author: Rice, P. J.,

text:
    King, Appellant, v. King.

      Divorce — Desertion—Separation—Intent.
    Desertion is an actual abandonment of matrimonial cohabitation, with intent to desert willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when, without cause or consent, either party withdraws from the residence of the other. The guilty intent to desert is rebutted where the separation is encouraged by the other party, or is by mutual consent.
    Mutual consent to the separation, not revoked by either party, is as fatal to an application for divorce upon the ground of desertion, as would be acts on the part of the libelant which would give the respondent legal cause to leave him, and to obtain a divorce from him.
    What may have been desertion in its inception, but has become a separation with mutual consent within two years, is not ground for divorce.

      April 20, 1908:
    The mutual consent that will prevent a divorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement.

      Divorce — Findings of fact — Review by the appellate .court — Evidence— Appeal.

    In reviewing the evidence brought up on an appeal from a decree refusing a divorce after trial in open court by a judge, where the evidence is in irreconcilable conflict, and the correct determination of the issues-of fact depends upon a determination of the veracity of witnesses who have given opposing testimony, the appellate court will, amongst other things, consider and give weight to the fact that the judge who saw and heard the witnesses and observed their manner of testifying had a much better opportunity than the appellate court to form a correct judgment as to their credibility.

      Desertion — Alimony—Counsel fee.

    The court in entering a decree refusing a divorce, may at the same time make absolute a rule on the libelant, the husband, to pay the respondent, the wife, reasonable alimony pendente' lite and counsel fees.
    Argued Feb. 26, 1908.
    Appeal by libelant, from decree of C. P. Tioga Co., Sept. T., 1905, No. 300, refusing divorce in case of George W. King v. Emogene King.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Heaü and Beaver, JJ.
    Affirmed.
    Libel for divorce on the ground of desertion.
    The opinion of the Superior Court states the case.

      Errors assigned were various findings of fact, refusal of divorce and order making absolute rule for alimony.

      JSC’. Horton, for appellant,
    cited: Bealor v. Hahn, 117 Pa. 169.;. Eshbach v. Eshbach, 23 Pa. 343.

      F. H. Rockwell, for appellee, filed no printed brief.
   Opinion- by

Rice, P. J.,

To the libel charging willful and malicious desertion. and' praying for a decree in divorce a. v. m. the respondent filed an answer denying the charge and averring that the libelant drove her from his home without just or reasonable cause. The'case was heard in open court, and after a full consideration of the testimony and reconsideration thereof upon reargument, the court found the facts to be, that the separation was forced by the libelant; that he actually drove the respondent from his home, and refused to allow her to return, notwithstanding her earnest and repeated solicitation to be allowed to do so. The respondent’s testimony, if believed, was sufficient to support this finding; and if the ordinary rule, which is applicable to a judge’s finding of fact from the conflicting testimony of witnesses who have testified before him in a case tried without a jury, is applicable to divorce cases in which the testimony was given in open court, we would be warranted in dismissing the exception to the foregoing finding upon the ground that manifest error is not clearly shown. It would seem from what was said in McMillin v. McMillin, 183 Pa. 91, that the rulé is applicable where a divorce has been refused, the evidence is conflicting, and the decision of the questions of fact depends upon the credibility of the witnesses. But in the later case of Middleton v. Middleton, 187 Pa. 612, it was said that where the appeal is from a decree granting a divorce the Supreme Court held it incumbent upon it, except where there had been an issue and a jury trial, to review the testimony, and to adjudge whether it sustained the complaint of the libelant, and that, in such appeals, the court had not adopted the rule generally applicable to proceedings before a master or an auditor that a finding of fact will not be disturbed except for manifest error. These cases, when carefully considered, will be seen to be perfectly reconcilable; and inasmuch as McMillin v. McMillin is not mentioned in Middleton v. Middleton, we would not be justified: in saying that it is overruled, and that the rule therein enunciated is no longer applicable to the class of appeals to which - it relates. This rule does not imply that if the appeal be from a decree refusing the divorce, it is not. incumbent upon the appellate court to review the evidence; but the case first cited is authority for this proposition, at least, that in reviewing the evidence brought up on such appeal, where it is in irreconcilable-conflict, and the correct determination of the issues of fact depends upon the determination of the veracity of witnesses who have given .opposing testimony, the appellate court should, amongst other things, consider and give weight to the fact that the judge who saw and heard the witnesses and observed their manner of testifying had a much better opportunity than the appellate court has to form a correct judgment as to their credibility.

But leaving this consideration out of view, and using such means to determine the questions of fact as the printed testimony alone furnishes us, our conclusion is that the charge of willful, and malicious desertion has not been established by the clear preponderance of the credible testimony: To be more .explicit, our conclusions are: first, that if the libelant did not actually drive the respondent from his home — upon which question there is considerable room for doubt — she departed .with his consent; second, that within two years she returned and made a bona fide offer to resume the marital relation which was not accepted by him. That there was a separation is undisputed, but separation is not desertion. “Desertion is an actual abandonment of matrimonial .cohabitation with intent to desert, willfully and maliciously persisted in without cause for two years. The guilty intent is manifested when,. without cause or consent, either party withdraws from the residence of the other:” Ingersoll v. Ingersoll, 49 Pa. 249; Middleton v. Middleton, 187 Pa. 612; Hull v. Hull, 14 Pa. Superior Ct. 520. Many other cases might be cited in which this concise and comprehensive definition has been approved. The learned counsel for the appellant puts the stress of his argument upon the proposition that the respondent has not shown such cause for separation as would have been sufficient to enable her to obtain a divorce. While she testifies to a course of conduct on his part which was unkind, annoying, and naturally the cause of unhappiness to her, we are not prepared to say that she made out a case prior to her offer to return which would entitle her to a divorce from him. Nor is it necessary to go to that extent in order to sustain the decree. The guilty intent to desert is’ rebutted where the separation is encouraged by the other party or by mutual consent. Mutual consent to the separation, not revoked by either party, is as fatal to an application for divorce upon the ground of desertion as would be acts on the part of the libelant which would give the respondent legal cause to leave him and to obtain a divorce from him. Upon this subject we refer to the opinion of Judge King in Butler v. Butler, 1 Parsons’ Sel. Eq. Cases, 329, the doctrine of which has been recognized in many subsequent cases.. What may have-been desertion in its inception, but has become- a separation with mutual consent within two years, is not ground for divorce. See Vanleer v. Vanleer, 13 Pa. 211; 1 Bish. Mar. Div. & Sep., sec. 1667. Again, the mutual consent that will prevent a diVorce upon the ground of desertion may be inferred from the conduct of the parties, and need not be put in the form of a solemn written agreement: Olson v. Olson, 27 Pa. Superior Ct. 128. Applying the foregoing principles to the conclusions of fact most-favorable to the libelant which we are able to draw from the conflicting testimony, the court was clearly right in refusing the divorce. • ...

Some time before the decree refusing the divorce was entered, a rule to show cause why the libelant should not pay the respondent reasonable alimony pendente lite and counsel fee was granted. On the same day that the decree was entered the docket entries show that by opinion filed this rule was made absolute. The opinion is not printed in the appellant’s paper-book, as it should have been if one was filed and the appellant intended to press the assignment of.error to the order. The counsel contends, however, that it was beyond the power of the court to make any order of that sort at the time it was made. We cannot agree to this proposition and do not deem it necessary to discuss it.

The decree is affirmed and the bill dismissed at. the cost of George W. King, the appellant.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Coppes v. Keystone Paint & Filler Company, Appellant.

      Deed — Reformation of deed — Mistake—Equity.
    A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued •concurrently in the minds of all parties down to the time of its execution; and, also, must be able’ to show exactly and precisely the form to which the deed ought to have been brought. To reform a contract, and then enforce it in its new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual.
    If a party who can read, will not read a deed put before him for .execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which is not the subject of protection, either in equity or at law.
    ■ Where an agent of a corporation prepares a deed and sends it to the officers of the company, who insert in the deed a building restriction, •;and then execute it, and the grantee accepts the deed and pays over the purchase money after he has had a full opportunity of examining ■the deed, he cannot afterwards have the building restriction stricken from the deed, on the ground that he had accepted the deed and paid the purchase money without knowledge of the insertion of the restriction.
    Argued Feb. 26, 1908.
    Appeal, No. 8, March T., 1908, by defendant, from decree of C. P. Lycoming Co., June T., 1906, No. 4, on bill in equity in case of J. A. Coppes et al. v. The Keystone Paint & Filler Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Head, Orladt and Beaver, JJ.
    Reversed.
    Bill in equity to reform a deed. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree reforming the deed.

