author: Beaver, J.,

text:
    Kyper, Appellant, v. Sheaffer.

      Trespass — Right of way — Evidence.
    1. In an action of trespass for an alleged unauthorized use of a lane over plaintiff’s land a question asked a witness as to whether a prior owner left the land for the benefit of the owners of neighboring lands and the public, and an answer by the witness that that was what he understood, and that the lane was an evidence of it, is wholly incompetent as evidence.
    2. In such a case the defendants may establish their right to use the lane by showing that it had been used generally by the public without objection by the owner of the land.

      Evidence — Testimony in previous suit — Identity of subject matter— Identity of parties.

    3. Identity of subject matter in whole or in part and identity of the parties in interest must unite to render the testimony in one case admissible in another case.

      Trespass — Right of way — Evidence.
    4. On an issue in trespass to determine the right to use a lane over plaintiff's land, where a witness testifies that he had used the lane in question, the witness may be asked on cross-examination whether permission had not been obtained from the owner for passage on the lane.
    5. In such a case the wife of the former owner of the land may be permitted to testify to a conversation between her husband and the deceased predecessor in title of land owned by the defendant to the effect that her husband had given permission to such predecessor in title to use the lane. Such permission may also be shown by the predecessors in title of the plaintiff.

      Easement — Right of way — Adverse use.

    6. A right to use a lane over the unenclosed woodland of another could only be acquired, apart from a conveyance, prior to the Act of April 25, 1850, P. L. 569, by a continuous uninterrupted and adverse user of the land for a period of twenty-one years. If the evidence fails to show a well marked or clearly defined road which was used during the whole of such period, no right is established.
    7. To entitle the public to a right of way by prescription over unenclosed woodland, it must be affirmatively shown that substantially the same fine of travel was continuously used by the public for twenty one years prior to the Act of April 25, 1850. Not only must the use of the road be clearly defined, but also the time at which the use began.
    Argued Nov. 18, 1909.
    Appeal, No. 197, Oct. T., 1909, by plaintiffs, from judgment of C. P. Huntingdon Co., Sept. T., 1905, No. 16, on verdict for defendants in case of Harry Kyper and A. S. Welch v. W. T. Sheaffer et al.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass for alleged wrongful use of a lane. Before Woods, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1-25) various rulings on evidence and instructions fully stated in the opinion of the Superior Court.

      Hayes H. Waite, with him Richard W. Williamson, for appellants.

      J. S. Woods and W. M. Henderson, with them W. H. Woods, for appellees.
    March 3, 1910:
   Opinion by

Beaver, J.,

The action, the trial and result of which we are here called upon to review, was one of trespass, in which the plaintiffs charged the defendants with passing in and over an inclosed lane and open roadway to reach certain mountain timber land, lying to the east of the farm of one of them. The defendant Sheaffer, who'was the owner of the timber land, employed the other defendants to haul bark, lumber, etc., from his land. His claim was that he had a right to pass through and over the lane and land of the plaintiff Welch, the owner of the farm, by reason of a prescriptive right based upon continuous and adverse use or a grant to his predecessors in title of the lane and passageway in question, in order to reach his timber land, and take therefrom what had been growing thereon. This was denied by the plaintiff Welch who brought suit to recover damages for the trespass committed upon his lands.

We had one phase of the case before us in Welch v. Sheaffer, 29 Pa. Superior Ct. 619. An action of trespass of Sheaffer v. Welch & Kyper was tried in the court below, and this is a second action of trespass with the principal parties reversed.

The first assignment of error complains of the admission of the following testimony: “Q. Mr. Spanogle, will you state whether or not your father left this road or lane leading to the mountain for the benefit of the owners of the lands on the mountain and the public. By Mr. Waite: I object to the question as leading and utterly incompetent, irrelevant and immaterial to affect the rights of the plaintiffs. The plaintiffs’ rights are to be determined by the deed which Andrew Spanogle made to his sons, and not by any declaration which he • might have made affecting these rights. 2. It is an attempt to contradict the plain terms of the deed and is, therefore, incompetent.” The objection was overruled. “By Mr. Henderson: Q. Now, Mr. Spanogle, will you answer the question. [Question read by stenographer.] A. That is what I understood, and the lane, I think it is an evidence of it now.” Both the appellants and appellees argued this assignment of error as if it related to a declaration of Andrew Spanogle, Sr., but there is nothing in the offer to indicate that such is the case, nor is there anything in the answer of the witness to show that his father had made any declaration in regard to the use of the lane. The offer docs not indicate in what manner the father left the road or lane leading to the mountain for the benefit of the owners of the lands on the mountain and the public, nor does the witness say that his father had said anything or had done anything in regard thereto. He simply said: “That is what I understood, and the lane, I think it is an evidence of it now.” He apparently, therefore, relied upon the evidence contained or manifested in the existence of the lane. We think the question was incompetent and the answer irrelevant and immaterial. What was in the mind of the father of the witness was to be manifested either by his declarations or his acts. It was not proposed to prove either. The witness, if he told anything, should have communicated what his father said or did, not what were his mental processes and particularly not what was the then present value of the existence of the lane as the evidence of what his father had intended to do. The plaintiffs did not ask to have the testimony stricken out, as they might well have done. The answer of the witness was not responsive to the question, and neither question nor answer was competent. The assignment is sustained.

Albert Rohrer, a witness for the defendants, being upon the stand, who had been a tenant on the Walker farm adjoining that of the plaintiff Welch at one time, was asked in his examination in chief: “ Q. Did you ever see parties driving up and down this lane or road? A. Yes, sir; this lane that is in dispute. Q. Did you see them traveling up and down that road when you were living on the Walker farm? A. Yes, sir.” On cross-examination: Q. “Who did you say went up the lane? A. Ephraim Myers and son went up the lane. Q. With, a wagon? A. Yes, sir. Q. How many times? A. I would not be able to answer that question. . . . Q. What were they doing on the mountain? A. Hauling their wood down. Q. Where did they live? A. On the Abraham Lutz farm. Q. You did not notify any of the Kyper heirs of their going up and down, did you?”. This question was objected to as not cross-examination, and immaterial. The court ruled it out, on the ground that it was not cross-examination; We think it was legitimate cross-examination. The defendants were endeavoring to establish their right to use this lane, because it had been used generally by the public. Surely it was proper for the plaintiffs to show that the parties whom the witness saw using it did so by the permission of the owners or that no objection was made to their use of it, because they had no knowledge of such use. The second assignment is sustained.

The third and fourth assignments of error relate to the testimony of Mrs. Katherine McKeehan, a witness in the case of Sheaffer v. Welch et al., previously tried in the same court, the witness being dead. The testimony was admitted and the motion subsequently made to strike it out was refused. We think the notes of testimony were not competent evidence. The general rule is that, “Identity of subject-matter, in whole ' or in part, and identity of the parties in interest must unite to render a deposition in one case admissible in another:” Fearn v. Ferry Co., 143 Pa. 122. The suit in which Mrs. McKeehan’s testimony was taken was one of Sheaffer v. Welch & Kyper. This is the suit of Kyper & Welch v. Sheaffer, Shue & King. Assuming that there is identity of subject-matter — at least in part — there is not the identity of parties in interest which would make the testimony in the previous case competent here. See also N. Y. & O. Land Co. v. Weidner et ux., 169 Pa. 359; Walker v. City of Phila., 195 Pa. 168; Roberts v. Powell, 210 Pa. 594. The fact that Shue and King were merely the employees of Sheaffer in the commission of the alleged trespass does not bring them within the rule of Haupt v. Henninger, 37 Pa. 138, cited by the appellees, in which it is held that: “ In Pennsylvania, under the act of 24th of March, 1814, depositions are admissible in a subsequent cause pending between the same parties or their privies only where the same matter is in dispute.” The parties defendant are entirely different from the party plaintiff in the previous suit, and if a judgment had been recovered in the present case Shue and King would have been equally liable with Sheaffer. We are of the opinion that the depositions should have been excluded or the testimony stricken out after it was admitted. These assignments of error are, therefore, sustained. The court below refused to strike out this testimony and its refusal was probably justified, so far as the ground upon which the plaintiffs objected was concerned, namely, that it was hearsay testimony. We do not think this clearly appears by the testimony itself, but if it was inadmissible, it should have been stricken out for that reason, and, holding as we do that the testimony was not admissible, we think it should have been stricken out for that reason, upon the motion of the plaintiffs.

