text:
    Good, Appellant, v. Grit Publishing Company.

      Libel — Judicial proceedings — Publication—Newspaper—Malice—Damages — Reputation—Evidence.
    In general, reports of judicial proceedings, if fair, impartial and truthful, and there be no express malice, may be published without incurring •liability to action even though they give currency and publicity to defamatory accusations against individuals, which, otherwise, those accusations would not have.
    Publication of a report of proceedings in the orphans’ court are qualifiedly privileged; hence if a newspaper simply publishes a copy of the exceptions to the account of an administrator, the latter cannot recover from the proprietor .of the newspaper in an action of libel without proof of express malice.
    While it is true that it is not absolutely necessary that, the report of judicial proceedings be verbatim in order to entitle the publisher to set up the defense of privilege, yet if he undertakes to give an abstract of matters of record, such as exceptions to an administrator’s account, he is bound to publish an accurate, truthful and impartial abstract. If he uses words different from those used in the legal document to describe the allegations against the accountant, he must take care that the words he selects, the form in which they are placed, and the comments that he makes do not convey to the minds of ordinary readers an impression that the alleged wrongdoings of the accountant are more flagitious than the exceptions themselves show them to be. Failing in this, he forfeits his privilege and is liable to action as he would be if the charges he represents as having been made by the exceptant were made by himself.
    Where a newspaper publishes what purports to be an abstract of exceptions to an administrator’s account, and in the headlines and the preliminary statement it is said that the administrators had stolen and robbed from their father’s estate, and “then tried to cover their tracks by forgeries,” but the abstract of the exceptions shows that the words “stolen” and “robbed,” were not used in their strictly technical sense as implying larceny and robbery, it is not the duty of the court to charge the jury that they must take the publication to mean that the plaintiff had been charged in the exceptions with having committed crimes of larceny and robbery. If in such a case the public might and probably would, understand the article to mean that the administrators and the plaintiff conspiring together had fraudulently and by means of forgeries and other dishonest methods misappropriated the funds of the estate to their own use, it is the province of the court to construe the exceptions and determine what charges of misconduct they import. If the court finds that there is nothing in the exceptions which justifies the charge of forgery, it should state this finding to the jury and instruct them, that if they came to the conclusion that the publication would convey the impression to the minds of ordinary readers that the plaintiff had been guilty of forgery, then the defendant -had exceeded his privilege, the article was libelous and plaintiff might recover.
    The quality of an alleged libel as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases the court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true.
    If an article purporting to be an abstract of a judicial proceeding is not in fact a fair report of the proceeding, a republication of the article accompanied by the emphatic assertion that it was true in every particular, and other similar comments, tends to show that the first publication was not made through carelessness or inadvertence, and might be the basis of an inference that the defendant was actuated by actual malice. An instruction that the republication and the accompanying comments were not, in any aspect of the case, evidence from which the jury could infer actual malice, is error.
    WTiere an article alleged to be libelous is given a special prominence by the use of headlines, over many other articles, although not over all articles, the question whether the article was given an undue prominence is for tlie jury. The Act of May 12, 1903, P. L. 349, does not mean that special prominence over every matter published in the newspaper, is required.
    If a jury finds that an article in a newspaper was not a fair report of the judicial proceedings to which it related, that it was calculated to convey the impression to ordinary readers that certain exceptions referred to, charged plaintiffs with crimes which they did not charge, that special prominence was given to the article by the use of headlines, displayed type and other matter calculated to specially attract attention, and that the defendant was actuated by special malice against the plaintiff, it is within the province of the jury to award punitive damages, but they are not bound to do so. The question is for the jury under appropriate instructions by the court as to the findings of fact which would or would not support such award.
    Where a publication of a judicial proceeding does not purport to have been published upon information received from others, but upon defendant's knowledge of what the record contained, and the article is republished with emphatic assertion that it was truthful in every particular, it is not competent to show in mitigation of damages that another newspaper had previously published a substantially similar report of the same judicial proceeding. It is also irrelevant to show that the plaintiff had not published a denial of the article published in the other newspaper.
    In an action for slander or libel, where the general issue is pleaded, the defendant may show in mitigation of damages the general bad reputation of the plaintiff for the particular thing with which he was charged.
    Argued Oct. 31, 1907.
    Appeal, No. 125, Oct. T., 1907, by plaintiff, from judgment of C. P. Northumberland Co., Dec. T., 1904, No. 172, on verdict for defendant in case of O. W. Good v. Grit Publishing Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for libel. Before Savidge, P. J.
    The court charged as follows:
    Gentlemen of the jury: This is an action by O. W. Good against Grit Publishing Company for libel. The alleged libelous article was published in the city edition of “Pennsylvania Grit” on November 1, 1903, and republished, in con’ nection with other matter, on the eighth day of the same month.
    It grew out of a controversy in the orphans’ court of Lycoming county over the account of the administration of the estate of John Good, father of O. W. Good, filed by a brother of the plaintiff, John C. Good, some time previous to' the appearance of the article.

      “ Grit ” did not purport to make on its own account charges against O. W. Good. What it undertook to do was to inform the public through its columns of the contents of the exceptions spoken of. This it had a right to do.
    Courts constitute one of the branches of our government and all the proceedings of courts of justice are open to the public. The public has a right to know and it is proper it should be informed of what is transacted in its courts.
    Newspapers are the recognized means of informing the general public of the transactions of courts of justice in any community, and they have, as such, a right to publish any and all things transacted before the court and such publication is what the law terms privileged. That means they have the privilege to publish them regardless of whether they reflect upon the parties to the litigation or upon the witnesses who appear to testify in regard to the litigation, or upon parties who may be compromised by the transactions of the court; and even though a party be charged with the highest crime, and the publication informs the world, informs its read’ers at large, of the fact that such a party is so charged, there can be no liability on the part of the paper making the publication, because it is publishing the transactions of a court of justice. It is privileged to tell to its readers what is going on in those courts, no difference whom it may hurt, or to what extent the parties affected thereby may be harmed in character or feelings.
    But in so doing, gentlemen, they must not exaggerate, they must not be untruthful, they must not misrepresent. They must be careful to see to it that their publication or account of transactions, together with'their comments upon it, fairly represent the facts as they appear in the transactions of the court — in this case in the exceptions filed to the account of John C. Good, administrator of John Good. If they add to what the records or proceedings show, so as to additionally charge the party affected, they are responsible, because they have abused the privilege which the law accords them. They are bound to be truthful and fair in their statements and their publications as to what is or has been going on in court. They are privileged only to tell the truth. They are not privileged to exaggerate. If they exaggerate so that the public is misinformed, and the character of the party about whom the publication is made is injured by reason of the exaggeration or the misinformation, the paper is liable for such misinformation, such exaggeration, such false account.
    Now the contention here is, not that this communication was not a privileged communication, not that “Grit” did not have the right to publish an account of these exceptions, but that “Grit” did not publish a true account of the exceptions; that the newspaper account represented to the public that O. W. Good was charged in the exceptions with misconduct and crime which, in fact, the exceptions did not charge. If that be true, the newspaper is liable. If it be otherwise, if the newspaper account is a fair epitome, representing in brief what, and only what, the exceptions themselves contain or charge, then there is' no liability and cannot be any recovery.
    The article is headed “0. W. and John 0. Good Charged with Having Stolen Most of Their Father’s Estate. Extraordinary accusation made in exceptions to account which finds practically no estate.” The article itself then goes on to say: “Exceptions have been filed to the final account of John C. Good, administrator of the estate of John Good, deceased, in which it is alleged that the administrator, and his brother, 0. W. Good, robbed the estate of many thousands of dollars and then tried to cover their tracks by forgeries and frauds of various kinds.”
    That is only a small portion of the article, but that contains the substance of the alleged untruthful representation of the charges contained in the exceptions to the account, and the claim to recover in this case is based almost wholly upon that portion of that article, as it appears in this issue of November 1, 1903, and as it appeared in the same form in the issue of the following week.
    [You will first have to determine what “Grit” there represents as the charges against O. W. Good, preferred by the exceptions to the account of John C. Good. Does “Grit” tell its reading public that the exceptions to the account charge O. W. Good with the crime of larceny, forgery, robbery, conspiracy, embezzlement, or any of them? You will have to interpret the meaning of that article. You will have to determine what sense the average reader, the reader of ordinary intelligence, would take from the article. Would he consider that O. W. Good had been charged in the exceptions to the account, basing his judgments solely upon what he finds in this article, with the crime of larceny, with the crime of robbery, with the crime of forgery, conspiracy or embezzlement — basing his judgment solely upon this article? Because at the time this article was published the general public was not furnished with the exceptions themselves so that it could interpret the article in connection with the exceptions. Those were not published by “Grit” until the following week. Taking then the article itself, as contained in “Grit” of November 1, 1903, what interpretation do you find the average reader would put upon it?
    Now it is contented by the defendant that the general reader, the average reader, would not interpret that to mean that O. W. Good had been charged with the crime of larceny, because they say you must interpret that clause, which happens to be a part of the caption or headline, and take it in connection with the other portions of the article; that that is the fair way to interpret it. So you must.] [4] But they contend that the charge of larceny, or the use of the term stolen, in the way.in which it is used, does not necessarily mean that actual larceny had been intended in the exceptions. That the general public would understand that it might refer to em,*. bezzlement of the funds of the estate, or cheating the heirs in any dishonest way — by trumped up accounts, or any other dishonest way. That the general public might take that meaning of the word stolen from the article as it appears.