      J. T. Fredericks, for appellant. —
    The evidence was insufficient to sustain a decree of reformation: Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Bierman v. Lebanon Val. College, 20 Pa. Superior Ct. 133; Kerr on Fraud and Mistake, 407; Bispham’s Equity, sec. 191; Youngstown Electric Light Co. v. Butler County Poor District, 21 Pa. Superior Ct. 95; 5 Brewster’s Practice (Equity), page 225; Dick v. Ireland, 130 Pa. 299; Mifflin County Nat. Bank v. Thompson, 144 Pa. 393; Lyman v. United Ins. Co., 17 Johns. (N. Y.) 373; Graham v. Carnegie Steel Co., 217 Pa. 34.
    April 20, 1908:

      John E. Cupp, with him Clarence E. Sprout, for appellees,
    cited: McGibbeny v. Burmsater, 53 Pa. 332; Hart v. Carroll, 85 Pa. 508; Graft v. Loucks, 138 Pa. 453; McClurkan v. Byers, 74 Pa. 405; Siemens Regenerative Gas Lamp Co. v. Horstmann, 24 W. N. C. 396; Penna. Natural Gas Co. v. Cook, 123 Pa. 170; Camden & Atlantic R. R. Co. v. Coxe, 18 W. N. C. 20.
   Opinion bt

Morrison, J.,

The learned court below entered a final decree reforming a deed for the conveyance ■ of land from the defendant corporation to one of the plaintiffs, by striking out of the deed the ■■ following restriction, placed therein by the officers of the cor■poration before executing the deed, to wit: “But this conveyance is made on condition that neither said lands, nor any building now on, or hereafter erected on said lands shall ever be used for the business, manufacture, storage or sale of paint, paints, filler, fillers, or used in carrying on any or either of said ■businesses and on condition that neither of said businesses shall ever be conducted on the premises herein conveyed.”

The arrangement for the sale and purchase of the land described in the deed, and in plaintiff’s bill, was made, orally, between George-W. Howard, vice president and manager of the Keystone Paint and Filler Company, a corporation existing under the Jaws of New Jersey, but engaged in business at Muncy, in the county of Lycoming, state of Pennsylvania, and J. A. Coppes, one of the plaintiffs. Pursuant to said oral agrees ment a deed was prepared, by direction of George W. Howard, containing no restriction or reservation, and by him forwarded to the office of the defendant corporation at Hoboken, New Jersey. Before execution the officers of the corporation inserted in the deed the restriction above quoted, and then duly executed the conveyance and sent it to George W. Howard at Muncy, Lycoming county, Pennsylvania. On April 3, 1906, Howard, for the corporation, delivered the deed to J. A. Coppes who paid to Howard, for the corporation, $800, the consideration money. Before paying for the deed, Coppes had full opportunity for examining it and there is evidence from which the fact could be found that he did open and read the deed before paying the $800. There is ample evidence in the record from which it could be found that before the bargain of sale and purchase was made between Howard and Coppes the latter represented, and the former understood, that the property was to be used by Coppes as a sawmill.

We find in the record twenty-five assignments of error, but the view we take of the controlling questions in the case will render it unnecessary to consider these assignments seriatim.

The controlling fact in this case is that there is no finding of fact, and no evidence from which it could be found, that the restriction was inserted in the deed by mutual mistake, so that a court of equity would have jurisdiction to reform the deed by striking it out. There is not a scintilla of evidence that the officers of the defendant corporation, who executed the deed, acted under the slightest mistake in the preparation and execution of the deed. It was not a deed and it had no legal effect until they inserted therein the restriction, executed the deed and authorized Howard to deliver it to Coppes on the payment by him of $800. If the latter did not wish to accept it, with the restriction therein, his course was to refuse it. Conceding that he did not read the deed, and did not know it contained the restriction until after he paid the purchase money, yet there is no ground shown for reformation. It may be that he could, acting promptly, have tendered the deed back to the corporation and enforced a rescission, if he did not in fact know the restriction was in the deed when he paid the purchase money. But we are not called upon to decide that question, at this time, and it is not decided.

While the court below finds that the defendant corporation, on March 24, 1906, did covenant, contract and agree to and with Coppes to sell and convey to him the land in question, free and clear of all conditions and reservations whatsoever, yet in truth and fact the only contract or agreement made, or attempted to be made, for or by the corporation, was the oral one made by George W. Howard with Coppes, and there is no evidence that Howard had any authority to make a binding contract to sell any of the real estate of the corporation.

We do not think the rule invoked -by the plaintiffs that a party cannot benefit by the contract of one who claims to be his agent and at the same time repudiate the agent’s authority, applies, because the corporation did not accept the contract as made by Howard and Coppes, but made a radically different proposition, to wit: the one set forth in the deed which they executed and empowered Howard to deliver to Coppes. “A person who seeks to rectify a deed on the ground of mistake must establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution; and, also, must be able to show exactly and precisely the form to which the deed ought to have been brought. To reform a contract, and then enforce it in its .new shape, calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree for reformation in cases of pure mistake, it is necessary that the mistake should have been mutual:” Bispham’s Eq. sec. 469. See also Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133; Cooper v. The Farmers’ Mutual Fire Insurance Co., 50 Pa. 299. “It is a settled rule in equity that where the court is asked to reform the written evidence of a contract, the mistake must be mutual.

“A court of equity, has not power to reform an agreement. It can only correct the written evidence of the agreement to make it correspond to the understanding of the parties: ” Boyce v. Fire Ins. Co., 24 Pa. Superior Ct. 589, and cases therein cited.

In the present case, if there was a mistake on the part of the grantee, in accepting the deed with the restriction therein, there was neither fraud or mistake on the part of the grantor in executing the deed and sending it to be delivered to the 'grantee with the'restriction which the grantor had purposely-placed therein: “When i-t is said that equity will reform a written agreement so as to express and carry out the intention of the parties, the intention meant is the intention of both ■parties as to something upon which their minds actually met: ” Rice, P. J., in Youngstown Electric Light Co. v. Butler County Poor District, 21 Pa. Superior Ct. 95.

It is idle to argue that the corporation perpetrated a fraud upon Coppes. The restriction was plainly written in the deed and he had a full opportunity of examining the deed before accepting it; this is not only proved, but Coppes admits that ■the deed was handed to him before he paid the purchase money: On this point, J. A. Coppes testified:-“I went there in the morning, the whole transaction I do not think was ten minutes. I asked him if the deed had come, and he said yes, and he said do you want to take it and have your lawyer look at it, and I said I guess the Keystone Paint and Filler Company is good for it, and I took the deed and gave him my check and walked out. I do not know whether I had the deed opened — I might have.” On this point, Mr. Howard testified that Mr. Coppes took the deed to the window and opened it up for inspection. The testimony discloses that, so far as anybody representing the corporation knew, J. A. Coppes was purchasing the lot for himself, and, therefore, he was the only one to determine whether or not the deed was satisfactory. He was offered the opportunity to take the deed to his attorney for examination and it was handed to him for his own inspection. How, then, can it be said that there was any fraud or attempted fraud practiced upon him?

In Penna. R. R. Co. v. Shay, 82 Pa. 198, Mr. Justice Sharswood, p. 203, said: “If a party, who can read, will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law.”

We are clearly of the opinion that no binding contract was made for the sale of the land, by the corporation, until it executed the deed which contained the restriction. We are also of the opinion that the plaintiffs entirely failed to establish ground for reforming the deed on account of mutual mistake. It is equally clear that if J. A. Coppes was mistaken it was the result of his own supine negligence, and there was no mistake or fraud on the part of the corporation or its officers. We are all of the opinion that the learned court erred in the decree reforming the deed. We, therefore, reverse the decree and dismiss the bill at the costs of the plaintiffs.


text:
    Edwards v. Williamsport, Appellant.

      Municipalities — Faulty construction of street — Injury to property — Negligence.

    If a city is guilty of a faulty construction of a street and gutter in front of an abutting owner’s premises, or fails to keep the same in reasonable repair, and damage results to -such owner, the city must respond in damages, if it had notice of the defect, or the defect existed so long as to amount to constructive notice, and the owner is free from contributory negligence.
    Where a city uses as a support for a street, pavement and gutter, a wall belonging to an abutting owner, and by the faulty construction and negligent care of the pavement and gutter the wall is destroyed, and the owner’s cellar wall and cellar damaged, without negligence on his part, a verdict and judgment for the owner will be sustained.
    Argued Feb. 26, 1908.
    Appeal, No. 23, March T., 1907, by defendant, from judgment of C. P. Lycoming Co., March T., 1906, No. 582, on verdict for plaintiffs in case of Nicholas M. Edwards and Edward Carter Edwards v. City of Williamsport.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to plaintiff's premises on West Third street in the city of Williamsport. Before Omerod, P. J., specially presiding.

      April 20, 1908:
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      Frank P. Cummings, city solicitor, for 'appellant..

      Chas. J. Reilly, for appellees.
   Opinion by

Morrison, J.,

The appellant’s counsel has not seen fit to furnish us with a copy of the plaintiff’s declaration, and, therefore, we must gather from the evidence, arguments, etc., the nature of the plaintiff’s claim. We understand it to be an action in trespass to recover damages for injuries to a stone wall erected and maintained in front of the plaintiff’s property on a public street in the city of Williamsport, and to plaintiffs’ cellar at that point; said damages alleged to have been caused by the negligence of the city authorities.

The learned counsel for the appellant, in his statement of questions involved, points and argument contends that the plaintiffs erected and maintained, in the public street, a vault. A careful examination of the evidence convinces us that the jury was fully warranted in finding against this contention. It is quite clear that the jury could find, from the evidence, that when the plaintiffs’ building was constructed the foundation was built much higher than the street; that after constructing the cellar wall, the wall in question was constructed parallel with the cellar wall, about eight feet therefrom, and that this was done prior to 1856, and the wall was maintained thereafter until it was injured and partially destroyed by the flood of 1889, and the plaintiffs repaired it soon thereafter. The jury could also find that the space between the two walls was not filled up but always remained hollow. There is no evidence that there were any cross walls so as to form a vault.

