The court below charged that to entitle the plaintiff to a verdict the jury must find: “That Wallace acquired title by the patent of 1822; that the title acquired by Wallace under that patent covered all the fast land in an entire island; that this island has been properly located as a part of what we have been told is now known as Cabin island; that the balance of the land sought to be recovered by the plaintiff in this action was originally low or marsh land appurtenant to the Wallace grant or land that has been added to the original Wallace grant by accretions, and that Cabin island, as it now exists, consists of the original Wallace grant with these low or marsh lands and accretions added thereto ; that any deposits of mud or dirt which may have been made to facilitate the filling in of the island were made on this appurtenant low or marsh land or on accretions already formed above low-water mark; that a one-third undivided interest in the title granted to Wallace has become vested in the plaintiff Houseman; and all other minor facts which may be essential to a proper finding of these facts.” As to the defense the learned judge said: “ The defendants have set up several grounds of defense. The first is, that the plaintiff has not proved his case; that is, that he has not shown facts which would justify a finding, that he holds title to the land described in the writ; next, that if he has shown a good title to any part of the land so described he has not shown such a title to a full one-third undivided interest; next, that they, the defendants, hold title by a grant from the United States government, and that the United States'government took this land back in 1795, as part of an island, known as Mud island, or as marsh land appurtenant thereto, which was ceded to the government by the state of Pennsylvania under and by force of a certain act of assembly; next, that even if this land in question was not included in the land of the United States government, then, that all of the land, excepting that originally included in the description in the Wallace grant, that is, all the land which has been formed by accretions was granted by the state of Pennsylvania to one Ashmead in 1851, and that they hold through the Ashmead title.” Numerous points for charge, raising all the legal questions involved in the case, were submitted by counsel for both parties, and were, as we think, correctly answered by the court. The verdict was in favor of the plaintiff and the defendant company has appealed.

The act of 1806, as we have seen, confers on the land office authority to issue a patent for an island in the Delaware river. It is contended, however, by the appellant that the appellee was required, in order to sustain .the Wallace patent, to show that the island was a natural island, that it had a soil capable of cultivation, that the appraisers had regard to the soil in making their appraisement. These facts must appear, it is claimed, by-evidence dehors the warrant, survey and patent. With that conclusion we do not concur. Eighty-four years have elapsed since the Wallace patent was issued, and if the present holder of that title is required to prove those facts by evidence aliunde the papers themselves his title must fail, and the grant of the state for which it received full consideration goes for naught. That position, as we think, cannot be sustained by reason nor by any decisions called to our attention. The presumption is that an officer performs his duty, and that his acts are regular and in conformity with the requirements of law. If the performance of any precedentact is necessary to the validity of his official act, there is a presumption in favor of his official act, which amounts to presumptive proof of the performance of the precedent act: 22 Am. & Eng. Ency. of Law (2d ed.), 1267. To support a tax sale of real estate in this state, it is indispensable that the purchaser give to the treasurer his bond for the surplus of purchase money over and above the taxes and costs, but it was held in Lackawanna Iron & Coal Company v. Fales, 55 Pa. 90, an ejectment for land by the purchaser thii'ty years after he bought it, that as the treasurer’s deed contained a receipt for the consideration and costs of the bond and he had paid the taxes and had recovered against the grantor of the defendant for trespass on the land, it would be presumed the bond had been duly given. In Jackson v. Cole, 4 Cow. (N. Y.) 587, Sutherland, J., delivering the opinion (p. 596) said: “ So in this case, the fact that the officers of government, whose duty it was to see the provisions of the act of 1787 carried into effect and complied with on the part of the trustee have proceeded as they could not, consistently with their duty have done, unless the trustee had performed whatever it was incumbent on him to do, is prima facie evidence of performance on his part.” Wray v. Ho-ya-pa-nubby, 18 Miss. 452, was an ejectment by an Indian for a section of land claimed as a reservation under the Chickasaw treaty. The question was whether the Indian reserves had preference over a subsequent patentee of the government. The evidence of the location of the land was a certifycate of the register of the land office subsequent to which a patent was issued. It was contended that it was not shown that the requisite preliminary steps were taken authorizing the location. But it was held that the evidence was not necessary. The court said : “ The location is in itself evidence that all the prerequisites were complied with. A violation of duty on the part of the officers who made the location cannot be presumed. A grant raises a presumption that all prerequisites have been complied with. The principle is a general one and applies to most acts of an official and an administerial character.” Ward v. Barrows, 2 Ohio St. 241, was an ejectment in which the plaintiff claimed title by mesne conveyances from the original owner and the defendants claimed title under a tax sale. It was contended that the certified copy of the return of the delinquent tax was irregular in certain details required by statute. The court said (p. 247) : “The law will presume all to have been rightly done unless the circumstances of the case overturn this presumption, and, consequently, as stated by the supreme coui't of the United States in Bank of the U. S. v. Dandridge, 25 U. S. 64, ‘acts done which presuppose existence of other acts to make them legally operative are presumptive proofs of the latter. . . .’ Facts presumed are as clearly established as facts proved, where no presumption is allowed.” Tecumseh Town Site Case, 3 Neb. 267, was a bill to remove a cloud on a title. It was alleged that some of the proceedings necessary to support the title were irregular. Maxwell, J., delivering the opinion, said (p. 284) : “ The law will presume official acts of public officers to have been rightly done unless the circumstances of the case overturn this presumption ; and acts done which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter.” Bixler v. Baker, 4 Binn. 213, was ejectment. The act of 1794 authorized the land office to issue patents for lands “ whereon a settlement has been or shall be made, grain raised, and a person or persons residing thereon.” A party cleared and cultivated about three-fourths of an acre o.f the 100 acres in dispute. Two justices agreeably to the statutory provision, gave him a certificate “ that the laud was improved, and had been so since the spring of 1795.” Upon it a warrant was issued, and a survey was made and a patent issued to another person, the plaintiff, who held the warrantee’s title. Another party subsequently entered upon the land and made an actual settlement. The first party brought an action against the actual settler. Tilghman, O. J., in delivering the opinion, after deciding that the legislature had in contemplation an actual personal resident settlement, said (p. 218) : “ But it is contended, that supposing this to be the true construction of the act, the patent is conclusive evidence, that such settlement was made, because the officers of the commonwealth would not have issued it, without proof of the settlement. This argument is not correct. I agree that the patent is strong presumptive evidence of a settlement, and if the court had said so to the jury, all would have been right. But I cannot allow that the patent is conclusive evidence.” Allegheny v. Nelson, 25 Pa. 332, was ejectment to recover an island in the Allegheny river. A patent was issued, under the act of 1806, but the return by the appraisers was silent as to the susceptibility of the island to cultivation. The defendants resisted recovery on the grounds that the land embraced in plaintiff’s survey was not in fact an island and that, even if it was, it was not susceptible of such cultivation as the law required; and that, therefore, the acts of the officers, in granting the warrant and making a survey were unauthorized and void. As to the silence of the return on the facts required by the act, Lewis, C. J., speaking for the court, said (p. 334) : “ His application, and the proceedings in the land office, were therefore legitimate subjects for the consideration of the jury in deciding whether the land was an island or not in 1828 and 1829, when it was applied for, appraised and surveyed as such. It is true that the appraisers omitted to certify according to the directions given to them, ‘ whether the land was susceptible of cultivation in grain or esculent roots, in common seasons.’ They are .silent on this point in their return; but they speak therein of. having had regard to the ‘ soil,’ etc., in fixing its value, and' as their report was not rejected, but was accepted and acted on by the receipt of a portion of the purchase money, and the granting of a warrant, and causing a survey to be made, in pursuance of the application, the presumption is that the irregularity was dispensed with on other satisfactory evidence, that the island was susceptible of cultivation. These proceedings, as against a mere stranger, were surely prima facie evidence that all was rightly done; and, as the evidence is not given' on the paper-book, we are not to intend that the city, of Allegheny was anything more than a stranger.”

