author: Mobbison, J.,

text:
    Etna Manufacturing Company v. Enos, Appellant.

      Contract — Sale—Condition—Test—Waiver—Question for jury.

    Where an engine is sold on condition that it shall be tested and if unsatisfactory returned to the vendor, and the engine is delivered to the vendee, and remains in the latter’s possession for five months, without any test having been demanded, and is then levied upon as the property of the vendee, the question, on an issue between the vendor and the execution creditor, as to whether the vendee had waived the condition as to a test and accepted the property, is a question.for the determination of a jury.
    Argued May 15,1906.
    Appeal, No. 111, April T., 1906, by defendant, from judgment of C. P. Butler Co., March T., 1905, No 2, on verdict for plaintiff in case of Etna Manufacturing Company v. Enos & Co. for use.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Issue to determine title to an engine. Before Gad-breath, P. J.
    The court charged in part as follows:
    [Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent.] [6]
    [So that we may accept it as being the law that where an article is sold upon trial, that is, that the purchaser shall try it, or something is to be done by the seller before it is to be accepted by- the purchaser or the money paid, in that event the title does not pass until that trial and acceptance have taken place and the money paid in accordance with it. That I think is still the rule of law in this state.] [7]
    [You wish to buy and someone wishes to sell you a reaping machine; you wish to know that it will work satisfactorily; the seller says that he is willing to sell the machine, put it together and start it going and if it works satisfactorily to you and you accept it, that you will then pay him the price agreed upon; in that event he brings the reaper to your farm ; it does not become your property and subject to the payment of your debts or to be taken on execution the moment it is set on your farm, but under the law it is still the property of the vendor, the man who sells the machine, until such time as he has-set it up and started it going and it proves acceptable and you pay the money pursuant to that acceptance ; up till that time it is the property of the vendor and could be taken for his debts, but not yours.] [8]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (6, 7, 8) above intructions, quoting them, and (9) in directing a verdict for plaintiff.

      H. H. Goucher, F. J. Forquer and Williams Mitchell, for appellant.
    — The case was for the jury: Brunswick & Balke Co. v. Hoover, 95 Pa. 508; Martin v. Mathiot, 14 Serg. & Rawle, 214.
    In sales on trial the mere failure to return the goods within the time specified makes the sale absolute: Dewey v. Erie Borough, 14 Pa. 211; Butler v. School District, 149 Pa. 351; Stutz v. Coal & Coke Co., 131 Pa. 267.

      T. C. Campbell, with him N. C. Me Cullougl, for appellee. — ■
    A sale is an executed contract: it vests the'property in the thing sold in the buyer; but when the contract remains executory, there is no sale: Welsh v. Bell, 32 Pa. 12; Edwards’s App., 105 Pa. 103.
    The contract in this case was upon condition precedent, that is, that the engine should be satisfactory to the purchaser after test made by the vendor, and hence the title did not pass: Hickman v. Shimp, 109 Pa. 16; Goss Printing Press Co. v. Jordan, 171 Pa. 474; Logan v. Smith, 8 W. N. C. 102; Hand v. Matthews, 208 Pa. 149.
    June 30, 1906:
   Opinion by

Mobbison, J.,

This is a feigned issue to try the title to a certain Bessemer gas engine and fittings which the Etna Manufacturing Company, plaintiff, sold and delivered on May 23, 1904, to the McGuire Metallic Vacuum Casket Company, incorporated. The purchase price of the engine and fittings agreed upon between the parties was $250 ; and this amount was charged on the books of the plaintiff company against the vendee without any condition whatever appearing in the charge. On October 18, 1904, a writ of fieri facias was issued out of the court of common pleas of Butler county on a judgment in favor of W. B. Enos and Company and against the McGuire Metallic Vacuum Casket Company and placed in the hands of the sheriff on that day; and the said gas engine and fittings were levied upon by the sheriff on October 27, 1904, and advertised for sale on November 4, 1904. It will be observed at once that the question for trial in this issue is whether the title to the property in question was vested in the McGuire company so that it was liable to be sold on said execution.

The plaintiff’s declaration states that “ the Etna Manufacturing Company, Limited, is the sole owner of the above-named engine; that a conditional sale of said engine was made to the McGuire Metallic Vacuum Casket Company, the conditions of said sale being as follows : Said Etna Manufacturing Company, Limited, agreed to take to the plant of the McGuire Metallic Vacuum Casket Company said engine, set it up and start it, and if it worked to the satisfaction of the McGuire Metallic Vacuum Casket Company they were to accept said engine and pay the said Etna Manufacturing Company, Limited, $250 for the same.”

At the trial of the issue the plaintiff offered in evidence the statement of F. W. Chattin, in this case to be accepted as testimony, by consent: “ Gas engine was bought by P. J. McGuire for the McGuire Metallic Vacuum Casket Company about one year ago from E. P. Daubenspeck, agent for the Etna Manufacturing Company. I was present and heard bargain made between Mr. McGuire and Mr. Daubenspeck. The conditions of the sale were that the Etna Manufacturing Company were to deliver said engine to the McGuire Metallic Vacuum Casket Company, which delivery was made about May, 1904, and started running at their direction, and if it ran satisfactorily to said casket company they were to pay the sum of $250 for the same.” Mr. Chattin also testified : ‘ We agreed to take the engine out for $250; they were to place it on the block and after it was placed on the block we were to go and start the engine; if it ran satisfactorily they were to pay us $250, and if it didn’t run satisfactorily, we were to have the engine back. Q. Satisfactory to whom ? A. To the McGuire Metallic Vacuum Casket Company. Q. They were to put it on the block; and who was to make the connection? A. We were to make the connections. Q. And start it up ? A. Yes, sir. Q. And if it ran satisfactorily to them they were to take it and pay $250? A. Yes, sir. Q. Was it ever put on the block? A. No, they never put it on the block. Q. Did you ask them at any time to put it on the block ? A. Yes, sir, we did; it stood out there for several weeks and we asked them to put it on the block different times. Q. But it was never done? A. No, sir. Q. And accordingly you never made the connections ? A. No, sir. Q. And never ran it ? A. Never started the engine. Q. Did they ever pay you any part of the $250 ? A. No, sir.”

In this connection it should be noted that the sheriff testified that when he levied on the engine it was set upon the block; so there is a dispute of fact between the parties as to whether or not the vendee placed the engine upon the block as agreed.

It thus clearly appears that the plaintiff sold the engine and charged upon its books the price thereof, without condition appearing upon the books, and that the condition as to the setting up and starting the engine was for the benefit of the McGuire Metallic Vacuum Casket Company. It also appears from the plaintiff’s own testimony that it was ready to start and test the engine and offered to do so several times, but the casket company was not ready to have the test made. It further appears that the engine remained in- the possession of the casket company for a period of about five months, without any effort on its part to have the engine tested, and during all that time no effort whatever was made, on the part of the plaintiff, to reclaim its engine, nor did it give any notice of an intention so to do, until after the Enos and Company execution was a lien upon the engine and fittings.

In our opinion, upon this state of facts, it was manifest error for the learned court below to instruct the jury to find a verdict in favor of the plaintiff. We think this comes very near being a case where the court might direct a verdict in favor of the defendant, but upon careful consideration we incline to the opinion that, upon the evidence as it appears in the record, there was a question of fact to be passed upon by the jury. We think the inference can fairly be drawn, from the evidence, that so far as- the plaintiff is concerned, the sale was absolute and upon credit, subject only to the acceptance by the casket company on the setting up and testing of the engine. We are further of the opinion that a jury might infer from the evidence that the casket company waived the setting np and testing of the engine by its delay during the period of five months, according to the plaintiff’s testimony, to put the engine upon the block in condition to have the test made. Now during all this period it does not appear that the casket company gave any notice indicating that it did not intend to accept the engine.

Upon the facts in this record there can be little, if any, doubt that in an action by the plaintiff against the casket company for the purchase price of the engine and fittings, brought five months after the delivery, it would have been a question for the jury as to whether the casket company had waived the testing and had accepted the property. If this is so, we cannot see how an execution creditor of the casket company would, be in any worse position than the plaintiff. It is clear beyond question that the sale was a conditional one and it was either on condition precedent or subsequent.

In Hickman v. Shimp, 109 Pa. 16, we have a case much like the one at bar. There the contract was as follows : “ The engine and boiler were at Mt. Joy in Lancaster County. I told Willauer that I would put the engine and boiler there and guarantee that it would do the work, that is, pump the water and hoist the kaolin, and if not it would be no sale ; that the engine must give satisfaction. I think I told him I would charge §700, not over $800; not positive about that.” In that case there was no time fixed within which notice of approval or acceptance was to be given, and in that respect it is precisely like the case at bar. In that case Willauer made an assignment for the benefit of his creditors, and on Febrnarj' 18,1881, the boiler and engine were sold by his assignees to Henry S. Hickman, from whom the defendants, the subsequent owners and operators of the mines, purchased them. In that case the verdict and judgment was in favor of Shimp, who sold the engine and boiler to Willauer, but the judgment was reversed by the Supreme Court. In the opinion by Mr. Justice Clark we find the following: “ The contract was a conditional one. It provided for subjection of the engine to trial, and became absolute only on approval; but such a contract created a condition which must be satisfied before the promise it qualifies becomes effectual. It is, therefore, a condition precedent, and the title will not pass until the option is determined. In .this respect it differs from what is denominated among merchants ‘a sale and return,’ which creates a condition subsequent merely, and passes the title at once, subject to the right to rescind and return: Hunt v. Wyman, 100 Mass. 198; Wharton on Contracts, 590 ; Benjamin on Sales, 791.”