      Also it is contended that the word robbery, as it appears in the article, would not be taken by the reading public to mean that actual robbery had been perpetrated. Robbery always' implies force; the taking of the property of another by means of force. [The technical-and true meaning of larceny is the felonious taking and carrying away of the personal property of another.
    Now would the general public, the reading' public, taking this article as it stands, or interpreting it by means of its context and with reference to any and all matters referred to in it, understands that O. W. Good was charged with the crime of larceny,- or with the crime of robbery, or with the crime of forgery or embezzlement? Would that be the interpretation put upon that article by the general public? That is for you to find and not for the court.] [3]
    [In order to assist you, because I believe it to be correct, I say to you that in my judgment the charge of forgery, as against- 0. W. Good, is fairly deducible from the exceptions filed. However, I leave it to you to find whether it is or not.
    The third exception is in this language: Exceptants except to the credit of $1,628.25 alleged to have been paid on May 15, 1903, to 0. W. Good upon a note dated December 2,1899, and for the reason that the signature of John Good to said note is a forgery.
    Exception four — -Exceptants except to the'credit of $1,015.96, alleged to have been paid on May 15, 1903, to O. W. Good on note of May' 29, 1900, for the reason that the signature of John Good upon said note is a forgery.
    ,.' On the other hand, I say to you that I see nothing in the exceptions to this account charging O. W. Good with the crime of larceny or robbery, but I leave it to you to say whether there is or not. I will leave it to you to say whether or not there is any other charge made than that of forgery. I am giving you my judgment only, but you are not bound by it.] [2]
    If you find there is nothing in the exceptions charging him with larceny, and you further find that the publication, putting upon it the interpretation that the ordinary reader would put upon it, means to convey to the reading public that these exceptions did charge him with larceny and robbery, you would have to .find that the publication was not a fair presentation of the charges contained in the exceptions to the account, and that therefore the communication lost its privilege. Qr, in other words, that there was implied legal malice and want of care. It does not make any difference what term it goes by, in that case the defendant would be liable and- there should be a recovery. As I have already stated, if you .-find that that would not be the interpretation put upon the article, then the verdict would be the other way. It would be no libel.
    So far as the forgery charge is concerned, or, rather, the information to the public in that article that the exceptions charged forgery, I do not think there can be any recovery. However, I leave it to you to say, because I do not think that the fair interpretation of the two exceptions that I have read to you would warrant the conclusion that forgery was preferred against O. W. Good by them.
    Without going into the exceptions in detail I may say to you that there is enough in the exceptions to warrant a conclusion, that the conclusion would be a fair one, that conspiracy and embezzlement were charged against O. W. Good by the exceptions. However, that will be for you. If you find that to be true, and that the publication represented that these crimes had been charged, the publication in that respect was not unfair, -and so far as those charges are concerned it did not lose on that account its privileged character. I leave that to you, too. But in my judgment' that is very nearly all there is to this case.
    [First, it is for you to put the interpretation upon this article. What does it mean to the ordinary reader of average intelligence? Does it mean and does it convey to him that the exceptions charged a crime which in fact they do not charge? If so, there can be a recovery and ought to be a recovery. Does it convey to him the information that only such crimes were charged by those exceptions as were actually charged by them? If so, “Grit” no more than told the truth and there could be no recovery.] [1]

      I think I said to you at the outstart that “Grit” did not make those charges on its own account, and only intended in a condensed way to inform the public of charges that had been made by exceptants in the orphans’ court of Lycoming county.
    If you find the article libelous and the plaintiff entitled to recover, then you would have to assess the damages. If you find the plaintiff is not entitled to recover you will simply say we find in favor of the defendant. If you find in favor of the plaintiff it would be your duty to assess the damages at whatever you find would be right.
    Now, if the plaintiff is entitled to recover, he is entitled to recover such damages as would compensate him for injury to his character and his feelings — to his character generally and to his feelings from the time of the publication of the article up to January 1, 1904. That is what is meant by the eighth' point submitted by defendant’s counsel, which I affirm, and which reads as follows: That the damages, if any, for which the plaintiff can recover are compensation for injury to character and injured feelings from November 1, 1903, to January 1, 1904.
    By that it is not meant to restrict the injury to character to the period from November 1, 1903, to January 1, 1904, but only to injury to feeling during that period — injury to character generally, to feelings during that period of two months. It must depend upon your good judgment to determine what will compensate the plaintiff, if he is entitled to recover, for those injuries.
    You have listened to the testimony, the principal part of which, so far as the oral testimony is concerned, was about the character of the defendant. It is the rule of law, which you are obliged to observe in reaching your conclusion, that the character of the defendant may be given in evidence. A man who has a bad character for honesty would not be so greatly injured according to this rule in dollars and cents as would be the man who bore a good character; hence it was that the defendant was permitted to give in evidence the character of the plaintiff at the time and before the time of the alleged libel. The plaintiff replied by witnesses that his character was good at that time. What was his character as to honesty? Was it good or bad? If bad, he didn’t have so much to lose by the aspersions which were cast upon it. Under the law a bad character could not be injured to the extent that a good character could. I do not mean by that it could not be injured at all. I do not mean because a man has a shady character as to honesty that his character cannot be further injured by a charge of larceny, or robbery, or embezzlement, or a charge such as this, if you conclude it was a libel. It will be for you to say whether it could be further injured, and, if so, to what extent. What was the character of the plaintiff? And whether good or bad, or whatever it was, to what extent was it injured by this article, if the article was libelous? To what extent compensate him on account of his character?
    To what extent were his feelings injured during those two months? What compensation is he entitled to in dollars and cents on that account?
    You are to give only compensatory damages, only what you may find will compensate him, but nothing to punish the defendant, no punitive damages, which would be given for the purpose of punishing the defendant regardless of whether the plaintiff was entitled to them or hot. I do not think the case is such a one as warrants punitive damages. Give him what will compensate him for what he has lost in character and suffered from the injury to his feelings during the period I have mentioned, but do not give him any more than that for the sake of punishing this defendant, as you would have a right to do if there were circumstances in the case which would allow you to give punitive damages, that is, damages to punish.
    It is contended by the plaintiff that you ought to be permitted to give punitive damages. I do not think so. The act of assembly under which they say punitive damages ought to be allowed reads as follows: “And whenever in any such action it shall be shown that the matter complained of is libelous, and that such libelous matter has been given special prominence by the use of pictures, cartoons, headlines, displayed type, or in any matter calculated to specially attract attention, the jury shall have the right to award punitive damages against the defendant.”
    I did say at one time to counsel before the argument to the jury that I would leave that to you, but it is so very plain that there were no pictures, it is not pretended there was a picture, no cartoon, and- that there was no special prominence — and special prominence means prominence given this over other matters in the paper — given to these articles by the headlines, displayed type, or in any other way, that I think you would agree with me, even if I were to leave it to you, that you could not find otherwise than as I have directed.
    I have looked this paper over and I think I am perfectly fair when I say this to you. Here is the article on the second page — “O. W. and John C. Good charged with having stolen most of their Father’s estate;” the same type as “A Dickinson Victory,” on the same page; same as “Emma Bunting” will appear in a certain theatrical performance. Not as large as the type as that shown on the next page “Rule of the Sultan, Abdul Hamid, Responsible for Turkish Troubles.” Two or three articles on the third page, same type displayed. In fact it is not as large as that used in the headlines of articles on the third page. For instance, the column headed “The People’s Forum.” Articles on the fifth page, several of them, such as “Ridgway Activities;” “St. Mary’s Report;” “Latest from Maine;” are given the same prominence. The article complained of is given no greater prominence than those to which I have referred. In fact they are the same identical headlines, kind of types and everything. On the next page “Hughesville Budget,” “News from Muncy,” “Lewisburg Locals,” same type. In the next week, not nearly as much display as there is in “Milton News Items,” or in “Municipal Matters” on the fourth and sixth pages, and so on. I cannot see how it is possible to say that there was any special prominence, special prominence as the act requires, given to this article, either in the place it was found, which was the second page, fifth column, or in the displayed type or headline. If I thought that there was any evidence upon which you could reasonably base a finding that there was, I would leave it to you; but if you were to find a verdict for punitive damages, based upon the proposition that there was special prominence given to this article, I would have to set aside the verdict, or, at least so much of it as-represented punitive damages as could be gotten at after-wards. Hence I take that from you and say you shall only give compensatory damages, in case you find for the plaintiff.
    Now the article of the next week was not, in my judgment, an aggravation of this, because nothing new was contained in it. There was no additional allegation as to charges that had been made in these exceptions, and it was proper, I think,, under the circumstances that they publish the matter in the manner which they did, because in the meantime suit had been brought against them by this plaintiff, and it was no more than reasonable to expect that they would, in calling the attention of the public to this new proceeding in the common pleas court, this suit against them, it being fresh news and concerning the paper itself, because the action was against it, give more prominence in the headlines to this article. It did not profess to accuse or to give the public the information as to the grounds upon which the suit was brought, and I think it is reasonable to conclude that the defendant had the right to republish the article, together with the exceptions, so that the general public might know upon what that case was founded, and have a general knowledge of the whole business, so that they could see for themselves whether “Grit” had exceeded its privileges.
    [So it comes down after all to the one main proposition, which I leave to you and which you understand, I think, gentlemen, and upon which I think you ought to base your conclusion as to the liability or non-liability of the defendant, and that is as to whether this was a libel or whether it was not. If it was, give such damages as you think will compensate the plaintiff and no more. If you conclude it was not a libelous publication give him nothing and return a verdict for the defendant.] [5]
    Verdict and judgment for plaintiff for $100. Plaintiff appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      M. C. Rhone and A. G. Miller, with them James Scarlet and Geo. B. Reimensnyder, for appellant. —
    The true rule is that in case the charge, if true, would subject the party charged to an indictment for a crime involving moral turpitude, or subject him*to an infamous punishment, then the words will be in themselves actionable, and it is not necessary that the offense imputed be infamous in a technical sense: Pittsburg, etc., Pass. Ry. Co. v. McCurdy, 114 Pa. 554; Stoner v. Hoffer, 5 Lancaster Law Rev. 325; Hayes v. Press Co., Ltd., 127 Pa. 642; Davis v. Carey, 141 Pa. 314; Pittock v. O’Niell, 63 Pa. 253; Collins v. Dispatch Pub. Co., 152 Pa. 187.
    The publication was not privileged: Neeb v. Hope, 111 Pa. 145; Barr v. Moore, 87 Pa. 385; Briggs v. Garrett, 111 Pa. 404; Conroy v. Pittsburg Times, 139 Pa. 334; Coates v. Wallace, 4 Pa. Superior Ct. 253; Com. v. Little, 12 Pa. Superior Ct. 636; Godshalk v. Metzgar, 23 W. N. C. 541.
    We most earnestly assert that this newspaper cannot charge plaintiff with stealing, robbery and forgery and base the publication solely on the exceptions and then be permitted to introduce testimony that his reputation for truth and honesty was bad, in mitigation of damages: Moyer v. Moyer, 49 Pa. 210; Drown v. Allen, 91 Pa. 393.
    A careful reading of the second publication could not fail to convince the ordinary reader of the malice which the editors of this newspaper bore toward plaintiff.
    All accounts of the same transaction in other newspapers are not admissible in evidence for any purpose: Clark v. North American Co., 203 Pa. 346; Pease v. Shippen, 80 Pa. 513.