It is clear, we think, that under the authorities it must be presumed that all the necessary statutory prerequisites to give validity to the Wallace patent have been complied with by the land office. The patent shows that it was issued in pursuance of a warrant and survey. The warrant recites that the application was made pursuant to the provisions of the act of 1806 for an island in the Delaware river “ lying at the mouth of the Schuylkill, near the upper end of Fort Island; ” that the board of property issued an order for its appraisal by three appraisers ; that two of the appraisers had made a report that they had appraised the land at $2.00 per acre, a one-third part of which had been paid to the state treasurer. We think the warrant, survey and patent were prima facie evidence that the conditions of the act of 1806 had been fully observed by the officials of the land office, and that the land described therein was, in 1822, an island and patentable as such under the act of 1806.

The appellant company further contends that the location of the island was not fixed with certainty. This, however, was a question of fact and was for the jury. Fixing the location of the island was necessarily attended with difficulty under the circumstances and while the evidence possibly was not as explicit and convincing as might be desired, yet it was sufficient to justify a finding by the jury. In locating the Wallace tract the surveyors made use of the original survey of 1822, the Shallcross survey of 1851 on which the Ashmead patent was issued, the Miller survey of 1860 made for the United States government, and the Gillingham survey of 1891. Gillingham testified that Cabin island was bounded on the north by the old Back channel, on the east and south by the low-water line of the Delaware river, on the west by United States government property, and that “ the Schuylkill river and the Delaware river join just about ” the island. He located the Wallace tract within the lines of the land described in the writ. It is 'true, one of the surveyors testified that the Wallace patent gives no monuments on the ground by which the location of the island could be made, but the several surveys were used and by this assistance the location was made. Both parties put in evidence the Shallcross survey of Cabin island showing the area and giving a description by courses and distances of the island patented to Ashmead in 1851. On this survey the Wallace tract appears as part of Cabin island and a description by courses and distances is given of the tract substantially as it appears in the patent of 1822. The Wallace tract is included within the boundaries of the Shallcross survey, but the acreage was excluded from it in issuing the patent to Ashmead. In addition to this, the disclaimer filed by the appellant locates the Wallace tract as a part of the premises which the appellee designates as Cabin island and for which this action was brought. The documentary evidence, the disclaimer and the oral testimony were sufficient to go to the jury on the questioh of the location of the island.

It is well settled that accretions or the gradual and imperceptible additions to an island become a part of the original land and that the title to the accretions is vested in the owner of the original island. The appellee claims that the land in dispute is accretions to the original Wallace island, and that he being the owner of the undivided one-third of the island has therefore like title to these accretions. Whether the land in dispute was accretions to the original island was purely a question of fact and was properly submitted to the jury.

The appellant complains that the charge was inadequate in not defining the issues submitted to the jury. We have alluded to the charge and what it submitted for the jury’s consideration, and we do not agree with appellant that it was inadequate in this respect. The learned judge pointed out the claims of the parties and distinctly told tire jury what facts they must find before they could render a verdict for the plaintiff. At least thirty-five requests for instructions covering the law on every disputed point in the case were presented to, and answered by, the court. If, therefore, the jury did not comprehend the issues submitted or the law applicable to the issues, it was not the fault of the learned trial judge.

The eighteenth assignment alleges the court erred in admitting in evidence the record of the suit of the International Navigation Company v. Perkins, which was an action of ejectment brought by the navigation company, the appellant here, against Perkins for, inter alia, the land in dispute in this action. The company, the plaintiff in that action, recovered a judgment and obtained possession of the premises. It relied on the same chain of title to Wallace island in that action, that the appellee relies on here, and on the strength of that title it recovered in the action. The record in that case was offered and admitted here, not as proof of the appellee’s title, but in rebuttal as an admission by the present appellant in regard to the title to the premises in dispute in this case. For that purpose it was competent evidence: 1 Greenl. Ev. (16th ed.) sec. 527 a; 2 Wigmore on Ev. sections 1,065 et seq.; 1 Am. & Eng. Ency. of Law (2d ed.), 449; Truby v. Seybert, 12 Pa. 101.

It is conceded and the jury were instructed in answer to the appellant’s first point that if the land covered by the Wallace p'atent was embraced within the boundaries of Mud island, ceded by the state to the United States in 1795, or the accretions thereto, the plaintiff had no title to the land in dispute and could not recover. Under these instructions, the verdict establishes as a fact that the land sued for in this action was not a part of Mud island and that there is no outstanding title in the United States as the owner of that island. The appellant company, therefore, is compelled to rely on the Ashmead grant, a part of which was, as appears by the deed, conveyed to it by the United States in 1899. It did not include the island covered by the Wallace patent, and hence did not include the accretions’ to that island. If, therefore, the jury found that Wallace island was not a part of Mud island, and the evidence satisfied the jury that the land in dispute was accretions to Wallace island, the verdict was necessarily for the plaintiff.

If the Ashmead tract was part of Mud island, ceded to the United States in 1795, it may well be asked why the government purchased it from Ashmead, who subsequently acquired it by patent from the state. There would have been no necessity for such action by the government as it already had a good title to the land. The appellant’s explanation that it was done for the purpose of clearing the title is not sufficient. That is simply a theory with no evidence to support it. On the other hand, the deed to the appellant company shows that the land conveyed to it by the United States government was the government’s interest in a part of the land described in tbe deed by Ashmead and wife to the United States. In no part of the government’s deed to the appellant is any reference made to Mud island or that the land conveyed is a part of it.

We have carefully examined and considered the questions raised on this record and find no reversible error. We may suggest that it would have facilitated our labors if copies of the colored plans in evidence had accompanied the paper-books.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Payne v. Roberts, Appellant.

      Contract — Building contract — Construction of contract — Arbitration clause —Fraud—Collusion.

