text:
    Burgettstown National Bank v. Nill, Appellant.

      Promissory notes — Accommodation indorser — protest—Waiver of protest— Consideration.

      ' Where the indorser on a promissory note, eighteen months after its maturity, with knowledge that no demand for the payment of it had been made, and no notice of its dishonor had been given, without any new consideration, indorses on the note a waiver of protest, he will be bound by the waiver, and liable on the note.
    From the nature of an indorser’s contract a new consideration is not required to support a waiver of protest before or after the maturity of the paper.

      Affidavit of defense — Practice, C. P. — Fraud—Promissory notes — Waiver of protest — Indorser.
    Where the indorser on a promissory note seeks to avoid the effect of a waiver of protest signed by himself, on the ground that certain misrepresentations were made to him at the time he signed the waiver, he must go further and avor in his affidavit of defense that he was induced to sign the waiver by such misrepresentations.
    Argued Oct. 27,1905.
    Appeal, No. 124, Oct. T., 1905, by defendant, from order of C. P. No. 2, Allegheny Co., April T., 1905, No. 132, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Burgettstown National Bank v. Jacob P. Nill.
    Before Mitchell, C. J., Fell, B rown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Young, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      A. C. Johnston, with him George P. Murray, for appellant.—
    A subsequent promise to pay will not bind an indorser who has been released by lack of notice, unless supported by a consideration : Sebree Deposit Bank v. Moreland, 96 Ky. 150 (28 S. W. Repr. 158).
    A promise to pay in ignorance of the facts which discharge is of no effect: Tickner v. Roberts, 11 La. 14; Hunt v. Wadleigh, 26 Me. 271; Norris v. Ward, 59 N. H. 487; Hunter v. Hook, 64 Barb. 468; Lilly v. Petteway, 73 N. C. 358 ; Glenn v. Thistle, 1 Rob. (La.) 572; Low v. Howard, 64 Mass. 159; Spurlock v. Union Bank, 23 Tenn. 385; Williams v. Union Bank of Tennessee, 56 Tenn. 441; Walker v. Rogers, 40 Ill. 278; Morgan v. Peet, 32 Ill. 281; Ballin v. Betcke, 11 Iowa, 204; Harris v. Allnutt, 12 La. 465; Glaser v. Rounds, 16 R. I. 235 (14 Atl. Repr. 863).
    The burden is on the plaintiff to show the promise was made with full knowledge of the laches: Edwards v. Tandy, 36 N. H. 540 ; Newberry v. Trowbridge, 13 Mich. 263 ; White v. Keith, 97 Ala. 668 (12 So. Repr. 611).

      Clarence M. Cooke, with him O. R. Cooke, for appellee.
    No fraud or misrepresentation is alleged in the affidavit of defense as a basis for the admission of evidence of an oral agreement to vary the terms of the written contract sued upon. If the waiver was executed in pursuance of a contemporaneous agreement to mislead or defraud the bank examiner, this agreement was fraudulent and evidence of it would be inadmissible under the principle “ nemo allegans suam terpitudinem audiendus est: Evans v. Dravo, 24 Pa. 62; Hendrickson v. Evans, 25 Pa. 441; Williams v. Williams, 34 Pa. 312; Gill v. Henry, 95 Pa. 388; Bredin’s Appeal, 92 Pa. 241.
    No further consideration is required to make the waiver of protest or demand of payment valid than the consideration passed at the time the note was executed : Uhler v. Farmers’ Nat. Bank of Bucks Co., 64 Pa. 406; Sherer v. Easton Bank, 33 Pa. 134; Oxnard v. Varnum, 111 Pa. 193 ; Morgan V; Wolstencroft, 1 Pa. Superior Ct. 13; Ross v. Hurd, 71 N. Y. 14.
    The duty of demand and notice in order to hold an indorser is not a part of the contract, but a step in the legal remedy that may be waived at any time: Barclay v. Weaver, 19 Pa. 396.
    Promises to pay, after maturity, or acknowledgments of continued liability and obligation to pay, with knowledge that the usual steps of demand, protest and notice were not duly taken, are almost universally regarded as absolutely fixing the liability of the drawer or indorser making them, and he will not afterwards be permitted to set up the defense that the demand or protest was not made in point of fact, or the notice not given: Daniel on Negotiable Instruments, vol. 2, p. 178; Ross v. Hurd, 71 N. Y. 14; Moyer & Brother’s Appeal, 87 Pa. 129; Oxnard v. Varnum, 111 Pa. 193; Annville National Bank v. Kettering, 106 Pa. 531.
    January 2, 1906:
   Opinion by

Mr. Justice Mestrezat,

Jacob P. Nill, the defendant, became an accommodation indorser on a promissory note, dated July 1, 1902, for $5,000 which was signed by Homer H. Swaney as maker and was payable to Nill’s order at the Burgettstown National Bank. The note recited that the maker had deposited therewith as collateral security to the holder, six one thousand dollar bonds of the Pacific Steel Company of the market value of $6,000, with the right, on certain contingencies, in the holder of the note to call for additional security and to sell the security without notice on failure of the maker to pay the note or furnish additional collateral when required. The note was indorsed in blank by Nill, and Swaney had it. discounted by the Burgettstown National Bank, the plaintiff, on or about the day it was executed. There is also indorsed on the note the following: “ I hereby waive protest or demand of payment. Jacob P. Kill.” The note was duly presented for payment at the bank on September 1, 1902, but payment was refused for want of funds. On December 80, 1904, the note not having been paid, the plaintiff sold the six Pacific Steel Company bonds, held as collateral security for its payment, for $6.00 and applied the sum as part payment of the costs of sale.

This action was brought January 17, 1905, against JSTill to recover the debt and interest due on the note and the residue of the costs accruing on the sale of the stock as authorized by the note. The defendant filed an affidavit of defense, the material part of which is as follows : “ that of the failure of the said Swaney to pay said note affiant had no notice until some time about March or April, 1904, when a man unknown to affiant, but who represented himself as A. PL Kerr, cashier of the plaintiff bank in this case, came to affiant’s place of business in the city of McKeesport and induced affiant to waive protest or demand of payment of said note, by a writing on the back thereof, the said person so representing himself declaring to affiant that the note in the form in which it then was, not having been protested and no notice of dishonor having been given to affiant or demand made upon affiant for the payment thereof, was objected to by the bank examiner, and that the plaintiff relied upon the maker thereof and the collateral security held by them for payment thereof; that for such waiver of protest or demand of payment signed by affiant there was no consideration given, and that any forbearance on the part of plaintiff to Homer H. Swaney, maker of said note, was not given at the request of affiant, but without affiant's knowledge, as affiant believed the note on which suit is brought in this case was paid, until informed to the contrary by the person aforesaid, who represented himself as A. H. Kerr, as aforesaid.”

The plaintiff took a rule for judgment for want of a sufficient affidavit of defense which the court made absolute and judgment was entered against the defendant. He has taken this appeal and, as stated in his printed brief, “ the sole question is, did the waiver of protest made eighteen months after the maturity of the note, and under the circumstances sworn to by the appellant relate back to the date of the maturity of the note and bind him as indorser as though he had received due notice of dishonor.”

We think this question must be answered in the affirmative and that, therefore, there was no error in making’ the rule absolute and entering judgment against the defendant. There is a clear admission in the affidavit that the defendant knew the laches of the plaintiff before he signed the waiver of protest. The plaintiff’s cashier called on the defendant in March or April, 1904, and secured his signature to the writing on the back of the note waiving protest. Until that time, the defendant says he had no notice that Swaney, the maker, had not paid the note. He was then told, as averred in the affidavit, “ that the note in the form in which it then was, not having been protested and no notice of dishonor having been given to affiant or demand made upon affiant for the payment thereof was objected to by the bank examiner.” The defendant therefore knew before he signed the waiver of protest that no demand for payment had been made and that no notice of the dishonor of the note had been given him as the indorser. Hence he had full knowledge of the laches of th.e holder of the note when he waived protest of the instrument. Under these facts, which are disclosed by the affidavit of defense, the defendant could waive the laches of the holder in making demand for payment and in giving notice of the dishonor of the note : 4 Am. & Eng. Ency. of Law (2d ed.), 458 ; Day v. Ridgway, 17 Pa. 303; Annville National Bank v. Kettering, 106 Pa. 531. “An indorser is entitled to notice of protest of a negotiable note,” says Mr. Justice Coulter in delivering the opinion in Day v. Ridgway, “ because the contract is that the maker will pay at maturity; and the strict punctuality, which is the life of the commercial law, authorizes the indorser to presume that he has paid, in the absence of any notice to the contrary. But the right to receive notice in order to make him liable, like any other right, may be waived by the indorser.” In the Kettering case, Sterrett, J., delivering the opinion says (p. 533) : “ No principle of the law merchant is better settled than that demand and notice of the nonpayment of a negotiable note may be waived by the indorser, either orally or in writing, or by acts clearly calculated to mislead tbe holder and prevent him from treating the note as he otherwise would, but there is some diversity of opinion as to what constitutes a waiver of these necessary prerequisites to charge the indorser.”