It appears from the evidence that in improving the street in question, the city authorities filled the street against the outer wall with ashes, tan-bark and other material, and then laid a brick pavement on said street and formed a gutter for the purpose of conducting the water for a considerable distance along said street, and in front of the plaintiffs’ property. This gutter was nearly over the wall in question. Thus the city was using this wall as a support for the street filling and also for the brick pavement and gutter. It seems to be a conceded fact in the case that water was brought-in front of the plaintiffs’ property by the improvement of the street which would not have come there in the absence of the construction made by the city.

The theory on which the plaintiffs were allowed to recover was that for a number of years the city had been using the gutter along the surface of the street, next to the curb, as a part of its drainage and sewage system; that owing to the nature of the material used for filling the street, in front of plaintiffs’ property, the pavement and gutter settled and became imperfect and allowed the water to leak through and injure and partially destroy the plaintiffs’ wall, and also injured and dampened the plaintiffs' cellar wall and cellar. In short, the complaint is that the street and drain had been allowed by the defendant city to become so dilapidated and out of repair for many years, in front of the plaintiffs’ property, that they were damaged and injured by the negligence of the city officials, without any negligence on the part of the plaintiffs.

In his charge to the jury the learned judge below said: “They, the plaintiffs, allege that by reason of the faulty construction of the highway on that side of the street, or by failure -of the city to keep the surface in repair so that it properly sheds the water that runs upon the street, they have received certain damages, which they allege were caused by the negligence of the city.” There was sufficient evidence from which the jury could find that the wall was not an unlawful structure; that it was properly constructed; that it was the duty of the plaintiffs to maintain it and that through the negligence of the city officials it was seriously damaged, and other injuries done to- the plaintiffs’ property, and that they were not guilty of contributory negligence.

The zealous counsel for the appellant presented eighteen points at the trial and in our opinion they were all properly answered. We have carefully considered the evidence and .the' charge of the court and think the case was well tried. The learned counsel has presented for our consideration thirteen assignments of error, and he has argued the same with much force, but we are not convinced that there is reversible error raised -by any or all of them. Certain of the counsel’s points, as we understand them, asked the court to instruct the jury that it was the duty of the plaintiffs to construct and repair the wall in question, but by other points, he requested the court to say to the jury that the plaintiffs had no right to erect and maintain the wall. His eighth point reads: “The proximate cause of the injury complained of was the unauthorized construction of a defective sustaining wall and the maintenance of a vault.under the sidewalk by the plaintiff.” Tenth point: “.The primary duty of constructing and keeping in repair the sidewalk and curbing rests upon the abutting owner, and in this case the extent of the sidewalk is from the building line to the curb.” Eleventh point: “The duty of constructing the sidewalk and curb and keeping the same in repair, in this case included the supporting or sustaining wall in question.” Now, the jury must have found that the filling of the street and, the-construction of the pavement and drainage gutter were imperfectly and negligently done, or else the city officials were guilty of negligence in not keeping the same in repair, and that the plaintiffs were damaged by the water leaking through the defective pavement and gutter. The logic of the counsel’s argument seems to be that the burden rested on the plaintiffs of constructing and maintaining the wall in question. He concedes that the city used it as a support for the street pavement and gutter, and yet he argues that it was unauthorized, and then asked the court to say to the jury that it was the duty of the plaintiffs to construct the sidewalk and curb and keep the same in repair and also the supporting or sustaining wall in question. And he now argues to us that even if the faulty construction of the pavement and gutter and the collection of surface water at that point destroyed this wall, through the negligence of the city, yet the plaintiffs cannot recover any damages. We cannot agree with this argument. If it was the duty of .the plaintiffs to construct and maintain the wall, and. the city used it as a support for its street, pavement and gutter,- and by the faulty construction and negligent care of the latter ■ the wall was destroyed and the plaintiffs’ cellar, wall and cellar damaged, without negligence on their par-t; we ■ think the learned court was right in permitting the jury to assess-the damages caused by this negligence of the city.

The learned court carefully submitted to the jury the questions of fact and the questions of negligence and - contributory negligence. We regard the charge as impartial and adequate.

The plaintiffs were not allowed to recover because the city raised the grade of the street, constructed a pavement and gutter and generally .changed the condition- of things in front of the plaintiffs’ property. But the recovery was allowed on the theory of faulty construction and negligence on the part of the city officials which it was alleged worked serious damage to the property of the plaintiffs. “The work of constructing gutters, drains, and sewers, is ministerial and when, as usually is the case, the undertaking is a corporate one, the corporation is responsible in a civil action for damages caused by the careless or unskillful manner of performing the work:” Dillon on Municipal Corporations, sec. 802. In Markle v. Berwick Borough, 142 Pa. 84, it was held as stated in the syllabus: “In an action against a borough to recover for injuries to prop-: erty, caused by an overflow of surface water into plaintiff’s cellar, there was evidence tending to show that a sewer, to take, away the water, was not only imperfectly constructed originally, but negligently allowed to become clogged and out of repair: in such case, it was not error to refuse to instruct for the-defendant that ‘if the jury believe that the-sewer was of sufficient capacity to carry off the usual fall of water...... then the defendant performed its duty of construction, and the plaintiff is not entitled to recover;’ for if the sewer was stopped up, or out of repair, its capacity was immaterial.”

In Allentown v. Kramer, 73 Pa. 406, the Supreme Court, by Agnew, J., said: “that for negligence, either in the construction-,.,or repair of public works (when repair is a duty) the corporation itself must respond in damages for a special injury caused by its negligence.” Citing many authorities. That was a case not unlike the one under consideration.

In Bohan v. Avoca Borough, 154 Pa. 404, we find a case where the same principle is ruled. That was where the borough constructed gutters in a street in such a way as to cause the surface water of a large territory to be diverted from its natural flow, and precipitated on the premises of the owner whose property abutted on the street, and the property was injured, and the borough held liable in damages. We followed that case in Rohrer v. Harrisburg, 20 Pa. Superior Ct. 543. In Gift v. Reading, 3 Pa. Superior Ct. 359, we held as stated in the syllabus: “But the work of construction in accordance with adopted plans is purely ministerial; it must, therefore, like all ministerial duties be performed in a skillful and careful manner. A municipality is liable for injuries caused by negligent performance.” -See also 24 Am. & Eng. Ency. of Law (1st ed.), 946.

Elliott v. Oil City, 129 Pa. 570, is another case sustaining the court below in submitting the present case to the jury. Torrey v. City of Scranton, 133 Pa. 173, is to the same effect. In Briegel v. Phila., 135 Pa. 451, it was held as stated in the syllabus: “A municipal corporation, owning and holding property for public purposes, is as much subject to the usual rule, sic utere tuo ut alienum non lgedas, as are private citizens, and is liable to an adjoining owner for injuries arising from a nuisance maintained upon its property.” We might multiply authorities almost without limit. It cannot be questioned, at the present day, that if the defendant was guilty of a faulty construction of the street and gutter in front of the plaintiffs’ premises, or failed to keep the same in reasonable repair, and damage resulted to the abutting property owner, the city must respond in damages if it had notice of the defect, or it existed so long as to amount to constructive notice, and the plaintiffs were free of contributory negligence. All of the above questions were in the present case and they were properly submitted to the jury and we can see no ground for disturbing the judgment.

The assignments of error are all dismissed and the judgmerit is affirmed.


author: Orlady, J.,

text:
    Breslin, Appellant, v. Earley.

      Boroughs — Borough president and treasurer — Payment of borough debt— Refusal of president to sign order — Mandamus.-
    Payments of the debts of a borough lawfully incurred in the daily administration of its affairs, is purely ministerial, and ordinarily involves no executive action, but devolves upon the council and the treasurer.
    ■ Where a borough council has ordered the payment of a debt due by the borough on a building contract, and the borough president refuses to sign an order for the payment, on the ground that in his judgment the contract was not properly performed, the president may be compelled by mandamus to sign the order, inasmuch as the signing of the order is a mere ministerial act, and it is not the judgment of the president, but it is that of the council which determines that the bill should be paid.
    One of the most common uses of the writ of mandamus is to enforce obedience of officers who decline performing a mere ministerial act, and where such an act is to be done, a specific duty or act enjoined, and there is no other specific remedy, performance will be compelled by mandamus.
    Argued March 2, 1908.
    Appeal, No. 54, March T., 1908, by plaintiff, from order of C. P. Carbon Co., Oct. T., 1907, No. 50, refusing writ of mandamus in case of Andrew Breslin v. John Earley, Jr., President of the Town Council of Lansford Borough, Pa.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and-Beaver, JJ.
    Reversed.
    Petition for mandamus. Before Heydt, P. J.
    The facts appear by the opinion of the Superior Court.
    The court entered judgment for defendant on a. demurrer to the answer to the petition.

      Error assigned was the judgment of the court.