“ In the event of disapproval, the vendor is entitled to receive notice; if a time be specified within which the option is to be exercised, the buyer has the full period agreed upon to give that notice, but no more; if none be fixed, a reasonable time is implied. In either case, however, it is. the duty of the buyer, if he disapprove, to make his disapproval known to the seller in due. season, or the contract will become binding upon him by the resolution of the condition: 5 Wait’s Act. and Def. 552. What is a reasonable time, where the facts are ascertained, is ordinarily a question of law for the court, to be determined upon a consideration of all the cjrcumstanc.es; where, however, the facts are not clearly established, or where the question depends upon other controverted matters, it is, under proper instruction, for the jury. The buyer’s approval may, therefore, be implied from mere neglect to notify, or from any act or course of conduct, in relation to the property, which necessarily involves an unequivocal assertion of his absolute ownership; as, if he should sell it to another, or pledge it for the payment of his own debts. The same condition of facts, which will hold the buyer, in an action against him for the price, will establish his title in a replevin for the property.”

In Goss Printing Press Company v. Jordan, 171 Pa. 474, we find in the opinion of the Supreme Court, by Mr. Justice Mitchell, the following:

“ Delivery does not consist in the mere transfer of location or custody of property. There must be the mind of both parties concurring in the transfer in accordance with the contract, the intent of one to deliver and the other to receive. ... In order to make a sale which is conditional as to the parties, absolute as to creditors, there must be a delivery of the goods in ■pursuance of the contract, for without this there can be no present sale, and an agreement of sale without an accompanying transfer, amounts to nothing more than a contract to sell at a future time, or upon the fulfillment of stipulated conditions. Furthermore, the delivery of possession alone, though a material indicium of ownership, does not of itself constitute a sale, for the goods may be delivered in bailment, as in loan for hiring. There must, in addition to the possession, be at least such a conditional or qualified title passed to the buyer as to give him a transferable interest in the chattels: Edwards’s App., 105 Pa. 103.”

In the case at bar we think the contract amounted to a sale on condition precedent, and that no such conditional or qualified title passed to the buyer, at the time of the delivery of the engine and fittings, as to give it a transferable interest therein, nor would it authorize levying upon the property as that of the buyer until something had transpired indicating a compliance with the condition precedent, or a waiver of it by the parties. And right here is the turning point in the present case; and the evidence not being in writing, not undisputed, and no time fixed in the contract when the test should be made and the property accepted or rejected, the question of whether an unreasonable time had been allowed to elapse before the plaintiff undertook to reclaim the property, and whether the casket company had waived the test and accepted the property, ought to have been submitted, under proper instructions, to the jury-

It is so well settled in this state that a sale and delivery of personal property with a condition subsequent that the title will not pass until the buyer makes payment, vests such conditional title in the vendee that it may be levied upon and sold as his property, that it is unnecessary to cite authorities on that question.

It is argued by the appellee that the engine and fittings were held by the casket company under a bailment. But we are clearly of the opinion that the evidence does not establish a bailment. No rental was reserved; no contract for a return of the property and none implied unless it proved unsatisfactory on test, and we think it falls far short of a bailment: Painter v. Snyder, 22 Pa. Superior Ct. 603.

We do not sustain the first, second, third, fourth and fifth assignments. Under the evidence in this case, we do not approve of the instructions contained in the sixth, seventh and eighth assignments, because they entirely ignore the rule of law that the condition precedent may have been waived by the parties and the property accepted by the vendee, as indicated by the lapse of time and the other circumstances in the evidence. So much of the ninth assignment as directed a verdict for the plaintiff is sustained and the judgment is reversed .with a v. f. d. n.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    McGeary v. Huff, Appellant.

      Attachment execution — Answers of garnishee — Judgment.
    It is a rule of practice of the court, intended for the protection of garnishees against the claims of those whose funds or effects they have in hand, never to render a judgment against them upon answers filed, unless those answers contain either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law.
    An answer of a bank summoned as a garnishee in an attachment execution is sufficient to prevent judgment, if it discloses that the bank has in its possession certain moneys deposited by the defendant, and standing in an account to his credit,' but declares in terms that the garnishee is unable to state whether this money belonged to the defendant or to other persons, the garnishee having been expressly notified that the money did, in fact, belong to other persons and not to the defendant.

      Attachment execution — Judgment—Appeals—Right of defendant to appeal.

    Where an attachment execution has been served both upon the defendant and the garnishee, and both appear, and judgment has been entered against the garnishee on answers held to be insufficient, the defendant may maintain an appeal from the judgment, although he filed no plea, eo. nomine, but simply a petition asking the dissolution of the attachment on the ground that the money covered by. the attachment did- not belong to him, but belonged to other persons.
    Argued April 10,1906.
    Appeal, No. 43, April T., 1906, by defendant, from order of O. P. No. 3, Allegheny Co., Nov. T., 1903, No. 41, making absolute rule for judgment against garnishee in ease of George H. McGeary v. Charles C. Huff.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Reversed.
    Attachment execution against a trust company.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment against the garnishee.

      Smith $ Kearns, for appellant.
    — Where the garnishee admits funds in his hands sufficient to satisfy the plaintiff’s claim and the defendant appears and files an affidavit averring facts sufficient in themselves to prevent the entry of judgment against the garnishee, judgment should not be so entered: Haupt v. O’Mally, 2 Leg. Rec. 386; Cunningham v. O’Keefe, 3 Pa. C. C. Rep. 471; Jones v. Jones, 9 Luz. L. R. 195 ; Kistler v. Thompson, 3 Lack. Jur. 341.
    A garnishee’s answers to interrogatories are not to be construed with the same strictness as an affidavit of defense, and judgment cannot be entered against him on the answer unless they contain an absolute and distinct admission of indebtedness: Allegheny Savings Bank v. Meyer, 59 Pa. 361; Stone v. Rohner, 7 Pa. Dist. Rep. 313; Sheetz v. Leech, 2 W. N. C. 291.

      W. L. MoGonegly, for appellee,
    cited: Schempp v. Fry, 165 Pa. 510.
    October 5, 1906:
   Opinion bv

Head, J.,

The appellee, having obtained a judgment against the appellant, issued an attachment execution thereon with notice to the Monongahela Trust Company of Homestead as garnishee. The defendant being a resident of the county in which the writ issued, it was served on him, as well as on the garnishee, and both appeared.

To the interrogatories filed by the plaintiff, the garnishee originally answered admitting in its hands the sum of $610.14 belonging to the defendant. This admission was plain, clear, and without any qualification, and would have undoubtedly supported a judgment in favor of the plaintiff and against the garnishee on its answer. Before any such judgment was taken or applied for, a notice was served on the garnishee, that the money in its possession, which had been deposited by the defendant, did not belong to him, the said defendant, but was part of the individual pay of Company B, 18th Regiment, N. G. P., of which company the defendant was captain, and warning the garnishee “ that if you pay the sum, or any part thereof, you will do so at your own risk.” Thereupon the garnishee filed its petition setting forth the information it had received since its original answer was filed, and praying for leave to amend the said answer so as to read as follows: “ At the time the attachment was served there was, and there still is at the present time, in our hands a balance of $610.14 standing to the credit of the defendant, Charles C. Huff, and from information which has come to the Monongahela Trust Company it is unable to state whether or not this sum of money is the personal property of the said defendant, Charles C. Huff; and further states that it has been notified by the defendant, Charles C. Huff, that the said sum so standing in the name of the said Huff is not the money of Huff, but is the money of some other person or persons.” Leave to amend the answer in accordance with the prayer of the petition was duly granted, and the answer so filed remains of record as the answer of the garnishee in the proceeding.

The rule to show cause why judgment should not be entered in favor of the plaintiff and against the garnishee was, after hearing, made absolute on June 3,1905, and from the judgment thus entered this appeal is taken.

It has been well said that “ Though the attachment execution is a proceeding of purely legislative origin, the legislation upon the subject is singularly incomplete, and the procedure, as a system, may be said to be due entirely to the plastic hand of judicial discretion.”

In an early case, since frequently cited with approval, the district court of Philadelphia defined the proper practice on the hearing of rules for judgment against garnishees on answers in the following language: “ It is a rule of practice of the court, intended for the protection of garnishees against the claims of those whose funds or effects they have in hand, never to render a judgment against them upon answers filed, unless those answers contain either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law.”

In Allegheny Savings Bank v. Meyer, 59 Pa. 361, Mr. Justice Williams, speaking for the court, thus announces the same rule of practice: “ A garnishee’s answer is not to be construed with the same strictness as a defendant’s affidavit 0f defense, A garnishee is not bound to set forth ‘specifically and at length, the nature and character of his defense ’ to the attachment. He is only required to answer the interrogatories that may he submitted to him. A judgment will not be entered against him on his answer unless he expressly or impliedly admits his indebtedness to, or his possession of, assets belonging to the judgment debtor; and the admission ought to be of sucha character as to leave no doubt in regard to its nature and extent.”