C. H. Morrow, a witness for the defendants, being upon the stand, testified in his examination in chief, that he had passed over the lane and road in dispute to the mountain, hauling bark for Mr. Cogley, being asked upon cross-examination: “Q. Did you get permission to go up that lane?” he answered, “I did not.” He was then asked, “Who did?” which question was objected to as not a proper cross-examination. The purpose of the question was then stated: “I propose to ask the witness whether or not permission was not obtained for his passage up the lane the time that he went up.” This, for the reason stated in the first assignment of error, was, we think, proper to rebut the presumption that would arise from the use of the lane as a right, as testified in the examination in chief. If permission was obtained, either by others or by himself, it would, of course, rebut the presumption of the use thereof as a matter of right and was, we think, proper cross-examination. Having testified that he did not get permission, it was proper also we think to interrogate him as to whether or not he had not obtained permission from Kyper, in order, as was stated by the plaintiffs’ attorney, that ground for contradiction might be laid. This surely was proper. For these reasons, we think the questions should have been allowed upon cross-examination. The fifth and sixth assignments are, therefore, sustained.

The eighth assignment of error complains of the refusal to admit the testimony of Mary A. Kyper, the widow of Michael Kyper, who was the owner of the farm now owned by A. S. Welch at the time of his death, and whose widow and heirs subsequently conveyed the farm to A. S. Welch, one of the appellants. It was proposed to prove by her that during the time she resided on this farm, as the wife of Michael Kyper, she heard a conversation between her husband and Abraham Lutz, who was the predecessor in title to the timber tract now owned by Dr. Sheaffer, and that Abraham Lutz obtained permission to use this lane. The objection was made “That Abraham Lutz, under whom the defendants claim, is. dead and his rights have passed to Dr. Sheaffer, who is a party to this record; that any conversation or statement made by Abraham Lutz to Michael Kyper could not be testified to by Michael Kyper, if he were living, and they cannot be testified to by his wife.” This objection was sustained. We think the testimony was competent and that the offer should have been admitted. If the defendant Sheaffer had asked permission of Kyper to make use of the lane, we cannot see upon what principle either Kyper, if living, or his wife, when he was dead, could be denied the right to testify in regard thereto. Why, therefore, if Sheaffer’s predecessors in title had asked the permission which was granted, should it not be competent and relevant testimony? The witness, so far as appears by the evidence, was entirely disinterested. Her husband had not been in any way privy to the conveyance to Lutz and, therefore, he had no possible connection with the conveyance from Lutz to Sheaffer, and the claim of the latter to the right of way depended upon adverse user and not upon a conveyance or direct grant. The witness did not come within any of the exceptions of the act of May 23, 1887, P. L. 158. The appellees assume that Michael Kyper, if living, would not have been a competent witness as to the fact proposed to be proved by his wife. We fail, however, to see upon what ground he would have been excluded. There is no allegation, so far as we can gather from the testimony, that Kyper had conveyed the right to use this lane to Lutz. It would have been, therefore, entirely competent for him to testify that he had permitted Lutz to use the lane upon request. We fail to see, therefore, upon what ground the wife was not a competent witness to testify as to her knowledge of a verbal permission given by her husband in his lifetime to Abraham Lutz, the predecessor of Sheaffer in title, to use the lane in controversy. This is an action of trespass for damages occasioned by the use of the lane by the defendants. In this the witness had no direct interest, even if, as alleged by the appellees, she had a dower interest in the farm — and that she had such an interest is a mere inference; but, admitting that she had, it does not disqualify her. As we said in Strause v. Braunreuter, 4 Pa. Superior Ct. 263: “No interest or policy of law now makes any person an incompetent witness in any civil case or proceeding, unless he is shown to come within one of the specified exceptions, and the only exceptions we are here called upon to consider are those contained in clauses (c) and (e) of sec. 5 of the Act of May 23, 1887, P. L. 158. By clause (e) the disqualification is made to depend not only on the fact of the witness being a surviving or remaining party, to the thing or contract in action, but also on the fact of his having an interest adverse to the right of the deceased party which right has passed by his own act or the act of the law to a party on the record who represents his interest in the subject in controversy. . . . Nor was she an incompetent witness under clause (c). What she proposed to testify to was in no sense a confidential communication, and the common-law rule which prevents the husband or wife from divulging in testimony' such communications after the death of the other does not apply.” We think the testimony was competent and should have been received. The eighth assignment is also sustained.

The ninth, tenth, eleventh and twelfth assignments of error all raise practically the same question: Were the plaintiff Welch, the owner of the land upon which the alleged trespass was committed, and his coplaintiff Harry Kyper and his brother Charles Kyper competent witnesses for the purpose of showing that Lutz, the predecessor in title of the defendant Sheaffer, and other persons who used the lane in controversy, had obtained permission from Michael Kyper, the predecessor in title of Welch, to make use of the lane, when he desired to do so, and was like permission given by Michael Kyper and Welch to other persons who desired to use it? The offer and the objections thereto are as follows: Mr. Waite: “We propose to prove by the witness on the stand, who is a son of Michael Kyper, and also by Harry Kyper, that during the time they were home with their father, Abraham Lutz always asked permission of Michael Kyper to use the lane when he wanted to go up to the mountain land to haul down either bark, ties or other material; this for the purpose of showing that any use which Abraham Lutz may have made of that land was by permission only and not adverse under claim of right. By Mr. J. S. Woods: It is objected, that Dr. Sheaffer, holding title as a successor in title to Abraham Lutz, and the said Abraham Lutz being now dead, any rights he has, passed to Dr. Sheaffer, who is a party to the record. This witness and the other witness being grantors of the adverse title, are incompetent to testify to anything that occurred during the lifetime of Abraham Lutz or to any conversation held between Abraham Lutz and their father, Michael Kyper, under whom they claimed title and conveyed to Allen S. Welch, party hereto.” We are at a loss to see how any of these parties come within the exception of clause (e) in sec. 5 of the Act of May 23,1887, P. L. 158. The defendant Sheaffer holds nothing whatever by contract under any of them. The title to his land was acquired from Abraham Lutz. He claims the right to reach it over the way which is the subject of controversy by adverse user. There is no contract relation between the Kypers and Welch, or any of them, and himself or his predecessors in title. It seems to us, therefore, that the witnesses whose testimony was offered were competent to testify to the facts contained in the several offers respectively. These assignments of error are, therefore, sustained.

