author: Me. Justice Beown,

text:
    Rassau, Appellant, v. Campbell.

      Election law — Liquor law — Local option — Special Act of April 8, 1872, P. L. 804 — Act of June 8, 1911 P. L. 708 — Statutes — Repeal.

    1. Under Section 7, Article III, of the Constitution, the legislature had the right to pass the Act of June 8, 1911, P. L. 703, repealing the special Act of April 3, 1872, P. L. 804, relating to local option in certain townships of Allegheny county.
    2. Each of the ten townships named in the Act of April 3, 1872, was a unit, and the act was in effect the same as if a separate act in identical terms had been passed for each township. The fact, therefore, that the legislature repealed the Act of 1872, as to five of the ten townships only, does not render the Act of June 8, 1911, unconstitutional. Blankenburg v. Black, 200 Pa. 629, distinguished.
    3. Where, after the passage of the Act of April 3, 1872, a portion of one of the townships mentioned therein becomes • a borough under a decree of the court of quarter sessions, the electors of the portion of the township which became the borough retained their right to decide whether liquor licenses should be granted or refused within the limits of the borough. If the township in question is one of the townships as to which the Act of April 3, 1872, was repealed by the Act of June 8, 1911, the Act of 1872 is repealed as to the borough also, and the electors in the latter lose the right to determine whether or not liquor licenses shall be granted in the borough.
    Argued April 24, 1912.
    Appeal, No. 51, Oct. T., 1912, by plaintiff, from judgment of Superior Court, April T., 1911, No. 106, affirming decree of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 985, dismissing bill in equity in case of John Rassau y. I. K. Campbell, et al., County Commissioners, and Frank Scholl, Constable of the borough of Brackenridge.
    Before Brown, Piotter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Appeal from Superior Court. See Rassau v. Campbell, 48 Pa. Superior Ct. 408.
    The opinion of the Supreme Court states the case.

      Error assigned was the judgment of the Superior Court.

      Nelson MoViear, of MeVicar & Haslett, P. H. Maguire and W. A. Stone, of Stone & Stone, for appellants.
    We contend that the Act of April 3, 1872, P. L. 804, was repealed by the Act of June 8,1911, P. L. 703, in so far as the provisions of the Act of 1872 relate to the territory embraced within the townships of Pine, Harrison, North Versailles, North Fayette and South Fayette, as of the date of the passage of the Act of 1872: Irwin v. McCallin, 28 Pitts. Leg. J. 322; Com. v. Wyman, 137 Pa. 508; Horlacher v. Commissioners, 3 Lehigh County Law Journal, 108; Wade v. Richmond, 18 Graft (Va.) 583; Colvin v. Beaver, 94 Pa. 388; Allegheny v. Kennedy, 14 Pa. C. C. R. 152; Rassau v. Campbell, 59 Pittsburgh Leg. J. 210; Wishart v. Leslie, 36 Pittsburgh Leg. J. 223; Durr v. Commonwealth, 35 Pittsburgh Leg. J. 270; Buckwater v. Lancaster County, 12 Pa. Superior Court 272; Evans v. Phillipi, 117 Pa. 226; Keener v. Fouch, 16 Pa. C. C. R. 207; Washington Borough, 26 Pa. Superior Court 296; Commonwealth v. Standard Oil Company, 101 Pa. 119; Commonwealth v. Booth, 55 Pittsburgh Leg. J. 95; Hampton v. Com., 19 Pa. 329; Jacoby v. Shafer, 105 Pa. 610; State v. Johnson, 74 Minn. 381 (77 N. W. Repr. 293); Scranton School Dist.’s App., 113 Pa. 176; Com. v. Reynolds, 137 Pa. 389.

      E. E. Fulmer, with him A. B. Hay and Edward J. I. Gannon, for appellees,
    cited: State v. Chadbourne, 74 Maine 506; Oakland Paving Co. v. Hilton, 69 California 479 (11 Pac. Repr. 3); Jessee v. DeShong, 105 S. W. Repr. 1011; Falconer v. Robinson, 46 Alabama 340; Blankenburg v. Black, 200 Pa. 629; Munnell v. Morgan, 15 Pa. D. R. 819.

      May 13, 1912:
   Opinion by

Me. Justice Beown,

By the Act of April 3, 1872, P. L. 804, the voters of the townships of West Deer, East Deer, Pine, Richland, Harrison, North Versailles, South Versailles, North Fayette, South Fayette and Killbuck, in the county of Allegheny, were authorized to vote at the next municipal election, and triennially thereafter, for or against the granting of licenses for the sale of intoxicating liquors; and whenever it should appear from the returns of an election that there was a majority in any of said townships against the granting of licenses in it, no licenses could he issued for the sale of liquors therein until, at a subsequent election, the voters should vote in favor of license. In 1901, under certain proceedings had in the Court of Quarter Sessions of Allegheny County, the borough of Brackenridge was created out of the township of Harrison. By the Act of June 8, 1911, P. L. 703, the Act of April 3, 1872, was repealed, “so far as its provisions relate to the said townships of Pine, Harrison, North Versailles, North Fayette and South Fayette.” This proceeding, instituted in the court below, was to restrain the appellees from providing for an election in the borough of Brackenridge on the third Monday of February, 1912, or at any other time, for the purpose of allowing the electors of that borough to vote for or against license. The injunction was applied for on the ground that the repealing Act of 1911 applied to all of the territory embraced within Harrison township at the time of the passage of the A.ct of 1872. To the appellant’s bill a demurrer was filed which the court was asked to sustain for two reasons, (1) because the Act of 1911 is local or special legislation, and (2), if not such forbidden legislation, then it applies only to so much of Harrison township as remained after Brackenridge borough had been carved out of it. The Common Pleas held the Act of 1911 to be constitutional, but sustained the demurrer on the ground that the provisions of the act were confined to what remained of Harrison township at the time of its passage and did not extend to Brackenridge borough. On appeal to the Superior Court the constitutionality of the act was unanimously sustained in a per curiam opinion, but only a majority of that court concurred in the view of the court below that it was not intended to be effective in that portion of Harrison township which is now embraced within the limits of Brackenridge borough.

Each of the ten townships named in the Act of 1872 was a unit, and the act was, in effect, the same as if a separate act, in identical terms, had been passed for each township. There was, therefore, local legislation for Harrison township, and the Common Pleas and Superior Court correctly held that the legislature had been expressly permitted to repeal it by Section 7 of the third Article of the Constitution. Nothing is found in Blankenburg v. Black, 200 Pa. 629, to support the contention of the appellee as to the unconstitutionality of the Act of 1911. In that case the legislature attempted to change or alter part of a local act by repealing a portion of one of its sections. In holding that this could not be done under the prohibition of our present constitution as to local or special laws, we said: “The present act, however, is not a repeal of the Act of 1865, but only of a part of it, and in such manner as to amount merely to an alteration of the local law. The object of the permission in the constitution to repeal local and special laws was to allow the legislature to do away with exceptions, and bring interests previously under special or local statutes into conformity with the general laws of the state. This act does nothing of that kind. It merely makes a change in the mode of filling an office whose name, powers and duties are left as they were before. This is not repealing an old local law but making a new one.” The Act of 1872 applied to separate and distinct municipal divisions of the commonwealth, to any one of which its provisions might have been made applicable by independent legislation, and such legislation would have been within the meaning of the clause in the constitution providing that “laws repealing local or special acts may be passed.”

When a portion of Harrison township became the borough of Brackenridge, under a decree of the Court of Quarter Sessions of Allegheny County, the voters of that borough were authorized to vote triennially at municipal elections for or against license, but this right or privilege was not conferred upon them by any statute relating to their borough. The privilege passed to them because they were residents in what had been part of Harrison township at the time of the passage of the Act of 1872. The formation of a new municipal district out of a territory to the electors of which has been given the right to decide whether liquor licenses shall be granted or refused does not affect the operation of the law over the whole territory for which it was passed. It remains in full force in both the old and new districts: Joyce on Intoxicating Liquors, see 379. As to this we have lately said: “The safer and sounder rule is that it applies to the entire territory, no less and no more, to which the legislature made it applicable, and that these territorial limits are not affected by subsequent changes of municipal division lines. This is the doctrine of Parsons v. Winslow, 1 Grant 160, and Clifford v. Belsterling, 2 S. & R. 108. This has also been the recognized rule in dealing with local prohibitory liquor laws. It is sound and should not be disturbed”; Federal St. & Pleasant Valley Passenger Ry. Co. v. Pittsburgh, 226 Pa. 419. If the whole of what was Harrison township was unaffected by cutting off a portion of it for the creation of Brackenridge borough, and the Act of 1872 remained, as it concededly did, in full force until 1911 over all of what had been the territory of Harrison township at the time the Act of 1872 was passed, the repeal of that act took away from all of that territory the right or privilege which had been conferred upon it by the Act of 1872; and Brackenridge borough is a part of that territory. It was but a limb of the body of Harrison township, and what was taken from that body by the Act of 1911 cannot remain in any one of its members: Grim v. Weissenberg School District, 57 Pa. 433. The Act of 1911 is entitled an act to repeal the Act of 1872 “so far as its provisions relate to the township of Harrison,” and the repealing clause is in these words. The legislative intent indicated by them is that the Act of 1872, so far as it relates to Harrison township, is to be regarded as never having been passed: Hampton v. Commonwealth, 19 Pa. 329. Harrison township, as it existed in 1872, is wiped from the act of that year by the Act of 1911, and, with it, all of its subdivisions, for they together made up the unit for which the Act of 1872 was passed.

