text:
    New Idea Pattern Company, Appellant, v. Whitner.

      Contract — Specific performance — Equity—Preliminary injunction.

    Although, a decree of specific performance of a contract be refused because execution of the decree is impracticable yet an injunction may issue restraining the doing of acts against the contract.
    But in such case complainant must show clearly that the acts are in violation of the contract.
    The proprietors of a department store entered into a contract with a company manufacturing patterns for women’s clothing to sell the latter’s product. There was no covenant in the contract restraining the agents from selling other patterns, but it was provided that the agents should “endeavor at all times to conserve the best interests of the agency.” The agents dealt in other patterns and refused to sell those of the company, and a bill in equity was filed to restrain them from selling the other patterns. Held, that a preliminary injunction should not be granted.
    Argued Feb. 28, 1906.
    Appeal, No. 45, Jan. T., 1906, by plaintiff, from decree of C. P. Berks Co., Equity Docket 1905, No. 898, refusing a preliminary injunction in case of The New Idea Pattern Company v. Calvin K. Whitner and John A. Britton, individually and copartners, trading as C. K. Whitner & Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    From the record it appeared that the plaintiff was a corporation engaged in manufacturing and selling patterns for the making of garments for women and children. The defendants were proprietors of a department store in the city of Reading. On February 15, 1904, complainants and defendants entered into an agreement by which plaintiffs granted to defendants the right to act as special agent for the sale of their product in Reading, Pa., and agreed to sell and deliver from their principal office in New York City, or their Western Office, in Chicago, Illinois, to the defendants their Patterns, Fashion Sheets, Fashion Review, etc., in the quantities and at the intervals hereinafter mentioned, and the defendants agreed to pay for same the prices and in the manner specified.
    The agreement further provided that defendants should “ keep the patterns on the ground floor; to give proper attention to the sale of the same in person or otherwise; to reorder by number and size patterns sold, in order that the stock may be kept up to the original investment, to endeavor at all times to conserve the best interests of the agency, and not to assign it or transfer the agency hereunder to any party or parties without the Publishers’ written consent.”
    The defendants dealt in other patterns than those sold by the plaintiff, and the bill was filed to restrain them from so doing.
    Endlich, J., filed the following opinion:
    On the presentation of this bill it was directed, together with the accompanying affidavits, to be filed, and a time fixed for hearing the application for a preliminary injunction upon notice to defendants. At the hearing little if anything was developed in the way of relevant facts materially adding to or detracting from the averments of the bill, read in connection with the contract appended to it. No answer having come in, the decision will therefore be based upon what appears in the bill, with such reference to the testimony heard as shall be specifically indicated.
    It is admitted by defendants that they refuse to carry out their agreements to sell or keep on sale the plaintiff’s patterns. They undoubtedly have broken their contract with the plaintiff and will be liable, and stand ready to respond to it in damages for such breach. But this proceeding is not, and cannot be, one to enforce performance of the contract, for the simple reason, if for no other, that it would be impracticable to execute or to supervise the execution of a decree to that effect: Adams Eq. (8fch ed.), p. * 81 and note; 3 Pomeroy Eq. Jur., secs. 1,343, 1,405. The application goes no farther than to ask for an order restraining the defendants from engaging in and profiting by dealings which, it is alleged, will subject plaintiff to continuing and cumulative losses, and which, it is further contended, defendants bound themselves by the contract not to engage in. That in such a ease an injunction may issue, although the remedy by decree for specific performance be impracticable, is decided in Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60 (51 N. E. Repr. 408). Yet clearly, whether this is such a case entitling plaintiff to an injunction is to be primarily tested, not by the probability of resulting losses nor by the lack of an adequate remedy at law, but by the correctness or incorrectness of the fundamental contention that defendants are doing something they agreed not to do. If they are not, plaintiff has no right to stop them. It is only if they are that the question of the proper remedy can arise. If, however, the plaintiff’s fundamental contention is correct, it must be able to point to a covenant in the contract from which the defendants’ assumption not to do what they are doing may be gathered without that hesitation which invariably slays the hand of a chancellor. It is, of course, not indispensable that the assumption be couched in negative phrase. An affirmative covenant which involves or implies a negative is sufficient: 8 Pomeroy Eq. Jur., sec. 1,343; for that which is implied in a contract is as much a part of it as that which is expressed: Siegel v. Lauer, 148 Pa. 236, 244. The implication, however, must obviously be such as results with reasonable clearness from the terms of the contract understood with reference to the subject-matter and the situation of the parties — i. e., as it presumably was or ought to have been understood by them. In other words, its existence is a question of construction to be arrived at by the ordinary rules governing the construction of contracts. The question is, looking at the language of the contract in the light of all the relevant circumstances, Is it reasonable to suppose that the minds of the parties to the contract ever met in understanding the language employed to mean a specific prohibition not distinctly expressed by it? If not, there was no contract to that effect implied; for there can be no contract in the absence of an assent of the minds of the parties meeting upon common ground. See Wistar’s App., 80 Pa. 484, 495; Richardson v. Clements, 89 Pa. 503, 505; Harding v. Lloyd, 3 Pa. Superior Ct. 293.
    Now, the clause in the contract here in question, and the only one relied upon by plaintiff as importing an assumption on the part of the defendants not to engage in selling the patterns of any other concern, is this:
    “The Merchant (defendants) agree . . . to endeavor at all times to conserve the best interests of the agency.”
    It is alleged in the bill and in the evidence submitted at the hearing that the effectual way of doing this is to handle no other line of patterns. On the other hand, it is testified by one of the defendants that by keeping a variety of patterns for sale a larger public is attracted and the sale of each kind of patterns stimulated, to the manifest advantage of all concerned. The fact is undisputed that for some years past, during which defendants have dealt in other patterns besides plaintiff’s, their sales of the latter have been steadily increasing. But, however that may be, it seems but reasonable that where one arranges to sell his goods to another, to be sold again by the latter incidentally to the conduct and prosecution of an extensive and complex business, such as a department store, belonging to him and under his management and direction, the naked stipulation that he is to endeavor to conserve the best interests' of the so-called agency not only cannot be taken as an engagement to sacrifice his own business to it, but must necessarily be regarded as delegating to him a discretion in determining what, from time to time, will, all things considered, conduce to the best interests of the “agency.” It would hardly do so if the public were to be discouraged from visiting the store by a failure to offer a selection which experience may have shown to be desirable. If people, knowing in advance that they can see and get there only one line of patterns, which they do not want, get out of the habit of going there, and if in consequence the general trade of the establishment falls off, that will not conserve the best interests of either party. The plaintiff’s witnesses lay great stress upon the importance to'its success of having its goods displayed, etc., in large stores doing a broad trade and visited constantly by as large as possible a part of the purchasing public. On the face of the stipulation referred to, therefore, the propriety or impropriety of keeping and dealing in other patterns would appear to be one of the matters committed by the contract to the discretion of the merchant. It is most natural to suppose that defendants so understood the stipulation. It was to their interest so to understand it: See Wright v. Grover & Baker S. M. Co., 82 Pa. 80, 82; Hessel v. Johnson, 129 Pa. 173, 179. If a contrary view of its own “ best interests ” was in plaintiff’s mind, if plaintiff was convinced that these could be served only by excluding all other lines of patterns from defendants’ store, it would have been easy and no more than fair so to specify and expressly to enjoin upon defendants in the contract. Non constat that, on those terms, they would have become parties to it at all. And if the clear import of its language does not itself impose any such restriction upon them, what else is there to show that they ever understood or ought to have understood and agreed, or are to be treated as having agreed to it as a part of their undertaking ? There is to suggest it no such obvious incongruity between defendants’ engagement to buy and sell plaintiff’s product and their buying and selling at the same time another’s as there is, e. g., between the engagement of an actor, a ball player, or the like, to serve one party during a given time and his attempting during the same period to serve another, or between the duty of an agent, strictly speaking, towards his principal in the conduct of the latter’s business and the acceptance of a conflicting employment in the interest of a rival. The fact known to plaintiff, but appearently not to defendants, that, in general, though not invariably, large establishments made a practice of handling only one line of patterns, is of no controlling significance. The assertion that plaintiff supposed the language used to imply a prohibition against handling any but those of its manufacture, is quite irrelevant. The circumstance that, after refusing to continue plaintiff’s line of patterns, defendants themselves are presently selling only one kind of patterns, throws no light upon their understanding of the needs of their business or of the contract when it was made, nearly two years ago. On the other hand, it is not altogether without bearing upon the interpretation put by the respective parties on this contract, that almost immediately after its execution defendants began to sell another line of patterns; that plaintiff knew of this, and whilst objecting to it took, no matter for what reason not involving any concession by defendants, no steps to stop it; that when, in August last, it was attempted to renew the contract between plaintiff and defendants, a provision in terms forbidding the handling by defendants of any other line of patterns was inserted; that that clause was stricken out on defendants’ objection before signing, the contract as thus modified being finally rejected by plaintiff; and that recent contracts made by plaintiff contain, besides the stipulation found in this contract, the express prohibition here sought to be implied therefrom. Upon the whole, there seems to be entirely too much doubt about the propriety of making the implication without which the plaintiff’s case has nothing to stand upon. That doubt is strengthened if the rule is applied which, as between two possible interpretations of a contract, calls for the adoption of that which is fortior contra proferentem. A preliminary injunction is not, however, to be granted where the plaintiff’s right to it is in doubt: 1 Spelling, Extraordinary Relief, sec. 20; Black Lick Mfg. Co. v. Gas Co., 189 Pa. 448, 454; Waring v. Cram, 1 Pars. Eq., 516. The refusal of it does not repudiate the plaintiff’s rights if he can ultimately establish any; it merely denies him an extraordinary remedy properly applicable only to cases in no respect equivocal: Dalzell v. Crawford, 1 Pars. Eq., 37, 46.
    As for the decisions referred to by counsel involving the contract here in question, little aid is to be derived from them. In New Idea Pattern Co. v. Fraley & Carey Co., it appears that the supreme court of New York refused, upon allegations entirely similar to those here made, to grant a preliminary injunction substantially as here prayed for. In Butteriek Publ. Co. v. Weaver & Sons, the court of common pleas of Seneca county, Ohio, awarded a similar temporary injunction upon a contract containing the exact stipulation here found, and on final hearing, after the expiration of the contract, decreed costs to plaintiff. In neither case does there appear to have been any statement of the reasons for the order made. The case of New Idea Pattern Co. v. Hydeman, No. 2224, September term, 1905, C. P. No. 5, Philadelphia county, in equity, where a preliminary injunction was awarded restraining defendant from selling other lines of patterns, is inapplicable because there the contract contained, besides the stipulation here under discussion, the further one that defendant was “ not to sell or permit to be sold on the premises .... during the term of this contract any other make of patterns.”
    The motion for a preliminary injunction is denied.

