author: Mb. Chibe Justice Mitchell,

text:
    Hendler v. Lehigh Valley Railroad Company, Appellant.

      Deed—Reservation—Minerals—Sand.

    In the commercial sense a mineral may be defined as any inorganic substance found in nature, having sufficient value separated from its situs as part of the earth, to be mined, quarried, or dug for its own sake, or its own specific uses.
    While a vein of pure white quartz sand, valuable for making glass or other special use, may be within a reservation of “ coal and other minerals ” in a deed, common mixed sand merely worth digging, and removing as material for grading, will not be.
    The conveyance of the surface" of land, together -with all the ways, waters, water courses, rights, liberties, privileges and appurtenances, and all the estate, etc., of the grantor, but reserving all coal and other minerals, passes more than the mere superficies of the land for farming purposes, and covers the entire fee except mining for the reserved minerals or interfering with the grantor in such mining.

      Railroads—Eminent domain—Agreement with landownen—Use of material excavated from land.

    When a railroad company obtains a right of way, either by condemnation or by an agreement with the landowner, it has the right to use without further compensation all the suitable material, except timber, within the lines of its right of way for the construction of its road through the property of the landowner ; but if the railroad company goes outside of the lines of its right of way and excavates and takes for its own use material such as common mixed sand, it must pay the landowner the value of such material taken.
    The right to take materials extends no further as against each owner than the boundaries of his own land which has been subjected to a servitude for the construction and maintenance of a railroad through it, but not for construction and maintenance through any other land. For materials taken, which if used in construction upon his own land the owner would not be entitled to be compensated if used by the railroad company elsewhere it must pay him.
    Argued April 12, 1904.
    Appeal, No. 280,, Jan. T., 1903, by defendant, from order of C. P. Luzerne Co., March T., 1903, No. 276, dismissing exceptions to report of referee in case of Joseph Hendler v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for excavating and taking common mixed sand.
    By agreement the case was referred to Rush Trescott, Esq., as referee.
    From the record it appeared that on March 3, 1877, the Northern Coal & Iron Company conveyed the land, from which the sand was taken, to Peter Jumper, “ excepting and reserving, however, to the said the Northern Coal and Iron Company, their successors and assigns, all the coal and other minerals in, under, or upon said lot of land, and also reserving, as aforesaid, the unrestricted right and privilege of mining and removing all of said coal and minerals, or any part thereof.”
    On December 7, 1887, Peter Jumper and wife conveyed the land to the Lehigh Valley Railroad Company “excepting and reserving, however, to the Northern Coal and Iron Company, its successors and assigns, all the coal and other minerals under, in or upon said lot of land.”
    On September 80, 1890, the Lehigh Valley Railroad Company conveyed the land in question to Joseph Hendler. The deed after the description continued as follows:
    “ Being part of the same property conveyed to the party of the first part by Peter Jumper and wife by deed dated 7th December, 1887, and recorded in the Recorder’s Office in Luzerne County, in Deed Book No. 266, page 394, etc.
    “Excepting and reserving as fully and entirely as in the said indenture is excepted and reserved and further excepting and reserving all the gravel necessary for any fill or ballast for the railroad of the party of the first part, and the right to build a dam upon the said premises and flood the same with water, and to lay pipes across and under said premises, and to construct and maintain thereon such pump house or houses as may be necessary for the enjoyment of the rights and estate hereby reserved. Being also the same premises designated on the draft hereto annexed and made part of this indenture.
    “Together with all and singular the ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the party of the first part in law, equity, or otherwise howsoever of, in and to the same and every part thereof.”
    By an agreement in writing dated June 1, 1901, Hendler granted, bargained and sold to the Lehigh Valley Railroad Company a right of way fifty feet in width over the land in question.
    In constructing a railroad over this right of way the railroad company used a large quantity of sand taken from plaintiff’s land, outside of the right of way. Plaintiff claimed treble damages for the taking of this sand. The referee, refused to allow treble damages, and entered judgment in plaintiff’s favor for $1,859.90.
    Exceptions to the report of the referee were dismissed by the court.

      Errors assigned were in overruling exceptions to report of referee.

      Stanley Woodward, of Woodward, Darling § Woodward, for appellant.
    Sand is a mineral within the meaning of the Act of May 8, 1876, P. L. 142: Com. v. Hipple, 7 Pa. Dist. Rep. 399; Griffin v. Fellows, 81* Pa. 114.
    The law on the subject of the title to the materials taken from the right of way of a railroad company is that everything taken above the grade of the road may be used on other portions of the road: 1 Redfield on Railways, 264; 1 Wood’s Railway Law, 658.

      E. M. Nichols, with him F. G. Sturges, for appellee,
    cited: Dunham v. Kirkpatrick, 101 Pa. 36 ; Shoenberger v. Lyon, 7 W. & S. 184.
    May 23, 1904:
   Opinion by

Mb. Chibe Justice Mitchell,

The first question presented by this case is whether the sand, the talcing of which is the trespass sued for, is a mineral within the meaning of the deed between the parties.

In the broadest sense, as belonging to one of the three great divisions of matter, animal, vegetable and mineral, sand of course is a mineral. In the more restricted scientific sense sand may or may not be a mineral according to what it is composed of. In the language of mineralogists air and water are minerals while granite and similar rocks are not minerals but aggregations of minerals. So it is of sand; it may be wholly of grains of silex or other mineral or it may be of several mixed together, and therefore in the technical sense only grains of rock.

It is perfectly clear that the parties here did not use the word mineral in either of the foregoing senses. The first grantor with whom we are concerned, the Northern Coal and Iron Company, conveyed the land to Jumper reserving “all coal and other minerals in, under and upon said land;” Jumper conveyed to defendant with a similar reservation; and the subsequent deed by defendant to plaintiff conveyed the “ surface ” of the land “ excepting and reserving as fully and entirely as in the said (preceding) indenture is excepted and reserved, and further excepting and reserving all the gravel necessary for any fill or ballast for the railroad,” etc. If the word mineral had been used in either of the senses already mentioned it would as a matter of course have included gravel, and the additional special reservation of the gravel.shows that the parties did not consider it as included in the preceding general reservation.

But there is another, and what may be called the commercial sense in which the word mineral is used, and in which having reference to its supposed etymology of anything mined, it may be defined as any inorganic substance found in nature, having sufficient value separated from its situs as part of the earth to be mined, quarried or dug for its own sake or its own specific uses. That is the sense in which it is most commonly used in conveyances and leases of land, and in which it must be presumed that it was used by these parties in the deed in question. “ Coal and other minerals,” the expression used, indicate substances which, like coal, have a value of their own, apart from the rest of the land, sufficient to induce the expense and labor of severance for their own sakes. These the grantor intended and expressed the intention to except from his grant and reserve to himself. While coal was the principal and perhaps the only thing clearly in view, yet the reservation was not meant to be limited to that, for then the addition “ and other minerals ” would be superfluous and misleading. A vein of fine marble would clearly be reserved, and so probably if near enough a market to have a value, would be granite, or limestone or other building material, potter’s or porcelaine clay and the like.

Sand might or might not be in this category. A vein of pure white quartz sand, valuable for making glass or other special use, would be within the reservation, while common mixed sand merely worth digging and removing as material for grading, would not be. The referee has found that the sand which is the subject of the present contention was of this latter character, and was taken and used not for any intrinsic value or use of its own, but, as part of earth and other material to fill up the roadbed to the proper grade. So regarded and used it was not within the reservation.

The next question is the estate of the plaintiff in the land. The conveyance to him was of “ the surface of all that certain lot of land,” with a reference to the deed in the line of title from Jumper to the Lehigh Valley Railroad Company already discussed and “excepting and reserving as fully and entirely as in the said indenture is excepted and reserved and further excepting and reserving all the gravel necessary for any fill or ballast for the railroad of the party of the first part, and the right to build a dam upon the said premises and flood the same with water,” etc.; followed by the usual grant “ together with all and singular the ways, waters, water courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in anywise appertaining, and the reversions and remainders, rents, issues, and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of the party of the first part in law, equity or otherwise howsoever of, in and to the same and every part thereof.”

It is not a fair construction of this grant to limit it to such mere superficies of the land as may be required for agricultural pirrposes even including in such use the building of houses and barns, digging of wells, etc. The words used, especially those descriptive of the hereditaments and appurtenances, including “ all the estate, right, title, interest, property,” etc., of the grantor, are too broad to make such construction reasonable. The fairly apparent intent was to convey to the grantee the entire fee in the land, to use for all purposes except mining or taking the excepted minerals or interfering with the grantor’s reserved right to do so. The learned referee was therefore right in his conclusion that plaintiff had such -estate as enabled him to maintain this action.

The remaining question is the extent of appellant’s right to use the materials on the right of way, without compensation. The right of way was acquired by agreement with the landowner, and it was practically conceded in the argument here that the learned referee was correct in his conclusion that the railroad acquired the same right, title and interest under the agreement that it would have acquired by condemnation under the statute.

