author: Endlich, P. J., Pee Cueiam,

text:
    Reading City v. Miller, Appellant.

      Municipalities—License fee—Milk inspection—Cities of the second class.

    1. A city of the second class has the power to enact an ordinance entitled, “An Ordinance to secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meat and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same,” and directing the appointment of a “milk and meat inspector,” providing for the licensing of vendors upon payment of $10.00 per year, and imposing penalties for violation of the ordinance ranging from $10.00 to $25.00 for first offenses, and from $50.00 to $100 for repeated offenses.
    2. Such an ordinance does not violate the provision of the Act of May 23, 1889, P. L. 277, which forbids an ordinance to be passed “containing more than one subject, which shall be clearly expressed in its title.”

      Argued Nov. 17, 1910.
    Appeal, No. 215, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., March Term, 1910, No. 4, for plaintiff on certiorari to a justice of the peace in case of City of Reading v. Irvin Miller.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Certiorari to a judgment of a justice of the peace for $25.00 against defendant.
   Endlich, P. J.,

filed the following opinion:

An ordinance of the city of Reading approved February 4, 1909, and entitled “An Ordinance to secure the wholesomeness and purity of milk, meat and meat products, by authorizing the inspection thereof, by providing for the licensing of persons dealing therein, by prohibiting the sale or offering for sale of milk, meat and meat food products which are impure, unwholesome or adulterated, or otherwise unfit for human consumption, by providing penalties for the enforcement of the same,” directs the appointment and qualification of a “Milk and Meat Inspector,”—defines his duties, including the visitation of places in the city and within twenty miles of its limits of persons licensed to sell milk or meat therein, its analysis, etc.,—provides for the annual licensing of such vendors after due inspection of their premises and upon payment to the city of $10.00 and presentation of the receipt therefor to the inspector,—prohibits the sale of milk or meat within the city by persons not so licensed, whether from a wagon or from a store or stand,—and imposes penalties for violation of its mandates or prohibitions ranging from not less than $10.00 not more than $25.00 for first, to not less than $50.00 nor more than $100 for repeated offenses. A milk and meat inspector was duly appointed and qualified in accordance with the ordinance. Without applying to him for or securing the license provided for, or paying the prescribed fee, the defendant engaged in the business of selling milk at a store in the city of Reading. In a suit brought against him in pursuance of the ordinance before an alderman, he was duly found to have violated the same, and judgment was entered against him for a penalty of $25.00 and costs. Thereupon he took out this writ of certiorari. The exceptions filed to the record returned by the alderman are (1) that the ordinance of February 4, 1909, is void as containing more than one subject; (2) that the city has no authority to enforce its provisions in relation to milk; (3) that the inspector appointed under it has no legal authority thereunder in relation to its milk provisions; (4) that the ordinance in this respect is an invasion of the powers of the board of health of the city as constituted by the Act of April 22, 1873, P. L. 831; (5) and (6) that it does not appear that defendant’s premises had been inspected before institution of the suit, and that therefore the same was premature.

The last-mentioned exceptions may be disposed of with the remark that there is nothing in the ordinance which calls for an inspection as a condition precedent to the duty to apply for or obtain a license to sell milk, or to the maintenance of proceedings for selling without such: a circumstance apparently recognized by defendant’s counsel in not adverting to these grounds of objection in either his oral argument or his brief in support of the certiorari.

1. The objection of multiplicity of subjects cannot be sustained. Of course it might have been practicable, though obviously inconvenient, to deal with the matter of inspection and sale of milk separately from that of the inspection, etc., of meat, by separate ordinances. Yet upon any save the narrowest view both are but divisions of the same subject,—the inspection, etc., of animal food products. Their treatment together, as parts of a single subject-matter, in an ordinance creating an office intended to deal with both for the same purpose and by substantially the same methods and with the same result, is indicated by common sense and expediency, and is even technically unexceptionable. So to hold is not to go as far as the decision in Com. v. Rothermel, 27 Pa. Superior Ct. 648, goes in declaring a statute whose subject was “game” and “game fish” not obnoxious to the constitutional prohibition against the inclusion of more than one subject. It is suggested that the statutes of the commonwealth dealing with the adulteration, etc., of milk have confined themselves strictly to that; and that the Act of May 25, 1907, P. L. 234, relating to the inspection, etc., of meat deals with meat and meat products and nothing else. But whilst a legislative treatment of the two jointly, as subdivisions of the same subject, would be entitled to considerable weight in requiring them to be so regarded, the circumstance that, for certain purposes coextensive with the entire state, each division was deemed of sufficient importance and magnitude to be dealt with separately can be of no controlling significance as affecting their treatment jointly in local municipal legislation.

2. The fact that the legislature has granted to cities the power of providing for the inspection of milk sold within its limits cannot be disputed. It is expressly conferred upon cities and boroughs generally by the Act of April 20, 1869, P. L. 81, and is clearly comprehended in the general power given to cities of the class to which Reading belongs by the Act of May 23, 1889, P. L. 277, art. V, sec. 3, cl. XXVI, “to make regulations to secure the general health of the inhabitants and to remove and prevent nuisances,”—an important branch of the police power as ordinarily understood. The argument, however, is that the matter of the sale of milk has been covered by certain statutes applicable to the entire state or to cities of the third class, and that therefore there is no longer any room for local legislation such as the ordinance here in question.

The Act of May 25, 1878, P. L. 144, forbade the sale of impure, adulterated or unwholesome milk throughout the state, and in sec. 3 directed the marking of wagons from which milk is sold in cities, etc. Then came the Act of July 7, 1885, P. L. 260, applicable to cities of the second and third classes (according to the classification of cities into five classes by the Act of April 11, 1876, P. L. 20, and hence to the city of Reading: see Com. v. Hough, 1 Pa. Dist. Rep. 51, 52). It prohibits the sale, etc., of adulterated milk, or milk to which water or any foreign material has been added or which is produced from cows sick or diseased or fed on putrefying substances,—of skimmed milk unless offered as such,—and of milk below a designated and extremely exacting, not to say impracticable standard of richness, and enacts double and conflicting provisions for the imposition of penalties for its violation, which, as Judge Arnold in the case last cited, at p. 54, says, are “confusing and make it difficult .... to give the act a sensible application.” It also invests inspectors of milk (apparently officers appointed under the authority given to municipalities by the act of 1869) with certain powers and lays down rather extraordinary rules concerning the procedure, evidence and costs in penal proceedings for adulteration, etc., of which the title of the statute gives no notice whatever. For this reason it would seem that this enactment must be regarded as offending against sec. 3, art. Ill, of the constitution. It may be also that, in' view of the decision in Ayars’s App., 122 Pa. 266, it ought to be held void under sec. 7 of the same article as prohibited special legislation, because based upon an unlawful classification of cities and by reference to the same applying to but part of what constitutes the third class under the lawful classification made in the Act of May 23, 1874, P. L. 231, and not intended to reach the whole of that class,—the act of 1885 being perhaps distinguishable from the Act of May 13, 1887, P. L. 108, passed upon in Com. v. Smoulter, 126 Pa. 137; Com. v. Miller, 126 Pa. 157; Liem’s App., 9 Pa. Superior Ct. 569, in that the letter meant to exact the licensing and to regulate the sale of liquors in all cities and throughout the state. That intention being manifest and express, the question there was whether, the classes of cities below the third being dropped and merged in the third, they were to be treated as belonging thereto for the purposes of the statute, and was necessarily decided in the affirmative. Not the same question is presented where the statute, proceeding upon a certain classification of cities, restricts its operation to those which, under that classification, belong to the second and third classes, excluding altogether from its operation those below. Here the legislature can hardly be said to have intended that, upon a change of classification by. legislation or judicial ruling eliminating the classes below> the third, the law should apply to all cities which, in consequence of such change, would then belong to the third class. So to administer the statute would be, not to apply it to cities it was intended to cover, giving effect to a mere modification of classification, but to extend it to cities it was distinctly not intended to affect at all,—in short, to remake the law. Next we have the general Act of June 26, 1895, P. L. 320, forbidding and punishing the adulteration of milk by the addition of so-called preservatives,- and then that of June 10, 1897, P. L. 142 (whose first section was amended by the Act of April 19, 1901, P. L. 85), prohibiting the adulteration of milk by the addition of preservatives or coloring matter, and charging the agent of the department of agriculture (the dairy and food commissioner) with its enforcement,—and finally the Act of March 24, 1909, P. L. 62, forbidding throughout the state the sale, etc., of milk that has been watered or has had any part of the butter fat removed therefrom, except when' offered or sold as skimmed milk,—providing a penalty for its violation,—making it the duty of the dairy and food commissioner to see to its enforcement,—directing the penalties collected by him to be paid into the state treasury,—repealing all inconsistent legislation,-—-but explicitly excepting and continuing in force the acts of 1897 and 1901,—thus, upon the principle expressio unius est exclusio alterius, indicating a purpose to abrogate the enactments of 1878 and 1885 and others. Besides the enactments above mentioned there are the Act of June 10, 1881, P. L. 116, against the sale, etc., of impure,- etc., milk to butter or cheese factories, and the Acts of June 26, 1895, P. L. 350, May 2, 1899, P. L. 164, and May 16, 1901, P. L. 221, relating to the sale, the licensing of vendors, etc., of milk in cities of the second class.

