text:
    Milliren v. Sandy Township, Appellant.

      Negligence — Toumships—Defective road — Notice—Contributory negligence —Province of jury.

    In an action by a woman against a township to recover damages for personal injuries, the evidence showed that at the time of the accident plaintiff was riding in a wagon by the invitation of the owner. She was seated on a high spring seat near the front of the wagon, and she testified that she was holding on to the back of the seat and exercising due care. While thus seated one of the wheels of the wagon dropped into a rut or hole in the road, and plaintiff was thrown out and injured. It did not appear that plaintiff had knowledge of the condition of the road; but the road had been in a bad condition for such a period of time, as to amount to constructive notice to ' the supervisors. Held, that the question of negligence and contributory negligence was for the jury and that a. verdict and judgment for plaintiff should be sustained.
    Argued Oct. 26, 1905.
    Appeal, No. 190, Oct. T., 1905, by’ defendant, from judgment of C. P. Clearfield Go., Sept. T., •1904, No. 402, on verdict for plaintiff in case of Hannah Milliren and J. J. Milliren v. Township of Sandy.
    Before Rice, P. J., Beaver, Orladt, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.- Before Smith, P. J.
    The circumstances of the accident are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $827.50. Defendant appealed.

      Errors assigned were various instructions.

      W. C. Pentz, and Singleton Bell, with them Howard B. Hartswieh, for appellant,
    cited: Lohr v. Philipsburg Borough, 156 Pa. 246; Dehnhardt v. Philadelphia, 15 W. N. C. 214; Bishop v. Schuylkill Twp., 20 W. N. C. 105; Brendlinger v. New Hanover Twp., 148 Pa. 93; Snyder v. Penn. Twp., 14 Pa. Superior Ct. 145; Smith v. Jackson Twp., 26 Pa. Superior Ct. 234 ; Cresent Twp. v. Anderson, 114 Pa. 643; Decker v. East Washington Borough, 21 Pa. Superior Ct. 211; Selkers v. Union Traction Co., 21 Pa. Superior Ct. 5; Mauch Chunk Borough v. Kline, 100 Pa. 119.

      A. L. Cole, of Cole Kuntz, for appellee.
    December 10,1905 :
   Opinion by

Morrison, J.,

Hannah Milliren and J. J. Milliren, her husband, brought an action in trespass against Sandy township, to recover damages for an accident that happened to Hannah on June 23, 1904, while traveling from Du Bois to visit her mother at Rathmel, on one of the public roads of the township. While walking along this road, she was overtaken by a young man named Keagle, driving in a light wagon, with a load of feed, and he invited her to ride with him. He sat on a high spring seat near the front of the wagon and Mrs. Milliren took a seat beside him. They soon came to a piece of bad road and the evidence tends to show that either the right or left fore wheel of the wagon dropped into a rut or hole in the highway, and Mrs. Milliren was either thrown or jumped out of the wagon and broke her left arm. She testifies that the right wheel dropped into the hole and that she was thrown out on that side, but Keagle says positively it was the left wheel that dropped into the hole and that she went out over that wheel. The case was thoroughly and carefully tried before the court and a jury and separate verdicts rendered in favor of each plaintiff and judgments being entered thereon, the defendant appealed.

' The action in favor of the husband and wife and the verdicts and judgments are in correct form : Act of May 8, 1895, P. L. 54. ’

The important questions before the court were : 1. The negligence of the defendant. 2. The contributory negligence of Mrs. Milliren. 3. The measure of damages.

A careful examination of the evidence, the charge of the court and the answers to the numerous points presented, convinces us that there was sufficient evidence to carry the case to the jury, as to the bad condition of the road and the notice to the supervisors, both actual and constructive. The evidence was not very strong as to actual notice, but there was sufficient evidence that this road had been badly out of repair for such a length of time that the supervisors ought to have known of its condition and to have repaired it and if the jury so found this amounted to constructive notice. We do not say that the evidence required the jury to so find but it was sufficient to carry the question to the jury and the learned court submitted it in a careful and adequate charge.

But it is earnestly contended by the learned counsel for the appellant that the plaintiffs could not recover on account of the contributory negligence of Mrs. Milliren, and that the court erred in not giving a binding instruction to the jury to that effect. We cannot adopt this theory under the evidence in the case. Certainly this woman had a right to travel upon this road and it does not appear that she had any notice of its bad condition, except what she could see as she was approaching the place of the accident. It was a much traveled road and she had no notice or knowledge that it was dangerous. It is urged that it was contributory negligence for her to ride in the high spring seat. This may be so and possibly the jury ought to have so found, but a careful consideration of all the evidence leads us to a satisfactory conclusion that this question was for the jury. If she was sitting in the spring seat and holding to the back of it as she alleges and exercising proper care, sh¿ cannot be charged with contributory negligence, as a matter of law, because one of the front wheels of the wagon dropped into a rut or hole and threw her upon ' the ground. We are not satisfied that the evidence required the jury to find that she was free from contributory negligence, and, indeed, the writer is of opinion that the jury might well have found against her on this ground. It appears that the team or horse was being driven on a walk and I am not satisfied that if she had been using her eyes in observing the condition of the road, and exercising such care as she ought to have exercised, she would have been thrown out of the seat or compelled to jump therefrom. But under the evidence this question was not for the court, the law required it to be referred to the jury, and there is sufficient evidence to support the verdict to the effect that she was free from contributory negligence. Upon the question of contributory negligence and when it is for the jury, see Musselman v. Hatfield Borough, 202 Pa. 489; Templeton v. Warriorsmark Township, 200 Pa. 165 ; Baker v. Irish, 172 Pa. 528 ; Potter v. Gas Co., 183 Pa. 575 ; Ryan v. Ardis, 190 Pa. 66; Walton v. Colwyn Borough, 19 Pa. Superior Ct. 172; Polenske v. Lit Bros., Appellants, 18 Pa. Superior Ct. 474. We might cite along line of cases upon this question but it is unnecessary. We are without doubt that the court was bound, under the law and the evidence, to refer the questions of negligence of the defendant and contributory negligence of Mrs. Milliren to the jury. And failing to find any serious error in the record, we cannot do better than to close this discussion by a quotation from Sheridan v. Palmyra Township, 180 Pa. 439, where Mr. Justice Williams said (p. 444) : “ The question of negligence was for the jury and was properly submitted to them. So also was the question of contributory negligence on the part of the deceased. The case was well tried by the learned judge of the court below, and the judgment is affirmed.” No exception is taken to the instruction of the court upon the measure of damages.

The assignments of error are all dismissed and the judgments affirmed.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Klugh, Appellant, v. Pennsylvania Railroad Company.

      Appeals — Costs—Taxation of costs — Quashing appeal.

    Where the court of common pleas- makes an order directing a retaxation of costs by the prothonotary, no appeal will lie to the Superior Court until such retaxation has been made. Such an order of the common pleas is not a final decree from which an appeal will he.
    Argued Nov. 14, 1905.
    Appeal, No. 149, Oct. T., 1905, by plaintiff, from order of C. P. Lancaster Co., Dec. T., 1902, No. 1, sustaining exceptions to taxation of costs in case of William F. Klugh v. Pennsylvania Railroad Company.
    Before Rice, P. J., Beaver, Orlad y, Smith, Porter, Morrison and Henderson, JJ.
    Appeal quashed.
    Exceptions to taxation of costs.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      O. N. Montgomery, for appellant.