By the Railroad Act of February 19,1849, sec. 10, P. L. 79, the railroad company is authorized to enter upon lands surveyed and located for its right of way and thereon to “ dig, excavate and embank, make, lay down and construct ” the road. The use of the materials so dug, excavated, etc., is necessarily implied in the authority to construct, and compensation for them is included in the assessment of compensation or damages for the land taken. This is made still more plain by the further provision in the same section that “ it shall in like manner be lawful .... to enter upon any lands adjoining or in the neighborhood of their railroad so to be constructed and to quarry, dig, cut, take and carry away therefrom, any stone, gravel, clay, sand, earth, wood or other suitable material, necessary or proper for the construction of any bridges, viaducts or other buildings which may be required for the use, maintenance or repair of said railroad,” with proviso that compensation shall be made for such materials and an exceptional proviso as to timber that it shall be obtained from the owner only by agreement or purchase.

When therefore a railroad company obtains a right of way, either by condemnation, or as in this case by an equivalent-agreement, it has the right to use without further compensation all the suitable materials, except timber, within the lines of its way, for the construction of its road through the property of the landowner. Whether such materials are above or below the grade of the road makes no difference. The language of the act is not limited by any such considerations. If it is nec•essary to go outside the lines of their way for sufficient width to support an embankment they may do so but must pay for the additional land occupied, and so if it is necessary to go outside the lines to give the walls of a cut the slope required to prevent sliding or washing down, they may do so on paying for the additional materials taken outside. But within the lines the materials are part of the land taken, and compensation for it includes the whole.

The right however extends no further as against each owner than the boundaries of his own land. His land has been subjected to a servitude for the construction and maintenance of a railroad through it, but not for construction or maintenance through any other land. For the use of his land or materials for the latter purpose he has not been compensated, and if they are taken for that purpose, it must be under the clause of the act as to adjoining or neighboring land already quoted, and upon additional compensation.

The referee in the present ease has found that the defendant “ took, carried away and converted to their own use from the lands of the plaintiff described in the declaration, sand to the amount of 8,542 i cubic yards, equal to 5,314 tons,” and entered judgment for this quantity at the valuation of thirty-five cents a ton. As that quantity was taken from plaintiff’s land, carried away and used on other land, defendant was responsible for its value. Under the circumstances of the taking and use the place, whether above or on or below the grade of the road, and whether within or outside the limits of the right of way was immaterial. Though not reached for exactly the reasons indicated in this opinion the referee’s conclusion was correct.

Judgment affirmed.


source: Caselaw Access Project

author: Mk. Chief Justice Mitchell,

license: Public Domain

text:
    Hendler, Appellant, v. Lehigh Valley Railroad Company.

      Railroads—Taking of material for construction—Minerals—Sand—Act of May 8, 1876, P. L. 142—Treble damages.

    A railroad company cannot be charged with double or treble damages under the Act of May 8, 1876, P. L. 142, for taking common mixed sand for grading and construction purposes, from land over which the company has the right of way.
    Such sand is not a mineral in the commercial sense intended by that act.
    Argued April 12, 1904.
    Appeal, No. 40, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., March T., 1903, No. 276, overruling exceptions to report of referee in case of Joseph Hendler v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J.* Dean, Fell, Mestrezat and Potter, JJ.
    Affirmed.
    Exceptions to report of Rush Trescott, Esq., referee.
    The facts appear by the opinion of the Supreme Court and by the report of Hendler v. Lehigh Yalley Railroad Company, Appellant, ante, p. 256.

      jErrors assigned were in dismissing exceptions to' referee’s report.

      F. M. Niehols and F. O. Sturges, for appellant,
    cited: Griffin v. Fellows, 81* Pa. 114; Com. v. Hipple, 7 Pa. Dist. Rep. 399; Rutledge v. Kress, 17 Pa. Superior Ct. 490.

      Stanley Woodward, of Woodward, Darling Woodward, for appellee.
    May 23, 1904:
   Opinion bt

Mk. Chief Justice Mitchell,

This is a cross appeal from the same judgment as in No. 280 of January term, 1903, see ante, p. 256. The only question in the present appeal is the right of the plaintiff to double or treble damages under the Act of May 8, 1876, P. L. 142.

The language of the act is : “ If any person or corporation shall mine or dig out any coal, iron or other minerals, knowing the same to be upon the lands of another person or corporation, without the consent of the owner, the person or corporation so offending shall be guilty of a misdemeanor, .... and the person or corporation so offending shall be further liable to pay to such owner, double the value of the said coal, iron or other materials so mined, dug out or removed, or in case of the conversion of the same to the use of such offender or offenders, treble the value thereof to be recovered with costs of suit, by action of trespass or trover.”

The learned referee applying the test of the popular understanding of the word “ mineral ” found that the sand which was the subject of the suit not being within such understanding was not reserved by the grantor and therefore sustained the plaintiff’s right of action for defendant’s carrying it away. On the same line of reasoning he further held that sand was not a mineral within the act of 1876 and therefore refused to award plaintiff either double or treble damages. As between the present parties, a different but equally short cut leads to the same conclusion. The plaintiff is the grantee of the defendant by a deed wherein the latter reserved “ all coal and other minerals in, under and upon ” the land. If the sand in question was a mineral, it was reserved by the grantor, and the plaintiff did not own it. If on the other hand it was not a mineral there could be no double or treble damages under the statute.

The various meanings of the word “ mineral ” have been considered in the other branch of this case (ante, p. 256). What was there defined as the commercial sense of the word, to wit: a substance of mineral nature having sufficient value separated from its situs as part of the earth, to be mined, quarried or dug for its own sake, or its own specific uses, is clearly the sense in which it is used in the act of 1876.

' The act is highly penal, both in its criminal and civil aspects and therefore must be strictly construed. Its intent was to give protection to a species of property peculiarly liable to invasion in a new or sparsely settled country, a wrong frequently difficult to discover and for which the only common-law remedy by action of trespass was inadequate. It continues in the same line the policy of the Act of March 29, 1824, P. L. 158, giving double or treble damages against any person cutting down timber trees on the lands of another; and sec: 152 of the crimes act (March 31,1860, P. L. 382) making the same thing a misdeameanor punishable with fine and imprisonment. And in the same line are the acts of April 9, 1869, June 2, 1870, and June 11, 1879, imposing penalties on setting fire to waste, wild or timber lands, barrens or moors. The object in all such legislation was the same, to give a more effective remedy than the action of trespass, by making the wrong not only a misdemeanor punishable criminally, but by giving the injured party full reparation in the way of fixed exemplary damages.

In the present case the defendant appears to have taken the sand under claim of full ownership, and even though that be not sustained, nevertheless under some circumstances and for some uses, such as construction, repair or maintenance of its road through plaintiff’s land, the defendant had a clear right to take it. The statutory trespass which incurs the punitive damages is the mining or digging of the minerals “ knowing the same to be upon the lands of another.” It is doubtful if the case in any aspect is within the definition of the offense.

But however that may be, it is clear that under the findings of the learned referee the sand in question was not a mineral in the commercial sense, or within the terms of the act. To take the word in any other sense would not only be giving a penal statute a very loose rather then a strict construction, but would lead to manifest absurdity. In its broad sense contended for by appellant the word mineral includes all kinds of earth, as well as water, and if so construed the taking of a shovelful of earth from a neighbor’s land, or a bucket of water from his well would be a criminal offense under the statute. No such drastic application of its words was within the intention of the legislature, and the intention is as mandatory a consideration in the construction of a statute as of a contract.

Appellant has cited two cases, but neither of them contains anything repugnant to the view we have expressed. In Com. v. Hipple, 7 Pa. Dist. Rep. 399, Judge McPherson instructed the jury that sand was a mineral within the act of 1876. As we have said in the other branch of this case (ante, p. 256) sand according to the circumstances may or may not be a mineral in the commercial sense, intended by the statute. The report of Com. v. Hipple is very brief and there is nothing to indicate that in the facts in that case the sand was not shown to have been dug and carried away for its own specific use or value and so brought within our construction of the statute.

In the other case, Ruttledge v. Kress, 17 Pa. Superior Ct. 490, the Superior Court held that building stone was a mineral within the statute, and taking it even from an open quarry* entitled the owner to recover treble damages. This was in exact harmony with out present decision.

Judgment affirmed.


author: Per Curiam,

text:
    In re Martin. Mates’s Appeal.

      Mines and mining—Removal of mine inspector—Act of June 8, 1901, P. L. 535—Appeals—Certiorari.