Looking at the legislation above detailed applicable in cities of the third class, it seems very clear that none of it presently in force can be regarded as designed or able to destroy the power given to the city of regulating the sale of milk within its limits by ordaining an inspection of its quality and sources. It will be observed that the statutes referred to, in so far as they are in force and applicable, have reference simply to the adulteration of milk by the addition of foreign substances or the impairment of its quality by the withdrawal of constituents naturally part of it. The matter of its wholesomeness or unwholesomeness depending upon the conditions, from a sanitary standpoint, under which the animals yielding it are kept, or upon the food on which they are fed, or upon their health, is not touched upon except (with respect to the last mentioned two particulars) in the act of 1885. As has been seen that statute is to be eliminated from the list. Even including it and the whole of the legislation detailed as in force, it is evident that its design is to lay down certain' general rules and provide for their enforcement by the officers of the state. There is ho necessary incongruity between such legislation and the delegation to municipalities of the power to supplement those rules and regulate the traffic in milk within their boundaries by ordinances of their own meeting their peculiar local needs and contravening no policy or mandate found in the general law. At all events there can be no conflict between the latter and the provision for municipal inspection and regulation in so far as these refer to matters not covered by the general law. That concession is enough to sustain the ordinance of February 4, 1909, in establishing a milk inspection by the city. That the power to establish such inspection necessarily implies the power of granting or withholding, on the basis thereof, a license to sell within the municipality, to forbid' such selling without having obtained a license therefor as the evidence of inspection made and passed, and to impose a penalty for selling without license, is too plain for discussion; for without the latter the grant of the former power would be practically nugatory: Warner v. Poor Directors, 38 Pa. Superior Ct. 437. On the other hand, the power to establish an inspection and exact the obtaining of a license to sell being admitted, the right to charge a reasonable sum for the-same follows as involved in it. The question presented for decision in this case goes no further than that. It is not one of a sale of milk adulterated or defective under the provisions of the ordinance upon that subject. It is one of a person engaging in the sale of milk without having obtained a license to do so as required by the ordinance.It is that requirement (including of course the power of establishing an inspection of milk), with the right of the city to exact the appointed penalty for its violation, that is here in dispute. Upon that point, the only possible conclusion, under the law, would seem to be in favor of the city. In view of the nature of the inspection ordained, extending to an antecedent and continuing examination of the premises where the milk is kept for sale, the manner in which it is handled, the places where the cows producing it are kept, their treatment and food, and to an analysis from time to time of the milk itself (all of which involves the maintenance by the city, at considerable cost, of a force and laboratory adequate for these purposes) it cannot be said that the charge made for the license to sell is an unreasonable one. Nor is there any allegation to that effect made upon the record as a ground for invalidating the alderman’s judgment.

It may be noted in this connection that there is no similarity between this case and that of Reading v. Bit-ting, 167 Pa. 21. There the city, under its power to collect a license tax upon drays, hacks, carriages, omnibuses, carts, wagons, etc., used in the city for hire or pay, Act of May 23,1889, P. L. 277, art. V, sec. 3, cl. IV, undertook to collect the sum of $5.00 from milkmen for every wagon used by them for the delivery of milk to customers. This was. held unwarranted by the clause referred to. The distinction between the character of that exaction as a mere tax and that involved in this case is indicated in the statement of the decision that the former "does not profess to be an exercise of the police power for the regulation of the trade in milk.” The latter does profess to be and emphatically is just that, and hence its lawfulness depends on wholly different principles and powers.

Error assigned was the judgment of the court.

W. B. Bechtel, for appellant.

3. If what has been said in the discussion of the preceding objection is correct the contention that the milk and meat inspector has no authority under the provisions of the ordinance of February 4, 1909, relative to milk falls with it.

4. There is in the ordinance in question no attempt either to delegate to the board of health of the city of Reading the enforcement thereof, or to direct the same to make rules and regulations under it. Whatever authority the board of health may have concerning the matter of the sale of milk within the city under sec. 5 of the act of 1873, it is adequately recognized in the ordinance enjoining the observance of its rules and regulations upon the milk and meat inspector. If that section was intended or can be deemed effective to confer upon the board such powers as the city by the ordinance is assuming to exercise, that circumstance can certainly not be regarded as.destroying the right of the city under the acts of 1869 and 1889 to legislate upon a subject manifestly within the purview of those statutes, concerning which the board does not appear to have exercised the powers given to it.

It follows from what has been said that the exceptions filed afford no ground for reversing the judgment of the alderman, and therefore the writ of certiorari is dismissed and the proceedings are affirmed.

Henry P. Keiser, city solicitor, for appellee.

December 12, 1910:

Pee Cueiam,

Even if it be conceded that the Act of July 7, 1885, P. L. 260, is not wholly unconstitutional, the learned president judge of the common pleas has clearly and satisfactorily shown that the ordinance of February 4, 1909, so far as its provisions are involved in the present case, can be sustained. We, therefore, may withhold an expression of decided opinion upon the constitutionality of that act. With this suggestion nothing further need be added to the opinion of the learned judge in support of the judgment.

The judgment is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth v. Byers, Appellant.

      Criminal law—Evidence—Circumstantial evidence—Presumption of innocence—Question for court—Incendiarism.

    1. When a crime charged is sought to be sustained wholly by cir- . cumstantial evidence, the hypothesis of guilt or delinquency should
    flow naturally from the facts and circumstances proved, and be consistent with them all. The evidence of facts and circumstances must be such as to exclude to a moral certainty, every hypothesis but that of guilt of the offense imputed, or in other words the facts and circumstances must not only all be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.
    2. It is the right and duty of the trial judge, after the evidence of the commonwealth has been fully produced, to determine as matter of law, whether the proof has been sufficient in volume and quality to overcome the presumption of innocence, and thus put the accused to a defense. Where the proof fails to measure up to this standard there is nothing to support a conviction and the prisoner is entitled to be discharged.
    3. The conviction of an elderly woman on an indictment for burning a barn will be set aside by the appellate court, where there is no sufficient evidence of motive, and the circumstantial evidence produced is not inconsistent with the prisoner’s innocence.

      Argued Oct. 5, 1910.
    Appeal, No. 55, Oct. T., 1910, by defendant, from judgment of 0. & T. Bucks Co., Nov. T., 1909, No. 28, on verdict of guilty in case of Commonwealth v. Maggie Byers.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for arson and for burning a barn. Before Stout, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $50.00 and to undergo an imprisonment in the penitentiary for not less than two years and six months, and not more than ten years.

      Errors assigned were various rulings on evidence and instructions.

      Harman Yerkes, of Yerkes, Boss & Boss, and John C. Swarthy, of Swarthy & Bunting, for appellant.

      Wm. C. Byan, district attorney, for appellee.
    December 12, 1910:
   Opinion by

Head, J.,

There was no direct evidence in this case either to prove the corpus delicti or to establish any connection of the defendant with the assumed crime. The learned trial judge correctly stated thus the rule by which the probative value of circumstantial evidence is to be measured: “When a crime charged is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilt or delinquency should flow naturally from the facts and circumstances proved, and be consistent with them all. The evidence of facts and circumstances must be such as to exclude to a moral certainty, every hypothesis but that of guilt of the offense imputed, or in other words the facts and circumstances must not only all be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence.”

There is another important rule or principle characteristic of the administration of the criminal law in Pennsylvania. This declares it to be the right and duty of the trial judge, after the evidence of the commonwealth has been fully produced, to determine as matter of law, whether the proof has been sufficient in volume and quality to overcome the presumption of innocence, and thus put the accused to a defense. ■ Where the proof fails to measure up to this standard there is nothing to support a conviction and the prisoner is entitled to be discharged. Dr. Wharton, Cr. PL & Pr., sec. 706, concludes his discussion of this rule in this language: “Unless there be a statute prohibiting this course, this is a necessary prerogative of the judge trying the case.” So in Pauli v. Commonwealth, 89 Pa. 432, Mr. Justice Paxson said: “This is not a question of the weight of the evidence, but of its sufficiency. We have no doubt that in favor of the liberty of the citizen the court may, and in a proper case should, declare the evidence insufficient to convict.”

It is earnestly contended by the able counsel for appellant, that the learned trial court failed to apply the principles stated when he refused the motion, made at the conclusion of the evidence for the state, and permitted the case to go to the jury. If this contention be well founded, there will be no occasion to review the other questions raised by the record.

At the time of the fire which gave rise to -this prosecution, Andrew Bonner was the tenant or occupant of the premises upon which was situate the barn that was burned. His daughter, a single woman of mature years, lived with him and managed his household, which at that time further comprised a foreman, Bush, a laborer, Quinn, and the appellant, an elderly woman who for a number of years had been their housekeeper. On the morning of the day of the fire, two loads of hay had been taken from the barn by two different men, and had been sent to Philadelphia, the foreman going with them. At about six o’clock of that evening, Miss Bonner, accompanied -by# the appellant, took supper to her father, who was an invalid, confined to his room upstairs. They came down together, and Miss Bonner went to the sitting room and began to write a letter. The appellant went to the kitchen to complete her usual work. Quinn, the laborer, testified that about six o’clock he had left the barn, closed up as usual'for the night, and came to the house and got his supper from the appellant in the kitchen. He then went to the cellar, and attended to the heater, went up to his room and got some clothing, which he intended to exchange at the store, and left the house. The exact time at which he left is not definitely fixed, but it must have been after half past six.

Within a very few minutes of the time he left, certainly before seven o’clock, the appellant came into the sitting room and informed Miss Bonner, who was quite deaf, that there was a fire. They went together to the porch, and discovered that the barn was burning. Miss Bonner immediately proceeded to the stable to try and remove the horses, and was followed in a few minutes by the appellant. She, in the meantime, had gone back into the kitchen and brought with her the butcher knife, which was used to cut the halter straps to free the horses. While in the stable, Miss Bonner remarked that she smelled oil, to which the appellant replied that she thought it was the paint. Having gotten one horse out, Miss Bonner says, that while she was trying to extricate a second, the appellant closed the stable door from the outside. They then labored together with the assistance of neighbors who began to arrive, to save other property in and about the barn, but were unable to control the fire, and the barn was consumed.