The reason for the adoption of such a rule is apparent when we come to further consider that, if the plaintiff regard the answer of the garnishee as in any way evasive or lacking in the detailed information which an answer in good faith ought to furnish, he may, upon exceptions filed to such answer, procure an order that the garnishee answer further. On the other hand, if he be not satisfied with the truth of the answer as made, he may take issue with the garnishee on the questions of fact raised and go to trial. Have we then, in the amended answer of the garnishee, such a clear, unequivocal admission of assets' in its hands belonging to the defendant, as would warrant the court, keeping in view the rule already laid down, entering judgment against it on such answer? We can hardly think so. The answer discloses that the garnishee, a bank, has in its possession certain moneys deposited by the defendant and standing in an account to his credit. If this were all, it might be considered that the further fact, that such money belonged to the defendant, was implied. But the answer goes on to repudiate any such implication by declaring in terms that the garnishee was unable to state whether this money belonged to the defendant or to other persons, it having been expressly notified that it did, in fact, belong to other persons and not to the defendant. How then can it be fairly argued that we have anything like a clear admission that it has assets of the, defendant in its hands ?

In Lancaster County Bank v. Gross, 50 Pa. 224, the proper rule to be observed in such a case, where doubt as to the ownership of the fund in the hands of the garnishee has been raised and where the latter is entitled to protection against the payment of such money to the wrong person, is thus stated by the court: “ In such a case the court cannot go outside of the answers or receive extraneous proof to qualify or contradict. The admissions, like a special verdict,'form the exclusive foundation of the judgment. If the facts stated appear to be insufficient to entitle the plaintiff to a judgment, the court refuse judgment and discharge the rule, leaving the plaintiff at liberty to rule the garnishees to plead to issue and to proceed to trial; ” and because in that case it appeared that there was a claimant to' the fund other than the defendant, the judgment by the court below was reversed and the cause was directed to proceed to issue and trial.

In Bell v. Binding and Mailing Co., 10 Pa. Superior Ct. 38, the rule is again declared by W. D. Porter, J., speaking for the court, thus: “ Upon the answer this judgment must stand if it is to be sustained. If the facts stated in the answer are not sufficient to entitle the plaintiff to the judgment entered, then the entry was erroneousand then going on to quote from and cite with approval the case of Lancaster County Bank v. Gross, 50 Pa. 224.

In Importers & Traders’ Bank v. Lyons, 195 Pa. 479, the garnishee answered that he had certain moneys in his hands which, as he believed, were truly the moneys of the defendant, but that claim to the said moneys had been made by another, which claim the garnishee did not believe to be well founded, but desired to be protected against. The Supreme Court, by Mr. Justice Brown, reversing the court below, where judgment had been entered in favor of the plaintiff and against the garnishee upon his answer, said: “ The answer of the garnishee, which we have quoted, that another claimed the moneys in his hands and that he was exposed to the danger which he • set forth, if judgment should be entered against him in the attachment execution, was sufficient for refusing the same. He was a mere stakeholder of the moneys in his hands and was not .bound to determine, at his peril, to whom it should be paid : Lancaster County Bank v. Gross, 50 Pa. 224. He was entitled to the protection of the court, and a judgment should not have been rendered against him, when there was a doubt as to the defendant’s title to the fund attached.” In the present case, just as plainly, the garnishee sets up the doubt that existed as to- the true ownership of the money in its hands. It is true it did not formally ask the court to protect it against the danger of paying to the wrong person, under such circumstances, but it did state the fact, from which the necessity for such protection became manifest, and we think it was the duty of the court below, acting in harmony with the cases already cited, and others, to have extended such protection by refusing to enter judgment for the plaintiff and directing the cause to proceed according to law. The judgment must, therefore, be reversed, unless it appear that the present appellant is without standing, and this question we will consider briefly. This appeal is not taken by the garnishee. With the entry of judgment against it, it has rested and taken no further action. This appeal is taken by the defendant. Has he such standing in this proceeding as entitles him to appeal from the judgment entered against the garnishee, or is he to be relegated to any remedy he might have against the garnishee, if the latter permitted an erroneous judgment to stand against it without taking an appeal?

In Wachter’s Case, 1 Walker’s Reports, 267, we note the following in a per curiam opinion on page 274: “This writ of error was prosecuted by the defendant below and not by the garnishee, and if there was an error in entering judgment upon the answers it is not for the defendant to take advantage of it.” This case is so poorly reported that it is extremely difficult to ascertain the exact point of the decision. Three separate opinions of the Supreme Court are reported, covering various phases of what is all put together as one case, and great confusion results. It does not seem to us, as the law now stands, that the Supreme Court'would hold that the defendant is so lacking in interest in such a proceeding that he cannot be heard upon an appeal. Where the defendant is a resident of the county in which the writ issues, the act of assembly requires that it be served on him. This, manifestly, is for the purpose of giving him a day in court to be heard. In many casefc it has been held that he has the right to plead such matters as would destroy the plaintiff’s right to have a judgment, and, if such plea be entered, it must be disposed of in due course as the nature and character of the plea would require. But if the garnishee, by its answer, sets forth what would constitute a bar to the judgment sought, why may not the defendant rely upon such answer ? He is a necessary party to the proceeding. He is greatly interested in the correctness of any judgment that may be entered, because, if properly entered against the garnishee, the payment of that judgment becomes an extinguishment of the debt, due to the defendant from the garnishee, to the extent of such payment.

In Jones v. Tracy, 75 Pa. 417, Tracy issued an attachment execution in which Jones was defendant and Solomon was garnishee; both were served. The defendant claimed the benefit of his exemption. Judgment was entez’ed against the garnishee by default for want of an appearance, which has been held to be the equivalent of an admission, by the garzzishee, of funds in his hands belonging to the defezzdant, sufficient to satisfy the judgment. After judgment a fieri facias was issued against the ganzishee, who thereupon paid the amount of the writ to the sheriff. The money, having beezi paid into court by the sheziff, was claimed by the defendant; but his claim was denied and the money awarded to the plaintiff. The defendant appealed and the judgment was reversed with a procedendo so that the court below might'see that no injustice was done if the default of the garnishee had arisen from any misconception of his duty.

In Bletz v. Haldeman, 26 Pa. 403, which was an attachment execution begun by Bletz against Haldeman, with notice to Kaufman and Price as garnishees, the defendant, prior to judgment against the garnishees, had executed an assignment for the benefit of his creditors. Plis assignee appealed before the justice of’the peace, before whom the proceedings had begun, and defended, and after judgment, appealed to the court of common pleas. That court struck off the appeal. The Supreme Court reversed that order saying, the assigziee, “ although not a party to the l'ecord, was the real party in intei'est.”

In Rozelle v. Rhodes, 116 Pa. 129, the defendant filed a plea and the garnishee answered, but the plaintiff demurred to the plea and the court sustained the demurrer and thezi entered judgment against the garnishee on his answer. The defendant then took an appeal. The Supreme Court, in a careful opinion, affirmed the judgment of the court below on its merits, but no question seems to have been raised as to the right of the defendant to take an appeal. It is true in that case a formal plea was filed by the defendant. Izz the presezit case the defendant filed no plea, eo nomine, but filed a petition asking the dissolution of the attachment on the ground that the money covered by the attachment did not belong to him, but belonged to other persons. ■ If setting forth sttch facts in the form of a plea would have given the defendant standing to take an appeal, after his plea had been demurred to and judgment had gone against him on the demurrer, we can see no substantial reason why his interest in the case is any the less, or why, in the absence of any statutory enactment to the contrary, he should not now be permitted to be heard. We think, therefore, that the defendant has such an interest in the present proceeding that, being already a party on the record, made so by the provisions of the act of assembly, he can maintain this appeal, and, having already concluded that the court below was not warranted in entering judgment against the garnishee upon its answer, it follows that the judgment must be.reversed.

Judgment reversed and a procedendo awarded. ■


author: Portee, J.,

text:
    Jackson v. American Natural Gas Company, Appellant.

      Oil and gas lease — Lease—Rental—Forfeiture.
    An oil and gas lease covered 275 acres and was to continue for ten years, and as much longer as oil and gas were produced in paying quantities, with the right to drill for the same upon a stated royalty. The lease further provided that “in case no well is commenced within three months from date, then this grant will immediately become null and void as to both parties,” with a proviso that the lessee might prevent forfeiture from quarter to quarter and not longer, by paying a certain sum per quarter “ until such well was commenced.” The lease further provided that when “a well was completed the rental should be reduced a certain amount per quarter,” “and the well holds protection of ninety-one acres.” When the second well should be completed, the rental was to be further reduced to an amount stated per quarter, and when a third well was completed the rental was to cease, “ and it is understood each well holds for protection one-third of the two hundred and seventy-five acres.” Two wells were commenced within the required time, but the third well was never drilled. Held, that the lessee on the completion of the two wells had acquired an interest in two-thirds of the entire tract, and that he was bound to pay the amount of the reduced rental per quarter, which the lease provided should be paid upon the completion of the second well.