    There is nothing in the Act of June 8, 1901, P. L. 535, providing a summary method for removing a mine inspector for negligence or incompetency, to sustain a petition for his removal because of his .ineligibility for the appointment, or want of jurisdiction in the court appointing him, or want of co-operation and confidence of the miners.
    Ineligibility for the appointment, or want of jurisdiction of the court to appoint, are grounds for ouster on quo warranto, but not for summary deprivation of office on petition under the act.
    On appeal from an order of the court dismissing such petition the Supreme Court will consider the case as upon certiorari.
    It seems that under the Act of June 8, 1901, P. L. 535, where a mine inspector appointed by the governor resigns, the judges of the court of common pleas have jurisdiction to fill the vacancy from among applicants possessing the proper qualifications.
    Argued April 13, 1904.
    Appeal, No. 43, Jan. T., 1904, by plaintiffs, from order of C. P. Luzerne Co., Jan. T., 1904, No. 217, dismissing petition to remove mine inspector in case of William Mates et al. v. James Martin.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Potteb, JJ.
    Affirmed.
    Petition to remove mine inspector.
    The facts appear by the opinion of the court below which was as follows:
    Pursuant to the provisions of the mine ventilation act of June 2, 1891, Mr. Gr. M. Williams was duly appointed by the governor to the office of inspector of mines. His term of office had not expired on January 1, 1902, when the amendatory act of June 8, 1901, went into effect. Before its expiration he resigned and Mr. E. E. Reynolds was appointed to fill the vacancy so occasioned. Mr. Reynolds resigned in December, 1903, whereupon the respondent was appointed in his stead by the judges of the court of common pleas of Luzerne county, pursuant to the provisions of section 13 of the act of 1901. In April, 1902, Mr. Martin had passed the examination prescribed by the act, and on May 16, 1902, had filed with the county commissioners the certificate to that effect required by law. ■ A subsequent examination was held in June, 1903, at which the respondent did not appear for re-examination.
    It is contended (1) that because he was not so re-examined he was ineligible as a candidate for appointment, and (2) that even if he were eligible, the judges were not empowered by the act of 1901, to appoint to a vacancy caused by the resignation during the term of office of an inspector appointed by.the governor under the act of 1891.
    Section 3 of article 2 of that act (viz : the old act of 1891) provides for the appointment of an examining board, etc., for the purpose of filling “ any vacancy that may occur in the office of inspector of mines by reason of resignation, removal for cause, or from any other reason whatever.”
    In view of that fact that the examiners were appointed “ In order to fill any vacancy,” etc.—and since the old act fixed no time for the performance of their duties, they might well doubt whether they had any right to hold an examination until after the vacancy occurred, and in practice this rule seems to have prevailed.
    The practical result was that, in case of vacancy, the district concerned must remain without an inspector, and the dangers of such a situation continue for at least two weeks, pending advertisement of the examiners’ meeting, and as much longer as might be required to complete the examination, select a candidate for recommendation to the governor, and have him properly commissioned. Indeed, the act contemplates a possible disagreement of the examiners in their selection, in which event the court must dissolve the board and appoint a new one with like additional delays. It is quite conceivable that successive disagreements by sucessive boards might postpone appointment to the vacancy for a long period, during which the district would be without a local inspector.
    This defect is removed by the amendment of 1901, requiring examinations to be held at least yearly whether vacancies exist or not, and thus creating a body of competent men from whom an inspector may be promptly selected whenever a vacancy occurs. The amendment does not merely add something to or change some provision of the former enactment, but abrogates it entirely and substitutes a new one. Article III of the act of 1891 is amended “ so as to read ” in a particular way. This operates as a repeal of all its former provisions not incorporated in the amendment: Reid v. Smoulter, 128 Pa. 824; Luzerne Water Co. v. Toby’s Creek Water Co., 6 Kulp, 237.
    Among the matters retained in the new article is the expression of the purpose of its enactment. As in the old act, so in the new, the article covers the subject, “ Inspectors and Inspection Districts,” and provides for the appointment of examiners, etc., “ in order to fill any vacancy in the office of inspector of mines.” The act is surely broad enough to cover any such vacancy whatever, whether the former incumbent had been appointed under the old act or elected under the new. Indeed, the continuance in office after the amendment should go into effect, of inspectors appointed by the governor under the act of 1891 is expressly recognized and provided for in section 7 of the amendatory act.

      So also the term of office (five years) created by the former act is distinctly recognized and referred to in .that section. It is there provided that the “ present inspectors who hold office under the appointment of the governor of the commonwealth shall continue in office until the expiration of the term for which they have been appointed,” and that “ at the expiration of the term of office ” of any such inspector the vacancy so occasioned shall be filled by election. If it occur in any other way—as by resignation during the term-—-there is no provision for filling it other than by appointment by the judges as prescribed by section 13. If it could not be filled in that way it could not be filled at all. The governor could not do it (1) because the act empowering him to appoint has been repealed, and (2) because, if it had not been, he could only appoint for a full term of five years, whereas the amendment expressly requires an election for three years at the end of existing terms of office. - The judges could not do it because not authorized. Such a vacancy must, therefore, remain unfilled, thus defeating to that extent the express purpose of the enactment to provide for the filling of any vacancy that may occur, etc.
    We are of opinion that section 13 contemplates that “any vacancy in the office of inspector of mines ” which occurs during the term for which the former incumbent was appointed or elected is to be filled by the judges by appointment for the unexpired term, “ said appointee to be one of the persons having filed with the county commissioners of said county a certificate from the board of examiners showing that he passed a successful examination before the said board, and is duly qualified as hereinbefore mentioned”—i. e., qualified as a candidate for election would have to be, as specified in section 9. That is to say, the appointee must possess these qualifications : (1) He must have filed the required certificate, (2) be a citizen of Pennsylvania, (3) thirty years of age or more, (4) have knowledge of the different systems of mining, (5) must have produced to the examining board evidence of five years’ experience, etc., (6) must have had experience in mines where explosive gases are evolved.
    If a person possessed these qualifications in May, 1902, it is to be presumed that he continued to possess them in December, 1903.

      In construing the act of 1901 the question, of course, is what was the intention of the legislature, and that, equally of course, is to be ascertained from the enactment taken as a whole.
    As we interpret the statute, they intended, amongst other things :
    1. That the amendatory provision entitled “ Article II—Inspectors and Inspection Districts ” should be a substitute for and fully supply that part of the act of 1891 also entitled “ Article II—Inspectors and Inspection Districts.”
    2. That they meant to remedy the mischief of a possible long delay in filling a vacancy in the office of mine inspector, by requiring frequent examinations (at least annual) without regard to whether a vacancy existed or not, and thus supply a reserve force of competent men from whom vacancies could be filled without delay.
    8. That they contemplated the filling of a vacancy by election, only where such vacancy should arise by expiration of the term of office and not where it should occur during said term, and that without regard to whether the term began by reason of election under the new act or by appointment under the old.
    4. That the lawmakers used the phrases “said inspector” and “ said term of office ” with reference to the preceding context of the enactment as a whole, referring to elected inspectors only or to mine inspectors as a class, irrespective of how they were chosen, according to whether the one reference or the other would best harmonize with their general intent to cover the entire subject of “ Inspectors and Inspection Districts.” For example, where in section 10 it is provided that “The salary of each of said inspectors shall be three thousand dollars per annum,” etc., the legislative purpose was to fix the salary to which a mine inspector should be entitled, whether elected or appointed, and not merely to provide compensation for elected inspectors and leave appointed inspectors unprovided for. '
    Nor in our opinion did they intend by sections 12 and 15 to impose the duties therein prescribed upon inspectors by election only; nor, by section 14, that if an elected inspector should become incapacitated a deputy might be appointed, but not if the incapacitated officer happened to be appointed instead of elected; nor, by section 19, to give this court jurisdiction to investigate charges of incompetency or malfeasance, etc., in case the inspector in question were elected and to deny such jurisdiction where (as in this case) the official concerned was appointed. Neither, by parity of construction, do we think that by section 18 it was intended that, if a vacancy occurred during the term of office of an elected inspector it could be filled by appointment, but if during the term of an appointed inspector it could not be filled at all. Such a construction, as already observed, would be manifestly at variance with the expressed purpose of the legislature to provide a way by this act for the filling of “any vacancy that - may occur in the office of inspector of mines.”
    Assuming that the judges have the power to appoint to the vacancy here in question, there is nothing in the act restricting the exercise of that power to candidates whose successful examination shall have been passed within one year or any other specified period before the time of appointment. It might be that at the time fixed for the latest examination no candidates appeared, while a dozen may have passed successfully at the last preceding one and filed their certificates. And that might have been a month earlier, for the act leaves the frequency of the examination to be fixed by the board, “ at least ” one to be held each year. Was it the legislative intent that in such case no appointment could be made until the dozen who had qualified themselves by doing all that the act required them to do should have done something more which the act does not require them to do, to wit: pass another examination within a particular period of time ? To so hold would be to read into the statute what is not there and thus bring about that delay in filling this important position which it was the apparent object of the act to avoid. The evident purpose of the requirement for an examination is to obviate the danger of an incompetent and unfit person being chosen as a mine inspector. If this purpose could only be effected by a yearly re-examination of the same person, the legislature, presumably, would have said so. On the contrary they have provided that one examination shall qualify an elected inspector for three years, without a re-examination during his term,—yearly or at any other stated time.

      The lawmaking power has seen fit to impose upon the judges the duty of selecting a proper person from among those possessing certain specified qualifications. Such selection has been confided to their discretion. In its exercise it is to be presumed that they will be guided by those same considerations of fairness and good judgment which should influence the performance of judicial functions. Thus, for example, we may conclude that the legislature assumed that the judges would not appoint some one whose certificate of examination was so old as to afford no evidence of his fitness to cope with modern conditions, and so refrained from introducing into the act a time limitation which might be productive of more harm than good. If, in the exercise of their discretion the judges were to draw from the act some indication of the legislative intent as to limitation of time in this respect, such intent would seem to be that the passing of an examination would qualify any one who succeeded in doing so for not less than three years ; for it would surely be fair to assume that if it qualified a man who was elected to office for a period of three years, it would equally qualify another man who passed the same examination for a like period of time, even though the latter should not happen to be elected.
    Upon a careful consideration of the testimony in the case and of the arguments advanced by the learned counsel for the petitioners, we are not satisfied that any valid and sufficient reason exists, either in fact or in law, calling for the revocation of Mr. Martin’s appointment or his removal from office.
    The petition is therefore dismissed.

      Error assigned was the order dismissing the petition.