    A building contract provided that if the work done or materials provided by the contractor should be unsatisfactory to the architects, the contractor would on notice immediately remove the unsatisfactory work or materials, and supply others satisfactory-to the architects. It was further provided that in case of default by the.contractor, the owner, after ten days’ notice to the contractor, might provide other workmen and materials to complete the work. In another part of the contract there was this provision: “If' any question should arise during the progress of the work, or the settle^ ment of accounts, it is to be referred to the architect whose decision shall be binding upon both parties; but there is reserved the right of final decision in all such questions by two disinterested parties, etc.” After the work was under way, the architects notified the contractor that certain walls were unsatisfactory, and should be removed. No attention was paid to this notice, and the owner after another notice of ten days to -the contractors took possession and completed the work. The evidence was insufficient to justify a finding of any fraud on the part -of the architects, or of any collusion between the architects and owner. Held, (1) that the contractor was obliged to make the work satisfactory to the architects; (2) that having failed to do so the owner was justified in taking possession of the woi’k and completing it; (3) that the arbitration clause did not apply to any question in which the architects were involved as parties, but only to questions arising between the owner and the contractor; (4) that the arbitration clause did not include questions that might arise between the parties themselves relating to the work or material employed.
    Argued Jan. 29, 1906.
    Appeal, No. 241, Jan. T., 1905, by Percival Roberts, Jr., from judgment of C. P. Montgomery Co., June T., 1903, No. 20, on verdict for plaintiff in case of George F. Payne and Charles G. Wetter, trading as George F. Payne & Co., v. Percival Roberts, Jr.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Assumpsit for breach of a building contract. Before Swartz, P. J.
    At the trial it appeared that on June 1, 1902, the plaintiffs, George F. Payne & Co., who were builders, contracted with Percival Roberts, Jr., the defendant, to build for .him, under the direction of Peabody & Stearns, architects, 'a brick and limestone residence at Narbertb, Pa., for the price of $247,000.
    The contract was in writing. It contained, inter alia, the following clauses:
    “ And in case any of said work done or materials provided by the party of the second part shall be unsatisfactory to the said architects, then the said party of the second part will, on being notified thereof by the said architects, immediately remove such unsatisfactory work or materials, and supply the place thereof with other work and materials satisfactory to the said architects.”
    ********
    “ In case of any failure or unreasonable delay of the said party of the second part, whether by act or default, in the performance of any of the above stipulations, or compliance with the true intent of these presents, not authorized in writing by the said party of the first part, it shall be lawful for the said party of the first part, after ten days’ notice in writing to the said party of the second part to provide other workmen and materials to complete the said work in the place of the said party of the second part, and to deduct the cost and charges thereby occasioned from the sums otherwise becoming due to the said party of the second part under this agreement, without prejudice to any other remedy which the said party of the first part may have for breach thereof.
    “If any question should arise during the progress of the work, or in the settlement of accounts, it is to be referred to, the said architects, whose decision shall be binding upon both parties; but there is reserved the right of final decision in all such questions' by two disinterested parties, one chosen by eaoh party to this agreement; and in the event of the parties so chosen failing to agree, they are to have the power to choose a third, and the decision of two of the referees so chosen shall be binding on both parties.”
    Other facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [Had the defendant, Mr. Roberts, the right under the facts and circumstances in the case to provide other workmen and materials to complete the work ? This was a matter that the defendant had under consideration when he executed the contract, for provision was made for the exercise of the right should the contingency arise. It was a question that might arise during the progress of the work. It was, therefore, a question which under the fourth clause of the contract was to be referred to the ai-chitects. The right, however, was reserved to have the final decision referred to arbitrators. These arbitrators were not named, and I therefore charge you that either party could decline to refer the matter to such unnamed board of arbitrators and refer the final decision to a jury of common law. The bringing of this suit by the plaintiffs is an election by them to try the question before a jury.] [8]
    [The specifications were not followed so far as the use of nonstaining cement is concerned. If the architects acted in good faith when they declared they were dissatisfied with the walls, then it was the duty of the plaintiffs to remove the walls. If they refused, and went on building for ten days and more upon these walls, such conduct was a declaration on their part that they would not comply with that provision of their contract, which required them to make their work satisfactory to the architects. This refusal gave the right to the defendant to take possession and to complete the work. The important question for you to determine, therefore, is whether the architects were in fact dissatisfied with the walls. Did they act in good faith when they said they were dissatisfied? Were they in truth and fact-satisfied, of did they simply voice the judgment of someone else and not their own, when they said they were not satisfied ?] [4]
    [If you find that the architects were not in truth dissatisfied with the work and matei’ials, then the question arises whether the failure to observe the cement requirements was such a default in performance as to justify the defendant in taking possession and completing the house. Here, again, the question of substantial performance must be considered by you. If by reason of this departure as to stainless cement, there was no substantial performance of the contract, then such act was a default in the performance of the stipulation of the contract. You have heard what was said about the liability of limestone to absorb color from surrounding matter. Was the stainless cement as used by the plaintiffs so used as to protect the stone ? Was the failure to use it as directed by the specification's a failure to perform in a comparatively unimportant item ? Was the failure a minor particular and of no serious moment to the building ?] [5]
    Defendant presented this point:
    2. The undisputed evidence is that on January 21,1903, the architect condemned the exterior walls as far as erected and ordered them to be removed; that plaintiffs refused to obey the order and continued to build on the walls; that the defendant thereupon gave plaintiffs ten days’ notice that he would take possession and finish the work himself in accordance with the contract, and that plaintiffs continued during the whole of the ten days and afterwards to build on the condemned walls. Under these circumstances the defendant had the right to take possession and finish the building, and his action in doing so was not a breach of the contract. Answer: This is refused. There are other circumstances or questions of fact involved upon which the jury must pass in order to determine whether the defendant had the right to take possession and finish the building. [6]
    Verdict for plaintiff for $96,184.98 upon which judgment was entered for §92,497.70. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant, and (3-6) above instructions, quoting them.

      Frank P. Prichard and John G. Johnson, with them Montgomery Evans, for appellant.
    Irrespective of all other questions in the case, the fact that the contractors were clearly violating the written specifications on January 21, 1903, by the use of common instead of nonstaining cement in the exterior walls; that they did not stop when their attention was called to this violation and its importance; that in defiance of the orders of the architect they continued this specific violation during the ten days’ notice given them by the owner and afterwards until a bill in equity was filed against them, justified the owner in finishing the work by his own workmen.
    With regard to the other violations of the contract alleged by the owner, it was proved and not denied that the builder refused to remove work declared unsatisfactory by the architect after the question had been referred to the architect and he had inspected the work in the presence of both parties. There was not sufficient evidence on which to submit to the jury any question of fraud on the part of the owner and architect, and therefore there was a distinct violation of the contract which entitled the owner to exercise his right to take possession: Reynolds v. Caldwell, 51 Pa. 298; Lucas Coal Co. v. D. & H. Canal Co., 148 Pa. 227; Hartupee v. Pittsburg, 97 Pa. 107; Hostetter v. Pittsburg, 107 Pa. 419; Hartupee v. Pittsburg, 131 Pa. 535.
    Both parties having agreed by this building contract that the decision of a named architect as to questions in dispute should be final, reserving only the right to appeal from his decision to arbitration by unnamed arbitrators, neither party could, after the decision of the architect, and without tendering arbitration, refuse to abide by the decision of the architect, and reopen the whole question for a jury: Monongahela Nav. Co. v. Fenlon, 4 Watts & Sergeant, 205; Lucas Coal Co. v. D. & H. Canal Co., 148 Pa. 227; McCune v. Lytle, 197 Pa. 404; D. & H. Canal Co. v. Penna. Coal Co., 50 N. Y. 250.