The decree of the Superior Court is reversed, as is that of the court below, at the costs of the appellees, and the bill is reinstated, with leave to the appellant at any time to ask for an injunction against the appellees, or their successors in office, if they should hereafter attempt to provide for an election for or against license in the borough of Brackenridge.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Salig, Appellant, v. United States Life Insurance Company.

      Insurance — Life insurance — Policy held as security for loan— Forfeiture of policy.

    Where a life insurance policy is held by the insurance company as collateral security, and the policy and assignment thereof contain a condition that the policy may he forfeited for the nonpayment of the principal and interest according to the terms and conditions of the note, and it appears that the amount of the note was the exact loan value, and also the surrender value of the policy, the company has the right, after a default on the note, to cancel the policy, if it appears that the insured made no effort to redeem the policy or prevent its cancellation, ignored repeated notices from the company, and declared to other parties that he had cashed in the policy.
    Argued April 24, 1912.
    Appeal, No. 154, Jan. T., 1912, by plaintiff, from judgment of O. P. Erie Co., Nov. T., 1910, No. 17, for defendant on case tried by the court without a jury in suit of Minnie C. Salig, Executrix and Rudolph H. Beers, Executor of the last Will and Testament of Mary H. Dash, deceased, v. United States Life Insurance Company.
    Before Brown, Potter, Elkin, Stewart and Mioschzisker, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    Walling, P. J., filed the following opinion:
    This is an action by the beneficiary upon a life insurance policy, in which the defense set up is that the policy had been cancelled in the lifetime of the assured on account of the non-payment of a loan secured thereon by him. The case was tried before the Court. The facts are found as follows, viz:
    1. On September 22, 1898, the defendant issued a ten-payment life policy to John A. Dash, of Erie, in which his wife is named as beneficiary. The annual premium on said policy being $336.85. The policy is in evidence marked Ex. “A.”
    2. Mr. Dash paid the ten premiums as provided in the policy, and thereafter on March 20, 1909, obtained a loan from defendant on said policy of $2,696.55, that being the full loan value as shown by endorsement on back of the policy. At which time he gave defendant a note as follows, viz:
    “$2,696.55. Policy No. 92962. New York, March 20, 1909.
    For Value Received, on demand I promise to pay to the order of The United States Life Insurance Company, in the City of New York, at their office in said city, Twenty-six Hundred Ninety-six 55-100 Dollars (or such part as shall remain uncancelled by dividends, which the Company is hereby given the right to apply in payment thereof), the same being a lien on Policy No. 92962. And also to pay at the same place interest on the same at the rate of 6 per cent, per annum, in advance at its annual due date in each year, viz: September 22nd.
    It being expressly understood and agreed, and the loan for which this note is given being made upon the condition, that if the interest hereon be not fully paid when due as above mentioned, the policy upon- which said loan is made shall become null and void, and of no effect, and be forfeited to said Company, which shall be thereupon forever released from all liability on account of said policy, or anything thereunto connected, except for the surrender value, if any, to which the policy holder may be entitled under said policy.
    Note No. 35299. John A. Dash "
    And also an assignment of pledge of policy as collateral, as follows, viz :
    “Assignment ok Pledge oe Policy as Collateral.
    Know All Men by These Presents, That I, the undersigned, John A. Dash, the same person named or referred to in Policy No. 92962 by The United States Life Insurance Company in the City of New York.
    In Consideration of the payment to me by said Company of the sum of Twenty-six hundred ninety-six 55-100 dollars ($2,696.55) as a loan which I hereby acknowledge to have received, the same being a lien on said Policy according to the terms of my Note or obligation in writing, bearing even date herewith, which is hereby referred to and made part thereof do hereby sell, assign, transfer and set over unto the said Company all right, title, interest, claim and demand, in, to, of, or under, said Policy, To Have and to Hold the said Policy unto the said Company, and its successors and assigns, on condition that if said principal sum be fully paid with the interest on or before the demand therefor according to the terms of said note and before any default in payment of interest as aforesaid, this assignment shall be and become null and void, and said policy shall revert and be reassigned thereupon; but it is also hereby understood and agreed that if the principal and interest aforesaid shall not be paid when due and according to the terms and conditions of the said note, then and in case of any such default this assignment shall become absolute and said policy become forfeited to said Company, and upon such or any such default the said Company shall be and hereby is thereupon forever released and discharged of and from all and every liability, claim or demand whatsoever upon or by reason of said Policy or anything in anywise connected wherewith.
    Witness my hand and seal this 20th day of March, Nineteen Hundred and Nine.
    (Signed) John A. Dash. (L. S.)
    Sealed and delivered in the presence of Louis Streuber. (Signed).”
    3. The policy contains inter alia a clause as follows, viz:
    “I. Failure to pay any renewal premium, or non-payment (when due) of principal or interest on any note given as a charge against this contract or any breach or warranty discovered within one year from this date, will render it null and void, and all payments theretofore made hereunder will be forfeited to the company; except that
    II. After being in force three full years, a surrender equity, as hereinafter set forth, may be obtained in accordance with the law of the State of New York.”
    4. When defendant made Mr. Dash the said loan it deducted the interest thereon from March 20, 1909, to Sept. 22, 1909, which was payment of interest in advance as specified. However, by the terms of the loan a year’s interest in advance became payable on Sept. 22, 1909, but was not then or thereafter paid or tendered by him. And on November 11, 1909, Defendant from its general office in New York sent Mr. Dash a letter as follows, viz:
    “New York, November 11,1909.
    Mr. John A. Dash,
    343 West 3rd Street,
    Erie, Pa.
    Dear Sir:
    The interest for one year at six per cent, per annum— $161.79 — on loan of $2,695.55, under Paid-up Policy No. 92962, on your life, not having been paid in accordance with the terms of the demand note given by you for such loan, we hereby demand payment of said interest of $161.79.
    In the event of your failure to make such payment on or before December 11,1909 — one month from date — we shall have to demand payment of the principal of the loan and to declare the policy forfeited in accordance with the terms of the note and pledge executed by you, if such payment is not made to us.
    We trust you will not compel us to take this course.
    Yours truly,
    (Signed) George W. Hubbell,

      Actuary

    And on December 14, 1909, another letter as follows, viz:
    “New York, December 14, 1909.
    Mr. John A. Dash,
    343 West Third Street,
    Erie, Pa.
    Dear Sir:
    Eeferring to our letter of the 14th ultimo in relation ’ to Policy No. 92962, on your life, we would say that the interest on note charged against this Policy not having been paid within the time limit allowed in that letter, we hereby demand payment of the entire loan of $2,696.55.

      In the event of your failure to make such payment on or before January 14, 1910, we shall declare the policy forfeited under the terms and conditions of the note.
    Yours truly,
    (Signed) George W. Htjbbell, Actuary.”

    And on January 19, 1910, another letter as follows, viz:
    “New York, January 19,1910.
    Mr. John A. Dash,
    No. 343 West Third Street,
    Erie, Pa.
    Dear Sir:
    Referring to our letter of the 11th ultimo in relation to Policy No. 92962, on your life, we would say that the loan and interest charged against this policy not having been paid in accordance with demand made by the Company we have canceled the policy on our books, as per the terms of the note and pledge signed by you. The Company is therefore under no further liability in respect of this insurance.
    Yours very truly,
    (Signed) George W. Htjbbell,

      Actuary.”

    All of which letters were registered and received by him in due course of mail. But Mr. Dash paid no attention to said letters and never answered any of them or took any step to prevent the cancellation of his policy or to secure the reinstatement thereof.
    5. On March 12,1910, Mr. John A. Dash, the assured, died suddenly, at the age of fifty-six years.
    ' 6. From the circumstances, that Mr. Dash realized all he could on the policy, to wit, its exact loan value, which was also its surrender value, and made no effort to redeem it, or to prevent its cancellation, and ignored the repeated notices from the company, and also from his declarations as shown by the evidence, we find as a fact that he did not intend to pay the loan or redeem the policy. He wanted the money to use and preferred it to the paid up policy.*
    7. Subsequent to his death the beneficiary made proofs of loss; and payment being refused on the ground that the policy had been cancelled in his lifetime, brought this suit for the |5,000.00, less the loan.
    *The evidence showed that he had made declarations to the effect that he had cashed in the policy. — Reporter.
    Legal Conclusions.
    1. By the terms of the policy, assignment and note the principal of the loan became due and payable by yirtue of the letter of December 14, 1909, demanding payment thereof.
    2. On account of the non-payment of the loan, after such demand, defendant was authorized to cancel said policy and appropriate it to the payment of such loan.
    3. As the policy provides that it shall become null and void by the non-payment (when due) of the principal on any note given as a charge against it, and as the assignment provides that it shall become absolute, and the policy forfeited, and the company released from all liability on account thereof if the principal and interest be not paid when due according to the terms and conditions of the note, in our opinion the defendant was within its rights in cancelling the policy as it did on January 19,1910.
    4. Conceding that the demand of interest, after it became due, constituted a waiver of the prescribed forfeiture for non-payment thereof, such demand did not prevent defendant from thereafter cancelling the policy for non-payment of the principal debt in accordance with the terms of the policy and assignment.
    5. Judgment should be entered for the defendant and against the plaintiff for costs.

      May 13, 1912;

      Error assigned was the judgment of the court.

      John 8. Rilling, with him Clark Olds and E. L. Moore, for appellant.