      Argued April 10, 1906.
    Appeal, No. 46, April T., 1906, by defendant, from order of C. P. No. 2, Allegheny Co., Oct. T., 1904, making absolute rule for judgment for want of a sufficient affidavit of defense in case of W. J. Jackson v. American Natural Gas Company.
    Before Rioe, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Appeal from judgment of a justice of the peace.
    From the record it appeared that on April 10, 1900, plaintiff executed a gas lease to W. G. Hunter, which was aftérwards assigned to the defendant. The lease was as follows:
    “ In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, W. J. Jackson, of Kiskiminetas township, Armstrong county, Penn’a, first party, hereby grants unto W. G. Hunter, of Allegheny city, Pa., second party, his heirs and assigns, all the oil and gas in and under the following described premises, together with the right of ingress and egress at all times for the purpose of drilling and operating for oil, gas or water, and to conduct all operations and lay all pipes, erect such buildings and tanks necessary for the production and transportation of oil, gas or water, reserving, however, to first party the equal' one-eighth (1-8) part of all oil produced and saved from said premises, to be delivered in the pipe line to the credit of first party free of charge, all that certain lot of land situate in the Township of Kiskiminetas, County of Armstrong, in the State of Pennsylvania, bounded and described as follows, to-wit: North by lands of Cocheranand McLaughlin and R. Beck and Martin heirs; East by lands of J. Y. and S. M. Jackson; West by lands of George and McClelland Kerr; South by lands of Mathias Bousterd and J. A. Wylie; containing 275 acres, more or less.
    “ To Have and to Hold the Above Premises unto the parties of the second part, his heirs, executors and assigns, on the following conditions: Term, ten years, and as much longer as oil or gas is produced in paying quantities.
    “If gas only is found, second party agrees to pay at the rate of $200 each year, payable quarterly in advance, for the product of each well while the same is being used off the premises and marketed.
    “ Whenever first party shall request it, second party shall bury all gas lines, and pay all damages done to growing crops by reason of burying and removing of said pipe lines.
    “ No well shall be drilled nearer than 300 feet to the house or barn on said premises without the consent of both parties hereto.
    In case no well is commenced within three months from this date, then this grant shall immediately become null and void as to both parties. Provided, that second party may prevent such forfeiture from quarter to quarter, and no longer, by paying to the first party at the rate of sixty-eight 75-100 dollars per quarter at office of the American Natural Gas Company, Pitts-burg, until such well is commenced.
    “ The second party shall have right to use sufficient gas, oil and water to run all necessary machinery placed on the within or neighboring premises owned or operated by them, and also the right to remove all his property at any time.
    “ All monies that may become due under this instrument pajable to W. J. Jackson by check of the American Natural Gas Company mailed to his address, Apollo, Pa. When a well is completed, the rental is thereby reduced to $183.33 per year, or $45.83 per quarter, and the well holds protection of ninety-one acres. When second well is completed, the rental is reduced to $91.66 per year, or $22.91 per quarter; and when a third well is completed the rental ceases, and it is understood each well holds for protection one-third of the 275 acres.”
    ' The defendant company completed two wells prior to July 9, 1902. On July 9, 1902, the defendant gave the plaintiff the following notice:
    “ Pittsburg, Pa., July 9th, 1902.
    “ Mr. W. J. Jackson, Apollo, Pa.:
    “ Dear Sir — In view of the fact that our operations in your vicinity have been very disappointing, we have decided not to make any further payment of rental on your oil and gas lease, dated April 10th, 1900, and hereby notify you that we consider our rights forfeited and our obligations at an end, as far as they pertain to the undrilled one-third of the farm.
    “Yours very truly,
    “ American Natural Gas Company.”
    The plaintiff now sues for rental at the rate of $22.91 per quarter from July 10, 1902, to July 10, 1904, making the sum of $160.37. The defendant in its affidavit of defense claimed that under the forfeiture clause in this lease, as decided in the case of Glasgow v. Chartiers Oil Company, 152 Pa. 48, the defendant was not liable.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of' the court.
    Lyon, McKee & Mitchell, for appellant.
    — This case is clearly ruled by Glasgow v. Chartiers Gas Co., 152 Pa. 48, and McKee v. Colwell, 7 Pa. Superior Ct. 607.

      Harvey A. Miller, for appellee.
    October 5, 1906:
   Opinion by

Portee, J.,

The plaintiff granted to the assignor of the defendant the oil and gas under the grantor’s tract of land, containing 275 acres, in Armstrong county, and the right to go upon and operate the land for oil and gas purposes. The lease, or right granted, was to continue for ten years, and as much. longer as oil and gas were produced in paying quantities, with the right to drill for the same upon the royalty of one-eighth part of the oil produced and $200 per year for the product of each gas well so long as marketed off the premises. The grant contained the following conditions: “ In case no well is commenced within three months from date, then this grant shall immediately become null and void as to both parties. Provided that the second party may prevent such forfeiture from quarter to quarter, and not longer, by paying to the first party, at the rate of $68.75 per quarter, at the office of the American Natural Gas Company, Pittsburg, until such well is commenced.” The lease contained no covenant to pay in case of a failure of the lessee to commence operations on the land, and the only liability which the lessee, or his assignee, would have incurred from such a failure to begin operations would have been that fixed by the express covenants of the lease, viz.: that the grant should become null and void as to both parties. No action could have been maintained to recover the amount of $68.75 per quarter, which it was necessary for the lessee to pay in order to avoid a forfeiture: Glasgow v. Chartiers Gas Company, 152 Pa. 48; Hays v. Forest Oil Company, 213 Pa. 556; McKee v. Colwell, 7 Pa. Superior Ct. 607; McMillan v. Philadelphia Company, 159 Pa. 142.

The defendant did not, however, fail to commence a well within three months from the date of the lease, but did in fact with due diligence complete two wells upon the leased premises. The above-quoted clause of the lease, therefore, never went into effect and the rights of the parties are to be determined independently of it, and under the following covenant : “ All moneys that may become due under this instrument payable to W. J. Jackson by check of the American Natural Gas Company, mailed to his address, Apollo, Pennsylvania. When a well is completed, the rental is thereby reduced to $183.83 per year, or $45.83 per quarter, and the well holds protection of ninety-one acres. When second well is completed, the rental is reduced to $91.66 per year, or $22.91 per quarter, and when a third well is completed the rental ceases, and it is understood each well holds for protection one-third of the two hundred and seventy-five acres.” The agreement furnished no means of determining what part of the tract should be protected by the first and second wells drilled. The farm was dealt with as an entirety, and the effect of this clause of the lease was to vest in the lessee an actual interest in the land, during the term of ten years. As soon as the first well was completed, that well protected the interest of the lessee in one undivided third of the 275 acres, when a second well was completed his interest was protected as to two undivided thirds of 275 acres, and had he completed a third well his interest in the oil and gas under the entire 275 acres would have been absolutely protected to the end of the ten-year term. The amount to be paid after the completion of the first and second wells is by the parties called a rental, whereas they had not so designated the moneys which were to be paid by the lessee in order to avoid a forfeiture before operations were commenced; thus clearly indicating that they understood the meaning of the term rental and here used it in the sense of money paid for the use of land under a covenant. The appellants having completed two wells on the 275 acres have acquired the right to hold two-thirds of the entire tract, for tbe purposes of the lease, without any possibility of forfeiture, and in consideration of the right thus acquired they have, under the clause of the lease last quoted, agreed to pay the appellee, as a rental, the sum of 122.91 per quarter.’

The judgment is affirmed:


author: Henderson, J.,

text:
    Brackney, Appellant, v. Crafton Borough.

      Constitutional law — Sewers—Municipal improvements — Act of April 2, 1903, P. L. 124 — Constitution of Pennsylvania, article XVI, sec. 8 — Taxation.

    The Act of April 2, 1903, P. L. 124, which provides that the report of a board of viewers shall be final and conclusive when confirmed by the court as to any assessment made therein to pay the costs and expenses of any street, sewer, or other improvement, doe3 not violate section 8 of article XVI of the constitution of Pennsylvania, which prohibits the general assembly from depriving any person of an appeal from any preliminary assessment of damages made against him by viewers. In such a case the assessment contemplated by the constitution referred to the damage sustained by a property owner whose property has been taken, injured or destroyed, and not to the costs of a municipal improvement, which are in the nature of a tax.
    Argued April 10,1906.
    Appeal, No. 80, April T., 1906, by plaintiff, from order of O. P. No. 3, Allegheny Co., May T., 1904, No. 666, making absolute rules to strike off appeals in case of J. E. Brackney v. Crafton Borough.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Rule to strike off appeals. Before Evans, J.
    ' The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the Court.

      John Reiman, Jr., with him J. M. Shields, for appellant. — ■
    The provision of this act of 1903 offends against the constitution, because it prohibits the “ free and open access to the courts of justice which the bill of rights so plainly guarantees to every citizen of the commonwealth,” as stated by Justice Williams in the case of Wyoming Street, 137 Pa. 494, and by Judge Slagle in Pittsburg’s Petition, 138 Pa. 401. See also Tourison’s App., 171 Pa. 38; Beechwood Avenue Sewer, 179 Pa. 494.