      April 20, 1908:

      Laird H. Barber, with him Leighton C. Scott, for appellant.—
    The president of the town council is a purely ministerial officer., invested with no judicial or discretionary powers as such, and his act in attesting a warrant is in obedience to the mandate of councils without regard to, or the exercise of, his own judgment upon the propriety of the act done; and so long as council did not act corruptly, it was not within his power to question the wisdom of the act: Dechert v. Com., 113 Pa. 229.
    The use of the writ of mandamus is to enforce obedience of officers who decline doing a mere ministerial act: Com. v. City of Philadelphia, 2 W. N. C. 124; Roth v. Marshall, 158 Pa. 272; Perkins v. Slack, 86 Pa. 270; Com. v. George, 148 Pa. 463; Douglas v. McLean, 25 Pa. Superior Ct. 9; Schweers v. Muhlenberg, 19 Pa. Superior Ct. 388; Com. v. Philadelphia, 176 Pa. 588; Com. v. Pittsburg, 204 Pa. 219; Com. v. Larkin, 216 Pa. 128.

      E..O. Nothstein, with him Wm. G. Freyman, for appellee.—
    The Supreme Court has frequently announced the rule that the remedy by mandamus is a strictly legal one and that the relator must establish a specific right as well as a want of a specific legal remedy: Com. v. Mitchell, 2 P. & W. 517; Reading v. Com., 11 Pa. 196; James v. Commissioners of Bucks County, 13 Pa. 72; Heffner v. Com., 28 Pa. 108; Com. v. Henry, 49 Pa. 530; Com. v. James, 214 Pa. 319; Com. v. Pittsburg, 34 Pa. 496; Lehigh Water Co.’s App., 102 Pa. 515; Com. v. Filler, 136 Pa. 129; Kensington Electric Co. v. Phila., 187 Pa. 446; Mercur v. Electric Light, etc., Co., 19 Pa. Superior Ct. 519; Douglas v. McLean, 25 Pa. Superior Ct. 9; Com. ex rel. v. James, 214 Pa. 319; Com. v. Rosseter, 2 Binney, 360; Com. v. Commissioners of Allegheny Co., 16 S. & R. 317; People v. Thompson, 25 Barb. 73; Com. ex rel. Pa. Globe Gas Light Co. v. Buchanan, 6 Kulp, 217.
   Opinion b.y

Orlady, J.,

On April 26, 1906, the plaintiff entered into a contract with the borough of Lansford for the erection of a two story brick addition and certain alterations to be made to an engine and hose house in accordance with plans and specifications prepared by a selected architect. In June at a regularly convened meeting of the borough council, a resolution was duly passed by a vote of seven to two, that an order be drawn on the treasurer for the sum of $769.40 in favor of the plaintiff in settlement of the balance found to be due on his contract. This order was drawn and attested by the secretary, and when presented to the defendant as president of the town council for his signature, he refused to sign it. A petition for a writ of alternative mandamus was presented to the court of common pleas to require him to perform this duty, to which he filed an answer setting out at length a number of alleged defects in the work and failures to comply with the specifications contained in the terms of the contract, and stating that he “ has refused to sign the warrant because he verily believes that the contractor is not entitled to this money, not having done and not performed all the work under the contract, and that the town council of the borough of Lansford has no authority to accept the said work, knowing that it is defective and not all the work done according to the contract.” After hearing on the petition, answer and demurrer, a judgment was entered for the defendant. The learned judge hearing the case concedes that generally speaking the signing of orders upon the treasurer of a town council for the payment of money regularly passed by such council, is a ministerial act, and that as an abstract legal proposition it is the duty of the president of the town council to sign such orders. This is- true of proceedings of town councils of boroughs, and more especially of the borough of Lansford, which has an ordinance providing among the duties of the president, “He shall sign all bonds, orders regularly passed by the council,” but the court concluded that the plaintiff had an adequate remedy at law, and that the defense to the contract as raised in the return of the president of the council, was sufficient to defeat the application. The objections raised aré certainly no more specific than the ones alleged in Commonwealth v. Philadelphia, 176 Pa. 588, in which the Supreme Court says, “The only contest comes from the controller, and his grounds of objection, set out at length in his answer, show that none of them was founded on matters within his. discretion,” and in Commonwealth v. Larkin, 216 Pa. 128, reviewing the foregoing case, it is held, “If the con- • tract be on its face regular, and the requirements of the statutes in connection therewith have been fully met, the controller is without choice in the matter; and it becomes at once his duty in such cases to number the contract according to its date, charge it against the proper item of appropriation, and certify it accordingly. No opinion, or so-called discretion of the controller can justify him in withholding his certificate from such a contract. The objection that it is illegal, or that it has not been complied with in all its requirements, is the expression of an opinion which the respondent has a perfect right to entertain, but which we cannot be expected to seriously consider. Should questions arise in consequence of this alleged conflict or ambiguity, the courts may be trusted to meet and solve them. The one question in the case is, shall the controller be required to certify this contract? It is his duty to certify all municipal contracts which have been entered into under and in compliance- with statutory requirements. The powers and duties incident to his office are purely statutory, and when one holding the office asserts the right to avoid or ignore a duty plainly enjoined, nothing can vindicate such right short of a statutory provision equally explicit with that which enjoins the duty.” We held in Commonwealth v. Sholtis, 24 Pa. Superior Ct. 487, that ah order to pay money out of the general funds of a boróugh, even when signed by the president and clerk of the borough council directed to the borough treasurer, is not a paper upon which suit may be brought, being neither a bill, note, check, nor contract; and it is not a satisfaction of the original -indebtedness against such an order. The borough may set up ' the defense of ultra vires, or fraud, or want or failure of consideration.' Warrants for the payment of the ordinary debts of a' borough, lawfully incurred in the daily administration of its affairs, are sufficiently executed if signed by the president óf council: Commonwealth v. Diamond National Bank, 9 Pa. Superior Ct. 118. While the president is a member of the council, and by the act of 1893 its presiding officer, and, as such, a part of the law making power of the borough, his duties do not give him discretionary power to revise lawful. contracts, or withhold his approval of contracts that have been approved by the body over which he presides. The answer as -filed is argumentative in many respects, and the conclusions stated by the defendant are those founded on his opinion as a member of the town council. It may well be, that after a full investigation of all the facts, in which all parties were equally interested and in the exercise of their- best business judgment as councilmen, they as representatives of the borough concluded to waive the technical performance of some of the specifications mentioned in the written contract, and by their vote of seven to two concluded that it was to the best interests of the borough to pay the balance as ascertained. On this subject the councils are the better authority, and their jurisdiction cannot be ousted by a ministerial officer by simply putting forth the assertion of even a discretionary power, without showing that the matter was properly within such discretion: Douglas v. McLean, 25 Pa. Superior Ct. 9; Jones v. Light, Heat, etc., Co., 202 Pa. 164. Payment of the debts of a borough lawfully incurred in the daily administration of its affairs, is purely ministerial, and ordinarily involves no executive action, but devolves upon the council and the treasurer. The validity of the contract is not questioned, and its performance is challenged only by the president of the council. One of the most common uses of the writ of mandamus is to enforce obedience of officers who decline performing a mere ministerial act, and where such an act is to be done, a specific duty or act enjoined, and there is no other specific remedy, performance will be compelled by mandamus: Perkins v. Slack, 86 Pa. 270; Commonwealth v. George, 148 Pa. 463; Commonwealth v. Pittsburg, 204 Pa. 219. We do not consider that the merits of the claim, in payment of which the order was directed'to be issued, are before the court, and we are not called upon to pass them. That is a question committed, in the first instance, exclusively to the discretion and control of the duly constituted authorities of the borough who in this proceeding are not disputing -the claim or questioning its validity. If the borough council would indicate that there was a defense to the claim, it is clear there could be no remedy by mandamus, but only by suit prosecuted to judgment in the ordinary course of law.

The judgment is reversed and mandamus directed to be issued, unless other and legal grounds be shown why it should not.


text:
    Gross’s Estate.
    April 20, 1908:

      Executors and administrators — Mingling accounts — Distribution—Estoppel — Practice, 0. C.

    Where an administratrix files an account in which she blends the estate of her own intestate with the estate of a decedent of whom her intestate was executor, and the account shows a balance in her hands for distribution, and no objection is made to the account or to the irregular blending of the two estates, the administratrix cannot set up her own irregularity, when the distributees seek to enforce the payment of the money which the administratrix has acknowledged that she' received.
    Argued March 2, 1908.
    Appeal, No. 17, Jan. T., 1908, by Elizabeth E. Cadman, from decree of O. C. Columbia Co., May Term, 1905, No. 21, directing distribution in Estate of Louisa Gross.’
    Before Rice, P. J., Porter, Henderson, Orlady, Head and .Beaver, JJ.
    Affirmed.
    Petition for an order to pay over money. Before Evans, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the decree of the court directing distribution to be made.