The indorser may waive protest after the date of maturity of the note with like effect as if done prior to that date : Barclay v. Weaver, 19 Pa. 396; Hoadley v. Bliss, 9 Ga. 303; Sheldon v. Horton (N. Y.), 3 Am. Rep. 669; Ross v. Hurd (N. Y.), 27 Am. Rep. 1; Rindge v. Kimball, 124 Mass. 209; 1 Parsons on Notes and Bills, 594; 2 Randolph on Commercial Paper, sec. 1456. In Barclay v. Weaver, this court said (p. 401): “ It seems, therefore, that the duty of demand and notice, in order to hold an indorser, is not a part of the contract, but a step in the legal remedy, that may be waived at any time in accordance with the maxim quilibet potest renunciare juri pro se introducto.” In some jurisdictions it is held that the waiver when made after the maturity of the note must be with full knowledge of the indorser’s laches and that it requires a new consideration. But it is settled by numerous American authorities that a waiver of protest need not be supported by a new consideration: Neal v. Wood, 23 Ind. 523; Hughes v. Bowen, 15 Iowa, 446; Cheshire v. Taylor, 29 Iowa, 492; Sheldon v. Horton (N. Y.), 3 Am. Rep. 669 ; Tebbetts v. Dowd, 23 Wend. 379; Wall v. Bry, 1 La. Ann. 312; Lane v. Steward, 20 Me. 98. We know of no decision of this court holding that such waiver must be supported by a new consideration. The contrary rule, however, is distinctly recognized in Barclay v. Weaver, 19 Pa. 396. In that case Mr. Justice Lowbie, in construing the contract of an indorser of negotiable paper, says (p. 400) : “ Tbe most, therefore, that can be said of an indorsement of negotiable paper is, that from it there is implied a contract to pay, on condition of the usual demand and notice; and that this implication is liable to be changed on the appearance of circumstances inconsistent with it, whether those circumstances be shown orally or in writing. But it may well be questioned whether the condition of demand and notice is truly part of the contract, or only a step in the legal remedy upon it. If it is part of the contract, how can it be effectually dispensed with without a new contract for a sufficient consideration, especially after the maturity of the note? Yet there are decisions without number that a waiver of it during the currency, or after the maturity of the note, will save from the consequences of its omission. This could not be if it was a condition of the contract, for then the omission of it would discharge the indorser both morally and legally; and no new promise afterwards, even with full knowledge of the facts, could be of any validity. If, however, an indorsement without other circumstances be regarded as an implied contract to pay, provided the holder use such diligence that the indorser loses nothing by his' negligence or indulgence,- then it accords with all these decisions. Then the law, and not the contract, declares the usual demand and notice to be in all cases conclusive, and in some cases necessary evidence of such diligence. ... It (the law), therefore, is perfectly consistent in declaring that an indorser is bound by a new promise, after he knows of the omission of demand and notice, for this is an admission that he was not entitled to it, or has not suffered for want of it. It declares demand and notice necessary, in some cases, to save the indorser from loss and it declares that his own admission may be submitted for them.” It is manifest, therefore, that, from the nature of the indorser’s contract, a new consideration is not required to support a waiver of protest before or after maturity of the paper.

There is no merit in the suggestion of appellant that the Avaiver of protest was induced or secured by the representation of the plaintiff’s cashier that the bank relied for payment of the note upon the maker and the collateral security held by it. If the defendant intended to make such an averment in his affidavit, he signally failed. A declaration to. that effect, the affidavit avers, was made, but the affidavit does not state that it induced the defendant to sign the Avaiver of protest. If the defendant desired to invalidate his waiver of protest on the ground that it was procured by fraud, he was required to aver the fact clearly and explicitly in his affidavit of defense and not leave it to be inferred by the statements in the affidavit. What is not directly and explicitly averred in an affidavit of defense will be taken as not existing and, hence, as insufficient to prevent judgment.

The assignments of error are overruled and the judgment of the court below is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elion,

license: Public Domain

text:
    Margo v. Pennsylvania Railroad Company, Appellant,
    (No. 1).

      Negligence — Railroads—Passenger—Alighting from train — Custom..
    In an action against a railroad company to recover damages for the death of plaintiff’s husband, occurring while as a passenger he was alighting from a train, the plaintiff is not entitled to recover where the evidence shows that the train was stopped for a proper railroad purpose at a point about half a mile from the terminal station where the passengers were to change cars, that at this point there were numerous tracks, and within the yard limits; that the deceased without any invitation, or notice from the trainmen, and solely for his own convenience, alighted from the side of the train opposite to where the trainmen were standing, and was thrown under the wheels of the car by the starting of the train, and killed.
    In such a case an offer to show a custom of the railroad company to stop its trains at the place of accident for general railroad purposes, and that when trains so stopped passengers frequently got off and on, is inadmissible, where there is no offer to show that the deceased had knowledge of such custom.
    When a custom is set up to assert a right or justify an act, the party relying on the custom must show that he had knowledge of it.
    Argued Oct. 30, 1905.
    Appeal, No. 65, Oct. T., 1905, by-defendant, from judgment of C. P. Cambria Co., June T., 1904, No. 284, on verdict for plaintiff in case of Annie Margo v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $2,652.00. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.
    H. W. Storey, for appellant.
    Where a safe and convenient means of ingress and egress to and from the trains has (been provided upon one side of the track, the company has, in this particular, discharged its whole duty to passengers, and where a passenger alighting on the opposite side is injured by falling into an unguarded excavation, he cannot recover for his injuries : Drake v. Pennsylvania Railroad Company, 137 Pa. 352 ; Penna. R. R. Co. v. Zebe, 33 Pa. 318; Ferguson v. Traction Co., 9 Pa. C. C. Rep. 147 ; Kilpatrick v. Penna. R. R. Co., 140 Pa. 502; Brown v. Barnes, 151 Pa. 562; N. Y., L. E. & W. R. R. Co. v. Enches, 127 Pa. 316.
    Custom may be sufficient to control a contract, if there is a uniform, well-established, well-known custom which has continued for so long a time and so uniformly that everybody contracting must be presumed to know that there is such a custom: Corcoran v. Chess, 131 Pa. 356; Cope v. Dodd, 13 Pa. 33; Jordan v. Meredith, 3 Yeates, 318.

      P. J. Little, for appellee.
    It is the duty of the railroad company to stop its trains at its stations, or at the places where it usually stops, a reasonable time to permit its passengsrs to alight when the car is standing at rest: Penna. R. R. Co. v. Kilgore, 32 Pa. 292; Penna. R. R. Co. v. Lyons, 129 Pa. 113; Farr v. Phila. & Reading Ry. Co., 24 Pa. Superior Ct. 332; Leggett v. R. R. Co., 143 Pa. 39.
    January 2,1906 :
   Opinion by

Mr. Justice Elion,

The plaintiff, with her husband, Michael Margo, in company with other companions, were returning from a “point on the Cambria and Clearfield division to a place near Kittanning point on the main line of the defendant company. It was necessary for these passengers to change cars at Cresson station in order to make the proper connections to their place of destination. Two special cars were attached to the train to be delivered on the main line. The conductor, for the purpose of securing orders relating to the delivery of these special cars, stopped the train at the office of the superintendent a half mile east of the' station, and while awaiting orders at that place, the plaintiff, her husband and their companions, got off the coaches in which they were riding on the south side of the track, opposite to the side where the trainmen were standing, without notice,of their intention to get off. The starting of the train jolted or jarred the husband, who was the last of the party to alight, as he was getting off the steps leading from the platform, and he fell under or near the wheels of the car, receiving injuries resulting in his death. It is clear from the testimony that the husband of plaintiff knew the train had not reached Cresson station and that he attempted to get off at the place of the accident for his own convenience without being misled by any notice or act of the trainmen. The question therefore arises whether under these circumstances, such negligence by the defendant was established, as to permit a recovery in this action. The deceased husband undertook to get off the train while it had temporarily stopped for the purpose mentioned, at a place where there was no station, and where no provision had been made for taking on or letting off passengers. It was nearly a half mile distant from the station to which the deceased as well as all other passengers on the train were going. It was a dangerous place. It was within the yard limit where shifting engines and trains were constantly moving about. Six tracks had to be crossed before reaching the public highway and it not being intended for the accommodation of passengers no crossings or other safeguards were provided. The tickets called for Cresson station, and the conductor and brakemen had a right to presume that passengers would remain in the cars until the train reached and stopped at the station. The testimony does not show, nor tend to show, that the trainmen knew these passengers intended to get off at that place, or that they saw them at the time they undertook to alight. Under these circumstances, about which there is no dispute, the deceased must bo held to have assumed any risk incident to his alighting from the train. It is argued that it was the duty of the defendant company to see either that the passengers got off the train safely at that point, or to prevent them from getting off, and if it failed in the performance of its alleged duty in either respect, it can be held liable in damages for injuries resulting therefrom. This is not the rule.

In Penna. Railroad Co. v. Zebe, 33 Pa. 318, Mr. Justice Thompson, in discussing the rights of passengers in attempting to get off a train in a manner not provided by the company, said: “ The abstract question of their right to do so is one thing and need not be disputed; but the liability of the company by reason of their so doing is quite another thing. It was not negligence on the part of the company that they did not by force or barriers prevent the passengers from leaving the train on the wrong side.”

If it is not the duty of a railroad company to prevent passengers from getting off at the wrong side at a regular station it is less its duty to prevent their getting off not only at the wrong side but at the wrong place, and not intended as a stopping place for passengers.

In Victor v. Penna. Railroad Co., 164 Pa. 195, Mr. Justice Fell said: “ The train was stopped in the cut before reaching the station by the engineer for reasons that were wise and under the rules of the company imperative. It was not anticipated by the conductor or brakeman, nor was the reason for it at the time understood by them. They had not announced that the next stop would be Stewart, but that the next station was Stewart, and while they knew that the plaintiff intended to leave the train they had no reason to expect that she would get off until it stopped.”

The facts of that case were more favorable to the plaintiff in this respect than are those of the one at bar. In that case prior to the stopping of the train the brakeman had announced, “ the next station is Stewart,” and, for sufficient reasons, the train temporarily stopped before reaching the station, the plaintiff being injured in attempting to get off. The plaintiff relied on the notice of the brakeman that the next station was Stewart, where she intended to get off, and claimed to have been misled by this announcement. Notwithstanding these facts it was held there could be no recovery.