      John O. Petty, for appellee.
    — The “preliminary assessment of damages ” referred to, is that damage sustained by the owner of property when- it is “ taken, injured or destroyed ” by the construction or enlargement of public works, highways or improvements: In re Towanda Bridge Company, 91 Pa. 216 ; Monongahela Bridge Company v. Railway Company, 114 Pa. 478; Tourison’s Appeal, 171 Pa. 38.
    There is no constitutional right of appeal from an assessment for the costs and expenses of a municipal improvement: Oil City v. Oil City Boiler Works, 152 Pa. 348; Pennsylvania R. R. Co. v. Lutheran Congregation, 53 Pa. 445; Williams v. Pittsburg, 83 Pa. 71.
    October 5, 1906 :
   Opinion by

Henderson, J.,

The assessment from which the appellant claims the right to appeal was made to pay the cost and expense of the construction of a sewer along the appellant’s lot. No property was taken, injured or destroyed, nor was any claim for damages presented. Under the Act of April 2, 1903, P. L. 124, the report of a board of viewers when confirmed by the court is conclusive as to any assessment made therein to pay the costs and expenses of any street, sewer or other improvement unless an appeal be taken to the Superior or Supreme Court within thirty days. This act the appellant contends is in violation of section 8 of article XYI of the constitution, which prohibits the general assembly from depriving any person of an appeal from any preliminary assessment of damages made against him by viewers or otherwise, and provides that on demand by either party the amount of such damage shall be determined by a jury according to the course of the common law. The preliminary assessment of damages referred to in this section is the damage sustained by a property owner whose property is “ taken, injured or destroyed ” by the construction or enlargement of public works, highways or improvements. An appeal is here allowed in all cases in which property has been taken by a municipal corporation: Tourison’s Appeal, 171 Pa. 88. This constitutional provision has not been interpreted, however, as covering cases of assessments for the cost, simply, of a municipal improvement. Assessments for the construction of sewers have always been regarded as a species of taxation which is held to be constitutional without provision for an appeal from the action of the assessing authorities: Michener v. Philadelphia, 118 Pa. 535 ; Oil City v. Oil City Boiler Works, 152 Pa. 348. Such taxation is presumed to be for the benefit of the owner of the property and is necessarily committed to the judgment of the legislative authorities of the municipality. It was said in Michener v. Philadelphia, 118 Pa. 535, that “it would be intolerable if in every instance of special taxation the question of benefits could be thrown into the jury box. It would introduce into municipal government a novel and dangerous feature.” It is not denied that the ordinance authorizing the improvement was regularly adopted and a long line of cases establishes the principle that such action is clearly within the power of the municipality and that the method is one of taxation. We do not understand the decisions in Tourison’s Appeal, supra, and Beechwood Avenue Sewer, 179 Pa. 494, to hold differently. In the latter case the court said in referring to Tourison’s Appeal, “ the question in both is, has the property owner, in the method pointed out in the act of 1891, in a proceeding for the assessment of damages and benefits, the constitutional right to demand a jury trial on assessment of benefits ? ” It was there shown that the act of 1891 provides for the ascertainment of damages by a comparison of advantages and disadvantages ; that where the disadvantages are in excess of the advantages damages are allowed, and wher¿ the advantages exceed the disadvantages benefits are charged. The property of the parties interested had been actually taken and they were assessed with a net benefit on a comparison of the damages and benefits. The cases involved the question of damages to one owner to be compensated for by the assessment of benefits upon another owner, and it was shown that the result of the whole proceeding was damages for property taken, injured or destroyed which must be paid by the owner of property specially benefited or by the public. It was said that damages and benefits are blended as damages in the result as a whole, but that there is necessarily an apportionment upon each lot owner who has damages to pay in order that the amount of his liability may be determined. In- each of the cases the facts were extreme and unlike tho'se in the case now under consideration. There can be no doubt that where assessments are made for benefits to pay in whole or in part damage sustained by another lot owner the party assessed for benefits has a right to appeal to the court of common pleas. Where, however, the assessment is only for the cost of construction the charge is in the nature of a tax,-whether it be imposed by the council or a board of viewers. The person affected is not without a remedy. If his property be not subject to assessment or a wrong rule has been adopted in imposing the charge he may be heard on exceptions before the court and by appeal to the appropriate appellate court; and that, as we learned from the argument, is what the appellant did in this case. He had his day in court upon the questions which he seeks to raise on -his appeal to the jury. We consider the case to have been ruled by the court below in accordance with the principles already established.

The-appeal is therefore dismissed and the decree affirmed.


text:
    Mellon v. Sawyer, Appellant.

      Judgment — Revival of judgment — Record—Justice of the peace — Jurisdiction.

    On a seire facias to revive a judgment of a justice of the peace, where it appears from the record that the defendant did not appear at the hearing when the original judgment was entered against him, and the record of the justice óf the peace is sufficient to support his jurisdiction, the defendant will not be permitted to prove matters dehors the record which would oust the jurisdiction of.the justice.
    The plaintiff in the scire facias must produce the record of the judgment oh which his action rests. If, upon an inspection of that record, it appears, from the nature of the proceeding or otherwise, that the court or magistrate entering the judgment was without jurisdiction, the action must fail. If, however, it becomes necessary for the defendant, in order to make the lack of jurisdiction apparent, to supplement the record by the proof of any facts, he, in turn, must fail, because such facts could have been shown in the original proceeding, and having failed to show them at the proper time, no principle of justice requires that he be permitted to show them after-wards.
    Argued April. 10, 1906.
    Appeal, No. 114, April T., 1906, by defendant, from order of C. P. No.,2, Allegheny Co., July T., 1905, No. 994, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Andrew Mellon v. Harry C. Sawyer.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Appeal from judgment of a justice of the peace.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment of the Superior Court.

      Thomas Watson, with him George R. Wallace, for appellant.
    — The court below, having before it the transcript of the record in this case, erred in allowing the plaintiff the benefit of an inference, from facts nowhere apparent upon the record, that the right of action might perhaps have arisen from some collateral agreement, when the record itself clearly shows the cause of action to have arisen from a real contract: Murdy v. McCutcheon, 95 Pa. 435; Turner v. Central R. R. of N. J., 10 Kulp, 420; Camp v. Wood, 10 Watts, 118.
    .Want of jurisdiction, when apparent upon the record itself, may be taken advantage of at any time, for the proceedings are then coram non judice, and therefore void: Moore v. Wait, 1 Binney, 219; Collins v. Collins, 37 Pa. 387; Hill v. Tionesta Twp., 129 Pa. 525.

      E. C. Chalfant, with him T. P. Trimble, for appellee.
    — This case is ruled by Huffsmith v. Levering, 3 Wharton, 110.
    October 5, 1906 :
   Opinion by

Head, J.,

In 1890, Andrew W. Mellon brought an action against Harry C. Sawyer, the appellant, before an alderman in the city of Pitts-burg. The summons was regularly served on the defendant, who declined to appear, and, in due course, a judgment was rendered against him. No appeal was ever taken by the defendant, nor was any proceeding instituted to have the said judgment reversed or set aside — in a word, its validity was never directly questioned.

In 1905, an action, in the nature of a scire facias, was begun by the plaintiff, before another magistrate, to revive the said judgment. The defendant was duly warned, appeared and made defense, but judgment was- entered against him. He then took an appeal to the court of common pleas. After the statement of claim and affidavit of defense were filed, the court made absolute a rule for judgment for want of a sufficient affidavit of defense, and entered judgment for the plaintiff, whereupon this appeal was taken.

The main question raised by the affidavit, and the one chiefly relied on by the learned counsel for the appellant, in the able and careful argument presented to this court, may be thus stated, viz.: The record of the magistrate, in the action wherein the original judgment was entered, shows that he had no jurisdiction to hear the case. The whole proceeding was, therefore, coram non judice, the judgment was absolutely void, and the action of scire facias must necessarily fail for want of the only foundation on which such an action can stand.

It may be conceded, as a general rule, that in case of a scire facias to revive a judgment, no defense can be made except matters arising subsequent to the judgment. The merits of the original judgment cannot be inquired into, so as to admit a defense which might have been set up in the original suit: Seymour v. Hubert, 92 Pa. 499, and cases there cited.

It is a principle of equally universal application, under our system of jurisprudence, that.every tribunal, from the lowest to the highest, which undertakes to render a judgment, must have jurisdiction of the parties and the subject-matter. Without such jurisdiction its decree is but an empty name. Having no life itself it can have no progeny, and any proceeding, .claiming to have issued from it, can have no more life than its dead ancestor.

As the trajectory of a bullet, being the result' of the joint operation of two antagonistic forces, is different from the path it would pursue if operated on alone by either, so it ought'to be apparent that the true course of a legal proceeding, which must be affected by the application to it of both the principles above referred to, will be different from what it would have been if subjected to the unqualified application of but one of them. .

On the one hand, it is impossible that an action of scire facias can result in a valid judgment if it appear to be founded on one absolutely void for want of jurisdiction. On the other, it is equally impossible that a party may successfully defend, against any one or all of an indefinite number of such actions, by setting up what he could and should have pleaded in bar of the first or original judgment.

The true course to be followed in a proceeding like the present we find marked out for us in the following language of Gibson, C. J., in Huffsmith v. Levering, 3 Whart. 110: “ Consent, it is said, gives not jurisdiction; and advantage can be had of the want of it at anytime. I take that to be true when want of jurisdiction is evident from the nature of the proceeding or apparent on the record. . . . The defendant did not appeal, so that debate about the nature of the consideration is consequently concluded; and as want of jurisdiction is not apparent on the record, it may not be shown on the trial of a scire facias, which is a collateral proceeding.”