      C. W: Miller, with him L. E. Waller, for appellant

      ,Wm. C. Johnston, with him G. M. Tustin, for appellees.
   Opinion by

Orlady, J.,

If the record in this case as made by the appellant may require her to pay money which she never received, her present peril is entirely of her own making. Louisa Gross, having made her last will and testament, in which she named James Cadman as her executor, died December 6, 1891. The executor qualified as such, and as early as 1893 made sale of the real estate, and other property of the decedent, which produced in cash the sum of $2,021.37. James Cadman died in 1895 without having filed an inventory or account as the executor of Louisa Gross. So far as appears by the record, his estate was solvent. On March 24, 1898, Eliza E. Cadman, his widow,-' applied for and received letters of administration on his estate,' but did not file any account for more than five years, and then only in response to a citation from the orphans’ court to account both in the estate of Louisa Gross and of James Cadman. A single account was filed, which she entitles, “ First and final account of James Cadman, executor of the estate of Louisa Gross, as filed by Eliza E, Cadman, administratrix of James Cadman, deceased,” and in this account she charges herself as of April 1, 1893, with house rent amounting to $154, and with cash received from James Knorr as a consideration for the real estate sold of $1,846, and claims credit with a number of items including commissions oh the real estate fund, attorney’s charges, fees, and for services in stating the account, and concludes it with “balance in accountant’s hands for distribution to heirs $1,562.02,” all of which was verified by her oath as just and true to the best of her knowledge and belief. It is manifest from the manner in which she stated her account that she intended to present the whole question of accounting and distribution of the estates of Louisa Gross and of James Cadman in one account without the intervention of administration d. b. n. c. t. a. While this procedure is open to the charge of irregularity, it is nevertheless the one she adopted, and the persons entitled to the money did not object to the manner of stating the account, as they were satisfied with the conclusion she submitted to them; and when they seek to enforce the payment of the money she raises the question of her own irregularity for the first time. There was.no objection made to enlarging the power of the auditor to make distribution of the funds she submitted for distribution, and he reported as a fact that on March 24, 1898, she had in her hands the balance of $1,431.57; and in the exceptions filed by her to his report the truth of this finding is not questioned. No exceptions were filed to the amended report of the auditor which distributed to the appellees the sums to which they were clearly entitled, which report was confirmed absolutely on January 20, 1906. From this decree of the orphans’ court no appeal was taken. The right of the appellees to their distributive share of the fund is not questioned, and after this inexcusable delay, and the blending of the two estates in one, her repeated declarations that she received the money and has it in hand for distribution, have placed her in such a position that she cannot now challenge the binding effect of the decree: Watts’s Estate, 158 Pa. 1.

The judgment of the court below is affirmed.


author: Pee Ctjeiam,

text:
    Magee v. Caramella, Appellant.

      Justice of the peace — Appeal—Extension of time for taking appeal.

    Where a defendant appears at a hearing before a justice of the peace, offers no testimony, and leaves the office of the justice without any inquiry as to what the justice intended to do, and the justice, after the departure of the defendant, and on the same day, enters judgment against the defendant, the twenty days for taking an appeal begins to run from the date of the entry of the judgment, and not from a day ten days thereafter when the defendant first heard of the entry of the judgment. In such a case an appeal taken more than twenty days after the date of the judgment will be quashed and stricken from the record.
    Argued March 2, 1908.
    Appeal, No. 49, March T., 1908, by defendant, from order of C.. P. Monroe Co., Sept. T., 1907, No. 21, quashing appeal in case of Magee Bros. v. Louis Caramella.
    Before Rice, P. J., Porter, Henderson, .Orladt, Head and Beaver, JJ.
    Affirmed.
    Rule to quash appeal.

      Staples, P. J., filed the following-opinion:
    This case does not come within the line of cases which have given appellants additional time for the taking of an appeal from a justice of the peace after the expiration of twenty days.
    The undisputed facts in this case are that the defendant appeared at the suit before the justice of the peace, offered'no testimony and, as stated by the defendant in his answer, “that' after hearing the plaintiff’s evidence, the said defendant offering no evidence, and after the hearing of the said suit had en-' tirely come to an end, the said defendant, accompanied by his counsel, left the office of the said justice of the peace, without' any word being said or act done by the said justice of the peace in regard to the entry of any judgment on the said twenty-first day of June, A. D. 1907.”
    About ten days after that defendant’s counsel, upon inquiry made of the justice, learned that judgment had been entered on June 21, 1907. There was no reason why the defendant could not have inquired of the justice what he intended to do, before he left the justice’s office. The justice was not obliged upon the instant after the evidence closed, to announce publicly the judgment. His record does show that he entered judgment publicly on June 21, and it was easily within the power of the defendant to have learned that fact by inquiry, and the facts do not warrant the neglect of the defendant to take the appeal when, he did ascertain that judgment had been entered against him. He had then ten days in which to take it, and we fail to find anything either upon the record, or in the defendant’s answer, which would excuse his action and warrant the court in extending the time asked.
    And now, December 9, 1907, for the reasons above stated, the rule to show cause why the appeal should not be quashed and stricken from the record, is made absolute.

      Error assigned was the order of the court.

      Rogers L. Burnett, for appellant. —
    Under the circumstances, the time for appeal runs from the end of ten days, or from the date of notice of judgment, if such notice be given before the ten days expire: Boyd v. Ward, 10 Pa. C. C. Rep. 9; Hoffner v. Kottka, 2 Pearson, 360; Taylor v. Smith, 2 Clark, 318; Haines v. Townsend, 1 Chester County Rep. 146; Imler v. Houser, 1 Pa. C. C. Rep. 6.
    April 20, 1908:

      C. C. Shull, for appellee. —
    An appeal from the judgment of a justice of the peace will not be allowed after twenty days, where the fault is that of the party: Butterworth v. Pratt, 1 Chester County Rep. 53; Orth v. Groff, 8 Lancaster Law Review, 12; Patterson v. Gallitzin B. & L. Assn., 23 Pa. Superior Ct. 54; Haines v. Townsend, 1 Chester County Rep. 146.
   Pee Ctjeiam,

The nature of this case and the question presented for decision are sufficiently stated in the opinion of the learned judge below. For the reasons given by him we conclude that the order complained of was clearly right under the facts.

The order is affirmed at the costs of the appellant.


author: Henderson, J.,

text:
    Metcalf, Appellant, v. Buck.

      Deeds — Description—Courses and distances — Monuments—Ejectment— Evidence.

    The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence when the marks or monuments are gone.
    In an action of ejectment where both plaintiff and defendant claim under deeds from the same grantor, but the defendant’s title is older, and it also appears that the grantor had made two plans of lots, on one of which the plaintiff relies, the defendant can only be affected by the plan on which the plaintiff relies when it is shown that that was the plan by which defendant’s land was described.
    In such a case where the defendant claims that she bought according to monuments on the ground, she may show that the grantor went on the ground and caused oak stakes to be set, indicating the corners and side lines of the lot sold to the defendant and adjoining owners, and that fences were erected by the owners, including the plaintiff, in accordance with the lines claimed by the defendant.

      Evidence — Witness—Interest of witness — Competency of witness.

    The interest which disqualifies a witness, is a vested interest in the event of a suit, but not in the question involved. It must be such an interest as the judgment in the case would operate upon. Such an interest may affect the credibility of the witness, but not his capacity.
    In an action of ejectment where both plaintiff and defendant claimed from the same grantor, who was dead at the time of the trial, an ownér of land adjoining land of one of the parties, who has no interest in the land in suit, is a competent witness for one of the parties, although he is interested in the question involved as affecting his own land.
    Argued March 3, 1908.
    Appeal, No. 13, March T., 1908, by plaintiff, from judgment of C. P. Wyoming Co., Jan. T., 1906, No. 139, on verdict for plaintiff in case of H. F. Metcalf v. Emma M. Buck.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Lemon township. Before Ferris, J., specially presiding.
    At the trial it appeared that Dr. E. L. Dieffenderfer, in 1882, became the owner of a tract of land bordering on the shores of Lake Carey, and that he caused this land to be laid out in lots by T. A. Miller, a surveyor. Both plaintiff and defendant claimed under deeds from Dieffenderfer. -The facts relating to the conflicting boundaries are stated in the opinion of the Superior Court.
    L. E. Stearns, a grantee of a lot from Dieffenderfer, was called by the defendant, and the following offer was made:
    Counsel for 'defendant offers to show by the witness upon the stand, and by other witnesses, that while Dr. Dieffenderfer was the owner of the land adjoining the lands designated by witness, that he pointed out to the witness the line to the owners and that some of them erected fences upon the lines so pointed out by him, among them being the line fence between lot No. 1 and lot No. 2, between lot No. 2 and lot No. 3, and between lot No. 4 and lot'No. 5, and to show by the witness that at the time he did so there were stakes and monuments upon the ground corresponding with the location so pointed out by Dr. Dieffenderfer as being the location of the line between the lots then designated.