      Error assigned was the decree of the court.

      Sharswood Brinton and Isaac Hiester, for appellant.

      Jefferson Snyder, of Snyder tf Zieber, with him J. £ H. S. Sparhawh, for appellees.

      May 7, 1906:
   Per Curiam,

No sufficient ground has been shown to change the status quo before final hearing.

Appeal dismissed.


source: Caselaw Access Project

author: Pee Curiam,

license: Public Domain

text:
    Venango County v. Penn Bridge Company, Appellant.

      Bridges — Counties—Contracts—Publication of specifications — Approval by court — Act of April 4, 1870, P. L. 834.
    A contract entered into by county commissioners for the construction of a county bridge will be declared invalid where it appears that, in violation of the Act of April 4, 1870, P. L. 834, the specifications were not written or printed in a book kept for public inspection, for four weeks prior to the opening of the bids, and that the contract and the sureties for its performance were not approved by a judge of the court of common pleas of the county.
    Argued March 13, 1906.
    Appeal, No. 157, Oct. T., 1905, by defendant, from decree of C. P. Venaugo Co., Equity Docket, No. 3, Aug. T., 1903, on bill in equity in case of Venango County v. Penn Bridge Company and R. A. Bigley.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity to declare a contract void. Before Criswell, P. J.
    The court filed the following opinion :
    The act of April 4, 1870, “relative to contracts by county commissioners in certain counties of this commonwealth,” by its terms applies to the county of Venango. That it remains in force and unrepealed is not questioned. Its first section relates to contracts for the erection of any new building or build, ings, bridge or bridges, and provides that before making any such contracts the county commissioners shall invite sealed proposals for the erection of the building or bridge proposed to be erected according to specifications “ which shall be written or printed in a book to be kept by the commissioners for that purpose, and be kept open for the inspection of all persons for at least four weeks before the time appointed by said advertisement for the opening of said sealed proposals, and which, at the time fixed, shall be publicly opened and the contract awarded to the lowest bidder or bidders, who shall, within ten days thereafter, give security to said commissioners for the faithful performance of said contract according to said specifications. Provided that no contract shall be awarded by county commissioners until the same, with the sureties for its faithful performance, shall be approved by one of the judges of the court of common pleas of the proper county.”
    The second section provides that any violation of the first section by the commissioners shall be a misdemeanor punishable by fine.
    It has been suggested that inasmuch as the second section of the act provides a penalty for a breach or violation of the first section thereof, that no other consequence ensues. It is a well-established rule that where a statute imposes a duty where none existed before, the presumption is that the remedy provided therein for the breach of the duty is exclusive : Mack v. Wright, 180 Pa. 472. But this act provides something more than a duty. It imposes not only the duty of advertising and letting such contracts to the lowest bidder, upon specifications to be written or printed in a book, to be kept for the purpose, for at least four weeks before the time appointed for the opening of the bids, but it also distinctly provides that no contract shall be awarded until the same, with the sureties for its faithful performance, shall have been approved by one of the judges of the court of common pleas. It, therefore, limits the power of the commissioners to contract. It makes it unlawful for them to contract otherwise than in the method prescribed by the statute, and provides that it shall be a misdemeanor for them to so do. It is a general rule, and needs no citation of authority to support it, that a contract entered into in violation of law, cannot be enforced; authorities, however, are not wanting. “ Every contract made by or about a matter or thing which is prohibited and made unlawful by statute, is a void contract though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition though there are no prohibitory words in the statute : ” Mitchell v. Smith, 1 Binney, 110. It thus appears that the rule is broader and of more general application than is necessary to meet the facts in question, in that it extends to cases where there are no prohibitory words in the statute. In the act of 1870 there are prohibitory words, as it is expressly provided that without the approval of a judge no contract shall be awarded. In the absence, therefore, of the penal section it would clearly appear that the contract was not only unlawful but forbidden. This prohibition relates to the particular thing done by the commissioners and not to something collateral thereto and connected therewith, as in the eases cited by defendants’ counsel. Approval by a judge is a condition precedent to the valid existence of a contract. See also Endlich on Interpretation of Statutes, sec. 431. '
    In this connection it is gratifying to be able to refer to a recent adjudication by the Superior Court, in which the particular act nowin question, its purpose and effect, was considered. We refer to the case of Commonwealth v. Brown, 25 Pa. Superior Ct. 269, appealed from the court of common pleas of Westmoreland county. It is there stated that the purpose of the statute is “ to secure competitive bidding upon equal terms, under conditions which give to all bidders full and accurate information as to the character of the work to be performed. The means used to accomplish the end are the two requirements, (a) that the specifications shall be a matter of public record for at least four weeks before the opening of the bids; (5) that the commissioners shall by public advertisement printed in not less than two weekly newspapers of the county for not less than four weeks, invite sealed proposals for the same according to the specifications.” Strict compliance with these requirements are indicated as necessary. In the case now under consideration there was not only not strict compliance with the provisions of the act quoted, but no compliance whatever with the requirement that the specifications should be a matter of public record, and other equally important provisions of the act. The contract was awarded and entered into in the face of the prohibition that it should not be “ until the same, with the sureties for its faithful performance, shall be approved by one of the judges of the court of common pleas of the proper county.” In view of this fact further discussion of the question would appear to be unnecessary. The consequences of such flagrant disregard of the provisions of the act appear to be well illustrated by the findings of fact above noted. Instead of securing competitive bidding upon equal terms, under conditions which gave to all bidders full and accurate information as to the character of the work to be performed, the competition was not fair and upon equal terms, and the commissioners themselves appear to be unable to state what the character of the work to be performed was, that is, whether the piers were to be forty feet long or fifty feet and six inches long, or whether they were to be some eleven and others twelve feet thick, or all were to be eighteen feet thick.
    In view of these conclusions, which to our mind are not assailable, we deem it unnecessary to consider the legal effect of other facts covered by the foregoing findings, or whether or not under them the plaintiff has an adequate remedy at law under the act of 1836 providing for an inspection of the bridge after alleged completion by the contractor, except to say that clearly the latter act provides no adequate or sufficient remedy. It provides no remedy whatever for the lack of due publicity and certainty as to the plans or the want of fair and honest competition at the letting. It follows, therefore, that the contract should be adjudged void, and, as the bridge to be erected is a county bridge, that an injunction should issue restraining the defendants from in any way interfering with the site thereof.
    Under the act of 1870 the commissioners had no power to award the contract before the approval of the same, as provided in the act, had been secured. This being the law, both the commissioners and the bridge company were bound to take notice of it. They were, therefore, both at fault in attempting to consummate the contract without such approval. We are, therefore, of the opinion that one-half of the costs should be paid by the county and one-half by the Penn Bridge Company.
    Counsel may prepare a decree in harmony with the foregoing findings and opinion.

      Error assigned was the decree of the court.

      P. M. Spear, of Ash $ Spear .and J. H. Osmer, of J. H. Osmer Sons, with them O. 1. Heydriek, for appellants.

      May 14, 1906:

      J. S. Carmichael, with him Hugh C. Horworth and F. A. Sayers, for appellee.
   Pee Curiam,

Decree affirmed on the opinion of the court below on the question of law.


author: Mr. Justice Mestrezat,

text:
    Heckman v. Heckman, Appellant.

      Husband and wife — Equity—Bill in equity by wife against husband — Fraud —Acts of April 11, 1848, P. L. 536, June 8, 1893, P. L. 344.
    A married woman may maintain a bill in equity against her husband for the protection of her separate estate against his fraud or other wrongdoing.
    The declaration in the Act of April 11, 1848, P. L. 536, that a married woman shall own and enjoy her separate property secured to her the title and right to the possession of the property which a court of equity will recognize and protect.
    There is nothing in the third section of the Act of Juno 8, 1893, P. Ij. 344, which can be construed as depriving a married woman of the right to invoke the assistance of a court of equity to secure to her the possession and enjoyment of her separate property against the fraud of her husband.
    A court of equity will set aside a conveyance of real estate by a wife to her husband where it appears that the conveyance was obtained from the wife by threats on his part of a permanent separation, and by such persistent importunities that the peace of the wife was almost destroyed, and to regain it she executed the conveyance.