      C. L. Baker, for appellee.
   Per Curiam,

This action was brought on a policy of insurance issued by the appellee. A jury trial was waived, and no one of the seven facts found by the court below is assigned as error. From them, and especially from the sixth, the conclusion was inevitable that the plaintiffs could not recover, and the judgment for the defendant is, therefore, affirmed.


text:
    Vare v. Walton, Appellant.

      Municipalities — Contracts — Extra compensation — Act of May 28,187Jt, Sec. 5, P. L. 280.

    1. The Act of May 23, 1874, Sec. 5, P. L. 230, which provides that “no ordinance shall be passed, except by two-thirds vote of both councils, and approved by the mayor, giving any extra compensation to any public officer, servant, employee, agent or contractor after services shall have been rendered or contract made” is a valid law; and if such an ordinance has been passed by a two-thirds vote of both councils, and approved by the mayor, the courts have no power to declare it void, although the contract with the contractor to whom the extra compensation was voted, may have been void, and the city under no obligation to pay anything; nor can the court say that the amount directed by the ordinance to be paid was too large or too small.
    2. Such an ordinance is a final and accomplished act, and must stand until repealed, and the power to repeal it does not lie with the court.

      Argued April 25, 1912.
    Appeal, No. 137, Jan. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1911, No. 1007, sustaining demurrer to return to alternative mandamus in case of Edwin H. Vare v. John M. Walton, City Controller of the County of Philadelphia.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Demurrer to return of alternative mandamus. Bregy, P. J., filed the following opinion:
    From the petition these facts appear. On May 21, 1909, a contract was entered into between the plaintiff, Vare, and the city of Philadelphia, to do certain work in relation to the building or improvement of League Island Park. This contract was followed by several additional or supplemental contracts between the same parties.
    A large amount of the work included in these contracts was done and some of it paid for. During the progress of the work, a bill in equity was filed in Com: mon Pleas No. 4 by certain taxpayers alleging, among other things, that the original contract was procured by a fraudulent conspiracy and that the supplemental or additional contracts were illegal and void.
    Pending the court’s action in that proceeding, the executive and ministerial officers of the city declined to pay Vare any more money for the work already done. This condition of affairs was brought to the attention of the city councils, and after an examination of the • situation as indicated by the preambles, ordinances were passed by both branches of councils by a two-thirds vote and signed by the mayor, directing that warrants be drawn in favor of Vare for $247,123.24, to pay him for the work he claimed he had already done and for which he had not been paid.
    The warrants so directed to be drawn were drawn and signed by the director, but the city controller refused to countersign them. The plaintiff, Vare, then instituted this proceeding to compel the countersigning of the warrants and the alternative writ issued.
    The returns of the city controller and the mayor may be considered together.
    It is alleged by the mayor that the original contract was procured by fraud and conspiracy.
    This proceeding, however, is neither a suit to enforce the contract and allow Vare to go on with the work, nor a suit to annul the contract and compel him to stop the work. It is a proceeding to require the controller to approve the warrants drawn by direction of the ordinance to pay Vare for work already done.
    It is not claimed that the ordinances passed in 1911, that we are asked to enforce, were induced by any fraud at all.
    The claim of fraud is alleged as to the contract entered into in 1909.
    In our opinion, the question as to whether the work was done under a legal or illegal contract or contracts does not control this case. Work was done, the city may have been under no legal obligation to pay for it, but the city councils and the mayor have chosen to direct that a certain amount fixed by them should be paid. The only questions that we can consider are,
    1st. Had the city councils the legal right to legislate upon the subject?
    2nd. If so, has the legislation been passed in a proper way?
    In answer to the first question, it only seems necessary to quote the provisions of the Act of May 23, 1874, Section 5:
    “No ordinance shall be passed except by a two-thirds vote of both councils, and approved by the mayor, giving any extra compensation to any public officer, servant, employee, agent or contractor after services shall have been rendered or contract made, noi> providing for the payment of any claim against the city, without previous authority of law.”

      Stated in another way, the act requires that any ordinance to give a contractor any extra compensation after contract made or services rendered, or providing for the payment of any claim against the city not previously authorized by law shall be passed by a two-thirds vote of both councils and approved by the mayor.
    Under the authority given to councils by this act, it would seem to be clear that they are given the power to pay extra compensation to contractors or to pay bills for work done for the city under illegal contracts or even when there was no contract.
    This act was construed by the Court of Common Pleas No. 4 of this county, in an opinion by Judge Willson, in the case of Smith v. Phila., 17 Pa. D. R. 381, in which a general ordinance was passed directing that all work theretofore done under supplemental contracts should be paid for. The court said:
    “In our judgment, the Act of 1874 contemplated and authorized payment to be made to a contractor for work or services not previously authorized by law, in case an ordinance should be passed by a two-thirds vote of both branches of councils and approved by the mayor, only in individual cases wherein the contractor should be specifically named and in which it should be made to appear that the merits of his particular case had been considered.”
    See also Bailey v. Philadelphia, 167 Pa. 569, and Justice v. Philadelphia, 37 Pa. Super. Ct. 267.
    It has been said that this act relieves the city of the necessity of being dishonest, and does not require it to refuse to pay for work simply because it cannot be made to pay for it by a suit at law.
    The wisdom of this act is not for us to criticise.
    It might have been better for the legislature never to have given that power to the councils of the city, but the answer is they have given it.
    The power was therefore in the councils to pass the ordinance.

      As has already been stated, the requirements of this kind of legislation, to wit, a two-thirds vote and the approval of the mayor, has been complied with after the matter has been investigated by councils.
    The ordinances consequently have been legally passed as to form, and were in relation to a matter on which councils and the mayor were authorized to act.
    The contention of the mayor’s return that the additional or supplemental contracts are illegal and void, it is not necessary to say much about, as that matter was discussed in our opinion in the McNichol-Millard cases, recently filed. We there held that it was entirely unimportant whether the contracts are void or not, as. this is not a suit to enforce the contracts — we would add, however, that it is claimed that before these contracts were entered into the advice of the then city solicitor was asked and given in relation to them. He held they were legal that the city had authority to make them. Acting on that advice, the work was proceeded with and the city paid for the work as it was done until the filing of the bill in equity alluded to, when, probably fearing what the end of the litigation might be, the director refused to pay for work admittedly done. Under these circumstances, councils might well feel there was a moral duty if not a legal one to pay.
    In the opinion filed a few days ago, already alluded to, we held that we could not go into the question as to whether the amount directed by the ordinance to be paid was too large or too small. If the contractor thought it was too small, he could not by any legal proceeding have it increased, and if the present executive thinks it was too much, we have not the power to override the action of the municipal legislature and the mayor and decrease it. The power is not given to the courts to say how much shall be appropriated.
    If the present mayor differs with his predecessor in office as to the amount that in conscience ought to be paid for the work done, it appears to us that the answer is: That an ordinance like this one, once passed by councils and signed by the mayor, if within the power given by the legislature to it, is a final and accomplished act, and must stand till repealed, and the power to repeal does not lie with the court.
    It must be remembered, that as to some matters, and this is one, councils and the mayor are specially authorized by the legislature to act. Such legislation as this, as has been said, requires a special course of action.
    The ordinary kind of legislation can be passed by a majority vote of councils, and if vetoed by the mayor can be passed over his veto; this kind requires a two-thirds vote, and must be approved by the mayor to be effective. It cannot be passed over his veto.
    Neither does the plaintiff recover any interest for the time he is deprived of his warrants, if he finally wins his case.
    The legislature of the state has power to legislate upon all subjects not prohibited by the constitution.
    The municipal legislature (councils) has only the power to legislate upon the subjects that their charter or some act of assembly authorizes. But when the power is clearly given the courts have no right to set aside their acts.
    It is quite true that where there is, by implication or directly, only the power to pass reasonable regulations upon a subject, the courts have authority to pass upon the question of the reasonableness thereof, which is only an illustration of an instance of the court inquiring whether the power exists to do what has been done. But we find no case or principle that would justify us in holding that the Act of 1874, quoted, ever intended that the power there given was to be supervised by the court. If so, such ordinances require not only a two-thirds vote of both branches of councils and the approval of the mayor, but must also be finally approved by the court.

      The province of the judicial branch of the government is to construe and administer the laws, not to make them.
    That power rests with the representatives of the people, elected by them for that purpose, and the less the courts attempt to infringe on that right the better for all concerned.
    The allegation in the return that the ordinances were not passed in good faith is a criticism and conclusion without facts, and cannot be considered a good reason for not doing what is required by the ordinances to be done.
    All the other questions involved in this argument have been discussed in the other case, and we do not desire to prolong this opinion by again referring to them.
    The demurrers are sustained and the peremptory writ is directed to issue.

      Error assigned was the judgment of the court.

      Michael J. Ryan, City Solicitor, for appellant.
    The ordinance of November 28, 1911, directing the drawing of the warrants in question is void, because both the original agreement and the supplemental agreements were made (as admitted by the demurrer) in pursuance of a concerted plan between appellee and the director of public safety to cheat and defraud the city of Philadelphia. Contracts which involve the commission of a public wrong are absolutely void and the ratification of such a contract in any form carries with it the taint of the original contract: Seltzer v. Electric Co., 199 Pa. 100.
    We next contend that under the following authorities councils had no power to ratify this fraudulent agreement, or to direct payment to be made in pursuance of it: McHugh v. Schuylkill County, 67 Pa. 391; Shisler v. Vandike, 92 Pa. 447; Lyon v. Phillips, 106 Pa. 57; Henry Christian Building & Loan Assn. v. Walton, 181 Pa. 201.
    May 13, 1912:
    The ordinance of May 28, 1911, is supported by no obligation, legal or moral, and cannot be sustained as an exercise of any power conferred on councils by the Act of May 23, 1874, Section 5, P. L. 230, 3 Stewart’s Purdon’s Digest, 2712, Sec. 27: Webster v. Hopewell Boro., 19 Pa. Super. Ct. 549; O’Rourke v. Philadelphia, 211 Pa. 79.