In the present case it is not contended that Cresson station had been announced, or that the deceased was misled by any notice or acts of the trainmen. On the other hand, the undisputed evidence is that the deceased knew he had not reached Cresson station, but for his own convenience and because his companions and himself desired to get something to eat at the town of Cresson, he attempted to leave the train while it was temporarily stopped. In the light of our authorities, it is difficult to see under what theory a recovery can be permitted under the facts of this case. It is not denied that where passengers get on and off a train at proper places the railroad company owes them the duty of providing safe and convenient approaoh.es to the train, and it is conceded that under such circumstances it is the duty of the railroad company to stop the train sufficiently long to permit passengers to alight safely. These questions, however, do not arise under the facts of the present case.

The learned court below held, and the counsel for appellee argues here, inasmuch as some evidence was offered relating to a custom of the defendant company to stop its trains at the place of accident for general railroad purposes, and when the trains were so stopped, passengers frequently got off and on, it was a question for the jury to determine whether the defendant was negligent in this case.

It is a sufficient answer to say that the offer of evidence to establish a custom without offering to show that the deceased had knowledge of such custom is inadmissible. When a custom is set up to assert a right or justify an act, the party relying on the custom must show he had knowledge of it: Godcharles v. Wigeman, 113 Pa. 431.

In the present case the facts are undisputed that the plaintiff, her husband and their companions had no knowledge of any such alleged custom, and therefore could not have been misled by it. They had never been at the place except on the previous day. They were not familiar with any custom in reference to getting on and off trains at this or any other point on that division. They knew where the station was located because on the day prior they had changed cars at the station on their way to visit friends. On the day of the accident they were returning by the same route traveled the day before. It is not denied, and could not be, under the evidence, that they knew they were not at the station, and do not claim to have given notice of their intention to get off at that place, or that they had any knowledge of a custom which permitted them to get off at that point, and therefore it is idle to contend that the deceased was misled by the so-called custom.

There are several assignments relating to the contributory negligence of deceased and other grounds of reversible error, the consideration of which is unnecessary, for the reason that what has already been said is fatal to the plaintiff’s case.

Judgment reversed.


author: Mr. Justice Elkin,

text:
    Margo v. Pennsylvania Railroad Company, Appellant,
    (No. 2).

      Railroads — Execution—Exempt property.

    The law does not permit the seizure and sale on execution of the.property of a railroad company necessary to enable it to perform its duties to the public.
    Railroad ties, rails, lumber, pipe and other personal property owned by a railroad company, and used for repairs of bridges, tracks, sidings, and for other like emergency purposes, cannot be levied upon and sold under an ordinary writ of execution.
    Argued Oct. 30, 1905.
    Appeal, No. 145, Oct. T., 1905, by defendant, from orders of C. P. Cambria Co., March T., 1905, No. 82, discharging rules to set aside sale of personal property in case of Annie Margo v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rules to set aside sale of personal property.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were orders discharging rules to set aside sale of personal property.

      H. W. Storey, for appellant.
    Property of a quasi-public corporation that is essential to the performance of its duties to the public cannot be taken in execution and sold under a judgment against it without express statutory provision to that effect: Youngman v. R. R. Co., 65 Pa. 278; Foster v. Fowler, 60 Pa. 27; Covey v. R. R. Co., 3 Phila. 173; Susquehanna Canal Co. v. Bonham, 9 W. & S. 27; Boyd’s Appeal, 15 Atl. Repr. 736; Bank v. Tanning Co., 170 Pa. 1; Mausel v. Ry. Co., 171 Pa. 606; Bell v. Wood, 181 Pa. 175 ; Longstreth v. R. R. Co., 11 W. N. C. 309.

      P. J. Little, for appellee.
    The courts have large discretionary powers over their executions: Newhart v. Wolfe, 2 Pennypacker, 295; Gamble v. Woods, 53 Pa. 158.

      January 2, 1906:
   Opinion by

Mr. Justice Elkin,

The plaintiff recovered a verdict in the court below in an action of trespass for injuries resulting in the death of her husband. On February 10,1905, after a new trial had been refused, judgment was entered on the verdict. On March 4, a fieri facias was issued thereon returnable the first Monday of June following. A levy was then made on some personal property in the office of the superintendent of the defendant company. On March 13, the defendant took an appeal to the Supreme Court. On the following day the levy was stricken off by order of the court. On May 22, another levy was made on the personal property in and around the superintendent’s office. On the same day a levy was also made on seven separate parcels of land, which were formerly a part of the right of way of the old portage road, and notice was served on defendant that inquisition proceedings would be held thereon June 5. The defendant then presented a petition asking that the sale of the personal property be set aside on the ground that the writ was invalid. On the return day of the writ, the sheriff made another levy on the railroad ties, rails, lumber and other materials used by the defendant company for emergency purposes, and advertised the same to be sold on June 22. On June 14, defendant presented a petition asking that the levy on the personal property and the inquisition proceedings on real estate be set aside. A rule to show cause was granted returnable June 19, at which time testimony was taken and the court discharged the rule. Thereupon the sheriff again advertised the sale of the personal property to take place July 6. On July 3, on petition to the Supreme Court, a rule to show cause why the appeal when taken should not be a supersedeas was granted, and an order was made staying the proposed sale and all other proceedings, the rule being made returnable to the western district October 14, 1905. On July 5, this appeal was taken from the orders of the court below as above indicated.

A little forbearance and professional courtesy, which should always be shown by members of the bar to each other, would have saved this vexed and complicated record. The fieri facias was issued a few days before the appeal was taken, without notice to the defendant or its counsel, and a levy was made on certain personal property, but on the day following the appeal this levy was stricken off by the court. Notwithstanding that the appeal was pending counsel for plaintiff caused the sheriff to make a new levy and proceed to a sale thereon for the purpose of satisfying the judgment appealed from. It is contended that his right to thus proceed is justified by the Act of May 19, 1897, P. L. 67, relating to appeals to the Supreme and Superior Courts, wherein it is provided that an appeal shall not be a supersedeas to an execution issued on a judgment unless taken and perfected within three weeks from the entry of the judgment. More than three weeks elapsed from the entry of the judgment until the appeal was taken. Counsel for defendant within a few days from' the time he had notice of the entry of the judgment took an appeal and proceeded at once to perfect it. He has been diligent in resisting the claims of the plaintiff at every stage of the proceedings since that time. This record discloses a somewhat anomalous situation. The plaintiff has caused a fieri facias to be issued, levy to be made, and the sheriff has actually sold personal property belonging to the defendant in partial satisfaction of the judgment entered in the court below, while the validity of that judgment was still pending in the Supreme Court. This court at No. 65, ■ October Term, 1905, reversed the judgment, and as the record now stands there is no judgment to support an execution. It would have been wiser for the learned counsel for appellee to have waited the final determination of the questions involved on the appeal. .

Another question has been raised by tins appeal, which it is necessary to consider. The levy of June 5, was made on railroad ties, rails, lumber, water pipe, iron pipe and other personal property which the defendant alleges is used for emergency purposes. It is contended that this property is exempt from levy and sale under the ordinary writ of fi. fa. On grounds of public policy the law does not permit the seizure and sale on execution of the property of a railroad company necessary to enable it to perform its duties to the public. This is the settled rule of our cases: Foster v. Fowler, 60 Pa. 27; Youngman v. Railroad Co., 65 Pa. 278; Mausel v. Railway Co., 171 Pa. 606; Bell v. Wood, 181 Pa. 175.

In a number of cases it has been held that property essential and necessary to the existence'of a railroad company and in actual use cannot be seized and sold under an ordinary writ of fieri facias. In such cases the special writ provided by the Act-of April 7, 1870, P. L. 58, is the proper remedy. It has also been held that property, real or personal, necessary to the exercise of a public franchise, is to be regarded as part thereof, and is not subject to execution by the ordinary writ: Bank v. Tanning Co., 170 Pa. 1.

The testimony taken on the rule in the court below clearly shows that the materials levied on were all intended to be used for emergency purposes; that it was necessary to keep in stock a large amount of these materials in order to ensure the proper maintenance and operation of the railroad; and that the materials on hand were not more than were necessary for these purposes. No evidence was offered in contradiction of the testimony of the witnesses produced by the defendant. Their testimony stands unimpeached. It clearly established the fact that the materials levied upon were used for repairs of bridges, tracks, sidings, and other like emergency purposes, wherein the very highest standard of care is required in the discharge of the defendant’s duties to the public.

The learned court was in error in disregarding the testimony offered and drawing its own conclusions that the materials levied on did not hinder the defendant in the performance of those acts authorized under its charter.

The order of the court of July 19, 1905, discharging the rule to show cause why the levy and inquisition should not be get aside, is reversed, and it is ordered that a writ of restitution be issued by the court below for the property sold.


author: Mr. Justice Stewabt,

text:
    Estep, Appellant, v. Webster Coal and Coke Company
    (No. 1).