      E. W Palmer, with him George E. Troutman and George J. Llewellyn, for appellant.

      ■John T. Lenahan and Thomas F. Farrell, for appellee.
    May 23, 1904:
   Per Curiam,

This was a petition by fifty coal miners asking the court “ to revoke the appointment of James Martin to the office of mine inspector.” .

The ground of the petition is stated in general to be “ that the same James Martin is incompetent ” (meaning ineligible) “ to perform the duties of the said office for causes that existed prior to his appointment, viz.” specifying first, that Martin did not appear before the board of examiners in June, 1908, the last examination before his appointment as required by the act- of June 8, 1901, and did not file the required certificate from the board; second, that Martin was passed at the examination in 1902 by the lowest possible average to qualify him, was a candidate at the next general election and was defeated; third, that Martin’s certificate of examination in 1902 was never filed in the county commissioner’s office as required by law; fourth, that the court had no authority to fill the vacancy to which Martin was appointed ; and fifth, that “ wanting the confidence and co-operation of the men employed in the mines ” Martin cannot “ effectively or efficiently perform the duties of the office.”

The petition professes to be under the Act of June 8, 1901, P. L. 535, but it is clearly not within its provisions. By section 19, P, L. 545, on a petition by fifty or more reputable coal miners setting forth that any inspector of mines who “ neglects his duties, or is incompetent, or is guilty of malfeasance in office, ” the court shall issue a citation and if upon investigation it finds that the said inspector “ is neglectful of his duties, or is incompetent to perform the duties of his office for any cause that existed previous to his election or that has arisen since his election, or that he is guilty of malfeasance in office ” it shall remove him and proceed to fill the vacancy.

This is a statutory proceeding by which an officer, whether only appointed to-fill a vacancy or regularly elected for a full term, can be deprived of his office upon summary hearing by the court upon charges preferred by irresponsible parties not even required to set forth that they are citizens or residents of his district. All such proceedings must show clear statutory authority to support them, and must follow the statutory provisions strictly. The present petition entirely fails in this respect. None of the grounds set forth in it is within the statute. The. first three aver ineligibility for the appointment, and the fourth, want of jurisdiction in the court to appoint. These if valid objections are grounds for ouster on quo warranto but not for summary deprivation of office on petition under the act. Of the fifth and last ground set up, that the miners will not cooperate with Martin and regard him with dislike, it is enough to say that it is not within the statutory grounds of removal and to sustain it would vest the appointment of inspectors in the miners instead of the voters or the court where the law places it.

We pass over the question of the right of appeal in such statutory proceedings, argued by appellee, and have considered the case as upon certiorari. If the court had granted the prayer of petition and removed Martin we should have been obliged on certiorari to reverse the order for plain want of jurisdiction under the statute, apparent on the face of the record. For the same reason we must now sustain the court in dismissing the petition.

In the view we take of the case the question of the jurisdiction of the court to fill the vacancy does not necessarily arise at the present time, but as it was carefully considered in the court below and has been elaborately argued in the paper-books here, we think proper to say that the opinion of the learned court below is a convincing vindication of its authority to appoint.

Order affirmed.


author: Per Chriam,

text:
    Commonwealth v. Mitchka, Appellant.

      Criminal law—Murder—Self-defense.

    To justify homicide in self-defense there must be actual imminent peril of life, or of great bodily harm, or a reasonable belief, founded on facts as they appear at the time of such imminent peril, and in addition there must be no other means of escape.

      Criminal law—Murdei—Alibi—Self-defense.

    Where on the trial of an indictment for murder the defense is a total denial of the killing, based on an alibi, points in regard to self-defense are irrelevant.
    Argued April 14, 1904.
    Appeal, No. 74, Jan. T., 1904, by defendant, from judgment of 0. & T. Luzerne Co., April T., 1908, No. 355, on verdict of guilty of murder in the second degree in case of Com. v. Mitchka.
    Before Mitchell, C. J., Dean, Fell, Mestbezat and Potter, JJ.
    Affirmed.
    Indictment for murder.
    At the trial the prisoner was found guilty of murder in the second degree.

      Error assigned among others was the answer to the point quoted in the opinion of the Supreme Court.

      P. A. O’Boyle, with him M. IF. Donnelly, for appellant.

      B. B. Jones, for appellee, was not heard.
    May 23, 1904:
   Per Chriam,

As the defense was a total denial of the killing, based on the claim of an alibi, the points in regard to self-defense were irrelevant. But in any view, even if the jury should find, as they did against the alibi and that the prisoner was there and did the killing, the points were properly answered. The first point and the answer of the court cover substantially the whole alleged error, and are as follows :

“ That whoever did the killing on the night in question, it was not necessary that he be in actual imminent peril of life or of great 'bodily harm before he may slay his assailant. It is sufficient if in good faith he has a reasonable belief founded on facts as they appear to him at the time that he. is in such imminent peril, even though it should afterwards appear that he was mistaken. The law will not hold a man to absolute correctness of judgment under such trying circumstances.”

To this the court answered : “ There is one very essential ingredient that is omitted from this point and that is that he had no other means of escape, which the Supreme Court has said is necessary to justify the affirmation of a point couched in these words ; and therefore, it is negatived.”

This was in entire accord with our cases. See Com. v. Drum, 58 Pa. 9, and Com. v. Breyessee, 160 Pa. 451.

In the present case, one witness, the man Burns at whom the shot was apparently fired, had testified that he had told the man who fired the shot, whoever he was (but identifying the prisoner) to “ go on about Ms business ; ” the latter then pulled a weapon and Burns seeing the weapon shine and thinking it was a stiletto ran across the street, was chased by the man and fired at twice, and then the shots were fired into the crowd and McHugh killed. In view of this testimony in the case it was more than ordinarily material that any statement to the jury of the law of self-defense should include all the essential elements, and the bare affirmation of the defendant’s points would have been clear error against the commonwealth.

Judgment affirmed.


author: Per. Curiam,

text:
    Greis, Appellant, v. Hazard Manufacturing Company.

      Negligence—Fall through open space in floor—Evidence.