      N. H. Larzelere, with him Ruby R. Vale and Edward W. Magill, for appellees.
    The good faith, capriciousness or fraud of the architects is always a relevant inquiry in an action against the party beneficially interested in the decision of the architects and who is a party to the bad faith, collusion or fraud, and when there is any evidence tending to show the absence of good faith or the presence of capriciousness or fraud on the part of the' architects, or of collusion between the . architect's and the party, benefited by the decision, or of-coercion on the part of the party beneficially interested, this evidence should be submitted to á jury for their finding as a fact whether the decision or award by the architects was in good faith or fraudulent or capricious: Speer v. Bidwell, 44 Pa. 23; Brandon v. Forest County, 59 Pa. 187; Alexander v. Scranton Savings Bank, 3 Lancaster, 354; Connor v. Simpson, 7 Atl. Repr. 161.
    A provision in a building contract that the contractor is to be paid upon his producing to the owner the written certificate of the architect that the work has been completed to his satisfaction and within the time stipulated in the contract, is for the protection of the owner against any unjust or unfounded claim by the contractor. Hence, if the contractor honestly performs the covenants of the agreement, such provision is not intended to enable the owner to evade an honest payment of the price by the capricious or fraudulent withholding of the certificate: Whelen v. Boyd, 114 Pa. 228; Badger v. Kerber, 61 Ill. 328; G. A. Fuller Co. v. B. P. Young Co., 126 Fed. Repr. 343.
    The courts of this commonwealth will not take away from a party the right of a trial by jury by implication merely and will do so only when it affirmatively and clearly appears that the party by express agreement has dispensed with it, and that consequently an agreement of reference to even a specifically named person or designated tribunal is not binding on the parties unless there is a stipulation as to the finality of the decision of such arbitrator irrespective of such conditions or contingencies: Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. 161; Chandley v. Cambridge Springs Boro., 200 Pa. 230; Dobbling v. York Springs Ry. Co., 203 Pa. 628; Lauman v. Young, 31 Pa. 306.
    It is a principle of law settled by a long line. of cases that a prospective submission to arbitrate, but not providing for submission to any specifically named person or particular tribunal, but to persons eventually to be chosen by the parties is revocable by either party .and is inadequate to oust the jurisdiction of the court having cognizance of the subject-matter of the dispute: Snodgrass v. Gavit, 28 Pa. 221; Yost v. Ins. Co., 179 Pa. 381; Rogers v. Davidson, 4 Penny. 472; McCune v. Lytle, 197 Pa. 404.

      In order to oust the jurisdiction, of the courts, it must clearly appear that the subject-matter of the controversy passed upon by the party or tribunal designated as arbitrator was intended by the parties to be within the contemplation of the prospective submission, and that in the case at bar, neither party to the agreement contemplated that the architect had the right or power to pass on the right of forfeiture, or damages resulting from the breach of the contract: Dobbling v. Railway Co., 203 Pa. 628; Somerset Borough v. Ott, 207 Pa. 539 ; Lauman v. Young, 31 Pa. 306.
    A reasonable interpretation of these several sections of this contract and the contract as a whole, is to regard it not as vesting in the defendant an arbitrary or - absolute discretionary right to forfeit, but, on the contrary, it should be construed as providing a particular mode by which the defendant may proceed with the construction of the building, after a well-defined, certain, or admitted breach or default on the part of the contractor: Duplan Silk Co. v. Spencer, 115 Fed. Repr. 689; Hoyle v. Stellwagen, 28 Ind. App. Ct. 681 (63 N. E. Repr. 780).
    April 9, 1906:
   Opinion by

Mr. Justice Stewart,

By written articles of agreement entered into June 1, 1902, George F. Payne & Company, here the appellees, undertook to construct and erect for Percival Roberts, Jr., the appellant, a dwelling house at Narberth, Penna., in accordance with certain plans and specifications made part of the agreement, to provide all the materials for the same, and perform the work in connection therewith in a good and workmanlike manner, under the direction of the architects, Peabody & Stearns, for the consideration of $247,000. The work under the contract was duly entered upon, and had so far progressed that the walls of the house were in the course of erection, some of them being as high as the second story, when the contractors were required by the owner to cease work and turn over to him the unfinished building, to be completed by his own workmen. The owner claimed the right to do this under the third clause in the contract, which reads as follows : “ In case of any failure or unreasonable delay of the said party of the second part, whether by act or default in the performance of any of the above stipulations, or compliance with the true intent of these presents, not authorized in writing, by the said party of the first part, it shall be lawful for the said party of the first part, after ten days’ notice in writing to the said party of the second part, to provide other workmen and materials to complete the said work in the place of the said party of the second .part, and to deduct the costs and charges thereby occasioned from the sums otherwise becoming due the said party of the second part under this agreement, without prejudice to any other remedy which the said party of the first part may have for breach thereof.” The contractors, being thus required -to relinquish the work, brought this action against the owner to recover damages on account of an alleged breach of contract. In the statement of claim filed by the plaintiffs in the action, the breach complained of was thus averred: “ That after the execution of said agreement, to wit, on or about the 1st day of June, 1902, they entered upon the performance of their contract, began the construction of the said dwelling house at Narberth, Penna., referred to in said contract, and continued in the construction of the same until on or about the 20th day of February, 1903, when the defendant arbitrarily, wrongfully and illegally refused to permit the plaintiffs to proceed further with the construction of the said dwelling house and in the performance of their contract, although ready and willing so to do.” That the defendant did interfere and require the plaintiffs to cease and quit the work at the point of time alleged, is a fact in the case; whether he did so arbitrarily, wrongfully and illegally, is the question to be resolved. It was resolved by the jury under instructions from the court as to the law applicable to the case, and adversely to the defendant, against whom a verdict for $96,184.98 was returned, subsequently reduced by the court to $92,497.70. The appellant insists that the instructions of the court were erroneous, and that the jury were permitted to pass on questions not proper for their consideration.