The thirteenth assignment of error relates to the answer to the plaintiffs’ first point, which point and answer are as follows : “ It is clear from the testimony of the witnesses on both sides that neither Dr. Sheaffer nor his predecessors in title had acquired any right in the lane in dispute prior to January 8, 1845, when Andrew Spanogle, the then owner of all the lands, caused a survey to be made, and divided the property, conveying one farm, now owned by A. S'. Welch, to his son John, and the lane, according to the testimony on both sides, being partly through cultivated lands and partly through timber lands, no user of the road by Dr. Sheaffer and his predecessors in title, no matter how frequently and continuously used since that' time, could vest in Dr. Sheaffer or his predecessors in title the right to travel through the lane, and the verdict of the jury must be for the plaintiffs. Answer: The point contains evidence for the jury to consider and we refuse it as put.” We can recall no testimony relating to the use of this lane and the continuance of it through uninclosed woodland which was entitled to go to the jury. It is true that Andrew Spanogle testified that his father moved with his family into the valley in which the lands of the plaintiff Welch and the defendant Sheaffer were situated in 1829, his testimony in relation thereto being as follows: “Q. Do you remember the road which runs up from the public road in the valley to this mountain land of Lutz’s? A. Yes, sir; my father opened that road. Q. Will you state, Mr. Spanogle, whether there was or not a road leading up to that mountain when you moved into the valley? A. There was not any over where it is now; the old road was up further towards the mountain. Q. What I refer to, Mr. Spanogle, is this: Was there when you folks moved into the valley this road leading up from the public road or from a public road to the Abraham Lutz property on the mountain? A. From the old public road there was. Q. The old road that you spoke of through the valley, the old public road, was that higher up than the present public road? A. Yes, sir; it was further towards the mountain. Q. Was there a cemetery in there? A. There was a graveyard there not far from the road; three or four rods. Q. Then do I understand you, in later years the public road leading along the valley was changed from the place where it at first had passed by this cemetery and taken further down into the valley? A. Yes, sir. Q. Will you state, Mr. Spanogle, whether or not that road, leading to the mountain, back in those years, was a well-used road, at the time you moved there? A. What? Q. Whether it was a road that was somewhat used when you folks moved there? A. Yes, sir; it was used of course like all roads are that lead up to woodland on the mountain. Q. Was Samuel Lutz the owner of this mountain tract when you folks moved there? A. Well, I cannot say whether he was when we moved there; I think that he was; I know that he was not long afterwards. Q. Now, will you state, Mr. Spanogle, while your father owned these lands, embracing the Welch and Walker farms, Samuel Lutz used this road leading from the mountain tract down to the public road? A. Yes, sir. Q. Did his son, Abraham, who owned that title to the mountain land afterwards, use that same mountain road? A. I believe so; I did not live there just at that time when he had it in his possession, but I understood- By Mr. Waite: I ask now that the testimony of this witness be stricken out with reference to who used the road, for the reason that the witness says that he states not from his personal knowledge of persons using it, but from what he understood. I will change that. I ask that the witness’s testimony as to the use made of the road by Abraham Lutz be stricken out for the reason that the witness himself admits that he derived his information from others and not from personal knowledge. By the Court: I think it is some evidence to go to the jury. Motion overruled. Bill of exceptions sealed for plaintiffs. By Mr. Henderson: Q. Then, according to your statement, Mr. Spanogle, you folks moved in some time back in the 20’s? A. It was the year 1829 we moved to the valley. Q. And I understand you to say this road leading up to the mountain was there then; state whether you ever yourself hauled up and down that road? A. Yes, sir; I did myself. Q. When you were a boy? A. When I was about seventeen or eighteen years old. Q. Did other people haul up and down there? A. Yes, sir; I never heard any objection to any persons hauling up and down. . . . Q. Now this road which led from the public road up to the mountain, was it a well-marked road? A. Yes, sir. Q. And plainly marked through the woods? A. Yes, sir. Q. After your father conveyed what is now the Welch farm to your brother John, you father still owned the Walker farm? A. Yes, sir.” This brings us to the testimony which was objected to and the admission of which constitutes the first assignment of error. This testimony we think lacks the definiteness which would entitle it to go to the jury. Section 21 of the Act of April 25, 1850, P. L. 569, provides: “That no right of way shall be hereafter acquired by user, where such way passes through unenclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to- enclose the same, as if no such way had been used through the same before such clearing or enclosure.” In order to acquire a right of way by continuous and adverse user, therefore, it would have been necessary that the user should have been commenced prior to April 25, 1829. The time in 1829 when the elder Spanogle moved his family to the neighborhood, or to the premises which are involved in this dispute, does not appear, and the fact that there was the appearance of a road, of a well-marked road or a clearly defined road, at the time of his removal there does not fix the date at which the road commenced to be used, nor is it shown, nor does it clearly appear, that it was used by the immediate predecessors in title of the defendant Sheaffer. Nor does it clearly appear from the testimony of this witness or any other that there was a continuous, uninterrupted and adverse user by those, under whom the defendant, Sheaffer claims, for a period of twenty-one years prior to the passage of the act referred to. We are, therefore, at a loss to find any evidence which should carry that question to the jury, for, as said in Jones v. Crow, 32 Pa. 398, in which the easement claimed was the right to obstruct the flow of the water through his land, by a party claiming by reason of long usage, to the injury of a lower mill owner, he “must prove that such obstruction has been continued, exclusive, and with the acquiescence of the owner of the land, for twenty-one years,” and that “the proof in such case must be clear, definite and unequivocal, both as to the time of the enjoyment, and the extent of the obstruction.” So, in such a case as the one which we are considering, we think the proof should be clear, definite and unequivocal, and that the court must consider the evidence as sufficient in these respects before it is submitted to the jury. We find no such testimony in this case. On the contrary, it is lacking in the clearness which is necessary; it is hazy, obscure, indefinite and equivocal.- The defendants, as we understand it, practically admit that no right of way could have been acquired, as they claim the easement, after the year 1850, and are, therefore, shut up to the claim of a right acquired prior to the passage of the act, and seem to rely in their argument upon the testimony of Spanogle as to the beginning of this right in 1829, but Spanogle’s testimony lacks definiteness in that it does not fix the time as prior to April 25, 1829, nor does it relate to. the use by the defendant Sheaffer or those under whom he immediately claims. It is insufficient from every point of view to determine a user which would inure to the benefit of the defendants, nor to a time which is sufficient to establish the right prior to the passage of the act referred to. The testimony as to the adverse character of the user is also lacking in clearness and definiteness. We think, therefore, the plaintiffs’ first point should have been affirmed.

For the same reason, also, the second point, the answer to which is complained of in the fourteenth assignment, should have been affirmed.

So the fifteenth assignment, in which complaint is made of the answer to the plaintiffs’ third point, which was: “Dr. Sheaffer, the purchaser of the title to the mountain land from the heirs of Abraham Lutz, has not shown by adequate proof that he or his predecessors in title acquired by adverse user any right to the said lane” was answered, “This is a question for the jury to determine.” We can find nothing upon which the jury could predicate an adverse user for twenty-one years prior to the passage of the act of 1850, and hence there was no question upon the subject of adverse user to go to the jury. In addition to the date of the commencement of the user, prior to the act of 1850, the character of it is also somewhat indefinite. Taking the testimony of both the plaintiffs and defendants together, in view of the practically uncontradicted evidence as to the permission to use the lane especially, it would seem to be somewhat like the case of Ferdinando v. City of Scranton et al., 190 Pa. 321, in which it was held that the use of an alley by others than the owner of the land had only been permissive, occasional and varying and, therefore, conferred no right-of a way by prescription.