The plaintiff in the scire facias must produce the record of the judgment on which his action rests. If, upon an inspection of that record, it appear, from the nature of the proceeding or otherwise, that the court or magistrate entering the judgment was without jurisdiction, the action must fail. If, however, it becomes necessary for the defendant, in order to make the lack of jurisdiction apparent, to supplement the record by the proof of any facts, he, in turn, must fail, because such facts could have been shown in the original proceeding, and, having failed to- show them at the proper time, “ no principle of justice requires that he be permitted to show it after-wards.” Let us turn, then, to the record of the judgment in the present case and see when, where and how the alleged want of jurisdiction is made to appear. Eliminating, for the present, and leaving for future consideration, that portion o.f the record not essential to the plaintiff, we have the following:

“ Summons in assumpsit not exceeding $300, issued, etc. And now, December 5,1890, at 11 A. M., plaintiff, by T. Gettys, appears, and the defendant does not appear. For plaintiff, T. Gettys, sworn, claims the sum of $158.25, principal, and $18.80, interest, due to plaintiff by the defendant. . . . Copy of account produced and proven. And now, after hearing, etc., judgment publicly in favor of plaintiff and against the defendant, for $176.61, with costs of suit.”

If this were the whole of the record, we do not think it could be seriously contended that the “ want of jurisdiction is evident from the nature of the proceeding, or apparent on the record.” On the contrary, the record shows that the subject-matter of the action was money due and owing by defendant to plaintiff; that the amount claimed was less than $300 ; that a book account was produced and proven, and witness sworn in support of the claim — in a word, it affords no ground for a defense, like the one here set up, to a scire facias on the judgment there entered. But the record, after stating the sum claimed to be due, goes on : “ being the amount paid by plaintiff to S. P. Connor, register, etc., for collateral inheritance tax on the estate of Mary Brooks, as per appraisement, etc.; against that portion of the estate which Harry B. Sawyer conveyed by deed of general warrant dated, etc., recorded, etc.; said tax being a lien against said real estate.” From this statement, supplemented by the assumption of several all-important facts which do not appear, the learned counsel for the appellant builds his argument that the record shows this case to be in the class of cases described in the act of 1810 as “ cases of real contract, where the title to lands or tenements may come in question,” over which jurisdiction is denied to the magistrate. He first assumes that Harry B. Sawyer, named in the record, is identical in person with Harry C. Sawyer, the defendant and appellant. By what warrant? The record leaves the former an entire stranger to the proceeding. Next, it is assumed that the land which Harry B. Sawyer conveyed to somebody, was conveyed to Mellon, the plaintiff. Again the record is silent, and the fact cannot be read into it. Finally, it is assumed, as a mixed question of law and fact, that the payment, by Mellon to the register, was a compulsory one to relieve his own land from the stress of a tax lien ; that the condition, making such payment necessary, amounted to a breach of the covenant of warranty in the deed from Harry B. Sawyer to somebody referred to in the record, and therefore the action was, in reality and substance, an action for such breach. All these matters of fact, thus assumed, may be true, but they do not appear in the record. They must be established by proof aliunde the record. The appellant had his day in court to enable him to prove them. Having declined to avail himself of that opportunity he cannot be permitted to set them up, for the first time, in an affidavit of defense to a scire facias on the judgment which he allowed to be entered without any contest. Had he proven, or offered to prove, these facts before the magistrate, he would have been in a position to correct any error in the judgment of the latter by an appeal. To hold otherwise would be to overthrow the rule so plainly laid down in Huffsmith v. Levering, 3 Whart. 110, which case, in principle, we think cannot be distinguished from the present one. We hold, therefore, that it does not appear, from the face of the record, that the magistrate was without jurisdiction to enter the judgment on which the present action is founded. Even conceding the other proposition contended for by the appellant, viz., that the court of a magistrate being one of inferior jurisdiction, his record must show affirmatively all that is necessary to support his jurisdiction, we cannot discover any defect in the present record fatal to the judgment. We have already endeavored to show it contains enough to have fairly brought the action, in the absence of any proof by defendant, within the limits of a magistrate’s jurisdiction. The other matters in the record, apparently put there to identify the payment made, neither give nor take away jurisdiction. They may be wholly eliminated, as far as the plaintiff is concerned, and they are insufficient, without the aid of still other matters in pais, to support the argument sought to be constructed thereon by the appellant. The learned court below was, therefore, right in holding that the affidavit of defense was insufficient to prevent a judgment and in making the rule absolute.

Judgment affirmed.


text:
    Ferguson’s Estate.

      Wills — Legacies—Vested and 'contingent interests — Devise—Trusts and trustees.

    The general rule is that a legacy will be held to be vested or contingent as the time shall be annexed to the gift, or only to the payment of it.
    It is a rule of construction applicable to contingent executory bequests that the interests of primary and secondary legatees vest in a certain way at the same time. If, therefore, the substituted legatee die before the occurrence of the event which entitles him to receive the legacy, it becomes payable to his legal representative on the happening of the specified event.
    Testator devised land to his son to be held in trust by his executors until the son arrived at the age of twenty-one years. In case of the death of the son before he arrived at the age of twenty-one years he empowered his executors to sell the lan'd and distribute the proceeds in proportions named among several designated persons, amongst others a brother. The son died before reaching the age of twenty-one years. The brother died before the son. Held, that the interest of the brother vested, and that upon the death of the son the share bequeathed to the brother should go to the latter’s representatives. '
    Argued April 18,1906.
    Appeal, No. 158, April T., 1906, by James C. Ferguson, from decree of O. 0. Westmoreland Co., Aug. T., 1903, No. 61, in not sustaining exceptions to adjudication in Estate of Samuel N. Ferguson, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Reversed.
    Exceptions to adjudication of Wilson, P. J.
    In addition to the facts stated in ■ the opinion of the Superior Court it appeared that one of the legatees mentioned by the testator was his brother, William M. Ferguson, to whom $800 was to be paid out of the proceeds of the real estate in case of the death of the son. William M. Ferguson died January 1, 1892, and Daniel J. Ferguson, testator’s son, died on November 13, 1897, aged about ten years, leaving to survive him as his sole heir, his mother, Minnie Ferguson. William F. Ferguson left to survive him as his sole heir his father, James C. Ferguson. The court refused to award the legacy of $800 to James C. Ferguson.

      Error assigned was the decree of the court.

      Geo. B. Ferguson, with him John. Latía, for appellant.
    — The son died in the ninth year of his age. The land was sold for a sufficient sum to pay said legacy in full. William M. Ferguson was living at the death of testator, and there was no contingency attached to his capacity to take, therefore his share was transmissible to his representative: Kelso v. Dickey, 7 Watts & Ser. 279; Chess’s Appeal, 87 Pa. 362; Bassett v. Hawk, 118 Pa. 94.

      H. Olay Beistel, for appellee.
    — There is no separate and antecedent gift which is independent from the time of payment, and, therefore, the legacy is contingent: Moore v. Smith, 9 Watts, 403; Seibert’s Appeal, 13 Pa. 501; Lamb v. Lamb, 8 Watts, 184; McClure’s App., 72 Pa. 414.
    October 5, 1906:
   Opinion bt

Henderson, J.,

. The testator devised his farm to his son Daniel to be held in trust by his executors until his son arrived at' the age of twenty-one years. He further directed in his will as follows: — “In case my son, Daniel J. Ferguson, dies before he arrives at the age of twenty-one years, I hereby empower my executors, hereinafter named, to sell my real estate to the highest bidder, and to execute a deed to the purchaser as full and legally as I myself could do if living, and the proceeds of said sale is to be divided as follows, to-wit: ” etc. Daniel died before he arrived at the age of .twenty-one years, and the question is now presented whether the legacies bequeathed on that contingency, vested at the death of the testator.

It is a rule of construction applicable to executory bequests that the interests of primary and secondary legatees vest' in a certain way at the same time. If, therefore, the substituted legatee die before the occurrence of the event which entitles him to receive the legacy, it becomes payable to his legal representative on the happening of the specified event. If a legacy be giv.en to A with the provision that if A should die before reaching the age of twenty-one years, or without issue, then to B, the representatives of B would take the legacy even if he died before A, should the latter die before arriving at twenty-one years of age, or without issue: 1 Roper on Legacies, 401.

This rule was applied in Kelso v. Dickey, 7 W. & S. 279. In that case the bequest of the principal was to the legatee “ in case she live unmarried to the age of twenty-five years,” or, “ the whole amount to be paid to her on the birth of issue,” but in case of her death before the age of twenty-five years, or without issue born, the property bequeathed to be equally divided among other legatees named. The contingency on which the legatees over were to take, was held to be a contingency not attached to their capacity to take, but an event independent of them and not affecting their right to transmit to their representatives. It was accordingly decided that the interests were vested and that the personal representatives of the legatees were entitled to take. The same question arose in Hopkins v. Jones, 2 Pa. 69. There the bequest was to Susan, and “in case she shall die without lawful issue,” then |1,000 of the principal sum to R. J. The contingency expressed was held not to affect the transmissibility of the legacy. R. J. might never come into possession, but her “ right or possibility” vested so as to pass to her representatives on her death before the occurrence of the contingency. The rule in Kelso v. Dickey is there reaffirmed.