      H. M. North and H. M. North, Jr., for appellee.
    The appeal is premature and should be quashed: Richardson v. Cassilly, 5 Watts, 449; Raisley v. Morgan, 1 Lack. L. N. 395; McCauley’s App., 86 Pa. 187; Miskey’s App., 18 W. N. C. 100; Orbison’s App., 22 W. N. C. 116.
    December 10, 1905 :
   Pee Cueiam,

The record shows that the case was settled, defendant to pay costs ; that pursuant to rule upon the defendant the costs were taxed by the prothonotary, the counsel for both parties being present at the taxation; that the defendant appealed to the common pleas from the prothonotary’s taxation, and filed specifications of the items objected to, some of which exceptions raised questions of fact; that after hearing, the court filed the following opinion and order: “ In accordance with the views expressed in the case of Jacob Beach v. The -Pennsylvania Railroad, the costs of subpoenaing witnesses as taxed in this bill must be reduced. The amount to be allowed is fifteen cents for service of subpoena on each witness and six cents a mile circular for each mile traveled in serving the same. The appeal is sustained, and the prothonotary will retax the bill in accordance with this opinion.” The plaintiff excepted to the order, and thereupon appealed to this court before the retaxation directed by the court had been made. It will be noticed that the court, neither in its opinion nor its order, makes any reference to the exceptions raising questions of fact as to the attendance of witnesses and the like, and it is only by very uncertain inference that it may be supposed that these exceptions were intended to be overruled. We deem it important to call attention to this state of the record in view of the argument of appellant’s counsel as to the finality of the order appealed from. It .is due to the court to say that the order was made before our decision in Kottcamp v. York County, 28 Pa. Superior Ct. 96, had been reported.

We had occasion in the recent case of Hartley v.Weideman, 28 Pa. Superior Ct. 50, to consider the question of the right of appeal from a taxation of costs by the court of common pleas, and to review the authorities bearing upon the subject. ■

We there held, following many earlier decisions, that an appeal does not lie unless the record proper, or perhaps the adjudication, shows error of law. It is claimed by the appellant’s counsel that this is such a case, and that upon the authority of Hartley v. Weideman we would have jurisdiction upon an appeal taken in due season to review the court’s conclusion upon the question as to the legal fee for serving subpoenas. Even if this be so, the objection remains that the order made by the court did not terminate the proceedings; there has been no final taxation of the costs. In general, there being no statute allowing it, no appeal can be taken from an order or decree which is not a final disposition of the matter in controversy. We are all of opinion that this case is within the general rule, and that the appeal, must be quashed for the reason, if for no other, that it was prematurely taken.

The appeal is quashed at the appellant’s cost.


author: Per Curiam,

text:
    Hoak v. Lancaster County, Appellant.

      Public officers — Assessors—Compensation—Act of May 8, 1854, sec. 35, P. L. 617.
    An assessor who makes the assessment of such persons as remove into his district between the last assessment and the first day of May in each year or who may have been omitted from the last assessment, and returns their names with the amount of state and county tax payable by each to the board of school directors of his district, under the provisions of section 35 of the Act of May 8, 1854, P. L. 617, is entitled to be paid for such services out of the funds of the county.
    Argued Nov. 14, 1905.
    Appeal, No. 147, Oct. T., 1905, by defendant, from judgment of C. P. Lancaster Co., April T., 1905, No. 1, on case stated in case of Frank Hoakv. Lancaster County.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Case stated to determine liability of county for compensation of an assessor.

      Landis, P. J., filed the following opinion :
    The plaintiff in this case was elected as assessor of Paradise township on February 18, 1904, for a term of three years, and, having been duly qualified, entered upon the duties of his office. In pursuance of the Act of May 8,1854, sec. 85, P. L. 617, it devolved upon him, as assessor, “to assess such persons as may remove into ” his district “between the last assessment and the first of May in each year, or who may have been omitted from the last assessment, and to return their names, with the amount of state and county tax, payable by each, to the board of school directors, who shall thereupon assess the amount of school tax payable by such persons,” etc. In the performance of the said duty, he was actively engaged in the year 1904, for a period of eleven days. He claims that he is entitled to compensation for these services at the rate of $2.00 per day, and that the county of Lancaster owes him for the samé the sum of $22.00. The liability of the county for this amount is the question now presented.
    By the Act of April 15, 1834, sec. 89, P. L. 537, it is enacted that “ it shall be the duty of each assessor and assistant assessor to keep an account of the several days by him actually employed in the performance of his duties and to make return of the same to the commissioners of the county, verified by his oath or affirmation; and for each day necessarily so employed, he shall receive the sum of one dollar.” By the Act of May 24, 1887, P. L. 195, this section was amended so as to increase the compensation of assessors to $2.00 per day. It left the original act identically the same in all other respects. Being a mere amendment to the act of 1887, it is to be read into the act of 1834, as if its provisions had always been there: Marquette v. Berks County, 3 Pa. Superior Ct. 36; Dilley v. Luzerne County, 8 Pa. C. C. Rep. 162. These acts, although fixing a per diem pay for the assessor’s services, do not expressly declare by whom it shall be paid. The same condition exists as to the national guard Act of April 13, 1887, sec. 119, P. L. 23, where the assessor is allowed three cents for each person enrolled. There are no specific directions concerning them imposing an obligation upon the county, but it has been the long-standing custom for the county to pay-, and, before this, its liability in such cases seems never to have been seriously contested.