The sixteenth assignment complains of the answer to the plaintiffs’ fourth point, which was: “When a landowner makes a lane upon his lands for his own use, the fact that others may occasionally use the lane without his permission for any number of years will not give either to the public, or to such person or persons an adverse right to use the lane against the protest of the owner.” This was affirmed as a legal proposition, but it was accompanied by the remark: “It is for you to say whether there was a user obtained by Dr. Sheaffer or his predecessors in title.” As already intimated, we cannot assent to the proposition that there was anything in the case in regard to adverse user by Dr. Sheaffer or his predecessors in title which would have authorized the jury to find a prescriptive right to the use of the way to the woodland of the defendant Sheaffer, as claimed by him.

The seventeenth assignment relates to practically the same subject. It is the court’s answer tó the fifth point, which was: “It being clearly shown by the testimony of the witnesses on both sides that this land is partly through cultivated lands and partly through woodland, no adverse right to use the same could be acquired by Dr. Sheaffer and his predecessors in title, without having shown that such adverse right had commenced twenty-one years prior to the act of April 25th, a. d. 1850, and the defendants having failed to establish this fact by proof, the verdict of the jury must be for the plaintiffs.” This was “refused as put; it is for the jury to say whether an adverse user had been acquired.” For the reasons stated in our remarks upon the thirteenth assignment of error, we think this point should have been affirmed.

The plaintiffs’ sixth point was that “Under all the evidence in the case, the verdict of the jury must be for the plaintiffs.” This was refused and is complained of in the eighteenthassignment of error. Taking the case in its entirety, we are compelled to reach the conclusion that this point should have been affirmed. It is very clear, as already intimated, that there was no evidence from which a jury could find that a prescriptive right had been established by adverse user prior to the act of 1850. None could be acquired since. The defendants seem to rely upon a dedication of the lane fenced by the plaintiff Welch or his predecessor in title between 1845 and 1856, but* eliminating the testimony, as to the admission of which complaint is made in the first assignment of error, we do not think there was any evidence to go to the jury upon this subject. No declaration or act of the senior Spanogle was shown by which such an inference could have been made, and the manner in which the lane was shown to be closed at the public road by bars and by a fence at the other end is so manifestly, contrary to such an intention — and as to these facts there is practically no contradiction — that it seems to us impossible that there should have been any intention on the part of Spanogle to dedicate it to the public. It is, of course, possible for the public to acquire an easement by prescription. As held in Brake v. Crider, 107 Pa. 210: “To entitle the public to a right of way by prescription over unenclosed woodland, it must be affirmatively shown that substantially the same line of travel was continuously used by the public for twenty-one years prior to the act of April 25th, 1850;” but the evidence of such use here by the public is as indefinite, obscure and equivocal as is the testimony in regard to the use of the defendant, Dr. Sheaffer, and his predecessors in title of the mountain tract to which he claims a right of way by adverse user by virtue of the rights acquired either by his predecessors in title or by the public. The witness, Spanogle, whose testimony is relied upon by the defendants to specify the beginning of the defendants’ use of the right of way through the uninclosed woodland, is not more definite as to the route of w-hat he calls a road, than it is as to the date of the beginning of the use. It is, therefore, quite as impossible to base a claim of an easement acquired by the public because of his failure to define the route of the road through the woodland as to claim it for the defendant Sheaffer because of the failure to define the time at which the use began. It might be inferred from his testimony that a road had been used prior to 1829, but how and where the road ran is not definitely fixed or determined by his testimony, and the fact that Spanogle, one of the predecessors in title of the plaintiff, Welch, fenced the lane subsequently, put bars across its mouth and inclosed by a fence the other end of it, would seem to negative any idea of a dedication by the then owner to the public. The appellants argue that the proof offered by the defendants did not show a continuous adverse use of the right of way. Whilst this is true in a measure, we are not prepared to hold that, if the defendant, Sheaffer, and those under whom he claimed, did not use the road in controversy as it would have been used if he had lived on the tract of land over which he hauled his bark and timber, that the user was not, therefore, continuous. If he used it whenever necessary for the purposes of removing material from his lands, the user was in other respects such as to confer a right by prescription, but we are not prepared to say that it would not have been continuous in the sense in which the law uses that term. But it is unnecessary to pass upon this point specifically, in view of the fact that the testimony does not show such a user as was necessary under our cases prior to the act of 1850. See Hudson v. Watson, 11 Pa. Superior Ct. 266.

In affirming the defendants’ first point, which is complained of in the nineteenth assignment of error, what is said in the point in regard to the marks found upon the ground being the best evidence of the location of a survey, is correct, but there is nothing said in the point, and the court did not qualify its affirmance by referring to the fact that the lane in question, which was shown by the plaintiffs’ testimony to be on the Welch farm, and by that of the defendants to be on the Walker farm, had been inclosed by the owners of the Welch farm and exclusively used by them for more than half a century. The question, therefore, of exclusive and adverse possession thereof necessarily came into the case, and the point, it seems to us, should have been qualified to that extent. Although the point is correct as an abstract legal proposition, it does not cover the whole case and the unqualified affirmance of it was misleading.

We have already referred to the twenty-first assignment of error and are of the opinion that the defendants’ third point, the affirmance of which is complained of therein, should not have been affirmed, for the reason that the evidence as to the location of the road through the woodland was not such as would enable the jury to determine with definiteness that that road was used for twenty-one years prior to the passage of the act of 1850.

The twenty-second, twenty-third and twenty-fourth assignments of error, which embrace portions of the charge, are open to the same objection as the answer to the defendants’ first point.

The portion of the charge complained of in the twenty-fifth assignment of error is objectionable, to the extent of its submitting to the jury the question as to whether or not Lutz, the predecessor in title of the defendant, Dr. Sheaffer, had acquired a right of way by reason of adverse user prior to 1866, subsequent to which time it was alleged that Michael Kyper, the owner of the farm claimed by Welch the plaintiff, had given permission to the owners of the woodland to travel up and down the lane in dispute and the road leading from its terminus to the woodland of the defendant, Sheaffer, because it submitted to the jury a question concerning which, as we have already said, there was not sufficient evidence.

On the whole case, as already intimated, for the numerous reasons stated, we think the court should have instructed the jury that the plaintiff was entitled to recover, leaving to the jury only the question of the amount of damages to be recovered.

We regret to send this case back for a retrial. It is time that such litigation ceased, and yet we cannot end it here for the reason that the damages claimed by the plaintiffs, even if the court upon a retrial should rule that the plaintiffs were entitled to recover, involve a question of fact which must be fixed by a jury.

Judgment reversed and a new venire awarded.


source: Caselaw Access Project

author: Porter, J., Morrison, J.,

license: Public Domain

text:
    Commonwealth v. Vanchaski, Appellant.

      Criminal law — Felonious assault — Attempt to commit murder — Act of March 31, 1860, Sec. 81, P. L. 382.
    1. On the trial of an indictment for felonious assault under sec. 81 of the Act of March 31, 1860, P. L. 382, which defines the offense as the causing, by various acts, “any person bodily injury dangerous to life with intention in any of the cases aforesaid to commit murder,” there is no burden upon the commonwealth to establish by evidence that the defendant intended to commit the crime of murder of the first degree. It may show that the intention of the prisoner covered either of the degrees of murder recognized by the penal statute.
    2. Where a prisoner is indicted in one count for felonious assault under see. 81 of the act of March 31, 1860, and in a second count for the infliction of grievous bodily harm, and the jury find a verdict of not guilty on the first count, but guilty upon the second count, an assignment of error which relates to an alleged mistake in an answer to a point dealing only with the first count, will not be considered.
    Submitted Dec. 9, 1909.
    Appeal, No. 26, March T., 1910, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1909, No. 367, on verdict of guilty in case of Commonwealth v. Balka Vanchaski.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for assault and battery. Before Halsey, J.
    At the trial the defendant presented these points:
    1. Before the jury can convict of the first count in the indictment they must first find from all the evidence that the defendant intended to commit the crime of murder. Answer: That point is affirmed with the direction to you that it may be of either murder in the second degree or murder of the first degree. [3]
    2. Before the jury will be warranted in convicting defendant of the first count in the indictment, they must first find that if death had resulted from the wound inflicted that the defendant intended to commit the crime of murder of the first degree. Answer: Refused. [1]
    The court charged in part as follows:
    The charge of assault and battery with intent to murder or felonious wounding is based upon this statute: “ If any person shall administer or cause to be administered or taken by another any poison or other destructive thing, or shall stab, cut or wound any person or shall by any means whatsoever cause any person bodily injury, dangerous to life with intention in any of the cases aforesaid to commit murder he shall be guilty under this statute.” Murder either of the first degree with the intent to take life or of the second degree, an unlawful, unjustifiable and malicious killing without such intent. If the attack was made in this way then there may be a conviction under this count in the indictment. [2]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-3) above instructions, quoting them.