The general rule is that a legacy will be held to be vested or contingent as the time shall be annexed to the gift, or only to the payment of it. In Chew’s Appeal, 37 Pa. 23, the doctrine was stated that generally a bequest after the death of a particular person to whom a precedent estate is given, does not indicate a condition that the subsequent legatee shall only take if he survive such person. Such a bequest does not postpone the vesting of the legacy, but designates the time when the legatee shall-come into possession of the gift. To the same effect is Chess’s Appeal, 87 Pa. 362, where it was held that a second bequest is not affected by attaching a contingency thereto, unless such contingency relate to the capacity of the second legatee to take. The ease was there stated of a legacy to A, and if he die before attaining the age of twenty-one years, then to B, which form of bequest was held to give to B a transmissible interest, although it is dependent upon a contingency. The interest is in abeyance during the life of the first legatee and liable to be defeated if that legatee live to the appointed time, birt it is nevertheless a present interest through which the substituted legatee may become entitled to the possession of the estate. The capacity of the second legatee to take is not affected by the contingency, and this is the test by which the bequest is to be interpreted.

In Bassett v. Hawk, 118 Pa. 94, Chess’s Appeal and Kelso v. Dickey were cited with approval, and these cases we consider decisive of the question before us. The language of the decedent’s will is not distinguishable in legal effect from that considered in Chess’s Appeal. The law always inclines to treat the whole interest in property as vested rather than contingent, and in doubtful cases holds the interest to be vested; and in view of this rule and the apparent intention of the testator to dispose of his whole estate, if the authorities were not clear upon the subject, we should be disposed to hold that the interest of the subsequent legatee is vested.

It follows, therefore, that the legacy of 1800 to William M. Ferguson should be distributed among his heirs. That portion of the purchase money retained to secure the dower interest of the widow, who refused to take under the will, will become applicable to the payment of legacies and any balance to the heirs at law of the testator.

The decree is reversed and the record remitted to the court below to make distribution in accordance with the foregoing opinion.


author: Beavek, J.,

text:
    Weaver v. Oberholtzer, Appellant.

      Adverse possession — Tenant for life — Evidence—Witness—Party dead.

    Where a widow takes a life estate in land formerly belonging to her husband, as an heir at law of her minor son, and rents the land to a person to whom she subsequently attempted to leave it by will, and it appears that neither the widow nor her tenant and devisee ever set up any hostile claim to the fee in the land during the lifetime of the widow, an ejectment may be successfully maintained fifteen years after the death of the widow by a descendant of a brother of the widow’s husband for an undivided interest in the land. In such a case the fact that the widow had made her will more than twenty years before the death devising the land to her tenant, and that this fact was well known in the neighborhood, is immaterial as affecting the plaintiff’s right.

      In the above .case one of the defendants who claimed under the tenant is an incompetent witness as to matters occurring in the lifetime of a brother of the widow’s husband through whom the plaintiff claimed title.
    Argued March 14, 1905.
    Appeal, No. 6, March T., 1906, by-defendant, from judgment of C. P. Juniata Co., Sept. T., 1902, No. 106, on verdict for plaintiff in case of Joseph S. Weaver v. Sarah Oberholtzer et al.
    Before Rice, P. J., Beaveb, Or-lad y, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Ejectment for land in Walker Township. Before Shull, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [The defendants claim title to this land by what is known as title by prescription; that is, that they and those under whom they claim, have immemorially used and enjoyed it; that they have had undisputed, notorious, unequivocal and adverse possession of this property for the period, under our statutes, of twenty-one years, which would give them the title to this property, and they claim to hold as against the other heirs, who were the c'otenants or tenants in common with them, by reason of improvements which David Weaver made upon this land, for a long period of years, having come into possession of it some time about the year 1840, or between that and the year 1844, and that you will recollect according to the testimony. The evidence tends to show that he built a barn upon the premises, built an addition to the house, tore away the original and built an end thereto, erected a spring house and wagon shed, and other improvements that were made, besides the clearing of the land and keeping up and repairing the fences. Now, we say to you as a matter of law that a title can thus be acquired under the laws of this commonwealth; that is, the holding of adverse possession for a period of twenty-one years ripens into such title as gives one absolute ownership of the property; and that title may be in face of a formal gift, or even a deed. It may rise higher than- the gift and it may stand as cotemporary with a deed, and the title would be equally efficient in law.] [1]
    [The question for your consideration is as to whether or not this was such an adverse, notorious and open user of this land, as against these cotenants, as would entitle the defendants in this action to hold and retain these premises. You will recollect the evidence that was adduced, tending to show the uninterrupted use by David Weaver for a long period of years. Then you will consider how David Weaver was holding this, land; was he there asserting and declaring and claiming this title as against these other cotenants, who had a right in this land at the date of the death of Samuel Weaver, Jr., and from that time on down were owners in fee as cotenants with David Weaver ? The assessment of the land is some evidence tending to show in whom the title lies, and that along with other evidence that would be sufficiently strong to show title goes to make title either in the one party or ixr the other; both, as you will remember, have adduced the assessor’s lists showing how those assessments were made. .The defendants have shown that they have paid the taxes in certain years upon the assessments, and by that they say they have given notice to the world that they were claiming the title to this property. On the other hand, the plaintiff has shown that from 1878 and 1875, and in 1879, when the assessors came to David Weaver, at the time of making the assessment, that David Weaver then said that the land should be assessed as the property of Samuel Weaver’s heix’s. Now, if he so stated in 1873, and continued to so state that the title was in Samuel Weaver’s heirs, and did not claim title ixi himself, that would destroy his right by prescription ; in other words, he did then that which would disclaim his claim of ownership to the property, and the statutory period would not run or begin to run until after that period of time had elapsed; and then you will ascertain whether or not the title ripened by prescription by the running for a period of twenty-one years from that period of time on.] [2]
    [The defendants allege that the plaintiff is estopped from now coming- in to recover his share in this land, by reason of the fact that he stood by, living in the near neighborhood to these premises, and saw these improvements being made by the defendant upon the premises, and that by reason of that he could not now come in and assert his right to the property. An estoppel is where one has done some act or has failed to do that which he should have done, or assert title to property that he claims, leaving him who is living on it under the impression that he was permitting him to hold the title to it, when he should have spoken out and asserted his rights. Then we will consider whether or not there was guilt in either of these parties. Had these defendants the same knowledge of the rights under which they claim as the plaintiff in this case ? If he had, if he knew that he had not acquired any other title than that as a tenant in common and was there living upon these premises, simply holding for the others until their title would absolutely ripen, until they could take possession of the premises on the death of Elizabeth Brubaker, the widow of Samuel Weaver, then the defendants here could not stand upon their title, because it would not ripen; neither could Elizabeth Brubaker do anything that would divest the title of the remainder-men, that is, the heirs of Samuel Weaver. Her right was that simply of a life tenant to these premises, and she could not divest them of their interest by any act of hers. The sole question is as to whether or not the other heirs stood by and let the title ripen against them in face of what had been done, and this you will consider along in connection with the fact that it is alleged that David Weaver paid rent through George Shellenberger or that George Shellenberger was a tenant under him and paid rents to him and that he paid this money over to Elizabeth Brubaker; because where one of several cotenants occupies lands, the other cotenants may assume that the cotenant is occupying in the interest of all, unless it is shown that he disclaims title by doing that which would amount to an ouster or disseizin. Was there that done by David Weaver which would show that he was claiming this title against his cotenants and such as would amount to an ouster or disseizin of the property?] [8]
    [Now, under the evidence which has been adduced, you will decide whether or not there was such open, notorious, adverse possession in David Weaver for any one period of twenty-one years, from the time that he got possession of this property down to the time of the bringing of this suit, that would make a claim of title by prescription. And if you find that there was such ownership, which would give him an adverse possession, then your verdict would be for the defendants. On the other hand, if you find that David Weaver was upon the land as a tenant under Elizabeth Brubaker, the life tenant, paying to her the rents during her life, your verdict should be for the plaintiff ; because as tenant under a lease he could acquire no title by prescription, even though he did build houses and a barn upon the premises.] [4]
    Plaintiff presented these points:
    8. That there is no proof in the case that Joseph S. Weaver, the plaintiff, had knowledge of the contents of the will of Elizabeth Brubaker, and he was under no obligations to make inquiry about it. Answer : Affirmed. [14]
    9-]-. That the doctrine of equitable estoppel is based upon a fraudulent purpose and a fraudulent result; if, therefore, the element of fraud is wanting, there is no estoppel; if both parties were equally cognizant of all the facts and the silence of Joseph S. Weaver produced no change in the conduct of the other, then there is no estoppel. Answer: Affirmed. [15]
    Defendant presented these points:
    4. If the jury believe from the evidence that Joseph S. Weaver lived in sight of this farm, saw David Weaver make extensive improvements upon it and occupy and use it as an owner; that after the death of Elizabeth Brubaker, on September 5, 1887, and the probate of her will, and until 1891, David Weaver paid to those entitled the legacies under this will, and Joseph S. Weaver kept silent and gave no notice of his claim, the jury may find that Joseph S. Weaver is estopped from setting up title as against these defendants, and twenty-one years from the death of Elizabeth Brubaker is not essential to effect such estoppel, but the same may be complete in a less number of years. Answer: This .is refused. There is no evidence to show that Joseph S. Weaver had direct knowledge of David Weaver paying the legacies under the will; nor is there any evidence from which it can be inferred that he had such knowledge. [16]
    7. Under all the evidence in this case the verdict should be in favor of the defendants. Answer : Refused. [17]
    Verdict and judgment for plaintiff. Defendant appealed. ■

      Errors assigned among others were (1-4, 14-17) above instructions, quoting them, and (19, 20, 21) rulings on evidence referred to in the- opinion of the Superior Court.