      James B. Krause and Seth T. McCormick, with them W. H. M. Oram, for appellee. —
    In leaving the question of privilege to the jury the court did the appellant no harm, for the jury returned a verdict for the plaintiff and must therefore have found that the publication complained of was libelous; nothing more could have been accomplished if the court had instructed the jury that the publication was libelous per se. Had the jury found for the appellee, a different question might have been presented: Hughes v. Bateman, 15 W. N. C. 239; Colbert v. Caldwell, 3 Grant, 181.
    May 14, 1908:
    The test of liability in a civil action is not the secret intent, but the meaning of the words: Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432; Com. v. Cochran, 23 Lanc. Law Rev. 78; Naulty v. Bulletin Co., 206 Pa. 128; Pittsburg, etc., Pass. Co. v. McCurdy, 114 Pa. 554; Jackson v. Pittsburg Times, 152 Pa. 406; Neeb v. Hope, 111 Pa. 145.
    Where a privileged communication is made in good faith, the law does not imply malice from the communication itself: Briggs v. Garrett, 111 Pa. 404; Press Company v. Stewart, 119 Pa. 584; Chapman v. Calder, 14 Pa. 365; Coates v. Wallace, 4 Pa. Superior Ct. 253; Com. v. Little, 12 Pa. Superior Ct. 636.
    The jury should not be- allowed to find punitive damages: Longenecker v. R. R. Co., 105 Pa. 328; Hyatt v. Johnston, 91 Pa. 196.
    Defendant in mitigation of damages may show that plaintiff’s reputation is bad: Clark v. North American Co., 203 Pa. 346, 353; Henry v. Norwood, 4 Watts, 347; Smith v. Times Publishing Co., 178 Pa. 481.
   Opinion by

Rice, P. J.,

John Good, the father of the plaintiff, died intestate. John C. Good, another son, took out letters of administration upon his estate. He filed an account to which the exceptions were filed that are referred to in the newspaper articles upon which this action was brought. The particular part of the first article that is alleged to be libelous is as follows:

“O. W. and John C. Good “Charged With Having Stolen Most of > “Their Father’s Estate.

“Extraordinary Accusations Made in Exceptions to “Account Which Finds Practically No Estate.

“Exceptions have been filed to the final account of John C. Good, administrator of the estate of John Good, deceased, in which it is alleged that the administrator, and his brother, O. W. Good, robbed the estate of many thousands of dollars and then tried to cover their tracks by forgeries and frauds of many kinds.”

The article then detailed to some extent what the defendant alleged was the substance of the matters alleged in the exceptions, but did not set forth the exceptions verbatim. On the day following the publication of this article, the plaintiff brought an action of libel thereon in Lycoming county, and a week later 'the defendant republished the article together with the exceptions in full, the administrator’s account and extended comments, amongst which were the following: “That statement which is reproduced below was written after careful study of the bill of exceptions filed before the auditor, the Hon. Emerson Collins, in order to verify common report. That the public may see .how carefully it was prepared, the administrator’s account, the bill of exceptions together with other legal matter relating to the estate filed in the orphans’ court are also presented. It will quickly be seen that in the bill of exceptions the very charges can be found, which ‘ Grit ’ said had been brought against the Messrs. Good.” Later the plaintiff brought this action in Northumberland county, and declared upon the publication and republication of the part of the first article quoted at the beginning of this opinion, and the publication of the above quoted part of the comments contained in the second article. The case went to trial upon a plea of not guilty and resulted in a verdict in favor of the plaintiff for $100. From the judgment thereon he took this appeal.

It will be noticed that the defendant did not assert that the matters it alleged were charged in the exceptions were true; it simply published the charges it alleged' others had made. Nevertheless, the words being defamatory, it would not ordinarily be a bar to an action for libel that the report was a truthful recital of what was asserted by others: Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130, and cases there cited. An\ exception to this general rule is made in favor of reports of proceedings in the public courts of law. In general, such reports, if fair, impartial and truthful, and there be no express malice, may be published without incurring liability to action, even though they give currency and publicity to defamatory accusations against individuals, which, otherwise, those accusations would not have. The reason commonly given for the exception is, that the general advantage accruing to the public from this privilege more than counterbalances all the disadvantages including the inconvenience to private persons whose conduct may be the subject of such proceedings. There are not many Pennsylvania cases in which this particular branch of the law of libel is discussed, but those that do relate to it recognize a qualified privilege as attaching to the publication of proceedings in the public courts of justice: McLaughlin v. McMakin, Bright. Nisi. Prius Rep. 132; Donnelly v. Public Ledger, 2 Phila. 57; Pittock v. O’Niell, 63 Pa. 253. It was impliedly recognized in Hayes v. Press Co., 127 Pa. 642, where it was said to be the common right of anyone to publish -the fact that a judgment had been entered against a person, substantially as shown by the record of the court in which it was entered; and in Pittock v. O’Niell, Sharswood, J., conceded the principle in this manner: “Had the publication been confined to the petition filed in the court of common pleas for a divorce, it might have been considered as privileged, and the plaintiff held bound to prove express malice.” Upon the same ground, the publication of a report of proceedings in the orphans’ court, such as are involved in this present case, must be held to be qualifiedly privileged; hence, if the defendant had simply published a copy of the exceptions to the administrator’s account, the plaintiff could not recover without proof of express malice. This is plain enough.

But the first article was not, and did not purport to be, a copy of the exceptions, but purported'only to be a statement in condensed form of the accusations made in the exceptions. Our attention has not been called to any Pennsylvania case which expressly decides whether or not this fact alone would deprive such an article as this of the privilege that ordinarily attaches to reports of judicial proceedings. But the text-writers generally agree, and in this they are supported by numerous decisions both American and English, that it is not absolutely necessary that the report be verbatim, in order to entitle the publisher to set up the defense of privilege: 25 Cyclopedia of Law and Procedure, 408, and note 6 on p. 409; 18 A. & E. Ency. of Law (2d ed.), 1045; Odgers on Libel and Slander (4th ed.), 298 (1st Am. ed.), * p. 250; Townshend on Slander and Libel (4th ed.), 354. We entertain no doubt that this is true, not only of the report of the trial of a case, but also of the report of matters of record, such as exceptions to an administrator’s account.

When, however, a publisher of a newspaper undertakes to give an abstract of such exceptions, instead of pursuing the more prudent course of publishing the exceptions themselves and leaving the public to judge of their import, he is bound to publish an accurate, truthful and impartial abstract. As the learned trial judge well said, he is bound to be truthful and fair in his statements as to what is or has been going on in court; he is privileged only to tell the truth; he is not privileged to exaggerate. If he uses words different from those used in the legal document to describe the allegations against the accountant, he must take care that the words he selects, the form in which they are placed and the comments that he makes do not convey to the minds of ordinary readers an impression that the alleged wrongdoings of the accountant are more flagitious than the exceptions themselves show them to be. Failing in this, he forfeits his privilege, and is held liable to action, as he would be if the charges he represents as having been made by the exceptant were made by himself.

Was this an accurate, truthful and impartial abstract of the exceptions? The appellant’s counsel claim that it was not, because it represented that the exceptions charged the plaintiff and his brother with having "stolen most of their father’s estate,” with having 'robbed the estate of many thousands of dollars,” and with having “tried to cover their tracks by forgeries and frauds of various kinds,” which charges or accusations, it is claimed, are not made in the exceptions. In disposing of this question, it is necessary to determine, first, the meaning of the words "robbed” and 'stolen” in' the connection in which they were used. If the meaning that is to be ascribed to them is that the plaintiff had committed the crime of robbery and the crime of larceny, as these crimes are defined in the statute, then the publication was not an accurate and truthful abstract or report, for neither of those crimes is directly or impliedly charged in the exceptions. But this is not conclusive of the question. It is not the intention of the speaker or writer, or the understanding of any particular hearer or reader, that is to determine the actionable quality of the words. It is rather the effect which the language complained of was fairly calculated to produce and would naturally produce upon the minds of persons of ordinary understanding, discretion and candor: Thompson v. Lewiston Daily Sun Pub. Co., 91 Me. 203; Goebeler v. Wilhelm, 17 Pa. Superior Ct. 432. The inquiry should be “what impression would be made on the mind of an unprejudiced reader who reads the report straight through, knowing nothing of the case beforehand:” Odgers on Libel and Slander (1st Am. ed.), 252. In the same connection the learned author suggests that in considering the question, isolated passages should not be too much dwelt upon, but the report should be considered as a whole. These principles are applicable as well to a newspaper article in which the writer undertakes merely to give a report of judicial proceedings, as to an article in which he speaks directly of the conduct of individuals. The word “steal” and the word “rob” have acquired many meanings by popular usage which are not equivalent to the technical definition of them in the law of crimes. In one connection they would imply the commission of the felonies of larceny and robbery, while in many other connections no such implication either of law or of fact would arise. How is it in this case? Thus far we have quoted only that part of the article which is alleged to be libelous. It is important also to look at the context. After alluding to’ some matters not necessary to be noticed here, the article proceeds as follows: “In this account the administrator claims to have paid to himself and to his brother, O. W. Good, three notes amounting to a total of $3,741.30, due to'them from their father. No return is made of the business of John Good & Sons, it being alleged by John C. Good, the administrator, that six months before his death, the father sold to him and O. W. Good the mill property for a consideration of $10,000. In the exceptions it is alleged that two of sundry notes paid by the administrator to O. W. Gopd are forgeries; and that the note to the administrator, if genuine, was obtained without consideration. It is alleged that John Good, deceased, was the head of the firm of John Good & Sons, and that the administrator, as liquidating partner of the firm, has failed to account for any part of the father’s interest in that firm, he alleging that his father had no interest. It is alleged that neither he nor O. W. Good paid $10,000 for the mill property which they allege they purchased; and that judgments of John Good have been improperly assigned to others in a way that defeats the estate.” This explanatory matter is in substantial accord with the exceptions, and gives the article an aspect that it would not have 'otherwise. Whatever else may be said of the defendant’s language, it cannot be said that it was the duty of the court to charge the jury that they must take it to mean that the plaintiff had been charged in the exceptions with having committed the crimes of robbery and larceny. I cannot see that the words construed with reference to the subject matter and the context were susceptible of that interpretation. At all events, the plaintiff has no just cause to complain that that particular question was submitted to the jury.