With the frequent disputes which arose between owner and contractors as the work progressed, we have no concern. We may wholly dismiss them from consideration, since it was but a single act of the owner, and that the final one, requiring the contractors to give over the work, that is complained of as the breach; and this if excusable or justifiable, was so because of the final act of the contractors in refusing to take down the walls which had been condemned by the architects. On January 21, 1908, the architects having made an examination of the work so far as then completed, reported in writing to the contractors, and verbally to the owner, that the work failed to comply with the specifications in five particulars. These particulars all relate to the'walls which had been erected, and while each might well be regarded as a matter of moment, it is unnecessary here to specify more than one. The third particular as stated in the report made special reference to the substitution of a different cement, in the exterior brick walls and interior walls containing limestone, for the particular cement' called for by the specifications. The report says: “ The use of the common cement in the walls renders them of very much less value than if the specifications had been complied with, and we cannot accept the work. It is impossible to remedy this without' taking down the walls which have been erected, and we therefore reject the walls so far as you have them finished, and require you to take them down under the clause of the contract which requires you to immediately remove any work or materials unsatisfactory to the architects.” The report concludes : “ Upon discovering to-day the serious condition of the work, we directed, through your representative, that all work should be stopped, and have notified the owner of the condition of affairs.” The clause of the contract to which reference is here made, is to be found in the first section and reads as follows : “ And in case any of said work done or materials provided by the said party of the second part shall be unsatisfactory to the said architects, then the said party of the second part will, on being notified thereof by the said architects, immediately remove such unsatisfactory work and materials, and supply the place thereof with other work and materials satisfactory to the said architects.” Acting upon this report of the architects the owner wrote to the contractors under date of January 22, 1903, as follows: “ I am also in receipt of copy of letter to you from Messrs. Peabody & Stearns under date of 1 /21 /03. From this it appears that the situation at Narberth has not improved but grown steadily worse. Notwithstanding notices given your Mr. Beehold by Mr. Stearns to suspend work as same was not in accordance with specifications, I am informed that you are proceeding with the same to-day. I hereby notify you that owing to the unsatisfactory condition of affairs I will exercise my light in clause three of the contract and take possession of the work with my own men ten days from this date.” At the end of the ten days, the contractors being still in the possession of the building, and not having taken down the walls as required by the architects, but continuing to build thereon, counsel for the owner addressed to the contractors a written demand for a surrender of the premises. This not being complied with, on February 9, the owner filed his bill in equity praying among other things for an injunction restraining the contractors from proceeding further with the work. No answer was filed, but on representation to counsel for the contractors that the five day injunction would on the following day he asked for on the bill, the contractors withdrew from the building, protesting that they yielded only for the purpose of avoiding litigation, without admitting that the walls did not correspond to the specifications. We have here stated every material fact that is necessary for an understanding of this appeal. The case as tried in the court below would seem somewhat anomalous, inasmuch as the record shows an action successfully maintained for damages resulting from an alleged breach of contract, when the damages claimed and allowed resulted, not from any breach of the contract by the owner, but in consequence of his strict observance of the contract in pursuing a remedy therein provided, and in the way therein prescribed. It appeared from the plaintiffs’ own showing that they received express notice from the architects that the walls were not satisfactory to them, and a direction that they should he taken down and rebuilt in conformity with the specifications; that notwithstanding this notice the work of building the walls was continued without change in method or material; that the owner notified them that in consequence of their disregard of the notice from the architects, he would exercise his right under the contract to take possession of the building in ten days thereafter, and that in defiance of both architects and owner, the work was proceeded with as before, until possession was finally yielded to the owner under threat of legal proceedings. Here was a breach of the contract, but, for all that has yet appeared, it was not a breach by the owner. In rescinding the contract and requiring a surrender of the building, he was doing what the contract expressly allowed, upon just such event as that which admittedly occurred. In failing in the first instance to make the walls satisfactory to the architects, and afterwards in refusing to remove and replace them with others, the contractors were not only in default, but they were positively and defiantly asserting themselves in opposition to the express terms of the contract. Clearly the breach at this point was theirs. It. was however urged that, notwithstanding the foregoing facts, it remained a question to be inquired into at the instance of the plaintiff, not whether the architects had condemned the walls and required their removal, but whether the dissatisfaction expressed was due to mistaken judgment, or dishonesty of purpose, with the legal result that if either could be shown, the breach of the contract would be the act of the owner and not that of the contractors. And this view prevailed with the court, because of the fourth section of the contract which reads as follows: “ If any question should arise during the progress of the work, or in settlement of accounts, it is to be referred to the said architects, whose decision shall be binding upon both parties ; but there is reserved the right of final decision in all such questions by two disinterested parties, one chosen by each party to this agreement; and in the event of the parties so chosen failing to agree, they are to have the power to choose a third ; and the decision of two of the referees so chosen shall be binding upon both parties.” Whether this agreement for reference and arbitration is revocable was a question much discussed in the court below and here, but we regard it as aside from the present inquiry. As we read the entire contract, this particular provision can have no application to the present controversy. The manifest purpose of the clause was to provide a convenient method for the prompt settlement of such questions as might arise between the parties, to the end that the work might not be interfered with and delayed. It does not, either by express terms or reasonable construction, include questions that might arise between the parties or either of them, and other persons incidentally connected with or interested about the contract, as for instance, the architects ; but is limited to questions arising between the parties themselves. Since the architects are made the referees in the first instance, it certainly could not be held to include questions to which they themselves were parties. Nor does it include questions that might arise between the parties themselves touching the manner of their work or materials employed, for the reason that by express provision these were to be satisfactory to the architects; their approval was to be the only test of their sufficiency; to this measure both must come, the owner could demand no more, the contractors could escape with nothing less. A reading of the whole contract will show a wide field for controversy outside of these particular questions, in which the provision for reference and arbitration could properly operate; so that the construction we are giving the clause cannot be said to make it ineffective or useless. With such a test with respect to work and materials, that is, the satisfaction of the architects, it is impossible to understand how a question could arise between the parties to the contract respecting either of these things. Difference of view there might be as whether either or both conformed to the specifications, but this, except as the architects were satisfied of the conformity, was not to be the test. If they met the approval of the architects, that was the end of the controversy. At the time of the alleged breach of the contract by the owner, there admittedly was an open dispute between architect and contractors as to whether work and materials conformed to the specifications, the former having based their rejection of the walls upon their want of conformity. As we have said this was not a matter to be referred under this particular clause, first, because such reference would have to be to the architects themselves in the first instance, a circumstance of itself indicating clearly the inapplicability of the clause to such a question; and again on appeal the only question would be whether the architects were or were not satisfied with the walls. That is to say, the architects on reference to themselves having determined that they were not satisfied with the walls, on appeal it might be • decided by others for them that they were satisfied, notwithstanding they themselves thought and said they were not. It is quite manifest, we think, that no such submission could have been contemplated. The fact that the owner expressed his dissatisfaction with the walls, did not make him a party to the question, so as to entitle it to a submission. He was interested of course, but the contractors could be entirely indifferent, if they chose, to his dissatisfaction. However vigorously expressed, they could answer as they did through Mr. Wetter, one of the firm, when on one occasion the owner remonstrated about the work. The testimony of this witness very clearly indicates, we think, the plaintiffs’ understanding of the contract. When asked what took place between him and the defendant his reply was : “ In the early part of December, I think it was on December 6, 1902, I met Mr. Stearns by appointment in Mr. Roberts’ office at the Arcade building, Philadelphia, and we discussed then these various questions about the bricks not being covered, and so on, and Mr. Roberts was talking in a general way about the progress of his work, this was not satisfactory, and so on, and so on. I said ‘ While it seems to me, Mr. Roberts, this complaint should come from your architect, and not through you, or at least ’ — I ought to say before that time he said ‘ I have written you letters right along but you pay no attention to them; you do not even answer them.’ I said ‘ No. The complaint should come through your architects and not through you. You are the owner in this case, but the architects have entire supervision of the work, and if there are any complaints they should come through them.’ ”

Such a provision as this, requiring the work and materials to meet the satisfaction of the architects, is neither unusual nor unreasonable. True, it confides much in the judgment, impartiality and integrity of the architect; but it has long been a feature in building contracts, and that it obtains to-day as largely as ever shows that experience has approved it. In Kennedy v. Poor, 151 Pa. 472, there was a similar agreement and it is thus referred to: “Presumably no more suitable selection can be made than the architect who draws the plans and who is to superintend the work. He is certainly more competent to determine any difficulty that might arise than a jury indifferently chosen and without the requisite information or power to require it: Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205. This reference was an essential part of the contract, voluntarily entered into by the parties. There was no rule or policy of law which forbadeit; and neither party is at liberty to depart from it.”

The question then not being a matter proper for reference under this clause in the agreement, how does the case stand ? Were the architects dissatisfied with the walls? They so declared at the time, they have persisted in it, and the owner acted upon their representation as to the fact. Was this dissatisfaction due to faulty or mistaken judgment? The contractors’ effort should have been to convince the architects of their mistake; failing in this their obligation under the contract was to submit to the decision. Was it due to dishonesty of purpose ? The remedy in such case must be against the architects, and not against the owner except as collusion can be shown between them. “ How could the misconduct of the chosen arbitrator deprive the defendants of a right secured by them by the contract to a right of exemption from liability to any suit upon it ? If the engineer undertook to act as umpire and fraudulently injure the plaintiff, he had a remedy by action against the guilty agent, and not by suit on the contract. He cannot punish the defendants for a fault of which they are innocent: ” Reynolds v. Caldwell, 51 Pa. 298.