      This for the purpose of showing that the line between the plaintiff and defendant, as indicated by the fence upon the ground, and between other lots, namely, between lots No. 4 and No. 5, is the true location between those two lots, and propose to show other monuments upon the ground indicating the division line between the lots referred to.
    This is objected to by counsel for the plaintiff:
    1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such declarations, if made, would be within the statute of fraud.
    2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.
    The Court: I will take it as a designation by the grantor of monuments, as proposed to be shown by the witness, fixing upon the ground the lines described in the deed. It seems to me it is admissible for that purpose, and, perhaps, as an admission against interest by the predecessor in title. The objections are overruled and the evidence admitted; to which the defendant excepts and at his request an exception is noted and bill sealed. [1]
    Mrs. L. E. Stearns testified as follows:
    “ Q. Do you recollect of your husband building a fence upon the ground just north of the summer pavilion there? A. Yes, sir. Q. Do you recollect of seeing any stakes along there where that fence was built? A. Yes, sir; where they built the fence. Q. And they built the fence along where the stakes were? A. Yes, sir.”
    Counsel for plaintiff renew the same objections which were made to similar testimony when Mr. Stearns was on the witness stand.
    ■ The objections to Mr. Stearns’ testimony being as follows:
    1. That declarations made by Dr. Dieffenderfer, as to the location of the division line between the lots conveyed, is immaterial, irrelevant and incompetent, and, further, that such, declaration, if made, would be within the statute of fraud.
    2. That any testimony as to stakes on the ground is immaterial, irrelevant and incompetent, unless it be shown they were put there by the surveyor at the time the plot referred to in the deed was made, and for the purpose of locating the division line of such lots.
    The Court: The objection is overruled and the evidence admitted; to which the plaintiff excepts and at his request an exception is noted and bill sealed. [2]
    The court charged in part as follows:
    [I am referring now to what I said a moment ago as to the contemporaneous construction of an instrument by the parties, and you may apply that principle in construing the act of Dr. Dieffenderfer and Mr. Stearns as to the location upon the ground of certain lot lines mentioned in the deed and in the plot of Miller.
    In that connection we also instruct you as matter of law that where the courses and distances in a deed are in conflict with monuments upon the ground, the monuments upon the ground govern. They will control the location of the land. Monuments upon the ground are stakes or stones set for corners, trees marked for corners or for line trees, and natural objects called for as corners or to identify the line; and, in general, whatever is done by the surveyor in placing upon the ground ■the results of his survey, and where there is a conflict between the monuments upon the ground and the courses and distances in the deed, what the surveyor has done upon the ground is supposed to mark the true line and control the courses and distances.
    In this connection you may, in trying to ascertain what monuments there were upon the ground, so far as this tract that was plotted by Mr. Miller is concerned, consider the testimony of Mr. Stearns, of Mrs. Stearns and of Mr. Knuppenburg, as to what was done between Dr. Dieffenderfer and Mr. Stearns and what was done pursuant to the survey as to the putting in of stakes. It is not my intention to attempt to detail all this to you as it was given by the witnesses, but briefly to refer to it.
    You will remember the testimony of Mr. and Mrs. Stearns as to Dr. Dieffenderfer pointing out the line of Mr. Stearns’ lot No. 1, including the triangle, and his testimony that the fence was built upon the line as so pointed out by Dr. Dieffenderfer, and that stakes were put there before the fence was built, and that the fence was built according to the stakes, and extended from the end of the stone wall near the pavilion on the lake shore up to Lake street, giving to Mr. Stearns the entire fifty feet of the triangle and the fifty feet rectangular lot, giving him, in other words, 100 feet, which he claims, and which is 'shown on the Miller map as the distance to be covered by that lot of ground.
    Also you may take into consideration the testimony of the same witnesses as to Dr. Dieffenderfer pointing out to Mr. Stearns the line of lot No. 2, after the purchase by him of lot No. 1, and which he afterwards bought from Dr. Dieffenderfer, adjoining Mrs. Buck’s land. You have the testimony of these witnesses as to the location of these lots by Dr. Dieffenderfer, on the ground, and as to the existence of stakes which were set there and had been there some years.
    You will remember the testimony of Mr. Knuppenburg also as to.the general staking out of that plot of lots. Also his testimony as to the location of the fences which were after-wards built upon the lines which had been staked out, and as to who did the staking out. As I recollect it, he states that Dr. Dieffenderfer and he thinks Mr. Miller, the surveyor, were present, and perhaps some other person, and that the stakes were driven where Dr. Dieffenderfer and Mr. Miller directed them to be driven.
    There is testimony also that witnesses saw stakes driven at the lot lines on the lake shore.
    Now there is other testimony given, not exactly contradicting that, but to the effect that the other surveyors did not see any stakes at all upon the land. I think Mr. Lathrop and Mr. Stone both say they did not see any stakes that bore any evidence of having been stakes placed there by the original surveyor, Mr. Miller. There were some stakes placed along Lake street, as conceded by Mr. Stone, but those were the only stakes which the plaintiff’s surveyors testified they were positive of. Against their testimony is that of Mr. Knuppenburg, Mr. and Mrs. Stearns that stakes were placed there and that the fences were afterwards built upon the line marked by those stakes, and that those fences are still in that same location.] [4]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (4) portion of charge as above, quoting it.

      Ernest K. Little, with him Bradley W. Lems, for appellant.—
    The parol testimony of L. E. Stearns and others was irrelevant: Fuller v. Weaver, 175 Pa. 182; Borough of Birmingham v. Anderson, 40 Pa. 506; Airey v. Kunkle, 7 Pa. Superior Ct. 112.
    Both Stearns and -his wife are incompetent as witnesses: Paschall v. Fels, 207 Pa. 71; Karns v. Tanner, 66 Pa. 297; Arthurs v. King, 84 Pa. 525; Chase v. Irwin, 87 Pa. 286; Sutherland v. Ross, 140 Pa. 379; Reiter v. McJunkin, 8 Pa. Superior Ct. 164.

      James Wilson Piatt, for appellee. —
    In the event of a discrepa ancy between the courses and distances called for in the deed and the monuments on the ground, the monuments will control, even though no monuments are called for in the deed: Blasdell v. Bissell, 6 Pa. 258; Ogden v. Porterfield, 34 Pa. 191; Willis v. Swartz, 28 Pa. 413; Dawson v. Mills, 32 Pa. 302; Burkholder v. Markley, 98 Pa. 37; Craft v. Yeaney, 66 Pa. 210; Morse v. Rollins, 121 Pa. 537; Pringle v. Rogers, 193 Pa. 94; Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108; Rook v. Greenewald, 22 Pa. Superior Ct. 641; Marcy v. Brock, 207 Pa. 95.
    L. E. Stearns and Mrs. L. E. Stearns were competent witnesses: Dicks v. McGraw, 151 Pa. 98; Bank v. Henning, 171 Pa. 399; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Smith v. Hay, 152 Pa. 377; Spotts’s Est., 156 Pa. 281; Horne v. Petty, 192 Pa. 32; Wolf v. Carothers, 3 S. & R. 240.

      April 20, 1908:
   Opinion by

Henderson, J.,

The plaintiff’s case depends upon the true location of the block of lots plotted by T. A. Miller, a surveyor for Dr. Dieffenderfer, who owned the whole tract. He received a deed from Diéffenderfer October 14, 1889, for a lot having a width of fifty feet and a depth of about 166 feet, referred to in the deed as “lot No. 5, on plot or map made by Thomas A. Miller for the-grantor hereof.” A map proved by a witness to have been made by Thomas A. Miller, showing a division of the land into lots, was offered in evidence and according to it the plaintiff’s lot had a course for its north line of south 76° east, and for its south line a course north 76° west. The lot as thus described was shown to cover that portion of the lot occupied by the defendant described in the writ. The plaintiff was, therefore, called upon to establish the identity of the Miller map which he undertook to do by the testimony of witnesses. There was evidence that Miller had made two plots of this land and the one offered in evidence by the plaintiff appears by the indorsement of Miller made thereon to be an “amended 'plot of a survey” of the lots. It further appears that this plot does not accurately fit the whole piece, there being a call for a triangular piece at the south end having a frontage of fifty feet on the lake which is larger than the actual size by about twenty-three feet. The defendant received a deed from Dieffenderfer dated April 17, 1889, for two lots described as Nos. 3 and 4 oii the plot or map made by Thomas A. Miller for the •grantor. The south line of this grant is described as a line extending from the northeast corner of lot No. 2 on the plot or map made by Thomas A. Miller in a westerly direction along the north line of lot No. 2 to Lake street. The northern line is described as extending “in an easterly direction along the ■north line of lot No. 4,166 feet to a corner at low water mark on Lake Carey.” This title, as will be observed, is older than the plaintiff’s and the evidence shows that the defendant acquired title before the lots south of her. were conveyed. There was not only the evidence that there had been two plots made of the land for Dr. Dieffenderfer, but there was the direct testimony of L. E. Stearns, a. witness for the defendant,- that he was acquainted with the map used by the grantor in plot-, ting the land,: that he was present with Dr. .Dieffenderfer pn, the. ground when the lines of the lots were pointed out to. him by'Dieffenderfer and that he-knew the-lines, as claimed by the-defendant, were perfectly correct. Under the evidence in the. case the court very properly submitted to the jury the question, whether the plot exhibited by the .plaintiff was the plot, referred, to in the deed to the defendant. As the. defendant was prior in title she could only be affected by the plot on which the plaintiff relied when it was shown that that was the one by which her land was described.' According to the evidence. .of surveyors the plaintiff’s plot .was inaccurate as to the triangular portion of land and that may have created doubt as to the correctness of, the other parts of it. The defendant’s contention was that, she bought according to monuments on the ground established by the grantor, and pointed out by him to witnesses as the boundaries of the respective lots. As shown' by this evidence the grantor went onto the ground and caused oak stakes to be set indicating the corners and the side, lines-of the. lots sold to the defendant and to the adjoining owners, in accordance, as he claimed, with the Miller survey under which he was acting and these are the lines to which the respective owners have been holding. The plaintiff, the defendant. and other lot owners erected cottages in accordance with the.- location of lines as claimed by the defendant. The effect of a location as-claimed by the plaintiff would be to leave a part of the plaintiff’s cottage on the adjoining lot, to. cut the defendant’s cottage in two and to take from the owner of the lot on the north a part of his cottage. Fences were erected by the owners in accordance with the lines claimed by the defendant, the' plaintiff being one of them. There is abundant evidence of the existence of the stake lines along which the fences were located and that the stakes were placed by the grantor' to indicate the lot lines shown by the Miller survey -as he understood it. .That it was competent for the defendant to prove the acts of the grantor designating the location of the lots, which she. bought is sustained by many cases. If the. evidence of the defendant is credited the monuments were on the ground, established by the grantor, clearly showing the divisions made by him and according to which he was selling. These monuments control where there is a discrepancy between them and the courses and distances called for in the deed: Blasdell v. Bissell, 6 Pa. 258; Lodge v. Barnett, 46 Pa. 477; Morse v. Rollins, 121 Pa. 537; Rook v. Greenewald, 22 Pa. Superior Ct. 641. The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence when the marks or monuments are gone: Marcy v. Brock, 207 Pa. 95. The evidence of L. E. Stearns and his wife definitely locates the defendant’s lots by a fence along the line pointed out by Dr. Dieffenderfer, and this evidence, if credited, goes a long way to sustain the defendant’s position.