But although it be conceded that the words considered in connection with the subject matter and the context do not import that the plaintiff was charged in the exceptions with the commission of those specific crimes, yet it must also be conceded that the public might, and probably would, understand the article to mean, that the plaintiff and the administrator, conspiring together, had fraudulently, and by means of forgeries and other dishonest methods, misappropriated the funds of the estate to their own Use. This being so, the question arises whether the article so interpreted was a fair statement of what had been charged in the exceptions.

It will be well to notice briefly the functions of the court and jury in making the comparison between exceptions to an administrator’s account and a publication purporting to give an abstract of them. Exceptions to an administrator’s account are legal documents and the construction of them is for the court. It is for the court to say what standard the publisher of an abstract of them must conform to in order to keep within the privilege. To bé more explicit, it is the province of the court to construe the exceptions and determine what charges of misconduct they import. In a plain case it would be the duty of the court to go further and instruct the jury that the published report of them did or did not contain defamatory charges that the exceptions did not contain. See Pittock v. O’Niell, 63 Pa. 253; Pittsburg, Allegheny, etc., Pass. Ry. Co. v. McCurdy, 114 Pa. 554, and Hayes v. Press Co., 127 Pa. 642. But in a case where the published report is susceptible of two meanings, one of which is actionable and the other not, it would be the duty of the court to instruct the jury as to the legal import of the exceptions and to submit to them the question whether the report of them conveyed a different and more damaging meaning. Were it not for the explanatory matter contained in the article, this case would fall within the former class. But in view of the explanatory matter we are not convinced that the learned trial judge committed error in submitting the interpretation of the article to the jury. It remains to apply the foregoing conclusions to the facts of the case. The third exception was in .these words: “Exceptants except to the credit of $1,628.25 alleged to have been paid on May 15,1903, to O. W. Good upon a note dated December 2, 1899, for the reason that the signature of John Good to said note is a forgery.” The fourth exception related to another note and was in the same terms. We have examined the other exceptions with great care and are unable to find in any of them anything that can be construed as enlarging the charges, so far as the question of forgery is concerned, beyond what the words of the third and fourth exceptions imply. But it might well be that everything alleged in these exceptions was true without imputing to the plaintiff the forgery of the notes or guilty knowledge that they were forgeries; for, it is to be noticed, it is not alleged in the exceptions that he was the payee. In short, for aught that is alleged in the exceptions he may have acquired them honestly and may have presented them for payment in igno-> ranee of the fact that they were forgeries. It was not necessary for the exceptants to negative either of these inferences or presumptions in order to sustain their exceptions; nor did they negative them expressly o'r impliedly. On the other hand, the jury could scarcely avoid the conclusion that the publication complained of might and probably would convey the impression to the minds of ordinary readers that the plaintiff and the administrator were charged with having resorted to forgery in' order to cover up their criminal misappropriation of the assets of the estate. The jury should have been instructed that'this charge was not deducible from the exceptions, and that, if taking the article as a'whole, they interpreted it as above, then the defendant had exceeded its privilege, the article was libelous and the plaintiff was entitled to recover. This conclusion is required by, and is in accordance with, the general rule that the quality of an alleged libel, as it stands upon the record, either simply or as explained by averments and innuendoes, is a question of law for the court, and in civil cases'the' court is bound to instruct the jury as to whether the publication is libelous, supposing the innuendoes to be true: Collins v. Dispatch Pub. Co., 152 Pa. 187; Pittock v. O’Niell, 63 Pa. 253; Price v. Conway, 134 Pa. 340; Meas v. Johnson, 185 Pa. 12; Binder v. Pottstown Daily News Pub. Co., 33 Pa. Superior Ct. 411.

The defense of privilege,' as related to the publication of reports of judicial proceedings, may be defeated by proof of express malice, and it is claimed by plaintiff’s counsel that there was inherent evidence of express malice iii the second article published by the defendant. On the other-hand, it is claimed, and the learned - trial judge took that view, that the circumstances under which the second article was'published rebutted any possible inference of express malice. We think the question was for the jury. In Barrett v. Long, 3 H. of L. Cas. 395, where' there was a plea denying actual malice, and stating the publication of an apology the court said: “We are all of the opinión that under such a plea the publication of previous libels oh the plaintiff by the defendant, is admissible evidence to show that the defendant wrote the libel .in question with actual malice against the plaintiff. A long practice of- libeling the plaintiff may show, in the most satisfactory manner, that the-defendant was actuated by malice in the particular publication; and that it did not take place through carelessness or- inadr vertence, and the more the evidence approaches to the-proof, of a systematic practice the more convincing it is. - The circumstance' that the other libels are more or less frequent, or more or less remote from the'time of the publication of that.in. question; merely affects the weight, not the' admissibility of the evidence.” Whether or not this rule should extend to publication'of libels of a different nature from that charged in ¡the-declaration need not be decided in this case: As regards repe-.' tition of the defamatory matter alleged in the déclaration, the rule, having regard to the reason of it, applies as well to subset quent as to previous publications, and so the law is- generally held." See Odgers on Libel-and Slander (4th ed.), 326-328'; To'wnshend on Slander and Libel-(4th ed.),-sec. 392.- ■ -In one-aspect of the present case the principle is applicable here. If the; first article, as interpreted by the jury, was not a fair report of the judicial proceeding, it would seem that the reiteration of it; - accompanied by the emphatic assertion-that it was true in-every particular, and the other comments' too extensive to quote here, would tend to show- that the first publication -was not-made through carelessness or inadvertence,-and might-be:the basis of an inference by the jury that the defendant was-actuated by actual malice. Of -' course- we do not say that the jury were bound to draw that inference. It-was proper for the court: to call their attention-to the 'circumstances of the republication: which tended to rebut the inference; but in holding, as we-understand the learned judge’s instructions to do, that the republication and-the accompanying comments were not, in any aspect-of the case, evidence from which the jury could infer- actual, malice, we'think there was error. .

■The next question to be considered is as-to the measure of; damages. The learned judge charged generally that -there-could be no recovery by the plaintiff- beyond what “would, compensate him for injury to his cháractér and his feelings^ to his character generally and to his feelings from the time of-the publication of the article up to the first day of January, 1904,” and specifically, that there coúld be no recovery of punitive damages. In addition to these instructions the court refused the plaintiff’s point to the effect that the jury might give punitive damages, if they found as a fact that the libelous matter complained of had been given special prominence by the use of head lines and display type and any other matter calculated to specially attract attention. This point was drawn under sec. 2 of the Act of May 12, 1903, P. L. 349, which was in force at the time of the publication and when suit was brought. The point was refused because, in the opinion of the learned judge, there was no special prominence given to the article over other matter in the paper by the use of head lines, displayed type or in any other way. It is true, as he pointed out, that many other articles were given equal, and some of them greater, prominence in the newspaper, but it is also true that it was given greater prominence than many other articles by means that were calculated to specially attract attention. We do not construe the act to mean that special prominence over every matter published in the newspaper was required. Under the evidence of the witnesses, and the evidence furnished by the newspaper itself, this was not a case for binding direction either way. The jury who heard the witnesses, and saw the newspaper, had as good opportunity as we have, or as the trial judge had, to determine the question of fact — for we can not regard it otherwise — and while it was not out of place for him to express his opinion upon it, it should have been left finally to their determination. Moreover, we are unable to conclude that if the act of 1903 were out of the way, there could be no finding of facts by the jury which would support an award of punitive damages. On the contrary, if the jury found that the article was not a fair report of the judicial proceedings to which it related, that it was calculated to convey the impression to ordinary readers that the exceptions, charged the plaintiff with crimes, which they did not charge, that special prominence was given to the article by the use of headlines, displayed type and other matter calculated to specially attract attention, and that the defendant was actuated by special malice against the plaintiff, it would have been within their province to award punitive damages, but they would not have been bound to do so. The question was for the jury under appropriate instruction by the court as to the findings of fact which would or would not support such award: Clark v. North American Co., 203 Pa. 346; Binder v. Pottstown Daily News Pub. Co., 33 Pa. Superior Ct. 411, at p. 428.

The article in question did not purport to have been published upon information received from others, but was published upon, the defendant’s knowledge of what the record contained. Furthermore, it was reiterated with emphatic assertion that it was truthful in every particular. In such circumstances it was not competent to show in mitigation of damages that another newspaper had previously published a substantially similar report of the same judicial proceeding: Hayes v. Press Co., 127 Pa. 642; Clark v. North American Co., 203 Pa. 346. It was also irrelevant to show that the plaintiff had not published a denial of the article published in the other newspaper. In the last cited case the court said: “All the assignments in reference to the accounts of the same transaction in other newspapers are sustained. Such accounts were not admissible in evidence for any purpose: Pease v. Shippen, 80 Pa. 513.” It is argued that this means simply that they were not admissible for any purpose under the facts of that case. Assume this to be true (although, it should be noticed, some of the authorities state the rule in broader terms), yet even in that view of the decision it is authority for the general proposition that you cannot show, even in mitigation of damages, that the plaintiff’s reputation had been damaged by the previous publication of the libel by another person. In such a case the law will not undertake to apportion the pecuniary injury to the plaintiff’s reputation between the two wrongdoers, and we can see no substantial difference between that and an attempt to apportion the injury to his feelings.