      A distinction, however, is attempted to be made in the services here rendered: First, because, as it is asserted, the act of assembly makes no provision for the payment of any amount by the county; and, second, because the services are rendered for the school district and not for the county.
    It must be admitted that the established rule is that he who claims payment from the county funds must be able to point to the statute that authorizes it. This rule must, however, be taken with a few exceptions, and, besides, it is applied more especially to criminal proceedings. It has been decided that some things relating to the performance of public duties are to be compensated, although no enactment makes specific provision for them. Thus, a county is required to furnish fuel to keep the prisoners warm in jail: Richardson et al. v. Clarion County, 14 Pa. 198. It is liable for expenses made necessary in the custody of records : McCalmont v. County of Allegheny, 29 Pa. 417. A coroner has authority to bind it for the professional services of a physician in post-mortem inquests : Northampton County v. Innes, 26 Pa. 156. It must pay for the expenses of boarding and lodging a jury impaneled in a capital case, and for a physician summoned by order of court to attend a juror in such a case, who becomes suddenly ill: Commis-
    sioners v. Hall, 7 Watts, 290; and also for printing the trial lists of issuable cases in a newspaper for the information of the public: Yenango County v. Durban, 3 Grant, 66. In other words, there must be express liability imposed upon the county, or such as can be reasonably implied from the nature of the transaction : Wayne County v. Waller, 90 Pa. 99. In Union Township v. Gibboney, 94 Pa. 534, Mr. Justice Texjnkby says : “ Undoubtedly-a county or township may be legally liable for a debt without the active agency of the commissioners or supervisors.”
    It is true that, in County of Lehigh v. Semmel, 124 Pa. 358, it was held that public officers who are paid for their services by fees take and hold their offices cum onere, and can claim, therefore, no compensation out of the public treasury not specified or provided for in the fee bill. The plaintiff, however, is not paid by fees, but only for his actual time while performing his duty. There is, for this reason, it seems to me, no analogy between the cases. In Corr v. Lackawanna County, 163 Pa. 57, by the Act of. June 19, 1891, P. L. 849, sec. 13, it was directed that the ballots for elections in boroughs and townships for election officers and school directors should “ be printed and distributed by the auditor's, who ” should “ certify the costs of such printing and distribution to the county commissioners for payment as part of a (the) county .election expenses.” The act was silent upon the subject of pay to the auditors for performing such services. But the Act of May 4, 1889, P. L. 86, fixed the compensation of borough and township auditors at $2.00 per day necessarily employed in the duties of their office. The Supreme Court held that they'were entitled to be paid by the county at that rate. Also, in Blinker v. Northampton County, 5 North. 275, Judge Scott, in a carefully considered opinion, decided that the county was liable, for the per diem compensation to assessors for making the registration of children between the ages of eight and thirteen and making return to the commissioners, under the compulsory school law of May 16, 1895, P. L. 72, although the act, while stating that the assessors should “ be paid a per diem compensation for their services a sum equal to the compensation paid under existing laws for assessors of election,” did not, in express words, charge the payment upon the county stock. It seems to me that the act of 1834 and its supplements contemplate the payment of the assessors for all services imposed upon them at $2.00 per day for the days actually employed, and I cannot see why it should be necessary for each subsequent act, creating additional duties, to specifically order the county to make payment to them, at the risk of their being obliged to perform such services without compensation. The whole tendency of the legislation, placing, from time to time, new duties on assessors, indicates, to my mind, an intention to pay from the county stock for all services which the legislature thus directs them to discharge, and, if the contention of the defendant is the true one, this case is wholly exceptional, and will, in fact, be the only case in which assessors are deprived of pay from the county for duties executed by them in pursuance of the law. I, therefore, have concluded that the plaintiff is entitled to be paid, at least by some one, for his services in making this extra assessment, and I also think the county is responsible for the payment.
    But it is urged that the school district and not the county receives the benefit and that it should pay the bill. Even if it is true that the assessment is made for the sole benefit of the school district, that fact does not seem to me to in any wise affect the results. The 29th section of the common school act of 1854 provides, “ That for the purpose of enabling the board of directors or controllers to assess and apportion the tax for the ensuing school year, the county commissioners shall, when required, furnish the president and secretary of the board with a correct copy of the last adjusted valuation of proper subjects and things made taxable in the same for state and county purposes ; ” and section 39, which we have fully quoted above, makes it the duty of the assessors to assess such persons as may remove into the respective districts, etc., and return their names, with the amount of state and county tax payable by each, to the board of school directors. If the county commissioners are to certify a correct copy of such adjusted valuation to the school board, it seems to me to follow that whatever expense attends such certification must be paid by the county. This the defendant apparently concedes, and I am, therefore, relieved of the necessity of elaborating the proposition. But section 39 of the act I construe to be only a completion of the general plan of assessment devolving upon the countj’-, and, through it, conveyed to school boards, to enable the directors intelligently to levy the school tax. Can it be that it is a new assessment, made for the sole benefit of the school boards; rather than supplemental to thepriginal assessment, and in the nature of a certified copy of the omitted state and county taxpayers ? The school boards neither assume nor have they imposed upon them by this act any responsibility for the costs attending it, and can the assessor hold them responsible for his labor any more than he can the county ? The county, I think, 'is at least the agent of the school district in this respect, just as it is the agent of the commonwealth in the collection of the state tax, and liable, in like manner, for the costs. If the argument be a valid one that the work is done for the school board, the county, with as good grace, can ask the school board to pay at least a pro rata part of the original assessment, and the whole of the certification. Attorney General Elkin, in In re Liability of County for Pay of Assessors, 5 Pa. Dist. Rep. 253, reached a similar conclusion in regard to the enumeration of children between the ages of eight and thirteen under the compulsory school law of May 16,1895, P. L. 72; and Attorney General Carson, in School District Assessments, 27 Pa. C. C. Rep. 671, in considering the very question now before us, arrived at the same results as are here announced.
    My colleague does not agree in this conclusion. He holds that this work is done solely for the school district and not for the county, and that the school district is liable, and not the county. His position is, that the county is liable to pay only where the service is done for the county, or when it is done in pursuance of some duty imposed upon the county, or made a county matter, and that this case does not fall within these lines; that the work of the assessor does not benefit the county, and as the school board can only levy a tax on those who are liable, to a tax for state and county purposes, it is necessary that a return of the new or omitted names be made; that the test of liability to be taxed for school purposes is liability for county tax, and that the responsibility of the county to pay ends when it furnishes the assessment list to the school district; that this is the only duty imposed upon the county, and the changes are to be made by the school district for the school district and must be paid by it. He does not, however, enter a dissent, recognizing that a judgment in the case should be entered, so that the question, if desired, may be properly reviewed. It may be that he is right, and that an appellate court may consider the case in the same light; but I am, for this reason, led to add that I cannot see that the school boards have anything to do with the assessment of state and county taxes, for they certainly ■have no power to levy them. Yet section 35 of the act of 1854 directs the assessors to “ return their names with the amount of state and county tax payable by each to the board of school directors.” It seems to me that the making of the extra assessment belongs as much to the county as the making of the original one, and that the original assessment gives information which the additional assessment completes.
    The assessor who does this work should be paid for his services. This does not seem to be disputed. The controversy, instead, however, of being between the assessor and the county, seems to have shifted so that it is really between the county and the school districts, the money, in either event, coming from the people’s purse alike, though, of course, not exactly in the same way nor with the same effect on all individual citizens of the county.
    As there is no dispute as to the services having been fairly performed by the plaintiff, I think judgment in accordance with the terms of the case stated should be entered in favor of the plaintiff for the sum of $22.00, and that is, therefore, ordered to be done.
    Judgment for plaintiff.

      Error assigned was the judgment of the court.
    IV. Franklin Sail, for appellant.
    There is no such necessary implication of the liability on the part of the county in the case in hand as there was in the exceptional cases of Commissioners v. Hall, 7 Watts, 290 ; Allegheny County v. Watt, 3 Pa. 462; Richardson v. Clarion Co., 14 Pa. 198; McCalmont v. Allegheny Co., 29 Pa. 417.

      O. W. Eaby, with him S. Edgar Sherts, for appellee.
    The act of May 24, 1887, being an amendment to the act of April 15, 1834, must be read into the original act and operate as if it had been originally written in that act: Marquette v. Berks County, 3 Pa. Superior Ct. 36.
    At common law, no money can be drawn from the public treasury except by virtue of a statute. That rule no longer controls in Pennsylvania. It is no longer necessary for a claimant to point his finger to an express legislative enactment authorizing him to draw upon a county treasury for a compensation for services rendered-; it is sufficient if he can show authority by necessary implication: Wayne County v. Waller, 90 Pa. 99.
    The county funds have been drawn upon, by necessary implication, to pay public officers for services rendered: Richardson et al. v. Clarion County, 14 Pa. 198; McCalmont v. Allegheny County, 29 Pa. 417; Northampton County v. Innes, 26 Pa. 156 ; Blinker v. Northampton County, 5 North. 275; Corr v. Lackawanna County, 163 Pa. 57 ; In re School District Assessments, 27 Pa. C. C. Rep. 671, passed upon the very question now before the court.

      December 10, 1905:
   Per Curiam,

It is admitted in the case stated, and was conceded upon the argument, that the plaintiff is entitled to recover compensation for the services rendered pursuant to section 35 of the act of 1854 at the per diem rate fixed by the Act of April 15, 1834, section 89, P. L. 537, as amended by the Act of May 24,1887, P. L. 195. But the contention of the county solicitor is, that he is not entitled to recover the compensation allowed him by law from the county. It must be conceded that the question is not free from difficulty, but it is fair to presume that when in 1854 the legislature imposed upon the assessor this new duty with reference to the assessment of taxes, they did not intend that he should render the service without compensation; and as no specific provision was made relative to that subject, it is also fair to presume that they had in view the law already in force bearing upon that subject. The omission of the legislature to say anything upon it is significant. It has been suggested that tbe general rule, that he who claims payment from the county must be able to point to the statute that expressly or by clear implication authorizes it, is applied more especially to criminal proceedings. We are not prepared to commit ourselves to the proposition that this distinction is a valid one. But apart from that suggestion we are of opinion that the court reached the right conclusion in holding that the county is liable. The opinion filed by the learned president judge states very fairly the reasons urged against the conclusion, as well as those which go to sustain it. We find that we can add nothing profitably to the discussion, and therefore the judgment is affirmed upon his opinion.


text:
    Fry v. Spatz, Appellant.

      Appeals — Certiorari—Justice of the peace.

    Where on an appeal from.a judgment of the common pleas affirming a judgment of a justice of the peace brought before the common pleas by certiorari, the record shows jurisdiction in the justice and a proper service of process upon the defendant the appeal to the Superior Court will be quashed. The judgment of the common pleas in such a case is final.

      Argued Nov. 14, 1905.
    Appeal, No. 171, Oct. T., 1905, by defendant, from judgment of C. P. Lancaster Co., March T., 1905, No. 30, affirming judgment of justice of the peace in case of John H. Fry v. I. S. Spatz & I. H. Lebo, trading as Spatz & Lebo.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Appeal quashed.
    Certiorari to justice of the peace. Before Landis, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the judgment of the court.