      Negligence — Railroads—Infant of tender years — Nonsuit.
    In an action against a coal company to recover damages for injuries to a child two years of age, struck by an electric car operated by the defendant, a nonsuit is property entered where it appears that the accident occurred at a point 200 yards from a public crossing on ground owned by the defendant; that the car was running at the rate of from six to ten miles an hour; that the motorman while in the proper conduct of his car was so engaged that he did not see the child until within twenty-five or thirty feet ,of it, and that the conduct of the motorman was in no way wanton or willful.
    Argued Oct. 30,1905.
    Appeal, No. 132, Oct. T., 1905, by plaintiff, from order of C. P. Cambria Co., June T., 1904, No. 480, refusing to take off nonsuit in case of Burdine Estep, by his father and next friend, H. C. Estep, and H. C. Estep in his own right v. Webster Coal and Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before O’Connor, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Edward L. Kearns, with him James B. O’ Connor and Smith

      S? Kearns, for appellants.
    -The case was for the jury : Kay v. R. R. Co., 65 Pa. 269; R. R. Co. v. Hummell, 44 Pa. 375; Phila. City Passenger Ry. Co. v. Hassard, 75 Pa. 367; Gibbons v. Wilkes-Barre & Street Ry. Co., 155 Pa. 279 ; Ehrisman v. Ry. Co., 150 Pa. 186 ; Jones v. United Traction Co., 201 Pa. 344; Walbridge v. Schuykill Electric Ry Co., 190 Pa. 274; Henne v. Ry. Co., 1 Pa. Superior Ct. 311.

      P. J. Little, for appellee.
    The nonsuit was properly entered: Gillespie v. McGowan, 100 Pa. 144; McMullen y. R. R. Co., 132 Pa. 107; R. R. Co. v. Hummell, 44 Pa. 375; Keegan v. Luzerne Co., 8 Kulp, 160; Cauley v. Ry. Co., 95 Pa. 398; Rodgers y. Lees, 140 Pa. 475; Rachmel v. Clark, 205 Pa. 314 ; Heil v. Glanding, 42 Pa. 493; P. & R. R. Co. v. Spearen, 47 Pa. 300; Brague v. Ry. Co., 192 Pa. 242; Nolan v. R. R. Co., 4 Atl. Repr. 106; McDermott v. Ry. Co., 20 S. W. Repr. 380; Locke v. R. R. Co., 15 Minn. 350; Benoon v. Cent. Pac. R. R. Co., 32 Pac. Repr. 809; Louisville E. & St. L. R. R. Co. v. Lohges, 33 N. E. Repr. 449; Gaughan v. Philadelphia, 119 Pa. 503; Goshorn v. Smith, 92 Pa. 435.
    January 2,1906:
   Opinion by

Mr. Justice Stewabt,

The circumstances under which the injuries in this case were sustained, afford no basis for a recovery by way of compensation. The injured party, a little child less than two years of age, while on the track of the trolley road owned and operated by defendant company, in connection with its coal mines, was struck by a motor drawing an empty train of cars, while on its return trip to the mines, and seriously hurt. The accident occurred at a point about 200 yards from the public crossing, on the ground of the defendant company. It is needless to inquire how the child came to be there; it is enough to know that it was improperly there, and that no responsibility in connection therewith attaches to the defendant in this action. At the public crossing the electric current is broken and the cars are carried across by their momentum. After the crossing is cleared, the motorman is required to readjust the trolley to connect with the power. To do this his attention must be directed to the rear of his car, and for the time being he is prevented from looking in the direction in which the car is moving.

On this occasion he was so engaged, certainly until the motor was within twenty-five or thirty feet of the child. The witness, Alexander, testifies that when he saw the motor first, it was at this distance from the child; that the motorman then had his knee upon his seat with his face toward the rear, and was engaged in fixing his trolley; that up to that time he had not turned around. The evidence affords no reasonable ground to believe that, if the motorman from this point had had an unobstructed view of the child, the accident could certainly have been averted by any degree of vigilance or alertness. The train was running at a speed of from six to ten miles an hour. Upon his cross-examination the witness, Morney, an experienced motorman, testified that he could stop a train such as this was, moving at the rate of speed here given, within forty feet, if the motor were in first-class repair. The witness spoke of his own skill, and not of what was to be expected of the ordinary motorman. Even with the skill that comes to one of his experience, the rescue of the child under the circumstances we have here, without hurt, would be accounted a hairbreadth escape. Failure to accomplish such a rescue would not impute to the party failing ordinary negligence, much less the gross negligence, without which no liability can attach. The general qualifications of the motorman, Nicholson, are outside of the case; he may have been too young or too inexperienced for the work assigned him in running the motor; but neither of these things contributed to this particular accident. Nor does the circumstance that the train was moving at more than ordinary or usual rate of speed, if such fact appear, affect the case in any respect. It was defendant’s own road, operated for its own purpose, on its own land where the public had no rights. There was nothing in the situation, so far as the safety of others was concerned, that called for any rate of speed other than that which best met the requirements of the defendant. The motorman had a right, after he had passed the public crossing, to expect a clear track, and was not guilty of negligence in exceeding the usual rate of speed, if in point of fact he did so, where he had no reason to expect interruption: P. & R. R. Co. v. Spearen, 47 Pa. 300.

The nonsuit was properly ordered and the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Estep, Appellant, v. Webster Coal and Coke Company
    (No. 2).
    Argued Oct. 30, 1905.
    Appeal, No. 133, Oct. T., 1905, by H. C. Estep, in his own right, from order of C. P. Cambria Co., June T., 1904, No. 480, refusing to take off nonsuit in case of Burdine Estep by his father and next friend, H. C. Estep, and H. C. Estep in his own right v. Webster Coal and Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      January 2, 1906:
   Opinion by

Mr. Justice Stewart,

This case but repeats the facts appearing in ante, p. 471, just decided. The action is brought by the father of the injured child in his own right. As there could be no recovery in that, for like reasons there could be none in this.


author: Mr. Justice Brown,

text:
    Troxell, Appellant, v. Anderson Coal Mining Company.

      Mines and mining — Royalties—Minimum royalty — Faults in strata — Lease • — Review.
    Where a coal lease provides for the mining of a stated number of tons of coal per year, and the payment of royalty thereon whether the coal is mined or not “unless prevented by faults in the strata unforeseen,” the lessor will not be prevented from recovering the minimum royalties for the first year, because the lessee in attempting to reach the coal from an adjoining mine was prevented from doing so by faults in the strata of such mine. In such a ease if it appears that at the time of the trial, which was after the termination of the first year of the lease, the coal had been reached without difficulty by an opening on the leased premises, it is reversible error for the court to refuse to charge that the lessee had not made the effort to mine the coal in the first year, whiqh was required by the terms of the contract. The lessor cannot bo charged with having acquiesced in the claim made by the lessee, that the unavailing effort to reach the coal from the adjoining mine was a sufficient compliance with the terms of the lease; and the rule does not apply that “When a case is submitted to the jury from a standpoint from which both parties to the issue manifestly tried it, the court cannot be said to have erred because it was not submitted from another, which may really have been the true one.”

      Appeals — Review—Assignments of error.

    Where no error is assigned to a particular instruction of the trial court, the appellant cannot, in anticipation of a reversal, ask the appellate court to pass upon the correctness of such instruction for the guidance of the court below on a retrial of the case. The appellate court does not sit as an advisory board for lower courts, but to correct errors brought up by proper assignments.
    Argued Oct. 80, 1905.
    Appeal, No. 189, Oct. T., 1905, by plaintiff, from judgment of C. P. Cambria Co., June T., 1904, No. 63, on verdict for defendant in case of J. M. Troxell, Perry Troxell and George L. Glasgow v. Tbe Anderson Coal Mining Company.
    Before Mitchell, C. J., Fell, Brown, Mestrézat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for coal royalties. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned among others was (12) answer to plaintiff’s seventh point, point and answer being quoted in the opinion of the Supreme Court.

      A. L. Cole, Alvin Evans, with them John E. Evans, for appellant.
    It is not shown by the testimony that it was impracticable to open the coal on the leased premises, nor is there any provision in the lease that it should be opened in any other way or at any other point.
    Surely it cannot be contended that the parties contemplated at the time of making this contract that the payment of minimum royalties should depend upon faults in the strata of adjoining property.

      A. V. Barker, with him S. L. Reed and Fred T>. Barker, for appellee.
    A judge who submits a case to a jury in the manner in which it is presented by counsel, ought not to be convicted of error for not presenting it in some other way to which his attention had not been called: Hartley v. Decker, 89 Pa. 470 ; Maus v. Maus, 6 Watts, 275; Torrance v. Torrance, 58 Pa. 505.
    An appellant will not be permitted to avail himself of matters of defense not raised in the court below: Snevily v. Egle, 1 W. & S. 480 ; Cope v. Kidney, 115 Pa. 228.
    January 2, 1906 :
   Opinion by

Mr. Justice Brown,

On August 28, 1902, the appellants leased property belonging to them in Reade township, Cambria county, to E. F. Spencer, A. T. Beers and William D. McCausland, for the purpose of mining coal. The lease, with the assent of the lessors, was assigned to Christian P. Anderson, who assigned it to the appellee, The Anderson Coal Mining Company, and this suit was brought against it to recover the balance alleged to be due on the first year’s minimum royalty of $1,800, or six cents per ton for 80,000 tons of coal. The covenant in the lease which is the basis of appellants’ claim is, that the lessees will “ mine and ship from the said premises not less than thirty thousand tons during each and every year during the continuance of this lease, and shall pay royalty for said amount whether mined and shipped or not, unless prevented by faults in the strata unforeseen, difficulties in the mines, strikes, scarcity in car supply or other unavoidable causes.”