Nothing we have said with respect to this contract, and the rights and obligations of the parties thereunder, is at variance with the views of the learned trial judge, except as to the operation of this reference clause. He held that the condemnation of the walls by the architects, would have given the owner the right to take possession of the building and complete it, except for the provision in the contract reserving to either party the right of appeal. We are of opinion that this clause in the contract has no applicability to the contention here, and that the rejection of the walls by the architects was final and conclusive. Notwithstanding all we have said, however, and wholly independent of the reference clause, the plaintiffs would still have the right to maintain an action on the contract, if they could show that the dissatisfaction expressed by the architects, was brought about through collusion between the latter and the owner, in order to disturb and defeat the plaintiff in the lawful exercise of their work. While the pleadings in the case define no such issue, yet considerable evidence was admitted which plaintiffs insist warrants an inference that the decision of the architects did not reflect their honest and impartial judgment, but the views and wishes of a dissatisfied owner. So far as we see, this evidence was admitted without objection as .to its relevancy under the pleadings, and it was therefore properly in the case. It would burden unduly this opinion to recite it all here. Briefly stated, it was contended that the evidence showed a substantial compliance of the contract by the plaintiffs; continued and unreasonable complaints by the owner with respect to the work from the time it was commenced ; an earlier effort on his part, not however persisted in, without sufficient warrant, to take possession of the uncompleted building; the presence of the architects at the building on several occasions while the walls were in the course of erection when they must have seen those things being done, which they afterwards asserted were departures from the specifications, and because of which they required the walls to be «removed, and yet allowed the plaintiffs to proceed with the work as though it were acceptable ; that finally, when they rejected the walls, it was after consultation with the owner, and the papéis they signed addressed to the plaintiffs in which they required the walls to be taken down were prepared in the office of defendant’s counsel. It was on this claim as to what the evidence, if believed, established, that it was submitted to the jury to determine — we quote from the charge by the court — “ "Whether the architects were in point of fact dissatisfied with the walls. Did they act in good faith when they said they were dissatisfied? Were they in truth and in fact satisfied, or did they simply voice the judgment of someone else, and not their own, when they said they were not satisfied ? ”

Admitting that there was evidence to establish each and all of the particular facts relied upon, the case falls short of meeting. the requirements. The alleged substantial compliance with the contract was very far from being an admitted fact; although on the issue the finding was for the plaintiff, yet the testimony in regard to it was so divergent that the finding of the jury would he an insufficient basis for an inference of bad faith in the architects. It was a subject upon which the expert witnesses, apparently of equal credit, differed "widely and irreconcilably. The dissatisfaction of the owner with the work, and his desire, if this be admitted, to complete it himself, is a circumstance which, if supported by other facts, would be eirtitled to some weight in the inquiry. The fact, if it be a fact, that the architects knew of the manner in which the work was being done; that they made no objection but allowed it to proceed until a large expenditure had been made, may reflect upon the competency of the architects; but unless it can be in some way related to some act of the defendant, it is without other significance. The mere fact that their final disapproval of the walls was put in writing in the office of the defendant’s counsel, does not of itself establish such relation. The evidence was wholly inadequate to support a verdict for the plaintiffs on this issue and, without more, the question ought not to have been submitted to the jury. We have here referred only to the salient features of the testimony on this branch of the case, but we have had regard to it all, after careful reading of it. Considered as a whole, we fail to see anything in it that would warrant even reasonable supposition of bad faith on the part of the architects. Without this on their part, neither persistent opposition by the owner to the contractors, nor his repeated and continued remonstrances and arguments addressed to the architects, could establish the combination and collusion necessary to avoid the finding of the latter. He had the undoubted right to address the architects, to call their attention to anything which he regarded as a deviation from the specifications, and use whatever proper arguments he could to convince them of the fact. So far as the evidence shows he went no further. The fact that there was coincidence of views between the owner and architects can certainly warrant no inference that it was brought about by unfair or dishonest influences or practices, even though supported by a verdict of a jury to the effect that there was substantial compliance of tbe contract.

It results from what we have said that defendant’s first specification of error — -that the court erred in declining to charge as requested in defendant’s seventh point, that under the evidence the verdict must be in favor of the defendant — must be sustained.

Judgment reversed.


author: Pee Curiam,

text:
    Fallon’s Estate.

      Will — Lost will — Probate—Revocation—Evidence—Presumption.
    Where a will was last seen in the possession of the testator, a presumption arises 'that it was destroyed by him, animo revocandi.
    A lost will can only be established by the testimony of two witnesses.
    The contents of a will cannot be established by one witness who is interested.
    Argued Feb. 7, 1906.
    Appeal, No. 12, Jan. T., 1906, by-Amy L. Fallon, from decree of O. O. Del. Co., reversing decree of Register of Wills in Estate of Christopher Fallon, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    From the record it appeared that Christopher Fallon died March 27, 1905, leaving a widow and four minor children. The widow claimed that the decedent had made a holographic will before the birth of any of the children giving all of his property to her and appointing her sole executrix and that he had made a new holographic will in exactly the same terms, after the birth of each child, the last one in September or October, 1895, and that this will continued unrevoked at his death, but could not be found.
    The only one. of the wills Avhich was discovered was a holographic one dated February 11, 1887, made after the birth of the first child. The widow presented her petition to the register of wills for the probate of the lost will dated September or October, 1895, claiming the produced Avill of 1887 to be identical with it except as to the date. The register admitted a copy of the lost Avill to probate and on appeal by the guardian of the minor children to the orphans’ court the decree of the register was reversed and the petition for probate dismissed.
    In lieu of a second witness to the execution of the last will the proponent offered evidence of a long settled plan of testamentary disposition of the decedent to leave his entire estate to her, manifested by the execution of five different wills all to the same effect, one folloAving the birth of each child ; the testimony of a witness who prepared a draft of a will in 1904 to the same effect; and that testator was methodical and careful in the discharge of all details of his business affairs, and that the testimony disclosed that he had within a few months of his death moved his office, and less than two years prior to his death removed his residence, as indicating a reason why the will might have been mislaid.
    Further facts appear in the opinion of the Supreme Court.

      Error assigned was decree reversing decree of register of wills admitting the will to probate.

      Henry Pleasants, for appellant.

      Erederio B. Calvert, for appellee.
    March 19, 1906:
   Pee Curiam,

Impressed with the sincerity of the belief both of appellant and her counsel in the justice of her claim, we have examined this case with a disposition to view it favorably. But we are obliged to agree with the court below that the testimony does not come up to the legal requirements of a second witness, and that to hold the will established would make a dangerous departure from the precedents under the settled rule.

The will made in 1895 was last seen in the possession of the testator. The presumption, therefore, arises that it was destroyed by him, animo revocandi: Deaves’s Estate, 140 Pa. 242; Stewart’s Estate, 149 Pa. 111. The presumption is strengthened by rather unusual testimony to testator’s methodical habits, tending to show the improbability of the will having been accidentally lost. . In 1904, the year before his death, he expressed his desire to Calvert to make a will, and in 1905 to his wife in the presence of Miss Rocap he repeated his wish rather urgently. The only fact tending to rebut the presumption is his apparent acquiescence in the reminder by his wife that he had a will, made after the birth of his youngest child. But “ after that ” according to the testimony of Miss Rocap, “ he tried to persuade Mrs. Fallon -to sit down and write a will for him, and she persuaded not, and left the room. All Mr. Fallon said was that he would like to make a will; then he would say, ‘ No, I won’t do it now, I will .just save my strength; ’ he had so much confidence of getting well that he tried to save his strength.” The repeated recurrence by him to the subject, never expressed in the form of a desire to make a “ new ” will but always to make “ a will ” tends to show that he did not consider that he was leaving an operative will but thought one necessary. The conflicting inferences that may be drawn from the testimony on this point prevent the circumstances from supplying the place of the second witness which the established rule requires.

But even if the existence of a will at the time of testator’s death should be conceded, the only proof of its contents is by one witness and she interested. The testimony as to the making and contents of previous wills, offered to show a settled plan of testamentary disposition, all comes from the same witness. The testimony of Calvert as to testator’s instructions for a will in 1904 distinctly excludes reference to any prior will and is confined to a prospective will which he desired to make. While tending to render the supposed contents of the will of 1895 probable, it is not proof of anything more than an unexecuted intent. However clear such intent be it is not enough.