      Francis 8hunk Brown, of Simpson, Brown & Williams, for appellee.
    The city councils have the power to recognize a moral obligation and to direct the payment of public money in satisfaction of such obligation: Bailey v. Philadelphia, 167 Pa. 569; Smith v. Phila., 17 Pa. D. R. 231; Vare v. Stearns, 21 Pa. D. R. 79; Croasdill v. Phila., 18 Pa. D. R. 719; Justice v. Phila., 37 Pa. Super. Ct. 267; Dunn v. Columbia Nat. Bank, 204 Pa. 53; Lyon v. Phillips, 106 Pa. 57.
    The city controller is a mere bookkeeper of the city and has no discretion to refuse to countersign and certify a warrant properly and legally issued: Commonwealth v. Philadelphia, 176 Pa. 588; Com. v. Pittsburgh, 204 Pa. 219; O’Rourke v. Phila., 13 Pa. D. R. 379.
    The ordinance of councils of November 28, 1911, relates to a subject matter that councils had authority to act upon, was passed in a legal manner and approved by the mayor, and hence has become the official act of the municipality, which is final and conclusive and binding upon all other branches of the city government: Com. v. City Controller, 21 Pa. D. R. 101.
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of the court by Judge Bregy.


text:
    Levi v. Greer.

      Sheriff's sale — Setting aside sale — Inadequacy of price — Misdescription — Unfair conduct of purchaser.

    While inadequacy of price is not by itself sufficient to justify the court in setting aside a sheriff’s sale, yet where there is great inadequacy, the court may seize upon other circumstances in order to give relief. Thus, a sale will be set aside where there was great inadequacy of price, and a misdescription of the property by including seven and a half acres not owned by the defendant and not subject to the lien of the judgment, and also evidence of unfair conduct on the part of the purchaser in refusing shortly before the sale to carry out his agreement to buy a part of the premises at private sale, thereby preventing the defendant from paying the judgment.
    Argued April 25, 1912.
    May 13, 1912:
    Appeal, No. 166, Jan. T., 1912, by W. N. Seibert, from order of C. P. Erie Co., Feb. T., 1912, No. 60, setting aside sheriff’s sale in case of Isaac Levi and J. P. Trivitt v. R. M. Greer, Administrator of the Estate of Elsie A Greer, deceased, and R. M. Greer, et al.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rule for an order on sheriff not to deliver deed.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order setting aside the sale.

      Frank Gunnison, with him Eenry E. Fish, W. Pitt Gifford and A. O. Chapin, for appellant.

      George E. Gibson, with him E. L. Whittelsey, for appellees.
   Per Curiam,

The setting aside, or the refusal to set aside a sheriff’s sale is in the sound discretion of the court and its order will not be disturbed unless it appears that there was manifest error. While inadequacy of price is not by itself sufficient to justify the court in setting aside a sheriff’s sale, yet where there is great inadequacy, the court may seize upon other circumstances in order to give relief: Stroup v. Raymond, 183 Pa. 279; Light v. Zeller, 195 Pa. 315. In this case there was great inadequacy in price and a misdescription of the property by including seven and a half acres not owned by the defendant and not subject to the lien of the judgment, which left some uncertainty as to what a purchaser would take by the sale and clouded the title of a third party who joined in the application to set aside the sale. There was, in addition to this, conduct on the part of the purchaser, who refused shortly before the sale to carry out his agreement to buy a part of the premises at private sale and who thus prevented the defendant from paying the judgment, which indicated unfairness by him and a purpose to mislead.

The order is affirmed at the cost'of the appellant.


text:
    Rheingans v. New York, Chicago & St. Louis Railroad Company, Appellant.

      Negligence — Railroads — Gonductor—Grossing trades — Contributory negligence — Evidence — Case for jury.

    In an action against a railroad company for the death of a conductor employed by another railroad company, tbe question of tbe deceased’s contributory negligence is for tbe jury, where it appears that tbe deceased was run over and killed by the tender of an engine of the defendant at a place where both railroad companies used tbe same track, and maintained a telegraph office for their joint use; that in the performance of bis duty, tbe deceased was crossing the tracks at night with a lantern in bis hand, from the telegraph office to bis train, when be was struck by tbe tender that was running backwards at tbe rate of five or six miles an hour; that he was familiar with tbe situation and knew that tbe engine and tender had been detached from the train to which they belonged and run forward to a water tank, and that they would soon return; where the evidence tends to show that-there was no light on the tender and no notice of its approach given by bell or whistle; that the night was windy and stormy, and the air filled with steam; and that there was noise caused by the movement of another train near by, and by the escape of steam from its engine.
    Argued April 25, 1912.
    May 13, 1912:
    Appeal, No. 78, Jan. T., 1912, by defendant, from judgment of C. P. Erie Co., Nov. T., 1909, No. 98, on verdict for plaintiff in case of Lena Eose Eheingans v. The New York, Chicago & St. Louis Eailroad Company.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Bouton, P. J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $,5,000. Defendant appealed.

      Error assigned was refusal of binding instructions for defendant.

      Frank Gunnison, with him Henry E. Fish, W. Pitt Gifford and A. O. Chapin, for appellant.

      Louis Bosemioeig, for appellee.
   Per Curiam,

The plaintiff’s husband was a conductor in the service of the Bessemer & Lake Erie Eailroad Company. He was run over and killed by the tender of an engine of the New, York, Chicago & St. Louis Eailroad Company, at a place where both companies used the same track and maintained a telegraph office for their joint use. In the performance of his duty, he was crossing the tracks at night, with a lantern in his hand, from the telegraph office to his train, when he was struck by the tender, that was running backwards, at the rate of five or six miles an hour. He was familiar with the situation and knew that the engine and tender had been detached from the train to which they belonged and run forward to a water tank and that they would soon return. There was testimony tending to show that there was no light on the tender and that no notice of its approach was given by bell or whistle; that the night was windy and stormy and the air was filled with steam and that there was noise caused by the movement of another train near by, and by the escape of steam from its engine.

The case was submitted to the jury with clear and adequate instructions, to which no exceptions were taken. The only question presented by the assignment of error is whether the case should have been withdrawn because of contributory negligence. This could not properly have been done. No one saw the deceased at the time he entered upon the track or when he was struck, and the presumption that he exercised due care is unaffected by any direct proof. Nor is it overcome by proof of the circumstances. Whether, notwithstanding the storm and noise and steam in the air, he would have been aware of the approach of the tender before getting into a place of danger, if he had exercised proper care, was a question for the jury. It is only in clear cases where neither the facts nor the inferences to be drawn from them are in doubt that the court may direct a verdict.

The judgment is affirmed.


author: Me. Justice Elkin,

text:
    Baker, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Eminent domain — Condemnation proceedings — Damages — Bmolce, noise and dust.

    1. Where land has been actually appropriated by a railroad company under the right of eminent domain, smoke, noise, dust and dirt resulting from the operation of trains, over the land taken and affecting the land not taken, may be considered as elements of damage tending to depreciate the value of the remaining portion of the tract not appropriated.
    2. The owner is entitled to show the close proximity of coal wharves and water tanks to his property, and the use made of them so far as that use multiplied trains upon the land actually taken, and increased the noise, dirt and dust, resulting from the ordinary operation of the railroad thereon; and he may also show that the land was appropriated for the purpose of affording an approach to the coal wharves and as a part of that construction, and this is the case, although only part of the construction considered as a whole was actually located upon the land taken. Such injuries must be direct and positive and not indirect and consequential.
    3. Damages resulting from the operation of trains over land of an owner, formerly appropriated cannot be considered in a later proceeding to appropriate other land.
    4. In a land condemnation case witnesses may estimate the value of the land in dollars and cents before and after the taking.
    5. Depreciation in value of an entire tract may be shown although a turnpike road cuts off the land taken from the main portion of the tract, if it appears that the title to the land was held as an entirety and had always been cultivated as one single tract.
    Argued April 29, 1912.
    Appeal, No. 26, Jan. T., 1912, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1910, No. 80, on verdict for plaintiff in case of H. Preston Baker v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.

      Appeal from award of Jury of view. Before Hemp-hill, P. J.
    At the trial H. Preston Baker, J. C. Valentine, Ambrose C. Fulton, Richard W. Schrack, William H. Seltzer, W. Logan Rogers and Issacher Price all testified to values in dollars and cents. On motion their testimony was stricken out. (8-15).
    Plaintiff presented the following points:
    If the jury believe from the evidence that the construction and location of the coal wharves and the water tanks with reference to plaintiff’s property multiply trains on the plaintiff’s property, and result in a more frequent use of the roadbed thereon, and increase the noise, dirt, and dust, in the ordinary operation of the railroad, they may consider that the coal wharves and water tanks form part of the construction and operation of the defendant’s road through plaintiff’s land, and their effect upon the market value of the plaintiff’s property.
    Answer. — That point is refused. I have virtually already so charged.
    2. If the jury find from the evidence that the plaintiff’s land was taken by the defendant company for the construction of the defendant’s coal wharves and water tanks and is used in the ordinary operation of the defendant’s coal wharves and water tanks, then the jury may consider the effect of the construction and ordinary operation of said coal wharves and water tanks upon the market value of the whole of plaintiff’s property.
    Answer. — That is also refused.
    3. Under the evidence in this case and the law applicable thereto, no damages can be awarded the plaintiff by reason of the construction or operation of the coal wharves and chutes of the defendant, or on account of any noise, smoke or dirt going therefrom, or from engines of the defendant at said wharves and not on the property taken.