      Miner B. Schnerr, for appellant.
    — Since the distinguishing feature between the different kinds of murder is the intention to take life and that section of the act of assembly specifically directs the intention to murder must exist, it seems only fair to argue that it is murder of the first degree and not of the second degree. This distinction is clearly expressed by Judge Moebison in the case of Com. v. Brosk, 8 Pa. Dist. Rep. 638, where he says: “The question that arises under section 82 of the act of March, 1860, is what kind of murder is therein referred to? Can a defendant be convicted under that section if his condition of mind, at and immediately before the shooting or attempted shooting, was such that if he had killed the person at whom he shot, it would only have been murder of the second degree? We have always understood the law to be that, in order to convict a defendant, the jury must find that he feloniously, willfully, and of his malice aforethought did shoot or commit the act complained of, and that on the trial the commonwealth must prove such malice and premeditation and deliberation as is necessary to constitute murder in the first degree in a case where death results from the unlawful act of the defendant.”

      Evan C. Jones, assistant district attorney, and Abram Salsburg, district attorney, for appellee.-
    — In Com. v. Radzinowicz, 39 Pa. Superior Ct. 173, Judge Fuller charged the jury, inter alia, as follows: “In order to convict of a felonious assault and battery, or assault and battery with intent to commit murder, the evidence must be such as would justify a jury had the wounds proved fatal, in returning a verdict of murder either in the first or second degree.”
    March 3, 1910:
   Opinion bv

Porter, J.,

The defendant was tried upon an indictment containing three counts. The first count charged that he did with a knife assault and unlawfully and feloniously cut, stab and wound one Stanley Garvin, with intent to murder; this count being drawn under the eighty-first section of the Act of March 31, 1860, P. L. 382. The second count was drawn under the ninety-eighth section of the same statute and charged the same act as the unlawful and malicious infliction of grievous bodily harm. The third count charged the defendant with an assault and battery upon said Garvin. The jury rendered a verdict finding the defendant not guilty upon the first count of the indictment, which charged felonious assault and battery, but guilty upon the second count, charging an assault and the unlawful and malicious infliction of grievous bodily harm. The defendant was sentenced under the conviction upon the second count of the indictment and from that judgment appeals.

The appellant requested the court below to charge that in order to warrant a conviction upon the first count of the indictment the jury must find “that if death had resulted from the wound inflicted that the defendant intended to commit the crime of murder of the first degree.” This point was refused by the court, and that refusal is the subject of the first specification of error. The court after explaining the distinction between murder of the first degree and murder of the second degree, instructed the jury that, in order to sustain a conviction under the first count of the indictment, they must find that the wound was maliciously inflicted with intent to commit murder, either of the first or second degree; upon which instructions the second and third specifications of error are founded. The contention of the appellant is that in order to sustain a conviction of felonious assault and battery, under sec. 81 of the act of March 31, 1860, the burden is upon the commonwealth to establish by evidence that the defendant intended to commit the crime of murder of the first degree, and that a conviction cannot be sustained where, if death had resulted, the offense would under the evidence have been murder of the second degree.

We are not convinced that the contention of the appellant is well founded. The legislature in defining the essential quality of this offense used the words “intention to commit murder.” Every unlawful killing with malice is murder. This crime had in Pennsylvania, been divided into two degrees by the Act of April 22, 1794, 3 Sm. L. 186 for the purpose of fixing for each grade the punishment that was thought to be appropriate, and this distinction between the degrees of murder was expressly recognized in the act of March 31, 1860, which reenacted the provisions of the earlier statute. The legislature in the very statute which defined the offense charged in the first count of this indictment dealt with the crime of murder. The offense was divided into two degrees, but each of the degrees still remained murder, the one as much as the other. Had it been the legislative purpose to confine the operation of the eighty-first section of the act of 1860 to some cases in which it was the intention, of one who inflicted a wound with a knife or pistol, to commit murder and exempt from the operation of that section other cases in which the intention to commit murder existed, it is certainly reasonable to assume that such legislative purpose would have been expressly declared. The legislature were dealing with a statute which recognized two degrees of murder, and when they came to deal with felonious assaults, in sec. 81 of that statute they used words, in defining the intention of the offender and making that intention the distinguishing characteristic of the offense, which distinctly covered both degrees of murder and murder at common law. In order to sustain the contention of the appellant something must be written into this statute which was not placed there by the legislature.

The distinguishing feature of murder of the first degree, save in those cases of killing in certain defined ways or in the perpetration of certain felonies, is the willful, deliberate and premeditated character of the act. Where a willful and deliberate intention is the subject of investigation; if the mind, from intoxication or any other cause, is deprived of its power to form a design with deliberation, the offense is stripped of the distinguishing features required by the statute to place it on the list of capital crimes. More is necessary than a blow with an instrument likely to -kill to constitute murder of the first degree; there must be intention, deliberation and premeditation found; and the instrument is evidence upon this point. If this do not appear, the use of an instrument likely to kill, and which causes death, leaves the grade of the crime murder of the second degree; unless the killing is upon provocation sufficient to reduce it to voluntary manslaughter: Kelly v. Commonwealth, 1 Grant, 484. The case referred to was decided in 1858, and was the established law of the commonwealth at the time the act of 1860 was adopted. If the contention of this appellant could be sustained,' there would be no case in which an offender who was under the influence of liquor, to such an extent as to render him incapable of forming a deliberate and premeditated design to kill, could be convicted of felonious assault and battery. The question does not seem to have been passed upon by either of the appellate courts, in the exact form in which it is presented by this defendant. The language of the charge of the court below, which was assigned for error and approved by the Supreme Court, in Commonwealth v. Matz, 161 Pa. 207, was certainly not in harmony with the contention of the defendant. The charge of the court in that case could not have been sustained if, in order to sustain a conviction of felonious assault and battery, it had been held necessary for the commonwealth to prove that, had death resulted, the offense would have been murder of the first degree.

We have deemed it proper to thus deal with the question raised by these specifications of error for the reason that it has been squarely presented and it is one in which the decisions of the trial courts do not seem to have been always in harmony. The first three specifications of error must be dismissed for the additional reason that the defendant was not convicted upon the first count of the indictment. The jury found that when he inflicted the wound it was not his intention to commit murder, of either the first or second degree. He was only found guilty, under the ninety-eighth section of the statute, of the “unlawful and malicious infliction upon Garvin of grievous bodily harm, and unlawful cutting, stabbing and wounding;” which offense there can be no question was properly defined in the charge of the court below.