      J. Howard Neely, for appellant.

      F. M. M. Pennell, of AtJcinson Pennell, for appellee.
    October 5, 1906 :
   Opinion by

Beavek, J.,

Title to tbe land in dispute was shown in Samuel Weaver, Sr., who died, leaving to survive him his widow, Elizabeth, and minor son, Samuel, Jr., and eight brothers and sisters or their descendants. The widow was subsequently married to Jacob Brubaker and died on or about- September 5, 1887. Her son, Samuel Weaver, Jr., died in his minority, intestate, unmarried and without issue. Under the intestate laws, therefore, his mother, then Elizabeth Brubaker, became tenant for life of the farm of forty acres in Juniata county, owned in his lifetime by her former husband, Samuel Weaver, Sr., title to which is now the subject of dispute in this action of ejectment.

The widow would seem to have admitted the title of her husband to the land in question^- having, on April 18, 1825, presented her petition to the orphans’ court of Mifflin (now Juniata) county, in which she sets forth: “That your petitioner’s husband lately died intestate, leaving one child— Samuel Weaver — now about two years old; that your petitioner’s husband owned at his decease about forty acres of land in Walker township aforesaid, besides some personal property.” This petition, although offered and admitted in evidence, is not printed in the paper-book of the appellant, but the omission is supplied by the appellee.

It appears from the evidence that the widow, after her remarriage and the death of her son, leased this farm to David Weaver, the ancestor of the defendants, from whom, for a time at least, she received an annual rental, and that she devised it to him in her will, which was probated on September 14, 1887. The writ of ejectment was issued August 13, 1902, about fifteen years after the death of Elizabeth Brubaker.

The action, as originally brought, purported to’be in the name of the heirs at law of all the brothers -and sisters of Samuel Weaver, Sr., — eight in number — except the descendants of David Weaver, who were defendants.

Upon a rule to show cause why the plaintiff’s attorneys should not file their warrant of attorney, it was agreed, upon the argument of the rule, that the names of all parties plaintiff might be stricken out, exeept that of Joseph S. Weaver, and the record was so amended.

The plaintiff is one of four children of Jacob, one of the brothers of Samuel Weaver, Sr. The claim is, therefore, for the 1 /32 part of the land in dispute.

In the absence of any evidence of ouster of the heirs at law of Samuel Weaver, Jr., and of an intention on the part of David Weaver to claim by adverse possession, during the lifetime of the mother, the claim of the defendants that they had title under the statute by such possession rests upon a very slender foundation. We fail to find anywhere in the testimony the hoisting of any flag of defiance, any act of hostility or any adverse claim to the title of the remaindermen, until after the death of the life tenant. The acts of their ancestor in repairing and rebuilding, in clearing, ditching and draining, are all entirely consistent with the duty which the life tenant, whose lessee he was, owed to the estate. After the death of Elizabeth Brubaker — or possibly the year before her death — the assessment was changed from “Samuel Weaver’s heirs” to “David Weaver.” This, however, becomes comparatively unimportant, in view of the fact that confessedly no title could have been acquired under the statute since the death of Elizabeth Brubaker.

There seems to have been an impression in the mind of Elizabeth Brubaker that she inherited a fee instead of a life estate from her son, Samuel Weaver, Jr., and this impression may have been shared by David Weaver, her tenant, during her lifetime, and the devisee named in her will. But such a mistaken impression could not, of course, change the character of the possession, nor would it be any notice to the remainder-men, unless communicated to them and a claim of adverse holding in pursuance thereof set up. They were justified in relying upon the character of the possession which the widow and those claiming under her had a legal right to take, in pursuance of the intestate laws.

On February 25, 1902, upon the petition of the plaintiff, an inquest was awarded to make partition of the land in dispute. When the appraisers were upon the ground, endeavoring to make partition, one of the defendants served notice upon them, June 7,1902, which reads: “Notice is hereby given that the property this day to be appraised by you belongs to the heirs of David Weaver, deceased, they having acquired title by adverse, exclusive, open and notorious possession for more than fifty years.” This is claimed by. the appellee to have been the first notice, actual or constructive, of such a claim. This, so far as we can see from the testimony, is well founded, unless the change in the assessment and the payment by David Weaver in his lifetime of the several sums mentioned in the will of Elizabeth Brubaker to be paid by him, of which no actual notice appears to have been given to the plaintiff, can be so construed.

Under the facts, as above recited, we are of opinion that the court would have been justified in affirming the eleventh point of the plaintiff — “ That, under all the evidence, the verdict should be for the plaintiff,” subject possibly to the question of the credibility of the witnesses who testified to the payment of rent by David Weaver to Elizabeth Brubaker, which was of course for the jury.

The plaintiff’s twelfth point — “ That there is no evidence in the case which would justify the jury in finding a verdict for the defendant” — was reserved. Under the verdict it was, of course, unnecessary to pass upon this point, but in the opinion of the court, overruling the motion for a new trial, it is discussed and it is said in reference thereto and in reply to the tenth reason assigned for a new trial, as to the attitude of the court: “Suffice here to say that the defense somewhat staggered us at the inception of the case. On examination of the answer filed we found that defendants first claimed the lands described in the writ by adverse possession for upwards of fifty years, and in the second part of the answer insist that they held by virtue of the provisions contained in the will of Elizabeth Brubaker, the life tenant, but ‘ who claimed to own this land in suit .... wherein and whereby she devised the lands in controversy to David Weaver aforesaid in fee,’ he to pay certain legacies therein designated, and which he actually paid.”

“ To our conception of a title by prescription this was so antagonistic that we may have hesitated and wavered somewhat in getting our bearings. It seemed then, and strikes us even more forcibly now, that at that date David Weaver not only did not feel secure in his title, but by payment of the legacies admitted the title for life or in fee in Elizabeth Brubaker, in either of which events the statute of limitations did not begin to run until after 1887, hence the title by adverse possession did not mature, and we might have affirmed the plaintiff’s twelfth point: ‘ That there is no evidence in the case which would justify the jury in finding a verdict for the defendants.’ ”

It is claimed by the appellee that Elizabeth Brubaker made her will in 1863; that it was well known in the neighborhood that she devised, or intended to devise, the property in dispute to David Weaver; that, inasmuch as this fact was well known in the neighborhood, and the plaintiff, Joseph S. Weaver, lived there, he was bound to know it; that this constituted a gift on the part of the testatrix to the defendant’s ancestor, and that, inasmuch as improvements were made subsequently to that time under the eye of the plaintiff, he was estopped now from claiming his share in the land. This general question is included, in its various phases, in the fourteenth, fifteenth, sixteenth and twenty-second assignments of error.

It is difficult to deal seriously with this proposition. Admitting that the will of Elizabeth Brubaker was made as claimed, admitting that the fact of the making of the will, and its contents, were well known in the neighborhood, it does not follow that Joseph S. Weaver knew of it, and if he did, he was not bound by it in any way, for the will could have been revoked the next day or at any time during the life of the testatrix. The mere making of a will is not even evidence of a gift, inasmuch as the will could not take effect until the death of the testatrix. All the testimony upon this subject was incompetent and was improperly admitted. The assignments of error, therefore, which are based upon it are without foundation.

The only remaining question worthy of consideration is raised by the 19th, 20th and 21st assignments of error. Was Jacob Weaver, one of the defendants, a competent witness, under the provisions, of clause E of the 5th section of the Act -of May 23, 1887, P. L. 158? This clause reads: “Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or thereunder has passed, either by his own act or by the act of the law, to a party on the record, who- represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contraet, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party,” etc. One of the. exceptions to this general proposition is: “or unless the action be ejectment against several defendants, and one or more of said defendants disclaims of record any title- to the- premises in controversy at the time the suit was brought, and also- pays- into court the costs accrued at the time of his disclaimer, or gives security therefor, as the court in its discretion may direct, in which case such disclaiming defendant shall be a fully competent witness.” The thing in action here is the land, which, descended under the intestate laws from Samuel Weaver,, Jr., to his uncles and aunts or their descendants, subject to the life- estate of his mother. One of those uncles was Jacob Weaver, through whom the plaintiff claims. Another was David Weaver, -through whom the defendants claim. It seems clear to us, therefore, that the witness, who was one of the defendants, was not competent to testify as to anything which occurred before tire death of Jacob Weaver, through whom the plaintiff claimed his interest in the property. He did not bring himself within the exception named in the clause referred to, by disclaiming title and offering to pay his share of the costs up to the time at which he was offered as a witness. Independently of this, however, we cannot see that the offer which was rejected, or any of the testimony which had been received and was stricken out, could affect the general question involved. Whether, therefore, it be held that the witness was incompetent, or that the testimony offered and what was stricken out was incompetent and irrelevant, the effect is practically the same.

- We have not discussed the various assignments of error seriatim, nor do we think it necessary in this case to do so. The defendants received much more liberal treatment in the admission of testimony and in the answers to points than might, in strictness, have been accorded them. It is -not necessary to refer to particular instances, inasmuch as the plaintiff, who received a verdict, is not in a situation to complain.

We have sufficiently indicated the grounds upon which we think the judgment should be sustained, and no good purpose will be subserved by further discussion of the case. The principles which underlie it have been so long and so well settled that it is unnecessary to cite particular cases in support of them.

Judgment affirmed.