      Evidence — Competency of witness — Husband and wife — Acts of May 23, 1887, P. L. 158, and June 8, 1893, P. L. 344.
    Neither the Act of May 23, 1887, P. L. 158, nor the Act of June 8, 1893, P. L. 344, makes the plaintiff or defendant a competent witness to testify in a suit in equity by a wife against her husband to cancel a deed and compel a i'econveyance of her separate property.
    Argued March 5, 1906.
    Appeal, No. 165, Jan. T., 1905, by defendant, from decree of G. P. Northampton Co., Feb. T., 1905, No. 2, on bill in equity in case of Anna Louisa Heckman v. Jacob Heckman.
    Before Mitchell, C. J., Fell, Brown, Mesteezat and Elkin, JJ.
    Affirmed.

      May 7, 1906 :
    Bill in equity to cancel a deed and for a reconveyance. Before Schuyler, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      Bussell Q. Stewart, for appellant.
    The court had no jurisdiction : Gleghorne v. Gleghorne, 118 Pa. 383; Ritter v. Ritter, 31 Pa. 396; Small v. Small, 129 Pa. 366; Kennedy v. Knight, 174 Pa. 408; Haun v. Trainer, 190 Pa. 1; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Williams v. Fowler, 201 Pa. 336.
    Business dealings between parents and children and other near relatives are not per se fraudulent; they must be treated just as are the transactions between ordinary debtors and creditors, and where the bona fides of their transactions is attacked, the fraud must be clearly proved: Coleman’s Estate, 193 Pa. 605; Carney v. Carney, 196 Pa. 34.

      Calvin E. Smith, for appellee.
    The court had jurisdiction of this case: Miller v. Miller, 44 Pa. 170; McKendry v. McKendry, 131 Pa. 24.
    The court did not err in refusing to permit defendant to testify.
    There was sufficient proof of undue influence: Dilworth v. Kennedy, 201 Pa. 388; Wolf v. Christman, 202 Pa. 475; Penna. Co. v. R. R. Co., 204 Pa. 356; Darlington’s App., 86 Pa. 512; Stepp v. Frampton, 179 Pa. 284; Miskey’s App., 107 Pa. 611; Shea’s App., 121 Pa. 302; Kline v. Kline, 57 Pa. 120 ; Mauk’s Est., 19 Pa. Superior Ct. 338; Odenwelder’s Est., 1 Pa. Superior Ct. 345.
    The resumption of marital relations between husband and wife was not a good and sufficient consideration for the deed: Kesler’s Est., 143 Pa. 386.
   Opinion by

Mr. Justice Mestrezat,

We have no doubt as to the jurisdiction of the court below to entertain the bill and to give the plaintiff such relief as the facts may warrant. The plaintiff is the wife of the defendant and avers in her bill that by fraud, undue influence and coercion, and without any consideration, the defendant procured tbe execution and delivery to him of a deed conveying the undivided one-half of certain real estate, her separate property, to a third party, who, without consideration reconveyed it to the defendant. She prays a reconveyance of the property. An answer was filed admitting the real estate to have been the separate property of the plaintiff but denying the truth of the averments of fraud, undue influence, coercion and want of consideration.

It is unquestionably true that at common law a wife could not maintain an action against her husband to enforce a property right. The legal entity of the marriage relation prevented such an action. Such is still the law of this state except where a statute has provided otherwise. But since, if not prior to, the passage of the Married Woman’s Act of April 11, 1848, P. L. 536, 2 Purd. 1298, equity has permitted a married woman in Pennsylvania to protect her separate estate and enforce her property rights in a suit against her husband. That act declares that every species and description of property owned by a single woman shall continue to be her property as fully after her marriage as before, and that such property as shall accrue to her during coverture shall be owned, used and enjoyed by her as her own separate property. That act contains no provision which enables a wife to protect or enforce her rights to her property against the claim or acts of her husband. Nor has subsequent legislation provided her with a remedy at law against her husband while living with his wife for an invasion of her property rights. But, as said by Paxson, C. J., in McKendry v. McKendry, 131 Pa. 24: “ The act (of 1848) having given the right, there must be a remedy to enforce it; otherwise it would fail of its purpose, in part, at least.” The entity of the marriage relation which denies the wife a remedy at law cannot be invoked to oust the jurisdiction of equity when appealed to by her for the protection of her separate estate against the fraud or other wrong of her husband. The purpose of equity is to correct that wherein the law is inadequate or deficient and as the law gives an injured wife no relief against her husband for an invasion of her rights of property or for an infringement of contracts relative thereto, equity will come to her aid and give such redress as the circumstances and facts of the case may require. Especially is this true in Pennsylvania where our statute of June 16, 1886, P. L. 789 confers upon the court of common pleas the jurisdiction and powers of a court of chancery so far as relates to “ the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the rights of individuals.” Indeed, the right of the wife to invoke the aid of a court of equity in such cases necessarily follows in every jurisdiction where the wife has the right to own and enjoy her separate property. Legislation like the act of 1848, which secures a wife’s separate property as against her husband and his creditors, would avail her but little if there was no remedy for an infringement of her rights to the property. If he, by fraud or other unconscionable acts, can with impunity deprive her of the title or possession, the act of 1848 which was enacted as a shield and protection for her and which declares that she shall own, use and enjoy her separate property is vain legislation and the disabilities imposed upon her by the common law will, to a great extent, still remain. When, therefore, the act of 1848 declared that a married woman shall own and enjoy her separate property, it secured to her the title and right to the possession of the property which a court of equity will recognize and protect.

The right of a wife to invoke the aid of a chancellor for the protection of her separate property against her husband is sustained by abundant authority in this and other jurisdictions. Before the passage of the act of 1848, it was said by Rogers, J., in Hutton v. Duey, 3 Pa. 100, “ that a wife can acquire a separate property which a court of equity will protect is ruled in many cases, and is recognized in McKennan v. Phillips, 6 Whart. 571.” The same principle is recognized in Bergey’s Appeal, 60 Pa. 408. In McKendry v. McKendry, 131 Pa. 24, it is said by this court (p. 35): “ we think a bill in equity would lie against the husband at the suit of the wife -to protect her in the enjoyment of her separate estate, independently of the act of 1856. As before observed, it is an act contrary to law, and prejudicial to the interests of the wife, for a husband to'deprive her of the possession and enjoyment of her separate estate, and, as there is no remedy at law provided for such case, we have no doubt that the jurisdiction of equity would attach under the act of 1836, conferring equity powers upon the courts.” In Fry v. Fry, 7 Paige, 461, a conveyance from the wife to the husband after marriage was set aside in equity on the ground that it was improperly obtained by him by taking advantage of her ignorance of her rights, and her confidence in him. And in Lombard v. Morse, 155 Mass. 136, it was held that a husband could maintain a bill in equity against his wife to recover property which she had obtained from him by fraud shortly before and in contemplation of marriage. In the recent case of Frankel v. Frankel (Mass.), 73 Am. St. Rep. 266, it was held that a suit in equity can be maintained by a wife against her husband to recover her separate property obtained from her by his fraud and coercion, but an action at law cannot be maintained, In that case the property which the wife sought to recover was her separate property and was obtained from her, as the court found, by the fraud and coercion of her husband. In Stone v. Wood, 85 Ill. 603, the husband alleged fraud by his wife in procuring a conveyance of his real estate. Mr. J ustice Walkkk, delivering the opinion says, (p. 609) : “ There can be no doubt that a man may have relief from such frauds as this, in equity, against his wife. So may the wife against the husband. There is nothing in the marriage relation that can prohibit it. If it were not so, there would be a wrong without a remedy. That courts are seldom called on in such cases, does not militate against the rule. It is a fraud that is not sanctified by that relation. When either party becomes untrue to his or her vows and marital duties, and by fraud obtains an unjust advantage of the other, equity will, as readily afford relief as it will between other persons not occupying that relation.” Equity jurisdiction in such cases is also recognized in the text-books: 1 Daniel’s Chancery PI. & Pr. * 109 ; Story’s Equity Jurisprudence (13th ed.), 699; 2 Cord on Legal & Equitable Rights of Married Women, see. 979c; Brightly’s Eq. Juris, in Pa. sec. 521.

The third section of the Act of June 8, 1893, P. L. 344, 2 Purd. 1303, when read in the light of the legislation enacted in this state during the last half century, cannot be construed as depriving a married woman of the right to invoke the assistance of a court of equity to secure to her the possession and enjoyment of her separate property against the fraud of her husband. The tendency of that legislation has been to invest her with the absolute control of her separate property, untrammeled with any clogs or fetters imposed under the common law by the marriage relation, so that at present her disability to enjoy and protect it is the exception and not the rule of law in this state. It is' therefore apparent that the prohibition in this section of the act of 1893 against the right to sue her husband should be interpreted as applicable only to an action at law.' It was not intended by that legislation to deprive her of the right she hitherto, possessed of invoking the assistance of a chancellor to furnish her a remedy which the law had always denied. The act of 1893 is an enabling and remedial statute and, in line with the spirit of previous legislation on the subject, enlarged her powers of enjoyment and control of her separate property and deprived her of no remedy for its protection 'which our equity jurisdiction confers.

