text:
    Paget v. Girard Trust Company, Appellant.

      Negligence — Sidewalk—Fall through cellar door.

    In an action to recover damages for personal injuries caused by a fall through a closed cellar door on the property of the defendant, it appeared that the plaintiff, a woman, was walking in broad daylight on defendant’s sidewalk, to escape from rain and without any invitation or knowledge of the defendant, took shelter under a shed and stepped upon a closed cellar door under the shed. The sidewalk at the place of the accident was thirteen feet wide. The house line receded at this point from the building line so as to leave a space of twenty feet between the house line and the curb. The outer edge of the cellar door was nearly two feet inside of the building line, and was raised three inches at the lower end and from seven to nine inches at the house line end. From the outer edge of the cellar door to the curb there was a space of fourteen feet nine inches which included the sidewalk of thirteen feet. Held, that the plaintiff was a trespasser who went upon the defendant’s premises for her own convenience, and was therefore not entitled to recover.
    Argued Oct. 13, 1910.
    Appeal, No. 83, Oct. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 1,190, on verdict for plaintiffs in case of Albert Paget and Mary Hannah Paget, his wife, in right of Mary Hannah Paget, and Albert Paget in his own right v. Girard Trust Company, trustee under the will of Thomas H. Powers, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Albert Paget for $50.00 and for Mary Hannah Paget for $150. Defendant appealed.

      Error assigned was in refusal of binding instructions for defendant and in refusing to enter judgment for defendant n. o. v.

      A. H. Wintersteen, for appellant.
    The plaintiff was a trespasser, to whom the appellant owed no duty: Thompson v. R. R. Co., 218 Pa. 444; Gramlich v. Wurst, 86 Pa. 74; Hardcastle v. Ry. Co., 4 Hurl. & N. 67; Knight v. Abert, 6 Pa. 472; Gillespie v. McGowan, 100 Pa. 144; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258; Rodgers v. Lees, 140 Pa. 475; Moore v. R. R. Co., 99 Pa. 301.
    The defendant was entitled to binding instructions or to judgment non obstante veredicto: Lonzer v. R. R. Co., 196 Pa. 610; Holland v. Kindregan, 155 Pa. 156; Cromley v. R. R. Co., 211 Pa. 429; Shannon v. McHenry, 219 Pa. 267.
    December 12, 1910:

      John J. Sullivan, for appellees.
    The defendant did owe the plaintiffs a duty in the premises: Rachmel v. Clark, 205 Pa. 314; Grier v. Sampson, 27 Pa. 183; Schilling v. Abernethy, 112 Pa. 437; Myers v. Snyder, Brightly, N. P. 489; Duffy v. Sable Iron Works, 210 Pa. 326.
   Opinion by

Morrison, J.,

The material facts established by the testimony are concisely stated by counsel for appellant in his history of the case, to wit:

“Mary Hannah Paget, the legal plaintiff’s wife, in the afternoon of October 27th, 1907, fell through a closed cellar door on property of the defendant, No. 4300 Ridge Avenue, Philadelphia. She was walking, with her husband and two other persons, east on Ridge Avenue. It was raining. To escape from the rain, without any invitation or knowledge on the part of the defendant, she took shelter under a shed upon the defendant’s property, and attempted to stand upon a closed cellar door occupying part of the space under the shed. The cellar door broke under her, and she was precipitated below. The sidewalk at the place of the accident was thirteen feet wide. The defendant’s house line recedes at the point seven feet four inches from the building line, leaving a space of twenty feet four inches between the house line and the curb. The outer edge of the cellar door was one foot nine inches inside of the building line, and was raised three inches at the lower end and from seven to nine inches at the house line end. From the outer edge of the cellar door to the curb there was a space of fourteen feet nine inches which included the sidewalk of thirteen feet. The injured woman, as stated, leaving the sidewalk, stepped under the shed, and up upon the closed cellar door, which gave way under her. The plaintiff claimed negligence on the part of the defendant in maintaining an unsafe cellar door. The defendant asked for binding instructions in its favor, on the ground that no negligence qua the injured party was shown, she being a trespasser. The' trial judge, in his charge, left the question of negligence to the jury, and also submitted to it whether or not the injured woman was guilty of contributory negligence.” The facts as above set forth were so clearly established by the testimony that they seem to have been adopted by the court and the respective counsel at the trial of the case. In our opinion the jury ought not to have been permitted to go outside of those facts in finding their verdict.

It is true that in his argument counsel for appellees now seeks to raise a question as to whether the testimony warrants the assumption that there was a three inch rise, above the pavement, at the outer edge or end of the cellar door. Upon this question the trial judge, in referring to the plan of the cellar door prepared by an engineer, said to the jury: “Instead of placing it flat on a level with the sidewalk, he raised it three inches at the lower end and seven or nine inches at the house line, so that anyone who walked upon the door stepped up at least three inches to get on it. From the outer edge of the cellar door to the curb there was a space of fourteen feet nine inches of pavement for people.to walk and stand upon.” We think the testimony fully warranted the trial judge in so saying to the jury and it does not appear that counsel for appellees took any exception thereto at the trial. Therefore we feel quite safe in assuming that the trial judge was right in his instruction to the jury as to the elevation of the cellar door above the sidewalk and pavement. Moreover, the testimony referred to for the purpose of arguing that the elevation of the cellar door was in dispute is so vague and uncertain that a jury should not be allowed to find a fact upon it as against the clear and precise testimony on that question by other witnesses. “When upon all the evidence no question of fact is left in doubt the trial judge should direct the verdict:” Cougle v. McKee, 151 Pa. 602. See also Holland v. Kindregan, 155 Pa. 156; Cromley v. Penna. R. R. Co., 211 Pa. 429. It thus appearing, when the testimony was all before the court and jury, that Mrs. Paget had fourteen feet and nine inches in width of smooth sidewalk to walk upon, and that the cellar door was under a shed or awning on appellant’s private property, and that it was above the level of the pavement, and that neither the appellant nor the tenant, in any manner, gave her any invitation or inducement to go upon said door, counsel for appellant took the position that Mrs. Paget was simply a trespasser upon appellant’s property, and it owed her no duty under the circumstances, and requested the trial judge to say to the jury that, “under all the evidence the verdict should be for the defendant.” This point was refused, and the questions of negligence of the appellant and contributory negligence of Mrs. Paget were submitted to the jury and they found in favor of the plaintiffs. Counsel then moved the court to certify the whole record and enter judgment thereon in favor of defendant non obstante veredicto. The court having refused the latter motion and granted judgment on the verdict, counsel for the appellant asked for an exception, which was granted, and the defendant appealed to this court.

The errors assigned here are: (a) the refusal of a binding instruction in favor of defendant, and (b) the refusal of judgment non obstante veredicto.

The controlling question raised by this appeal is, Was Mrs. Paget a trespasser to whom the appellant owed no duty in the premises? In our opinion, under the conceded facts in the case, the great weight of authority requires this question to be answered in the affirmative, and, therefore, the court erred in not granting judgment in favor of the defendant non obstante veredicto.

A trespasser is defined comprehensively in 29 Cyclopedia of Law, p. 444, as follows:

“A person going upon the premises of another is a trespasser if he does so out of curiosity, for his own purposes, or convenience, and voluntarily without invitation express or implied, and not in the performance of a duty to defendant, and without any enticement, allurement, inducement, or expressed or implied assurance of safety, or any business there, even though he is there by mistake.”

The duty to trespassers is defined in the same text authority, p. 442, as follows:

“The general rule is that no duty exists toward trespassers except that of refraining from wantonly or willfully injuring them. The principle that owners of property are bound to see that persons lawfully on such premises are not injured does not extend to those who are on the premises without right or without permission. So the owner of land is under no obligation or duty as to a mere trespasser to keep his premises in a suitable condition. The mere maintenance of a dangerous nuisance on one’s inclosed premises gives no right of action to one who without necessity and without the owner’s invitation express or implied enters on such premises and is injured thereby. And hence as to such trespassers the owner of the premises is not required to guard elevator shafts, trapdoors or holes, excavations, falling walls, dangerous passages, or stairways.”

Thompson v. Baltimore & Ohio Railroad Co., 218 Pa. 444, is a case where the doctrine enunciated in the above quotations from 29 Cyclopedia of Law, 442, 444, was applied by our Supreme Court where the injured party was a child eight years of age. But how much more do the facts in the present case call for the enforcement of this rule, when „the injured person is an adult and she voluntarily, in broad daylight, walked where she was not invited and where she had no right to be. In the Thompson case above the child was injured in the nighttime. We call especial attention to the cases cited by Mr. Justice Fell in Thompson v. Baltimore & Ohio Railroad Company, 218 Pa. 444. The latter authority has been cited in the following cases: Walsh v. Pittsburg Railways Co., 221 Pa. 463; Weaver v. Carnegie Steel Co., 223 Pa. 238; Millum v. Lehigh, etc., Coal Co., 225 Pa. 214.

That the above cases establish no new doctrine may be seen by referring to Gillis v. Penna. R. R. Co., 59 Pa. 129, where Mr. Justice Sharswood (p. 141) said: “It is, however, equally well settled that the owner of property is not liable to a trespasser, or to one who is on it by mere permission or sufferance, for negligence of himself or servants, or for that which would be a nuisance if it were in a public street or common, where all persons had a legal right to be without question as to their purpose or business.”