On the trial of the cause it appeared that during the first year no effort to mine the coal had been made on the leased premises, but an attempt was made to reach it through a mine operated by the appellee on adjoining land known as the Van Ormer tract; and the jury were instructed that, if faults were encountered there which rendered it impossible to reach the coal on the leased premises, the plaintiffs could not recover. Under the testimony submitted by the defendant the jury found that faults in the adjoining mine had prevented it from reaching and mining the coal on the leased premises, and the verdict was in its favor. We need not consume time in demonstrating the self-evident proposition that the lease contemplated an effort on the leased premises to reach the coal, and that the faults contemplated were such as might be there encountered. Indeed, this is not questioned by the appellee, but it is urged that, as the cause was tried on the theory that there could be no recovery if the defendant company was prevented from reaching the coal on the leased land by faults in the strata on the Van Ormer tract, we ought not to disturb the judgment. If the record showed that the cause had been tried upon that theory alone, and nothing more appeared, we would not interfere with the judgment, for if the lessors themselves had put such an interpretation on the agreement, it would be too late for them, after a verdict against them, to complain of the consequences resulting from their own construction of the lease. When a case is submitted to a jury from the standpoint from which both parties to the issue manifestly tried it, the court cannot be said to have erred because it was not submitted from another, which may really have been the true one : Hartley v. Decker, 89 Pa. 470 ; Carpenter v. City of Lancaster, 212 Pa. 581.

The defendant undertook to show, without objection from the plaintiffs, that it hacl made an effort to reach the coal on the leased premises through the opening on the Van Ormer land, but had been prevented from doing so by the faults there found in the strata. In rebuttal, the plaintiffs offered testimony to show that if proper efforts had been made on the adjoining land the coal on theirs might have been reached, and, as just stated, if there were not more on the record, we would not reverse. It appears, however, that the plaintiffs, in meeting the defense as made out by the appellee, did not conclude themselves from asking that the case be tried on the proper theory, that the effort to mine the coal should have been made on the leased premises. Though no effort was made during the first year to open the coal on these premises, it appeared on the trial that at that time — September 21, 1904 — coal was opened on them. C. R. Ellicott, the resident manager of the appellee, and called by it as a witness, was asked on cross-examination: “ Q. During the time you were there the work in which you were engaged was principally in the directing of the mines and the shipment of coal from the Van Ormer tract? , A. Yes, sir. Q. But not upon the Glasgow and Troxell? A. No, sir.....Q. You did get into the Troxell and Glasgow tract? A. Yes, sir; we are in there now.....Q. So far as anything is disclosed from the condition of the mine as it appears there now, there is no fault on the Troxell and Glasgow tract? A. Not where we tried to turn the heading. ” Another witness called by the defendant — James Logan, its mine foreman — on cross-examination, testified as follows : Q. The faults that you have observed are all on the Van Ormer property? A. Yes, sir. Q. From the investigations which you made ther’e were no faults visible on the Troxell and Glasgow tract? A. No, sir; not at present. Q. So far as it appears now, from an inspection of the mine, the coal of the Glasgow and Troxell tract is in its normal condition? A. Yes, sir. Q. You have so far no evidence or intimation of the fault on that property? A. No, sir.” The seventh point submitted by the plaintiffs was as follows: The defendant having failed to show that any effort was made to mine the coal on the Glasgow and Troxel property from the opening, on' that.property itself, and the evidence being that the coal was opened on that property the defendant did not make the effort to mine the 80,000 tons of coal, which was required under tlie terms and conditions of the contract. ” This was a distinct statement by the plaintiffs before the case was submitted to the jury of just what their contention was, and the point should have been affirmed. It stated the true construction of tlie agreement and what the plaintiffs had a right to insist upon from the defendant, which ought to have done from the beginning what it was doing in September, 1904. The answer to the point was: “Wo cannot affirm the point as a legal proposition. There is no evidence that any effort was made to open the coal upon the property described in the lease. There is no evidence that it could be done to any advantage. There is some evidence that some vein of coal was opened by Mr. Spencer, but there is no evidence that it was a feasible point from which to mine the coal or that it was intended that any extensive mining operations should be pursued at that point. ”

The assignments relating to the scarcity of cars ne.ed not be considered, for that question cannot be regarded as involved in the case in the absence of any effort by the appellee to mine the coal in accordance with the agreement. Its learned counsel make the following frank admission in their printed argument: “ The undisputed evidence in the case showing that cars enough had been received at this particular mine to ship over thirty thousand tons during the year 1903, the irresistible conclusion is that the jury so found, and the question of car supply, as an independent matter of defense being‘out of the way altogether,’ the verdict was based upon the other question in the case. ”

We are asked by the appellants to pass upon the correctness of the instruction by the court below, that if they were entitled to recover, the verdict should be for the balance of the royalty for the first full mining and shipping year ending December 1, 1903. Of this, of course, they do not complain, but in their anticipation of a reversal they ask for an expression from us as to the correctness of the instruction for the guidance of the court below on a retrial of the case. We do not sit as an advisory board for lower courts, but to correct errors alleged to have been committed by them when brought up to us by proper assignments. The first, fourth, fifth, sixth and twelfth assignments are sustained and the judgment is reversed with a, venire facias de novo.


author: Mr. Justice Mestrezat,

text:
    Love, Appellant, v. Ebbinson. .

      Partition — Equity—Pleading—Demurrer.
    Objection cannot be taken by demurrer to a bill in equity for partition, because the bill did not include all the property held in common by the parties, where there is no averment in the bill that the parties were the owners in common of any other realty than that set out therein.
    A demurrer to a bill in equity in partition will not be sustained where the ground of demurrer is that the court had acquired jurisdiction of the subject-matter in a previous suit in equity, but an inspection of the record of such suit shows that that subject-matter of controversy in it was only a one-third interest in the lands involved in the second suit.
    There is nothing in the equity rules of Pennsylvania, nor in the well-settled equity practice, to sustain the position that a demurrer overrules a plea.
    Argued Oct. 31, 1905.
    Appeal, No. 134, Oct. T., 1905, by-plaintiff, from decree of C. P. No. 1, Allegheny Co., June T., 1905, No. 24, sustaining demurrer in case of Mary A. Love v. John W. Robinson and Andrew L. Robinson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for partition.
    The opinion of the Supreme Court states the case.

      Error assigned was in sustaining the demurrer.

      Thomas James Meagher, with him Robert S. Bright and Robert T.McElroy, for appellant.
    Matters of fact that do not appear on the face of the bill cannot be set up by demurrer: Holmes v. Fulton, 193 Pa. 270.

      John P. Hunter, with him George D. Riddle, for appellee.
    The bill of complaint was bad because it did not include all the property owned by the tenants in common : Rex v. Rex, 3 S. & R. 533; Ihmsen v. Ormsby, 32 Pa. 198; Everhart v. Shoemaker, 2 Walker, 158; Deshong v. Deshong, 186 Pa. 227; Holmes v. Fulton, 193 Pa. 270; Stickles v. Oviatt, 212 Pa. 219.
    The court having acquired jurisdiction of the subject-matter in controversy, and of the parties to the suit by the bill filed at No. 1141, December Term, 1903, such jurisdiction is exclusive, and jurisdiction cannot be obtained either by a new proceeding instituted in the same court or in another jurisdiction : Jennings v. Beale, 158 Pa. 283; Blood v. Dime Savings & Loan Co., 164 Pa. 95 ; Clad v. Paist, 181 Pa. 148.
    January 2, 1906:
   Opinion by

Mr. Justice Mestrezat,

IVe agree with the learned counsel of the appellant that “ the record is in a peculiar state of confusion; ” and it may be added that neither court nor counsel appears to have given attention to our equity rules nor to the well-settled practice in equity cases. They have disregarded both and it necessarily results in confusion, in delays in the disposition of the cause, and in expense to the litigants.

This was a bill filed by Mary A. Love against John W. Robinson and Andrew L. Robinson for the partition of certain real estate in Allegheny county held by the parties as tenants in common. It is averred that the plaintiff is the owner of the undivided one-half’, and each of the defendants of the undivided one-fourth of the real estate, and “ that the parties to this bill are all and the only parties having any interest or estate in the realty hereinbefore mentioned and described.” It prays for the partition, (1) of a lot of ground in the second ward of Allegheny city; and (2), (3) and (4) of certain ground rents charged on three several lots of ground in the first ward of the city of Pittsburg. In the fourth paragraph of the bill it is averred that at No. 1141, December Term, 1903, of the court in which this bill was filed, John W. Robinson filed a bill against Andrew L. Robinson, William R. Park, now dead, and Mary A. Love, the plaintiff here, for the partition “inter alia, of an undivided one-third part of the lands and tenements described in this bill.” Mary A. Love is, as the bill avers, the sole heir of William R. Park, and his interest, the undivided one-fourth, in the real estate, vested in her at his death. It therefore appears by the averments in the plaintiff’s bill that (1) the parties to the two bills are essentially the same and that they are the only parties having any interest in the real estate; and (2) that the bill filed by John W. Robinson at No. 1141, December Term, 1903, was for the partition of an undivided one-third of the property included in the present bill.

To this bill the defendants filed what they call a “ plea in abatement;” but in the body of the plea they “plead in bar and abatement ” the several matters set forth in the plea. Simultaneously with the plea, the defendants filed also a demurrer to the bill and set forth as cause of demurrer that “ it appears from said bill of complaint that this honorable court had already acquired jurisdiction of the subject-matter thereof and of the parties thereto, and said bill is improperly brought.” The next step in the proceeding was a motion filed by the plaintiff to strike off the plea. The court seems to have made no formal order on this motion, but, on the day subsequent, the record shows the following: “June 14, 1905, on equity argument list and plea overruled by filing demurrer and demurrer sustained.” Ten days thereafter, the record shows the entry of a final decree as follows: “ And now, to wit, June 24th, 1905, this matter came on for hearing on amended bill of complaint filed, and demurrer thereto, and was argued by counsel, and upon consideration thereof the said demurrer is sustained and the said bill of complaint is dismissed at the cost of complainant.”

The plaintiff has taken this appeal and alleges that the court erred “ in decreeing that the plea was overruled by filing demurrer and demurrer sustained, ” in sustaining the demurrer, and in not striking off the plea.