It further appeared that within some short period before this fire, other barns and buildings in that section of the country had been destroyed by fire, and there was considerable excitement in the community on the subject. There was testimony that on several occasions the appellant and her mistress had some disputes concerning various matters, affecting the appellant’s grown up daughter, who resided in the neighborhood, her nephew, who had formerly lived on this farm, and other like subjects. No one of them appears to have been at all serious, and certainly not sufficiently so to sever the relation which had so long existed between the two women. There was still further some little evidence that the appellant occasionally indulged in the use of intoxicating liquor, and had at such times used some intemperate language in relation to her mistress and the insinuations made by the latter. The evidence still further disclosed that on the next morning after the fire, the. appellant said to Miss Bonner, "Place your hand on my head, and feel the heat.” When asked what was the matter, the appellant made no answer. When some three weeks later, Mr. Bonner was able to rise from his bed, to go to the porch, and witness' for the first time the ruins, his daughter and the appellant were with him, and the latter said to Miss Bonner, "My heart is in my mouth,” and the reply was, "You are rather late thinking about it.” This seemed to have disturbed the appellant, who a few moments afterward came to her mistress and asked what she meant by what she had said downstairs. She said, “Do you mean to say that I burned the barn?” I said, "No, Maggie, I did not say so, but we know who burned it.” There were some other remarks of the appellant, made at widely different times, shown by the evidence, but they were less significant than those we have stated.

It will thus be seen that the commonwealth was compelled to rely, to establish the fact that there had been an incendiary fire, upon the assumption that because there was no one able to show how the fire actually occurred, it must have been incendiary. This assumption was strengthened by nothing else except what might be drawn from the statement of Miss Bonner that she thought she smelled oil. There was evidence that the man who .closed the bam at six o’clock, smoked a pipe, although there was none that he smoked in the barn. He may have dropped a match or one may have been dropped by the men in the mow earlier in the day. Thus the fire might have been purely accidental, but because it could not be demonstrated that it was accidental, it is a long step to assume that it was incendiary and that a serious crime had been committed.

The commonwealth next relies on the proposition that the defendant had an opportunity to start the fire. The evidence to support this theory simply rests on the fact that for a few moments, prior to the discovery, no one saw her. There is not a particle of evidence that she left the house until after the fire had been discovered; there is none which shows that the fastenings of the barn, whatever they were, had been interfered with; there is none to show that there was any oil kept in the house to which she had access, nor, in a word, is there anything more to support the conclusion that she had an opportunity to commit the crime, than there would have been to justify the conclusion that Miss Bonner, herself, was connected with the crime, because she had a precisely similar opportunity.

Finally it is argued by, the commonwealth, that the evidence showed a motive on the part of this defendant to commit such a crime. This alleged motive rested alone upon the insignificant bickerings between the defendant and her mistress to which we have referred. As a rule they showed but little more feeling on one side than on the other, and were wholly insufficient in our judgment to support the conclusion of guilt which the jury was permitted to draw from them. We are not to be understood as intimating that, under normal conditions, it is incumbent on the commonwealth, in order to make out a case, to prove the existence of any motive at all, much less of an adequate one. But where the fact that a crime was committed rests upon a mere inference not at all inconsistent with innocence; where the connection of the accused with the alleged criminal act is again but an inference born of the vaguest suspicions; and where both are sought to be strengthened by proving a motive something more than is shown by this record ought to be required.

There was, of course, no evidence that this old woman could have been in any way connected with the other fires which had occurred in the neighborhood, and it seems clear to us that, had it not been for the excitement in the community, caused by these fires, no jury would have convicted this defendant of a high crime and rested such a weighty verdict on the flimsy foundation supplied by the few facts and circumstances proven.

The ways of the human heart are unsearchable, and it is possible that this elderly woman, who had never before been accused of wrongdoing, committed this great crime; but if the rules and principles of law, to which we have adverted, are to be fairly administered, so that they may afford to an innocent defendant the protection they were intended to secure, there is, as we view it, no escape from the conclusion that the learned trial judge fell into error in refusing the motion that was made and in permitting the jury to convict.

The second assignment of error is sustained, the judgment is reversed, and the defendant is discharged without day.


author: Morrison, J.,

text:
    Commonwealth v. Stovas, Appellant.

      Appeals—Assignments of error—Answer to points.

    1. An assignment of error will not be considered which does not quote the judge’s answer to a point totidem verbis although it contains the point.

      Criminal law—Conspiracy—Nature of conspiracy.

      2. A person cannot be convicted of conspiring to do an unlawful act, where it appears that the person with whom the prisoner was charged with conspiring made no agreement with the prisoner to do an unlawful act, and never intended to do it.

      3. Where a prisoner is indicted for engaging in a conspiracy with certain unknown persons to dynamite street cars, and there is evidence that he stated to a witness that he had eight other men on the job on a particular night, and wanted to know where the witness was going to use the dynamite that night, there is sufficient testimony against the prisoner to submit to the jury.
    4. On the trial of an indictment for conspiracy it is reversible error for the trial judge to submit the commonwealth’s ease to the jury as uncontradicted where the prisoner himself absolutely contradicts such testimony.
    Argued Oct. 6, 1910.
    Appeal, No. 166, Oct. T., 1910, by defendant, from judgment of Q. S. Phila. Co., May Sessions, 1910, No. 51, on verdict of guilty in case of Commonwealth v. Frank Stovas.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for conspiracy. Before Davis, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty upon which the court sentenced the prisoner to two years’ imprisonment. Defendant appealed.

      Errors assigned were (1) in overruling defendant’s motion to direct the jury to find a verdict of not guilty; (2-8) the motions of charge quoted in the opinion of the Superior Court; (9) in overruling defendant’s motion for a new trial; (10) in overruling defendant’s motion in arrest of judgment; (11) in sentencing the prisoner.

      B. D. Oliensis, for appellant.
    So far as the transaction between the witness and the defendant is concerned, it is respectfully submitted, there can be no conspiracy under the law: Com. v. Haines, 38 Legal Int. 53; Com. v. Zuern, 16 Pa. Superior Ct. 588; Com. v. Brown, 23 Pa. Superior Ct. 470; United States v. Frisbie, 28 Fed. Repr. 808; U. S. v. Cole, 5 McLean, 513.

      John M. Patterson, assistant district attorney, with him Samuel P. Roten, district attorney, for appellee.

      The defendant was properly convicted: Com. v. Boulos, 35 Pa. Superior Ct. 102; Com. v. Zuern, 16 Pa. Superior Ct. 588; Com. v. Stambaugh, 22 Pa. Superior Ct. 386; Heine v. Com., 91 Pa. 145.
    December 12, 1910:
   Opinion by

Morrison, J.,

The defendant, Frank Stovas, was indicted on May 3, 1910, in two bills, to wit, Nos. 51 and 52, May sessions, 1910, charging him in No. 51 with conspiracy and in No. 52 with furnishing dynamite to be placed on railroad tracks and attempting to cause dynamite to be placed thereon. Issue being joined on these indictments, the defendant was tried on both of them at once before the court and the same jury. The result was a verdict in each case of guilty. Subsequently motions in arrest of judgment were made in both cases and the judgment on bill No. 52 was arrested, but the court overruled the motion in arrest of judgment, and also for a new trial, on bill No. 51. Judgment was, thereupon, entered for the commonwealth in the last-named bill and the defendant sentenced to two years’ imprisonment, etc. From this judgment and sentence the defendant appealed to this court. We, therefore, only have before us the appeal in the judgment in the conspiracy case.

The counsel for the appellant contends that the case was tried on the theory that the appellant could be convicted of a conspiracy with Stahl, the witness who testified that he purchased dynamite from the appellant and told him what he intended doing with it. The counsel for the commonwealth utterly repudiate the idea that they asked for a conviction of the appellant for an unlawful conspiracy with the witness Stahl. In their printed argument they say: “The appellant, on p. 5 of his paper-book, has stated as the first of the questions involved;

‘“1. Conspiracy: Is there any criminal conspiracy in an agreement to do an unlawful thing entered into by the defendant and one other person, if the latter never actually agreed, but being a detective, merely pretended to agree in order to obtain evidence against the defendant?’

“It is respectfully submitted that such a state of facts does not constitute a conspiracy; it is also submitted, however, that this question is in no way involved in the present case. The commonwealth never contended that the defendant conspired with Stahl. It was always the theory of the prosecution that Stovas, the defendant, conspired with unknown persons. The district attorney presented an indictment, charging the defendant with conspiracy with unknown persons, and the whole theory of the Commonwealth’s case was along those lines.”

Now turning to the indictment, it shows, “That Frank Stovas, late of the said county, yeoman, together with divers other evil disposed persons, whose names are to this grand inquest unknown, on March 21, 1910, at the county aforesaid, and within the jurisdiction of this court, did unlawfully,” etc., fully charging a conspiracy by the appellant with persons whose names were unknown. It is not pretended that the witness Stahl was one of those persons. There seems to be a marked difference of opinion between the trial judge and the counsel for the commonwealth as to what was really submitted to the jury. It is undoubtedly the law that if Stahl was acting as a detective and he never agreed with appellant to do an unlawful act, but only pretended to so agree and never meant to do the act mentioned, such pretended agreement would not amount to a criminal conspiracy, and if the fact were so found, the appellant could not have been convicted of conspiracy with Stahl, even if the latter had been named in the indictment as a co-conspirator or if he had been one of .the unknown parties.