      B. F. Davis, for appellant.

      John K. Fry, for appellee.
    December 10, 1905:
   Per Curiam,

This is an appeal from the judgment of the common pleas affirming the judgment of a justice of the peace, which was brought before that court by certiorari. The record shows that the cause of action was within the jurisdiction conferred upon justices of the peace by the act of 1810, and th'e return of the constable shows on its face a valid service of the summons upon the defendant. By the express terms of the 22d section of the act of 1810, the judgment of the common pleas in such a case, when brought before it bjr certiorari, is final. So far as the right to appeal to this court is concerned, the case is not distinguishable from Phœnix Iron Works Company v. Mullen, 25 Pa. Superior Ct. 547, in which the authorities bearing upon the question are collected.

The appeal is quashed at the appellant’s cost.


text:
    Charles v. Smith.

      Bankrupt law — Insolvency—Act of June 4, 1901, P. L. 404 — Act of Congress of July 1, 1898 — Farmers.
    Where an assignee for creditors petitions the court to set aside a writ of execution issued prior to the assignment on the ground that the assignor is a farmer, and therefore not within the provisions of the federal bankrupt act, the court commits no error in refusing the application, where the answer denies the fact that the assignor is a farmer, and the answer is not met by countervailing proof.
    Argued Nov. 22, 1905.
    Appeal, No. 174, Oct. T., 1905, by J. R. Watkins, Assignee of Eneas F. Smith, from order of C. P. Chester Co., April T., 1905, No. 23, discharging rule to set aside execution in case of Aaron Charles v. Eneas F. Smith.
    Before Rice, P. J., Beaver, Orlady, Porter', Morrison and Henderson, JJ.
    Affirmed.
    Rule to set aside writ of fieri facias. Before Hemphill, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      W. 8. Harris, for appellant.

      8. D. Ramsey, for appellee.
    December 10, 1905 :
   Per Curiam,

This is an appeal by the defendant’s assignee for the benefit of creditors from an order discharging a rule, granted upon the assignee’s application, to show cause why a fi. fa. issued the day before the assignment, and levied upon the defendant’s real estate, should not be set aside, in accordance with the provisions of the 16th section of the act of June 4, 1901, relating to insolvency. The judgment upon which execution was issued was for a debt of $1,100, being the purchase money of certain real estate, and was entered more than a year prior to the date of assignment upon a bond and warrant to confess judgment. It is contended by the plaintiff’s counsel: first, that the case of an execution levied upon real estate only is controlled, not by the 16th section of the act o'f '1901, but by the 19th section, wherein the power to stay such execution is made discretionary; second, that as to the persons and subjects to which the federal act applies, the act of 1901 is in abeyance and not operative while the federal bankrupt act of July 1,1898 is in force. It was upon the latter ground that the learned judge of the court below based his decision. As we view the case a consideration of the other question will be unnecessary.

The assignee claims that the application of our ruling in Potts v. Smith Manufacturing Company, 25 Pa. Superior Ct. 206 to the present case was erroneous, because the clause of the bankrupt act, which declares who shall be subject to the provisions and entitled to the benefits of the act, expressly excepts persons “ engaged chiefly in farming or the tillage of the soil.” See Musser v. Brindle, 23 Pa. Superior Ct. 37, and Citizens’ National Bank of Waynesburg v. Gass, 29 Pa. Superior Ct. 125, decided by us in October last, in which Judge Hendebson, speaking for the court, said: “ It appears that the assignor here was a farmer. He was therefore within the exception of the 4th section of chapter 3 of the act of Congress of July 1, 1898. Wage earners and persons engaged chiefly in farming or the tillage of the soil cannot be' subjected to the provisions of that act without their consent, and as to such persons the Act of June 4, 1901, P. L. 404, is in force. This statute is only suspended as to persons who can be made subject to the provisions of the federal bankrupt act.” It does not necessarily follow, however, that the court erred in discharging the rule in the present case, even though the construction given by the learned judge below to the act of Congress is not in entire harmony with our later decision in the case last cited. True, the assignee alleged in his petition that the defendant, the assignor, was a farmer, but this was explicitly and unequivocally denied by the plaintiff’s answer, and no testimony was taken in support of the allegation; at least none has been brought up with the record or printed. The undisputed facts of the case set forth in the petition and answer neither give rise to, nor permit, a presumption of fact that at the time of the assignment the assignor belonged to the class of persons excepted from the provisions of the bankrupt act. As to that question the petitioner assumed the affirmative, as we think he was bound to do, and alleged in his petition the fact necessary to bring the case within the exception to the general rule established by the act of Congress, but as this allegation was denied in the answer it was incumbent on him to follow it by proof.

The order is affirmed, and appeal dismissed at the appellant’s cost.


author: Pee Ctteiam,

text:
    Riemensberger’s Estate.

      Decedents’ estates — Claim for services — Evidence.
    A claim against a decedent’s estate for services rendered on a farm will not be sustained, where the claimant does not show any contract, nor what the services were, nor when, where or under what circumstances they were rendered. In such a case declarations by the decedent to third parties that the claimant had worked for him and that he owed him money, but without stating how much he owed, is insufficient to support the claim.
    Argued Nov. 22, 1905.
    Appeal, No. 193, Oct. T., 1905, by John Stolz and Catharine Stolz, from decree of O. C. Bucks Co., Sept. T., 1905, sustaining exceptions to auditor’s report in Estate of Jacob Riemensberger, deceased.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of Jerome Fackenthall, Esq., auditor.
    Stout, P. J., filed the following opinion :
    John Stolz and Catharine Stolz, the claimants, are husband and wife. Catherine Stolz is a sister of the deceased, and her husband, John Stolz, is the administrator of his estate.
    In filing his administrator’s account, John Stolz took credit for three payments to himself and his wife for board, nursing and services, itemized as follows:
    John Stolz, services five years . . . $500 00
    John Stolz, board and nursing one year . . 300 00
    Catharine Stolz, services six years . , 600 00