We have carefully read the evidence and, assuming the burden to be on the plaintiff, it fully warrants the findings of fact by the learned trial judge. There is not a shadow of doubt, under the testimony, that the plaintiff was induced to convey the half.of her real estate to her husband by bis persistent and continuous importunities and threats of a permanent separation by himself from his wife. Avarice and greed, but not affection, are manifestly the predominant attributes of his nature. He converted his power to annoy and coerce his wife into his most valuable property asset by exchanging it for one-half of her real estate. He persisted in his importunities for a deed to the property until- the peace of his wife was almost destroyed- and, to regain it, she executed the conveyance. That was the only consideration for the conveyance of the property. From evidence, amply sufficient, the court below found “ that the execution of the deeds in controversy was in strict line- with the persistent importunities of the defendant, culminating in his separating himself from his wife for almost a year against her earnest entreaties for his return, and that when he did return it was only on condition that she would do the act complained of in the present bill. I further find that the plaintiff received no consideration for her deed, the only consideration set up, being her husband’s return, but ‘ the law cannot recognize such a consideration.’ ”

Since 1896 the plaintiff and defendant had been, and at the time of the trial were, living together as husband and wife and therefore neither party was competent to testify against the other. At common law both were incompetent witnesses. The Act of May 23,1887, P. L. 158, 1 Purd. 817, permits each party to prove the fact of marriage in divorce proceedings, and to testify generally in such proceedings where there has been a service of the subpoena. The fourth section of the Act of June 8, 1893, P. L. 344, 2 Purd. 1304, makes both parties competent witnesses to testify in a proceeding authorized by the third section of the act to protect or recover her separate property when her husband has deserted her. It is obvious that neither of the acts of assembly makes the plaintiff or defendant a competent witness to testify in a suit in equity by a wife against her husband to cancel a deed and compel a reconveyance of her separate property.

The numerous authorities cited in the appellee’s brief show that, under the facts of this case, the delay of the plaintiff in bringing this suit will not avail the defendant.

The decree of the court below is affirmed.


author: Mr. Justice Mestbezat,

text:
    Jackson, Appellant, v. Thomson.

      Res adjudicata — Pleadings—Ejectment—Bill in equity.

    Whore a prior adjudication, in equity is pleaded as a bar to an action of ejectment between the same parties, the court will examine the pleadings and the decree of the court in the equity suit to determine precisely what was adjudicated in that suit. In such an examination the court will exclude all extraneous questions not raised by the pleadings, although such questions may have been injected into the suit collaterally by the counsel of the parties.
    Where, in an action of ejectment, a prior equity suit between the same parties is set up as a bar, the plea of res adjudicata will not prevail where it appears that the purpose of the equity suit was to have a deed absolute on its face declared to be a conveyance of land as collateral security for the payment of a debt, while the evidence offered in the ejectment showed that the purpose of the ejectment was to have the defendant declared a trustee ex maleficio.
    In such a case the plea of former adjudication cannot be sustained, as the same evidence will not support a cause of action which requires proof of an express parol agreement to reconvey real estate, and a cause of action which requires proof that the holder of the title to the real estate is a trustee ex maleficio. The one requires proof, not of fraud in the grantee, but of an express contract which alone would entitle the party to recover; the other is established by proof of fraud of the grantee holding the title which converts him into a trustee for the beneficial owner.
    Argued March 13, 1906.
    Appeal, No. 70, Jan. T., 1906, by plaintiffs, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 49, on verdict for defendants in case of W. W. Jackson et al. v. .Rush J. Thomson and Walter B. Gunton.
    Before Mitchell, C. J., Pell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Ejectment for land in Cherry township. Before Wheaton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in directing a verdict for defendants on the ground that the case was res adjudicata by former equity proceedings between the parties.

      John G. Johnson, with him Alphonsus Walsh, E. J. Mullen and Seth T. McOormiek, for appellants.
    The fact that the court below in the opinion filed referred in a casual manner to the fact that the evidence showed that the consideration for the deed was in part the private liabilities of the executors themselves and in part the debts of the estate of George D. Jackson, deceased, does not make the question of the validity of the deed or the adequacy of the consideration res adjudicata: Siebert v. Steinmeyer, 204 Pa. 419 ; Schwan v. Kelly, 173 Pa. 65 ; Forcey’s App., 106 Pa. 508 ; Tams v. Lewis, 42 Pa. 402; Martin v. Gernandt, 19 Pa. 124 ; Cavanaugh v. Buehler, 120 Pa. 441.
    To make a decree dismissing a bill conclusive, the record must show that the matter claimed to be concluded was the very matter passed upon: Williams v. Row, 62 Pa. 118; Sheble v. Strong, 128 Pa. 315 ; Lewis v. Baker, 151 Pa. 529 ; Cawley’s Estate, 162 Pa. 520; Davis v. Brown, 94 U. S. 423.
    The question of the power of the executors to make the deed to Thomson and the consideration therefor, was not raised in the pleadings in the equity ease and hence could not properly have been passed upon by the court even if it h&d desired to do so; uor would the same have been res adjudicaba i f such had been done: Larkins v. Lindsay, 205 Pa. 534; Williams v. Row, 62 Pa. 118.
    May 7, 1906 :
    Even if the question as to the validity of the deed had been raised by the pleadings, the court sitting in equity would have had no jurisdiction to decide the question of the legal title to the land in dispute ; nor would such a decision have been res adjudicata : Pitcairn v. Pitcairn, 201 Pa. 368 ; Keystone Electric Light, etc., Co. v. Peoples’ Electric Light, etc., Co., 200 Pa. 366.
    The cause of action in the ejectment is not the same as that in the equity case: Levy v. Solomon, 207 Pa. 478; Herman on Estoppel, 104 ; McQueen’s App., 104 Pa. 595 ; Duquesne Bank’s App., 74 Pa. 426; Hill v. Epley, 31 Pa. 331.

      I. McPherson, with him Rodney A. Mercur and Albert F. Heess, for appellees.
    The plaintiff cannot recover in this ejectment, because the title to the land in controversy was involved in a preceding equity case between the same parties, was material and indispensable in order to procure the relief sought therein, and the record and decree therein is conclusive thereof in this action: Westcott et al. v. Edmunds, 68 Pa. 34; Williams et al. v. Row et al., 62 Pa. 118; Lash v. Spayd, 141 Pa. 360; Haneman v. Pile, 161 Pa. 599.
    Inasmuch as the title to the land embraced in this ejectment was involved in the equity ease, and it was therein adjudicated that the deed, under which the defendants claim title in this action, conveyed the land in controversy to Rush J. Thomson absolutely, the adjudication embraced all matters and questions affecting his title under said deed, and is conclusive thereof in this action: Dutton’s Est., 208 Pa. 350; Nan Fleet’s Former Adjudication, vol. 1, p. 264 ; Southern Minnesota Ry. Extension Co. v. R. R. Co., 55 Fed. Repr. 690; Schwan v. Kelly, 173 Pa. 65; Rauwolf v. Glass, 184 Pa. 237; Long v. Bank, 211 Pa. 165; Pennock v. Kennedy, 153 Pa. 577; Myers v. Kingston Coal Co., 126 Pa. 582.
   Opinion by

Mr. Justice Mestbezat,

The principal and controlling question here is whether the adjudication in the equity case is a bar to the present action of ejectment. To determine what was adjudicated in the former equity suit between the parties to that action, it will be necessary to refer to the pleadings and the decree of the court. “ As this (former adjudication) is an estoppel by matter of record,” says Thomson, O. J., in Williams v. Row, 62 Pa. 118, “we must look to see what the record says, what it was that the plaintiffs claimed by their bill.” And in Kelsey v. Murphy, 26 Pa. 78, where a former adjudication was set up as a defense, Woodward, J., delivering the opinion, says (p. 80): “ The bill in chancery with which we have to do in this case was between the same parties as the present action. Was it directly upon the same point? Was the present cause of action included, and might it have been recovered in that suit? To determine this, recourse must be had to the pleadings then and now, and I proceed to contrast them.”

George D. Jackson died testate November 23, 1879, and by his will he appointed Bernice W. Jackson and George C. Jackson his executors, to whom letters testamentary were issued December 15, 1879 by the register of Sullivan county. He devised all his property, real and personal, to his executors in trust, to sell, lease or convey the same and after payment of his debts, the residue was to be for the sole use and benefit of his wife, Bernice W. Jackson, for life, and after her death to be divided equally among his six children.

On July 9, 1897, four deeds were executed and delivered to Thomson, the defendant, one by Jackson’s executors for an undivided interest in certain lands; one by the same parties for an undivided interest in trees, bark and timber on other lands; one by Bernice W. Jackson for timber, bark, trees, etc.; and one by George C. Jackson and wife for an undivided interest in certain lands. Subsequent to the execution and delivery of the deeds, and prior to bringing the equity suit, both of the executors died and W. W. Jackson and Blanche W. Sturdevant were appointed trustees by deed of all the parties interested in the estate. Thomson took possession of the land and timber conveyed to him by the deeds, cut and removed a large quantity of timber and bark and mined and removed coal from the lands.