It cannot be well contended in the present case that Mrs. Paget had the legal right to leave the public street, with a wide smooth sidewalk, and go upon appellant’s private property and walk and stand on its cellar door. In Gramlich v. Wurst et al., 86 Pa. 74, it is said: “The law fully recognizes the right of him who, having the dominion of the soil, without malice does a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has wandered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term.”

If the appellant’s cellar door had been in or so near to the sidewalk that persons using the walk might .reasonably believe the door was a part of the walk, or might inadvertently get upon it while attempting to use the sidewalk, we can readily see why the cases cited by appellee’s counsel would be important. But this cellar door was not in the sidewalk and its construction and elevation, as well as its location, very plainly indicated to all persons using the walk that the cellar door was not intended to be walked upon. Moreover, Mrs. Paget does not claim that she was in any manner deceived into the belief that the door was a part of the walk; nor does she claim that by reason of it being close to the walk she inadvertently stepped upon it. But, on the contrary, she admits going off the walk deliberately onto private property, and of her own free will going upon the cellar door. We think the above facts distinguish this case from each and all of the cases cited and relied on by counsel for appellees, to wit: 29 Cyclopedia of Law, 443; Rachmel v. Clark, 205 Pa. 314; Hydraulic Works Co. v. Orr, 83 Pa. 332; Grier v. Sampson, 27 Pa. 183; Schilling v. Abernethy, 112 Pa. 437; Myers v. Snyder, Brightly N. P. 489.

We have examined a large number of other cases and the argument of appellee’s counsel, and the cases cited by him have received due consideration, but on all grounds the conclusion is forced upon us that the plaintiffs cannot recover because Mrs. Paget was a trespasser pure and simple and her injury is "damnum absque injuria.”

The assignments of error are sustained; the judgment is reversed, and judgment is here directed to be entered by the court below, on the whole record, in favor of the defendant non obstante veredicto.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Bixler v. Heilman, Appellant.

      Equity — Equity practice — Pleading—Responsive answer.

    1. Where a defendant in an equity suit goes upon the witness stand and his credibility is successfully impeached by evidence of his general reputation for truth and veracity, the force of his answer and the rule in equity as to the sufficiency of proof to overcome a responsive answer, will be satisfied by the positive and satisfactory testimony of one witness to the facts essential to a decree of the relief prayed for, corroborated by other facts and circumstances which give it greater weight than the answer, even though the circumstantial evidence standing alone would not be sufficient to make out every essential to a decree for the plaintiff.

      Deed — Cancellation of deed — Reading deed — Fraud—Evidence.
    2. Where a grantor in a deed prior to executing it says that she could not read it because she did not have her glasses, and the grantee undertakes to read it to her, but does not read it correctly, and the grantor is thereby deceived as to what she is conveying, the deed is voidable at her instance.

      Argued Oct. 18, 1910.
    Appeal, No. 171, Oct. T., 1910, by defendants, from decree of C. P. Franklin Co., Equity Docket, vol. 3, p. 99, on bill in equity in case of Annie E. Bentz Bixler and S. H. C. Bixler, her husband, v. George M. Heilman.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for cancellation of a deed.
    Gillan, P. J., filed the following adjudication and opinion:
    FINDINGS OF FACTS.
    1. On March 26, 1907, the plaintiff, Annie E. Bentz Bixler, became the owner of a lot of ground on east Baltimore street in the borough of Greencastle, about eighty-three and one-half feet and running back to a public alley 240 feet, and was still the owner of it at the time of the hearing in this matter.
    2. Prior to March 26, 1908, the defendants became the owners of a lot of ground adjoining the lot of plaintiffs on the east, and were still the owners of it at the time of the hearing in this matter.
    3. The plaintiffs and defendants, on March 26, 1908,
    , and prior thereto, lived on their respective properties.
    4. The defendant, George M. Heilman, was the owner of an automobile.
    5. The plaintiffs’ dwelling stands back from the street and is situate on the west side of the lot, covering a space of thirty to thirty-four feet; the east side of the lot adjoining the lot of the defendants was used as a lawn, and covered about fifty feet. At some time prior there had been a driveway over plaintiffs’ lot, but at the time of the occurrences complained of in this bill, and for a long time prior thereto it was not used as a driveway; but it was covered with grass, and was used as part of the lawn, and was being cared for as a lawn.
    6. About fifty feet from the street on the plaintiffs’ lot was a building fourteen by sixteen feet, erected as a wood-house and used as an outldtchen.
    7. A few days prior to March 26, 1908, while S. C. H. Bixler, one of the plaintiffs and husband of the other plaintiff, was standing on the lawn of their residence, he was approached by George M. Heilman, one of the defendants, and asked whether he would sell this building, saying that he would like to have it for his automobile. Dr. Bixler replied that he had not thought of it, and Heilman said, “If you will give me the privilege of coming in there with my automobile, I will buy it.” To this Dr. Bixler replied: “We have been mowing that, my wife enjoys that lawn, we would not like to cut it up.” There was some other conversation about moving the shed and moving the fence of the chicken yard, etc. Heilman then said: “You think what you want for it.” This ended 'the conversation.
    8. A few days after this Dr. Bixler met Heilman and said to him: “I will sell you that shed for $25.00, and I ought to have a dollar for moving the fences.” To this Heilman replied: “All right.” In this conversation nothing was said about right of way.
    9. Up to this time the plaintiffs and the defendant, George M. Heilman, had been friends; Dr. Bixler was a tenant of George M. Heilman, renting from him the room in which he conducted a drug store.
    10. A few days after the last conversation above mentioned George M. Heilman procured a deed to be written, being exhibit “A,” and the paper now sought to be canceled. On March 26, 1908, taking with him in his automobile W. A. McKinney, a justice of the peace, he went to the store of Dr. Bixler; they arrived there between two and three o’clock p. m., and passed into the store where Dr. Bixler was engaged with a customer; Heilman approached Bixler, saying he had a paper which he wanted him to sign; that he was in a hurry and wanted to make a train. Dr. Bixler said he was busy; Heilman replied, “It will take only a minute,” The customer agreed to wait, and Dr. Bixler passed to the rear of the store where Heilman handed him exhibit “A.” Dr. Bixler read it until he came to.the words, “buggy shed and wood-shed,” when Dr. Bixler replied that “This is not right.” Heilman replied that that was Mr. Patton’s mistake. Dr. Bixler said that it was a good deal of writing for a shed, and Heilman said, “I do everything legal.” Heilman said that it was all right; Dr. Bixler said, “-Between neighbors I trust you.” Heilman handed him an indelible pencil and said he was in a hurry, and Dr. Bixler signed the paper. Heilman called the justice and the doctor acknowledged it. The conversation between Heilman and Dr. Bixler was not in the hearing of anyone. Heilman folded the paper on the table before the justice came so that the justice could not read it, saying, that he did not nee'd to know their business.
    11. When Heilman told Dr. Bixler that he wanted to catch a train, he did not tell him the truth; he did not intend to take a train; his whole purpose in pretending to be in a hurry was to have Dr. Bixler sign without knowing the contents of the paper.
    12. Dr. Bixler did not know that any paper was to be prepared; he did not know when he signed it that it contained a grant of a right of way.
    13. Immediately after securing Dr. Bixler’s signature, Heilman entered his automobile, taking with him the magistrate, and went to the residence of Mrs. Bixler. Prior to that time the matter of the sale of the wood shed or of any portion of the property had never been mentioned between the plaintiff, Mrs. Bixler, and the defendant; she knew from her husband that he had been talking of selling the wood shed. When they reached the Bixler residence they were admitted to the hóuse by the plaintiff and passed into the reception room; Heilman asked the magistrate to remain in the reception room; and asked Mrs. Bixler to go with him into the dining room. The two passed into the dining room together; Heilman, having closed the door of the dining room, said to her, “Here is a paper for you to look at,” and produced paper exhibit “A.” She said, “I have not my glasses.” He replied, “Never mind, I will read it for you.” He then read it to her; he either did not read the paper correctly or di4 not ,rea4 it all, or rea4 it so in4ifferently that she 4i4 not un4erstan4 it. He then aske4 her to go with him into the reception room, han4e4 her an in4elible pencil, an4 she, having full confi4ence in him, signe4 the paper an4 acknowle4ge4 before the magistrate that it was her act an4 4ee4. The 4efen4ant, George M. Heilman, ma4e the same representation to her that he was in a hurry to catch a train, which representation was not true. At the time the plaintiff, Annie E. Bentz Bixler, signe4 paper exhibit “A” she 4i4 not know that it containe4 a provision granting the defen4ants the right of way over her lan4. After she ha4 signe4 it an4 acknowle4ge4 it, Heilman han4e4 her a check for $26.00, with the notation: “In full for she4 an4 right of way.” The plaintiff noticed that notation on the check, an4 when she saw this, it conveye4 to her the first information she receive4 that there was any right of way in the transaction. She aske4 Heilman what it meant, saying she 4i4 not un4erstan4 it. He replie4, in substance, that it was for a right of way over her lan4. She at once accuse4 him of getting it by frau4, tol4 him he ha4 never sai4 anything to her about it, an4 offere4 him his check back an4 4eman4e4 the 4ee4; he refuse4 to take the check an4 refuse4 to surren4er the 4ee4. He sent it to the county seat for recor4ing that same 4ay, and it was entered for record the following morning. That same evening Mrs. Bixler sent the check to him by mail; he returned it to her; she produced it in court; it has never been presented for payment. She tendered it to him again in court and the tender was refused; by permission of the court it was filed in the case.
    14. At the time these plaintiffs signed exhibit “A” neither of them knew that it contained a provision for a right of way over their lands, and George M. Heilman knew that they did not know it. When he said that he wanted the shed for his automobile he said what he knew was not true; he wanted it so that plaintiffs could not build next to his property.
    15. Neither of the plaintiffs at any time agreed to sell him a right of way over plaintiffs’ land.
    16. The consideration of $26.00 was wholly inadequate for what he would get by exhibit "A.” The right of way was worth at least $250, while the wood shed was worth at least $20.00.
    17. The reputation of George M. Heilman for truth and veracity is bad.
    18. There is no evidence that the defendants, Alice S. Heilman or Mary F. Heilman, knew anything about this transaction; neither of them filed an answer nor appeared in court, except to have counsel appear and waive service of the bill.
    19. The whole transaction was conducted by George M. Heilman, and the conveyance of the right of way was made at his dictation to the three, doubtless because the title to the property adjoining that in which they lived was in the three.
    20. Dr. S. H. C. Bixler did not have an opportunity to read the deed before he signed it; that he did not do so was because of George M. Heilman urging that he was in a hurry, and because of his confidence in the said George M. Heilman. George M. Heilman knew that Dr. Bixler had not read it, and knew that he did not know the contents.
    21. The purpose of the said George M. Heilman in keeping the contents of the paper from the knowledge of the magistrate was the fear that the magistrate might disclose the contents to the plaintiffs.
    22. Dr. Bixler learned of the contents of the check and what had occurred between Heilman and Mrs. Bixler when he went home to supper; he at once sought out Heilman, but failed to find him; he did find him about an hour afterward and asked him to let him see the paper; Heilman replied that he had sent it to Chambersburg.