    In an action against an owner of a building to recover damages for personal injuries sustained by falling through an unguarded open space in a floor, the trial court commits no error in directing a verdict for the defendant where the evidence shows that the plaintiff did not go into the building by the usual and ordinary entrance, but that he went in through a door at which goods were unloaded from cars, which was three feet and eight inches above the level of the tracks and upon which was a notice forbidding persons to enter.
    Argued April 14, 1904.
    Appeal, No. 77, Jan. T., 1904, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1901, No. 8, on verdict for defendant in case of Jacob Greis v. Hazard Manufacturing Company.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter., JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Halsey, J.
    At tbe trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant.
    On a motion for a new trial Halsey, J., filed the following opinion:
    On January 2, 1901, Jacob Greis, the plaintiff, was employed as a driver by A. Ryman & Sons, lumber dealers in the city of Wilkes-Barre. On January 2, he was directed by his firm to deliver a load of lumber to the Hazard Manufacturing Company in the city of Wilkes-Barre. He left the yard of his employers and proceeded out Lehigh street to Hazle street, where he approached the place of delivery of the defendant company. Some of the emplojrees of the defendant company who were engaged in remodelling the buildings were on the westerly side of Hazle street on a vacant lot on the opposite side of the street from the premises on which the buildings of the defendant were erected. When he reached the defendant’s place of business, he met a man by the name Westfield who was a laborer employed about the works of the defendant company. He asked Mr. Westfield where the foreman was and Mr. West-field told him. Greis, the plaintiff, proceeded from Hazle street to pass into the defendant’s building. This entrance had upon the doors notices of various kinds forbidding persons to enter. It was a place of entrance for cars that were shifted from the Pennsylvania railroad tracks and for wagons hauling the product manufactured upon the premises, which was wire. At the left after the entrance had been made, there were six doors. These doors were three feet and eight inches above the level of the tracks and of the roadway. They were sliding doors and opened into a storeroom of the defendant company where wire was kept in stock. The wire was admitted and removed from these doors from cars and from wagons. The floor of the storeroom, which was the sill of the door, was on the ordinary level of the floor of a freight car or the bottom of the box of a wagon. The plaintiff found the third door entering into th.e storeroom open. He climbed up over the elevation of three feet and eight inches and entered this storeroom. The room was dark and after walking ten or twelve feet, he fell into an open space passing to a lower floor and was quite seriously injured. The open space was used for the purpose of carrying the product manufactured upon the premises from one story to another. The stairs that he was in search of were located beyond the elevator pit and near the sixth door. AU the doors had the same elevation above the level of the tracks and of the roadway, namely, three feet and eight inches, and they all entered into the storeroom. At the sixth door there were steps leading from the bottom of the tracks and of the roadway into the storeroom. These steps were visible from the entrance on Hazle street. The office of the defendant company fronted on Ross street. .
    At the close of the testimony in the case, we gave binding instructions to the jury to find in favor of the defendant. The plaintiff alleges in his argument upon this motion that such instruction was erroneous. In the statement filed by the plaintiff, his cause of action is alleged as follows : That while the said plaintiff was proceeding through and over the usual and ordinary passage or way leading to said stairway on the first floor of the said building with which he was unacquainted and whilst using due care and caution in walking thereto, he was precipitated and fell through an elevator opening or well in said floor which was unfenced and unguarded to the basement or cellar floor of the said building several feet below.
    If the testimony given in the trial of the case had shown that the place where the plaintiff entered was the usual and ordinary passage or way leading to said stairway on the first floor of the said building, then there would be a question of fact as to whether negligence had been committed by the defendant in not keeping the elevator opening or well, guarded and protected, so that persons who were rightfully there, might not be injured from falling into the same. There was no such testimony in the case. There was testimony that the employees of the defendant company used these doors for the purpose of loading and unloading wire from cars and wagons, but no testimony that it was the usual and ordinary way leading from the Hazle street doors to the stairway in the wireroom near to the sixth door leading from the tracks and wagon entrance.
    In the case cited by the plaintiff, McKee v. Bidwell, 74 Pa. 218, there was testimony of three witnesses that the way that the plaintiff in that case traveled was a thoroughfare; that it had been traveled by the plaintiff in passing to the office before the time of the accident and that it had been traveled by other persons upon like errands to the office. That no objection had ever been raised by the defendant or his representatives to such entrance. There was no testimony of this kind in the case at bar.
    We held that the testimony failed to show negligence on the part of the defendant, but it went further by showing that the defendant had exercised ordinary care against the entrance of persons through the doors that the plaintiff entered upon the defendant’s premises : Baran v. Reading Iron Co., 202 Pa. 274.
    A party cannot recover damages for an injury which, by the exercise of reasonable care, he might have avoided. Negligence is ordinarily for the jury, but when the facts are uncontroverted, their legal effect is for the court: D. L. & W. Railroad Co. v. Cadow, 120 Pa. 559.
    Where there is no conflict of testimony and either the standard of individual duty has been judicially determined or the rights of the owners of the property have been judicially defined, the decision of a question of negligence affecting individual action in the one case or the exercise of dominion over property in the other, becomes the duty of a court. Negligence is to be found upon evidence and is not to be presumed from the bare fact of the occurrence of an accident on a defendant’s land : Gramlich v. Wurst, 86 Pa. 74.
    It has been held that a contractor who hires a carpenter to do the furring on a room is not bound to maintain artificial lights to prevent the carpenter from going out of the regular passageway to the building and will not be liable if he wanders in the darkness of the building and falls through unguarded openings : Murphy v. Greeley, 146 Mass. 196 (15 N. E. Repr. 654).
    An action cannot be maintained against a city for an injury sustained from an unguarded pit existing hear to an approach to its courthouse: Cunningham v. St. Louis, 96 Mo. 53 (8 S. W. Repr. 787) ; and a mere licensee must avoid patent dangers at his peril upon premises such as an open pit not concealed otherwise than by darkness: Reardon v. Thompson, 148 Mass. 267 (21 N. E. Repr. 369). See note, McAlpin v. Powell, 26 Am. Rep. 564.
    It has been held that whenever the facts are ascertained, the rule of conduct, or in other words, the rule of law to be applied is to be determined and laid down by the court and is not to be left to be defined by the accidental feelings of a jury. . . . The definition of negligence and the determination of a standard of duty is always a matter of law for the court. In case of dispute, it is of course for the jury to say whether or not the facts come within the standard, but where the facts are clear and nothing remains but the definition and application to them of the rule of conduct, the responsibility is upon the court alone : Custer v. B. & 0. Railroad Co., 206 Pa. 529.'
    At the close of the testimony, we were unable to find that it anywhere disclosed that as a result of the defendant’s negligence the plaintiff was injured. The negligence alleged was that the plaintiff entered the usual and ordinary passageway leading-to the stairway on the first floor of the building. The testimony did not sustain this allegation, but went further and made it clearly apparent that the place of entrance by the plaintiff was not the usual and ordinary passageway leading to the stairway.
    From a further and more careful consideration of the testimony and an examination of the rules applicable, we must deny this motion.

      Error assigned was in giving binding instructions for defendant.

      John MoGahren, with him Frank A. MoGuigan, for appellant.

      Eenry A. Fuller, with him John T. Lenahan, for appellee.
    May 23, 1904 :
   Per. Curiam,

The judgment is' affirmed on the opinion of the court below refusing a new trial.


author: Mr. Justice Brown,

text:
    Altoona Belt Line Street Railway Company, Appellant, v. City Passenger Railway Company.

      Street railways'—Location of route—Continuous route—Streets already occupied.

    Where a street railway company locates a portion of its route upon a street already occupied by tracks of another company in constant daily use, over which tracks it has no right to run, it has not a continuous route, and can construct no portion of the route specified in its charter.

      Argued April 18, 1904.
    Appeal, No. 250, Jan. T., 1903, by plaintiff, from decree of C. P. Blair Co., Equity Docket C, No. 451, dismissing bill in equity in case of Altoona Belt Line Street Railway Company v. City Passenger Railway Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity to restrain interference with the construction of a street railway.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      W. II Sponsler, with him A. V. Eively, for appellant.

      Silas W. Pettit, with him A. J. Riley and E. J. Neff, for appellee.
    May 23, 1904:
   Opinion by

Mr. Justice Brown,

When the Altoona Belt Line Street Railway Company applied for its charter, issued to it on June 19, 1901, a portion of its proposed route was oyer certain streets on which the City Passenger Railway Company of Altoona had laid its tracks, and they were “ in constant daily use for the transportation of passengers.” The charter of the appellant gave it no power to occupy in the construction of its railway the streets already occupied and used by the appellee. A charter assuming to confer such power would be nugatory, for it would be “ in hostility with the law of its creation : ” Homestead Street Railway Co. v. Pittsburg and Homestead Electric Street Railway Co., 166 Pa. 162. That law authorized a charter for the construction of a street railway only on streets and highways “ upon which no track is laid, under any existing charter, and in constant daily use for the transportation of passengers at the time of the application by another company for a charter to use such street.”

If the appellant cannot construct its railway on the street occupied by the appellee at the time its charter was issued, neither can it use the tracks of the latter on those streets; for, although the legislature undertook to confer such power upon a subsequently incorporated street railway company, we have held that it cannot be exercised, as the legislation granting it is violative of the constitution: Philadelphia, Morton and Swarthmore Street Railway Company’s Petition, 203 Pa. 354, and Commonwealth ex rel. v. Uwchlan Street Railway Company, 203 Pa. 608.

The requirement of the act under which the appellant was incorporated is that it shall have a continuous route. This is impossible, because it adopted as part of its continuous route, recited in the application for its charter, certain streets upon which it can neither construct its railway nor run its cars over the tracks already laid. As it cannot, then, construct or operate the whole of its charter route, the construction or operation of any portion of it would be without warrant of law: Hannum v. Media, Middletown, Aston and Chester Electric Railway Co., 200 Pa. 44. It is, therefore, manifest that the appellee is not interfering, and will not interfere with any right possessed by the appellant, and the bill ought to have been dismissed.

Decree affirmed at appellant’s costs.


text:
    Altoona Belt Line Extension Street Railway Company v. City Passenger Railway of Altoona.
    Argued April 18, 1904.
    Appeal, No. 249, Jan. T., 1908, by plaintiff, from decree of C. P. Blair Co., dismissing bill in equity in case of Altoona Belt Line Extension Street Railway Company v. City Passenger Railway Company of Altoona.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, J J.
    Affirmed.
    May 23, 1904:
   Opinion by

Mr. Justice Brown,

The court below found that this appellant, the Altoona Belt Line Extension Street Railway Company, formed, with the appellant in No. 250, January term, 1903, but one corporation. We assume that the purpose of its incorporation was only to extend the operations of the other company. No paper-book was printed in this appeal, and it was stated on the argument of the other that the same disposition ought to be made of each.

Decree affirmed and appeal dismissed at appellant’s costs.


text:
    Curry v. Erie City, Appellant.

      Negligence—Bicycles—Defect in asphalt pavement—City.

    In an action by a girl fourteen years old against a city to recover damages for personal injuries sustained by a fall from a bicycle, a verdict and judgment for plaintiff will be sustained where the evidence shows that the accident occurred on an asphalted street, that the fall was due to a depression caused by the subsidence of the foundation so that the surface of the asphalt had sunk but was not broken, that the defect was not noticeable until the rider came near it and that plaintiff had no knowledge of the condition of the pavement.
    Argued April 25, 1904.
    Appeal, No. 128, Jan. T., 1904, by defendant, from judgment of C. P. Erie Co., Sept. T., 1901, No. 95, on verdict for plaintiff in case of Stella Curry by her mother and next friend, Sarah Curry, and Sarah Curry in her own right, v. City of Erie.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    At the trial it appeared that on June 28,1900, shortly after one o’clock in the afternoon, plaintiff, while riding her bicycle home from school, was thrown from her wheel by a depression in an asphalt pavement, and seriously injured. The depression was caused by the subsidence of the foundation so that the surface of the asphalt had sunk, but was not broken. There was evidence that the defect was not noticeable until the rider came near to it. Plaintiff had no knowledge of the defect.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $8,308. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      William, G. Crosby, city solicitor, for appellant.

      T. A. Lamb, with him J. W. Sproul, for appellee.
    May 23, 1904:
   Per Curiam,

The only question in this case is on the contributory negligence of the plaintiff in riding her bicycle into a hole in the street without properly looking where she was going. But though called by most of the witnesses a hole, the defect was rather a depression caused by the subsidence of the foundation so that the surface of the asphalt had sunk but was not broken, and there was testimony that the defect was not noticeable until the rider came near it. Under such circumstances the question of negligence was for the jury.