After setting forth the above facts, the bill avers, inter alia, as follows: that at the time the several deeds were executed and delivered to Thomson “it was upon the consideration and express agreement, entered into by and between the said grantors and the grantee therein named and the Citizens National Bank of Towanda, Pa., that the properties embraced in said deeds were not conveyed to the said grantee (Thomson) absolutely, but that the same were pledged by the grantors to him as collateral security for the payment of $8,100, which amount was loaned by the Citizens National Bank of Towanda, Pa., to the said George C. Jackson and Bernice W. Jackson .... and that said Rush J. Thomson was at the time, and still is, one of the directors of the said bank, and the said property was conveyed as a pledge to said Thomson as such director for the purpose of securing the payment of the said sum of $8,1.00, which George C. Jackson and Bernice W. Jackson borrowed from the said bank, and for no other purpose.” It was further averred in the bill that the deeds do not contain the entire bargain between the parties; that Thomson was to hold the title to the land and timber in trust, apply the proceeds of the timber and bark to his expenses and the payment of $8,100, and “reconvey to the grantors in said deeds, or their representatives, the balance of the property.” Thomson in his answer alleged that at the time the deeds were delivered to him, the estate of George D. Jackson and also Bernice W. Jackson and George C. Jackson individually were largely indebted to him and to the bank, and that the real estate was conveyed to him in pursuance of an arrartgment that he was to pay the indebtedness out of the proceeds of the property, and that while no agreement was made with the grantors in regard to what should be done with any balance of the proceeds of the sales, that after the payment of the indebtedness and compensation for his services he intended to “let said grantors have all that remains.” He further says in his answer : “ I deny that said conveyance was made to me for no other purpose than as collateral security for the payment of the said judgment. And I further deny that said conveyances were not made to me absolutely.”

After consideration of the case on the bill, answer and proofs, the court entered a decree dismissing the bill.

It is difficult to see how there can be any serious dispute as to what the issue was in the equity case and what was determined by the adjudication. The bill averred that the deeds were executed and delivered to Thomson “ upon the consideration and express agreement entered into by and between the said grantor and grantee therein named and the Citizens National Bank of Towanda, Pa., that the properties embraced in said deeds were not conveyed to the said grantee, absolutely, but that the same were pledged by the grantors, to him, the said grantee, as collateral security for the payment of eight thousand one hundred dollars.” The answer denies that the conveyances were made to Thomson as collateral security and that they were not made to him absolutely. This was the issue raised by the pleadings and, of course, was the only issue which could be considered and determined by the trial court and by this court on appeal. It is true, as contended by the appellees, that the plaintiffs offered proof of fraudulent acts and that the trial court, in answer to points, found that the indebtedness to be paid Thomson from the proceeds of the property was the indebtedness against the estate of George D. Jackson and also the individual indebtedness of the executors, and that there was a valid consideration for each of the deeds. But these findings and proof of these facts were not material in determining the issue before the court, and hence as to those findings and facts, the decree was not conclusive: Sheble v. Strong, 128 Pa. 815, 323. The sole issue in the equity case, as shown by the pleadings, was whether the real estate was conveyed to Thomson absolutely or upon an express parol agreement to reconvey on the payment to him of the indebtedness of $8,100. The decree of the court dismissing the bill, therefore, adjudicated and determined that the real estate was conveyed to Thomson absolutely, and not upon an express agreement to reconvey, thereby converting the deeds into a mortgage.

As counsel of both parties have referred to the findings of fact and law and the opinion of the trial court and the opinion of this court to sustain their contention as to what was adjudicated in the equity case, we will also examine the opinion of this and the trial court which show what was involved and decided in that ease. In his opinion in the equity case, the learned trial judge said: “The plaintiffs contend that they (deeds) do not contain the entire contract between the parties; that there was a parol agreement by which Thomson was to hold the land, timber and bark in trust and as a pledge to secure the loans from the bank; Thomson to manage the property, peel and ship the bark, manufacture and sell the lumber, and, after deducting costs and expenses and a reasonable compensation to himself, to apply the balance to the indebtedness of $8,100 and its interest to the bank until it wms paid; that he was from time to time to render accoinits to the grantors and reconvey the property to them, or their legal representatives, when debts and costs were fully paid from the proceeds of the sales or otherwise. That there was an agreement to account and reconvey is denied by each defendant in a sworn answer, and thus the main question of fact arises.” The learned judge then discusses at length the question whether there was a parol agreement to reconvey, concluding as follows : “ Without evidence which, under the authorities, could be allowed to prevail against the plain terms of the deeds, we must find that the entire contract was embraced within their provisions and that no agreement to reconvey the lands was made at the time of their execution and delivery. As the above finding of fact is conclusive of the rights of the parties, so far as they have been presented for our consideration by the pleadings, a discussion of many of the questions argued by counsel is unnecessary.” He then discusses the allegation that Thomson was the attorney and confidential adviser of the grantors in the deed, and says: “ it is not charged in the bill and no relief was sought on that ground.” The judge further says that in their written argument counsel raised the question of the power of the executors to convey the property of their testator to pay their individual debts and whether or not a resulting trust had not arisen as concerns these.lands; but he declines to determine the question, saying: “ This question is not raised by the pleadings and we do not feel called upon to decide it.” The learned judge concludes his opinion as follows: “ In the case as presented, there can be no relief to the plaintiffs from the contract as evidenced by the conveyances. If it be conceded that we are wrong in the fifth finding of fact, as we understand the law a reconveyance could not be decreed, for if the alleged parol agreement would have converted the deeds into mortgages the act of 1881 stands in the way; if it is sought thereby to establish a trust ex maleficio there is neither allegation nor proof of any fraud perpetrated by Thomson on the grantors by which he procured the conveyances. The most that is and can be said is that Thomson refuses to carry out the terms of the parol contract. Such a fraud is no more than attends the violation of every agreement. Were this sufficient to establish a trust ex maleficio then would the act of 1856 be written in water.”

In reviewing the case, Jackson v. Thompson, 208 Pa. 622, in this court it was said : “ The court below very properly disposed of the case on the issues raised by the pleadings, and on this appeal we are likewise confined within the same limits.” After stating the issues raised by the pleadings and that they were found in favor of the defendant, the opinion continues : “ It is, therefore, found that the deeds conveyed the property absolutely as their terms purport to do and that they contain the entire contract between the parties. Unless we reverse these findings of fact by the learned judge, the plaintiffs are not entitled to the relief prayed for in the bill.” In concluding, the opinion says: “We will conclude by saying, as suggested by the trial judge, that the allegation in the bill, if supported by the facts, would convert the deeds into mortgages with parol defeasances, incapable of enforcement by reason of the Act of June 8,1881, P. L. 84, and that a trust ex maleficio is neither averred nor proved. It is entirely unnecessary to consider many of the questions suggested in the argument of the appellants. They are not raised by the pleadings nor involved in the issues presented here for determination.”

This action is an ejectment for an undivided one-third interest in one of the tracts of land named in the bill filed in the equity case and the plaintiffs are privies in title with those in the equity case, and Thomson is the real defendant in both cases. On the trial of the cause, and after the plaintiffs proved title in their ancestor, the defendants offered in evidence the deed of July 9, 1897 to Thomson. They then offered in evidence the record of the equity case which, against the plaintiffs’ objection, was admitted with this limitation : “ So far as it is offered for the purpose of establishing that the thing in controversy here was adjudged in the former suit, only such things will be held to have been adjudged as were either directly or necessarily and materially involved in the equity issue, and what those things are will be determined upon the offers of evidence made by the defense.” The defendants having rested, the plaintiffs, in rebuttal, offered to show that Rush J. Thomson, one of the defendants, was the attorney and counsel of Bernice W. Jackson and George C. Jackson, as individuals and as executors of George D. Jackson’s estate, and also was counsel for W. W. Jackson; that by reason of his being counsel and taking advantage of the confidential relations thus existing between the parties, he fraudulently obtained from George D. Jackson’s executors the conveyances of July 9, 1897, without any consideration whatever; that no money was paid by Thomson for the conveyances and that there was no valid consideration moving from Thomson to the executors for the conveyance ; and that the conveyance was made in fraud of the legal rights of the cestui que trust under the will of George D. Jackson. The defendants objected to the testimony for the reason that the matter embraced in the offer became res adjudicata by the decree in the equity suit. The objection was sustained and a verdict was directed for the defendants.

It will thus be seen that this action was brought to recover the premises in dispute on the ground that Thomson held the title and possession as a trustee ex maleficio. The learned court below so held, and, being of opinion that the question had been adjudicated in the equity suit, further held that it was res adjudicata, and the plaintiffs were concluded by the decree in that case. This, we think, was manifest error. In the former suit, the bill prayed for an accounting, for the payment of the surplus money over and above the amount required to discharge certain obligations, to secure the payment of which the real estate was convejmd to the defendant, Thomson, and for a reconveyance of the property to the plaintiffs. The prayers of the bill were refused, not only because the act of 1881 prevented the enforcement of the parol defeasance, but because it was found as a fact that Thomson had made no agreement to account or reconvey. The bill in that case did not directly nor inferentially aver the matters stated in the plaintiffs’ offers of proof in this case and which convert Thomson into a trustee ex maleficio. The question raised by these offers, that Thomson was a trustee ex maleficio, need not have been and was not passed upon in the former suit, but on the contrary, as we have pointed out, the court expressly declined to determine the question because it was not raised by the ^headings. If the question was injected into the case collaterally by the counsel of the parties, as was done, it did not thereby become res adjudicata: Hibshman v. Dulleban, 4 Watts, 183; Schwan v. Kelly, 173 Pa. 65; Duchess of Kingston’s Case, 2 Sm. Lead. Cas.* 784. In the case last cited, Chief Justice De Grey delivering the opinion said: “Neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” In Williams v. Row, 62 Pa. 118, Chief Justice Thomson, speaking for the court, said (p. 122) : “ I claim, that to .be conclusive, the record must show the very matter claimed to have been passed upon, which is claimed to be concluded. That does not appear here. ‘ In order that a judgment in one action shall be conclusive in another, it must appear with convenient certainty, that the question in controversy in the second suit was litigated and decided in the first.’ This is most fully illustrated by the case of Kelsey v. Murphy, already cited. The bill in that ease, like this, was dismissed, and this was claimed to be an adjudication of the very question involved in the second suit; but this court dissected the bill, and showed, that while it was a similar claim in one aspect of the case, it was not so in all, and not conclusive.”