“Conspiracy, therefore, is rather described than defined, and the description which seems to have the widest recognition and approval by the authorities declares a criminal conspiracy to consist of a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object, or an object neither criminal nor unlawful by criminal or unlawful means; or, as it has been more concisely expressed, ‘the combination of two or more persons to do something unlawful, either as a means or as an ultimate end!”' The latter definition is by Colt, J., in Com. v. Waterman, 122 Mass. 43. See 6 Am. & Eng. Ency. of Law (2d ed.), 832.

Counsel'for appellant well says that the sole and all important element of conspiracy, either at common law or under our act of 1860, is the unlawful combination, the meeting of the minds for an unlawful purpose. Fin-letter, J., in Com. v. Haines et al., 38 Legal Int. 53, well said: “The essential and controlling element is the combination or agreement of the parties. Without this there can be no conspiracy no matter how criminal the acts may be.” In Com. v. Zuern, 16 Pa. Superior Ct. 588, we held as stated in the syllabus: “That which gives to the crime of conspiracy its distinctive character is unity of purpose, unity of design, and focalization of effort upon a particular project by the persons named in the indictment.” In Com. v. Brown, 23 Pa. Superior Ct. 470, President Judge Rice (p. 493) quoted with approval the above definition from Com. v. Zuern.

In United States v. Frisbie et al., 28 Fed. Repr. 808, Billings, J., said: “A conspiracy, as I remarked before, is a breathing together. It means that on the part of these three persons there was a common purpose, .... that each had the intent to do it; that it was common to the three men; and that each understood the others as having that purpose.” Now if the witness Stahl testified truthfully, and there was nothing to discredit him, he never entered into a criminal conspiracy with the appellant and, therefore, the appellant could not be lawfully convicted under the indictment in the present case of an unlawful conspiracy with Stahl.

But the learned trial judge (judging from his charge to the jury) tried the case on the theory that the defendant could be convicted of conspiracy with Stahl, and presuming that the jury gave due regard to the charge it is highly probable that the appellant was convicted of a conspiracy with Stahl and not "with divers other evil disposed persons, whose names are to this grand inquest unknown.” We have already seen that the commonwealth’s counsel admit that appellant was not charged with conspiracy with Stahl and the latter name does not appear in the indictment and it is conceded by the commonwealth’s counsel that Stahl was not one of the unknown persons referred to in the indictment.

Now let us refer to the assignments of error to ascertain on what theory the case went to the jury. The first assignment is not according to our rule and it cannot be considered. It is based on an alleged motion for a binding instruction to the jury to acquit the appellant. But the motion and what the court said in disposing of it are not printed, and there is not even a reference to where the same may be found. An assignment of error will not be considered which does not quote the judge’s answer to a point totidem verbis, although it contains the point: Hall v. Phillips, 164 Pa. 494; Dotterer v. Scott, 29 Pa. Superior Ct. 553. In this connection we may as well dispose of the ninth and tenth assignments, because they are open to the same objection and will therefore not be considered. The excerpt from the charge quoted in the second assignment quite plainly instructed the jury that the appellant could be convicted of a conspiracy if he sold dynamite to the witness Stahl to be used for an unlawful purpose. The trial judge said that would be a conspiracy within the eye of the law. Now, if the witness Stahl did not in fact enter into a conspiracy "with the appellant and did not intend to do an unlawful act, then as we have already seen, the appellant could not be convicted of an unlawful conspiracy with Stahl. The second assignment is sustained.

The third assignment of error can only mean that the appellant could be convicted of conspiracy, with the witness Stahl. The court said, inter alia: "If you believe the testimony of the commonwealth’s witnesses that there' was an agreement to do an unlawful act, your verdict should be, guilty of the charge of conspiracy.” This was said in connection with the portion of the charge referring to the selling of dynamite by the appellant to the witness Stahl. But how could this amount to a conspiracy in the face of Stahl’s testimony that he made no agreement with the appellant to do an unlawful act, that he did not purchase the dynamite intending to use it and in truth and fact he did not intend to use it? If Stahl did not agree with the appellant to do an unlawful act, then there could be no conviction on the theory of the instruction quoted in the third assignment. The defendant positively denied that he entered into any agreement to do the unlawful act charged against him and denied selling any dynamite to Stahl, and while Stahl testified that he purchased the dynamite, telling the appellant that he was going to use it on the railroad tracks, yet he says he did not purchase it for that purpose and did not intend to use it for that purpose. The third assignment of error is sustained.

The fourth assignment complains of an excerpt from the charge on the question of the credibility of the witnesses and the weight to be given to their testimony. A careful consideration of this assignment does not convince us that it contains reversible error. After all it does not contain language calculated to bind the jury. The court merely cautioned the jury and then left the credibility of the witnesses and the weight of their testimony to be determined by that body. The fourth assignment of error is not sustained.

The fifth assignment is as follows: "The witness Stahl testified that he had eight other persons engaged in these acts of blowing up cars. That, in the absence of any contradictory evidence, must be considered by you, and you are entitled to take that testimony into consideration in arriving at your verdict in this case.” The trial judge here fell into an error because the defendant testified positively that he never told the witness Stahl any such ’thing. The defendant testified: "Q. You did not sell anybody dynamite? A. No, sir. Q. You did not say you had eight other men out putting dynamite on the tracks? A. No, sir, I did not know anything about that.” In view of this testimony the trial judge ought not to have said to the jury that the testimony of Stahl about the eight other persons engaged in the acts of blowing up cars went to them in the absence of any contradictory evidence. The fifth assignment of error is sustained.

We do not discover any merit in the sixth assignment of error. It is quite evident that what the trial judge there said was called out by the argument of the appellant’s counsel and we are not satisfied that the language used did the defendant any harm.

The seventh assignment is as follows: “If you believe the testimony of the witnesses for the commonwealth you would be justified in convicting the defendant as he stands charged. If, on the other hand, you believe the testimony of the defendant, that he never had anything to do with the commonwealth’s witness, that he did not sell him the dynamite and that he was not connected with the transaction, then you would be justified in rendering a verdict of not guilty.” Here the court was manifestly again instructing the jury that they might convict the appellant of a conspiracy with Stahl. In view of the testimony and the language used as quoted in the assignment, we cannot see how the jury could have escaped the conclusion that the court was of the opinion that they might convict the defendant of conspiring with Stahl. The seventh assignment of error is sustained.

The eighth assignment is as follows: “The defendant does admit that he saw Stahl on one occasion at least, and had some conversation with him in reference to dynamite, and it does not appear that he informed the police authorities that there was an attempt made by the commonwealth’s witness to buy the dynamite.” On careful consideration of this language we all think it was for the jury. In view of the conditions existing on the streets of Philadelphia at the time the defendant admits Stahl' desired to purchase dynamite from him, it would seem that an honest, law-abiding person would have reported to the police that Stahl, describing him, was trying to buy dynamite to destroy street cars. At any rate the jury had a right to determine from defendant’s appearance and statements as a witness, if they could, what character of man they had to deal with. The eighth assignment of error is not sustained.

The ninth and tenth assignments of error have already been dismissed.

It is unnecessary to pass upon the eleventh assignment of error. If the appellant had been legally convicted we see nothing wrong about the judgment as therein quoted, except that the assignment does not quote the judgment of the court totidem verbis. But the sustaining of the former assignments calls for a reversal of the judgment, and this assignment is immaterial.

We are not prepared to say that there was not sufficient evidence in the case to warrant a submission to the jury of the question of the conspiracy of the appellant with the unknown persons mentioned in the indictment, or some of them, and, therefore, a new venire must be awarded. We are not willing to say that the testimony of Stahl, that the appellant told him that he had eight other men on the job that night and wanted to know in what part of the city Stahl was going to use the dynamite that night, as he, the appellant, did not want Stahl to come in contact with the_ other men who were going to use dynamite, for then there would be too many explosions at the one place, and the testimony that the appellant left the city upon learning that the police were looking for him, was insufficient to carry the case to the jury.

The judgment is reversed with a venire facias de novo.


author: Stevens, J., Per Curiam,

text:
    Fichthorn, Appellant, v. Fichthorn.

      Wills—Codicils—Revocation—Devise.

    Where a testator devises a particularly described parcel of real estate to one of his sons for life with remainder to the son’s children, and by a later clause in his will directs his executors to sell all of his real and personal estate and divide the proceeds thereof among his eight children share and share alike, and by a codicil practically repeats the direction to sell all the estate and make division among all the children, neither the later clause in the will, nor the codicil revokes the specific devise to the son.
    Argued Nov. 14, 1910.
    Appeal, No. 247, Oct. T., 1909, by plaintiffs, from judgment of C. P. Berks Co., Aug. T., 1907, No. 24, for defendant on case tried by the court without a jury in suit of Andrew It. Fichthorn et ah, Executors of Andrew Fichthorn, deceased, v. Matilda Fichthorn.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head and Porter, JJ.
    Affirmed.
    Ejectment for a lot of land in the city of Reading.
    The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109.
   Stevens, J.,

filed the following opinion:

From the testimony submitted I make the following:

FINDINGS OF FACTS.

1. Andrew Fichthorn died testate in the city of Reading on June 25, 1903. His will, with two codicils, was duly probated and is recorded in the office of the register of wills in and for Berks county in Will Book, Yol. 22; p. 27. He left to survive him a widow, Rachael Fichthorn, who died April 7, 1905, eight children and eight grandchildren, children of his deceased son, George L., as follows: George, Harry L., Samuel, Florence, John, Stella, Edith and Ralph.