Judgment affirmed.


author: Pee Cueiam,

text:
    Gundaker v. Ehrgott, Appellant.

      Equity—Equity practice—■Findings of fact—Review.

    Findings of fact by the trial judge in a suit in equity for an accounting, when based upon sufficient evidence, will not be reversed in the absence of manifest error.

      Equity■—Equity practice—-Equity pleading—Responsive answer—Evidence.

    The evidence of one witness with corroborating circumstances is sufficient to overcome a responsive answer to a bill in equity.
    Argued April 25, 1904.
    Appeal, No. 207, Jan. T., 1903, by defendant, from decree of C. P. Crawford Co., May T., 1901, No. 6, on bill in equity in case of Andrew M. Gundaker and Frank Ehrgott v. Jacob Ehrgott.
    Before Mitchell, C. J., Dean* Brown, Mestrezat and Thompson, J J.
    Affirmed.
    Bill in equity for an account. Before Thomas, P. J.

      Error assigned was in decreeing an account.

      Thomas Roddy,•with him C. F. Davenport and Otto Kohler, for appellant.

      George W. Haskins, with him II. J. Humes, E. Lowry Humes, Frank P. Bay, E. W. McArthur and John 0. McOlintoek, for appellee.
    May 23, 1904:
   Pee Cueiam,

The questions raised are questions of fact on which we have not been convinced that the court below was in error. The only question that can properly be called one of law was upon the weight of a responsive answer in equity, but as the court found corroborative circumstances in addition to the testimony against the answer we see no error in that respect.

Decree affirmed.


text:
    Eckels v. Stuart.

      Partition—Practice, C. P.—Master’s report—Insufficient findings—Review.

    Where two masters make two reports conflicting as to facts and law as to the proper distribution of a fund raised by a sale in partition, and the court makes no clear findings of its own as to the essential facts of the case, the decree will be reversed with directions to send the case to a new master for a specific report on the facts and the respective claims on the funds.
    Argued April 25, 1904.
    Appeal, No. 223, Jan. T., 1903, by Harrisburg Trust Company, from decree of C. P. Cumberland Co., on bill in equity in case of J. W. Eckels v. Mary L. B. Stuart.
    Before Mitchell, C. J., Dean, Beown, Mesteezat and Thompson, JJ.
    Affirmed.
    Bill in equity for partition.
    The opinion of the Supreme .Court sufficiently states the case.

      Error assigned was the decree of the court.

      W F. Sadler, for appellant.

      E, M. Biddle, Jr., for appellee.

      May 23, 1904:
   Per Curiam,

This case is unfortunately not in condition to enable the court to decido it intelligently. Two masters in partition were appointed and after a sale of the property made separate reports as to the proper distribution of the fund, differing not only as to the facts and the law as between the litigating parties, but also as to more personal matters. The learned court below devoted most of its opinion to a criticism of one of the reports, and then made a qualified confirmation of the other, with some exceptions, but it made no clear finding of its own, as to the essential facts on which the cardinal question of the discharge of the mortgage by the sale must finally turn. The consequence is that we are presented with diverse views of such facts, and with no clear standard by which to decide between them. The.decree is therefore reversed, with directions to send the case to a new master for a specific report on the facts and the respective claims on the fund. Costs of this appeal to abide the final adjudication.


author: Mb. Justice Mestbezat,

text:
    Highlands, Appellant, v. Philadelphia & Reading Railroad Company.

      Evidence—Fraud—Equitable /defense—Commons-law action.

    Under the mixed system of jurisprudence which prevails in Pennsylvania, it is permitted in a common-law action to interpose an equitable defense, which, however, to be successful must be supported by proof of a character and degree that will satisfy the conscience of a chancellor.
    Where the character and measure of proof are sufficient to satisfy the conscience of the trial judge were he sitting as a chancellor, that-the party is entitled to the equitable relief he seeks, the case should be submitted with proper instruction to the jury, and a verdict in accordance with the proof should be sustained. If, when such proof is submitted the judge refuses to send the case to the jury, or having submittéd it to the jury and the verdict is in accord with the proof but is set aside, the action of the court may be reviewed, and the right of the party to equitable relief may be enforced on appeal.

      Evidence—Reformation of written instrument—Fraud.

    In order to reform a written instrument on the ground of fraud, accident or mistake, the proof must be clear, precise and indubitable. What is meant by “indubitable” proof in connection with such cases, is evidence that is not only found to be credible, but of such weight and directness as to make out the facts alleged beyond a reasonable doubt.
    In an action against a railroad company to recover for the loss of property burned through the alleged negligence of the defendant in permitting sparks to be emitted from a locomotive, the defendant set up a release given by the plaintiff to the defendant company in full for all claims for loss sustained in consequence of the fire. The plaintiff testified that the release was for the value of the property which was uninsured, which was about one third of the value of the whole property destroyed. He further testified that not being able to read at the time, the agent of the defendant read the release to him as if it were only for the uninsured property, and that he had signed it on the assurance that it was so written. All of the negotiations leading up to the release tended to sustain plaintiff’s testimony, and it was fully corroborated by the testimony of his wife. It was contradicted by the agent. Another witness, however, testified that the agent had said that he had paid plaintiff for that part of his property destroyed by the fire that was not insured. Held, that the evidence was sufficient to justify a chancellor in reforming the release.
    Mitchell, C. J., dissents.
    Argued April 25, 1904.
    Appeal, No. 301, Jan. T. 1903, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1902, No. 102, on verdict for defendant non obstante veredicto in case of Edward Highlands v. Philadelphia & Reading Railroad Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Reversed.
    Trespass to recover damages for the loss of property alleged to have been burnt by defendant’s negligence. Before E. W. Biddle, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendants non obstante veredicto.

      F. E. Beltzhoover, with him E. M. Biddle, Jr., for appellant.
    To reform a written instrument on the ground of fraud the testimony must be clear, precise and indubitable.
    The testimony in a case is indubitable when it satisfies the minds of the jurors (a) that the witnesses .are credible; (6) that the facts are distinctly .remembered, and (c) that the details are exactly narrated and are true: Spencer v. Colt, 89 Pa. 314.
    If the witnesses are believed by the jury the testimony is indubitable and the jury are the sole judges of their credibility.

      Fraud in fact is a question exclusively for the jury: Dornick v. Reichenback, 10 S. & R. 84 ;. Jack v. Dougherty, 3 W. 151; Graham v. Smith, 25 Pa. 323; Loucheim v. Henszey, 77 Pa. 305.
    On a question of fraud in a conveyance it is for the jury to say what weight is to be attached to the evidence: Painter v. Drum, 40 Pa. 467.
    The credibility of the witnesses is exclusively for the jury: Lamb v. Irwin, 69 Pa. 436.
    One who attempts to reform a contract on the ground of fraud is not required to restore that which in any event he would be entitled to retain either by virtue of the contract sought to be set aside or of an original liability: Kley v. Healy, 127 N. Y. 555 (28 N. E. Repr. 593); Ettinger v. Jones, 21 Atl. Repr. 137 ; R. R. Co. v. Lewis, 109 Ill. 120.
    If a defendant obtains the signature of the plaintiff to a paper purporting to be a settlement and discharge of the cause of action by fraudulent representations that it is merely a receipt for a gratuity the plaintiff may maintain his action without returning the money paid him : Mullen v. R. R. Co., 127 Mass. 86; R. R. Co. v. Welch, 52 Ill. 183; O’Donnell v. Clinton, 145 Mass. 461 (14 N. E. Repr. 747) ; R. R. Co. v. Doyle, 18 Kansas, 58 ; Mateer v. Mo. Pac. Ry. Co., 15 S. W. Repr. 970 ; O’Brien v. Chicago, etc., Ry. Co., 89 Iowa, 644 (57 N. W. Repr. 425).

      Conrad Hambleton, with him John W. Wetzel, for appellee.
    A, settlement between an insurer and an insured has all the elements of a contract, and is as incapable of rescission as any other contract: Georgia Home Ins. Co. v. Warten, 113 Ala. 479 (22 So. Repr. 288).
    Where the assured accepts a compromise offer in settlement of a disputed loss under the policy, and gives a receipt in full, knowing it to be such, he cannot rescind the settlement as procured by fraud, without return of the money received: Harkey v. Mechanics’, etc., Ins. Co., 62 Ark. 274 (35 S. W. Repr. 230) ; Light v. Zeller, 144 Pa. 582-592.
    The evidence was not clear, precise and indubitable. The conscience of the chancellor was not moved to grant the relief sought, and it was therefore his duty to withdraw the case from the jury: Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Penna. R. R. Co. v. Shay, 82 Pa. 198 ; De Douglas v. Union Traction Co., 198 Pa. 430; Ogden v. P. & W. C. Traction Co., 202 Pa. 480 ; Williamson v. Carpenter, 205 Pa. 164.
    Highlands and his wife are to be regarded as a single witness : Sower v. Weaver, 78 Pa. 443 ; Bitner v. Boone, 128 Pa. 567; Yost v. Mensch, 141 Pa. 73.
    May 23, 1904:
   Opinion by

Mb. Justice Mestbezat,

Edward Highlands, the plaintiff, owned and occupied a farm near Leesburg, in Cumberland county. The defendant company’s road runs through the farm, and on the afternoon of January 30, 1900, the plaintiff’s barn and all its contents, with some other property on the farm, were destroyed by fire caused by sparks emitted from the company’s locomotives. The value of the property destroyed was $3,378.50, a part of which was insured for the sum of $2,100 in the Cumberland Valley Farmers’ Mutual Fire Insurance Company, and the residue, of the value of $1,278.50, was not insured. The plaintiff gave immediate notice of his loss to the defendant company, and in two or three days thereafter, its agent, Mr. Bosworth, called to see him. Bosworth was informed of the value of the property destroyed and of the amount of the insurance. He said to the plaintiff that his company would not pay for the property that was insured, but would likely settle for the uninsured property. On February 12, 1900, Mr. Bosworth again went to see the plaintiff in reference to his loss. He found him at Leesburg and they with Reuben Karper, whose property had been destroyed by the same fire, drove to the plaintiff’s home. After some discussion of the loss and the liability for it, Bosworth paid the plaintiff $1,100, in consideration of which the latter signed a release releasing the defendant company from all claims for damages, loss or injury “ sustained by me in consequence of the fire alleged to have been caused by sparks from locomotive on my property near Leesburg, Pennsylvania, on January 30, 1900.” The release stipulated that the payment óf the money was not to be construed as an admission of liability in consequence of the accident.