In Kitchen v. Campbell, 3 Wilson, 304, the court said: “ What is meant by the same cause of action is, where the same evidence will support both actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar, or not, to a subsequent action.” The same principle is announced in 1 Greenleaf on Ev., sec. 528, and 1 Starkie on Ev. * 318, and is recognized and applied in Schriver v. Eckenrode, 87 Pa. 213. Applying this test to the case in hand it is apparent that the plea of former adjudication cannot be sustained, as the same evidence will not support a cause of action which requires proof of an express parol agreement to reconvey real estate and a cause of action which requires proof that the holder of the title to the real estate is a trustee ex maleficio. The one requires proof, not of fraud in the grantee, but of an express contract which alone would entitle the party to recover; the other is established by proof of fraud of the grantee holding the title which converts him into a trustee for the beneficial owner.

Regarding the adjudication in the equity case as not a bar to the present action of ejectment, we must reverse the judgment of the court below.

The judgment is reversed, and a venire facias de novo is awarded.


text:
    Wagner v. Hazle Township, Appellant.

      Negligence — Townships—Defective bridge — Act of June 12, 1893, P. L. 451.
    The Act of June 12, 1893, P. L. 451, which gave taxpayers the right to contract with a township to furnish materials and labor necessary for opening and repairing roads and bridges of the township, did not in any way relieve the supervisors from their duty to see that the roads and bridges are kept in proper repair, nor did it relieve the township from liability for injuries sustained by reason of defects in the roads and bridges.

      Negligence — Trial—Improper remarks of counsel.

    Where, in an action against a township to recover damages for personal injuries sustained by reason of a defect in a bridge, counsel for plaintiff orally offers in the presence of the jury to show that in a suit against a street railway company for the same injuries a verdict had been recovered by plaintiff for $6,000, but had been reversed by the Supreme Court on the ground that the township alone was liable, it is reversible error for the trial court to refuse to withdraw a juror because of the impropriety of counsel in stating the amount of the former verdict.
    Where an attorney in the trial of a cause wilfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the justice of the cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the jury, he fails to observe the duty required of him as an attorney and his conduct should receive the condemnation of the court. This condemnation can and should be made effective. Per Mestrezat, J.
    Argued April 11, 1906.
    Appeal, No. 109, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Có., Oct. T., 1908, No. 212, on verdict for plaintiff in case of Elmer E. Wagner et ux. v. Hazle Township.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    At the trial it appeared that on the night of August 15,1901, Elmer E. Wagner and his wife were driving over a township bridge when the wheel of the wagon fell into an opening in the bridge, and before the wagon could be pulled out a street car ran into it, and Mrs. Wagner was hurt. It was claimed that after the wagon was caught in the opening Mr. Wagner ran back to stop the car, but failed to do so, and that the wagon was struck as Mrs. Wagner attempted to alight from it.
    The defendant presented the following points, all of which were refused:
    1. The evidence of the plaintiff shows that the plaintiff, Nellie Wagner, was guilty of contributory negligence in that she failed to take proper steps to secure her safety when the danger became apparent to her, but, depending upon her husband to succeed in preventing any possible accident by stopping the car, remained inactive until the danger was so imminent as to prevent her avoiding the injury.
    2. That there was no physical disability or other thing in the plaintiff, as shown by the testimony, to prevent her alighting from the wagon in time to avoid the injury sustained.
    3. That the real proximate cause of injury was not the crack or crevice alleged to exist in the bridge of the defendant township, but was caused by the car operated by the traction company and therefore the plaintiff cannot recover.
    4. That from the testimony in the case, it is established that from the defect in the highway of itself no injury occurred and that the proximate cause of the injury was the running away of the horses occasioned by the car striking the wheel of the wagon and therefore the plaintiff cannot recover.

      5. That there is a variance between the allegation in the declaration and the proofs in the case as to the location of the bridge where the accident occurred.
    6. That it having been shown to the court that under the Act of June 12, 1893, P. L. 451, a contract was made under the order of the court and duly appearing of record whereby the care of the public roads, highways and bridges of the township of Hazle was taken away from the supervisors, the plaintiff cannot recover in this action.
    7. That under said act of June 12, 1893, — there is no liability on the part of the township of Hazle for damages occurring as shown by the facts of this case, but the action should be against the contractor under said act.
    8. That under all the evidence in the case the plaintiffs are not entitled to recover and the verdict should be for the defendants.
    Verdict and judgment for plaintiff, Elmer E. Wagner, $500 and for Mrs. Wagner $3,500. Defendant appealed.

      Errors assigned were (1-8) refusal of points as above, and (9) the court erred in refusing to withdraw a juror and continue the case when requested so to do by defendant because of the improper offer of plaintiffs’ counsel made in a loud voice, which offer, objection, and court’s answer were as follows :
    “ In view of what Mr. Garman has offered in evidence in the other case, we now offer in evidence the record in that case, for the purpose of showing that the jury gave the plaintiff a verdict of t$6,000, and that the case was appealed to the Supreme Court and that the Supreme Court reversed the judgment of the court below practically saying that it was not responsible, but that the township was bound to keep its own road in repair.”
    Defendant’s counsel: We object and move that a juror be withdrawn, because of the statement made by the attorney for the plaintiff, in full voice before the jury, as to the amount of the other verdict.
    The court’s answer was as follows : “ The request to have a juror withdrawn is denied. Counsel for plaintiff stated nothing improper. Exception noted for defendant; bill sealed.”

      May 7, 1906 :

      John R. Sharpless and John M. Carman, with them John J. Kelly, for appellant.

      James P. Costello, with him James L. Lenahan, for appellee.
   Opinion by

Mr. Justice Mestrezat,

The proximate cause of Mrs. Wagner’s injuries was the hole or opening in the bridge, and if the.jury found, as they did, that the hole was caused by the negligence of the defendant township, its liability necessaxily followed.

The defective bridge which caused the accident was a part of a township road, and the duty to keep it in proper repair and safe coxxditioxx for public travel rested primarily upoxx the township. The Act of June 12,1893, P. L. 451, 2 Purd. 1881, did not relieve the towxxship from this liability. Such was not the purpose of that statute. That act gives the taxpayers of the township the right to petition the court of quarter sessions to authorize a coxxtract with the township by which the petitioners may acqixire the right to furxxish the materials and labor necessary for openixxg and repairing the public highways and bridges of the township under conditions prescribed by the act. Such a contract does not, however, relieve the supervisors from their duty to see that the roads and bridges are kept in proper repair, but, oxx the contrary, by the second section of the act it is expressly provided “ that the supervisors are hereby required to view axxd inspect the making and repairing of the public roads in said townships at least oxxce during every month, and be fully satisfied that the petitioners have fully complied with their coxxtract.” That section of the act further provides that “ if at any time the supervisors shall see that any portion of said road needs repair, they shall notify said petitioxxers to repair the same, axxd in case said petitioners shall fail to repair said road within five days after notice as aforesaid, the supervisor is empowered to purchase such materials axxd employ such men as may be necessary to repair said road and charge the same to said petitioners.” The third section of the act requires the contractor to give bond with sufficient sureties conditioned for the faithful performance of his contract under the provisions of the act, “ and to save said township harmless froixx any loss or claim by reason of failure so to perforin said duty.” The fifth section empowers the court to authorize the supervisors in behalf of the township to enter into a contract with a petitioner, desiring to make or repair the road, by which contract the petitioner is required to bind himself, among other things, “ to indemnify and save harmless the said township .... from all claim, damage, cost or expense of whatever kind for or by reason of any act or omission of said petitioner . . . ., whereby any claim, suit or other demand may be set up or recovered against said township.”

It is apparent, therefore, that in the passage of the act of 1893, the legislature did not intend to relieve the township from its primary duty to keep the highways in proper repair. The act imposes upon the supervisors a strict duty in regard to overseeing the work required to be done by the contractor, and on his failure to satisfactorily perform it, to furnish the materials and labor for the purpose. The township is indemnified by the bond, as we have seen, against any expense or damages to which it may be subjected by reason of the default of the contractor in failing to keep the highways in proper repair. The purpose of the act, as its provisions show, was simply to afford an opportunity to taxpayers, who might desire to do so, to make or keep the roads in repair for the compensation agreed upon by them and the township, and not to relieve it from its duty to see that the highways are kept in proper repair.