2. The plaintiffs, Andrew R. Fichthorn, Jacob W. Fichthorn and Walter D. Fichthorn are the duly appointed executors of the will of Andrew Fichthorn, deceased, and are ordered and directed in said will, upon the death of the widow Rachael, to sell all the testator’s real estate at public sale and divide the proceeds equally among the eight children of the testator, all of whom were living at the date of the execution of the will.

3. At the time of his death Andrew Fichthorn was the owner in fee simple of the property in dispute which is a two-story brick dwelling house and lot of ground situated on the west side of Mifflin street in the city of Reading, between Chestnut and Spruce streets, bounded on the north by property of George Kemp, on the east by Mifflin street, on the south by property of William Eisenbise and on the west by a ten foot wide alley, containing in front on Mifflin street fifteen feet and in depth 104 feet.

4. The will of Andrew Fichthorn disposes of the property in dispute as follows:

“Item. I bequeath to my son George L. Fichthorn the use of house No. 220 Mifflin Street rent free so long as he lives and after his death the said house is to go to his children each share and share alike.”

5. George L. Fichthorn died May 26, 1902, and his widow Matilda Fichthorn, the defendant, with her eight children has been in possession of house No. 220 Mifflin street continuously since that time.

6. The will of Andrew Fichthorn provides, inter alia, as follows:

“Item. I order and .direct my executors hereinafter named that after the death of my wife all my real and personal estate shall be sold at public sale, and the money arising therefrom, after all my debts are paid, shall be equally divided among my eight children as follows: Clara C. Fichthorn, Andrew R. Fichthorn, Annie M. Fichthorn now intermarried with C. F. G. Bergner, Martha E. Fichthorn now intermarried with Samuel S. Yocum, George L. Fichthorn, Jacob W. Fichthorn, John W. D. Fichthorn, share and share alike after deducting however the charges made in the family book.”

The codicils are:

“1. This writing is to be considered Part of my will and addition to what is allredy Stated and would Now State here that my Daughter Clara C. Fichthorn Daughter of Andrew and Rachel R. Fichthorn is to be paid Directly after my Desease a yearly sum of two hundred Dollars in monthly payments Faithfull Payments must at all times be made untill sutch a time her mothers death, then Share and Share alike Property that Dont Pay to that is if it Dont Realise interest it may be sold at any time seen Propper if a Reasonable price Can be had an money Devided share and share alike No Charge to be mad on Either one for Former Receipts and not quarrel amongst yoursev Nothing is to be Charged which has all-ready been Received By Different ones and no fauld is to be found George is to have a Life Estate in his share and No Debt any any kind is to be of any good and shall have no Part in his share Clara C. Fichthorn to have all household goos sutch as Piano Parlor furnature all Belonging together and all other furnature Belonging to me Clarra is to have free of Charge.”

“2nd. All Furnature in the house Belonging to me I bequeath to my Daughter Clarra C. Fichthorn Consisting Peana Rock and Red Parlor Suit all Belonging together my Daughter Clarra C. Fichthorn is to have out of my estate as soon as she may get in want in monthly Payments two Hundred and fifty Dollars My Daughter E. Fichthorn is to have if she needs any help one Dollars this to Explain that the Crossing of Daughter Clara C. Fichthorn and Daughter Hannah E. Fichthorn was Done for the Reason that by this I bequeath unto my Daughter Clara C. Fichthorn a share and share alik to my daughter Hannah E. Fichthorn of all my Estate Consisting Real & Personal I bequeath to my son Andrew R. Fichthorn to Share and Share alike.

“I bequeath to my son Jacob W. Fichthorn

“I bequeath to my S. W. D. Fichthorn

“I bequeath to my Daughter Ana Fichthorn Bergner intirmarried with F. G. Bergner Share and Share alike however in trust as long as She lives at her Deth to come back to her Relatives

“I bequeath to my daughter Martha Fichthorn Share and Share alike now intermarried with Samuel Yocum.

“I Bequeath to my Son George L. Fichthorn Share and Share alike in trust and No Claims to be of any effect of no kind Just a Living for their Living for George & wife and will not be allowed to make Debts.”

CONCLUSIONS OF LAW.

The legal title to premises No. 220 Mifflin street upon the death of Andrew Fichthorn, under the terms of his will vested in the children of George L. Fichthorn, deceased, who are George Fichthorn, Samuel Fichthorn, Florence Fichthorn, John Fichthorn, Stella Fichthorn, Edith Fichthorn and Ralph Fichthorn.

DISCUSSION.

The plaintiffs contend that the subsequent clauses relating to a disposition of all the testator’s estate are inconsistent with the devise to George with remainder to his children and must prevail especially in view of the general intent to make an equal division amongst all the testator’s children. The will is loosely drawn, apparently by a scrivener unlearned in the law; the codicils were written by the testator and are illiterate and in places incoherent in expression. The devise to George is clearly expressed and can only be controlled by plain and distinct words referring to the same subject-matter and clearly inconsistent therewith. The plaintiffs base their case upon a construction .of the residuary clause in the will and the two codicils. By the residuary clause the executors are directed to sell all of the testator’s estate and divide the proceeds equally among all the children. The clearly expressed intention in the first codicil is to forgive the advancements charged in the will itself and to make an equal division among all, irrespective thereof. The second codicil bequeaths the furniture to one of the children, and reiterates the testator's intention to make equal division. The codicils, in so far as they relate to the disposition of all the testator’s estate, are a repetition of the direction in the residuary clause to sell all the estate and make division among all the children. The question then resolves itself to this. Does a general disposition of the whole estate in a residuary clause revoke a prior specific devise? The rule which sacrifices the former of several contradictory clauses in a will is never applied, but on the failure to give the whole such a construction as renders every part of it effective; the will is to be construed as a whole and one part is not to be treated as repugnant to another, if it is possible for it to stand: Mutter’s Estate, 38 Pa. 314.

A general residuary clause at the end of a will is construed as intended for nothing more than a disposition of those portions of the estate which have not already been disposed of. The rule is laid down by Redfield in his work on Wills, Yol. I, pp. 445-446, “that where the testator makes a general devise or bequest which would include the whole of his estate and in other portions of the will make specific dispositions, these shall be regarded as explanations or exceptions out of the general dispositions and it will not be important in such case whether the general or specific provision comes first in order: since in either case the general disposition will be made subject to the more specific ones. This rule was early applied. In the case of Wrallop v. Darby, Yelverton’s Reports, 210, the testator devised all his estate to his son and by a subsequent clause gave particular lands to S. “It was adjudged that the heir of S. should have the land; for when the devisor gave all to J. his son, in tail, and after-wards by another clause in the will gave the lands in one will to S. that is an explanation of his intent that J. should have all Praeter the lands in the will appointed to S.”

A similar question arose in the case of Barber v. Conrow, 12 W. N. C. 406. There the devise was:

Error assigned was the judgment of the court.

F. W. Nicolls, of Rick & Nicolls, for appellants.

The codicil being irreconcilable and posterior in position revoked the earlier devise: Robinson v. Martin, 2 Yeates, 525; White’s Est., 132 Pa. 17; Alsop’s App., 9 Pa. 374; Line’s Est., 321 Pa. 374.

The particular intent of the devise must yield to the main intent of the codicils: Jones’s App., 3 Grant, 169; Middleswarth v. Blackmore, 74 Pa. 414; Ferry’s App., 102 Pa. 207; Hartman v. Herbine, 7 Pa. C. C. Rep. 630.

If the meaning be doubtful, the construction of equality among the children resolves the question in favor of revocation: Weber’s App., 17 Pa. 474; Malone v. Dobbins, 23 Pa. 296; Mehard’s Est., 5 Pa. Superior Ct. 336; Musselman’s Est., 5 Watts, 9; Evans’s Est., 11 Kulp, 212.

J. K. Grant and C. H. Ruhl, for appellee.

The case of Sheetz’s App., 82 Pa. 213, is undoubted authority for our contention that the devise of the house and lot in question to his son, George L., for life, and remainder to his children, is not revoked by the latter clause, wherein he disposes of “all my real and personal estate.” See also Yost v. Ins. Co., 179 Pa. 381.

“Item 10. I Give and bequeath to my daughter Anna Alida, dwelling No. 1912 Spring Garden Street, valued by me at $14,000.00 Dollars. Item 18. I give, devise and bequeath to my Executors hereinafter named, all my estate, real, personal and mixed,” etc. In delivering the opinion of the court Hake, Judge, says: “As a general rule when a testator makes a specific disposition of a part of his property, and, later on in the will a different disposition in which he uses the words 'all my property,’ or like terms, the latter disposition is construed" to refer to all the residue of his property, as otherwise the previous specific disposition would be wholly defeated.

“The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s distinctly announced main intention:” Sheetz’s App., 82 Pa. 213.

And now, to wit, January 4, 1909, I find in favor of the defendant for the property described in the writ.

December 12, 1910:

Per Curiam,

We all concur in the conclusion reached by the learned judge of the common pleas, that the devise to George L. Fichthorn for life, with remainder to his children, was not revoked by the subsequent clauses of the will, or by the codicils thereto. Notwithstanding the able argument of appellant’s counsel, we think this conclusion carries out the actual intent of the testator, and that none of the rules of construction adverted to by counsel is sufficient to warrant us in holding otherwise.

The judgment is affirmed.


author: Endlich, P. J., Per Curiam,

text:
    Schmucker v. Adams, Appellant.

      Intestate laws—Decedents’ estates—Inheritable blood—Partition.