The plaintiff brought an action in the common pleas of Cumberland county against the Cumberland Valley Farmers’ Mutual Fire Insurance Company to recover the amount of his policy. The defendant set up as a defense the release given the railroad company, alleging that it deprived the .defendant company of the right of subrogation against the railroad company to which it was entitled under the terms of the policy. The plaintiff claimed that he had been fraudulently induced to execute the release, and undertook to reform it by showing by parol testimony that it was to be limited to the uninsured property destroyed by the fire. The trial court, however, held that as between the parties to that suit the testimony was not admissible to impeach the release, and this'•‘court, sustained the ruling. (203 Pa. 134.)

On June 14, 1902, the present action was brought to recover from the defendant $2,100, the value of the insured property which the plaintiff alleges was destroyed by the negligence of the defendant company, and for which he “ has never been in any manner compensated or paid, either by the said insurance company nor by the defendant company.” On the trial of the cause, the defendant denied that the fire which destroyed the property was caused by its negligence, and as a further defense set up the release of February 12,1900. The plaintiff denied the validity of the release so far as it purported to include or affect the property the loss of which is sued for in this action, and alleged that it was intended to'be a discharge of the defendant from liability only for the loss on the uninsured property destroyed by the fire. He averred that the release in its present form was procured from him by fraud by the agent of the defendant; that when he executed it he -was unable to read and that the company’s agent in reading it to him “ interpolated into it certain words that were not there to the effect that the payment was only to cover and be in satisfaction of the loss sustained on the property that was not insured.” The trial court, after charging the jury that the testimony to change a written instrument must be clear, precise and indubitable, submitted for their consideration two questions: “ First, whether or not the defendant was negligent in causing this fire; and secondly, whether or not the obtaining of a release by fraud has been established by evidence of the character I have spoken of.” The verdict of the jury was for the. plaintiff for the amount of his claim, and was taken subject to two reserved questions: “ First, whether the evidence offered by the plaintiff to avoid his release of the 12th of February, 1900, on the ground of fraud is indubitable; and secondly, whether there is any evidence in the case which entitles the plaintiff to recover.” Subsequently, the court entered judgment for the defendant, non obstante veredicto, holding that “ the evidence is not of such a convincing nature that a court would be justified in accepting it as sufficient to alter the terms of the release, consequently it is our duty to so pronounce, notwithstanding the verdict.” The right of the plaintiff to maintain this action while retaining the $1,100 which he received from the defendant was determined by the court on the trial of the cause in favor of the plaintiff, who is the appellant here, and need not be considered or determined on this appeal.

Before the plaintiff can recover in this action, he is compelled to reform the release of February 12, 1900, so that its terms will be confined to the property which is not included in the insurance policy. On the face of it, the instrument releases the defendant company from liability for the destruction of any and all of the plaintiff’s property caused by the fire of January 30, 1900. If, therefore, the release correctly represents the contract entered into by the parties at the time it was executed, it is a complete defense to this action. The plaintiff, however, claims that it does not contain the agreement of the parties and alleges that in so far as it relates to the insured property it was obtained from him by the fraud of the defendant’s agent. He, therefore, seeks to reform the instrument so that it will apply to and cover only the uninsured property. To accomplish this purpose, he invokes the equity powers of the court. Under our mixed system of jurisprudence, it is permitted in a common-law action to interpose an equitable defense, which, however, to be successful must be supported by proof of a character and degree that will satisfy the conscience of a chancellor. If he has failed to sustain his allegation of fraud by proof that would warrant a chancellor'in reforming the release in an equitable proceeding instituted for the purpose, his attack on the instrument must fail here and will not avail him as a defense to this action. The duty of the trial judge and of this court in such cases is stated by Sterrett, J., in Rowand v. Finney, 96 Pa. 192, as follows : “ Under our peculiar system of administering equitable principles in common-law actions, the judge presiding at the trial performs the functions of a chancellor, and if his conscience is not moved to grant the equitable relief sought, it is his duty to interpose, either by withdrawing the case from the jury, or by refusing to receive or enter judgment on a verdict that is contrary to equity and good conscience. As a judge, he ought not to permit a jury to do what he, as a chancellor, would not sanction. When the requisite kind or degree of proof is wanting, the better practice is for the court to give the jury binding instructions, and thus withdraw the case from their consideration. A duty somewhat similar devolves on this court, when cases, grounded on equitable principles, are brought here on writs of error. If, upon a review of the testimony, we are satisfied that the evidence was insufficient, and that the case should not have been submitted to the jury, or that the instructions of the court below were inadequate, we should reverse.” On the other hand, Avhere the character and measure of proof are sufficient to satisfy the conscience of the trial judge, were he sitting as a chancellor, that the party is entitled to the equitable relief he seeks, the case should be submitted with proper instructions to the juiy, and a verdict in accordance with the proof should be sustained. If, when such proof is submitted, the judge refuses to send the case to the jury, or having submitted it to the jury and the verdict is in accord with the proof but is set aside, the action of the court may be reviewed, and the right of the party to equitable relief may be enforced on appeal.

The degree or measure of proof required to reform a written instrument on the ground of fraud, accident or mistake, has been the subject of frequent consideration by this court. In Boyertown National Bank v. Hartman, 147 Pa. 558, Sterrett, J., quoting from Hart v. Carroll, 85 Pa. 508, states the rule thus : “ The standard of proof in, such cases (suits to reform written instruments) is ‘ clear, precise and indubitable.’ What is meant by ‘ indubitable ’ proof, in connection with such cases, is evidence that is not only found to be credible, but of such weight and directness as to make out the facts alleged beyond a reasonable doubt. In the very nature of things, that conclusive and absolute proof, which results from the production of record evidence, or rests on the solution of a mathematical problem, can never be the effect of the verbal testimony of witnesses. The language of the authorities must be considered in its relation to the subjects and instrumentalities to which it is applied.”

Again, in Honesdale Glass Co. v. Storms, 125 Pa. 268, it is said that “ in all this class of cases, the evidence must be clear, precise and indubitable ; not indubitable in the sense that there must be no opposing testimony, but in the sense that it must carry a clear conviction of its truth.”

In his charge cto the jury the trial judge stated the degree of proof required to reform a written instrument as follows: “ It (the evidence) must be in the language of the law, clear, precise and indubitable; not indubitable in the sense that there must be no opposing testimony, but in the sense that it must carry a clear conviction of its truth to the- minds of the jury. What is meant by the term indubitable is that the evidence to sustain a claim such as that of the plaintiff in this case must not only be found to be credible, but it must be of such weight and directness as to carry a clear conviction of its truth to the minds of the jury.” This is substantially the language used in our decisions to define the degree of proof required to reform a written instrument procured by fraud. The jurjq by its verdict, finds that the plaintiff produced such proof on the trial of the cause. The court as appears by the form in which he states the reserved question concedes that the proof of the alleged fraud was clear and precise but denies that it was indubitable, and for this reason declined to enter judgment on the verdict in favor of the plaintiff. The correctness of this ruling is the question for determination on this appeal.

Applying to the testimony in this case the rule as to the measure of proof in cases of this character, we are of opinion that the learned trial judge erred in directing judgment to be entered for the defendant. His action in directing the entry of the judgment was, as appears by his opinion, manifestly controlled in a large measure by the failure of the plaintiff and his wife to make an explanation, satisfactory to him, of alleged inconsistencies in their testimony given on the two trials relative to the fraudulent representations by which the plaintiff was induced to sign the release. While different language was used by them in testifying on the two trials as to the alleged fraudulent conduct of the defendant’s agent, yet we think its meaning is substantially the same in each case.