The question of Mrs. Wagner’s contributory negligence was for the jury. The facts were not undisputed. The plaintiffs claim that after the wheel of the wagon had gone into the opening in the bridge she attempted to alight from the wagon, and was in the act of doing so at the time it was struck by the car of the Lehigh Traction Company, and that her conduct in no way contributed to her injuries. What she did on that occasion, and whether she acted with the prudence required of her, were for the jury.

Prior to the present action the plaintiffs brought suit against the Lehigh Traction Company to recover damages for the same injuries, and obtained a verdict of $6,000. The case, on appeal, was heard by this court last year, and the judgment was reversed and a new trial was awarded. On the trial of the present action the counsel for the plaintiff, in the presence of the jury and where they could distinctly hear it, made the following offer: “We now offer in evidence the record in that case, for the purpose of showing that the jury gave the plaintiff a verdict of six thousand dollars, and that the case was appealed to the Supreme Court and that the Supreme Court reversed the judgment of the court below, practically saying that it was not responsible, but that the township was bound to keep its own road in repair.” Thereupon the defendant’s counsel said: “We object and move that a juror be withdrawn, because of the statement made by the attorney for the plaintiff, in full voice before the jury, as to the amount of the other verdict.” The court declined to withdraw a juror and the defendant excepted to the ruling. We think the court committed error for which the judgment must be reversed.

The offer was clearly incompetent, and the only purpose it could serve, or effect it could have, would be to place before the jury the amount of the large verdict in the Lehigh Traction Company case. The counsel should not have made the offer, and after he had made it, it was the duty of the court to protect the defendant against its effect. The purpose of the offer was obvious, and its effect would be equally apparent. Such conduct on the part of counsel is different from an unintentional or inadvertent remark to a jury which does the opposite party no injury. When such remarks are made they may or may not have an influence upon the jury, but there can be no question about the effect upon that tribunal of an offer to show what a former jury, dealing with the same facts, had determined as to the amount of damages due the plaintiffs for the injuries which they sustained. It was a criterion for the jury in considering the case which they evidently would accept, and which no language of the trial judge could drive from their minds. The offer got before the jury what was clearly incompetent and what manifestly would, to some extent at least, control their verdict. The only way to remedy the wrong was to withdraw a juror and compel the plaintiffs to submit the cause to another jury, uninfluenced by such wholly irrelevant and incompetent matter.

In commenting upon the improper remarks of counsel in Holden v. Penna. R. R. Co., 169 Pa. 1, appealed to this court from the same trial court from which the present appeal comes, it was said (p. 18) : “The comments of counsel complained, of were of the most offensive and reprehensible character, not sustained by any evidence in the cause and justly deserving the severe censure of the court. We can discover nothing to palliate them in the least degree, and inasmuch as there was no other efficacious remedy available to correct the mischief done, it was the plain duty of the court to withdraw a juror and continue the cause. Many judges are in the habit of doing this upon proper occasion, and that practice deserves to be widely extended, so that counsel who indulge in the habit of making such comments, may be properly admonished that they cannot do so except at severe cost to their clients and themselves.” In Commonwealth v. Weber, 167 Pa. 158, it was said that a trial judge may and often does, of his own motion, stop counsel in improper statements, and administer rebuke. And in the very recent case of Dougherty v. Pittsburg Railways Co., 213 Pa. 346, we said (p. 848) : “ Counsel should be held to a strict accountability for language used in addressing the jury, and where willful or reckless misstatements of the evidence are made a juror should be withdrawn or a new trial granted.”

When an attorney in the trial of a cause willfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, or makes improper statements as to the facts in his address to the jury, clearly unsupported by any evidence, which are prejudicial and harmful to the opposite party, it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel and withdrawing a juror and continuing the cause at the costs of the client. In no other way can justice be administered and the rights of the injured party be protected. The imposition of the costs will remind the client that he has an attorney unfaithful to him as well as to the court. The obligation of fidelity to the court which an attorney assumes on his admission to the bar is ever thereafter with him, and when he attempts to defeat the justice of a cause by interjecting into the trial wholly foreign and irrelevant matter for the manifest purpose of misleading the jury, he fails to observe the duty required of him as an attorney and his conduct should receive the condenmation of tlie court. This condemnation can and should be made effective.

The ninth assignment of error is sustained and the judgment of the court below is reversed with a venire facias de novo.


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    Walsh v. Wilkes-Barre, Appellant.

      Negligence — Municipality—Fall on sidewalk — Improper remark of counsel.

    It is reversible error for the court to refuse to withdraw a juror in an action against a city to recover damages for personal injuries sustained on a defective sidewalk, where the counsel for plaintiff says to the jury “the lot owner is finally liable, and the Lehigh and Wilkes-Barre Coal Company owns the lot.”
    Argued April 10, 1906.
    Appeal, No. 123, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., June T., 1902, No. 212, on verdict for plaintiff in case of John Walsh v. City of Wilkes-Barre.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries alleged to have been sustained on a defective sidewalk in the city of Wilkes-Barre. Before Lynch, P. J.
    At the trial and after the testimony was completed defendant’s counsel said: “ Before the court charges the jury, I wish to file the following affidavit: ”
    “ James L. Lenahan, being duly sworn according to law, says that John T. Lenahan, counsel for the plaintiff, made use of the following language in his argument to the jury:
    “ ‘ The lot owner is finally liable, and the Lehigh and Wilkes-Barre Coal Company owns the lot.’
    I ask now that a juror be withdrawn and the case be continued. There is nothing in the record to show that any notice was brought home to the Lehigh and Wilkes-Barre Coal Company that would make them liable, and nothing in the evidence that warranted that statement to the jury.
    The Court: The affidavit may be filed. The request to have a juror withdrawn is denied.

      May 7, 1906 :
    Defendant’s counsel: Will your honor give us the benefit of an exception, and a bill ?
    The Court: Do you admit you made that statement, Mr. Lenahan ?
    Plaintiff’s counsel: Tes, sir. Exception and bill sealed. [1]
    Verdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned were (1) refusing to withdraw a juror ; (2, 3) certain instructions.

      James L. Lenahan, with him O. F. McHugh, for appellant.
    In getting the objectionable remarks of counsel on record, we followed the rule laid down in Commonwealth v. Weber, 167 Pa. 153 ; Holden v. Pennsylvania Railroad Company, 169 Pa. 1, and Guckavan v. Lehigh Traction Company, 203 Pa. 521.

      John T. Lenahan, with him James O. Murray and William, P. Walsh, for appellee,
    cited as to remarks of counsel: Newman v. Com., 8 Sadler, 127 ; Com. v. Weber, 36 W. N. C. 193.
   Opinion by

Mr. Justice Mestrezat,

For the reasons given in the opinion handed down herewith in Wagner v. Hazle Township, ante, p. 219, we are compelled to reverse this judgment for the improper remark of appellee’s counsel to the jury which was manifestly prejudicial to the defendant. It was wholly immaterial and irrelevant in the trial of this cause who might be ultimately liable for the damages recovered in the case, and the statement of the appellee’s counsel to the jury that the Lehigh & Wilkes-Barre Coal Company would be liable finally for the damages was prejudicial to the defendant. The effect of the remark would be to increase the amount of the verdict by invoking the antagonism to corporations which is sometimes found in juries and which is often made apparent by their verdicts. Although the objectionable remark was called to the attention of the trial judge before he charged the jury, he did not attempt to withdraw it from the jury or to admonish that body to disregard it. It apparently went to the jury with the court’s approval.

The second and third assignments of error are without merit and are overruled.

The first assignment is sustained and the judgment is reversed with a venire facias de novo.


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    Munley v. Sugar Notch Borough, Appellant.

      Negligence — Boroughs—Obstruction in street — Constructive notice.

    Where a borough permits mortar boxes to remain for three or four weeks in a much traveled street, it is liable to a person who sustains personal injuries from such obstruction.

      Practice, C. P. — Laches—Non-pros—Waiver.
    Where the plaintiff in an accident case against a borough delays for over eight years in prosecuting his case for trial after the issuing of the summons, the borough is entitled to have the case non-prossed, but if the borough, through its general counsel, entered a plea of not guilty, such plea is a waiver of the right to a non-pros. In such a case the power of the attorney to enter the plea cannot be disputed where it is shown that he had been regularly retained as the attorney for the borough about five years, and that his official relations with it had not expired until some days after he had entered the plea.
    Argued April 11, 1906.
    Appeal, No. 110, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1896, No. 62, on verdict for plaintiff in case of Peter Munley by his next friend and mother, Margaret Munley, v. Sugar Notch Borough.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Halsey, J.
    From the record it appeared that the summons was issued on October 9, 1896, and that the statement was filed on February 15, 1905, and on the same day the defendant by its attorney, Thomas F. Farrell, pleaded not guilty. Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      May, 7, 1906:

      Errors assigned among others were in refusing judgment of non-pros, and in refusing binding instructions for defendant.