The remaining assignments of error are entirely without merit. We have examined the charge of the court and are unable to detect any particulars in which it is inadequate. The testimony of the defendant and that of the witnesses whom he had called in support of his attempt to establish an alibi, was impartially referred to by the court, and the question of fact thus raised was properly submitted to the jury. Had the defendant desired more specific instructions upon that or any other point he should have presented a written request to that effect.

The judgment is affirmed and the defendant is directed to appear in the court below at such time as he may there be called to the end that he may be by that court committed for such part of the sentence as had not been complied with at the time this appeal was made a supersedeas.

Morrison, J.,

dissenting:

I concur in the judgment in this case, but dissent from so much of the opinion of the court as overrules the first assignment of error. ,


author: Porter, J.,

text:
    Commonwealth v. Dehle, Appellant.

      Appeals — Assignments of error — Points—Practice (Superior Court).

    1. An assignment of error to the answer of a point violates rule 15, where the assignment quotes neither the point nor the answer.
    2. Assignments of error violate rule 14, if they embrace more than one point, refer to more than one bill of exceptions, and raise more than one distinct question.

      Criminal law — Larceny—False pretenses — Possession—Right to Property — Money.
    3. If by any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with, not only the possession of the goods but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses.
    4. A conviction for larceny will be sustained, where the evidence shows that the prisoner after meeting by chance the prosecutor, an ignorant foreigner, pretended to find a fifty dollar bill, which was in fact a Confederate bill and worthless, that he offered to divide the find with the prosecutor, and that the prosecutor being ignorant of the character of the bill, gave to the prisoner twenty-five dollars in current money, and took the Confederate bill in exchange for his share.
    Argued Dec. 13, 1909.
    Appeal, No. 123, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Sept. T., 1909, No. 344, on verdict of guilty in case of Commonwealth v. Frank Dehle.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for larceny. Before Haymaker, J.
    The facts appear by the opinion of the Superior Court.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    1. Refusing appellant’s request for binding instructions.
    2. Rejecting and qualifying appellant’s points as follows:
    (a) Appellant’s second point was:
    If the jury believe that the owner intended to part with the ownership of his property in exchange for the Confederate note, the verdict must be for the defendant.
    That request was qualified by the court as follows:
    That if at that time he (meaning Franz Henke, the prosecuting witness), knew it was a Confederate note, the defendant would not be guilty of larceny; but if the witness, Henke, parted with his money believing that the Confederate note was good, and the defendant at that time knew it was not good, but simply used that as a trick by which to obtain Henke’s money, it would be larceny.
    (b) In refusing appellant’s third request presented as follows:
    If the owner of the property charged to have been stolen parted with the right of property, irrespective of the fraudulent means that may have been used to induce him to do so, the verdict should be for the defendant.
    (c) In refusing appellant’s fifth request presented as follows:
    That under all the evidence of the case, the verdict should be for the defendant.
    3. The court erred in its charge as follows:
    (a) Larceny is the felonious taking and carrying away of the personal property of another.
    (b) If at the time the witness, Henke, parted with his $25.00, he parted with it, knowing that the $50.00 bill that he was getting was a bad $50.00 bill, then the defendant in this case would not be guilty of the crime charged in the indictment. But if he parted with his $25.00 on the belief that the $50.00 bill which the defendant gave him was a good $50.00 bill, and that the money was obtained by the defendant in this case by a trick or device that resulted in the defendant’s obtaining the $25.00 from the witness, Henke, then that would be larceny. Unless you believe that the witness, Henke, intended to part with his money, knowing just what he was getting, in which case it would not be larceny.
    (c) While the law generally requires the commonwealth to prove that the larceny was the felonious taking and carrying away of the personal property against the consent of the party losing the property, yet, if the party who lost the property would not have delivered the property but for the representations' of the defendant, and he did not deliver the property knowing that the representations were untrue, then the defendant may be guilty of larceny; and that is the question for your determination.

      C. W. Sypiiewski, of Piekarski & Sypniewski, for appellant.
    If the owner parts with the property, by whatever fraudulent means he was induced to give credit, it is not felony: Com. v. Yerkes, 29 Legal Intel. 60; Com. v. Eichelberger, 119 Pa. 254; Lewer v. Com., 15 S. & R. 93; Com. v. Barrett, 28 Pa. Superior Ct. 112.

      George B. Lewis, with him William A. Blakely, district attorney, for appellee.
    — Obtaining possession of goods or property animo furandi, by trick, fraud or artifice amounts to larceny: Com. v. Yerkes, 29 Legal Intel. 60; Com. v. Diffenderfer, 8 Lanc. Law Rev. 209; Stinson v. People of the State of Illinois, 43 Ill. 397.
    March 3, 1910:
   Opinion by

Porter, J.,

The first assignment of error violates rule fifteen, of this court, in that the error, if any, was in the answer to a point, while neither the point nor the answer are quoted. The second and third assignments of error violate rule fourteen, for the reason that they each embrace more than one point, refer to more than one bill of exceptions and raise more than one distinct question. The assignments of error might all be quashed and the judgment affirmed upon this ground. We will, however, consider the question raised by the written request of the defendant for binding instructions and the refusal of that point by the court below. The sole contention of the appellant is that the prosecutor parted not only with the possession of but the property in his money, when he handed it to the appellant, and received in return a note for $50.00, purporting to be issued by the Confederate states of America in the year 1864, and that therefore the offense was not larceny, even if the appellant obtained the money of the prosecutor by means of a trick.

The prosecutor was a newly arrived immigrant who had come to Pittsburg directly from his home in Germany and had to wait at the Union station, Pittsburg, for a short time, for a train which would carry him to his ultimate destination, Swissvale station, near the city. He did not understand the English language and was unfamiliar with our current paper money. He was accosted in his native tongue by the defendant, who having ascertained where he was going told him that he was also going to that place and said they would have a good while to wait, the train did not leave until after eleven. Defendant asked the prosecutor if he had any friends in Pitts-burg, and the latter said he had but had not hunted them up yet. The defendant asked prosecutor to go with him to a German salodn and there make inquiry about his friends. They went to a saloon and had a glass of beer and then went out upon the street. The defendant picked up something in the street, or pretended to do so, and then exhibited what seemed to be a roll of money, upon the outside of which was a one dollar bill. The defendant said, “I have found a dollar.” He kept on unrolling it and said, “Oh, there is more than a dollar.” The defendant then said, “Have you any money about you?” The prosecutor said he had a few dollars. Defendant then said, “We will just divide this; have you $25.00? We will just divide this, but you must not tell anybody about it, not even your friends about it.” The prosecutor accepted this proposition and gave $25.00 in bills, current lawful money , of the United States, and received from the defendant a piece of paper, which the latter told him was $50.00 in money. The defendant then took the prosecutor into the Union station and telling him to wait there until he came back went out and never returned. The prosecutor subsequently continued his journey to his destination and afterwards was informed by his friends that the paper which he had received from the defendant was not lawful money of the country, but a bill which had been issued by the Confederate states of America, in 1864, and worthless. The prosecutor a few days later met the defendant in Pittsburg and caused his arrest, and when the officers arrested the defendant they found upon his person two $50.00 Confederate notes, similar to that which he had given the prosecutor, and around each of those notes, in separate rolls, was wrapped a genuine dollar bill, exactly the same character of roll of what all appeared to be money, as that which the defendant had appeared to pick up in the street when in the company of the prosecutor.