      CONCLUSIONS OF LAW.
    1. The plaintiffs are entitled to a declaration and decree in manner and form as prayed for in their bill.
    2. The defendants must pay the costs.
    OPINION OF THE COURT.
    A recent writer in a legal publication reports Chancellor Kent as having said, when speaking of his work: “My practice was first to make myself perfectly and accurately (mathematically accurately) master of the facts. It was done by abridging the bill, and then the answers, and then the depositions; and by the time I had done this slow and tedious process, I was master of the cause and ready to decide it. I saw where justice lay, and the moral sense decided the court half the time; and I then sat down to search the authorities. I might once in a while be embarrassed by a technical rule, but I most always found principles suited to my views of the case.”
    After having considered the bill and answer in this case, heard the testimony of the witnesses, and again having gone carefully over the evidence as written out, I have no doubt where justice lies; the justice of the case is with the plaintiffs. • There is no doubt whatever in the mind of the court as to the true facts; there is no doubt whatever in our mind as to the defendant, George M. Heilman, having deliberately planned and successfully carried out a scheme to defraud a nervous, confiding old woman, entirely ignorant of business matters, and an unsuspecting old man of a valuable asset. Is there any technical rule of law which forbids our affording them relief to which in justice and morals they are entitled?
    We are met first with the proposition that the answer being responsive to the bill, the plaintiffs can have no relief unless the allegations of the bill are supported by two witnesses, or one witness and corroborating circumstances; the sworn answer of the defendant being equal to one witness, and the burden of proving that she is entitled to the relief prayed for being on the plaintiff, she cannot prevail unless she can offer more than one witness, or one witness and corroborating circumstances. Does the answer in this case stand as evidence in defendants’ favor? The force of the answer may be impeached by evidence showing that the defendant is not to be believed: 3 Green-leaf on Evidence, Lewis’ edition, sec. 289. As a general rule, however, extrinsic evidence is not admitted to destroy the effect of an answer by impeaching the credibility of the defendant; the reason for this is, that as the plaintiff makes the defendant his witness by reading his answer, he comes within the operation of the rule that forbids a party to show that his own witness is unworthy of credence: 6 Am. & Eng. Dec. in Eq. 80. The evidence impeaching the credibility of the defendant in this case was admitted without objection. In Maryland the answer is evidence against the plaintiff only when read by him at the hearing: Davis v. Crockett, 88 Md. 249. The plaintiff here did not offer defendant’s answer in evidence; it was offered by the defendant himself. It was said by the court of errors and appeals of New Jersey in Morris v. White, 36 N. J. Eq. 324, “Where the defendant does not rely on his answer alone, but offers himself as a witness, the rule that one witness is not sufficient to overcome a responsive answer to a material fact, under oath, is hardly applicable. The rule applies where the reason for it is found. The reason for the adoption of this rule by courts of equity is because, there being a single deposition only against the oath of the defendant in his answer, the denial of facts in the answer is equally strong with the affirmation of them by the deposition: 2 Dan. Ch. Pr. 985; or as it is stated in Gresley’s Eq. Ev. 4, this rule has been referred to the equitable principle on which it is grounded, namely, the equal right to credit which a defendant may claim when his oath, positively, clearly and precisely given, and consequently subjecting him to the penalty of perjury, is opposed to the oath of a single witness. But when the witness who opposes the answer is the defendant himself, the reason of the rule fails.” The only witnesses in the case as to the main facts are the two complainants and George M. Heilman, one of the defendants. It is manifest that the witness, McKinney, is mistaken as to the time the conversation to which Mrs. Bixler testified required. The complainants are husband and wife; it is no longer the law in Pennsylvania that, under such circumstances as are presented in this case, husband and wife are to be considered as one witness: Sharp v. Behr, 117 Fed. Repr. 864; Brenneman v. Rudy, 8 Pa. Dist. Rep. 68.
    “The testimony of a wife, supporting that of her husband, should at least be accorded the weight of a corroborating circumstance, which is sufficient to satisfy the equitable requirement:” Sharp v. Behr, 117 Fed. Repr. 864.
    Regarding the husband and wife, however, as two witnesses, they testify to different occurrences; at no time were the two plaintiffs and the defendant, George M. Heilman, brought together in the transaction. Granting for the sake of argument that we cannot consider that these two complainants, however, fill the requirement of two witnesses, because they did not testify to the same acts of conversations, do we not have circumstances which corroborate each one of them to such an extent as to afford sufficient evidence on which to base a decree for relief? First, as to the inadequacy of price; there is no doubt but that the granting of a perpetual right of way over the plaintiffs’ ground would materially decrease the value of it; we have found as a fact, on what we regard as sufficient evidence, that it was worth at least $250. In a town such as this, with such a property as this, it is surprising to the court that a higher estimate was not put upon it. It is said in 2 Pomeroy’s Eq. Jurisp., sec. 927: “Although the actual cases in which a contract or conveyance has been cancelled on account of gross inadequacy merely, without other inequitable incidents, are very few, yet the doctrine is settled by a concensus of decisions and dicta that, even in the absence of all other circumstances when the inadequacy of price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, it will be a sufficient ground for cancelling a conveyance or contract, whether executed or executory, even then fraud and not inadequacy of price is the true and only cause for the interposition of equity, and the granting of relief.” Surely then this inadequacy of price, connected with the other circumstances in this case, are sufficient evidence of fraud upon which to base a decree.
    What of the other circumstances of the case? Why was the deed prepared and the magistrate taken to the complainants without any notice? The defendant does not pretend that anything had been said as to the preparation of the deed; the defendant does not say that he had talked the matter over with Mrs. Bixler, the owner of the land, but he says that she wanted to talk with him about it and he refused to talk to her, telling her that he had talked to her husband; yet he had a deed prepared, takes it to the husband, and gets it signed, then goes to the wife and has her sign it in the absence of her husband, and with her husband’s signature already obtained. He hands her a check for the consideration. If all the dealings had been with the husband, why was the defendant so particular to hand the check to the wife? What would have been the rational way to proceed if this were an honest transaction? If the defendant had, through the husband, purchased what he claims; if he refused to talk to the wife about it, would he not have discussed with the husband the preparation of the deed? Would he not, when the deed was prepared, have asked the husband when it would suit for the wife to execute it? Would he not have allowed the husband to take it to the wife instead of taking it himself and hurrying her into the execution of it? There is nothing to show any necessity for great haste; there is no necessity for the concealment from the magistrate. After he had secured it, which was between two and three o’clock in the afternoon (having concealed from the magistrate), he, that same evening, sent it to Chambersburg to have spread on the public records. All this, it seems to us, is wholly inconsistent with the theory of an honest purpose. The fact that the plaintiffs, immediately after the deed was executed, sought to be relieved from it is strong evidence corroborating their statement of what occurred at the time of its execution. While it is true that there may have been no false statements directly made by the defendant to the plaintiffs as to the contents of the paper, yet fraud may be by acts, and when Dr. Bixler said to him, “This is a good deal of writing for a shed,” he knew that Dr. Bixler did not know the contents of the paper. When he replied, “I do everything legal,” he knew he was saying that which tended to throw the doctor off his guard, and must have been for the purpose of deception. It is not, however, in one specific act, but all together which goes to make up the sum of fraud practiced by the defendant.
    We are well aware that, not only by authority, but on principle, a chancellor will more readily refuse to decree a specific performance of an executory contract than to cancel an executed contract. While this contract has been executed and delivered, the defendant has not taken possession of that which he claims to have purchased. A cancellation of the deed will put them in the same position they were before it was executed. Fraud vitiates all contracts, and a deed procured by such means will be set aside.
    It is insisted by the defendants with great earnestness that the plaintiffs cannot have relief because they each had an opportunity to read the deed before executing it and did not do it. “If the party that is to sell the deed can read himself and doth not, or being illiterate or blind doth not require the deed read or the contents thereof declared, in these cases, albeit the deed is contrary to his mind, yet it is good and unavoidable:” Gibson, C. J., in Greenfield’s Est., 14 Pa. 489.
    Here the owner of the easement purporting to be conveyed stated to the grantee that she could not read because she did not have her glasses, and he undertook to read it to her, but did not read it correctly; therefore, he is not protected by the above-quoted principle. If the grantors, or either of them, were fraudulently kept in ignorance of the contents of the paper, they are not bound by it: Campbell’s App., 80 Pa. 298; Shedwick v. Church, 160 Pa. 57.
    DECREE.
    And now, March 22, 1910, this cause having been heard on bill, answer and testimony, and having been argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed that the said alleged deed from said Annie E. Bentz Bixler and S. H. C. Bixler, her husband, to said George M. Heilman, Alice S. Heilman and Mary F. Heilman, dated March 26, 1908, and recorded in Deed Book, vol. 148, p. 453, in the office of the recorder of deeds for Franklin county, is fraululent, void and of no effect, and the defendants, the said George H. Heilman, Alice S. Heilman and Mary F. Heilman, are hereby directed to execute a reconveyance of the right of way over the tract of land as described therein to Annie E. Bentz Bixler, one of the above-named plaintiffs. It is further ordered, adjudged and decreed that the said alleged deed from Annie E. Bentz Bixler and S. H. C. Bixler, her husband, dated March 26, 1908, and recorded in the office of the recorder of deeds for Franklin county in Deed Book, vol. 148, p. 453, be canceled and delivered up to the plaintiffs, and that the defendants pay the costs of this proceeding. The prothonotary will enter this decree nisi, and if within ten days from this date, no exceptions be filed, the decree to become final.