The objection to the competency of L. E. Stearns and his wife as witnesses is not well taken. They had no legal interest in the result of the suit. The interest which disqualifies is a vested interest in the event of a suit, but not in the question' involved. It must be such an interest as the judgment in the case would operate upon. The witnesses referred to neither acquire nor lose a right nor incur any responsibility as a result of this action. Their interest in the question might affect their credibility, but not their capacity: Dickson v. McGraw Bros., 151 Pa. 98; Bank v. Henning, 171 Pa. 399. We do not find any reversible errors in the admission of evidence, in the answers to the points or in the 'charge of the court.

The judgment is affirmed.


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

      Waters — Flooding of land — Canal—Culverts—Evidence—Negligence.
    Where a lessee of the bed of an abandoned canal, constructs drains in such a way as to throw on the land of an adjoining owner, at times of heavy rain, a much greater volume of water than was usual at such times, the owner may recover from such lessees damages for the injuries to the land.

      April 20, 1908:
    Argued March 3, 1908.
    Appeal, No. 23, March T., 1908, by-
    defendant, from judgment of C. P. Luzerne Co., Dec. T., 1903, No. 390, on verdict for plaintiff in case of John Masterson v. Lehigh Valley Railroad' Company.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Lynch, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for .$1,250. Defendant appealed.

      Error assigned among others was in.submitting the case to the jury.

      J. B. Woodward, of Wheaton, Darling & Woodward, with him H. W. Palmer, for appellant.

      James L. Lenahan, with him John F. O’Neill, for appellee.
   Opinion by

Henderson, J.,

The plaintiff has shown by a strong preponderance of evidence that his property is subjected to the injurious effect of a volume of water which it had not sustained before the Hendler and Fagan culverts were constructed by the Penna. & New York Canal & R. R. Co., in the bed-of the abandoned canal. These culverts were designed to carry off water flowing into the bed of the canal to enable the company to fill up the canal ditch. As long as the intakes of the two culverts were disconnected there does not seem to have been any flooding of the plaintiff’s property, but after the ditch was dug connecting the two intakes it is shown by the testimony offered by the plaintiff that a very large additional body of water was diverted onto his property at times of heavy rain. This was brought about by closing the Fagan drain wholly or partially and by neglecting to keep the Hendler drain free from obstructions to the flow of water. The culverts were constructed presumably for the use of the canal company and when it transferred its interest in the property to the defendant by a lease for ninety-nine years the drains passed into the control of the defendant company, its tracks were built in part over the canal bed and the culverts were apparently necessary to the maintenance of the superstructure. The conditions complained of arose after the defendant took possession of the property, and the negligent maintenance of the culverts is chargeable to the defendant if such negligence existed. When the Fagan drain was built it discharged into the canal at Northampton street. The Pennsylvania Railroad Company filled the canal and extended the Fagan drain to or towards the river. This extension had less capacity than the Fagan drain by reason of which trouble arose at the intake of the drain. To relieve the pressure there the defendant connected the Fagan with the Hendler drain. If in so doing it overloaded the latter drain or neglected to keep it free from rubbish or sediment whereby the water which ought to have been carried through the drains was forced onto the plaintiff’s land the injury was the direct result of the defendant’s act, and is in no sense chargeable to its lessor or to the city which executed the contract permitting the lessor to construct the Hendler and Fagan drains as they originally were. An attempt was made by the defendant to show that the natural drainage prior to the construction of the canal in 1832 was onto the low ground where the plaintiff’s building is located, but the evidence in support of this position is not clear, the testimony being in a general way that the natural drainage in the vicinity was in that direction. This was contradicted, however, by testimony offered by the plaintiff, and the evidence is very persuasive that such a volume of water as is shown to have been thrown out of the drain would not have been discharged on the plaintiff’s premises by the natural flow of the water. The defendant’s engineer admitted that there was some change in the natural drainage on the east side of the track made necessary by the improvement of the surface, and it seems reasonably clear that the accumulated water gathered at the intakes of the Fagan and Hendler drains and thrown out with great force, by reason of the lack of capacity of the-Hendler drain or its obstructed condition, is not such a flow of water as passed over the soil before the canal was built. The case presents a clear question of fact which was intelligently and fairly submitted to the jury by the learned trial judge, and the plaintiff’s evidence, to which the jury gave credit, supports the verdict.

The judgment is affirmed.


author: Per Curiam,

text:
    Griesmer v. Hill, Appellant.

      Replevin — Practice, C. P. — Affidavit of defense — Judgment by default— Act of April 19,1901, P. L. 88 — Return day.

    The provision of the replevin Act of April 19, 1901, sec. 4, P. L. 88, to the effect that the defendant shall within fifteen days after the filing of the declaration, file an affidavit of defense, is mandatory, and if an affidavit of defense is not filed, judgment may be entered against the defendant for the default after the expiration of the fifteen days, and this may be done although no return day has intervened.
    Argued March 4, 1908.
    Appeal, No. 30, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 321, discharging rule to strike off judgment in case of Jacob Griesmer v. James Lewis Hill and James C. Hill.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Rule to strike off judgment.
    Ferris, J., filed the following opinion:
    On July 6, 1906, the plaintiff sued out a writ of replevin, returnable on the second Monday of September, 1906, for certain chattels alleged to be in the possession of the defendants. On the same day he filed his declaration verified by his affidavit. On the next day, July 7, the writ was served on the defendants, as was also a copy of the plaintiff’s declaration. On July 24, 1906 (more than fifteen days after said service, but before the return day of the writ), judgment was entered against the defendant on praecipe of the plaintiff’s attorney for want of an affidavit of defense.
    It is now sought to have this judgment stricken off as having been entered prematurely and without authority of law.
    The replevin Act of April 19, 1901, P. L. 88, provides as follows (sec. 4): “The plaintiff in such action shall file a declaration, verified by oath, etc. ...” “The defendant or party intervening may enter a rule upon plaintiff to file such declaration within fifteen days, and the plaintiff failing to do so a judgment of non pros, shall be entered, etc. . . . (sec. 5).” “The defendant or party intervening shall, within fifteen days after the filing of such declaration, file an affidavit of defense thereto, etc., . . . and in the event of his failure so to do, upon proof that a copy of said declaration was served upon him or his attorney, judgment may be entered for the plaintiff and against the defendant or party intervening,” etc.
    The action of replevin is an action ex delicto. Prior to the passage of the act of 1901 no affidavit of defense was required to be filed in such a proceeding. It is quite as clearly within the constitutional power-of the legislature to require it and regulate the procedure concerning it in the action of replevin as in that of assumpsit. The language of the statute is plain. “The defendant or party intervening shall, within fifteen days after the filing of such declaration, file an affidavit of defense thereto.” This provision is mandatory, and not directory merely. It means just what it says. The word “shall” means “shall,” and the phrase “within fifteen days after the filing of such declaration” means precisely what those words import, and does not mean that the defendant shall have the right to file his affidavit at any time after the expiration of the fifteen days up to the return day of the replevin writ. “Within fifteen days after the filing of the declaration the defendant must file an affidavit of defense,” etc. Per Henderson, J., in Drumr goole v. Lyle, 30 Pa. Superior Ct. 463 (467). He not only may but “ must.” If he fail to do this he is in default and,judgment may be entered against him. But the plaintiff on his part must not sleep upon his rights. He must enter judgment while the default continues, if at all. If the affidavit be filed after the period limited by statute, judgment cannot afterwards be entered for a previous default which no longer exists: Borden-town Banking Co. v. Restein, 214 Pa. 30, and cases there cited.
    If, therefore, as argued by the defendants’ counsel no judgment for want of an affidavit could be taken until after the return day of the writ (which might be months after the expiration of the fifteen days) a defendant might, with impunity, ignore the mandate of the statute and delay filing his affidavit until the return day of the replevin writ. To hold that this could be done would be, in effect, to read into the act something which is not there, viz.: a proviso that whenever the fifteenth day period shall expire before the return day of the writ, the time for filing the affidavit of defense shall be extended to that day. This, we think, the courts have no right to do. It would be legislation, not construction. Neither can we say that because in the procedure act of 1887 the legislature expressly extended the period for filing the affidavit to the return day in the action of assumpsit, it must, therefore, be presumed that they intended, but inadvertently omitted, to do so in the replevin act of 1901. On the contrary, the very section of the act under consideration (sec. 5) shows that the subject of the return day of the writ was in the legislative mind. Moreover, it would seem that the return day was by no means regarded as a matter of vital importance, since failure of the defendant to appear on or before that day is not made cause for a judgment by default, but merely entitles the plaintiff to enter a common appearance for him and proceed in the cause as in other cases. It would seem as though the legislature intended rather to emphasize the importance of certain other points of time, and certain other required action by the defendant, than the formal entry of appearance at or before the return day of the writ. These other points of time are fixed as those at which the real appearance of the defendant to the action is to be made. If he would prevent a delivery of the goods to the plaintiff he must (appear and) file a counter bond within seventy-two hours after such goods have been replevied. If he would prevent judgment by default he must (appear and) file his affidavit of '.defense within fifteen days after the plaintiff has filed his-declaration and served a copy of it. The evident purpose, of the lawmakers was to speed the cause. ■ • .. .
    April 20, 1908:
    : Nor is the .entry of judgment before the return day without precedent. It may be regarded as well settled, for example, that under the act of 1836, a rule of reference may be entered and pursued to award and judgment thereon before the return ,day of the writ: Fehr v. Reich, 36 Pa. 472. . . :
    In the case at bar, the plaintiff seems to have proceeded in . strict accordance with the provisions of the act of 1901,. and, there appearing no irregularity on the face of the record, the •.■rule to strike off is, therefore, discharged.