The manner in which the case was left to the jury and the verdict upon that submission distinctly determines the following facts: The defendant entered upon the transaction in question with the preconceived design of fraudulently obtaining possession of the money of the prosecutor by a trick, and converting that money to his own use. The prosecutor did not know that the piece of paper which he received from the defendant was a Confederate bill, he believed it to be lawful money of the United States, and the defendant was aware of the ignorance of the prosecutor and of his mistaken belief that he was receiving lawful money. The defendant knew that the paper which he gave to the plaintiff in exchange for his good money was a Confederate bill, was not current money of the country and was worthless. The whole scheme beginning with the pretended finding of the money was a trick devised by the defendant for the purpose of inducing the prosecutor to exchange his money for other money, while the defendant did not intend to give him money in the pretended exchange. The learned counsel for the defendant now contend that the court below should have held, as matter of law, that the taking of the money of the prosecutor by the defendant did not constitute larceny, but false pretenses.

“The correct distinction in cases of this kind seems to be, that if by means of any trick or artifice, the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with, not only the possession of the goods but the right of property in them also, the offense of the party obtaining them will not be larceny, but the offense of obtaining goods by false pretenses.” This statement of the distinction was quoted with approval from Russell on Crimes in the opinion by Mr. Justice Paxson in Com. v. Eichleberger, 119 Pa. 254, and it was there said; “The rule itself is distinct and clearly cut; the difficulty consists in its application to the facts of each particular case, varied as they are by the ingenuity of the particular rogue who makes the facts.” The rule as thus stated clearly indicates that there may be a parting with the possession which does not involve a passing of the right of property. The intention of the owner in each transaction is necessarily a controlling factor in determining whether the right of property passes with the possession. When an owner is induced by false and fraudulent representations to extend credit to one who purchases, or accepts payment for his goods by a check or bill of exchange which subsequently proves to be of no value, he parts not only with the possession of but the property in his goods, and the taking does not constitute larceny: Lewer v. Com., 15 S. & R. 93. When a purchaser is induced by false and fraudulent representations to pay more for a chattel than it is worth, his intention is to part with his money forever, he takes the chattel as his own to dispose of as he pleases, and this does not constitute larceny of the money: Regina v. Wilson and Martin, 8 Carrington and Payne, 111. With cases such as these there is no difficulty; in Lewer v. Com., the seller had extended credit to his purchaser, and in Regina v. Wilson and Martin, the purchaser had received the identical chattel for which he paid his money. The present case, however, does not fall within either of these classes. There was here no acceptance by the prosecutor of a promise made by the defendant, the contract in which the defendant pretended to join with the prosecutor was to be immediately executed, the money was by each party to be then and there delivered; no credit was extended. This case did not involve the purchase of any chattel or commodity, which might be more or less valuable than it was represented to be; there was here to be a present exchange of money for money. When the prosecutor handed the defendant his lawful money in bills it was with the intention that he should then and there receive, simultaneously; money in exchange. Had the alleged contract been executed as the prosecutor understood it and as the defendant intended Mm to understand it, the result would have been not to vest in the prosecutor title to any chattel nor a right of action on any promise of the defendant, but he would have had money and only money. The money wMch the prosecutor handed over to the defendant was not to pass out of his personal presence until the defendant completed the pretended transaction by delivering the money in exchange. The fact that the defendant opened the negotiation by proposing to give the prosecutor half of the money which he had found does not change the principle involved. The result must be just the same as if the defendant had purchased of the prosecutor goods to the amount of $25.00 and had in pursuance of a preconceived fraudulent design, by some trick, confused the prosecutor in making change, and thus obtained from him an additional $25.00 in money.

When property is obtained with a preconcerted design to f steal it, the possession is supposed to continue with the true} owner, whatever may be the means or the pretense under! which the property is obtained: 1 Hawkin’s P. C. 145. When goods or money are delivered with the understanding and intention that the property shall remain in the presence of the owner until the goods are paid for, or other money is immediately returned in exchange for that delivered, the legal possession remains in the owner till the property is altered by the perfection of the contract, which remains inchoate until perfected by the parties: 2 East’s P. C. 677. A man may be guilty of larceny of a bill or coin given him in payment of a debt of less amount in expectation of receiving change: Com. v. Lannan, 153 Mass. 287. The devices through which rogues. have deceived honest men in making change have been very numerous, and long ago the system came to be designated as “ringing the changes.” The rule is now well established, with regard to cheats of this character, that when an owner of money hands it to another in a transaction involving the making of change the possession of and title to the money remains in the true owner until he receives the money to which he is entitled in return: Verberg v. State, 137 Alabama, 73; Hildebrand v. People, 56 N. Y. 394; Regina v. McKale, 11 Cox C. C. 32; Com. v. Minnie Barry, 124 Mass. 325. When the consent of the owner of property to its taking is upon a condition to be simultaneously performed, a taking of the property, with fraudulent intent, without performance of the condition, is larceny: Loomis v. People, 67 N. Y. 322; Shipply v. People, 86 N. Y. 375; Regina v. Bramley, 8 Cox C. C. 468; Regina v. Hands and others, 16 Cox C. C. 188. In Queen v. Hollis, L. R. 12 Queen's Bench Division, 25; s. c., 15 Cox C. C. 345, Coleridge, L. C. J., said: “I cannot see if a person goes into a place and fraudulently, by means of a series of tricks, obtains possession of property from another which that other has no intention of parting with, how the offense can fail to be larceny. It is clearly stealing, and the conviction must be affirmed.” In that case a barmaid had parted with the possession of money in a transaction involving the making of change, and it was said by the court: “ She was induced to do so by a trick, and did not intend to part with it but for an equivalent.” The case of Fleming v. State, 136 Ind. 149, is in its facts precisely similar to that with which we are now dealing. The defendant in-that case, by a trick, obtained a railroad ticket and $25.00 in lawful money in exchange for a $50.00 Confederate bill, and the court held that, he was properly convicted of larceny. The prosecutor in this case did not contract to exchange his money for a worthless piece of paper; he was to have money for money; this the defendant did not give him, did not intend to give him, but fraudulently obtained his money with the intention of converting it to his own use. The suggestion that the prosecutor by accepting the $50.00 Confederate bill in exchange for his money, parted not only with the possession of but property in his money, is conclusively answered by the case of Com. v. Eichleberger, 119 Pa. 254. In that case a bank had held a promissory note for $1,600 and the defendant, who was the maker of the note, went to the bank for the purpose of renewing the obligation; he paid the interest on the renewal, and by a trick obtained possession of the $1,600 note, with the apparent consent of the bank, and gave in exchange a note with the same indorser for $16.00. It was held that the court could not determine as matter of law that the bank had parted with its right of property, merely because it had accepted one piece of paper for the other, that the paper itself was of no value, it was only valuable for what it represented. The paper which the prosecutor in this case received from the defendant was a worthless piece of paper, it was not money. There was here no real and bona fide contract between the prosecutor and the defendant, the understanding of the parties was not the same, the contract was a mere pretense, and the taking by the defendant, with fraudulent intent, was larceny.

The judgment is affirmed, and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by that court committed until he has complied with that part of the sentence which had not been performed at the time this appeal was made a supersedeas.


text:
    Hoover v. Ober, Appellant.

      Insolvency — Bankruptcy—Farmers—Receivership—Petitioning creditors — Act of Júne 4, 1901, P. L. 404.
    1. The Pennsylvania act of June 4, 1901, relating to insolvency, is suspended by reason of the existence of the federal bankrupt act of July 1, 1898, and does not become operative as to the persons and subjects to which the federal act applies.
    2. Wage-earners and persons engaged chiefly in farming or the tillage of the soil cannot be subjected to the provisions of the federal bankrupt act of July 1, 1898, without their consent, and as to such persons the Pennsylvania Act of June 4, 1901, P. L. 404, is in force.
    3. Three creditors of an insolvent are not disqualified to join in a petition under the Insolvent Act of June 4, 1901, P. L. 404, because two of them had issued execution upon judgments and had participated in directions in regard to a sheriff’s sale of the insolvent’s goods, and the bringing of the proceeds of the sale into court for distribution, and because the third attended the sheriff’s sale and bid upon and purchased a number of articles thereat. If the object of the petitioners were to set aside the sale, the question would be a different one.