It will be observed from the form of the decree that in the final disposition of the case the plea was disregarded and the case was determined on the bill and demurrer. It is sufficient to say without any discussion that there is no authority whatever in our equity rules nor in the well-settled equity practice to sustain the court’s position that the demurrer overruled the plea. We will, however, not consider the assignment involving that question nor the assignment alleging error in not striking off the plea, as the case was heard and determined below solely on the bill and demurrer. Upon the issue thus made, we will determine this appeal, which will require the reversal of the decree; and when the record is remitted the trial court can, if further proceedings be taken, compel the parties in their pleadings to conform to equity practice.

As tlie learned trial judge filed no opinion on sustaining the demurrer, we do not know the reasons for his action. We are unable, after a most careful consideration of the record, to discover any ground on which to sustain the decree. The learned counsel for the appellees have attempted to support the conclusion of the court on two grounds: (1) “ The bill of complaint was bad because it did not include all the property owned by the tenants in common; ” and (2) “ the court having acq uired jurisdiction of the subject-matter in controversy and of the parties to the suit by the bill filed at No. 1141, December Term, 1903, such jurisdiction is exclusive, and jurisdiction cannot be obtained either by a new proceeding instituted in the same court or in another jurisdiction. ”

The decree cannot, as we think, be sustained on either of these propositions. The learned counsel have wholly overlooked the fact that tbe ease was not heard on a plea or answer which discloses the facts they allege, but upon a demurrer which does not, and could not, set up the facts the counsel contend sustain the decree of the court. It is true the plea filed by the appellees alleges that the bill did not include all the property held in common by the parties, but the learned judge below should not have considered that fact, if it were a fact, on the demurrer. The bill itself did not disclose the fact, and showed nothing more than that the parties were the owners of the property described in it. There is not a single averment nor line in the bill that shows that the parties were the owners in common of any other realty than that set out in the bill. It is therefore manifest that the facts disclosed by the record do not sustain this position of the appellees.

The other reason assigned in support of the decree is equally untenable and without merit, as an inspection of the record clearly shows. The court did not acquire jurisdiction of the subject-matter of the plaintiff’s bill when the prior bill was filed at No. 1141, December Term, 1903, as the appellees contend. That is simply an assertion with no facts on the record to support it. The present bill avers that the parties are tenants in common of certain real estate, fully described therein, and sets out the proportion in which they severally hold it. The prior proceeding at No. 1141, December Term, 1903, is then referred to and it is alleged that the bill was filed for the partition “ inter alia, of an undivided one-third part of the lands and tenements described in this bill, said undivided one-third of said lands and tenements being the portion of the same derived, under the intestate laws of the commonwealth of Pennsylvania, from James D. Robinson, a deceased uncle of the said parties. ” Hence it is apparent from the allegations of the present bill that the prior bill included but an undivided one-third of the realty embraced in this bill and held in common by the parties to the proceeding. The court, therefore, had not previously, as contended by the learned counsel of the appellees, “ acquired jurisdiction of the subject-matter ” of the' present bill. And it may be suggested in this connection that, on the numerous authorities cited by the learned counsel of the appellees, the prior bill would be bad on demurrer if, as alleged, it prayed for the partition of only the undivided one-third interest of the lands held in common by the parties.

The learned court was, therefore, in error in sustaining the demurrer and the decree must be reversed and a procedendo awarded. The record will go bach to the court below, which will require the pleadings to conform to our equity rules and the equity practice. If the present bill does not embrace all the real estate held in common by the parties, as alleged by the appellees, and this fact is made to appear by proper pleadings, it is not clear how the appellant can succeed in the final disposition of the cause. It appears from the appellant’s admissions that the prior bill, filed at No. 1141, December Term, 1903, by John W. Robinson, has, by leave of court, been amended so as to include all the real estate owned in common by the parties to this bill. If, therefore, an attempt is made to- amend the present bill, the appellant will be met with the objection that there is now pending between the same parties, in. the same court, a bill which embraces all the realty held in common by the parties. It is therefore not apparent, as suggested above, that the reversal of the decree of the trial court in this proceeding will ultimately avail the appellant or enable her to have the lands partitioned on her bill of complaint.

While, on the pleadings, we must reverse the decree below, we do so with regret, as it may delay the division of the property with no apparent benefit to any of the- interested parties. The trial court should facilitate the speedy disposition of both bills filed for the partition of the property so that the rights of the parties may be adjudicated without further delay.

The decree of the court below sustaining the demurrer is reversed with a procedendo.


author: Mr. Justice Fell,

text:
    Henkel, Appellant, v. Wabash Pittsburg Terminal Railroad Company.

      Railroads — Eminent domain — Damages—Market value — Evidence as to sales in the neighborhood.

    In a proceeding to assess damages for land taken by a railroad company under the right of eminent domain, where it appears that the opinions of the landowner’s witnesses were based mainly if not exclusively on two sales of property in the immediate vicinity, the railroad company may show that the sales in question were made under special circumstances, and that the prices realized were greatly in excess of the market value, and were not a criterion thereof.
    Argued Oct. 31, 1905.
    Appeal, No. 130, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1903, No. 52, on verdict for plaintiff in case of John Henkel v. The Wabash Pittsburg Terminal Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of viewers. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff' for $66,300. Plaintiff appealed.

      jErrors assigned were (1-4, 5) various rulings on evidence.

      R. B. Petty, for appellant.
    It has been uniformly held in this state that proof of particular sales is not admissible in chief in suits to determine the value of lands: East Pennsylvania R. R. Co. v. Hiester, 40 Pa. 53 ; Penna. & N. Y. R. R. Co. v. Bunnell, 81 Pa. 414; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325 ; P. & W. R. R. Co. v. McIntosh, 82 Pittsburg Legal Journal, 258.
    It has also been held that on cross-examination for the purpose of testing his knowledge and the value of his opinion, a witness may be asked about a particular sale: R. R. Co. v. Hiester, 40 Pa. 53; Traut v. N. Y., Chicago & St. L. Ry. Co., 1 Monaghan, 394.
    The witness may then give his reasons for regarding or not regarding such sale as a criterion of value, but the inquiry as to particular sales can go no further.

      A. M. Neeper, with him W. M. Lindsay, for appellee.
    January 2,1906 :
   Opinion by

Mr. Justice Fell,

This action was to recover the value of land taken by the defendant company under the right of eminent domain for the purpose of building a station. The specifications of error all relate to the admission of testimony offered by the defendant. The main ground of the appellant’s complaint is that the defendant was allowed to prove the circumstances attending the sale of two properties in the immediate vicinity. The plaintiff’s counsel had called the attention of witnesses on both sides to these sales, his own in their examination in chief, and on the cross-examination of the defendant’s witnesses he had shown the prices paid. On the cross-examination of the plaintiff’s witnesses it appeared that one of them had based his opinion of the value of the plaintiff’s property entirely on one of these sales, and that another witness had based his opinion mainly if not exclusively on the two sales. The prices paid for these . properties thus became a standard of value of property in the vicinity. The defendant’s offer was not to show the pric'es paid for these two properties but to prove by the purchasers that the sales were made under special circumstances, and that the prices were greatly in excess of the market values and were not a criterion thereof.

It has been long established that the proper test of the value of land taken under the right of eminent domain is its market value, and that this value is not to be ascertained by proof of particular sales but by the general selling price of land similarly situated. While particular sales may not be proved as establishing a market value, the good faith of a witness and the accuracy and extent of his knowledge may be tested by questioning him as to particular sales, to ascertain whether he knew of and considered them in forming an opinion. These inquiries go directly to the value of the opinion expressed. We see no reason why a party against whose interest a witness has testified may not show that the opinion expressed is valueless as evidence because it is founded on a misapprehension of the facts, as that a supposed sale has never been made, or that the consideration named was fictitious, or that the sale had been without regard to the market value. This does not lead, as would the proof of particular sales, to the trial of collateral issues. It goes only to impair the value of an opinion which has become evidence in the case by showing that it is based on a misapprehension of the real facts.

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


text:
    Nesbit, Appellant, v. Skelding.

      Wills — Fee simple estate — Heirs—Rule in Shelley’s Case.

    Testator devised as follows: “I give and bequeath to my son and his heirs after him all my real estate.” Held, that the son took an estate in fee simple.
    Argued Oct. 81, 1905.
    Appeal, No. 144, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 322, on verdict for defendant in case of David Frank Russell Nesbit, Thomas McFadden Nesbit and James Meek Nesbit v. Ellen P. Skelding.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Moon township. Before Young, J.
    From the record it appeared that the land in question had been devised to William E. Nesbit, father of the plaintiffs, by the will of David E. Nesbit, the material portion of which is quoted.in the opinion of the Supreme Court. The defendant claimed title under foreclosure proceedings on a mortgage made by William E. Nesbit in his lifetime. The court construed the will as giving William E. Nesbit an estate hi fee, and directed a verdict for the defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving instructions for defendant.