      Error assigned was the decree of the court.

      Walter K. Sharpe, with him Irvin C. Elder, for appellants.
    To have a deed canceled or reformed on the ground of fraud, the evidence must be clear, precise and indubitable: Cummins v. Hurlbutt, 92 Pa. 165; Rowand v. Finney, 96 Pa. 192; North v. Williams, 120 Pa. 109; Phillips v. Meily, 106 Pa. 536; McClain v. Smith, 158 Pa. 49.

      December 12, 1910:
    The answer of the defendants is responsive to the bill and the plaintiffs are further met by the rule that “a court of equity will not give relief where the answer of the defendant expressly negatives the material allegations of the bill and the evidence of only one person without corroborating circumstances affirms what has been so negatived:” Nulton’s App., 103 Pa. 286; Burke’s App., 99 Pa. 350; Delaney v. Thompson, 187 Pa. 343.
    The testimony of each plaintiff as to a separate transaction between such plaintiff and the defendant cannot be used each as a corroboration of the other and a case thus made out: Sower v. Weaver, 78 Pa. 443; Pioso v. Bitzer, 209 Pa. 503.
    As a general rule, extrinsic evidence is not admissible to destroy the effect of an answer by impeaching the credibility of the defendant: Butler v. Catling, 1 Root (Conn.), 310; Chambers v. Warren, 13 Ill. 318; Brown v. Bulkley, 14 N. J. Eq. 294; Fant v. Miller, 17 Gratt. (Va.) 187; Powell v. Manson, 22 Gratt. (Va.) 177.
    If a party who can will not read a deed put before him for execution, or being unable to read will not demand to have it read or explained to him, he is guilty of supine negligence which is not the subject of protection either in equity or law: Greenfield’s App., 14 Pa. 489; Hicks v. Harbison-Walker Co., 212 Pa. 437; Coppes v. Keystone Paint, etc., Co., 36 Pa. Superior Ct. 38; Fry v. Nat. Glass Co., 207 Pa. 505.
    Mere inadequacy of price is not ground for rescission of an executed contract: Davidson v. Little, 22 Pa. 245; Graham v. Pancost, 30 Pa. 89.

      Watson R. Davison, with him William R. Davison and D. Watson Rowe, for appellees.
   Opinion by

Rice, P. J.,

What quantity of evidence is required, to overcome a responsive answer has been variously stated. In Eaton’s App., 66 Pa. 483, a leading case, it is said to be “the testimony of two witnesses or of one witness corroborated by circumstances elsewhere in evidence.” Other cases, in which the rule is stated in substantially the same way, are Cresson’s App., 91 Pa. 168; Gleghorne v. Gleghorne, 118 Pa. 383; McGary v. McDermott, 207 Pa. 620. In other cases the requirement is said to be “the evidence of two witnesses or of one witness and strong corroborating circumstances”: Eberly v. Groff, 21 Pa. 251; Pusey v. Wright, 31 Pa. 387; Delaney v. Thompson, 187 Pa. 343. In other cases the expression is, “contradicted by two witnesses or one witness and corroborating circumstances equivalent to a second witness”: Sylvius v. Kosek, 117 Pa. 67; Mason v. Smith, 200 Pa. 270; Real Estate & Mtg. Co. v. Cook, 223 Pa. 158. While in still others it is said that the answer is conclusive in defendant’s favor “unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other circumstances and facts which give it greater weight than the answer, or which are equivalent in weight to a second witness”: Burke’s App., 99 Pa. 350; Galbraith v. Galbraith, 190 Pa. 225; Bussier v. Weekey, 11 Pa. Superior Ct. 463-474; Goggins v. Risley, 13 Pa. Superior Ct. 316; Story’s Eq. Jurisp., sec. 1528. In McCullough v. Barr, 145 Pa. 459, after stating that relief in equity is only given where the right to it is clearly made out, Justice Mitchell used this language: “Hence, if the facts out of which a right grows are denied by respondent under oath, there must be more than the complainant’s oath to overcome it. This is the substance of the rule; and it is not to be so fettered by technical limitations as to impair its real meaning, especially since parties have been made competent witnesses, and their testimony thus put on an equality, not only as to each other, but as to other evidence.” There is much force in the contention that the rule cannot be invoked by a defendant who is proved to the satisfaction of the judge sitting as a chancellor to be a person of bad reputation for veracity and not to be believed. This contention seems to have been sustained in Miller v. Tollison, Harp. Eq. (S. C.) 145, cited in 3 Greenl. Ev. (16th ed.), sec. 289, but in several other jurisdictions it has been held to be incompetent to discredit the answer by impeaching the general character of the defendant for truth and veracity. See cases cited in 6 Am. & Eng. Dec. in Eq. 80, and particularly Brown v. Bulkley, 14 N. J. Eq. 294. There seems to be no reported case in Pennsylvania directly on the point, but it has been held that the force of the answer is weakened, if not wholly destroyed, by the contradictory evidence of the defendant given on the witness stand. “When a party is permitted to testify, and does testify in conflict with his answer, it will not do to hold that his testimony shall be disregarded and his answer stand wholly unimpeached”: Mercur, J., in Spencer & Newbold’s App., 80 Pa. 317. So in Columbia Avenue Savings Fund, etc., Co. v. Lewis, 190 Pa. 558, it was said: “His (the defendant’s) testimony was in a measure contradictory of his answer; not sufficiently so, perhaps, to overcome its effect as evidence, but enough to weaken its force.” Whilst we are not prepared to go to the full extent of the ruling in Miller v. Tollison, Harp. Eq. (S. C.) 145, we are of opinion that where the defendant goes upon the witness stand and his credibility is successfully impeached by evidence of his general reputation for truth and veracity, the force of his answer is weakened and the rule in equity will be satisfied by the positive and satisfactory testimony of one witness to the facts essential to a decree of the relief prayed for, corroborated by other facts and circumstances which give it greater weight than the answer, even though the circumstantial evidence, standing alone, would not be sufficient to make out every essential to a decree for the plaintiff. Thus viewing the case, it is not necessary to decide that the testimony of the two plaintiffs was tantamount to more than the testimony of a single witness, or that each corroborated the other, although, speaking for myself, I think both propositions could be decided contrary to the appellant’s contention. Treating their testimony as that of a single witness, and assuming that, notwithstanding the suc¿essful impeachment of the defendant’s character for truth and veracity, it was still incumbent on the plaintiffs to prove strong, corroborating facts and circumstances in addition to their testimony, we are of opinion that they made out a case which entitled them to the relief prayed for. These corroborating facts and circumstances are fully set forth in the findings and opinion of the learned judge below, and need not be restated by us. We think also that the learned judge has satisfactorily shown that the principle of Greenfield’s Est., 14 Pa. 489, and kindred cases, cannot preclude the plaintiffs from demanding that the deed be cancelled, in view of the evidence going to show that the defendant, by his declarations and conduct, induced them to forego reading the entire deed before executing it.

The decree is affirmed at the costs of the appellant.


author: Orlady, J.,

text:
    Silverman v. Safety Mutual Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Evidence—Proof of damages — Question for jury.

    In an action upon a policy of fire insurance where the only question is the amount of the loss, and there is sufficient evidence produced by the plaintiff to show the extent of his loss, and this evidence is not contradicted, the case is for the jury, and a judgment and verdict for plaintiff will be sustained.
    Argued Oct. 19, 1910.
    Appeal, No. 32, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 610, on verdict for plaintiff in case of Morris Silverman v. The Safety Mutual Fire Insurance Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.

      December 12, 1910:
    Assumpsit on a policy of fire insurance. Before Audenried, J.
    At the trial the plaintiff claimed $1,000 for a loss occurring by the burning of his stock of goods. He introduced evidence as to the value of the goods based on estimates made by himself and others, and by bills and books of account.
    The defendant introduced no testimony.
    Verdict and judgment for plaintiff for $1,153.33. Defendant appealed.

      Errors assigned were various portions of charge and answers to points.