      4. An averment of insolvency and an illegal preference in a petition for insolvency is sufficient to authorize the appointment of a receiver.
    Argued Dec. 13, 1909.
    Appeal, No. 156, Oct. T., 1909, by-defendants, from decree of C. P. Bedford Co., Jan. T., 1909, No. 23, on petition in insolvency in case of George B. Hoover v. John A. Ober.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Petition in insolvency.
    The opinion of the Superior Court states the case.

      Error assigned was the decree declaring John A. Ober insolvent and appointing H. B. Cessna, receiver.

      I. H. Longeneclcer, with him John N. Minnich, for appellants.

      E. M. Pennell, with him Alvin L. Little and B. C. McNamara, for appellees.
    March 3, 1910:
   Opinion by

Beaver, J.,

This is an appeal from a decree of the court of common pleas of Bedford county, in and by which John A. Ober, one of the appellants, was declared to be an insolvent and H. B. Cessna was appointed receiver of his insolvent estate.

The decree was made under and in accordance with the provisions of the Act of June 4, 1901, P. L. 404.

It was held in Potts v. Smith, 25 Pa. Superior Ct. 206, that “The Pennsylvania act of June 4,1901, relating to insolvency, is suspended by reason of the existence of the federal bankrupt act of July 1, 1898, and does not become operative as to the persons and subjects to which the federal act applies.”

It was held later in Bank v. Gass, 29 Pa. Superior Ct. 125, that, “ Wage-earners and persons engaged chiefly in farming or the tillage of the soil cannot be subjected to the provisions of the federal bankrupt act of July 1,1898, without their consent, and as to such persons the Pennsylvania Act of June 4, 1901, P. L. 404, is in force.”

It is alleged in the petition, praying for the appointment of a receiver, that John A. Ober, one of the appellants, is a farmer and that he is insolvent. This is not denied in his answer, and the appellants in their history of the case practically admit that he is a farmer. There is, therefore, no sufficient reason, under our decisions in relation to the act of June 4, 1901, why its provisions should not apply to the said Ober, appellant, and the conditions in which he is placed.

The first section of the said act provides: “That if any person, persons, firm, limited partnership, joint-stock company or corporation, being insolvent or in contemplation of insolvency, with a view to give a preference to any creditor or person having a claim against, or who is under any liability for, such insolvent, shall procure, suffer or permit any judgment to be entered, by confession or otherwise, or any execution to be levied, or any attachment or sequestration to be made of any part of his, their or its real or personal property, or shall make any payment, pledge, assignment, transfer, conveyance or incumbrance thereof, either absolutely or as collateral security for a debt then existing, whether due or not, such judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance or incumbrance shall inure to the benefit of all the creditors of such insolvent, if an assignment for the benefit of creditors be made or proceedings in insolvency be commenced within four months after such judgment, execution, attachment, sequestration, payment, pledge, assignment, transfer, conveyance or incumbrance shall have been entered, issued, commenced, made or recorded, and in the case of personal property exclusive possession given.”

The petition, under and in accordance with the prayer of which the decree in this case was made, was prepared under the seventh section of the insolvency act of 1901, and alleged insolvency and the creation of “an incumbrance of a large part, if not all, of his (insolvent’s) property, without being able to meet his liabilities and without the consent of his creditors, with the intent to prefer one creditor to another out of the usual course of his business and for the benefit of his family.” This, as we understand it, is sufficient to authorize the appointment of a receiver. See Steinruck’s Insolvency, 225 Pa. 461. As previously intimated, the insolvency is not denied, nor is the fact out of which the preference of one creditor over and above others was, as a matter of fact, created. The intention to do so is denied, but the law presumes an intention to do what naturally and inevitably follows, as the result of one’s acts knowingly done.

The petition is joined in by three of the debtor’s creditors, two of them having secured from him judgment notes, upon which executions were issued, and the third having notes upon which no executions were issued. These facts did not destroy their relation to the debtor as his creditors, and we do not, therefore, understand the second assignment of error, in which it is said: The court erred in finding in the opinion filed that, “The petition alleges that the defendant, John A. Ober, is a farmer and that he is insolvent, and a number of his creditors join in the petition.” We are asked to hold that, because two of the petitioning creditors issued executions upon their judgments and participated in the directions in regard to the sale and bringing the money into court for distribution, and the third because he attended the sale of the debtor’s property by the sheriff and bid upon and purchased a number of articles thereat, they are thereby estopped from pursuing the remedies provided by the insolvent law of 1901. We cannot so hold. There is no disabling diversity, as we view the situation, between the actions of a creditor in issuing execution and thereby placing himself in a situation to exercise control in the sale by the sheriff of a debtor’s personal property, and of being in a situation to direct what is to be done with the proceeds and attempting to secure the distribution arising from that sale, under the provisions of the insolvent act; much less can a creditor who has not issued execution and who may attend the sale and bid upon the property, in order to increase the fund for distribution, be deprived of his right to share in the distribution of the proceeds of the sale, when that distribution is to be made for the benefit of all creditors under the act. There is not only no antagonism between his position as a bidder at the sale and as a distributee in the proceeds thereof, but the positions are entirely consistent with each other, and indeed the chance of sharing equally with other creditors in the distribution would be an inducement to making the fund for distribution as large as possible.

There is no effort here, as we understand it, to set aside the sale made by the sheriff and transfer the property sold to the receiver. If this were the case, we could see much force in the argument of the appellant. On the contrary, however, the petition recognizes the sale as valid and simply proposes to deal with the proceeds in such a way as to bring about the equality among creditors which is aimed at by the insolvent act.

We have examined, with some care and interest, the most of the authorities to which the appellant refers, but do not find any of them applicable to the. circumstances under which the appellees are placed by their acts. Ketcham v. Davis, 31 Pa. Superior Ct. 583, relates to the use of two separate, independent and distinctively inconsistent remedies in the matter of leased personal property, where, by the terms of the lease, the lessor has the right to take immediate possession of the leased property and has also the right to enter judgment for the whole amount unpaid under the lease; in which we held that the lessor was not entitled to enforce both remedies, unless such right was plainly expressed in the lease or was a necessary implication from its terms. So in Hughes v. Calvert, 5 W. N. C. 98, the question was upon a rule to set aside a sheriff’s sale, at which the petitioner had been a bidder. In Field v. Great Western Elevator Co., 66 Am. St. Rep. 611, the question decided was that, “One having a right to appeal to either of two courts, on appealing to one of them, irrevocably elects to pursue his remedy and cannot afterward appeal to the other.” It was in this case that it was said, as cited by the appellant: “It is one of the very elements of the law that, when a suitor reaches the parting of the ways in the pursuit of inconsistent remedies, he must elect which road he will follow. The first step taken is an election, and the election, when made, is irrevocable.” This and the other cases referred to might have applied, if the attempt had been made on the part of the petitioners here to set aside the sheriff’s sale; but, as we have already said, there was no such effort, and it is simply a question of determining how the proceeds of this sheriff’s sale, regularly brought into court, are to be distributed.

It appears that the insolvent debtor had other property than what was sold by the sheriff; but, leaving this fact of the case entirely out of view, we are clearly of the opinion that the court below was right in the decree from which the appeal is taken.

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