      W. T. Tredway, with him John O. Haymaker, for appellants.
    -The will passed a life estate only: Crawford v. Forest Oil. Co., 208 Pa. 5; Coursey v. Davis, 46 Pa. 25; Hill v. Giles, 201 Pa. 215; O’Rourke v. Sherwin, 156 Pa. 285; Miller’s. Estate, 145 Pa. 561; Seibert v. Butz, 9 Watts, 490; Eichelberger v. Barnitz, 9 Watts, 447; Crawford’s Estate, 17 Pa. Superior Ct. 170; Gerhard’s Estate, 160 Pa. 253; Eichelberger’s Estate, 135 Pa. 160; Kuntzleman’s Estate, 136 Pa. 142; Yarnall’s App., 70 Pa. 335; Simpson v. Reed, 205 Pa. 53; Jones v. Jones, 201 Pa. 548; McCann v. McCann, 197 Pa. 452.
    . M. W Acheson, Jr., of Patterson, Sterrett Aeheson, with him W. A. Griffith, for appellee.
    The will gave a fee: Hiester v. Yerger, 166 Pa. 445; Boyd v. Wingate, 13 W. N. C. 56 ; Criswell’s App., 41 Pa. 288 ; Price v. Taylor, 28 Pa. 95 ; Reifsnyder v. Hunter, 19 Pa. 41; Boyd v. Weber, 193 Pa. 651; Grimes v. Shirk, 169 Pa. 74.
    January 2, 1906:
   Opinion by

Mr. Justice Elkin,

The single question presented by this record is whether William E. Nesbit, father of the appellants, under the will of David E. Nesbit, deceased, took a fee simple or life estate. The language of the will is as follows: “ I give and bequeath to my son, William E. Nesbit, and his heirs after him, all my real estate, consisting of a farm and appurtenances in the township aforesaid.”

It is conceded that the word “ heirs ” as used in this as well as every-other will, is primarily a word of limitation, and will be so construed, unless it is so plain as to preclude misunderstanding that the testator intended to use it in other than its ordinary legal sense. We have searched this record in vain to discover such facts or circumstances as would have the effect of cutting down the fee simple estate which is presumptively created by the use of the word “ heirs ” in the devise.

It is argued by the learned counsel for the appellants that the testator by use of the words “ his heirs after him ” intended to limit the first estate to the life of William E. Nesbitand at his death to vest it absolutely in his children. This contention is based on the theory that the word “ heirs ” is used in the sense of “ children.”

Our attention has not been called to any case that would support this position. There is no provision of the will, nor any circumstances shown by the record, to justify a departure from the settled rule of construction. There is no distinction, legal or grammatical, between the words “ after him,” or “ after his death,” or “ after his decease.” The use of the words “ after him,” must be construed to mean the same as if the provisions of the will read “ after his death,” or “ after his decease.” In a legal sense the devisee could have no heirs while he lived, they became his heirs “ after him,” that is, “ after his decease.” This case is ruled in principle by Reifsnyder v. Hunter, 19 Pa. 41; Price v. Taylor, 28 Pa. 95; Criswell’s Appeal, 41 Pa. 288 ; Hiester v. Yerger, 166 Pa. 445.

Judgment affirmed.


text:
    Dinan v. Supreme Council of the Catholic Mutual Benefit Association, Appellant.

      Practice, C. P. — New trial — Perverse verdict — Review.
    Where a verdict is so manifestly perverse, and contrary to the undisputed documentary evidence in the case as to elicit from the trial judge a declaration that it is “shocking to every fair sense of justice and right,” it is the duty of the lower court to set the verdict aside, and if it fails to do. so the appellate court will so order.
    In all cases where the court is satisfied that the finding of the jury is against the truth, justice will not be administered unless it is set aside, for it is not vere dictum on which alone judgment can be justly entered. But for the power lodged in courts to set aside untrue findings, the infliction of injustice could not be avoided, for, great as may be the jury system, whims, sympathies, prejudices and caprices at times influence and control the judgment of men, even when sworn to be guided only by the law and the evidence in the case. The remedy for a perverse verdict, or for one so clearly against the weight of the evidence that it will result in wrong, if allowed to stand, is to set it aside and grant a new trial, and the power to do so, existing in the trial court, ought to be unflinchingly exercised.

      Beneficial associations — Fraud.—Age limit — Evidence.
    In an action against a beneficial association to recover a death benefit, where the defense is that the member was over fifty years of age when he was initiated, which was beyond the age limit permitted by the constitution of the association, and there is offered in evidence" a statement by the deceased under oath made in naturalization proceedings showing that the deceased at the time of his initiation was over fifty-six years of age, and this evidence is unimpeached, a verdict should be directed in favor of the beneficial association.
    Argued Oct. 81* 1905.
    Appeal, No. 146, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1900, No. 213, on verdict for plaintiff in case of Andrew A. Dinan and Mary G. Dinan, liis wife, v. Supreme Council of the Catholic Mutual Benefit Association.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover death benefits. Before Brown, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,735. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; (2) in not granting a new trial.

      A. B. Reid, with him A. V. JD. Watterson, for appellant.

      Gr. W. Williams, with him N. S. Williams and Albert J. Edwards, for appellee.
    January 2, 1906 :
   Opinion by

Mr. Justice Brown,

This case has been tried five times in the court below. It has reached us three times — -twice before on appeals by the plaintiff (201 Pa. 363, and 210 Pa. 456) and now on the defendant’s appeal from a judgment in favor of the plaintiff. Her right to recover depends upon the age of her father at the time he became a member of the Supreme Council of the Catholic Mutual Benefit Association and received the certificate of membership in which she was named as the beneficiary. By section 177 of the constitution of the association no person over fifty years of age can become a member of it. In the application of the deceased for membership, dated July 2, 1891, he gave September 15, 1842, as the date of his birth, making his age less than forty-nine years at the date of his initiation — ■ August 20,1891. On the fourth trial a verdict was directed for the defendant by the learned president judge of the court below, because, in his opinion, it had established by strong evidence that the decedent was over fifty years of age when he applied for membership in the association. On appeal, we held this direction to have been error, for the reason that the credibility of the witnesses, upon whose testimony the defendant relied to establish the over age of the insured, was for the jury, especially in view of their answers on cross-examination: Dinan v. Supreme Council of the Catholic Mutual Benefit Association, 210 Pa. 456. On the last trial, from which we have this appeal, the question of the age of the insured was submitted to the jury, because the learned trial judge was of opinion that he was required to do so, in view of what we said in reversing the judgment on the fourth trial. The result was a verdict in favor of the plaintiff, which, in the opinion refusing a new trial, is said to be “ shocking to every fair sense of justice and right,” as the testimony was “ an overwhelming demonstration against plaintiffs’ right of recovery, a demonstration with almost mathematical precision that Coll at the date of acquiring membership in 1891, was not under fifty years of age — was not forty-eight years of age as his application for membership certifies — but some fifty-six or fifty-seven years of age.” This statement of the trial judge was fully justified and his duty in passing upon the application for a new trial was free from all doubt. Ho does not simply state that the finding was one he would not have made in view of the testimony, or that he cannot set it aside for the reason that he does not agree with it, but declares it to be “ shocking to every fair sense of justice and right,” as it was a finding in the face of undisputed documentary evidence to the contrary. In such a case there is but one course open to a trial judge, and that is to set the verdict aside, for to sustain it is to sanction injustice in a court of justice.

In all cases where the court is satisfied that the finding of the jury is against the truth, justice will not be administered unless it is set aside, for it is not vere dictum on which alone judgment can be justly entered. But for the power lodged in courts to set aside untrue findings, the infliction of injustice could not be avoided, for, great as may be the jury system, whims, sympathies, prejudices and caprices at times influence and control the judgment of men, even when sworn to be guided only by the law and the evidence in the case. The remedy for a perverse verdict, or for one so clearly against the weight of the evidence that it will result in wrong, if allowed to stand, is to set it aside and grant a new trial, and the power to do so, existing in the trial court, ought to be unflinchingly exercised: Kohler v. Pennsylvania R. R. Co., 135 Pa. 346. No other view of this verdict is possible than that entertained by the trial judge and it was, therefore, his clear duty to set it aside. The case having been submitted to the jury under a state of facts that permitted of but one conclusion, a different one cannot be permitted to stand.

■ But the case ought not to have proceeded so far as to have made it necessary for the defendant to ask for a new trial. On the last trial a situation was presented very different from that on the fourth, in which it was for the jury to pass upon the credibility of the witnesses called by the defendant. At this fifth trial a petition of Charles Coll for naturalization, addressed to the circuit court of the United States for the western district of Pennsylvania, dated October 4, 1856, and sworn to by him, was offered in evidence by the defendant. In this petition Coll declared himself at that time to be over twenty-one years of age. Maurice Coll, a brother of the father of plaintiff, testified that the signature to the petition was that of the insured, and further stated that twenty-one days later — on October 25,1856, — Charles, who was older than he, appeared in the same court at his instance and request and vouched for him on his petition for naturalization, in which he at that time stated that he himself was over twenty-one years of age — a fact reaffirmed by him in his testimony on this last trial. No attempt was made to question the credibility of this witness, nor to impeach the petition of the insured for naturalization taken from the records of the United States court, in which he gave his age as over twenty-one years in October, 1856, making him in 1891 over fifty-six years of age. With this documentary evidence before the court showing Coil’s own declaration under oath, in October, 1856, that he was then more than twenty-one years of age, the question of the credibility of witnesses was no longer for the jury’s determination, but their duty was to return a finding in accordance with the unimpeached and conclusive written evidence in the case, and they should have been so instructed by .affirming the defendant’s fourth point, asking that a verdict be directed in its favor. The prima facie case of the plaintiff, as made out by the certificate of membership, upon which alone she relied for her father’s age, was completely, overcome.

The judgment below is reversed and judgment is now entered here for the defendant.


author: Peb, Curiam,

text:
    Allegheny County, Appellant, v. Stengel.

      Public officers — Compensation—Register of wills — Commissions on collateral tax — Allegheny county — Acts of March 31, 1876, P. L. 13, and May 6, 1887, sec. 16, P. L. 79.
    Under the Act of May 6, 1887, see. 16, I5. L. 79, the register of wills of Allegheny county is entitled to commissions on the collateral tax collected by him and paid into the state treasury.
    The Act of May 6, 1887, sec. 16, P. L. 79, repeals the Act of March 31, 1876, P. L. 13, which provided that commissions on the collateral tax should be paid into the county treasury.
    Argued Oct. 31, 1905.
    Appeal, No. 151, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 440, for defendant on case stated in suit of Allegheny County v. George H. Stengel.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case state to determine liability for commissions on collateral tax.