      B. I. DeYoung, for appellant.

      Henry N. Wessel, with him Alfred Aarons, for appellee.
   Opinion by

Orlady, J.,

The .only exceptions taken in the trial below, were to the answers to the eleventh and sixteenth points presented by the defendant’s counsel, which were in effect, that under the pleadings and evidence the verdict must be for the defendant. The charge of the court was so fair and adequate that no exception was taken to it, and the main contention was in regard to the sufficiency of the evidence to establish the amount of the plaintiff’s loss.

No exception was taken to the admission of evidence and it is not necessary for us to analyze the testimony as there was sufficient competent evidence to require the court to submit the case to the jury, and it was their exclusive province to pass upon the credibility of witnesses, weigh the evidence and ascertain the facts. A subsequent examination of the record induced the trial judge to dismiss a motion for a new trial and overrule a motion for a judgment non obstante veredicto, and to this action no exception was taken.

The judgment is affirmed.


text:
    Commonwealth v. Stewart, Appellant.
    December 12, 1910:

      Criminal law- — Suspension of sentence — Promise of district attorney,

    The court of quarter sessions cannot be deprived of its right to sentence a prisoner charged with bribery, to fine and imprisonment on a plea of nolo contendere, by a promise of the district attorney not concurred in by the court, to suspend sentence if the prisoner would enter such a plea and reveal all he knew about the crime.
    Argued Nov. 14, 1910.
    Appeal, No. 23, April T., 1911, by .defendants, from order of Q. S. Allegheny Co., March Sessions, 1910, No. 430, refusing to suspend sentence in case of Commonwealth v. Charles Stewart, Hugh Ferguson and William Brand.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition to suspend sentence. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order of the court refusing to suspend sentence.

      W. A. Stone, of Stone & Stone, for appellants.

      Warren I. Seymour, with him W. A. Blakeley, for appellee.
   Opinion by

Rice, P. J.,

The indictment against the appellant and others con- • tained six counts, and, speaking generally, charged conspiracy to cheat and defraud the city of Pittsburg, and to secure the passage of an ordinance providing for the selection of six banks as depositories of city moneys by bribery of themselves and other members of council; and averred as overt acts the acceptance of bribes from said banks. On April 4, 1910, the defendant pleaded nolo contendere, and when called for sentence at a later date' presented to the court a petition, concluding, with the prayer that an order be entered by the court suspending sentence in the case or postponing the same indefinitely. This petition averred that on March 21, 1910, the defendant read in a newspaper a report of proceedings that had taken place in court in connection with a petition which the district attorney had presented, in the course of which proceedings, according to the newspaper report, the district attorney said in his oral address to the court: ££I feel that any of those councilmen who have received money, if they come to me or to this court and tell the truth, should be shown some consideration. I therefore make this promise publicly, that if any of those who are involved, come to me and tell the truth, that I will later come into this court and ask for a suspension of sentence in their cases. As far as I can see, there is no other way of ending it.” If this had been the only averment relative to what took place in court, it would be clearly immaterial as being merely an averment that certain things appeared in the newspaper that the defendant read. But it was immediately followed by another averment that this statement of the district attorney was made in court; also, that thereupon several councilmen were indicted and pleaded nolo contendere, and that sentences upon them were suspended by the court. There was also an averment as to what was said by the judge presiding on the occasion above referred to, but as those remarks plainly pertained to the propriety of allowing the petition then presented, and neither directly nor indirectly held out a promise to suspend sentence in any case, they need not be recited here. It was further alleged in the petition that at a later date the defendant read a newspaper report of certain remarks said to have been made by the president judge, sitting as a committing' magistrate, at the hearing of the case of one Richard Armstrong, and thereupon consulted his counsel as to what he had better do; that his counsel deferred advising him until after he should confer with the district attorney; that his counsel conferred with the district attorney, who assured counsel that the same immunity would be extended to the defendant as to others; that thereupon his counsel advised the defendant to plead nolo contendere, and to make a full and true statement to the district attorney of his connection with and knowledge of the passage of the ordinance and the receipt and payment of money by him and others; that, pursuant to this advice, he made a full statement and confession to the district attorney, and, at his request, testified fully before the grand jury, “confessing to his own illegal acts, and testifying to facts against himself, that would incriminate him;” and that subsequent to making his confession and statement to the district attorney he entered a plea of nolo contendere; all of which, the petition averred, he was induced to do by the public action of the court and the district attorney. The latter did not, at that time, file a formal answer to the petition, but enough appears in the bill of exceptions to show that he disputed some of its material allegations, particularly those relating to the remarks made by him, and that in view of his denial, the defendant asked leave of court to amend his petition by adding a request that “an opportunity, by inquiry in such a way as the court may determine, may be given this petitioner to prove what he alleges those remarks were.” The court permitted the amendment to be made, but denied the prayer of the original petition and the petition as amended, and thereupon sentenced the defendant.

The appellant’s statement of the questions involved, as well as three of the four assignments of error, are based on the assumption that the petition distinctly averred that'the court concurred in the promises relative to suspension of sentence alleged to have been made by the district attorney. We have examined the petition with great care, and are constrained to the conclusion that it does not sustain this construction. Assuming for a.moment the absolute truth of the averment, that the district attorney said in the presence of the court “that if any of those who are involved come to me and tell the truth, I will later come into this court and ask for suspension of sentence in their cases,” it is apparent that this fell far short of a promise of immunity from punishment concurred in by the court. All that the district attorney was alleged to have promised was to ask for a suspension of sentence; the court neither byword nor act held out the promise that suspension of sentence would be granted in every instance in which the district attorney should ask for it. The fact that the court did in many instances suspend sentence, warranted no person in assuming that this would be done in his case. Moreover, the court knew what it had said and done, and no testimony was necessary to enable it to determine that fact. So far then as a request to take testimony related to what the court said and did, it was properly refused.

But it is urged that the petition alleged other facts concerning which the court would not necessarily have knowledge, and that as to these allegations the defendant ought to have had an opportunity to present testimony. The allegations particularly referred to are as to the promises made by the district attorney. In discussing the propriety of the refusal to receive testimony as to these disputed allegations, it is important to notice that the question before the court was not as to the right of the commonwealth to use against the defendant the confession he had made. If that had been the question, the defendant would have had a right to examine fully the witnesses called by the commonwealth to establish the alleged confession in order to ascertain whether it was made voluntarily or was made under the inducement of a promise that would vitiate it as evidence against him. But as we have said, that was not the question before the court; the question was whether judgment should be entered on the plea. There was no attempt to use the confession against the defendant at that time, and while it is stated in the appellant’s history of the case that he appeared before the grand jury and testified to incriminating facts against himself before the indictment against him was submitted to the grand jury, this is vigorously denied in the commonwealth’s brief. Recurring to the record, by which alone we must be guided, we find that the defendant’s petition contained no distinct allegation that his confession had been used to obtain the indictment against him, or that the time when he appeared before the grand jury and testified was prior to the finding of the indictment. It is sufficient to say, with regard to a proposition which assumes either of these facts, that it is without support in the record proper or in the petition which was brought upon the record by the bill of exceptions, and, therefore, need not be further discussed. Another very important point to be noticed is that the defendant’s application was not to withdraw his plea and to plead not guilty, but to have sentence suspended or postponed indefinitely. Indeed, it was made plainly apparent by his petition that he desired not to withdraw his plea but to permit it to stand, and be, with a suspension of sentence, an insuperable bar to the trial of the case before a jury. If the promises of the district attorney, alleged in the petition, would entitle him to take that position — in other words, if they would furnish a conclusive legal bar to a sentence upon the indictment — then we agree with the appellant’s counsel that he ought to have been permitted to prove them. But if they would not, then no error was committed in denying the petition. As already pointed out, the remarks of the district attorney, alleged to have been made in court, did not hold out an unqualified promise of immunity to anyone, and it is questionable whether the statement alleged to have been made to the defendant’s counsel amounted to more than an assurance that the general promise, alleged to have been made in court, held good as to the defendant and would be carried out in his case. Granting, however, for the sake of the argument only, that it may be construed as an express and unqualified stipulation for immunity, the objection arises that the court was not legally bound to enforce it by an indefinite suspension of sentence. The duty of the district attorney to conduct criminal prosecutions embraces whatever is properly necessary to bring the accused to trial. His powers, in the conduct of the case, are very extensive, but in Pennsylvania they do not include the power to enter a nolle prosequi upon an indictment without the consent, in writing, of the court; a fortiori they do not include the power to control, or stay for all time, the judgment of the court upon a verdict of guilty, or a plea of guilty or of nolo contendere. We do not deem it necessary to elaborate further upon this proposition.

It follows that, even if the petition of the district attorney and the stenographic report of what was said at the time sentence was imposed (both of which were filed after the appeal was taken and perfected), be disregarded, as we think they must be, and if a review of the case must be confined to a consideration of what appears in the record proper, and what was brought upon the record by the bill of exceptions, no error was committed in denying the petition and sentencing the defendant.

The judgment is affirmed, and the record is remitted to the court of quarter sessions of Allegheny county with directions that the judgment be fully carried into effect, and to that end it is ordered that the appellant forthwith appear in that court, and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.


text:
    Commonwealth v. Ferguson, Appellant.

      Criminal law — Pleading—Sentence—Nolo contendere.