But it was competent fGr the defendant to prove the general reputation of the plaintiff for honesty. The later cases establish the principle, that in an action for slander or libel, where the general issue is pleaded, the.defendant may show, in mitigation of damages, the general bad reputation of the plaintiff "for the particular thing .with which he is charged”’ Drown v. Allen, 91 Pa. 393; Conroe v. Conroe, 47 Pa. 198; Moyer v. Moyer, 49 Pa. 210; Neeb v. Hope, 111 Pa. 145; Clark v. North American Co., 203 Pa. 346. In the first case., where the alleged slander consisted in the charge that the plaintiff was a thief and had stolen a sheep, it was held competent to ask a witness, 7 What is the general reputation of the plaintiff as to being a •thief?” This is cited in support of the proposition that in.such a ease it would not be competent to prove the general reputation of the plaintiff for honesty. We think the case .does.not go as far as.that. But even if it does, it does.not rule the case •before us. The purpose for which the testimony of reputation is-admitted is .not to establish the probability of the truth of the charge,: but to show that the plaintiff’s reputation in the particular involved in the defamatory charge “is not so valu- ■• able, commercially speaking, ■ as , a .reputation which is- un- • spotted.” If dishonesty is involved in the defamatory charge, as it is in this case, we think it clear that although there be an «additional charge of criminality, proof of the plaintiff’s bad reputation for honesty would be admissible. Therefore, there •was-no error, in admitting such evidence in the case, or in the learned judge’s comments on it in his charge to the jury.

' There are twenty-three assignments of error in this case. We have not.deemed it necessary to discuss them separately ■or in groups, but have endeavored.to cover the essential points involved in the appeal, and «to show wherein. we agree, and -wherein we are unable to agree, with the learned trial judge.

' The judgment is reversed and a venire facias de novo, .is awarded.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Commonwealth v. Cohen, Appellant.
    May 14, 1908:

      Criminal law — Reputation—Evidence—Charge.

      On the trial of an indictment for crime the defendant proved a good general reputation for honesty in the neighborhood where he had resided for thirteen months'prior to his arrest, by ten of his neighbors. On the question of reputation the court charged as follows: “Where one has, for a period of years, lived in a neighborhood and endeared himself to his neighbors, by leading an honest, righteous and upright life, that goes far toward assisting him at a time when his character may be called in question, and it is of great value, and should be eonsidered by a jury as a substantive 'fact.” Held, that the charge was misleading and erroneous inasmuch as the defendant was not required to show good reputation during a period of years, nor that he had endeared himself to his neighbors, nor that he had lived a righteous and upright life.
    Argued March 10, 1908.
    Appeal, No. 7, March T., 1908, by defendant, from judgment of Q. S. Juniata Co., Feb. T.,. 1907, No. 2, on verdict of guilty .in case of Commonwealth v. Hyman Cohen.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Indictment for receiving stolen goods. Before Shull, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned was (14) answer to defendant's third point, the point and answer being quoted in the opinion of the Superior Court;

      J. Howard Neely; with him John J. Patterson, Jr., for appellant.

      F. M. M. Pennell,- of Atkinson & Pennell, with him Andrew Banks, district attorney, for appellee. . . ,
   Opinion by

Morrison, J.,

The defendant was tried and convicted under an indictment containing a single count for receiving stolen goods, knowing the same to have been stolen. The court having refused a new trial, and entered judgment on the verdict, the defendant appealed to this court. We find in the record fourteen assignments of error and the learned counsel- for the defendant have argued strongly in support of these assignments. A careful consideration of the evidence, the charge of the court and the arguments, does not convince us of reversible error in any of the assignments, except the fourteenth.

The fourteenth assignment is based on the defendant’s third point and the answer of the court thereto. Third point: “Evidence of the good character of the accused is to be regarded as evidence of a substantive fact and may be sufficient to raise a reasonable doubt.

Answer: This we affirm: It is a fact that evidence of one’s good character is admitted in a court of justice, and may turn the scale in favor of one who has been charged with a crime. Where one has, for a period of years, lived in a neighborhood and endeared himself to his neighbors, by leading an honest, righteous and upright life, that goes far toward assisting him at a time when his character may be called in question, and it is of great value, and should be considered by a jury as a substantive fact. On the other hand, although a substantial character is held to be a great assistance to a man at a time of this kind, yet one may lead to the world a proper life, and so far as his neighbors know, may be pure and upright, yet may be doing things that .his neighbors know not of. We all know and common experience teaches us and observation shows us that there are men who have lived in communities and who have called their neighbors in to show that they have been honest and upright, and yet some high crime has been absolutely and positively fixed upon them, and where it is shown that their character has been pure and upright, and the crime is established by evidence that is convincing in the minds of the jury as to his guilt; then the matter of character of course must give way to that which is of a still more substantial nature.”

We regard this answer as setting up a standard not required by law. The defendant proved a good general reputation for honesty in the neighborhood where he had resided for thirteen months prior to his arrest, by ten of his neighbors. This was substantive evidence, and if it convinced the jury that the defendant had the general reputation of an honest man it might have raised, in the mind of the jury, a reasonable doubt which would have led to his acquittal. The most serious difficulty with the answer to the point is the following: “Where one has, for a period of years, lived in a neighborhood and endeared himself to his neighbors, by leading an honest, righteous and upright life, that goes far toward assisting him at a time when his character may be called into question, and it is of great value, and should be considered by a jury as a substantive fact.” We think this may have misled the jury: (a) The jury may have understood the court that it required a period of years to establish a good character for honesty and the defendant only having been known by his witnesses for thirteen months, the conclusion may have been reached that his evidence of good character was insufficient, (b) The jury may have understood that the defendant was required to show that he had endeared himself to his neighbors, but this is not so. All that the law requires in such a case, is to satisfy the jury that he has a good reputation as an honest man. (c) The jury must have understood that the defendant must have lead a righteous and upright life. This is too high a standard. A man may establish a reputation for honesty and as a law abiding citizen and yet not be a righteous man. It is entirely possible, even probable, for a wicked man to be honest and not guilty of larceny or of receiving stolen goods, knowing the same to have been stolen, and such a man may enjoy a good general reputation for honesty.

We dismiss all of the assignments except the fourteenth, arid sustain it and reverse the judgment with a venire facias de novo.


text:
    Gingrich’s Estate.

      Will — Devise—Charge on land — Supply of hay to widow'to feed cattle.

    Where a testator charges land with an annuity iii favor of his widow for life, 'and further directs that the owners of the land “are yearly to put in the stable on the premises- occupied by my wife, so long as she remains my widow, as.much hay as she mqy need to feed one horse and two cows without.charge,” the.owners pf the land are not obliged to supply the widow with hay during a period when she does not reside on the land nor own of possess any of the animals named in the will.
    Argued March 11, 1908.
    Appeal, No. 16, March T., 1908, by M. S.; Hershey, from decree of O. C. Dauphin Co., dismissing petition to- enforce charge on land in estate of Cyrus Gingrich, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition to enforce a charge on land. Before Kunkel, P. J.
    . The factp are stated in the opinion of the Superior .Court.
    Kunkel, J., concluded.his opinion ás follows:
    The evidence shows that Hershey bécame the owner of the farm on April 1, 1905, and has not complied with the direction in the will as to the delivery of the hay. " It also shows that the value of hay during the period from April 1, 1905, to the time of filing this petition, May, 1906, was $14.00 per ton, and that the quantity necessary to feed one horse and two cows for a year is eight tons. The petitioner, therefore, would be entitled to receive the value of the hay during the time it was not delivered, which would'be $129.88.- The respondent’s farm is chargeable wifh one-half of that sum, and he is liable for the same to the petitioner. It is, therefore, ordered and decreed that he pay to the petitioner the sum of $64.94, and the costs of this proceeding.

      Error assigned was the decree of the court.

      John E. Snyder and E. M. Hershey, for appellant. —
    In order to charge lands devised with the payment of a legacy, it must appear by direct expression, or plain implication, that such was the intention of the testator; otherwise the claim of the legatee will not follow the lands into the hands of a purchaser from the devisee: Brandt’s Appeal, 8 Watts, 198; Dewitt v. Eldred, 4 W. & S. 414; Brookhart v. Small, 7 W. & S. 229; Hackadorn’s Appeal, 11 Pa. 86; Wright’s Appeal, 12 Pa. 256; Hepburn v. Snyder, 3 Pa. 72; Cable’s App., 91 Pa. 327; Walter’s App., 95 Pa. 305; Van Vliet’s App., 102 Pa. 574; Haworth’s App., 105 Pa. 362; South Mahoning Twp. v. Marshall, 138 Pa. 570; Pringle v. Marshall, 152 Pa. 603; Duvall’s Est., 146 Pa. 176; Stark v. Byers, 213 Pa. 101; Wise’s Est., 188 Pa. 258; Mellon’s Appeal, 46 Pa. 165; Hamilton v. Porter, 63 Pa. 332; Buchanan’s Appeal, 72 Pa. 448; Montgomery v. M’Elroy, 3 W. & S. 370; Dewitt v. Eldred, 4 W. & S. 414; Kauffman v. Sailor, 7 Watts, 135; Cable’s App., 91 Pa. 327.
    If the furnishing of hay is not a charge on the land, then the petitioner has mistaken her remedy and the orphans’ court'is ■without jurisdiction: Montgomery v. McElroy, 3 W. & S. 370; Hamilton v. Porter, 63 Pa. 332; Walter’s Appeal, 95 Pa. 305; Springer’s Appeal, 111 Pa. 274; Schmehl v. Bickel, 5 Sadler, 486; Act of February 24, 1834, P. L. 70, sec. 59, P. & L. Dig. 1514.
    The premises mentioned in the will are .the house, garden and outbuildings, the use and occupation of which are bequeathed to her by the second item of the will. ■ Thé place is in the stable on the premises occupied by my wife: •

      John C. Nissley,- with him I. B. Swartz, for appellee. —
    The hay was a charge on the land: Dickermam v. Eddinger, 168 Pa. 240; Ripple v. Ripple, 1 Rawle, 386; Steele’s App., 47 Pa. 437; Wusthoff v. Dracourt, 3 Watts, 240; Craven v. Bleakney, 9 Watts, 19; Brotzman v. Riehl, 119 Pa. 645; Wingett v. Bell, 14 Pa. Superior Ct. 558.
    The appellee contends that she need not reside upon the land or in the house in order to demand performance on the part of the owner of the farm, and that the words “as much hay as she may need to feed one horse and two cows without charge” are used to define the quantity to be furnished, and are not a limitation upon her rights: McCalla’s Est., 16 Pa. Superior Ct. 202; Chew’s App., 45 Pa. 228.
    May 14, 1908:
   Opinion by

Morrison, J.,

One of the questions raised in this appeal is whether the hay mentioned in the second paragraph of item 8 of the last will and testament of Cyrus Gingrich was made a charge upon the land devised by the testator as tract No. 1 to his son Christian, and as tract No. 2 to his son Edwin.