Decree affirmed.


text:
    Scranton Gas and Water Company, Appellant, v. Scranton City.

      Municipalities — Streets—Gas and water companies — Damages—Police power — Eminent domain.

    The easement which a gas or water company has in the streets of a municipality, is subject to the superior right of the public both in the surface and the soil beneath the surface.
    Where a city changes the grade of a street in order to do away with a railroad gradé crossing, and a gas and water company is obliged to move its pipes from the street by reason of the change of grade, the company can recover no damages from the city for the injuries sustained.
    Argued Feb. 19, 1906.
    Appeal No. 173, Jan. T., 1905, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1903, No. 175, for defendant on case stated in suit of Scranton Gas and Water Company v. City of Scranton.
    .Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine liability of a city for injuries to the property of a gas and water company. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered judgment for defendant. Plaintiff appealed.

      JSrror assigned was in entering judgment for defendant.

      I. H. Burns, for appellant.
    There has been no attempt on the part of the state or municipality to exercise the police power in the construction of this viaduct, or in the adjustment of the resulting damages. Therefore there was nothing on which the court could act. Until the legislative department of our government, by some statute, ordinance or regulation, has attempted to exercise the police power there is nothing for a court to interpret or construe. The construction of viaducts and the general improvement of streets does not come within the province of the police power, because the conditions and regulations imposed as to these have been clearly defined and written out in our constitution and statutes: Philadelphia v. Scott, 81 Pa. 80; O’Connor v. Pittsburg, 18 Pa. 187; Walnut Street Bridge, 191 Pa. 153; Natural Gas Co. v. Water Co., 210 Pa. 177; Butchers’ Ice & Coal Co. v. Philadelphia, 156 Pa. 54; Chicago v. Taylor, 125 U. S. 161 (8 Sup. Ct. Repr. 820); Millvale Boro. v. Ry. Co., 131 Pa. 1; New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453 (25 Sup. Ct. Repr. 471); National Water Works Co. v. Kansas City, 28 Fed. Repr. 921; City of New Haven v. New Haven Water Co., 44 Conn. 105; Rockland Water Co. v. City of Rockland, 83 Maine, 267 (22 Atl. Repr. 166); Water Commissioners v. City of Hudson, 13 N. J. Eq. 420; Lansdowne Borough v. Water Co., 16 Pa. Superior Ct. 490.

      David J. Davis, city solicitor, with him S. B. Van Deusen, assistant city solicitor, for appellee.
    The powers and privileges conferred upon the gas and water company authorized them not only to occupy the public street, but to occupy private property as well, and provided for the settlement of damages in case private property was taken; but having preferred to occupy the public streets rather than private property, it seems to us conclusive that they occupied such streets subject to the power of the city to change the grade or to' make any other necessary municipal improvement: Carthage Village v. Frederick, 122 N. Y. 268 (25 N. E. Repr. 480); San Antonio v. San Antonio St. Ry. Co., 39 S. W. Repr. 136; Penna. R. R. Co. v. Riblet, 66 Pa. 164; Pittsburg, etc., R. R. Co. v. Ry. Co., 77 Pa. 173; Phila. v. Pass. R. R. Co., 3 Grant, 403; West Phila. Pass. Ry. Co. v. Phila., 10 Phila. 70; Frankford, etc., Pass. Ry. Co. v. Phila., 58 Pa. 119; Ridge Ave. Pass. Ry. Co. v. Phila., 181 Pa. 592; Charles River Bridge v. Warren Bridge, 36 U. S. 420.
    A gas company, empowered to lay its pipes in the streets of a city, takes the risk of their location, and may be required to make such changes as public convenience or security may require at its own expense: Matter of Deering, 93 N. Y. 361; Dillon on Munc. Corp. sec. 694; People ex rel. v. Gaslight Co., 38 Mich. 154; Bloomfield, etc., Gaslight Co. v. Calkins, 62 N. Y. 386; Columbus Gaslight, etc., Co. v. Columbus, 50 Ohio, 65 (33 N. E. Repr. 292); Wabash R. R. Co. v. City of Defiance, 167 U. S. 88 (17 Sup. Ct. Repr. 748); Louisville City Ry. Co. v. Louisville, 8 Bush (Ky.), 415; National Water Works Co. v. City of Kansas, 28 Fed. Repr. 921; Rafferty v. Central Traction Co., 147 Pa. 579; Kerlin Street, 12 Pa. Dist. Rep. 764; New Orleans Gas Light Co. v. Drainage Commission of New Orleans, 197 U. S. 453 (25 Sup. Ct. Repr. 471.)
    April 9, 1906:
   Opinion by

Mr. Justice Stewart,

When the city of Scranton undertook to construct by joint effort with the Delaware, Lackawanna & Western Railroad Company, a viaduct on West Lackawanna avenue from 7th to 9th streets over the tracks of the railroad company, for the purpose of avoiding a dangerous grade crossing, it was exercising a rightful authority. So much is admitted. It was contemplated that as a result of the improvement much adjacent private property would be injured, and the ordinance establishing the change provided that immediately upon its passage, the appointment of viewers to assess such damages should be applied for. The statutory proceeding for the ascertainment of damages in such cases was regularly followed. Among other claimants for compensation was the appellant company. Under legislative grant to occupy the streets, it had laid its pipes beneath the surface on Lackawanna avenue at the point where the viaduct was constructed, and had long maintained them there. The viaduct in no way interfered with them in place; but because of increased elevation of grade and solidity of the structure, it was no longer practicable, under the changed conditions, for the company to reach them for purposes of repair, and it became necessary to change the line at this point and conduct the pipes along several other streets, in order to make the required connections. This entailed considerable expense, and compensation for this was asked. The claim was disallowed by the viewers, and the appeal is from the decree confirming their report. The argument in support of the appeal is, that in entering upon this work the city was not acting under or by virtue of its police power, but in the exercise of its light of eminent domain, as shown by the original ordinance, and the fact that the statutory proceeding for ascertainment of damages for property injured was followed. Appellant insists that it was unjustly discriminated against in the proceeding, inasmuch as compensation was-allowed to others and refused as to it. The argument seems to concede that if what the city did was done in the exercise of its police power, the loss the company sustained is damnum absque injuria, for it asserts as a necessary incident to such power exemption from liability on account of its exercise when loss ensues. The present claim is urged on the ground that the proceeding was under the right of eminent domain; and it is contended that in such case, liability attaches for all injury done that is special and peculiar to the party complaining.