    Where a granddaughter takes an undivided interest in her grandfather’s real estate under the intestate laws, and thereafter her share in the real estate is set off to her in partition proceedings, the partition does not operate upon the title, or in any way change its character, nor create a new title. In such a case the granddaughter continues to hold the estate as by descent from her grandfather, and upon her death intestate as to such land, no one takes who is not of the blood of the grandfather.
    Argued Nov. 15, 1910.
    Appeal, No. 27, Oct. T., 1910, by defendant, from judgment of C. P. Berks Co., Dec. T., 1909, No. 60, for plaintiffs on case stated in suit of Rebecca A. Schmucker et al. v. Agnes H. Adams.
    Before Rige, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      Case stated to determine title to real estate.
   Endlich, P. J.,

filed the following opinion:

It appears from the record in this case taken as a whole that plaintiffs sold certain real estate to defendant, who, after paying the larger part of the consideration, refuses to pay the balance of $1,250 on the ground that the vendors have no title to convey. This action is brought to recover that amount. The plaintiff’s declaration was met with an affidavit of defense making a general denial of plaintiffs’ right and defendant’s liability. Thereupon the parties agreed upon a statement of the case for the decision of the court. All the facts being explicitly set forth therein it is unnecessary to rehearse them at length. The question arising upon them seems to be a simple one, and the answer to it plainly prescribed by the express language of the statute.

The Act of April 8, 1833, P. L. 315, declares in sec. 6, that: “In default of issue, and brothers and sisters of the whole blood and their descendants, and also father and mother, competent by this act to take an estate of inheritance therein, the real estate .... shall descend to and be vested in the brothers and sisters of the half blood of the intestate, and their issue, in like manner, respectively, as is ... . provided for the case of brothers and sisters of the whole blood and their issue.”

To this sec. 9 of the same act adds the proviso: “That no person who is not of the blood of the ancestors . . . . from whom any real estate descended, or by whom it was given or devised to the intestate, shall, in any of the cases before mentioned, take any estate of inheritance therein, but such real estate, subject to such life estate as may be in existence .... shall pass to and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor .... had never existed, or were dead at the decease of the intestate.”

The real estate of which that here in question is a part was originally acquired by Joseph Hiester. Mary E. Deininger was his granddaughter. On his death his estate descended, in undivided fifths, to the children and grandchildren of Joseph Hiester. A partition proceeding upon his estate was instituted in the orphans’ court. Under it,- Mary E. Deininger accepted and had adjudged to her approximately (about 1-50 in excess of) one-fifth thereof. It is settled by a long line of decisions that partition, whether made amicably or in the common pleas or the orphans’ court, does not operate upon the title or in any way change its character nor create a new title: Goundie v. Water Co., 7 Pa. 233; McClure v. McClure, 14 Pa. 134; Ross v. Pleasants, 19 Pa. 157; Allen v. Gault, 27 Pa. 473; Montgomery v. Petriken, 29 Pa. 118; Dresher v. Water Co., 52 Pa. 225; Williard v. Williard, 56 Pa. 119; Harlan v. Langham, 69 Pa. 235; Seiders v. Giles, 141 Pa. 93; Perrine v. Kohr, 205 Pa. 602. It merely dissolves the cotenancy and severs the possession according to the interests as they existed before. It follows that what was adjudged to Mary E. Deininger in the partition proceeding was so adjudged as coming to her by descent, and as conceded to be hers by descent from Joseph Hiester, and that she held it as hers by such descent. When in 1838 she died, intestate as the law then stood, her husband (who parted with his interest in 1870 and died in 1881) took an estate for life in the realty of his wife; but the fee of it .went to her half-brothers and half-sister of the blood of Joseph Hiester: Parr v. Bankhart, 22 Pa. 291; Lynch v. Lynch, 132 Pa. 422,—i. e., to Hiester H. Muhlenberg, Henry A. Muhlenberg II, and Rosa Nicolls. The latter’s share, under her marriage settlement, descended at her death to her brothers just named. Henry A. Muhlenberg II died in 1854, leaving a widow and a son, Henry A. Muhlenberg III, and devising his estate to the latter. The widow subsequently remarried and died in 1906, survived by Henry A. Muhlenberg III, and a son by the second marriage having none of the blood of Joseph Hiester. Henry A. Muhlenberg III died shortly after his mother, survived by his half-brother. His devise of his

Error assigned was the judgment of the court.

William J. Bourke, for appellant.

P. S. Zieber, of Snyder & Zieber, for appellees.

December 12, 1910:

entire estate to his mother was ineffective by reason of her predecease: Sword v. Adams, 3 Yeates, 34. An amicable partition made in 1902, between Henry A. Muhlenberg III and his then cotenant is, for the reason already stated, of no significance for present purposes. His title before and after the partition was by descent and devise, never by purchase. This circumstance is controlling of the application of the statute above quoted as determining the succession of those of the blood of the ancestor: Lynch’s Est., 220 Pa. 14. That ancestor was Joseph Hiester. With respect to the realty of Henry A. Muhlenberg III derived from Joseph Hiester (and it is a portion of that only that is here involved) the heirs of Henry A. Muhlenberg III were the surviving sons and daughters of Hiester H. Muhlenberg, descendants of Joseph Hiester. They and by conveyance from them the children of a deceased daughter, i. e., all the plaintiffs in this case, must therefore be adjudged to be the owners of the property. Hence according to the terms of the case stated they are entitled to judgment.

And now, January 17, 1910, upon the case stated judgment is entered for plaintiffs and against defendant for $1,250.

Per Curiam,

The judgment is affirmed for the reasons given in the opinion of the learned president judge of the common pleas.


author: Beaver, J., Rice, P. J.,

text:
    Summerville, Appellant, v. Galey.

      Judgment—Satisfaction of judgment—Striking of satisfaction—Attorney at law—Laches.

    The rule that without previous special authority, or subsequent ratification, an attorney cannot compromise a judgment and satisfy the same on payment of a part thereof, does not apply where it appears that the plaintiff took no step to set aside the satisfaction until ten years after the satisfaction was entered, and seven years after the death of the attorney, that he made no claim against the estate of the attorney at any time, and that the judgment still remained unsatisfied as to four of the original eodefendants.
    Argued April 21, 1910.
    Appeal, No. 87, April T., 1910, by plaintiff, from order of C. P. No. 1; Allegheny Co., June T., 1896, No. 889, discharging rule to set aside satisfaction of judgment in case of Thomas E. Summerville, for use of E. R. Summerville v. George Galey et ah, partners doing business as the Stanley Oil Company.
    Before Rice, P. J., Henderson, Morrison, Oblady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule to set aside satisfaction of judgment.
    The opinion of the Superior Court states the case.

      Error assigned was the order discharging the rule.

      Thomas F. Garrahan, with him Langfitt & McIntosh, for appellant.
    An attorney of record cannot satisfy a judgment for a less amount than was due thereon, without express authority or subsequent ratification: Stackhouse v. O’Hara, 14 Pa. 88; Campbell’s App., 29 Pa. 401; Stokely v. Robinson, 34 Pa. 315; Dollar Savings Bank v. Robb, 4 Brewster, 106; Housenick v. Miller, 93 Pa. 514; Mackey v. Adair, 99 Pa. 143; North Whitehall Twp. v. Keller, 100 Pa. 105; Isaacs v. Zugsmith, 103 Pa. 77; Marr v. Marr, 103 Pa. 463; Brockley v. Brockley, 122 Pa. 1; Ely v. Lamb, 10 Pa. C. C. Rep. 209; Maxfield v. Carr, 8 Kulp, 214.

      Frank Thomson, of Thomson & Thomson, for appellee.—
    The attorney is presumed to have had authority to do what he did and that after a lapse of these years, when his lips are sealed, this use plaintiff cannot now be heard to question his authority or repudiate his acts: Miller v. Preston, 154 Pa. 63.
    December 12, 1910:
   Opinion by

Beaver, J.,

Upon the application of the use plaintiff, a rule was granted to show cause why the satisfaction of a judgment against the Stanley Oil Company, of which one George Galey was a partner, should not be set aside as to the said Galey. Testimony was taken upon both sides and, after argument and consideration, the court discharged the rule.

It appears by the record that Thomas E. Summerville, the legal plaintiff in this case, obtained judgment against six several defendants, doing business as the Stanley Oil Company, of whom George Galey was one. The judgment was originally obtained before an alderman or justice of the peace. An appeal was taken which, after regular pleadings, was brought forward to trial, when judgment was recovered, February 28, 1898, by reason of the failure of the defendants to appear.

It is admitted that J. R. Henderson was the attorney of the legal plaintiff.

On March 11, 1898, the judgment as to John Connell, one of the defendants, was satisfied by the legal plaintiff, in consideration of the payment of $67.00.

March 12, 1898, the legal plaintiff assigned the judgment, debt and interest, to his wife, E. R. Summer-ville.

March 28, 1898, upon the affidavit of J. R. Henderson, attorney for plaintiff, a writ of testatum fi. fa. was issued against George Galey and others to the sheriff of Beaver county, which was controlled by L. E. Grim, an attorney of that county, in whose hands the same was placed by J. R. Henderson, Esq.

April 13, 1898, attorney Grim gave to the father of the defendant, George Galey, the receipt which follows:

“April 13, 1898, received of Geo. Galey, by check of Robt. Galey, the sum of one hundred and twenty-five dollars, in full of George Galey’s share of judgment No. 889, June term 1896, in Allegheny county, Thomas E. Summerville, for use of E. R. Summerville v. The Stanley Oil Co. This settlement of Geo Galey’s share being made by authority of J. R. Henderson, 524 Fourth Ave., Pitts. Atty. for pltff.”