      These items, together with others, were excepted to, the account was referred to an auditor, who dismissed the exceptions. The exceptions before the court are to the report of the auditor and go to the three items above named.
    The decedent was a single man and lived on his farm in Bed-minster. He kept a housekeeper. At times he had been sick and John Stolz and his wife took care of him when sick. The last time he was taken sick his housekeeper left him. Just when he was taken sick does not clearly appear, but it was some time prior to November preceding his death. During his sickness on the farm he was nursed and taken care of by Stolz and his wife. In November preceding his death he sold his farm and was removed to the home of Stolz, where he was boarded, nursed and taken care of until he died, February 7, 1908. That Stolz and his wife rendered substantial services during this last illness appears from the testimony of the witnesses. Aaron Kratz, an officer of the Easton Trolley Company, testified that Stolz was employed at the power house of the company; that he was away from his work a great deal; that they needed him; that for that reason he called on the decedent at his home in Bedminster; that he found him sick in bed and did not expect him to go oút again ; that he told the decedent that John (Stolz) was neglecting his work, that the decedent then said, “ John and his wife must take care of me and they shall be well paid for it.” That he repeated this to the superintendent of the company and they let him off. Some time after this the decedent was removed to the home of John Stolz, where he died. No board, nursing or care was furnished the decedent during his last illness by any other person. In view of the fact that John Stolz gave up his work with the trolley company and devoted himself to the care of the decedent, the claim of $300 for himself and his wife for boarding and nursing during the period named, seems to be reasonable in amount and is allowed, and the exception thereto is hereby dismissed.
    Catharine Stolz presented no claim based on services to decedent during his last illness, and the court assumes that the claim made by her husband included the services rendered by her.
    The other two items excepted to stand upon an entirely different basis. They do not seem to relate to boarding or nursing during the last illness or any other time, but rather to services rendered to the decedent while he lived on the farm in Tinicum. John Stolz does not claim his services were rendered under a contract. He admits he has no written contract for the services of his wife, but claims there was a verbal contract as to them. No testimony, however, is offered to prove the contract or its terms. Therefore, in each case, it rests upon the claimant to prove the services for which he seeks to recover. In this they make no attempt.' They do not show what the services were, when, where or undér what circumstances they were rendered. There is nothing whatever before the court to support the claims. It is true that declarations were made by the decedent in his lifetime to disinterested third parties that they had worked for him ; that he owed them a lot of money and that they never had a settlement, and that when asked by one witness whether it was as much as $800, he said, “ Yes, more ; ” that they should be paid for all they did for him; that any balance after these payments should go to Mrs. Stolz, as she was the only person he could depend on. But he did not state how much he owed them or either of them.
    Claims for personal services which might have been presented to the debtor during his lifetime are the subjects of suspicion when presented after his death, and must be proved by clear and explicit testimony: Miller’s Estate, 159 Pa. 575.
    Claims for services against a decedent’s estate must be established by evidence other than that of mere loose declarations, and must be such as to clearly and distinctly establish a contract, whether express or implied, between' the claimant and the decedent: Estate of Rachel Weaver, 182 Pa. 349.
    In many respects the facts in this case are like the facts in the Estate of Mahlon Miller, deceased, 136 Pa. 239, where Mr. Justice Gbeen, delivering the opinion of the court, says : “ The other great overshadowing obstacle in the way of recovery, is the utter absence of the proof of the services.” '
    From the testimony of John L. Kulp and Jacob S. Snyder, it is evident that when the decedent spoke to them of his indebtedness to Stolz and his wife, he referred to the indebtedness for services rendered him on the Tinicum farm. Mr. Kulp says, “ He said lie did not know how much he owed them, but that they had worked for him on his farm in Tinicum for five or six years. He sold this farm eight years ago and bought a place in Bedminster.” Again, “ From what Riemensberger said, I considered that he owed them $800, and $600 for working on the farm. From what he told me, I do not think the charges in the settlement would compensate them for all they did for him.” If this were so, and the claims were fully made out, they would be barred by the statute of limitations.
    An acknowledgment of a debt to take it out of the statute of limitations must be made to the creditor or to his agent-: McKinney v. Snyder, 78 Pa. 497.
    A promise made to a stranger who has no interest in the transaction does not bind the promising party: Spangler v. Spangler, 122 Pa. 358.
    Now, June 15, 1905, the exceptions to item of credit to John Stolz “ for boarding and nursing, $300,” is dismissed, and the exceptions as to the items of “ John Stolz, services five years, $500,” and of “ Catharine Stolz, services six years, $600,” are hereby sustained. The auditor is directed to restate the account in accordance with this opinion and distribute the balance shown by the restated account to the persons entitled thereto.

      Brrors assigned were in sustaining exceptions to auditor’s report.

      Samuel Z. Freed, for appellants,
    cited: Lillich’s Estate, 9 Pa. C. C. Rep. 25; Russell’s Estate, 7 Phila. 64 ; Gordner’s Admrs. v. Heffley, 49 Pa. 163; Smith v. Milligan, 43 Pa. 107; Schoch v. Garrett, 69 Pa. 144; Kauss v. Rohner, 172 Pa. 481.

      George Boss, of Yerbes, Boss <$• Boss, with him Henry Q. Whitloob, for appellees,
    cited : Carpenter v. Hays, 153 Pa. 432; Mueller’s Estate, 159 Pa. 590 ; Weaver’s Estate, 182 Pa. 349 ; Grossman v. Thunder, 212 Pa. 274; Miller’s Estate, 136 Pa. 239; Piersol’s Estate, 27 Pa. Superior Ct. 204; McKinney v. Snyder, 78 Pa. 497; Spangler v. Spangler, 122 Pa. 358.

      December 10, 1905:
   Pee Ctteiam,

In bis account as administrator John Stolz took credit for three payments to himself and his wife Catharine as follows: John Stolz, services five years, $500 ; John Stolz, board and nursing, $300; Catharine Stolz, services six years, $600. In an opinion filed upon exceptions to the report of the auditor appointed to pass upon exceptions to the account, to restate the account if necessary, and to make distribution of the balance remaining in the hands of the administrator, the court dismissed the exceptions to the second item above mentioned for board and nursing, sustained the exceptions to the other two items, and referred the matter back to the auditor with directions to restate the account in accordance with the opinion, and to make distribution of the balance. These directions of the court having been carried into effect, John Stolz and Catharine Stolz joined in this appeal, and have assigned for error the sustaining of the exceptions last referred to. As the result of this action of the court was to increase the sum awarded to Katharine Stolz in the final distribution, it is not apparent that joining her in the appeal was either necessary or proper. Inasmuch, however, as the appeal of John Stolz brings up the whole question as to both of these items of credit for payments alleged to have been made by him, we have deemed it unnecessary to consider the effect of joining Catharine Stolz in the appeal. Notwithstanding this objection, which was adverted to upon the argument of the case, we have considered fully the evidence in support of these two items, and concur entirely with the learned judge of the orphans’ court in his conclusion that they should not be allowed. The opinion filed by him covers the whole ground satisfactorily, and no good purpose would be served by our extending the discussion by what would be in effect but a mere repetition of the reasons which led him to’the conclusion he reached.

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


author: Smith, J.,

text:
    Angle, Appellant, v. Stroudsburg Borough.

      Boroughs — Sidewalks—Duty of owner — Notice—Equity.
    A borough has power to ordain the laying of sidewalks by the abutting owners, and upon their default, to lay the walks and collect the cost, with an addition of twenty per centum, as provided by the general borough law of April 3, 1851, sec. 2, P. L. 320. The owner, however, cannot be deemed in default, if he has not received reasonable notice to do the work.
    Where a borough ordinance fixes sixty days as the period of notice to lay sidewalks, and the ordinance applies to certain streets only, a subsequent ordinance applying to other streets of the borough, and fixing thirty days as the period of notice, is void.
    A court of equity has jurisdiction to restrain borough authorities from enforcing an ordinance requiring owners to lay sidewalks within thirty days, where it appears that such ordinance is invalid, and that no appeal to the quarter sessions could be heard until after the expiration of thirty days. In such a case the remedy at law is inadequate.
    Argued'Jan. 9, 1905.
    Appeal, No. 33, Jan. T., 1905, by defendant, from decree of C. P. Monroe Co., No. 16, Dec. T., 1903, on bill in equity in case of W. C. Angle, Cora B. Angle, Charles M. Angle and Phoebe Sellwood v. Stroudsburg Borough.
    Before Rice, P. J., Beaver, Orlady, Smith, Pobteb, Mob-bison and Henderson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Staples, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree enjoining the defendants.

      E. B. Holmes, with him John B. Williams, for appellant.—
    The notice was sufficient: Beltzhoover Borough v. Maple, 130 Pa. 335; Klingler v. Bickel, 117 Pa. 326; 1 Trickett’s Borough Law, 126.
    The court had no jurisdiction: Bortzman v. Riehl, 119 Pa. 645; Yetter v. R. R. Co., 206 Pa. 485; Hamersly v. German-town, etc., Turnpike, 8 Phila. 314; Com. v. Baxter, 35 Pa. 263; Com. v. Leech, 44 Pa. 332; Harper’s Appeal, 109 Pa. 9; App. of Borough of Verona, 108 Pa. 83; Livingston v. Wolf, 136 Pa. 519; Com. v. Beaver Borough, 171 Pa. 542; New Boston Coal & Mining Co. v. Water Co., 54 Pa. 164.