The right in cities and boroughs to improve and change streets for-public purposes is fundamental, and does not depend upon the use of any particular word or words in expressing it. In this case what was done by the city was clearly within what is known as police power, and it is wholly immaterial how it was denominated in the ordinance, or what the city authorities thought in regard to it. Nor does it affect the nature and character of the act, that in order to complete the scheme entered upon, the city called into exercise its right of eminent domain. There is no apparent reason, nor has any been suggested, why the one may not be made to supplement the other. This was not one of those extreme cases where exemption from liability follows the exercise of police power, as the tearing down of a dwelling house to' arrest a conflagration; what was done here was not done in a supreme' exigency to avoid an impending danger, but was. a permanent improvement deliberately entered upon, with a view to promote the general convenience of the public and their safety as well, in connection with a railroad crossing which had long been established, and which so far as could be known was to remain there indefinitely, as an obstruction to travel and an increasing source of public danger. For whatever injury was done to property by the necessary change of grade in connection therewith, the city was clearly liable, and the means of enforcing such liability was the statutory proceeding for assessment of damages, notwithstanding all resulted from the exercise of police power. Appellant’s claim has not the same consideration to support it. So far as property rights are concerned, there is but slight correspondence between the easement enjoyed by appellant company in the streets of the city, and the rights of the abutting owners in their several properties. The distinctions between the two are too obvious for discussion. It is enough to say with respect to the former, that it is held and enjoyed subject always to the earlier and superior rights of the public in the streets of' the municipality. Among these is the power to regulate and control the streets in the interest of public health and safety. When these demand a change in the mode and manner of the enjoyment of the easement or privilege, and that demand is expressed through the municipal authority, in the exercise of reasonable discretion, that change must be made. Calling the legislative grant of privilege to use the streets a contract does not avoid the conditions on which the privilege is to be exercised. Whether such limitation or conditions be expressed in the grant or not is immaterial, for, as said in Butchers’ Union Slaughter House Co. v. Crescent City Live Stock Landing Co., 111 U. S. 746, the power to control and regulate the streets so as to protect the public health, is one that cannot be bargained away by legislative or municipal grant. The power to control them for the protection of public safety, if not the same, stands on equally high ground. All authorities agree that such right is both paramount and inalienable. Nor is the right limited to the control of the mere surface; it extends to the soil beneath, to whatever extent it may be required in aid of such purposes as fall within the municipal function, in connection with the health and safety of the public: Water Commissioners of Jersey City v. Hudson City, 13 N. J. Eq. 420. The doctrine here asserted accords with that expressed by our own dourt in Rafferty v. Central Traction Co., 147 Pa. 579. It is there said: “Iffor any reason, such a change of grade by the municipal authorities, or to get helow the frost line, the pipes and mains are required to be lowered, it certainly has never been supposed that the owners would have a right to recover damages against the municipality or other authority, on account of such lowering of pipes and mains.” It is unnecessary to cite other authority to show that no liability results to the municipality, for the disturbance of a gas or water company’s pipes in the public streets when made necessary by public consideration. The difference between the disturbance indicated by the court in the case just referred to, and that in the present case is one of degree only, measured by the expense required to make the change; the principle in both is the same. It is the reasonable discretion of the municipal authorities that determines the extent of the change in the streets required to meet public necessities ; and to that change whatever it may be, short of an abrogation or annulment of the company’s right to maintain its system of pipes in the public streets, the company must conform at its own cost and expense. The former results from the inherent right of the municipality to the exercise of police power, and the latter from the subordinated rights of the gas company in the public streets under its original grant of privilege, to those of the public.

The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Commonwealth to use, Appellant, v. Schadt.

      Public officers — Bonds—Commissions on liquor license fees — County treasurer — Actions.
    No suit can be brought by a city in the name of the commonwealth to the city’s use, on a bond given by a county treasurer for the protection of the commonwealth, where the object of the suit is to recover from the county treasurer commissions on liquor license fees, which are the property of the city. The Act of June 14, 1836, P. L. 637, has no application in such a case.
    Argued Feb. 21, 1906.
    Appeal, No. 25, Jan. T., 1906, by-plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1905, No. 19, on case tried’by the court without a jury in suit of Commonwealth to use of City of Scranton v. Charles H. Schadt, August Robinson, O. S. Johnson and E. N. Willard.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond. Before Edwards, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The case was tried by the court without a jury.

      Error assigned was in entering judgment for defeJidant.

      I. H. Burns, with him David J. Davis, city solicitor, and H. R. Van Deusen, assistant city solicitor, for appellant.
    This suit was properly brought on the commonwealth bond: Lehigh County v. Gossler, 24 Pa. Superior Ct. 406; Com. v. Phila. County, 193 Pa. 236; Lancaster County v. Hershey, 205 Pa. 343.

      M. J. Martin, of O'Brien & Martin, and Everett Warren, of Willard, Warren & Knapp, for appellee.
    The judgment of the court was right under the following authorities: Guaranty Trust, etc., Co. v. Powell, 150 Pa. 16; Com. v. Philadelphia County, 193 Pa. 236; Philadelphia v. Stewart, 195 Pa. 309; City of Scranton v. Durkin, 109 Pa. 138; Com. v. Toms, 45 Pa. 408; Lancaster v. Frescoln, 192 Pa. 452; Com. v. Hershey, 200 Pa. 306; Evans v. Erie County, 66 Pa. 222.

      April 9, 1906:
   Opinion by

Mr. Justice Elkin,

This is an action brought to recover from a county treasurer certain commissions on liquor license moneys, and is instituted on a bond given for the protection of the common-wealth'. The suit was commenced more than six years after the expiration of the term of office of the defendant Schadt. There is no doubt that the commissions belong to the city, and not to the county treasurer. The court below properly so held under the authority of our cases: County of Schuylkill v. Pepper, 182 Pa. 13; Pittsburg v. Anderson, 194 Pa. 172.

The question to be determined oh this appeal is whether a suit on a bond given for the protection of the commonwealth can be maintained by appellant in order to recover moneys in which the state has no interest. The learned court below held that the commonwealth had no legal claim to or interest in the license moneys collected by the county treasurer, that these moneys belonged exclusively to the city of Scranton, and that an action to recover same could not be brought on the commonwealth’s bond. This is the correct view of the law and the practice in such cases. The state had no interest in the license moneys, and an action cannot be maintained in its name as the legal plaintiff to the use of the city. Commonwealth to use, etc., v. County of Philadelphia, 193 Pa. 236; Philadelphia v. Stewart, 195 Pa. 309. In such eases, the right of the legal plaintiff is in issue, and the equitable plaintiff must recover if at all through the legal right: Guaranty Trust, etc., Company v. Powell, 150 Pa. 16.

These authorities rule the case in favor of appellee, but the learned counsel fox appellant contend that the Act of 1836, P. L. 639, applies, and is intended to cover this and other similar cases. It is argued that this act applies not only where the liabilities of public officers to the state are involved, but also where there are liabilities to others through the direction of the state. It is contended that liquor licenses are granted by and through the authority of the state, and that the moneys arising therefrom primarily belong to the state, the city only receiving the same as a gratuity, and that the legal right of action is in the commonwealth. The answer to this position is found in Pittsburg v. Anderson, supra. It is true the language of the act of 1836 is broad and comprehensive. It in-eludes every bond and obligation which shall be" given to the commonwealth by any public officer. It does not follow, however, that persons or municipalities having no rights or interests to be protected by the bond can sue out a writ thereon in the name of the commonwealth. This thought is plainly indicated in the second paragraph, wherein it is provided that the parties suing out the writ shall set forth in their declaration the breaches of the condition which shall have been to their particular injury. In other words, the plaintiff who declares on such a bond must set out the breach of the condition on which he relies to recover. This brings us to the inquiry, Was there any breach of the bond to the injury of the equitable plaintiff in this case ? The condition of the bond is that the treasurer “ shall well and truly and faithfully discharge all the duties enjoined upon him by law in behalf of the commonwealth of Pennsylvania, and shall make payment according to law of all moneys received by him for the use of the said commonwealth.” The bond in express terms is conditioned for the protection of the commonwealth, in so far as the treasurer is enjoined by law to discharge a duty to the state and to make payment of all moneys received by him for its use. There has been no breach of either of these conditions. The duty of paying over liquor license moneys to the city of Scranton is not enjoined in behalf of the commonwealth. It is conceded in the case stated that the defendant Schadt paid over to the commonwealth all moneys collected for its use and for which he was accountable to it. There was, therefore, no breach of the bond, and consequently no injury to the equitable plaintiff about which it can complain.

These being our views of the law, it will not he necessary to discuss other questions raised by the assignments of error.

Judgment affirmed.