      Answer. — I have already in effect so charged you and that point affirmed.
    4. No witness offered by the plaintiff has testified to any amount of damages which have resulted, in their judgment, to the lands of the plaintiff north of the turnpike, exclusively from the taking of the land which is the subject of this action. All the said witnesses have included in their damages stated, injuries, which they think resulted from the operation of the coal wharves and chutes of the defendant, or from the operation of engines or trains of the defendant upon lands other than the land taken, and the testimony of said witnesses upon the question of damages to the land of the plaintiff north of the railroad should be disregarded by the jury.
    Answer. — That point is also affirmed.
    The court charged in part as follows:—
    “It is only that which arises from the taking of this piece of land that you are entitled to consider in this action. If by the erection of these chutes or any other structure, or by the manner in which the original road, Which was there at the time, was operated, such injury, if any, was not caused by the exercise of the right of eminent domain at the date of the taking of this piece of land, and the remedy, if he have suffered any wrong therefrom must recover in a different form of action entirely.”
    “Not whether the chutes or whether the tracks lying south have injured the property, because they were not acquired by the railroad company by reason of this exercise of the right of eminent domain.”
    “The plaintiff has endeavored to satisfy you, not in dollars and cents, because, as you may see, it is difficult to determine from where the dirt and smoke and noise comes in a connecting line like this, and with a coal chute where trains stop within a hundred and fifty feet of this eastern end of this piece, and some candidly said, I think — although you will not take my recollection, but be guided by your own — that they thought the greater portion of the dirt, smoke and annoyance, noise, and so forth, came from down about the coal chutes. That you will not consider. It is only the injury that he has sustained by reason of the taking and using of this piece of land which was acquired under this unusual proceeding, the right of eminent domain.”
    Verdict and judgment for plaintiff for $2,762.52. Plaintiff appealed.

      Errors assigned were (1-7) above instructions, quoting them; (8-15) in striking out testimony as above.

      Isabel Darlington and Thomas S. Butler, for appellant.
    Smoke, noise, dust and dirt from the operation of trains are clearly elements of damage to be considered in condemnation proceedings against a railroad where land has been actually taken from the plaintiff : Comstock v. Ry. Co., 169 Pa. 582; Shano v. Bridge Co., 189 Pa. 245; Hewitt v. R. R. Co., 19 Pa. Super. Ct. 304; Hamilton v. R. R. Co., 190 Pa. 51; Rudolph v. R. R. Co., 186 Pa. 541.
    Where land has been actually taken by a railroad company and a construction placed partly thereon and partly on land adjoining, the owner of the land taken is entitled to recover as damages for the taking, the whole depreciation in the market value of his property caused by the construction of the railroad company, and the railroad company can not evade responsibility for the full damages suffered by the owner of the land taken, on the ground that it did not place its whole construction, which injured the land, upon the land taken: Leard v. R. R. Co., 229 Pa. 475; Comstock v. Ry. Co., 169 Pa. 582.

      A. M. Holding, for appellee.
    If no part of appellant’s land had been taken, it is clearly well settled that he could have recovered no damages whatever from either the operation of the coal chutes, locomotives or trains thereat, or locomotives or trains upon the lands as to which he had released: Penna. R. R. Co. v. Marchant, 119 Pa. 541; Dooner v. Penna. R. R. Co., 142 Pa. 36; Ryan v. Penna. R. R. Co., 132 Pa. 304.
    May 13, 1912:
    A railroad company is not responsible for indirect injuries resulting from the operation' of a road upon its own land in a lawful manner, without negligence, unskillfulness or malice: — Wunderlich v. Penna. R. R. Co., 223 Pa. 114; Walker v. Ry. Co., 103 Mass. 10; Sutton v. Penna. R. R., 214 Pa. 274; Mahaffey v. R. R. Co., 163 Pa. 158; Jones v. R. R. Co., 151 Pa. 30.
    The appellant is not entitled to any damages for depreciation of his farm north of the turnpike, because the land taken was wholly seperated from the farm, and must be considered as a separate property: Potts v. R. R. Co., 119 Pa. 278; Rudolph v. R. R. Co., 186 Pa. 541; kosler v. Railway Co., 208 Pa. 50.
   Opinion by

Me. Justice Elkin,

On account of refusing to admit offers of testimony relating to certain elements of damage, and in striking out all testimony admitted in which the witnesses fixed the amount of damages in dollars and cents, this judgment must be reversed and a new venire awarded. It will, therefore, only be necessary to indicate what elements of damages may be considered, and what may not, when the case is again tried. This is an action to recover compensation, commonly called damages, for land belonging to appellant and actually appropriated by the railroad company under the right of eminent domain. One of the controverted questions is whether in such a case smoke, noise, dust and dirt, resulting from the operation of trains, over the land taken, may be considered as elements of damage tending to depreciate the value of the remaining portion of the tract not appropriated. That such elements of damage may be considered in estimating the depreciation in market value has been squarely ruled by this court in those cases in which there was an actual taking of the land of the owner for a public use: Comstock v. Railway Co., 169 Pa. 582; Rudolph v. Railroad Co., 186 Pa. 541; Shano v. Bridge Co., 189 Pa. 245; Hamilton v. Railroad Co., 190 Pa. 51; Shuster v. Printing Telegraph Co., 34 Pa. Super. Ct., 513. In the application of this rule some confusion has arisen by attempting to apply the same measure of damages to cases in which the railroad tracks were laid upon a public street, already dedicated to a public use. In such cases an abutting property owner is only injured to the extent of the increased servitude, and must prove special injuries different in kind and degree from those suffered by the public generally. For this reason it has been held that smoke, noise, dust and dirt, which must necessarily affect all property holders abutting on the street, cannot be considered as an injury special to any particular owner so abutting. In this class of cases such elements of damage may not be considered, but a different rule applies where, as in the case at bar, there has been an actual taking in the first instance.

The first assignment of error, if we properly understand its import, must be sustained. The plaintiff was entitled to show the close proximity of the coal wharves and water tanks to his property, and the use made of them, so far as that use multiplied trains upon the land actually taken, and increased the noise, dirt and dust, resulting from the ordinary operation of the railroad thereon. These were proper elements of damage to be considered in estimating the depreciation in market value of the remaining portion of the tract not appropriated. This is what we understand the first point to mean, and when so understood, it should have been affirmed. Noise, smoke, dirt and dust, can only be considered as elements of damage when they come upon and directly injure the property of the owner whose land has been taken, but when such injuries depreciate the value of the remaining portion of the tract, it is competent for the complaining owner to prove them and for the jury to give them due consideration in arriving at a proper verdict. In the case at bar it is proper to show the increase of noise, smoke, dirt and dust upon the property of the plaintiff, resulting from the multiplication of trains on his land, occasioned by the location of the coal wharves and water tanks in close proximity thereto. In this connection it may be observed that it was entirely proper to show that the land of plaintiff was appropriated for the purpose of affording an approach to the coal wharves and as a part of that construction. If this be established in fact, then the coal wharves and the approaches thereto, could very properly be regarded as a single construction for a particular railroad use, and if so, all injuries directly resulting to the land oí plaintiff from the entire construction may be considered, although only part of that construction was actually located upon the land taken: Comstock v. Railway Co., supra.; Leard v. Railroad Co., 229 Pa. 475; White v. Railroad Co., 229 Pa. 480. Such injuries must be direct and positive to the land of the owner from which the appropriation was made, and not indirect and consequential. Consequential injuries, such as the unsightly appearance of the coal wharves, or of smoke, noise, dust and dirt, which affect the neighborhood generally but which do not come upon or directly injure the land taken or injured, have no place in estimating damages caused by the depreciation in value of the tract affected by the appropriation. Direct injuries only can be considered, not consequential.

Then, again, it is proper to remark that damages resulting from the operation of trains over the land formerly appropriated cannot be considered in this proceeding, and all such elements of damage must be excluded. The owner has already been compensated for these damages, and must not be permitted to again recover for the same injuries. The rights of the parties in this respect should be carefully guarded when the case is again tried. The owner can show increased injuries to his farm resulting from the new use of the land condemned, but cannot claim damages for which he has already been compensated.

We also are of opinion that the learned trial judge erred in striking out the testimony of all witnesses who estimated the value of the land in dollars and cents before and after the taking. With that testimony stricken out there was no basis upon which the jury could estimate the damages, and it is difficult to see how any proper verdict could have been returned fixing the compensation to which the plaintiff was entitled for the property taken and injured. But, as the case is again to be tried, it will not be necessary to discuss more in detail the effect of striking out this testimony. We have indicated what elements of damage can be considered at the new trial, and what cannot be, and this is all that is deemed necessary for present purposes.

We cannot agree with the contention of the learned counsel for appellee, that the depreciation in value to the entire tract cannot be shown because the turnpike cuts off the land taken from the main portion of the tract. The title to the farm is held as an entirety, and it has always been cultivated as one single tract. The location of the turnpike as a convenience to the public, did not affect the right of the land owner to use and enjoy his farm as an entirety. The fact that the land taken was separated by the public road from the remaining portion of the tract, if the testimony warranted such an inference, might very properly be considered by the jury in estimating the extent of the injury to the land not taken, but this at best would only tend to minimize the damages, and would not be a ground for refusing to consider such testimony at all.