      W B. Eilenberger, with him Harvey Huffman, foi’ appellees.
    December 12,1905:
   Opinion by

Smith, J.,

This case appears complicated through the introduction of two distinct and unrelated borough ordinances, and of notices given under each, as fixing the rights and liabilities of the parties. The original bill l’ecites an ordinance enacted October 7, 1908, relating tó the sidewalks on Broad street. The answer to one of the amendments refers to an ordinance enacted May 10, 1893, as establishing sidewalks on Broad street, and a subsequent amendment of the bill recites this ordinance in full. Upon a careful examination of the pleadings and evidence, and a full consideration of the questions involved, it is obvious that the ordinance of 1893 has no more than an incidental bearing on the case, and that the powers of the borough authorities and the duty of the plaintiffs arise from the ordinance of 1903. The ordinance of 1893 provides that Broad street be “ widened, straightened and laid out to the uniform width of thirty-three feet ” between certain termini, in conformity with certain lines, courses and distances therein set forth ; besides laying out the sidewalks of the uniform width of seven feet between certain designated points, and of the uniform width of six feet between other designated points, within which are embraced the lands involved in the present controversy. The ordinance of 1903 requires the owners of all lands fronting on Broad street to lay sidewalks seven feet wide. The ordinance of 1893, however, goes no further than to fix the width of the walks ; it has neither a direction that they shall be built by the abutting owners, nor a provision for their construction by the borough authorities upon the owner’s neglect to lay them. This ordinance, therefore, is only directory, and is wholly inoperate as a measure of compulsion. The ordinance of 1903 provides that upon failure of the owner to lay the walk, as therein directed, the borough authorities shall cause it to be built, and collect from the owner the cost, with twenty per centum in addition. The action of the borough authorities in the present case, therefore, in relation to an enforcement of the requirement that the walks shall be laid by the abutting owners, must rest on the ordinance of 1903.

There can be no question, under all the authorities, that the borough had power to ordain the laying of sidewalks by the abutting owners, and upon their default to lay the walks and collect the cost, with an addition of twenty per centum, as provided by the general borough law of April 3, 1851, sec. 2 P. L. 320. Here, the walks not having been laid by the owners within the period fixed by the ordinance of 1903, the borough authorities assumed that the owners were in default, and took steps for laying the walks.

The right of the borough authorities thus to proceed depends on whether the owners were actually in default. If, when the work of laying the walks was undertaken, the authorities had done everything essential to make it the duty of the owners to lay them, the latter were in default. On the other hand, if the authorities had omitted any step necessary to cast on the owners the duty of laying the walks, there was no default on the part of the latter such as would authorize the former to assume the work. A full examination of the case leaves it clear that the only matter open to controversy is the question whether the owners had received such notice that their failure to act in the premises placed them in default.

It is the intendment of the statutes relating to boroughs that notice shall be given to every person of a proceeding to fix him for a debt. How can parties choose to contest, and have a hearing, unless they have been notified ? The right to contest is the same, whether the assessment be a personal debt or a charge on land : Watson v. Boro. of Sewickley, 91 Pa. 330. In Pittsburg v. Biggert, 23 Pa. Superior Ct. 540, this subject is exhaustively discussed, and the authorities reviewed, by the president of this court, with the conclusion, resting on both reason and authority, that the duty of the owner, in matters of municipal improvement or police, arises only “ when, and not until, the municipality by a valid ordinance has required him to make the improvement, and, in order that he may have opportunity to perform it, has notified him,” and that, “ in the absence of waiver or ground of estoppel, notice seems to be as essential to the imposition of the duty to make the improvement as the enactment of the ordinance, and where there is no duty there can be no default.”

With respect to notice, in relation to borough improvements, the Act of July 12,1897, P. L. 246, amending subdivision VIII. of section 3 of the general borough law of 1851, directs “ at least ten days’ notice, by not less than ten handbills posted on the line of the proposed improvement, of any proposition to fix or change the grade, or the laying out, widening, straightening, extending or vacating of any streets, roads, lanes or alleys, and in such notice to designate a time and place where objections thereto shall be heard.” This, however, does not apply to sidewalks, and directs only a general public notice. In the statutory provisions for personal notice to individuals, no period of notice is -fixed. The general borough law of 1851, section 3, subdivision VI., requires “ due and reasonable personal notice of all orders and regulations affecting particular individuals.” The Act of May 16, 1891, P. L. 75, section 11, provides that “ after notice ” to abutting owners, and their default, the authorities may do the necessary work and assess the cost on the owners. The Act of May 24, 1901, P. L. 297, directs personal service on the resident owner of all notices to build or repair sidewalks, with a mode of substituted service when he is a nonresident, but without specifying the period of such notice.

The statutory omission on this point is supplied, to some extent, by ordinances of the borough of Stroudsburg. An ordinance of May 7, 1890, fixes sixty days as the period of notice to set curbstones or lay sidewalks, and thirty days to reset or repair them. By its terms, however, this ordinance applies only to such streets and alleys “ as are now finally regulated ” in accordance with a plan previously adopted by the council, while the street involved in the present proceeding was regulated by the later ordinance of 1893. The ordinance of 1903, which relates only to this street, requires the work to be done by the owner within thirty days from and after the passage of the ordinance.

The general borough law of 1851, section 2, subdivision VI., directs the laying of sidewalks by the authorities upon the owner’s default “ within the time prescribed by the general regulations ; ” and the Act of May 24, 1901, P. L. 297, directs the mode of serving notices to build or repair sidewalks issued by the borough authorities “ under their regulations.” The only statutory regulation relating to the period of notice to individuals directs that it be “ due and reasonable.” The borough ordinance of 1890 fixes sixty days as the due and reasonable period of notice to lay sidewalks, and thirty days as the due and reasonable notice to repair them. Thus, from the date of this ordinance until the enactment of the ordinance of 1908, sixty days was the period of notice to lay sidewalks, to be given by the borough authorities, “ under their regulations.” True, these regulations did not, in terms, apply to the street involved in the present controversy. But regulations of this description, affecting municipal improvements and police, must be uniform in their operation, in the absence of conditions obviously demanding a different rule; and there is no suggestion of the existence of such conditions in the present case. The ordinances of 1890 and of 1903 are in pari materia and the owners of property affected by the latter cannot be subjected to more onerous regulations than those established for owners of property affected by the former, for the performance of substantially the same duties. Whether, if the ordinance of 1903 stood alone, the period which it fixes would be deemed reasonable, need not be here considered. It must be held not “ due and reasonable,” in requiring the performance of the duty imposed within a more limited period than that granted to the owners of property in another part of the borough for the performance of like duties under substantially similar conditions. In Black v. Roebuck, 17 Pa. Superior Ct. 324, a borough ordinance required the work to be done within thirty days after the date of the ordinance. The question of the reasonableness of this notice was not raised; the objection being that “ the work was not done in accordance with a general regulation prescribed,” and that notice had not been given. It did not appear, however, that any general regulations had been ordained by the borough authorities, and it did appear that notice had been given. This court held that the duty of the owner might be fixed by ordinance in a specific case, without a preceding ordinance establishing general regulations, and the claim of the borough was therefore sustained. In the case before us, the regulations established by the ordinance of 1890, though in terms applying only to a portion of the ■ borough, must be regarded as so far general in their nature and operation that owners of property in another portion cannot be denied an equal period for the performance of similar duties. Hence the provision of the ordinance of 1908, requiring the work to be done within thirty days from and after the date of the ordinance, must be held void.

The conclusion thus reached makes it unnecessary tó consider the numerous collateral questions raised in the case.

The contention that a .court of equity is without jurisdiction, and that the only remedy open to the plaintiffs is an appeal to the quarter sessions under the Act of May 22, 1888, P. L. 39, amending section 2 of the general borough law of 1851, requires little discussion. Jurisdiction in equity depends not merely on the absence of a legal remedy, but on the inadequacy of the remedy at law. There is no provision for entering an appeal to the quarter sessions except while the court is sitting, or for restraining the borough authorities from proceeding meantime. In the case before us, the owners were required to do the work within thirty days from and after the passage of the ordinance of October 7, 1908, and the next court of quarter sessions did not sit until the second Monday of December following. Thus the time fixed for complying with the ordinance expired more than a month before an appeal could be entered. In the present case, therefore, the remedy at law is wholly inadequate. It cannot be regarded as superseding the remedy in equity, which is so well established that the citation of authorities in its support is unnecessary.

Decree affirmed.


text:
    Long v. Hill, Appellant.

      Wills — Fee or life estate — Presumption—Disposal of entire estate — Disinheriting heir — Mingling of real and personal property — Gift to widow.