    1. A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion.
    2. The court may impose a sentence of imprisonment under a plea of nolo contendere.
    3. Where the record of a criminal proceeding shows a plea of nolo contendere indorsed on the indictment and signed by the defendant and the docket entries show that on the day that the plea was entered the defendant appeared in open court and pleaded nolo contendere, and at a later date was sentenced, the action of the court in sentencing the defendant clearly imports an acceptance of the plea.
    4. On the trial of an indictment in the quarter sessions for conspiracy, an arraignment is not necessary; nor is it necessary that the record should show that the defendant was interrogated before sentence.
    Argued Nov. 14, 1910.
    Appeal, by Hugh Ferguson, from judgment of Q. S. Allegheny Co., March T., 1910, No. 430, on a plea of nolo contendere in case of Commonwealth v. Hugh Ferguson et al.
    Before Rice, P. J., Henderson, Morrison, Orlad y, Head, Be ayer and Porter, JJ.
    Affirmed.
    Indictment for conspiracy. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were as follows:
    1. Error was committed in the court below position of a sentence of imprisonment on the plea of nolo contendere, because a plea of nolo by the imappellant’s contendere does not justify a sentence of imprisonment but only a fine.
    2. Error was committed in the court below because the appellant’s plea of nolo contendere was not pleadable in the crimes of conspiracy for which the appellant stood indicted as the said plea of nolo contendere is pleadable only in light misdemeanors not involving imprisonment.
    3. Error was committed in the court below in that the appellant’s plea of nolo contendere was not entered by leave of court and the record does not show any such leave of court.
    4. Error was committed in the court below in that it does not appear that the appellant’s plea of nolo contendere was accepted by the court.
    5. Error was committed in the court below in that it does not appear that the appellant’s plea of nolo contendere was pleaded in open court.
    6. Error was committed in the court below in that the appellant was neither in fact nor is alleged in the record to have been interrogated before sentence as to whether or not he had anything to say why sentence should not be imposed upon him which right of interrogation was substantial, because thereby the appellant was deprived of his legal right to show to the court circumstances, if not of innocence, at least of mitigation of the crimes alleged.
    7. Error was committed in the court below in that the appellant was neither in fact nor is alleged in the record to have been interrogated before sentence as to whether or not he had anything to say why sentence should not be imposed upon him, which right of interrogation was substantial, because thereby the appellant was deprived of his legal opportunity, as he was able so to do, to show that the said plea was pleaded by him under an express promise of immunity made publicly in open court by the district attorney of Allegheny county and concurred in by the court below and made the subject of public and published comment, on the faith which the appellant entered the said plea of nolo contendere, which was thus in fact and in law not voluntary and, therefore, could not be the legal basis for judgment or sentence.
    December 12, 1910:
    7. Error was committed in the court below in that it does not appear that the appellant was present at the imposition of sentence, which right of presence is necessary to be shown in the record in any case involving corporal punishment.
    9. Error was committed in the court below in that the proceedings in the said court below violated the constitu-' tional rights of the appellant under sec. 9 of art. I of the constitution of the commonwealth of Pennsylvania by depriving the appellant of his liberty and property without the judgment of his peers or the law of the land.
    10. Error was committed in the court below in that the proceedings in the said court below violated the constitutional rights of the appellant under the fourteenth amendment of the constitution of the United States by depriving the appellant of his liberty and property without due proceess of law.

      Thomas James Meagher, with him Francis M. McAdams, for appellant,
    cited: Reg. v. Templeman, 1 Salk. 55; Buck v. Com., 107 Pa. 486; Com. v. Holstine, 132 Pa. 357; Consolidated Ice Mfg. Co. v. Medford, 18 Pa. Dist. Rep. 293; Vincent v. Huff, 4 Serg. & Rawle, 298; Com. v. Preston, 188 Pa. 429; Rex v. Garside, 2 Adolphus & Ellis, 266.

      Warren I. Seymour, with him William A. Blakeley, for appellee.
   Opinion by

Rice, P. J.,

A plea of nolo contendere, when accepted by the court, is, in its effect upon the case, equivalent to a plea of guilty. It is an implied confession of guilt only, and cannot be used against the defendant as an admission in any civil suit for the same act. The judgment of conviction follows upon such plea as well as upon a plea of guilty. But there is a difference between the two pleas in that the defendant cannot plead nolo contendere without the leave of the court. If such plea is tendered, the court may accept or decline it in its discretion: Com. v. Ingersoll, 145 Mass. 381; State ex rel. v. Hudson Q. S.,46 N. J. L. 112; State v. Conway, 20 R. I. 270; Doughty v. DeAmoreel, 22 R. I. 158; United States v. Hartwell, 3 Cliff. 221-232; State v. Siddall, 103 Me. 144. This is the generally accepted view in the jurisdictions of this country where the practice of entering and accepting such plea is recognized: 12 Cyc. L. & P. 354; 29 Cyc. L. & P. 1053; 2 Ency. Pl. & Pr. 78; Wharton’s Cr. Pl. & Pr. (9th ed.), sec. 414. And it is the view recognized in Pennsylvania: Buck v. Com., 107 Pa. 486; Com. v. Holstine, 132 Pa. 357. It would seem that at one time in England the plea was accepted only in cases where a fine was to be imposed: 2 Hawkins’ P. C., c. 31, sec. 3. But in none of the above-cited American cases is it decided that if the court accepts the plea, ¡and the offense is punishable by imprisonment, the defendant may not be sentenced to imprisonment. On the contrary, the sentence under consideration in State ex rel. v. Hudson Q. S., 46 N. J. L. 112, as well as Com. v. Holstine, 132 Pa. 357, was to imprisonment. In the latter case the court said: “The defendant, appellant, was indicted in the court below for selling liquor without a license. To this indictment he pleaded non volo contendere. This, although not technically a plea of guilty, is so in substance, and justifies the court in imposing sentence.” This clearly implies that the sentence would have been supported by the plea even if the facts of the case had not been brought on the record.

But it is urged that the sentence was illegal because the record does not show by express words that the plea was accepted or was entered by leave of court. To this it is enough to say that there is nothing on the record, as there was in Com. v. Ingersoll, 145 Mass. 381, from which it may be inferred that the court entered judgment otherwise than'upon the plea or did not accept the plea. The plea indorsed on the indictment and signed by the defendant shows that it was entered on a certain date, and the docket entries show that on that day the defendant in open court pleaded nolo contendere, and that at a later date he was sentenced. In view of the state of the record, the action of the court in sentencing the defendant clearly imports an acceptance of the plea.

As this was not a case triable solely in the oyer and terminer, arraignment was not necessary. In the absence of anything to show the contrary, it is to be presumed that the plea was entered in open court, as the docket entries plainly show, and that the defendant was present in court when the sentence was imposed: Hazlett v. Com., 1 Pitts. 169; Holmes v. Com., 25 Pa. 221.

The only other objection requiring notice is that the record fails to show that the defendant was interrogated, before sentence, whether he had anything to say why sentence should not be imposed on him. In capital cases, it is essential that this- shall appear of record, but this is not the rule in misdemeanors. The record does not show, and it is not to be presumed, that the defendant was denied the right to be heard in mitigation of sentence.

All of the assignments of error must be overruled.

The judgment is affirmed, the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court, and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.


author: Porter, J.,

text:
    Levi, Appellant, v. Oakmont Borough.

      Road, law — Street in borough — Paving and curbing — Two-thirds of property owners — Railway tracks.

    1. Where the right of way and tracks of - a railroad occupy the entire frontage on the west side of a borough street, and a petition is presented to the borough counsel for the paving and curbing of the street, the railway company will not be liable for an assessment for such paving and curbing, and therefore need not be counted as an owner within the meaning of the Act of April 23,1889, P. L. 44, which requires that signers of a petition to pave and curb shall represent “not less than two-thirds in number of feet of the properties fronting or abutting on said street.” In such a case if the owners of two-thirds in number of feet of the properties abutting on the east side of the street sign the petition, the borough authorities will have jurisdiction.
    2. The fact that a petition under the Act of April 23, 1889, P. L. 44, includes the word “grade” in addition to “pave and curb,” will not defeat the jurisdiction of the court, where it appears as a fact that there was no grading or only such slight grading as is incidental to all paving.
    3. When an improvement of a street is petitioned for under the Act of April 23, 1889, P. L. 44, the proceeding is subject to the discretion of-the municipal authorities to regulate the width of the cartway and sidewalks and to fix the curb line.
    4. Where a petition is presented to councils to pave and curb a street, the west side of which abuts upon the right of way and tracks of a railroad company, the borough authorities may fix the west curb line of the street parallel with and five feet distant from the west side of the street, thus leaving a sidewalk five feet wide next to the right of way of the railway company.
    Argued April 21, 1910.
    Appeal, No. 68, April T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1908, No. 814, dismissing bill in equity in case of Ernest R. Levi v. Oakmont Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction to'restrain the defendant from filing a municipal lien against the property of the plaintiff on the east side of Oakmont avenue.

      Shafer, J., found the facts to be as follows:
    1. The borough of Oakmont is a borough in the county of Allegheny, through which the Allegheny Valley Railroad passed, and Oakmont avenue, the street in question, is a street of the borough running parallel with, and immediately adjacent to the right of way of the railroad, so that on the west side of the avenue there is no property except that occupied by the right of way, which is used exclusively for railroad purposes.
    2. On the easterly side of the avenue there are twenty-nine properties in the part of the street in question in this case, including plaintiff, who owns about 200 feet front, the whole frontage being over 3,700 feet.
    3. On or before September, 1907, a petition signed by twenty-five of the twenty-nine property holders before mentioned, representing over 3,100 feet frontage, was presented to the council of the borough, praying for the grading, paving and curbing of the street, the cost and expenses to be assessed under the act of April 23, 1889, and its supplements, whereupon the council, on September 2, 1907, passed an ordinance, reciting the petition providing for the making of the improvement prayed for, and letting a contract therefor, and a contract was thereupon made, as set out in the bill, and the work completed some time in November, 1907, and an assessment made against the abutting property holders on the easterly side of the avenue, the assessment against plaintiff being $606.
    4. During all the time from the presentation of the petition up to the present time, plaintiff has lived upon the lot in question, and was aware of the passing of the ordinance and the paving of the street as the work was done.
    5. There is a street car track on the avenue, about five feet from the westerly side, which was already paved between the tracks by the street car company. The paving directed by the borough and charged for, was the paving of the street east of the street car track, leaving the five feet next to the railroad unpaved.
    The court entered a decree dismissing the bill.