      Edward A. Lynch, with him M. F. McDonald, for appellant.
    The solicitor of this borough defendant, before he could perform any act in the pending suit, should first have received authority from the council: Philadelphia v. McManis, 15 Phila. 51; Johnstown, etc., R. R. Co. v. Egbert, 152 Pa. 53; Harvey v. Schuylkill Trust Co., 199 Pa. 421.
    We contend that under the circumstances and in view of the many cases upon this branch of the subject the great delay between the issuing of the summons and the filing of the statement would be such laches on the appellee’s part as should warrant the granting of the judgment of non-pros, and thereby bar the right of recovery: Rist’s Est., 192 Pa. 24; Waring v. Penna. R. R. Co., 176 Pa. 172; Hoffman v. Stiger, 1 Pittsburg, 185; Biddle v. Girard Nat. Bank, 109 Pa. 349; Johnston v. Mining Co., 148 U. S. 360 (13 Sup. Ct. Repr. 585); Paddleford v. Bancroft, 22 Vt. 529; Saville v. Frisbie, 70 Cal. 87 (11 Pac. Repr. 502); Taber v. Taber, 60 N. Y. Superior Ct. 65.
    The mortar box was not a nuisance or an unsafe object to impede travel, or to interfere with the legitimate use of the highway: Guilmartin v. Philadelphia, 201 Pa. 518 ; Friedman v. Snare & Triest Co., 71 N. J. 605 (61 Atl. Repr. 401); McKee v. Traction Co., 211 Pa. 47 ; Nichols v. Pittsfield Twp., 209 Pa. 240.

      James L. Lenahan and Thomas F. Farrell, with them P. M. Thornton, for appellee.
   Opinion by

Mr. Justice Mestbezat,

There was ample evidence in this case to charge the borough with constructive notice of the obstruction in the street which caused the injury to the plaintiff. Three or four witnesses testified that the board in the mortar box, which was the cause of the injury, had been there for at least three or four weeks prior to the time of the accident. The mortar boxes were on a much traveled street of the borough, and it was clearly the duty of the officials, having notice of their existence, to cause the obstruction to be removed. In this case it was not done, and if the jury found that the officials had notice of the obstruction the borough’s liability necessarily followed.

We think it clear under our authorities that the defendant would have been entitled to a non-pros of the action if it had made an application on February 15, 1905, prior to the plea entered by its counsel. The authorities on this point are numerous and all in accord. In analogy to tbe statute of limitations, a plaintiff must prosecute his action without unreasonable delay, or a presumption of abandonment will arise which will entitle the defendant to a non-pros. But considering this to be the rule and that the defendant in this case would have been entitled, by reason of the laches of the plaintiff in prosecuting the case, to have had a compulsory nonsuit entered, the action of Mr. Farrell in entering a plea of not guilty was a waiver of such right. While the right to a nonsuit cannot be questioned, it is equally clear that a defendant may waive the right and assent to a trial of the cause. In entering the plea, it must be assumed that the borough was willing to waive its right to a non-pros.

On the rule taken by the defendant to show cause why a nonsuit should not be entered, the defendant took depositions. It there attempted to show that Mr. Farrell, who entered the plea in the case, did not have authority to do so. But the evidence failed of its purpose. It was clearly shown that he had been regularly retained as the attorney for the borough for about five years, and that his official relations with it did not expire until some days after he had pleaded to the plaintiff’s statement. In the absence of evidence showing that his authority was restricted and that it did not authorize him to plead, prosecute or defend any litigation to which the borough was a party, the presumption is that he had such authority. The evidence of the defendant taken on the rule went no further than to show that when an action was brought against the borough it was usually reported to the borough council and instructions were given to the attorney as to what action to take. That, however, was not the universal practice. This case, however, had been pending for about ten years and if a plea was to be entered there can be no doubt in the absence of evidence to the contrary that the borough attorney was the proper official to do it. It is not alleged or claimed that he had been forbidden to exercise such authority; in fact the borough officials testified that they had no knowledge of the pendency of the action until some months after the case had been put at issue by entering a plea.

If, as claimed by the defendant, Mr. Farrell exceeded his authority and acted contrary to the interests of the borough and his duty as its attorney in entering the plea, the borough must look to him for redress and cannot successfully defend this action on that ground. Mr. Farrell, like every other attorney, was bound to use the utmost good faith towards his client and use his skill and ability as an attorney for the best interests of his client in the litigation pending between the borough and Munley. If he failed in this duty to the borough, and by reason of negligence or any other misconduct on his part it suffered thereby, he is responsible. That question does not arise in this case and cannot be interposed as a defense.

For the reasons above given we are compelled to affirm this judgment.

The judgment of the court below is affirmed.


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    Everson v. Sun Company, Appellant.

      Change of venue — Interest of inhabitants — County—Act of March, 30, 1875, P. L. 35 — Practice, C. P.

    A change of venue will not be granted on the ground that a large number of the inhabitants of a particular locality in a county are interested in the suit, where there is nothing to show that a large number of the inhabitants of the county generally are interested.
    Elkin, J., dissents.
    Argued April 26, 1906.
    Appeal, No. 136, Jan. T., 1906, by defendant, from order of C. P. Delaware Co., Sept. T., 1902, No. 225, refusing change of venue in case of David Newlin Everson and Ella E. Everson, his wife, v. Sun Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      May, 7, 1906 :
    Petition for change of venue. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court refusing change of venue.

      William B. Broomall, with him George S. Graham, and William I. Schaffer, for appellant,
    cited: Felts v. Delaware, etc., R. R. Co., 160 Pa. 503 ; Willoughby v. Ry. Co., 203 Pa. 243.

      V. G. Bohinson, with him O. B. Biclcinson, for appellees,
    cited: Willoughby v. Ry. Co., 203 Pa. 243; Philadelphia v. Ry. Co., 143 Pa. 444; Newlin’s App., 123 Pa. 541; York Water Co. v. Gladfelter, 4 York, 87.
   Opinton by

Mr. Justice Mestbezat,

This was an application to the court below by the defendant company for a change of venue under paragraph five of section one of the Act of March 30, 1875, P. L. 35, 2 JPurd. 2069. That paragraph requires the court to change the venue “ whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he believes he cannot have a fair and impartial trial.” As held in Willoughby v. Buffalo, etc., Railway Company, 203 Pa. 243, and Little v. Wyoming County, 214 Pa. 596, it is mandatory on the' court to change the venue when it is satisfied of the truth of the facts alleged in any of the paragraphs of the first section of the act. In this case the applicant having filed the affidavit required by the statute, the fact which the court below was required to find, or to be satisfied of the truth of, was that a large number of the inhabitants of Delaware county had an interest in the question involved in this case, adverse to the defendant company. If the learned judge of the court below found the fact in favor of the defendant, it was his duty to grant the application for a change of venue.

The defendant presented its petition to the court below in the proper form, averring that a large number of the inhabitants of Delaware county had an adverse interest in the question at issue in the case. The petition was accompanied by an affidavit, in the form required by the statute, that it was the belief óf the affiants that a fair and impartial trial of the suit could not be had in Delaware county. An answer was filed by the plaintiffs denying, inter alia, the truth of the averment that a large number of the inhabitants of the county had an interest in the question involved in the cause or that the defendant could not have a fair and impartial trial in Delaware county.

The issue as thus made by the pleadings was heard by the court. The testimony of two witnesses was taken in behalf of the defendant company. After a full consideration of the case, the learned judge of the court below found the facts against the defendant and refused the application for a change of venue. In his opinion he says: “ The burden is on the petitioner to satisfy the court of the truth of the facts alleged. This it has failed to do. From the evidence submitted we cannot find as a fact that a large number of the inhabitants of the county have an interest in the question involved in this suit, adverse to the petitioner.” This is a distinct finding by the court on the jurisdictional fact alleged in the petition, and the finding having been against the petitioner, the denial of the application necessarily followed. This procedure is in strict compliance with the provisions of the act of 1875. We have examined carefully the evidence submitted by the defendant company and we are not convinced that the learned judge erred in his conclusion.

The purpose of the act of 1875 must be kept in view in ascertaining what constitutes in contemplation of the statute a large number of the inhabitants of a county. The legislative intent was to secure to the litigant a jury which would afford him an opportunity to have a fair and impartial trial; and when that cannot be obtained in the county in which the action is pending by reason of the number of the inhabitants throughout the county having an interest adverse to him in the question involved, then there is in contemplation of the act “a large number of the inhabitants” having an adverse interest, which requires the court to change the venue. The fact which authorizes a change of venue under paragraph five of section one of the act is that “ a large number of the inhabitants of the county,” and not of a particular locality in the county, is interested in the controverted question in the cause. The question involved in the present suit arises out of an alleged cause of action which, if it exists at all, exists only in one locality in Delaware county, and affects only those who reside or have property interests in that particular locality. A jury is drawn from the body of the whole county, and where, as here, the persons interested in the question involved in the cause at issue are confined to a particular locality and the number is relatively very small in comparison with the population of the whole county, there is no sufficient ground to send the cause to another county for trial. By exercising their right to challenge, the parties can secure a jury which will not be prejudiced on account of the number of people who are interested in the result of the cause. The number of people interested in a pending action may be a large proportion of the population of the community in which the cause of action arose, but it may be a veiy small proportion of the whole county. It is apparent, we think, that taking into consideration the population of Delaware county and the number of inhabitants in the community who are alleged to be affected by defendant’s Avorks, a jury can be obtained from the panel, taken from the whole county, which will have no interest in the cause and which will be strictly impartial. We are unable to see that the learned judge has abused his discretion, or arbitrarily exercised it, against the defendant company in finding the facts or in denying the application for a change of venue. It therefore follows that the order refusing the application of the defendant for a change of venue must be affirmed.

Elkin, J., dissents.