Judgment reversed and a venire facias de novo awarded.


text:
    O’Neil v. Jamieson, Appellant.

      Promissory notes — Collateral — Application of collateral — Contract.

    Where a person holds stock as collateral security for the payment of a promissory note, under an agreement by which on default on the note, he may either sell the stock after public notice, or keep it upon delivering or returning the note to the makers, such person, after a default on the note, is confined to the two alternative rights which he has under the agreement. He cannot, upon default, have the stock transferred to his own name and at the same time retain the note in his possession. If he attempts to do so, the makers of the note or their assignee have a right, for six years from the maturity of the note, to demand the return of the stock upon payment of the amount due upon the note.
    Argued April 29, 1912.
    Appeal, No. 174, Jan. T, 1911, by defendants, from decree of C. P. Warren Co., June T. 1907, No. 17, on bill in equity in case of William O’Neil v. M. W. Jamieson and C. W. Jamieson, Executors of the last Will and Testament of H. A. Jamieson, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an account and the surrender of certain certificates of stock.
    Biouton, P. J., specially presiding, found the facts to be as follows:
    The plaintiff brings his bill to compel the defendants to deliver over to the plaintiff twenty-five shares of the capital stock of the Cornplanter Refining Company, which were pledged to H. A. Jamieson as security for a loan of $1,200, made by H. A. Jamieson to William O’Neil and John L. McWilliams on or about February 19, 1896, and for further and other relief.
    From the evidence adduced, we find the following facts:
    1. On February 19,1896, the plaintiff, William O’Neil and John L. McWilliams gave to H. A. Jamieson their note for $1,200 payable at the Warren National Bank at Warren, Pa., at four months from the date thereof, and transferred to said Jamieson as collateral security thereto, certain shares of the capital stock of the Corn-planter Refining Company, to wit, certificates Nos. 154 for 13 shares, 199 for four shares, 200 and 257 for four shares each, a total of twenty-five shares of said capital stock at the par value of $100 per share, with authority to the office of said Cornplanter Refining Company, to transfer said stock to said H. A. Jamieson at his request upon the books of the company, and provided that said Jamieson shall re-assign to said O’Neil and McWilliams or to whoever they may direct, if the said note is paid at maturity; with authority to said Jamieson if said note shall not be paid at maturity to have the said stock exposed at public sale after reasonable public notice, and the same sold to the highest bidder for the same; and if the sum realized shall not be sufficient to pay the said note above referred to and all costs, expenses and interest, then the said Jamieson shall look to the said William O’Neil and John L. McWilliams for the payment of the balance. But if said Jamieson shall choose to keep the said stock without any public sale, then he shall deliver up the above mentioned note to said O’Neil or McWilliams, as appears from the written agreement, appended to plaintiff’s bill.
    2. The said makers of said note did not pay said note nor did said Jamieson re-assign said stock to them or to any other person, nor did he expose said capital stock to public sale, or sell the same as authorized by said agreement, nor did he ever deliver up said note to said O’Neil or McWilliams as provided for in said agreement.
    3. On or about February 5, 1897, said H. A. Jamieson surrendered said stock held by him as collateral as aforesaid to tbe Cornplanter Befining Company and procured tbe re-issue thereof to himself.
    4. On or about May 1, 1900 tbe said John L. McWilliams assigned to said William O’Neil bis interest in tbe said certificates of stock Nos. 200 and 257 for four shares each of tbe capital stock of said Cornplanter Be-fining Company.
    5. On April 2, 1901, said William O’Neil, in tbe presence of a witness, A. S. O’Neil, tendered tbe said H. A. Jamieson, $1,545.40 in payment of said note of $1,200, with interest up to April 2, 1901, which tender tbe said Jamieson refused to accept, saying that too much time bad elapsed for him to consider tbe matter, and said Jamieson refused to deliver said stock to said O’Neil.
    6. Tbe said H. A. Jamieson died on tbe 27th day of December, 1904, leaving a last will and testament wherein be nominated and appointed tbe said M. W. Jamieson and C. W. Jamieson to be executors thereof and letters testamentary were duly issued to them, and they were duly qualified and are now acting as executors of tbe said last will and testament of tbe said H. A. Jamieson, deceased.
    7. Tbe said capital stock was on or about March 28th, 1905, transferred to said C. W. Jamieson, one of tbe said executors of said H. A. Jamieson, deceased, and one of tbe defendant executors in this proceeding.
    8. Tbe plaintiff’s bill in this case was filed on March 30, 1907.
    9. Tbe market value of said capital stock on February 19, 1896, was $100 per share; on February 5, 1897, tbe market value was $100 per share; on April 2, 1901 tbe market value of tbe same was $100 per share, and tbe market value of the same down to the time of the filing of this bill was $100 per share.
    The Court entered the following decree:
    And now, to wit, May 23, 1911, this cause came on to be heard for final decree upon accounting at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: That the defendants, M. W. Jamieson and C. W. Jamieson, executors of the last will and testament of H. A. Jamieson, deceased, pay from the estate of the said H. A. Jamieson, deceased, to William O’Neil, the plaintiff herein, seven thousand one hundred twenty-five dollars and forty-three cents ($7,125.43) being the value of the original stock assigned and stock dividends declared thereon $4,226.25, the cash dividends paid thereon to the date of this decree $3,695.36, and interest upon said cash dividends to this date $1,477.82, less the amount of the note of William O’Neil with interest, $2,274.

      Error assigned was the decree of the court quoting it.

      John G. Johnson with him J. H. Alexander and W. 8. Clark, for appellant.
    The transfer of the shares into Jamieson’s name; his collection of dividends; and his continued maintenance of ownership, amounted to an exercise of his option to retain the shares and to treat the note as cancelled: Hartranft’s Estate, 153 Pa. 530.
    The laches of O’Neil and his conduct barred his recovery: Brown v. Kemmerer, 214 Pa. 521; Neely’s App., 85 Pa. 387; Waterman v. Brown, 31 Pa. 161; Barnes v. Pickett Hardware Co., 203 Pa. 570; Mifflin County Nat. Bank v. Fourth St. Nat. Bank, 199 Pa. 459; Brown v. Bronson, 87 N. Y. Supp. 872; Hoyt v. Latham, 143 U. S. 553 (12 Sup. Ct. Repr. 568); Griggs v. Day, 158 N. Y. 1 (52 N. E. Repr. 692); Wheeler v. Breslin, 95 N. Y. Supp. 966.
    May 13, 1912:

      D. I. Ball with him Edward Lindsey and O. E. Bordwell, for appellee.
    The transfer of this stock upon the books of the corporation, to the name of Mr. Jamieson, it is admitted, was under the terms of the contract of pledge, Exhibit “A.” Even if Mr. Jamieson, the pledgee, had bid off this stock at public sale, in his own name, it would still be charged with the trust, and belong to the pledgor, subject to the payment of the note: Plucker v. Teller, 174 Pa. 529; Russell v. Miller, 54 Pa. 154; Register v. Sellers, 4 Pa. C. C. R. 490; Hestonville Mantua & Fairmount Pass. R. R. Co. v. Shields, 3 Brewst. 257; Granger v. Pigott, 10 Pa. D. R. 327; Sitgreaves v. Farmers, &c. Bank, 49 Pa. 359; McManus v. Sweatman, 22 W. N. C. 54; Horwitz v. Norris, 49 Pa. 213; Wickersham v. Savage, 58 Pa. 365.
    There is no act of estoppel or laches shown on the part of Mr. O’Neil to affect his right of recovery in this case.
    It is clear from the authorities that no suit could be brought by O’Neil against Jamieson, until payment, or tender of payment of the note, and demand for return of the stock; and the statute.of limitations does not begin to run until then: In Humphrey v. County National Bank of Clearfield, 113 Pa. 417; Hartranft’s Estate, 153 Pa. 530; Finkbone’s App., 86 Pa. 368; McGough v. Jamison, 107 Pa. 336; Wambold v. Hoover, 110 Pa. 9; Slymaker v. Wilson, 1 P. & W. 216; Reynolds v. Cridge, 131 Pa. 189; Cook v. Carpenter, 212 Pa. 165.
   Per Curiam,

At the maturity of the note given by McWilliams and O’Neil to Jamieson, he could have done one of two things with the stock which had been pledged to him as collateral security for the payment of the obligation. By the terms of the pledging agreement he could have exposed it to public sale, “after reasonably published notice,” and sold it to the highest bidder; or, if he had so chosen, he could have kept the stock upon delivering or returning the note to the makers. These were the two rights given to him in the collateral agreement, the terms of which are to be strictly enforced against him in the attempt to forfeit the stock of the makers of the note. Jamieson, however, did neither of the things he was authorized to do, but instead, on or about February 5, 1897 — nearly eight months after the maturity of the note — he surrendered the certificates to the Corn-planter Refining Company and procured a new certificate for the same in his own name. This he had no right to do, for he had not delivered up the note to the makers. The condition in the agreement upon which he was authorized to keep the stock was that “he shall deliver up the above mentioned note to the said O’Neil or McWilliams.” It is immaterial that O’Neil may have known what Jamieson had done. As long as the note had not been returned to him or McWilliams, their right continued, for six years from the maturity of the obligation, to demand the return of the stock upon payment of the amount due to Jamieson. On April 2, 1901, O’Neil, who had in the meantime purchased the stock pledged by McWilliams, tendered to Jamieson $1,545.40, the full amount due on the note. This tender was refused, and its refusal then gave O’Neil the right to file a bill for the return of the stock. That right continued for six years, and, having been exercised on March 30, 1907, the decree to which O’Neil was entitled subsequently followed, and is now affirmed, with costs.