The learned court below held that the hay was a charge upon the land. Item 8 of the will reads: “I expressly order and direct that Five Thousand dollars ($5,000) of the purchase money of my farm herein designated as Tract No. One, whether taken by my son Christian at the price I have placed on it, or sold by my executors, and five thousand dollars ($5,000) of the purchase money of my farm herein designated as tract No. Two, whether taken by my son Edwin at the price I have placed upon it, or sold by my executors, shall respectively be and remain as liens and charges on my said two farms, respectively (The Sum of Five thousand dollars being thus charged on each farm), for and during the natural lifetime of my beloved wife, Malinda, the interest thereof respectively, at five per cent per annum to be annually and regularly paid to her by the respective owners of said farms on the first day of April in each and every year for and during the period aforesaid and the principal sums at and immediately after her death to be paid by the respective owners of said farms in six equal shares, as follows: One full equal share unto each of my five children, Christian B. Gingrich, Edwin G. Gingrich, Jeremiah H. Gingrich, Ammon B. Gingrich and Sara A. Gingrich, their heirs or assigns, and the remaining one full equal share unto my executors hereinafter named in trust for the uses and purposes hereinafter designated.

“The owners of the farms herein designated as Nos. one and two are yearly to put in the stable on the premises occupied by my wife, so long as she remains my widow, as much hay as she may need to feed one horse and two cows, without charge. And my said wife, during said period, shall have the right to take from the orchards on said farms as many apples as she may desire for her use, without charge.”

The learned court below held that the orphans’ court was without jurisdiction as to anything raised in the petition except the hay. The court said: “The second part of the claim, however, may be enforced in this proceeding. We think it is a charge upon the land of the respondent, and is due to the petitioner, notwithstanding she does not reside on the premises devised.”

Whether or not the hay is made a charge upon the land is a question on which the members of this court do not agree, but the majority do agree upon a decision of the case on another ground, to wit: The widow, the petitioner, during the period •of time embraced in her petition did not reside on the farm nor did she own or possess any of the animals named in the will, kept on said farm or elsewhere, to be fed on the hay mentioned.

The question then arises, could she remove from the farm and keep neither horse nor cow and still require the owners of the farms “Nos. One and Two, yearly, to put in the stable on the premises occupied by my wife, so long as she remains my widow, as much hay as she may need to feed one horse and two cows, without charge”?

We feel constrained to answer this question in the negative. The will means that if the petitioner should occupy the premises, and keep thereon one horse and two cows, the owners of the farms must yearly put in the stable on the premises, as much hay as would be needed to' feed the animals named. If she did not keep any of the said animals then she did not need the hay and, under the terms of the will, she was not entitled to have the hay put into the stable mentioned. This being so she was not, under the conceded facts, entitled to recover in the present case, the value of the hay.

There is no evidence that the widow owned a horse or cow or kept one of said animals at any place and, therefore, she could not recover the value of the hay because the owners of the farms did not annually put it in the stable mentioned while she kept no animals to eat it. The question whether if she kept the animals named or- some of them, away from the farm she could call on the respondent to furnish the hay, needed to feed them, is not raised' and it is not decided.

The writer is. of the opinion that-the will does not. make the. hay a charge upon-the land. It will be observed that in the first paragraph of item-8,- the testator-in apt and-concise language, charged the sum-of -$5,000 upon each of the farms for and during the- natural lifetime of his wife -and provided that the interest thereof respectively, at five per cent per annum, be annually and regularly paid to her by the respective owners of said farms’on April 1 in-each and every year for and during the period aforesaid; etc.- This will, then; does not present-a case where the-testator did not* seem’-to know how to’make charges upon land. Now, looking at paragraph 2 of this item,, the writer fails to see any indication, either in direct language; or by clear implication, that -the hay therein mentioned-- was charged upon the land. The language is: “The owners of the farms herein-designated as Nos.--One and Two are yearly to put in-the stable on-the premises occupied by my wife, so long as she'remains my widow, as much hay as she may need to feed one-horse and two cows, without charge. And my said wife, during said’period, shall have the right to take from the orchards on said farm as many apples - as she may desire for her use,- without charge.” If it be- conceded 'that the, apples are a charge on-the-land'that fact, in-the opinion of the. writer,' does-, not control- as to the hay. An examination of the following- -authorities • convinces me -that the hay was not made a charge on -the land and, therefore, the orphans’ court- Was- with-; out .jurisdiction and;the petition ought to have been dismissed ¿ Gibson’s Appeal, 25 Pa. 191; Walter’s Estate; 197 Pa. 555; Holliday v. Sumerville, 3 P. & W. 533; Craven v. Bleakney, 9 Watts, 19; Ringrose v. Ringrose, 170 Pa. 593; Brandt’s Appeal, 8 Watts, 198; Dewitt v. Eldred; 4 W. & S. 414; Brookhart v. Small, 7 W. & S. 229; Hackadorn’s-Appeal, 11 Pa. 86; Wright’s Appeal, 12 Pa. 256; Hepburn v. Snyder et al., 3 Pa. 72; Mellon’s Appeal, 46 Pa. 165; Buchanan’s Appeal, 72 Pa. 448; Bruckman’s Estate, 195 Pa. 363; Reilly’s Estate, 200 Pa. 288.

But a majority of my brothers do not agree with- me that the hay is not a charge on the land and, therefore,' the' case is not decided upon that ground. But a majority of the court does agree that under'the conceded facts the widow was not entitled to the hay nor to its value for the period of time covered by her petition.

The decree is reversed and-the petition dismissed at the costs of' petitioner.

Rice, P. J;, and Porteé, J., dissent.


text:
    McSorley v. Allen, Appellant.

      Landlord, and tenant — Covenants—Lease—Seat and light — Eviction.
    If a landlord neglects and’refuses to furnish, heat an'd light which1 his covenants require him to furniáh, and the premises'are thereby rendered unfit for occupancy, the law will not require'the tenant .to first pay the rent, and then sue for damages .suffered by the landlord’s breach of his covenants. , • , ,
    Physical expulsion is not now considered necessary to constitute’ an. eviction. Any act of a landlord which deprives his tenant of'' that beneficial enjoyment of the premises to which he is entitled under' a lease, will amount in law to an eviction and suspend the rent. ■' .

      Landlord and tenant — Covenant—Removal of garbage — Inducement— Parol evidence — Evidence.
    A tenant may set up against his landlord a parol agreement of the latter in reference to the removal of'garbage, if ¡he'shows that the parol agreement was made at the time of the execution of. the lease, that it was one of the moving considerations for its execution, and that with-r out it the lease would not have been executed.
    Argued April 15, 1908.
    Appeal, No. 15, April T.,: 1908, by defendant, from order of C. P. No. lj Allegheny Co., June T., 1907, No. 109, refusing rule to'open judgment in case of John McSorley to use of Elizabeth H. Kitzmiller v. John Ernest. Allen.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed,

      May 14, 1908:
    Rule to open judgment.
    The facts appear by the opinion of the Superior Court.

      Error assigned was order refusing rule to open judgment.

      Thomas Watson, with him Geo. B. Wallace, for appellant.—
    To constitute an eviction, in law, actual physical expulsion is not necessary, but any act of the landlord which deprives the tenant of that beneficial enjoyment of the premises to which he is entitled under the lease, will amount, in law, to an eviction and suspend'the rent: Hoeveler v. Fleming, 91 Pa. 322; Oakford v. Nixon, 177 Pa. 76.
    The failure to furnish an adequate supply of heat to the tenant, in violation of the landlord’s express covenant to do so, is, without more, such a deprivation of the beneficial enjoyment of the premises as amounts to an eviction, justifying the tenant in abandoning the premises, and subsequent rent, in consequence, is abated: Ryan v. Jones, 2 N. Y. Misc. Rep. 65; Filkins v. Steele, 124 Iowa, 742 (100 N. W. Repr. 851); Rogers v. Babcock, 139 Mich. 94 (102 N. W. Repr. 636); Trenkmann v. Schneider, 26 N. Y. Misc. 695; Jackson v. Farrell, 6 Pa. Superior Ct. 31; Bass v. Rollins, 63 Minn. 226 (65 N. W. Repr. 348);. Koehler v. Schneider, 15 Daly’s Rep. (N. Y.) 198; Piper v. Fletcher, 115 Iowa, 263 (88 N. W. Repr. 380).