On the next day, Grim forwarded to Henderson a check upon the First National Bank of Beaver for $112.50, being the net proceeds of the amount received from Galey and, on the following day, April 15, 1889, the satisfaction of the said judgment as to George Galey, one of the defendants, was duly entered of record in Allegheny county, by J. R. Henderson, plaintiff’s attorney.

In August, 1901, as appears by the testimony, and is not denied, J. R. Henderson died.

It also appears by the testimony that L. E. Grim is also dead.

The estate of J. R. Henderson was settled by his administrator in due course, there being in his hands for distribution a balance of $1352.97, which distribution was made in the orphans’ court of Allegheny county in 1903. No claim, it appears by the testimony, was made at the time of the distribution on behalf of the plaintiff. From the time the amount paid by Galey to Grim was received by Henderson, until June 27, 1908, more than ten years, nothing seems to have been done by the plaintiff looking toward the collection of the judgment or any demand upon Henderson, or the administrator of his estate, for the amount received by him.

Both the legal and equitable plaintiffs were examined on the part of the petitioner for the rule, by whose testimony it appears that, although Henderson was not authorized either by the legal or equitable plaintiff to continue as the attorney of the latter, there is no evidence that any other attorney was either authorized or did appear for her, nor does the legal plaintiff, who was the agent of his wife, allege that Henderson’s authority to act for the plaintiff, as the attorney of record, was revoked. In an opinion filed by the judge of the court below, who heard the case, it is said: “Henderson was the attorney of record. His appearance was general and, therefore, stood for all parties in interest. He had conducted the proceedings and obtained the judgment, moreover had issued the testatum fi. fa. Galey had made payment to the attorney who represented the writ, upon the understanding and agreement that the payment was in satisfaction and release of his liability on the judgment. The attorney of record in the county where the judgment was obtained formally entered satisfaction, where it has since remained, as notice to the plaintiff, to his assignee, and to the whole world.” As previously stated, satisfaction was also entered upon the record of the original judgment by Henderson.

The opinion continues: “While we recognize the general rule that, without previous special authority or subsequent ratification, an attorney cannot compromise a judgment and satisfy the same on payment of a part thereof, yet we are constrained to hold that the circumstances in this case bring it within the rule of Miller v. Preston, 154 Pa. 63. Ten years have elapsed since the entry of satisfaction on the face of the judgment. Henderson has been dead for seven years. Galey is precluded from having recourse to Henderson, if he acted without authority, or of disproving petitioner’s allegation of a lack of authority.

“Mrs. Summerville was guilty of laches. The presumption of Henderson’s authority warranted by the circumstances of this case has not been overcome.”

The case of Miller v. Preston, 154 Pa. 63, seems to be strikingly in point. The consequences of the failure of the plaintiff to act, and to act promptly in disavowing the act of his attorney, under such circumstances, are clearly illustrated in that case. The Supreme Court, in a per curiam opinion, says: “The judgment had been satisfied by a reputable member of the bar, after having entered an appearance for the plaintiff. After the judgment had been so satisfied, and upon the faith of it, a mortgage loan was made upon the property which had been bound by the judgment. All this appears to have been done in entire good faith. The money due upon the judgment was received by Mr. James P. Dolman, the attorney who entered the satisfaction, and was paid over by him in good faith to Mr. Allison, at that time a reputable real estate agent and conveyancer, and who was supposed to be the plaintiff’s agent. Allison retained the money and subsequently disappeared. The plaintiff never received it, and now, after the lapse of several years, and the death of the attorney, claims to have the satisfaction stricken off. There was some evidence to show that Allison was plaintiff’s agent. He acted as such in the matter of the loan of the $350, upon the judgment, and while the proof of agency was not very clear, we think, under the circumstances of Allison’s flight, and the death of the attorney, who cannot now be called to prove his authority, it was sufficient to justify the court below in refusing to strike off the satisfaction. Aside from this, when an attorney at law enters his appearance in a case and satisfies a judgment, there is a presumption that he acted by authority. He is an officer of the court, and what he does in the course of his business is presumed to be by authority of his client. There is, at least, a prima facie presumption of authority. We act upon this presumption in the everyday business of life. The conveyancer who goes to a record and finds a satisfaction regularly entered by an attorney is not bound to follow it up by inquiring if the attorney had authority. It would create endless confusion, if the satisfaction of a judgment could be stricken off in this manner, years after it had been entered, and the attorney in his grave.”

What the equitable plaintiff’s claim against Henderson during his lifetime may have been, or against his estate after his death, we need not now consider, but it seems to us that, after the lapse of ten years, with the judgment against four of the original defendants still in force, it would be a dangerous precedent to reverse the decree of the court below.

Decree affirmed and appeal dismissed, at the costs of the appellant.

Rice, P. J.,

dissenting:

I concur in the conclusion reached by the majority so far as the amount actually paid by the defendant is concerned, but I am unable to conclude that there is a presumption that the attorney had authority to satisfy the judgment upon payment of less than the amount due.


author: Swearingen, P. J., Beaver, J.,

text:
    Riesmeyer v. O’Day, Appellant.

      Appeals—Assignments of error—Insufficient assignment—Failure to set out order.

    1. In order to make the record of a case intelligible the assignments of error must be self sustaining.
    2. An assignment of error to an order of the lower court making absolute a rule for judgment for want of a sufficient affidavit of defense, must set out the order in so many words.
    3. If an assignment of error refers to the opinion of the court below it should indicate the page of the paper-book where the opinion may be found.

      Landlord and tenant—Lease—Alteration of lease—Affidavit of defense.

    4. In an action for rent an affidavit of defense is insufficient which does not deny the defendant’s signature, but merely avers that the lease in suit is “another or a previously subsisting document of that character, with the numerals 1908, by some one (other than herself and wholly without her consent) substituted for an earlier date-year, before or originally (correctly) written thereon.”
    5. Such an affidavit is insufficient in that it does not give the date or terms of any “previously subsisting document,” nor distinctly say in what respect the paper was altered, nor within what time it was done.

      Argued April 22, 1910.
    Appeal, No. 108, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 578, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John R. Riesmeyer v. Kate O’Day.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit for rent.
    Rule for judgment for want of a sufficient affidavit of defense.
   Swearingen, P. J.,

filed the following opinion:

This action was brought by John R. Reismeyer against Kate O’Day to recover rent alleged to have accrued under a lease, to wit: The sum of $50.00, which fell due on April 1, 1909, and the sum of $15.00, being a portion of that which fell due March 1, 1909, aggregating $65.00 with interest from April 1,1909. A copy of the lease is attached to the statement of demand. It shows that the lease was dated May 1,1908, and that, thereby, the premises, No. 94 Washington street, Pittsburg, Pennsylvania, were let to the defendant for the term of one year from May 1, 1908, at the annual rental of $600, “payable monthly, in advance;” that is $50.00 “on the first day of May” and so on from month to month. The lease contained the covenant that the lessee would pay the rent in the manner aforesaid. In the statement of demand, after averring the lease, it is alleged that the plaintiff took possession of said premises and occupied them during said term.

To this statement of demand the defendant filed an affidavit of defense and, thereupon, the plaintiff entered a rule for judgment for want of a sufficient affidavit of defense. At the argument of said rule it appeared that the defendant had not demanded an inspection of the lease and had not denied her signature thereto. The defendant’s counsel then requested the court to withhold its decision and give time to the defendant to inspect the lease and, if necessary, to. allow the filing of a supplemental affidavit of defense. These requests were granted, and the defendant has presented a supplemental affidavit of defense, which we have allowed to be filed, and the same has been considered in disposing of this rule.

In her original affidavit of defense the defendant did not deny the execution of said lease. She averred that “if there be articles of lease extant” the instrument must be a “date- or year- altered paper.” But she did not demand an inspection of the paper. This affidavit was clearly insufficient.

In her supplemental affidavit of defense the defendant avers that she has examined the lease, and she declares that it is “another or a previously subsisting document of that character, with the numerals 1908 by some one (other than herself and wholly without her consent), substituted for an earlier date-year, before or originally (correctly) written thereon.” This appears to be a very indefinite and uncertain description of a paper and of any alteration therein. The affidavit does not give the date or terms of any “previously subsisting document,” nor does she distinctly say in what respect the paper was altered, nor within what time the same was done. She gives no facts, from which the court can ascertain the issue which is to be submitted for trial. Such vague and general allegations, descriptive of a paper and averring alterations therein, are not sufficient in an affidavit of defense, under our statutes and our rules of court. The original lease was submitted to us upon the argument, and, in our opinion, it does not show an alteration in the manner which seems to be stated in this supplemental affidavit of defense. Neither the affidavit of defense nor the supplemental affidavit of defense denies the defendant’s signature to the lease, and we do not think either of them sufficiently avers an alteration, which would require the case to be submitted to a jury.

And, now, to wit, September 30, 1909, after argument and upon consideration, the rule for judgment for want of sufficient affidavit of defense is made absolute.

Errors assigned were in the following form:

The court erred in that

1. The affidavits filed do aver a good and sufficient defense.

2. There has been here raised an issue of fact or facts in defense sufficient for, and only legally determinable in court by, a jury; because whereof the right of trial should not have been denied defendant.

3. Defendant has been deprived of her constitutional right of trial by .jury, in this final judgment; because ordered against and notwithstanding her ungainsaid averments, directed to the contrary.

4. The case should have been (should be) submitted to a jury.

5. The opinion shows and works a usurpation of the reserved prerogative for and power of the jury.

6. The rule should have been discharged, not made absolute; and judgment thereon should not have been entered against defendant.

William A. Golden, for appellant.