      Evans, J., filed the following opinion:
    This amicable action is brought by the county of Allegheny against George H. Stengel, register of wills for the said county, to recover the commissions collected by the said defendant from the commonwealth of Pennsylvania, due from the said commonwealth for the collection of collateral inheritance tax by the said defendant for the year ending December 81,1904.
    It would be a waste of time to go into any exhaustive argument to show that the commissions paid by the state for the collection of collateral inheritance tax are not fees as contemplated by article 14, section 5, of the constitution. And we understand that the plaintiff admits that the legislature has the power to direct that the fees allowed by the state for the collection of its collateral inheritance tax may be retained by the .register, or whatever agent for the state collects those fees, as his own private compensation, and that the only question involved in this case is whether the legislature has so enacted.
    There are two acts of assembly bearing on this question: First, the Act of March 31, 1876, P. L. 13, entitled, “ An act to carry into effect section 5 of article 14 of the constitution,” section 9 of which provides as follows:
    “ At the same time that monthly returns are made as required by section 2 of this act of the gross receipts of fees and emoluments received by said officers, to and for the use of their respective counties for the preceding month, each of said officers shall make a separate return to the state treasurer of all collateral inheritance taxes collected or earned for the state by him, if any have been so collected or earned, and of all taxes due the state on any writ or legal proceedings or fees otherwise belonging to the state collected or earned by him, and the amount so returned by any of said officers as received by him for the state shall be separately paid into the state treasury by him, quarterly, on the first Mondays of April, July, October and January, for which he shall take duplicate receipts ; all commissions on the collection of such taxes as are now or may hereafter be allowed by law, shall be deemed and' taken as part of the regular fees of the officer collecting the same, and shall be accounted for accordingly.”
    It is contended by the plaintiff, and we understand admitted by the defendant, that under the provisions of that section of the act of 1876, the registers of wills of Allegheny county, and of all counties over 150,000 inhabitants, were required to pay into the county treasury all commissions received by them from the state for the collection of collateral inheritance taxes.
    The second Act is that of May 6, 1887, P. L. 79, section 16 of which provides as follows:
    “The register of wills of the several counties of this commonwealth upon their filing with the auditor-general the bond hereinafter required, shall be the agents of the commonwealth for the collection of the collateral inheritance tax; and for services rendered in collecting and paying over the same, the said agents shall be allowed to retain for their own use such percentage as may be allowed by the auditor-general, not exceeding five per cent on all taxes paid and accounted for; provided, that this section shall not apply to the fees of registers elected prior to the passage of this act.”
    Section 17 provides for the giving of bond by the register, and section 18 provides that until said bond shall be given the taxes shall be collected by the county treasurer.
    To one reading this 16th section of the act of May 6, 1887, and giving the ordinary construction to the language there used, the conclusion would seem to follow that the legislature meant the plain and ordinary meaning of the words when they said that “ the said agents shall be allowed to retain for their own use such percentage as may be allowed by the auditor-general,” and that so construing the words of the act, the commissions paid to the defendant in this case would be for his own compensation, and not for the county of Allegheny. But it is contended by the plaintiff that the act of 1887 does not repeal the provisions of the 9th section of the act of 1876 quoted above. There is no direct repealing clause of the act of 1876 in the act of 1887. The repealing clause of the said act being “ A11 laws or parts of laws, heretofore approved, relating to the collection of the collateral inheritance tax, and inconsistent herewith, be and the same are hereby repealed.” And it is contended by the plaintiff that the provisions of the 9th section of the act of 1876 are not inconsistent with the provisions of the 16th section of the act of 1887, that the two stand together. In other words, that the provisions of the act of 1887 apply only to counties having a population of less than 150,000 inhabitants, leaving the act of 1876 to apply to counties having a population in excess of that amount. And one reason urged is, that section 9 of the act of 1876 in no way regulates the collection of collateral inheritance taxes, but merely directs the disposition to be made of the fees and commissions received. This is not strictly correct as to the provisions of that act, which does regulate the duties of the register of wills in the collection of that tax, as to his making reports, the time and place of payment of the tax collected, and to this extent it regulates the collection of collateral inheritance taxes, and certainly, if there was a change of time of payment, or a change of the time of making the report by the agent collecting the collateral inheritance tax, then under this repealing clause the provisions of the act of 1876 would be repealed.
    It is urged that there being nothing in the title of the act of 1887 to indicate that it was going to take from the several counties of over 150,000 inhabitants the fees theretofore paid by the state to the register of wills for the collection of collateral inheritance taxes, and turned over to the county under the provisions of the act of 1876, it would be unconstitutional; but we take it that this position is not tenable. If the provisions of the act of 1887 are clearly set forth in- its title, then the fact that the title may not indicate all the prior laws which its enactment may effect or repeal, would not render the act itself unconstitutional. As an illustration, supposizig the act of 1887, which was passed for the better collection of a collateral inheritance tax, had empowered the governor of the state to appoint agents in the several couzrties for the collection of eollatei’al inheritance taxes, and designated their compensation, such an act would have taken away from the counties the commissions received by the register of wills from the state and paid into the county treasury, and yet I take it that no person would have insisted that because of that the provision of the act of 1887 would be unconstitutional.
    Another point urged by the plaintiff is, that the act of 1876, being an act to carry into effect the provisions of the constitution, is as fixed and stable as the constitution itself, and cannot be repealed by subsequent legislation. But the answer to that is, that the provision of the act of 1876, directing that the registers of wills should pay into the county treasury all commissions received by them from the state for the collection of collateral inheritance taxes, was not carrying into effect any provision of the constitution, and that, therefore, that provision of the act of 1876 is no more sacred than any other act of assembly. Both of these acts of assembly are general acts, and if the provision of the prior act is inconsistent with that of the latter, it cannot stand. And it would seem to be beyond question that if the provisions of the 16th section of the act of 1887 applies to all the counties in the state, those above 150,000 as well as those under that, then it must repeal the provisions of the 9th section of the act of 1876. And first let us note that the language of the act is general and applies to all counties, “ the registers of wills of the several counties of this commonwealth,” the apt language which makes the registers of wills, in collecting the collateral inheritance tax, the agent of the commonwealth, the fixing of the compensation not as fees but as commissions, a percentage on the amount collected, and the provisions that he shall be allowed for the services rendered to retain for his own use such percentage as the auditor general may allow.
    The first act imposing upon the register of wills the duty of collecting the collateral inheritance tax was the Act of March 22, 1841, P. L. 99, section 1, of which provides that “ hereafter, instead of the county treasurer, the said registers shall receive and pay over said collateral inheritance tax, and shall be entitled to the same compensation thereon as is now by law allowed the county treasurers on the same terms.” Section 4 required the register to give bond. Section 5 provided : “ Until said bond and security have been given, as required by the preceding section, the said collateral inheritance tax shall be received and collected by the county treasurer as heretofore.”
    The Act of April 10, 1849, P. L. 570, provided, in its 16th section, that “ It shall be the duty of the register of wills in the several counties of this commonwealth to collect and pay to the state treasury all taxes due, and that may be due under the collateral inheritance tax of this commonwealth.” It will be observed that the act of 1841 only empowered the register of wills to collect the collateral inheritance tax in case he filed a bond, and left it optional with him whether he should perform that duty or not. But the act of 1849 gives him no such option, but makes it his duty to collect the tax.
    The 16th section of the act of 1887 re-enacts the provisions of the act of 1841, and only empowers the register to collect the tax in case he shall give bond. Now, the effect of construing the 16th section of the act of 1887 to apply only to counties having a population of less than 150,000 would be that 'in such counties it would be optional with the register whether he collects the collateral inheritance or not, while in counties having 150,000 of population, and over, the act of 1849 applied, and the register would be compelled to collect collateral inheritance taxes. We take it that that is not a reasonable construction of the intention of the legislature in enacting said law.
    We are of the opinion that the act of 1887 was intended to apply to all counties in the state; that the provisions of the 16th section of that act cannot be construed in harmony with the provisions of the 9th section of the act of 1876, and that, therefore, the latter is repealed by the former, that the legislature having power under the constitution to give to the county officer who may for the time being collect the collateral inheritance tax for the state a compensation for such collection, that the act of 1887 has so enacted, and the register is entitled to retain the compensation received by him.
    Judgment should be entered for the defendant on the stated case.

      Error assigned was the judgment of the court.

      George II. Calvert, for appellant.
    The plaintiff contends that the provisions of section 9 of the act of March 31, 1876, are not repugnant to or inconsistent with section 16 of the act of 1887, and that this being true, the latter is not impliedly repealed by the former, and that, therefore, both provisions stand: Pittsburg v. Anderson, 194 Pa. 172; Kittanning Borough v. Mass., 15 Pa. Superior Ct. 51; Com. v. DeCamp, 177 Pa. 112.

      Thomas Patterson, of Patterson, Sterrett Aeheson, for appellee,
    The state may appoint its own agents to collect its own tax, even though such agent be also for other purposes a municipal officer, and his duties as state agent will not necessarily blend or become part o£ his duties as a city officer: Knisely v. Cotterel, 196 Pa. 614; Phila. v. McMichael, 208 Pa. 297.
    The act of 1876 is repealed: Hendrix’s Acct., 146 Pa. 285; Westfield Boro. v. Tioga County, 150 Pa. 152; Allegheny County v. Grier, 179 Pa. 689 ; Com. v. DeCamp, 177 Pa. 112; Bridgewater Borough v. Bridge Co., 210 Pa. 105.
    January 2, 1906 :
   Peb, Curiam,

Judgment affirmed on the opinion of the court below.