    It is a presumption of law that a testator intends to dispose of his entire property.
    The heir is not to be disinherited except by express words or necessary implication.
    The blending of real and personal estate in a testamentary disposition may, in the absence of any inconsistent provision, indicate an intention to give the same interest in both, and hence that when the language employed is such as to create a fee in the realty the testator intends to make the gift of the personalty absolute. But even terms expressing an absolute gift of the personalty will not create a fee in the realty, when it appears that it is the intention of the testator to give a less estate.
    Testator stating that it was his intention to dispose of his whole estate, gave and bequeathed to his wife all of his estate real, personal and mixed “to be held for her own use and benefit so long as she shall remain my widow.” He appointed his wife and son executors and gave them full power to sell real estate. There was no residuary clause in the will. Held, that the widow did not take a fee in the real estate.
    Argued March 8, 1905.
    Appeal, No. 13, March T., 1905, by defendant, from judgment of C. P. Lycoming Co., June T., 1904, No. 210, for plaintiff on case stated in suit of Anabelle Long v. Jennie Belle Hill.
    Before Rice, P. J., Beaver, Or-lad y, Smith, Porter and Henderson, JJ.
    Affirmed.
    Ejectment for land in Muncy Borough. Before Hart, P. J.
    The parties submitted a case stated and the court entered judgment for plaintiff.

      jError assigned was judgment for plaintiff.

      P. T. Ames, with him T. P. Hammond, for appellant.
    It has been uniformly held that such introductory words as are used by John Long in his will, to wit: “ As to such worldly estate as it has pleased God in his goodness to entrust me with, I dispose of the same as followsare carried down to the body of the will to show the intention to give an absolute estate ; and in the absence of a gift over to imply a fee: Schriver v. Meyer, 19 Pa. 87; Wood v. Hills, 19 Pa. 513; Shinn v. Holmes, 25 Pa. 142; McIntyre v. McIntyre, 123 Pa. 323; Mitchell v. Railway Co., 165 Pa. 645; Jeremy’s Estate, 178 Pa. 477.
    The burden of proof is upon those who claim that a less estate was intended by the testator: Kiefel v. Keppler, 173 Pa. 181; Schuldt v. Herbine, 3 Pa. Superior Ct. 65; Crosky v. Dodds, 87 Pa. 359; Shirey v. Postlethwaite, 72 Pa. 39.
    The second clause.of the will of John Long bequeathed to his beloved wife, Catharine G., all of my “ estate.” The word “ estate ” is sufficient to convey his entire interest in the land, unless restrained by particular words of expression: Turbett v. Turbett, 3 Yeates, 187; Hofius v. Hofius, 92 Pa. 305; Hackett v. Commonwealth, 102 Pa. 505 ; Lewis’s Appeal, 108 Pa. 133.
    The gift of real and personal property by the same words shows an intent to give the same interest in both; that is to say, an absolute interest, for no one ever doubted that the expression (all his real and personal property) gave an absolute interest in personal property: Morrison v. Semple, 6 Binney, 94; Drennan’s App., 118 Pa. 176 ; Campbell v. Carson, 12 S. & R. 54 ; Foster v. Stewart, 18 Pa. 23 ; Willard’s Estate, 68 Pa. 327.
    It is a general rule in this state that the gift of personal property for life, without any limitation over and without the intervention of a trustee, is an absolute gift: Merkel’s Appeal, 109 Pa. 235 ; Drennan’s Appeal, 118 Pa. 176 ; Grove’s Estate, 58 Pa. 429 ; Silknitter’s Appeal, 45 Pa. 365; Smith’s Appeal, 23 Pa. 9; Brownfield’s Estate, 8 Watts, 465.
    Catharine G. Long, the widow of the testator, John Long, being the first taker under decedent’s will was the favorite object of his bounty and. entitled to the benefit of every implication : Smith’s Appeal, 23 Pa. 9; Rewalt v. Ulrich, 23 Pa. 388; McFarland’s Appeal, 37 Pa. 300; Wilson v. McKeehan, 53 Pa. 79 ; Mitchell v. Railway Co., 165 Pa. 645 ; Barrett’s Estate, 22 Pa. Superior Ct. 74 ; Appeal of Board of Missions, 91 Pa. 507; Miller’s Appeal, 113 Pa. 459; Hofius v. Hofius, 92 Pa. 305; Reimer’s Estate, 159 Pa. 212; Steven’s Estate, 164 Pa. 209; Striewig’s Estate, 169 Pa. 61; Woodside’s Estate, 188 Pa. 45; Raudenbach’s Appeal, 87 Pa. 51; Little’s Appeal, 81 Pa. 190 ; Vance’s Estate, 209 Pa. 561.
    John Long, the decedent, having made a will, the presumption is that he did not intend to die intestate as to any part of his property.

      Emerson Collins, with him W. K. Bastían, for appellee.
    The rule that a devise for widowhood creates at most but a life estate is settled: Cooper v. Pogue, 92 Pa. 254; Long v. Paul, 127 Pa. 456 ; Redding v. Rice, 171 Pa. 301.
    An heir will not be disinherited except by express words or necessary implication: France’s Estate, 75 Pa. 220; Grim’s Appeal, 89 Pa. 333 ; Hoffner v. Wynkoop, 97 Pa. 130.

      December 12, 1905:
   Opinion by

Smith, J.,

The testator prefaced the disposition of his property with the clause, “ and as 'to such worldly estate as it has pleased God in His goodness to entrust me with, I dispose of the same as follows: ”

The gift to his wife is in the following terms : “ Second. I give and bequeath to my beloved wife, Catherine G., all my estate, real, personal and mixed, of which I shall die seized or possessed, to be held by her for her own use and benefit so long as she shall remain my widow (excepting such articles hereafter bequeathed to my two children).”

The testator’s wife and son were named as executors, with a power as to the real estate expressed in the following terms :

“ Fifth. I invest my executors (if they may deem it necessary and expedient hereafter to disjmse of any portion of my real estate) with full power and authority to convey the same in fee simple, in as full and large a manner in every respect, I could myself do if living.”

The controversy here is with respect to the estate in the land given to the testator’s widow.

It is well settled, as a presumption of law, that a testator intends to dispose of his entire estate. To do this, however, he must employ language sufficient in law to accomplish the purpose, and failure in this will defeat his intention. It is equally - well settled that the heir is not to be disinherited except by express words or necessary implication. In construing the will before us, we must have regard to both these principles.

Since a will operates, in effect, as a conveyance, at common law words of inheritance were necessary to give a fee. This has been remedied by our statute of wills, of April 8, 1883, P. L. 249 section 9, which provides that “ All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate.”

In the present case, the devising clause under consideration, while embracing in general terms all the testator’s estate, without words of inheritance or perpetuity, and also contains words of limitation from which it clearly appears that the testator intended to devise a less estate than a fee. The'estate devised to the wife is “ to be held by her for her own use and benefit so long as she shall remain my widow.” This unequivocally fixes the measure of the devise; it creates an estate for life, defeasible on the remarriage of the devisee: Redding v. Rice, 171 Pa. 301. This conclusion is aided by the discretionary power of sale subsequently given to the executors. This power is inconsistent with an intention to give the fee to the testator’s wife, since such a disposition of it would leave nothing for the power to operate on. The power of sale is an inseparable incident of ownership, and with the fee vested in a devisee there is nothing for executors to sell.

In the construction of wills executed previous to the act of 1833, which contained a devise of l^,nd without words of inheritance, it was frequently held that these were in effect supplied by the preliminary declaration that the testator disposes of his estate in the manner thereafter set forth; the introductory words being “ carried down into the corpus of the will, to show that the testator meant to dispose of his whole interest in a particular devise, unless words are used which plainly indicate an intent to limit it: ” McCullough v. Gilmore, 11 Pa. 370 ; Mitchell v. Railway Co., 165 Pa. 645; McIntyre v. McIntyre, 123 Pa. 323 ; Shinn v. Holmes, 25 Pa. 142; Wood v. Hills, 19 Pa. 513; Schriver v. Meyer, 19 Pa. 87. But this application of the prefatory words prevailed only when nothing in the will indicated an intent to limit the devise; and under the statute of wills it is no longer necessary to read into a devise an expression of intent that will perform the office of words of inheritance. Every devise now imports a fee, unless it appears from the will that a less estate was intended by the testator. But neither the general declaration of intent, nor the statutory provision, will create a fee when it is otherwise manifest, from the terms of the will, that the devise of a fee was not the testator’s intention: Cooper v. Pogue, 92 Pa. 254; Long v. Paul, 127 Pa. 456 ; Redding v. Rice, 171 Pa. 301. In its application to the present case, there is nothing in this view inconsistent with the principle that the first taker is regarded as the primary object of the testator’s bounty, and that the will is to be so construed, if possible, as to make the gift to such person effectual. Here the gift to the first person is made effectual. It is only the quantum of this gift that is in question; and we hold that it was a life estate and not a fee. The language used by the testator failed to dispose of the fee, and as to this he died intestate.