C. C. Dickey, with him W. K. Shiras, for appellee.

December 12, 1910:

Opinion by

Beaver, J.,

We have endeavored in many ways, and on many occasions, to impress the profession with the fact that the record of a case in our court, after the return of the record to the court below, ordinarily consists of the assignments of error and the opinion of the court, and that, in order to make the record of a case intelligible, the assignments of error must be self-sustaining.

In the present case, we have a clear and explicit decree, simply and easily understood, which is as follows: “And now, to wit, September 30, 1909, after argument and upon consideration, the rule for judgment for want of sufficient affidavit of defense is made absolute.”

We have six several assignments of error, in not one of which is the decree quoted or the rule upon which the decree is founded specifically set forth. The nearest approach to this is perhaps in the third assignment of error, which is "Defendant has been deprived of her constitutional right of trial by jury, in this final judgment; because ordered against and notwithstanding her ungainsaid averments, directed to the contrary.” What judgment is here referred to? And sixth, "The rule should have been discharged, not made absolute; and judgment thereon should not have been entered against defendant.” What rule? And what was the judgment thereon entered against the defendant? We can, of course, infer, particularly after reading the decree of the court, that it was a rule for judgment for want of a sufficient affidavit of defense, but this nowhere appears, and the decree of the court is not set forth in any of the assignments of error.

The fifth assignment is: "The opinion shows and works a usurpation of the reserved prerogative for and power of the jury.” Not a word of the opinion is set forth and indeed it is only found, by leafing over the paper-book, at the close of the appendix. Our rules, therefore, in regard to the make-up of the paper-book and the assignments of error are both disregarded. The former is rule XXYI, and the latter rule XV.

It would be entirely proper, therefore, for us to quash this appeal, but as no motion to this effect has been made by the appellee, we dispose of it upon its merits, and, in doing so, it is only necessary to say that the opinion of the court below covers the ground very fully, and, for the reasons therein stated, the judgment is affirmed.


author: Beaver, J.,

text:
    Dravo Contracting Company, Appellant, v. Grambling.

      Taxation—Beal estate—Personal property—Act of April 15, 1881¡., P. L. 509.

    Where a contracting company enters into a contract with a coal company to sink a coal shaft in land owned by the coal company and in which the contracting company has no estate or interest whatever, and in order to carry out the contract the contracting company installs boilers and an engine, a compresser, a steel tower and a dynamo which are all to be removed at the completion of the contract, such articles are personal property, not attached to the land, and therefore not taxable as land under the provisions of the Act of April 15, 1834, P. L. 509. Bemis v. Shipe, 26 Pa. Superior Ct. 42, explained and distinguished.
    Argued May 2, 1910.
    Appeal, No. 139, April T., 1910, by plaintiff, from decree of C. P. Cambria Co., March T., 1909, No. 3, dismissing bill in equity in case of Dravo Contracting Company v. W. R. Grambling, Tax Collector for Adams township et al.
    Before Rice, P. J., Henderson, Morrison, Orladt, Head, Beaver and Porter, JJ.
    Reversed.
    . Bill in equity for an injunction to restrain the defendants from enforcing the collection of taxes levied against certain property alleged to be real and not personal estate. Before O’Connor, P. J.
    From the record it appeared that in February, 1907, the Dravo Contracting Company entered into a contract with the Maryland Coal Company to sink a coal shaft in land owned by the latter. It was necessary to carry out the contract, for the contracting company to install on the land six boilers, one hoisting engine, one compressor, one steel tower, and one dynamo. These articles were to be removed upon the completion of the contract. The defendants claiming that they were part of the realty, levied upon them for real estate taxes and advertised them for sale. The court below held that they were real estate within the meaning of the Act of April 15, 1834, P. L. 509, and dismissed the bill.

      Error assigned was decree dismissing the bill.

      Frank P. Barnhart, for appellant.
    The policy of the law favors trade, and the chattel affixed for purposes of trade is allowed to remain a chattel: Lemar v. Miles, 4 Watts, 330; Voorhis v. Freeman, 2 Watts & Sergeant, 116; Hill v. Sewald, 53 Pa. 271; Meigs’s App., 62 Pa. 28; Justice v. Nesquehoning Valley R. R. Co., 87 Pa. 28; Mellon v. Allegheny County, 3 Pa. Dist. Rep. 422; Nat. Bank of Catasauqua v. North, 160 Pa. 303; Silliman v. Whitmer, 11 Pa. Superior Ct. 243; Wilkes-Barre “Times” v. City of Wilkes-Barre, 10 Pa. Dist. Rep. 691; Dyer Co.’s App., 21 Pa. C. C. Rep. 442; Finan v. Bradford County, 5 Pa. C. C. Rep. 224; Vail v. Weaver, 132 Pa. 363.

      Charles C. Greer, with him Percy Allen Bose and John W. Kephart, for appellees.
    This case is ruled by Bemis v. Shipe, 26 Pa. Superior Ct. 42.
    December 12, 1910:
   Opinion by

Beaver, J.,

The third assignment of error, which is based upon and recites the decree of the court below, practically covers the entire case.

It was agreed between the parties at the taking of the testimony as follows: “It is hereby agreed between the parties to this action that the sole question to be here determined is whether or not the property in question of the Dravo- Contracting Co. is, for the purposes of taxation, real estate or personal property, and the land shall only be considered in connection with the evidence of the attachment of the particular property to the soil, in order to enable a conclusion as to its character.”

Under the agreement between plaintiff and the Maryland Coal Company, which was in evidence, there can be no doubt that, as between them, the property levied upon was personal property, there being no .intention on the part of the plaintiff to make it real estate, and the contract between the plaintiff and the Maryland Coal Company having been practically completed, and the plaintiff being ready to remove the property, except for the levy for the taxes, from the collection of which the plaintiff seeks to restrain the defendant.

The court below, in its opinion, says: “The manner in which the property in question is situate and attached to the soil would constitute it a part of the realty, if placed there by the owner of the soil, and one charged with the making of the assessment would undoubtedly include it in the valuation of the real estate in the absence of any knowledge on his part that it belonged to another. That it did belong to another than the owner of the soil is a' fact in this case, and a fact which was known to the assessor at the time the assessment was made. It was not intended to be left upon the premises in its entirety, but the machinery at least was intended for removal after the contract had been completed.

“Bearing this fact in mind, we would be loath to declare that the property in question could be separately assessed as real estate to one not the owner of the soil upon which the property in question was found, were it not for the enactment approved the 15th day of April, 1834, P. L. 509, and the decision rendered thereon in the case of Bemis v. Shipe, 26 Pa. Superior Ct. 42. As between the owner of the soil and the above named plaintiff, the property in question is undoubtedly personal property, but, for the purposes of taxation, on the authority above named, we are obliged to hold it subject to taxation as real estate, and, therefore, enter the following order: And now, April 20, 1909, the bill upon which this proceeding is predicated is dismissed at the costs of the appellant, unless exceptions be filed within ten days.” Exceptions were filed but overruled by the court, and the bill finally dismissed.

It is not surprising that the court hesitated to declare that the property in question could be separately assessed as real estate to one not the owner of that soil upon which the property in question was found, but bases its conclusion upon Bemis v. Shipe, 26 Pa. Superior Ct. 42, as overcoming the disposition of the court. In this we think the court was in error, overlooking the facts upon which the case of Bemis v. Shipe was decided which were entirely different from those now under consideration. In that case, the property assessed for taxation was a mill situated upon leased land. It came, therefore, within the category of real estate, as contained in the first paragraph of sec. 4 of the act of April 15, 1834, reciting the various kinds of property subject to taxation, the real estate including “all houses, lands, lots of ground and ground rents, mills and manufactories of all descriptions, all furnaces, forges, bloomeries, distilleries, sugar-houses, malt-houses, breweries, tan-yards and ferries.” The plaintiff in that case also had an estate in land, which was distinct and subject to taxation.

In this case it is practically conceded and clearly appears by the testimony, that the plaintiff had no estate whatever in the land. On the other hand, it is alleged in the bill, which fact is not contradicted by the testimony, that the property in question was placed upon the land of the Maryland Coal Company, for which the plaintiff was under contract to sink a mining shaft and air shaft in connection with the mining of bituminous coal. It is clear, therefore, that, as between the plaintiff and the Maryland Coal Company, the property in question was personal property.

In Vail v. Weaver, 132 Pa. 363, it was held that “The engine, machinery and appliances of an electric light plant do not pass with the real estate upon which it is operated, to the purchaser of the realty at a sale under a mortgage judgment, unless it was the intention to make the plant a part of the realty when it was erected. Mere physical annexation is no longer the test: Hill v. Sewald, 53 Pa. 271; Seeger v. Pettit, 77 Pa. 437; Morris’s Appeal, 88 Pa. 368.” See also National Bank of Catasauqua v. North, 160 Pa. 303.

The articles in question which were levied upon by the collector, not being included, directly or remotely, with what is classed as real estate in the act of April 15, 1834, and the plaintiff having no estate whatever in the land upon which these articles were placed for a special purpose, and merely temporarily we do not think the case of Bemis v. Shipe applies as to any of the grounds upon which it was ruled, and the court below would have been entirely justified in following its inclinations instead of its interpretation of the case which, in its opinion, obliged it to rule otherwise. The articles levied upon were, as we view it, clearly personal property and, as they are not subject to taxation under the act of 1834, above mentioned, or any other law to which our attention has been called, we are of opinion that the decree of the court should be reversed.

Decree reversed, the plaintiff’s bill and the preliminary injunction granted thereon reinstated, and the record remitted to the court below for the purpose of making that injunction perpetual, as prayed for in the plaintiff’s bill. Costs to be paid by the appellee.