      D. C. Jennings, with him W. K. Jennings, for appellee.
   Opinion by

Morrison, J.,

The defendant leased from the legal plaintiff for one year from April 1, 1906, a housekeeping apartment in the building known as “Ansonia” apartments, Pittsburg. The lease contained this provision: “Lessor agrees to furnish steam heat for the entire apartment from October 15 to April 15, and hot water the entire year, except in case of accident or unavoidable cause, janitor service for all public places, heat and light for public halls, &c.” The rent reserved was $55.00 per month payable in advance, The defendant’s petition, hereafter re» ferred to, averred prompt payment of rent so long as hie occupied the premises;, that during October, November and December, plaintiff failed to perform his contract to furnish heat and janitor service; that after repeated notices to the plaintiff,. landlord, defendant removed from the premises in the latter part of December, having first paid his rent in full to that date. The written lease contained a warrant of attorney for the confession of judgment, and the plaintiff caused a judgment to be confessed and entered for the rent for the remainder of the term. Defendant then presented in the court below his petition to open the judgment and let him into a defense because the landlord had failed to perform his covenants and the premises had become uninhabitable for want of heat, light, etc., to such an extent as to amount in substance to an eviction.

To this petition no answer was filed and the learned court below refused to even grant a rule to show cause. The court held that the breaches set up in the petition did not- constitute an eviction or its equivalent, and that the defendant should pay the rent for the full term and then sue the landlord for any damages he may have suffered. We find ourselves unable to agree with this view of the law. The petition shows prima facie grounds for opening the judgment and relieving the defendant from paying the rent for the portion of the term that he did not occupy the leased premises. If the landlord neglected and refused to furnish the heat, light, etc., which his covenants required him to furnish, and the premises were thereby rendered unfit for occupancy, the law will not require the defendant to first pay the rent and then sue for damages suffered by the landlord’s breach of his covenants.

Physical expulsion is not now considered necessary to constitute an eviction. Any act of a landlord which deprives his tenant of ,that beneficial enjoyment of the premises to which he is entitled under a lease, will amount in law to an eviction and suspend the rent: Hoeveler v. Fleming & Co., 91 Pa. 322; Oakford v. Nixon et al., 177 Pa. 76; Gallagher v. Burke, 13 Pa. Superior Ct. 244.

That the failure to furnish heat and light to the tenant, especially after repeated notices, in the winter season, in a cold climate, was, under the lease in the present case, a substantial eviction, is established by many authorities in New York, Iowa, Michigan, Minnesota and see our own case of Jackson v. Farrell, 6 Pa. Superior Ct. 31.

There is some contention in the arguments about the paragraph in the lease and the one in the petition about the removal of garbage.

But the defendant clearly avers in his petition that the parol agreement about the removal of garbage was one of the moving considerations for the execution of the lease, without which it would not have been executed.

We think the recent cases of Gandy v. Weckerly, 34 Pa. Superior Ct. 79, and Gandy v. Pinkerton, 34 Pa. Superior Ct. 87, and the reversal of those cases by our Supreme Court, 220 Pa., page 285, disposes of that question.

We are all of the opinion that the learned court erred in refusing relief to the defendant.

The order is reversed at the cost of appellee and the court below is directed to open the judgment generally and frame an issue placing the burden of showing that plaintiff is entitled to recover rent on him, and permitting the defendant to reply thereto by showing such facts as may relieve him from the payment of rent after removal from the premises. And to that end the record is remitted to the court below.


text:
    Jackson, Appellant, v. Pittsburg.

      Road law — Notice of street opening proceedings — Mortgage—Payment of damages to owner — Eminent domain.

    Where a city condemns a street through land covered by a mortgage, in proceedings under the Act of May 16, 1891, P. L. 76, and damages are paid to the owner without objection by the mortgagee, and thereafter the land is sold by the sheriff m foreclosure proceedings, and the mortgage paid in full, the purchaser at the sheriff's sale has no standing to enjoin the city from proceeding with the physical opening of the street on the ground that personal notice of the street opening proceedings had not been given to the mortgagee.
    In such a case the purchaser at the sheriff’s sale acquired the title of the defendant in the execution, and no more; a part of the land under the sovereign power of the state having been previously appropriated for public purposes. Even if the purchaser possesses the rights of the mortgagee he stands in no better position than the mortgagee, and as the latter was paid in full, and is not complaining, the purchaser has no standing to complain of the lack of notice.
    In proceedings under the Act of May 16, 1891, P. L. 75, a mortgagee is not entitled to receive actual notice, or be made a party to the proceedings, since the mortgagee is not the owner of the land.
    When land is taken for public use it is not the record title that is acquired, nor is it any person’s title, but the land itself, irrespective of record or other ownership.
    A mortgage executed after the passage of the law of May 16, 1891, P. L. 75, relating to the opening of streets is subject to that act, inasmuch as all the laws of the state existing at the time a mortgage was made which affect the rights of the party to the mortgage, enter into and become a part of it and are obligatory upon all courts which assume to give a remedy on such a contract.
    Argued April 15, 1908.
    Appeal, No. 25, April T., 1908, by-plaintiff, from decree of C. P. No. 3, Allegheny Co., May T., 1907, No. 15, sustaining demurrer to bill in equity in case of Robert L. Jackson v. City of Pittsburg, Barber Asphalt Company, Inc., and Booth & Flinn, Ltd.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to findings and decree of court.

      Jesse H. Wise, of Wise & Minor, with him Watson & Freeman, for appellant. —
    The plaintiff had no notice of the proceeding to open the street. The mortgagee had none. When the plaintiff purchased there were no indications on the ground that the street was to be opened. There was nothing on the search showing that the street had been extended, and nothing to put him upon inquiry. The mortgagor has an interest entitling him to notice: Schuylkill Navigation Co. v. Thoburn, 7 S. & R. 411; Reese v. Addams, 16 S. & R. 40; Keller v. P. & L. E. R. R. Co., 29 P. L. J. 316.
    And it is an established rule that he “the mortgagee” is an “owner of real estate” or a “person interested” in such a sense that he is entitled to compensation for the loss he sustains; and if in the condemnation proceedings the mortgagor alone is recognized, the title of the mortgagee is not divested: South Park Commissioners v. Todd, 112 Ill. 379; Sherwood v. Lafayette, 109 Ind. 411 (10 N. E. Repr. 89); Wilson v. Railway Company, 67 Maine, 358; Michigan Air Line Ry. Company v. Barnes, 40 Mich. 383; Bright v. Platt, 32 N. J. Eq. 362; Auburn Bank v. Robert, 44 N. Y. 192; City of Philadelphia v. Dyer, 41 Pa. 463; Sedgeley Ave., 88 Pa. 509; Noble Street, 1 Ashmead, 276; In re Twenty-fifth Street, 18 Phila. 521; John Street, 19 Wendell, 659.
    Damages awarded to a mortgagor for land taken for a right of way, or other public improvement, become a substitute for the premises taken and the mortgage is a specific lien upon the fund: Astor v. Miller, 2 Paige, 68; Re John & Cherry Sts., 19 Wendell, 659; Gimbel v. Stolte, 59 Ind. 446.

      A. M. Thompson, with him W. B. Rodgers, for appellees. —
    The owner of land affected is the only person entitled to notice of a municipal improvement: Knoll v. Ry. Co., 121 Pa.467; Farnsworth v. Boston, 126 Mass. 1; Dollar Savings Bank v. Pittsburg, 25 Pittsburg Leg. Journ. 185; Schuylkill Navigation Co. v. Tho-burn, 7 S. & R. 411; Reese v. Addams, 16 S. & R. 40; Knoll v. Railway Co., 121 Pa. 467; In re Road in Upper Dublin and Whitemarsh Twps., 94 Pa. 126; Philadelphia, etc., Railroad Co. v. Pennsylvania Schuylkill Valley Railroad Co., 151 Pa. 569; Deckert’s Appeal, 5 W. & S. 342; Keystone Bridge Co. v. Summers, 13 W. Va. 476; Schumacker v. Toberman, 56 Cal. 508; Thompson v. Chicago, etc., Railway Co., 110 Mo. 147 (19 S. W. Repr. 77); Parish v. Gilmanton, 11 N. H. 293; Whiting v. New Haven, 45 Conn. 303.
    A mortgagee out of possession is not an owner, under our system of jurisprudence: Cautont v. Catlin, 2 Sandf. Ch. 485; Astor v. Hoyt, 5 Wendell, 603; Farnsworth v. Boston, 126 Mass. 1; Pond v. Eddy, 113 Mass. 149; Norwich v. Hubbard, 22 Conn. 588; Rickert v. Madeira, 1 Rawle, 325; Presbyterian Corp. v. Wallace, 3 Rawle, 109; Bower v. Oyster, 3 P. & W. 239; Lennig’s Estate, 52 Pa. 135.
    May 14, 1908:
    A mortgagee will not be heard to say that .he has been deprived of his property without due process of law, because the lien of his mortgage is transferred from the land to the damages: Whiting v. New Haven, 45 Conn. 303; Farnsworth v. Boston, 126 Mass. 1; People v. Smith, 21 N. Y. 595; Palmyra v. Morton, 25 Mo. 593; People v. Brooklyn, 4 N. Y. 419; People v. Smith, 21 N. Y. 595; 2 Washburn on Real Property, 155.
   Opinion by

Morrison, J.,

On April 12, 1904, Tressie Nozzolillo and Louisa Nozzolillo were the owners in fee of the lot of land in Pittsburg, described in the plaintiff’s bill, and on that day they executed and delivered a bond and mortgage covering the same, to Mattie A. Yeasey of Lawrence county, as security for.a loan of $1,100. January 31, 1905, the city of Pittsburg, by virtue of the Act of assembly of May 16, 1891, P. L. 75, and its amendments and supplements, enacted an ordinance for the opening of Omega street, over a portion of the premises described in the plaintiff’s bill and in said mortgage. At No. 328 of February Term, 1906, in the court of common pleas No. 3 of Allegheny county, viewers were appointed for the purpose of ascertaining the costs, damages and expenses of the opening of Omega street, and assessing the benefits and damages resulting therefrom. The viewers took upon themselves the duties of their appointment, gave the notices required by acts of assembly, filed their report in court and awarded, inter alia, as damages to Tressie -and Louisa Nozzolillo the sum of $1,000. September 4, 1906, the said report of viewers was confirmed absolutely by the court, and no appeal has since been taken from the decree of confirmation. The city of Pittsburg subsequently paid the said sum of $1,000, as per the decree of the court, to said Tressie and Louisa Nozzolillo, who were the registered owners of the said premises described in the plaintiff’s bill and the mortgage.