      December 12, 1910:

      Error assigned was decree of the court dismissing the bill.

      B. A. Balph, with him James A. Balph, for appellant.—
    Proceedings for the charging of lands with the cost of. local improvements, are creatures of statute which must be followed strictly: Pittsburg v. Walter, 69 Pa. 365; Commissioners of Kensington v. Keith, 2 Pa. 218; Queen St., 18 Pa. Superior Ct. 241; Wilson v. Allegheny City, 79 Pa. 272; Coxe v. Philadelphia, 47 Pa. 9.
    We contend that the legislature cannot, in advance, arbitrarily fix the benefits arising from a public improvement in every locality: Seely v. Pittsburg, 82 Pa. 360; Hammett v. Philadelphia, 65 Pa. 146.
    There is no authority to place the two-thirds of the costs upon the properties on the east side of the avenue: Ebensburg Boro. v. Little, 28 Pa. Superior Ct. 469; Agens v. Mayor, etc., of Newark, 37 N. J. L. 415.
    The court has found as a fact that the appellant lived along the line of the avenue, and was aware of the improvement. That is true; but that fact does not estop the appellant from defending against the payment of the assessment: City of Bradford v. Fox, 171 Pa. 343.

      H. J. Thomas, of Thomas & Meals, for appellee,
    cited: McMarlin v. Butler Boro., 41 Pa. Superior Ct. 20; Allegheny City v. R. R. Co., 138 Pa. 375; McGonigle v. City of Allegheny, 44 Pa. 118; Ebensburg Boro. v. Little, 28 Pa. Superior Ct. 469.
   Opinion by

Porter, J.,

The plaintiff is a resident of the borough of Oakmont, in the county of Allegheny, and owns a lot fronting on the east side of Oakmont avenue, in said borough. There was, in the year 1907, presented to the council of the borough a petition signed by the owners of a large number of lots fronting on said avenue, stating that the signers were “more than two-thirds of the owners of property representing more than two-thirds in number of feet of the properties fronting or abutting on the avenue,” and praying the council “to grade, pave and curb Oakmont Avenue ”; and that “the costs and expenses thereof be levied, assessed and collected in accordance with the act of Assembly of the Commonwealth of Pennsylvania, approved the 23rd day of April, 1889, relating thereto and regulating the same, its supplements and amendments.” The.petition further represented that the right of way of a railroad company extended along the west side of said avenue for its entire length, and prayed that this should not, for the purposes of this proceeding, be considered as land abutting on the line of the improvement, and that the two-thirds of the costs and expenses of said improvement should be assessed and collected from the owners of .real estate bounding and abutting on the east side of the avenue, by an equal assessment on the feet front bounding or abutting as aforesaid. The council of the borough duly passed an ordinance “authorizing the curbing and paving of Oakmont Avenue as prayed for,” a contract was duly entered into with a contractor who completed the work according to his covenants, and it was accepted by the borough authorities. The proper borough officer made an assessment according to the foot-front rule, imposing two-thirds of the entire cost of the paving and curbing upon the properties fronting on the east side of the avenue, and making no assessment against the right of way of the railroad company, which did in fact occupy the entire frontage upon the west side of the street. The plaintiff then filed this bill praying the court below to restrain the borough and its officers from incumbering his land by filing a municipal lien for the assessment and from collecting the amount alleged to be due; and that the proceeding, in so far as it attempted to charge the property of the plaintiff, be declared to be without authority of law and null and void. The borough filed an answer specifically averring, among other things, that Oakmont avenue throughout its entire length was upon its west side bounded by the right of way of the Allegheny Valley Railway Company, that said right of way was in actual use by the railway company for the uses and purposes of maintaining railroad tracks thereon and that “there is no part of said right of way between the westerly line of Oakmont avenue and the tracks of said railway company except such portion as is actually necessary to give a clearance for the trains moving over said tracks and the necessary slopes and drainage for said right of way.” The answer further averred that no lien could be filed against the right of way of the Allegheny Valley Railway Company and no part of the cost of the grading and paving of the avenue could be charged against said railway company or its right of way, and that the petition for the improvement of the avenue had been signed by more than two-thirds of the owners of property representing more than two-thirds in number of feet of the properties fronting on the street, within the meaning of the act of April 23, 1889. The bill and answer dealt with other incidents involved in making the improvement, but the above statement of the facts sufficiently indicates the real question involved. The plaintiff filed a replication, and after hearing testimony, the court below dismissed the bill. The plaintiff appeals.

The appellant seeks to reverse the decree of the court below upon three grounds: (1) That the petition presented to council was not sufficient to vest the borough with jurisdiction to make the improvement and assess two-thirds of the cost upon abutting property, according to the foot-front rule, under the provisions of the Act of April 23, 1889, P. L. 44, for the reason that petitioners did not represent two-thirds in number of feet of the properties fronting or abutting on the street, although they were more than two-thirds in number of the owners of abutting property; (2) that the said act of 1889 does not authorize the inclusion, in proceedings under it, of the grading of a street and the assessment of the cost of such grading upon abutting property; (3) that the borough did not pave the entire street in the manner prayed for by the petition, a strip five feet wide next the right of way of the railroad company being left unpaved. There is nothing in the bill of the complainant nor in the testimony which would warrant us in considering the question whether the property abutting on this improvement was of such a character as to render inequitable the application of the fóot-front rule in making the assessment. The learned counsel for the appellant has argued that this assessment according to the foot-front rule is unconstitutional, but there is nothing in the pleadings or the evidence which affords a foundation for this argument. The bill of complaint did not aver that the properties which were liable to assessment were not uniform in character nor that they were rural property; on the contrary, the bill did specifically aver that Oakmont avenue was the principal thoroughfare of the borough and had greater travel upon it than any other street or avenue therein, and that averment was well sustained by testimony, including that of this appellant. This eliminates from the case any question of the applicability of the statute to the property in question.

The sufficiency of the petition to confer jurisdiction upon council to pave and curb the street under the provisions of the Act of April 23, 1889, P. L. 44, was dependent upon whether the signers represented, within the meaning of the statute, “not less than two-thirds in number of feet of the properties fronting or abutting on said street.” The total frontage upon the west side of the street was over 3,700 feet, all of which was occupied by the right of way of the Allegheny Valley Railway Company, which was used exclusively for railroad purposes. This fact was found by the court below and no other finding could under the evidence have been sustained. The frontage upon the east side of the street was 3,778.13 feet, and the petitioners represented a total frontage of 3,162.98 feet, upon that side of the avenue. If the right of way of the railroad company is to be considered as abutting property in computing the frontage, then the petitioners did not represent two-thirds of the total frontage. If the land covered by the tracks and right of way of the railroad company is, within the meaning of the statute, not abutting property, then the petitioners represented very much more then two-thirds of the frontage. The act of 1889 authorized the authorities of a borough to curb and pave streets and assess in a peculiar manner, according to the foot-front rule, and collect from the “owners of real estate bounding or abutting thereon” two-thirds of the cost and expense of the improvement. The jurisdiction to exercise this power was by the statute made to depend upon the consent, to be evidenced by a petition, of two-thirds in number and extent of their holdings of the owners “of the properties fronting or abutting on said street.” The legislature in designating those who should be liable to assessment used practically the same words which it employed when it came to indicate those who must consent to the exercise of the power. The legislative purpose manifestly was to make taxation in this manner to a "certain extent dependent upon the express consent of those who were to be so taxed. That consent must be evidenced by the petition of two-thirds of the number of persons to be taxed, holding two-thirds of the value, or quantity of property to be taxed. The consent of those who will have to pay must be obtained before the expenditure is made. This being the legislative purpose, it is clear that the test of the right of a person to petition for an improvement must be his ownership of property which will be liable to assessment. The ownership of property which will not and cannot be liable to assessment can give no standing to sign a petition for an improvement to be made in this manner. No matter whether such nonassessable property physically abuts upon the particular street or is far distant from it. The provisions of the first section of the statute, standing alone, irresistibly lead to the conclusion that the owners whose election must determine this "matter are the owners of the property which will be taxed. But even if there were a doubt as to the meaning of the first section that doubt is conclusively resolved by the fifth section which provides that, “The term owner shall be construed to mean all individuals, corporations, public or private, and associations having any title or interest in the property assessed.”