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    Day, Appellant, v. Swanson.

      Tax sales — Seated lands — Statutes — Repeal—Acts of April 29, 18kk, P- L. k86; June k, 1901, P. L. 86k, and March 26, 1908, P. L. 68.

    A tax sale of seated land for the taxes for the year 1904, made in pursuance of Section 41 of the Act of April 29, 1844, P. L. 486, is wholly invalid, inasmuch as the Act of April 29, 1844, Sec. 41, was repealed so far as seated land was concerned by the Act of June 4, 1901, P. L. 364, as amended by the Act of March 26, 1903, P. L. 63.
    Argued April 29, 1912.
    Appeal, No. 155, Jan. T., 1912, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1911, No. 33, for defendant non obstante veredicto in case of John A. Day v. C. A. Swanson.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Brokenstraw township. Be-for Hinckley P. J.
    The case turned upon the validity of a tax sale of seated land made under the provisions of Section 41 of the Act of April 29, 1844, P. L. 436.
    The jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      John Biggins, Jr., for appellant.
    The Act of June 4, 1901, P. L. 364, is unconstitutional: Dorsey’s App., 72 Pa. 192; Union Passenger Ry. Co.’s App., 81 Pa. 91.

      May 13, 1912:
    The general repealing clause contained in Section 42 of said Act of 1901 is unconstitutional: Com. v. Samuels, 163 Pa. 283; Pierie v. Philadelphia, 139 Pa. 573; Smith v. McCarthy, 56 Pa. 359.
    The act of June 4, 1901, P. L. 364, was not intended to repeal, and did not repeal the system of collecting taxes on seated lands under the Act of 1844 and supplements, hut instead provides an additional remedy therefor : Pottsville Lumber Co. v. Wells, 157 Pa. 5.

      D. I. Ball, for appellee.
    The Act of April 29, 1844, was repealed by the Act of June 4,1901; Evans v. Moore, 20 Pa. D. R. 373; Haspel v. O’Brien, 218 Pa. 146: The following and perhaps other cases, discuss different features of the A'ct of June 4, 1901, P. L. 364, to wit: Martin v. Greenwood, 27 Pa. Super. Ct. 245; Bellevue Boro, v. Umstead, 38 Pa. Super. Ct. 116; Phila. v. P. & R. R. R. Co., 38 Pa. Super. Ct. 529; York v. Beitzel, 41 Pa. Super. Ct. 194; Phila. v. Fairhill R. R. Co., 41 Pa. Super. Ct. 245; Phila. v. Street, 41 Pa. Super. Ct. 503; Pittsburgh v. Calvary Cemetery Association, 44 Pa. Super. Ct. 289; Apollo Boro. v. Clepper, 44 Pa. Super. Ct. 396; Kohler v. Reitz, 46 Pa. Super. Ct. 350; Haspel v. O’Brien, 218 Pa. 146; Maloney v. Simpson, 226 Pa. 479; Uniondale Cemetery Co.’s Case, 227 Pa. 1; Hopkins v. Rettinger, 230 Pa. 192; Scranton v. Genet, 232 Pa. 272.
   Per Curiam,

The treasurer of the county of Warren sold to the appellant the property which is the subject of this ejectment for the non-payment of taxes assessed against it as seated land for the year 1904. The sale was made in pursuance of Section 41 of the Act of April 29, 1844, P. L. 486, which provides “that all real estate within this Commonwealth, on which personal property cannot be found sufficient to pay the taxes assessed thereon, and where the owner or owners thereof neglect or refuse to pay the said taxes, the collectors of the townships in which said lands lie, shall return the same to the commissioners of the several counties; and the said lands shall be sold as unseated lands are now sold, in satisfaction of the taxes due by the said owner or owners.” The Act of June 4, 1901, P. L. 364, provides when, how and upon what property liens shall be allowed for taxes and prescribes the methods for preserving such liens and enforcing payment of taxes. Its final clause is: “And all other acts or parts of acts of assembly of this Commonwealth, general, special or local, appertaining to the subject-matter covered by this act, be and the same are hereby repealed; it being intended that this act shall furnish a complete and exclusive system in itself, so far as relates to the practice and procedure for the filing, collection and extent of tax and municipal claims, the right to file which accrued after the approval of this act.” This is an express repeal of the Act of 1844, so far as it relates to the collection of taxes. By the Act of March 26, 1903, P. L. 63, amending the Act of 1901, the provisions of that act do not apply to unseated lands, but continue as to seated lands, as which the property was sold to the appellant. Under the sale to him, made under the repealed Act of 1844, he acquired no title, and the judgment for the defendant non obstante verdicto is affirmed.


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    Spickernagle, Appellant, v. Woolworth.

      Negligence — Business invitee — Fall on oiled flooi — Nonsuit.
    In an action against the proprietor of a retail shop to recover damages for personal injuries sustained by a customer from a fall on a floor which was alleged to have been negligently oiled, a nonsuit is properly entered where the plaintiff fails to show how long before the accident the floor had been oiled; that the substance used thereon was unusual or improper, that it was oiled in an improper manner, or that it was in any other or different condition than would have resulted from proper oiling.
    Argued April 30, 1912.
    Appeal, No. 130, Jan. T., 1912, by plaintiff, from order of C. P. McKean Co., Dec. T., 1910, No. 30, refusing to take off nonsuit in case of Margaret Spickernagle v. C. S. Woolworth & Company.
    Before Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Bouton P. J. filing the following opinion:
    The plaintiff, while in the store of the defendant for the purpose of purchasing goods, slipped and fell and sustained an injury to her ankle; she brought suit to recover damages, alleging that the fall was caused by reason of the floor having been oiled and negligently suffered to remain in an unsafe condition.
    Upon the trial of the case we granted a compulsory nonsuit on the grounds that no negligence on the part of the defendant has been proven. The mere fact that the plaintiff was injured while lawfully on the premises of the defendant does not raise a presumption of negligence on the part of the latter: Stearns v. Ontario Spinning Co., 184 Pa. 519; Huey v. Gahlenbeck, 121 Pa. 238.
    May 13, 1912:
    The burden therefore, rested on the plaintiff to show some specific act of negligence, in which we are of the opinion she entirely failed. It is not negligence to oil a floor or to have an oiled floor: Diver v. Singer Mfg. Co., 205 Pa. 170.
    The plaintiff failed to show how long before the accident the floor had been oiled; that the substance used thereon was unusual or improper; that it was oiled in an improper manner, or that it was in any other or different condition than would result from proper oiling. There is no evidence that the material used was not the same as in general use for floor dressings, and to have submitted the case to the jury would have to have allowed them to guess these important and unproven facts or at least some of them. We are still of the opinion that the compulsory nonsuit was properly granted.

      Error assigned was in refusing to take off nonsuit.

      R. B. Stone, with him T. F. Mullin, for appellant.

      E. J. Jones of Jones é WicJc, for appellee.
   Per Curiam,

The judgment in this case is affirmed on the opinion of the court below refusing to take off the nonsuit.


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    Dewey, Appellant, v. Great Lakes Coal Company.

      Mines and Mining — Mining rights — Dumping waste on surface —Damages.

    Where an owner of land conveys the coal thereunder with general mining rights and “with the free right of use of surface so far as necessary for the purpose of mining,” the grantee may dump the waste or refuse of the mine at the mouth of the mine entrance, and use as much of the surface for that purpose as is strictly necessary and reasonable, without liability to the owner of the surface in damages for such use.
    Argued May 1, 1912.
    Appeal, No. 88, Oct. T., 1912, by plaintiff, from judgment of C. P. Armstrong Co,, Dec. T., 1910, No. 244, on verdict for defendant in case of Edward W. Dewey v. Great Lakes Coal Company.
    Before Beown, Mesteezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Tresspass to recover damages for injuries to land. Before Patton, P. J.
    At the trial the jury returned a verdict in favor of the defendant. Subsequently the court directed judgment to be entered on the verdict, Patton, P. J., filing the following opinion:
    The evidence in this case took a wide range for three reasons. First, because the plaintiff set up the wrong standard for the measurement of damages; second, by refusing to put in evidence the agreement which is the basis of the suit, and third, by his theory that a different standard of duty was imposed upon the defendant in regard to coal mined from under the land described in the agreement, and that from under other lands of defendant. The facts are few and without serious contradiction.