Subsequent to the payment of the viewer’s award by the city of Pittsburg, Mattie A. Yeasey, the mortgagee, caused judgment to be entered against the mortgagors on her judgment bond, and on execution on said judgment, the premises described in her mortgage were sold at sheriff’s sale to Robert L. Jackson, the appellant, for the sum of $1,535. The sheriff distributed the said sum of $1,535 to payment of the costs of the execution, also to tax liens and costs of the same, and applied the sum of $1,101.20 upon the mortgage debt, this amount being in excess of the face of the mortgage debt.

It will be noted that neither the owners of the mortgaged property nor the owners of the mortgage are parties to this suit and so far as appears they have no complaint to make.

On February 6, 1907, the appellant filed his bill against the city of Pittsburg and others, setting forth, in substance, the above facts and praying the court to restrain the city and its agents and contractors from entering upon the premises described in the bill and interfering with the use of the same by the plaintiff or his tenants. To this bill the city and the Barber Asphalt Company demurred, and from the decree dismissing the plaintiff’s bill, the present appeal has been taken.

The question involved seems to be well stated in the argument of the counsel for appellees, to wit: “Has a court of equity jurisdiction to enjoin a city from proceeding with the physical opening of a street on the petition of a purchaser at a sheriff’s sale, when prior to the sale, the city, acting under the act of May 16, 1891, had ordained the opening of a street over part of a city lot, had paid to the owner of the land taken, the damages awarded to him by a board of viewers, and when subsequently the premises were sold to the plaintiff under execution by a prior lien creditor, for a sum sufficient to pay the execution debt and the injunction is sought solely on the ground that personal notice of such street opening proceedings was not given to the lien creditor? ”

It seems clear that the appellant, purchaser at sheriff’s sale, acquired the title of the defendants in the execution, and no more; a part of the land under the sovereign power of the state having been previously appropriated for public purposes: Weidler v. Farmers’ Bank of Lancaster, 11 S. &. R 134; Freeman v. Caldwell, 10 Watts, 9. The rule in sheriff’s sales is caveat emptor: Wells v. Van Dyke, 106 Pa. 111.

The appellant’s contention seems to be that he possesses the rights of the execution creditor, the mortgagee. Well, if he does, it will not be .contended that he stands in any better position than the execution creditor, and she realized from the sheriff’s sale of the land in question, her debt, interest and costs, and she is not complaining that she was not, in fact, notified of the condemnation proceedings; nor do we see how she can reasonably complain, as the result proved her security was not, as a matter of fact, impaired. While the damages awarded were not applied to her mortgage, but went to the owners of the land, she did not suffer thereby. The appellant, with his eyes open, bought in the land of the mortgagors, against whom the proceedings were regular, and who, in fact, were, so far as we can see, well satisfied. The misfortune of the appellant is that at the time of the sheriff’s sale, when his interest accrued, the city had taken a portion of the mortgaged land for public purposes, and on a final judgment of a court having jurisdiction, had paid the damages to the owners.

The right of eminent domain is not, and cannot be, questioned. When the people exercise that right they simply “resume possession of that which had been previously granted to the subject upon condition that it might again be resumed to meet the necessities of the Sovereign:” Mills on Eminent Domain, pages 1 and 2.

The city of Pittsburg opens streets under the Act of May 16, 1891, P. L. 75, its amendments and supplements. The law so far as we can see only requires notice to be given to the owners of the land condemned. It may be conceded that the mortgagee, or other lien creditors, migpt have appeared before the viewers and endeavored to have the damages awarded to such creditors, and they might' have had the money paid' into court to the end that it might be paid to them. But this was not done, and in fact it does not appear that any objection whatever was interposed to the payment of the damages to the owners. The theory of the appellant seems to be that the mortgagee ought to have received actual notice and should have been made a party to the proceedings. But we do not so understand the law: Knoll, Adm’r, v. Railway Co., 121 Pa. 467; Farnsworth v. Boston, 126 Mass. 1; see also Phila. & Reading R. R. Co. v. Penna. Schuylkill Valley R. R. Co., 151 Pa. 569.

In Pennsylvania a mortgage is, both in law and in equity, only a security for the payment of money, and passes no title to the land. The mortgagor is the owner of the land: Rickert and Another v. Madeira, 1 Rawle, 325; Presbyterian Corporation v. Wallace et al., 3 Rawle, 109; Lennig’s Estate, 52 Pa. 135.

In the exercise of the legislative discretion in providing the mode of conducting condemnation proceedings, provision may be made for constructive notice only: 2 Dillon on Municipal Corporations, sec. 471; People v. Smith, 21 N. Y. 595.

The mortgage in the present case was made after the law of May 16, 1891, P. L. 75. In Brine v. Insurance Co., 96 U. S. 627, the Supreme Court said: “All the laws of a State existing at the time a mortgage or other contract is made, which affect the rights of the parties to the contract, enter into and become a part of it and are obligatory upon all courts which assume to give a remedy on such contracts.”

There is no other remedy for an authorized taking of property under the power of eminent domain than that provided by the legislature. “But when land is taken for public use, it is not the record title that is acquired, nor is it any person’s title, but the land itself, irrespective of record or other ownership: ” Farnsworth v. Boston, 126 Mass. 1-8.

• We find nothing in the able argument for the appellant, nor in the authorities therein cited, calling for any further discussion.

We call attention to the fact that both appellant and appellee have argued this case on the theory that there was a final decree dismissing the plaintiff’s bill, but we have not found such decree iii the record. It simply shows demurrer sustained. This may not be such a final decree as will support an appeal. But in view of the apparent agreement of counsel that there is a final decree dismissing the bill, we will take that as a conceded fact.

The assignments of error are all dismissed and the decree dismissing the bill is affirmed, and it is ordered and decreed that the appeal be dismissed and that the costs be paid by the appellant.


author: Per Curiam,

text:
    Webster, Appellant, v. Smith.
    Interest— Usury — Juigment—Opening judgment.

    A security given in payment or discharge of an usurious contract is equally void with that. The original taint attaches to all consecutive obligations growing out of the original usurious transaction, and none of the descendant obligations can be free from it if descent can be traced.
    When the consideration of a confessed judgment is- made up in part of usury, no matter in what form it may be disguised, the court-will ordinarily open the judgment and afford relief.
    Argued April 16, 1908.
    Appeal, No. 161, April T., 1908, by plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1907, No. 144, making absolute rule to open judgment in case of C. Webster v. Elizabeth Smith and John T. Smith.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    MacFarlane, J., filed the following opinion:
    In the month of September, 1905, the defendant made a note to plaintiff for “about $625.” She actually received in cash $500. No explanation is given as to the balance. The amount claimed by plaintiff to be due him on June 23,1906, was $424. This is arrived at by taking from the amount of the second note of that date, $798, the sum of $174 agreed “expenses,” etc., leaving $624, and from that deducting $200, the amount of cash defendant then received, the balance, $424, being applied to the payment in full of the balance claimed by plaintiff to be due on the first note. The plaintiff’s chepk for $625, dated June 23, 1906, to the order of the defendant and indorsed by her, represented the $200 cash received by her and the balance, $425, on the first note. The discrepancy of $1.00 is not explained.
    The voluntary payment of the balance claimed on the first note does not preclude defendant from claiming that it was usurious. It is well settled that the taking up and renewing of usurious notes and obligations does not remove the right to defend against the usury paid. The cases of Marr v. Marr, 110 Pa. 60, and Reap y. Battle, 155 Pa. 265, are sufficient authority out of the large number of cases cited in 22 Pepper and Lewis’ Digest, column 39,’299.
    The plaintiff’s agent admitted that the amount of cash received by defendant on the original loan was $504.
    Taking the original debt to be $504 and the payments thereon they appear in the defendant’s testimony, viz.: September 27, 1905, $57.00; October 28, 1905, $57.00; November 28, 1905, $57.00; December 29, 1905, $57.00; and January 29, 1906, $57.00; a total of $285. The amount due on June 23, 1906, by the method of calculation of defendant’s counsel is $500, less payment of $285, or $215, to which is added $24.66 interest on $500 from September 1, 1905 to June 23, 1906, a total of $239.66. Adding to this $200 then received and the amount of the debt was then $439.66.
    By paper of that date the defendant made application for a loan of $625 to be paid in twelve monthly installments of $66.50 and agreed that in addition to the amount of the loan she would pay $174 for drafting papers, appraising her property and looking up the title to same, making all necessary searches including the judgment records, and also the interest at six per cent in advance to June 28, 1907, this making her total indebtedness $798.
    For a debt claimed to be $625 and actually $439.66 the charge of $174 is preposterous. The “papers” so far as it appears, were two blank forms, one a judgment note, and the other the agreement. Whether a title to real estate was examined we do not know. On this debt the defendant has paid $504.
    As presented here it is plainly a case requiring the opening of the judgment.

      May 14, 1908:

      Error assigned was the order of the court.

      J. D. Hern, for appellant.

      J. S. Christy, for appellee.
   Per Curiam,

The principle established in Campbell v. Sloan, 62 Pa. 481, and recognized in many subsequent cases, is that “a security given in payment or discharge of an usurious contract is equally void with that. The original taint attaches to all consecutive obligations growing out of the original usurious transaction, and none of the descendant obligations can be free from it if descent can be traced.” When the consideration of a confessed judgment is made up in part of usury, no matter in what form it may be disguised, the court will ordinarily open the judgment and afford relief. Notwithstanding the suggestion of appellant’s counsel we find no clear evidence in this case as now presented which would estop the defendants from claiming such relief. The opinion filed by the learned judge below shows quite clearly that there was ample evidence to sustain the defendants’ contention that the consideration of the judgment was made up, in part at least, of usury. Therefore no error was committed in opening it and permitting the defendants to defend before a jury to the extent that such usury and actual payments go in reducing the indebtedness.

The order is affirmed and appeal dismissed at the costs of the appellant.