When the act of April 23, 1889, became a law it had been settled by judicial construction that the words “land, real estate or property,” in a tax act did not include the necessary property of a corporation, although land, without which its public business could not be performed; and this statute cannot be held to render the right of way of a railroad company, in actual use as such, liable to assessment for the improvement of a street: Philadelphia v. Traction Company, 208 Pa. 157; Philadelphia v. Philadelphia & Reading Railroad Company, 38 Pa. Superior Ct. 529. No part of the costs and expenses of this improvement could be assessed against the right of way of the Allegheny Valley Railroad Company. This being the 'case, it follows that so much of the cost and expense of the improvement as was chargeable to the owners of abutting property must be paid by the property which was legally liable, in the proportion of the frontage of each lot to the entire frontage of the property which was assessable: McGonigle v. City of Allegheny, 44 Pa. 118; Scranton v. Koehler, 200 Pa. 126. The property abutting on the east side of Oakmont avenue was the only property which was legally liable to assessment for the improvement of a street under the provisions of the act of April 231889; the owners of that property were the only persons entitled to be counted and the lots which they owned constituted the only frontage to be computed, when it became necessary to determine whether the petitioners for the improvement were sufficient in number and represented the requisite frontage to authorize an improvement to be made under the provisions of this statute. The petition in this case was signed by a sufficient number of owners representing the frontage necessary to confer jurisdiction upon the borough authorities to make this improvement. This disposes of the first and principal contention of the appellant.

The second contention of the appellant is without merit. The act of 1889 does not authorize the imposition of an assessment, according to the foot-front rule, for grading a street, the jurisdiction conferred by that act being limited to paving and curbing. If under the provisions of this act it were attempted to change the grade of a street, no assessment for such work could be sustained. When, however, the legislature confers upon a municipality authority to do specific work this implies authority to do the things which are necessarily incidental to that work. The language of our Brother Head, in Shady Avenue, 34 Pa. Superior Ct. 327, is here applicable: “It is a matter of common knowledge that the paving of a street usually involves excavation to bring about uniformity of grade and contour; a substructure to provide for drainage and support, and finally a surface finish of asphalt, stone, brick or other material.” The preparation of a suitable foundation is absolutely necessary in the proper construction of a modern street pavement, and the removal of the earth to a depth sufficient to make room for that foundation is an essential incident of the work: McMarlin v. Butler Borough, 41 Pa. Superior Ct. 20. That the word “grade” was used in this sense in the petition which was presented to council, in connection with the words “pave and curb,” seems manifest. No change of the grade of the street was contemplated. The ordinance which was passed by council authorized curbing and paving only, and the evidence disclosed that this was all that was done or attempted in improving the street. The conclusive answer to this complaint of the appellant lies in the fact that no part of the cost for grading is included in the assessment made against his property, and even if the borough had regraded the street he would have no standing to object upon that account: Amberson Avenue, 179 Pa. 634.

The third complaint of the appellant is founded upon the- fact that the borough did not pave a strip along the west side of the street five feet wide, next to the railroad right of way. The statute relates only to the paving, curbing and macadamizing of streets and is to be construed as applying to the cartway: Shady Avenue, 34 Pa. Superior Ct. 327; McMarlin v. Butler Borough, 41 Pa. Superior Ct. 20. When the improvement of a street is petitioned for under the provisions of this statute the proceeding is subject to the discretion of the municipal authorities to regulate the width of the cartway and sidewalks and to fix the curb lines: Ebensburg Borough v. Little, 28 Pa. Superior Ct. 469. The petition in the present case did not attempt to deprive the municipal authorities of this discretion; had such an attempt been made it must have failed. The petition vested the municipal authorities with jurisdiction to pave and curb the cart-way, and it was for the proper - borough authorities to exercise their discretion in fixing the width of that cartway. The borough authorities fixed the west curb line of the street parallel with and five feet distant from the, west side of the street, thus leaving a sidewalk five feet wide next to the right of way of the railroad company. The entire cartway was paved and there is no foundation for the complaint of this appellant.

The decree is affirmed and the appeal dismissed at cost of the appellant.


author: Henderson, J.,

text:
    Carlenwright Lamp & Brass Company’s Insolvent Estate.

      Receivers — Expenses—Lien for rent — Landlord and tenant.

    Where the court in appointing a receiver of a private manufacturing company directs that the lien of a levy for rent already made should remain, and subsequently after the receiver has conducted the business for several months, the property is sold, and it appears that no interests of the landlord were subserved by the receivership, the reeeiver will not be entitled to priority over the rent for the expenses incurred by him on account of the receivership.
    December 12, 1910:
    Argued Nov. 15, 1910.
    Appeal, No. 113, Oct. T., 1910, by Howard W. Lennox, from order of C. P. Berks Co., Assignee Docket Entry, vol. 4, p. 134, dismissing exception to report of auditor In re Carlenwright Lamp & Brass Company’s Insolvent Estate.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of Adam H. Schmehl, Esq., auditor.
    The opinion of the Superior Court states the case.

      Error assigned was order dismissing exceptions to report of auditor.

      E. H. Deysher, for appellant,
    cited: Lewis et al. v. Linden Steel Co., 183 Pa. 248; Rutherford v. R. R. Co., 178 Pa. 38; Wabash, etc., Ry. Co. v. Central Trust Co. of New York, 22 Fed. Repr. 269; Central Trust Co. v. Sheffield, etc., Coal, etc., Co., 44 Fed. Repr. 526; Central Trust Co. v. Marietta & N. G. Ry. Co., 75 Fed. Repr. 193.

      J. B. Stevens, with him. G. B. Stevens, for appellee,
    cited: Lane v. Hotel Co., 190 Pa. 230.
   Opinion by

Henderson, J.,

This controversy arises out of the settlement of the account of the receiver of the Carlenwright Lamp & Brass Company. The particular question involved is whether rent due by the insolvent company to its landlord at the time of the appointment of the receiver by the court of common pleas is entitled to preference over the claims of the receiver for expenses incurred in the administration of his trust during the receivership. The National Brass & Iron Works leased to the Carlenwright Company the premises occupied by the latter and there was due to the landlord for rent on September 9, 1908, the sum of $416.65. On the date named the landlord distrained for this rent and after due proceedings the personal property of the tenant was advertised to be sold. Thereupon another creditor of the insolvent company presented a petition to the court of common pleas praying for the appointment of a receiver, on which petition a rule to show cause was granted as well as an order staying the sale of the property on the landlord’s warrant, the lien of the levy to remain, however, until further order of the court, and on October 5, 1908, Howard W. Lenox was appointed receiver of the insolvent company, he being its president and principal stockholder. The business of the company was conducted by the receiver for several months, and was finally closed out by a public sale of the assets of the company except the accounts. The receiver filed his account May 26, 1909, showing that he had received $752.98 in money and claiming credit for administration expenses, wages and other items to the amount of $536.14, and leaving in his hands a balance of $216.84. The goods distrained had been appraised at a valuation of $658.60 and this was evidently the property disposed of by the receiver for, with the exception of $100 which he borrowed with the approval of , the court and for the payment of which he is allowed credit in his account, no money came into his hands except that which was realized from the sale of the property owned by the company prior to the receivership. A part of that may have been enhanced in value by work applied to it by the receiver but to what extent does not appear. Certain it is, however, from the account filed, that the total assets of the company as stated to the court by the receiver were much greater than the sum realized in the closing up of the business. On exceptions filed by the landlord the account was referred to an auditor to distribute the fund, who reported against the accountant’s claims for expenses of administration and awarded the fund with which the accountant charged himself to the National Brass & Iron Works on its rent claim less the costs of the audit, the loan of $100 authorized by the court and certain preferred claims for wages, which distribution was approved by the court of common pleas. It is now urged by the appellant that the court erred in its refusal to allow the appellant credits as claimed in his account for expenses incurred in prosecuting the business during the receivership. The insolvent corporation was a private manufacturing company, no public interests were involved in its business and the appointment of a receiver was presumably in the interest of its creditors. None of these had standing, however, to relax the grip which the landlord had acquired on the property of the tenant nor could the court have so done. The lien for rent had attached before the receivership. The lien of the levy was continued by the express terms of the order of court which stayed the sale and nothing subsequently occurring had the effect to displace the claim of the appellee or change the relation of the creditors. No more could the receiver consume the property which had become liable for the payment of the rent in the prosecution of a business which if beneficial to anybody was not so to the lessor. It is true that the property of the insolvent company went into the custody of the law because of the appointment of the receiver but subject to the lien for rent and when the property was sold the lien followed the fund arising from the sale. The court in appointing the receiver did not undertake to deprive the landlord of the security which the levy gave it but merely to preserve the property in the interest of creditors as their rights might appear, and the prior right of the appellee clearly appears. The Carlenwright Lamp & Brass Company had no defense to the rent claim nor standing to deny its priority and the receiver is in no better situation. He is not the receiver of the National Iron & Brass Works but of a tenant under it and he had no authority to apply the fund which had been secured by the lien to the payment of his own expenses in trying to work out a more favorable situation for other creditors. The decree is well supported by Lane v. Washington Hotel Company, 190 Pa. 230; and Moore v. Lincoln Park, etc., Company, 196 Pa. 520.

Rutherford v. Pennsylvania Midland Railroad Company, 178 Pa. 38; Wallace v. Loomis et al., 97 U. S. 146, and the Wabash, St. Louis & Pacific Railway Company v. Central Trust Company of New York, 22 Fed. Repr. 269, are cases relating to receiverships of railroad companies which are public corporations; the continued operation of which, generally speaking, is important not only to the creditors but to the public and the doctrine applicable to the maintenance of the physical property of such companies under receiverships rests on a different footing from that affecting private manufacturing companies. It is not necessary here to enter into a consideration of the distinction between the two classes of corporations and the reasons controlling the courts in the administration of insolvent trusts relating thereto. In the present case no interests of the landlord were subserved by the receivership and no rights existing at that time could be lawfully defeated by such receivership.

The decree is affirmed.