      In 1901 Edward W. Dewey, the plaintiff, purchased about 4,000 acres of land in Brady’s Bend township, Armstrong county, for the sum of $65,000.
    On the 13th day of September, 1902, he conveyed to Emmett Queen, for the sum of about $32,000, the coal underlying part of this land by a deed containing the following provision: “All of the coal in and underlying four hundred and twenty-one and 55-100 acres of land in Brady’s Bend township, Armstrong county, with the right to mine and remove all said coal without supporting or protecting the overlying soil or surface and without liability for damages to the said lands or anything therein or thereon, by reason of the mining and removal of said coal, and with the right to mine drain, ventilate and transport this or any other body of coal, through or over the several above described tracts of land, and with the free right of use of surface so far as necessary for the purpose of mining, draining and ventilating this and other coal, and of erecting, maintaining and operating thereon all buildings and structures necessary therefor, but no house shall be erected in the valleys, nor shall any building on any of the several described tracts of land be disturbed in erecting or operating said buildings or structures on the surface.”
    On the 5th day of October, 1904, Emmett Queen conveyed said coal and mining rights to the Great Lakes Coal Company, the defendant.
    The coal thus conveyed was bounded on the north by Sugar Creek and on the west by Pine Run. On Sugar Creek the Great Lakes Coal Company opened a coal mine called the Snow Hill mine, built a tipple and thereon conveyed the coal to the Western Allegheny Railroad, the trains of which run through the Sugar Creek valley. A large amount of refuse or gob was taken from the mouth of the mine, and dumped at its entrance. On Pine Run another entry was made, called the Pine Run mine, from which a tramway was^ constructed down Pine Run to Sugar Creek, where the coal was also loaded on the cars of the Allegheny & Western Railroad, and the refuse was taken from the mine and dumped along the eastern side of the hill This dump encroached upon a public road that occupied the eastern side of the Pine Run valley and upon a small stream that flowed down it.
    The damages complained of was that these dumps of gob covered about eleven acres of land, a strata of which was composed of limestone; that in dumping it over the hill it had destroyed some trees and obstructed a private road; that the coal company had removed the public road from the eastern side of Pine Run to the western side thereof, and had changed the course of Pine Run, which had been encroached upon by the gob dumped from the mine.
    We think it would have been justifiable to have taken the case from the jury for want of any relevant evidence as to the true measure of damages. As to the eleven acres of mineral limestone covered by the gob pile, no attempt was made to prove its market value, but R. H. Wilson, an expert witness on part of the plaintiff testified that each acre, in round numbers contained about 50,000 tons of limestone, worth ten cents per ton, thus making the damages $55,000. This was the method pursued in computing the value of mineral limestone in the case of Reading & Pottsville R. R. Co. v. Balthaser, 119 Pa. 472. In regard to it, the Supreme Court said, “It is almost unnecessary to argue the incompetency of that kind of testimony. Its character and effect was fully pointed out in the opinion of this court in the case of Searle v. L. & B. R. Co., 33 Pa. 57. We there held that the value of the land as coal land could be allowed, but not the value of the coal itself underneath the road. We do not measure the value of the land by such facts. Land may have $4,000 worth of coal per acre in it and yet sell at $40.00 per acre.”

      In Sarle v. L. & B. B. B. Co., 33 Pa. 57, the Supreme Court designated the measuring of damages by the value of the minerals underlying them as “arbitrary and fanciful.” That apt designation will apply in this case. The testimony showed that the plaintiff owned 4,000 acres of land and that the outcropping of limestone extended six miles. If one acre was worth $5,000, the 4,000 acres would be worth $20,000,000. Or if covering the outcrop for 1,600 feet damages the plaintiff $55,000, if the entire outcrop had been covered it would damage him $2,000,000. The figures show the danger of expert testimony.
    The testimony showed that the gob carried from the mine had covered a few small hemlock shrubbery, growing on the hillside, and had partly closed a small private road that might cause a tenant of plaintiff to drive a small distance out of his way. The measure of damages in such cases is pointed out in Bobb v. Carnegie, 145 Pa. 324, and Chase v. Clearfield Lumber Co., 209 Pa. 422. No proof was given upon which the jury could base a verdict as to the amount of damages sustained.
    As to the removal of the public road and as to the straightening of the stream, we left these questions to the jury, and they found the plaintiff sustained no damages. In that finding we concur.
    But, waiving these matters, we prefer to decide the case upon the broad principle of law that the plaintiff had shown no right to recover.
    As we travel through our valleys and see limestone, stripped, sand stone quarried, coal, fire-clay, and( iron-ore mined and oil and gas wells drilled, and see the waste material dumped where the mining operations are carried on without, in our knowledge or from any case in the books the grantee or lessee being held for damages, we cannot believe that the claim of the plaintiff in this case is based upon a sound legal foundation. To enforce it will startle the mining world, and be contrary to the settled custom of the country. As said by Mr. Justice 'Williams in Chartiers Block Coal Co. v. Mellon, 152 Pa. 286, 302, when a dispute had never reached the courts, although certain mining claims had been asserted for 30 years: “This cannot be accounted for except upon the theory of the general concession of the right by all parties concerned.” The inquiry naturally arises, if not dumped at the place of operation what would be done with it. If Mr. Dewey had insisted that a clause should be put in his agreement that the gob should not be deposited on his property, would he have been able to sell his coal? Or if that was his understanding of the contract, why did he stand by for years and allow,this large pile of refuse to be deposited upon his land? The only answer can be that he well knew, both from the express and implied conditions of his agreement, that his grantee had the right to deposit the gob at the pit mouth.
    After an exhaustive research we have not been able to find any authority that bears directly upon the case now before us, but it can be decided upon the general principles of law running through the books. When the soil belongs to one person and the mine to another, the right to work the mine carries with it the use of so much of the surface as is strictly necessary and reasonable. “As against the owner of the surface, each of the several purchasers (of the minerals) would have the right, without any express words of grant for that purpose, to go upon the surface, to open a way by shaft, or drift, or well, as might be necessary to operate his estate and to remove the product thereof.” Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.
    How are we to determine the extent of the surface to be used by the grantee of the coal? We say by the necessity therefor, by the custom of the country, and by the construction put upon the contract by the parties themselves, by a long acquiescence.
    It is absolutely necessary in opening and operating a mine that something be done with the waste or refuse. The custom of dumping it, at or near the mouth of the mine, is a custom so deeply imbedded in the bituminous coal fields of Pennsylvania, that it would be safe in saying that it is a usage of the trade. That being the uniform practice not only in general, but of the parties to this contract, for many years, the contract must be construed according to popular understanding.
    May 13, 1912:
    The grantee of the coal conducted his mining operations carefully, in the ordinary manner, without wilfulness, malice or negligence, and in our opinion the deposit of the refuse was necessary for the proper enjoyment of his rights, both under the terms of the written agreement, and as incidental to his right to mine and remove the coal.
    And now, February 27, 1912, judgment directed to be entered upon the verdict upon payment of the jury fee.

      Error assigned was in entering judgment on the verdict.

      Harry G. Golden and G. E. Harrington, for appellant,
    cited: Turner v. Reynolds, 23 Pa. 199; Baker v. Pittsburg, Etc. R. R. Co., 219 Pa. 398; Marvin v. Brewster Iron Mining Co., 55 N. Y. 538; Hooper v. Coal Mining Co., 95 Alabama 235 (10 So. Repr. 652).

      John H. Painter, for appellee.
   Per Curiam,

We have not been persuaded by any of the assignments of error that the judgment in this case ought to be disturbed, and it is affirmed on the opinion of the learned president judge of the court below directing it to be entered on the verdict.


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    Murphy v. Gordon.

      Trusts and trustees — Resulting trust — Judgment — Executors and administrators.

    Where an administrator uses moneys alleged to belong to the estate of which he is administrator in building a house upon land owned by himself, and subsequently in settling with one of the distributees, gives her a judgment for a balance due, and the judgment is entered up, and becomes a liten upon the administrator’s land, junior to other liens, such distributee cannot claim in a distribution of the proceeds of the sheriff’s sale of the land, that she is entitled to priority over the other lien creditors because of a trust resulting in her favor from the misappropriation of the trust funds by the administrator, where she does not even show that any moneys specifically belonging to her had been used by the administrator at the time that he paid for the labor and materials used in building the house.
    Argued May 1, 1912.
    Appeal, No. 46, Jan. T., 1912, by Katherine G. O’Malley, from order of O. P. Lackawanna Co., Nov. T., 1909, No. 873, sustaining exceptions to auditor’s report in case of M. J. Murphy v. T. P. Gordon.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of James McKinney, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.
    The auditor allowed the claim of Katherine G. O’Malley, the appellant, although her lien was junior to the judgments of M. J. Murphy and the West Side Bank. The exceptions of Murphy and the West Side Bank were sustained by the court, and the appellant’s claim was not reached in the redistribution.

      Error assigned was in sustaining exceptions to audit- or’s report.

      May 13, 1912:

      John G. Johnson, with him Samuel B. Price and Cole B. Price, for appellant.

      Ralph W. Rymer, with him Roswell E. Patterson, for M. J. Murphy, appellee, and W. G. Thomas, for West Side Bank, appellee.
   Per Curiam,

This appeal is from a decree distributing the proceeds of a sheriff’s sale of certain real estate sold as the property of T. P. Gordon. The appellant — whose claim was allowed by the auditor to the exclusion of lien creditors, but was subsequently disallowed by the court —contends that the fund raised by the sale was impressed with a trust in her favor, and that the amount due to her out of the proceeds of the sale is $2,146.69. But a word need be said in dismissing her appeal. She does not pretend that a dollar of her money was used for the purchase of the land by Gordon in 1906, but her contention is that, in subsequently erecting a house upon it, he used moneys belonging to two estates of which he was administrator and in which she was to be a distributee. This, to say the least, is a far-fetched theory of a resulting trust, and all that need be said of it is that the appellant did not even show that any money specifically belonging to her had been used by Gordon in September and October, 1909, when he paid for the labor and materials used in the building of the house. There was no settlement between her and him until July, 1910, when it was ascertained that there was due her from the two estates the sum of $5,999.98. Gordon then settled with her by paying her in cash $2,313.27, by conveying to her certain pieces of land valued at $1,650 and by executing and delivering to her a judgment note for the balance, which amounted to $2,036.71. Judgment was entered on this note and it became a lien on the land that was sold by the sheriff. The amount due upon it is the amount she claims out of the fund in court, to the exclusion of lien creditors; but as to that fund she, with them, is but a judgment creditor.

Appeal dismissed and decree affirmed at appellant’s costs.