It is not denied by the defendant company that the plaintiff’s property was destroyed by the fire which originated from sparks emitted from the company’s locomotive, nor that the value of the property thus destroyed was $3,378.50. It was found by the jury, as we have seen, that the fire was the result of the defendant’s negligence, and this finding was sustained by the trial court. It further appears that at the time of the fire, the property destroyed was insured in the sum of $2,100, and the uninsured property was of the value of $1,278.50. The controlling question in the case, therefore, as suggested above, is the validity of the release so far as it affects the insured property. The jury denied its validity, but the court held that the evidence to reform it was not indubitable and hence sustained it. Highlands testified in detail as to all the negotiations between himself and the insurance company and the railroad company from the time the property was destroyed until after the release was procured from him. His testimony is direct and positive. He says that at the first interview, shortly after the fire, he told Bosworth the amount of the insurance, and that Bosworth said that his company would likely settle for “ the $1,278.50 worth of uninsured property.” Bosworth went again on February 12,1900, to see the plaintiff in regard to the matter. He met Highlands and Reuben Karper at Leesburg and the three drove to the plaintiff’s home. On the way Bosworth inquired if the insurance company had done anything for the plaintiff, and receiving a negative reply, said that the railroad company would not pay the whole loss, but had sent him there to pay for the uninsured property. At the house, the plaintiff says he agreed with Bosworth to accept $1,100 “ provided he did not ask me to sign a release that would relieve the insurance company from paying me my money.” Bosworth then said to Highlands “ that the railroad company did not intend to pay for anything that was insured; the $1,100 we are paying you and the release we want you to sign is only a payment under the release for the goods that was burnt that was not insured and cannot relieve the insurance company.” A release was produced but the plaintiff’s eyes were so badly injured by the fire that he could not read it. He requested Bosworth to read it, but was informed by the latter that “ it was not. necessary, that it was only a payment under the release for the goods that was burnt that was not insured.” The plaintiff, however, declined to sign the paper until it was read, and thereupon Bosworth agreed to read it. “He then,” as the plaintiff testifies, “ read part of that release and brung in this statement that the payment of $1,100 I am making you and the release is only a payment under the release for the goods that was burnt that was not insured.” Highlands then left the house a few moments to reflect on the advisability of signing the release, and when he returned his wife informed him that Bosworth, during his absence, said to her “ that he has told you over and over that the payment he is making you and the release he wants you to sign are only a payment and a release for the goods that were burnt and were not insured and has nothing to do with the insurance.” After being assured that the release covered only the uninsured property, and it being so provided in the instrument read to him, Highlands signed the paper. He testified that he would not have done so had it not contained the restrictive clause.

Mrs. Highlands’s testimony is equally distinct and positive as to what occurred at the house when the release was' signed. She fully corroborates her husband as to every material matter that took place on that occasion between Bosworth and the plaintiff. Reuben Karper corroborates Highlands as to the conversation which took place between the two men as they were driving from Leesburg to the plaintiff’s'home. He further testifies that while they were in the house Bosworth said to Highlands : “ This release that you are to sign and the money that I pay you, he said, has nothing to do with the insurance nor the insurance company; it is merely to cover outside of what was not insured.” John Stamy, since deceased, also had property destroyed by the fire of January 30,1900.’ After Mr. Bosworth had procured the release from Highlands, the latter took him to see Stamy whose loss he adjusted. Mrs. Stamy testifies that Bosworth then said that he had paid Highlands for that part of his property destrojmd by the fire that was not insured.

This, in part, is the direct testimony offered by the plaintiff to reform the release. It is met on the part of the defendant company by the instrument itself, by the testimony of Mr. Bosworth, and. by the alleged contradictory statements of Highlands and his wife in their testimony on the two trials. Bosworth says that at the time when they adjusted the plaintiff’s loss at the latter’s home, on February 12, 1900, he told the plaintiff that if he were willing to sign a release releasing the railroad company for the fire, he would pay him $1,100, and that after some talk about the matter, they settled. He testified that on this occasion he read to Highlands the release word for word as it is written and denies that in reading it he interpolated anything in it that was not contained in the instrument itself.

Aside from his positive declaration that he read the release in the language in which it was written, we think Mr. Bosworth’s testimony corroborates the evidence on the part of the plaintiff as to what occurred prior to, and at, the time the release was executed. In fact, with the one exception, there is very little difference between his testimony and that of the plaintiff and his witnesses as to the details of the occurrences leading up to the execution of the release. They substantially agree as to what took place at both interviews, save the denial of Bosworth that he misread the release to the plaintiff when it was signed.

We do not regard the testimony of the four officers of the fire insurance company, called as witnesses on the part of the defendant company, as tending to sustain the contention that Bosworth read the release correctly to the plaintiff. On the contrary, the testimony seems to indicate that the insurance officials anticipated that the defendant’s agent would overreach the plaintiff just as the plaintiff alleges he did. George H. Stewart, one of the witnesses, testifies that he saw Highlands prior to his settlement with the railroad company, gave him the form of a receipt to be signed and delivered to the company, and admonished him to be careful to do nothing that might invalidate his insurance “ by signing some papers such as railroad companies usually have.” The substance of the testimony of the three other witnesses is that they together called on Highlands and that he said the railroad company would not accept a release in the form given him by Mr. Stewart and that he had signed the release presented by the company, that “he was ignorant of these things ” and that if he had made a mistake it was through ignorance on his part. We do not see how such testimony can aid the defendant. It shows that it was not the intention of the plaintiff on payment of the one third of his loss to give a release that would prevent him recovering the residue, and that if he did so, it was through his ignorance of the effect of the release the defendant’s agent required him to sign. We do not think the testimony of the plaintiff and his wife taken on the present trial is necessarily in conflict with their testimony on the former trial. JBosworth admits that he read the release to the plaintiff just before it was executed and the plaintiffs testimony on the former trial was that he signed it by reason of-the fraudulent representations then made to him. From this testimony, the jury could well find that the substance of the representations were embodied in the release and that the defendant’s agent so read the instrument to the plaintiff.

We are of opinion that the testimony adduced at the trial was ample to sustain a chancellor in reforming the release set up as a defense of this action. All the probabilities arising from the testimony in the case are against the position of the defendant. With the knowledge that his loss exceeded $3,300, it is incredible that the plaintiff, although illiterate, was willing to release his entire claim against a solvent company on payment of $1,100. It is true that he expected to get the insurance money, but, as the testimony conclusively shows, he persistently insisted on every occasion when the matter was discussed, that his settlement with the railroad company was strictly confined to the uninsured property. There is no reason disclosed by any testimony in the case, nor can any be assigned, why he should accept in satisfaction of his claim less than one third of his total loss. On the other hand, the evidence clearly shows that in all of his negotiations with the representatives of both the insurance company and the railroad company, he distinctly asserted his intention to collect the entire loss. Bosworth’s own testimony leaves no doubt that such was Highlands’s intention. It is, therefore, inconceivable that he would with a knowledge of its contents, execute the release in question which would deprive him of his right to recover two thirds of his loss.

We are fully convinced that in executing the instrument in question, the plaintiff did not intend to release the defendant from its liability for his entire loss, and that the release set up as a defense in this action was procured from him without his knowledge that it included the property and that as read to him by the defendant’s representative it was limited to the uninsured property. We are, therefore, compelled to reverse the judgment, which we now do, and direct the court below to enter judgment on the verdict for the plaintiff.

Mitchell, C. J., dissents.


text:
    Eberly, Appellant, v. Koller.

      Will—Conversion—Power of sale.

    Testator by his will directed as follows: “I hereby authorize and empower my executors to sell all, or any part of my estate real or personal, not herein specifically bequeathed or devised either at public or private sale, and to execute and deliver good and sufficient deeds for all real estate sold, for the purpose of executing this will.” Held, that in the absence of any necessity to sell the real estate the executors could not make title.
    Argued April 26, 1904.
    Appeal, No. 71, Jan. T., 1904, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1904, No. 85, on case stated in suit of Ira S. Eberly, Surviving Executor of L. F. Eberly, Deceased, v. J. H. Koller.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Case stated to determine power of executor to make title to real estate.
    From the case stated it appeared that the real estate in question formerly belonged to L. F. Eberly who died on April 12, 1895, testate, leaving to survive him four sons. Testator in his will directed, inter alia, as follows:
    . “I hereby authorize and empower my executors to sell all, or any of my estate, real or personal, not herein specifically bequeathed or devised, either at public or private sale, and to execute and deliver good and sufficient deeds for all real estate sold, for the purpose of executing this will.”
    The case stated set forth that the plaintiff as surviving executor “ in order to discharge the duties of the trust devolving upon him ” advertised and sold the property to defendant, but that defendant had refused to accept the deed, alleging that the plaintiff had no power to make title.
    E. W. Biddle, P. J., filed the following opinion:
    In an amicable action and case stated between the present plaintiff and Weir B. Eberly, entered to No. 205, May term, 1903, the questions here raised were determined adversely to the plaintiff. It is true that it was expressly stipulated in that action that the proposed, sale was “ for the purpose of distribution only, and not for the payment of debts ; ” but such likewise is the evident object here, and we find no allegation to the contrary.
    The said object can be properly accomplished in a proceeding in partition, wherein differences in interest and claims for advancements may be readily adjusted. See Reid v. Clendenning, 193 Pa. 406. The will in this instance does not work a conversion.
    And now, March 3, 1904, in accordance with the foregoing and with our opinion filed on April 20,1903, in Eberly, Surviving Executor, v. Eberly, No. 205, May term, 1903, it is ordered that judgment be entered in favor of the defendant.

      Error assigned was the judgment of the court.

      H. H. Mercer, for appellant.

      W. E. Sadler,' for appellee.
    May 23, 1904:
   Pee Cueiam,

This judgment is affirmed on the opinion of the court below.