      Error assigned was the order of the court.

      James L. Lenahan, with him Andrew Howrigan, for appellant.

      R. Laura. Cannon, for appellee.
   Per Curiam,

The question raised by this appeal was well worthy of consideration. It has received such consideration in the opinion filed by the learned judge below, and while there is much plausibility in the argument presented by appellant’s counsel in support of their position, we are nevertheless led to conclude that the court below properly construed the statute as entitling the plaintiff, to a judgment at the time it was entered. The reasons for this conclusion are fully and clearly set f.orth in the .opinion of the learned judge, in which we concur.

The judgment is affirmed.


author: Beaver, J.,

text:
    Allen v. Williamsport National Bank, Appellant.

      Promissory notes — Collateral note — “Necessary expenses and charges.”

    Where a collateral note provides for the sale of the collateral on default, and the application of the proceeds “to the payment of this note, and all necessary expenses and charges,” the payee of the note is not entitled to retain from the proceeds, the expénses of printing an answer and employing counsel in an unsuccessful suit in equity to restrain the sale of the collateral.
    Argued Feb. 26, 1908.
    Appeal, No. 4, March T., 1908, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1903, No. 251, on verdict for plaintiff on trial by court without a jury •in case of Robert F. Allen, Administrator d. b. n. c. t. a., and Trustee of the Estate of Levi Houston, deceased, v. Williams-,'port National Bank.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed:
    ' Assumpsit to recover the expenses of an equity suit. Before Ormerod, P. J., specially presiding.
    The facts arestated in the opinion of the Superior Court.

      Error assigned was the judgment of the court stated in the opinion of thé Supreme Court.

      John J. Reardon', with him William Russell Deemer, Seth T. McCormick and J. A. Beeber, for appellant. —
    The expenses of the equity suit were necessary: Blake v. Paul, 29 Legal Int. 366; Knox v. Moatz, 15 Pa. 74; Ballingall v. Hunsberger, 16 Pa. Superior Ct. 117.

      W. D. Crocker, with him John G. Reading, for appellee. —
    It is well established in Pennsylvania that counsel fees are not collectible or taxable as part of the costs in any legal proceeding in the absence' óf express statutory authority, or an express stipulation for the payment thereof: Wadlinger on Costs, secs. :2, 119, 167; Winton’s App., 87 Pa. 77; Commonwealth v. Meyer, 170 Pa. 380; Tarr’s Est., 10 Pa. Superior Ct. 554; DeCoursey v. Johnston, 134 Pa. 328; Grubb’s App., 82 Pa. 23.
    April 20, 1908:
   Opinion by

Beaver, J.,

January 11 and March 19, 1901, respectively, Celia H. Armstrong, executrix of the estate of Levi Houston, deceased, and “The Levi Houston Company,” by D. W. Shollenberger, Secretary and Treasurer, executed two several promissory notes, for $2,500 and $5,000, respectively, payable four months after their dates, which notes were discounted by the appellant. At the same time there were deposited with the appellant, as collateral security for said notes, bonds of the American Wood Working Machinery Co.

The notes contained the following provision: “We authorize the holder of this note, upon non-performance of these terms at maturity, to sell either at public or private sale, without demanding payment of this note or the debt due thereon, and without further notice, and apply the proceeds, or as much thereof as may be necessary, to the payment of this note and all necessary expenses and charges, holding us responsible for any deficiency.”

April 27, 1901, Celia H. Armstrong was discharged as executrix of the estate of Levi Houston, deceased, and Robert F. Allen, the appellee, was duly appointed administrator d. b. n. c. t. a. and trustee of said estate, by the orphans’ court of Lycoming county.

Default being made in the payment of the notes and notice having been given by the appellant to the appellee and other parties in interest, of its intention to make sale of the collateral bonds, under the terms of the notes above mentioned, the appellee filed a bill in equity, seeking to restrain the appellant from further proceedings in the matter of the sale of the collateral “not on the ground of any irregularity of appellant’s proceeding, but on the ground of the non-liability of the maker of the note.”

After hearing on its merits, the appellee’s bill was dismissed at the costs of the plaintiff, and thereupon appellant continued its proceeding to sell the collateral, and did sell the same, and, in accounting to the appellee for the proceeds thereof, as necessary expenses, charged two items, one of $9.50 for printing answer to plaintiff’s bill in equity, and $450 paid out for counsel fees, in defending the said proceedings in equity.

The action here is to recover from the defendant the said two items retained by it as necessary expenses and charges, or so much thereof as remained in its hands, after paying the amount of the said two several notes.

The only question here is whether or not the expenses connected with the defense of the bill in equity filed by the plaintiff against the defendant, in which the authority of Celia H. Armstrong as executrix to make the said notes was denied, were properly chargeable, as necessary expenses and charges authorized in the provisions thereof-relating to the sale of the collaterals therefor.

The case was tried, without a jury, before the president judge of the 48th District specially presiding. •

The court, having found the facts as above epitomized, found, as its fourth conclusion of law, “That the plaintiff is entitled to recover the said sum of $323.17, being for the sum of $9.50 retained for printing equity answer; and $313.67 to apply upon counsel fees, together with interest thereon from September 10, 1902.” This conclusion is supported by an elaborate opinion, in which as to all its essentials we concur.

The bill in equity was in no sense a part of the necessary expenses and charges of making sale of the collateral securities deposited with the said notes. Whatever may have been the causes which led to the removal of the executrix of the estate of Levi Houston, who was one of the makers of the notes, it is, nevertheless, true that the plaintiff was appointed as her successor and felt it incumbent upon him to question the right of the executrix to execute and negotiate the notes. This was a proceeding entirely distinct from the sale of the collateral. It is true that it called a halt upon the proceedings to sell, but was in no sense a part of them.

The court below cites a number of authorities, more or less directly in point, but that which in our mind fully covers the present controversy is DeCoursey v. Johnston, 134 Pa. 328. In- that case a husband and wife joined in the assignment of a policy upon the life of the husband for the benefit of the wife, as collateral security for the husband’s note, which provided for the public or private sale of the policy and the application of the proceeds to the payment of this note and all necessary expenses and charges, and the assignee transferred the policy to another and died. In a feigned issue between the second assignee and the widow of the assured to determine the ownership of the proceeds, it was held that the expenses and charges contemplated were those incident to the sale of the collateral and would not include a counsel fee for the trial of the feigned issue. Substitute the bill in equity filed by the plaintiff here for the feigned issue tried in that case, and we have practically similar conditions. The bill in equity questioned the validity of the notes executed by the executrix. The feigned issue was to try the validity of the assignment of the policy of insurance to the holder of the note. If there is any distinction between the case cited and the one which we are considering, the latter is stronger against the appellant than the former. There the feigned issue affected the assignment of the collateral. Here it affects the validity of the note itself and had nothing whatever to do with the collateral.

Ballingall v. Hunsberger, 16 Pa. Superior Ct. 117, has no application to the present case. That was a case in which the holder assumed to protect the collaterals held by him by presenting them, through counsel, before an auditor, in order to secure the pro rata dividend to which they were entitled. The Services thus rendered were directly in connection with the preservation of the collaterals and inured to the benefit of the owner, and, as said by our Brother Orlady in that case, “It was the bounden duty of the defendant to protect the collateral deposited with him, not only to bring it before the auditor, but to secure for it the dividend to which it was entitled.”

There was no allegation here that, in the bill in equity, the court awarded counsel fees to the defendant, and, in the absence of an express decree awarding the same, we are of the opinion that the defendant had no right to retain the amount of counsel fees and other costs in the bill in equity from the proceeds of the collateral securities held and sold by it, under the sale clause providing for "necessary expenses and charges.”

Judgment affirmed.