The blending of real and personal estate in a testamentary disposition may,- in the absence of any inconsistent provision, indicate an intention to give the same interest in both, and hence that when the language employed is such as to create a fee in the realty the testator intends to make the gift of the personalty absolute. But even terms expressing an absolute gift of the personalty will not create a fee in the realty, when it appears that the intention of the testator is to give a less estate. Therefore the blending in the present case is without effect in defining the estate given in the land.

Judgment affirmed.


text:
    Weiskircher, Appellant, v. Volk.

      Execution — Judgment—Fraud.
    The issuing of an execution for an amount largely in excess of what is actually due, there being no uncertainty in the mind of the plaintiff as to the amount of the indebtedness, without any other evidence of fraudulent purpose, is a fraud upon the rights of subsequent creditors.
    While the parties may agree that a judgment may remain on the record as security for other debts, this cannot be effective to the prejudice of innocent third parties.
    Fraud, while concealed, is beyond the reach of the law, yet concealment is itself indicative of fraud, and, if unexplained, establishes a presumption of fraud which its author must rebut, or bear the consequences. If a party chooses to blend a claim which the law permits with one which it pronounces fraudulent, in an attempt to enforce them by the same process, he cannot look to the court to separate them, and preserve the former while avoiding the latter. Being united by the act of the party, they must stand or fall together, as a whole. The fraud inhering in part of the collective claim must be held to taint the whole, and the claim which, standing alone, would be valid, must fall with the fraudulent one with which it is combined.
    Argued April 10, 1905.
    Appeal, No. 26, April T., 1905, by plaintiff, from order of G. P. No. 1, Allegheny Co., Sept. T., 1908, No. 88, dismissing exceptions to auditor’s report in case of Jacob Weiskircher v. Philip Volk.
    Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to report of D. A. Reed, Esq., auditor.
    Tbe facts are stated in the opinion of the Superior Court.

      Error assigned was the order dismissing exceptions to auditor’s report.

      P. M. Scott, for appellant,
    cited : Davis v. Charles, 8 Pa. 82; Miller v. McAlister, 178 Pa. 140; Page v. Simpson, 188 Pa. 393.

      James T. Buchanan, for appellee,
    cited: Smith v. Wagenseller, 21 Pa. 491; Kerr’s App., 92 Pa. 236; Peirce v. Black, 105 Pa. 342 ; Bank v. Mosser, 161 Pa. 469 ; Gates v. Johnston, 3 Pa. 52; Whiting v. Johnson, 11 S. & R. 328; McKee v. Gilchrist, 3 Watts, 230; Clark v. Douglass, 62 Pa. 408; Hogan’s App., 181 Pa. 500 ; Page v. Suspender Co., 191 Pa. 511; Orr v. Peters, 197 Pa. 606; Redfield & Rice Mfg. Co. v. Dysart, 62 Pa. 62; Miller v. McAlister, 178 Pa. 140 ; Kaine v. Weigley, 22 Pa. 179; Wilder v. Fondey, 4 Wendell (N. Y.), 100.
    December 12,1905:
   Opinion by

Smith, J.,

In his opinion sustaining the auditor’s report awarding the fund to the mortgagee, the learned judge says: “ The question in this case is whether the issuing of an execution for an amount largely in excess of what is actually due, there being no uncertainty in the mind of the plaintiff as to the amount of the indebtedness, without any other evidence of fraudulent purpose, is a fraud upon the rights of subsequent creditors.” It appears that judgment for $4,100, was entered October 2, 1901, but was fully paid August 19, 1902, when the first parol agreement to allow the judgment to stand as security for other ■debts was made. The mortgage for $2,500, was recorded August 23, 1902, and the second parol agreement was made September 16, 1902. Under the first agreement the judgment might stand as security for $792; and under the second agreement the judgment was for the further security of a loan of $200, which was made after the mortgage was recorded. The execution was for the full amount of the judgment with interest from date, without reduction or reference to tlie sums thus secured. The liquidation first appeared after the sale, and in ' denial of the mortgagee’s exceptions to the sheriff’s distribution of the proceeds.

In passing on the case, the judge considered all the material questions involved and referred to in the report, and after examination we agree with his conclusion: that the execution was fraudulent against subsequent lien creditors. The conclusion is in accord with the fundamental principle and purpose of the act of 13 Elizabeth, as shown by its preamble and enactment. The purpose of that statute is to make void all feigned judgments, executions and like instruments. The execution here is the immediate thing aimed at as feigned. On its face it demands more than four times the sum actually due, which is the only substantial basis for any judgment here, legal or equitable; contrary to the rule that “ The execution must follow the judgment and be warranted by it.” True, this rule of law has been departed from, in exceptional cases, in aid of lawful agreements, but not when third parties are affected. Here both the amount of the judgment and of the execution are admittedly excessive, neither having the support of a true record in this respect, but resting on parol evidence. To support an execution under such circumstances would be an unwarranted departure from the intent of the statute, and the settled practice in Pennsylvania. That statute is aimed at feigned executions as well as judgments. It was intended to prevent any “ hindrance of the due course and execution of law and justice.”

Generally the amount stated in the record and for which the judgment was entered is conclusive of the sum due on the execution, and when that is paid the judgment is functus officio. While the parties may agree that the judgment may remain on the record as security for other debts, this cannot be effective to the prejudice of innocent third parties. The practice tends to open an easy pathway to fraud. The principle that records of courts of law import verity will not be departed from to the extent of aiding irregular process involving material departures from the established practice.

Conceding that the plaintiff afterward disclaimed all above the amount due under the first parol agreement, and that no intention to defraud then existed, the fact remains that it was sought by the second agreement to secure an additional loan of $200 not before referred to, and to this extent at least it clearly invaded the rights of the mortgagee. While neither the liquidation nor the ultimate fact in the proceedings discloses certain pecuniary injury, it was nevertheless irregular and fraudulent to keep from the record or otherwise fail to make known to interested third parties, the disguised facts through which the plaintiff operated. From this irregular course, an implication of fraud arises, which might have been avoided by simply reducing the execution to the sum actually due. Presumably the execution was for the true demand. Nothing appeared in contradiction until after the sale, when the hitherto concealed fact was first disclosed, through a contest over the proceeds.

Fraud, while concealed, is beyond the reach of the law, yet “ concealment is itself indicative of fraud,” and, if unexplained, establishes a presumption of fraud which its author must rebut, or bear the consequences. If a party chooses to blend a claim which the law permits with one which it pronounces fraudulent, in an attempt to enforce them by the same process, he cannot look to the court to separate them, and preserve the former while avoiding the latter. Being united by the act of the party, they must stand or fall together, as a whole. The fraud inhering in part of the collective claim must be held to taint the whole, and the claim which, standing alone, would be valid, must fall with the fraudulent one with which it is combined. Further discussion of the case is unnecessary.

Judgment affirmed.


author: Porter, J.,

text:
    Hoover, Appellant, v. Beech Creek Coal & Coke Company.

      Contract — Nonperformance—Fraud—Testing coal lands — Diamond drill.

    Where an owner of coal lands desiring to ascertain the thickness of the coal strata under his lands, employs another to sink a well with a diamond drill through the coal in such a way as to furnish to the owner a core consisting of a column extending down through the formations of the earth and representing the actual stratification, and the contractor delegates the work to another who after bringing up a core of twenty-two inches of coal fraudulently adds fourteen inches so as to give the appearance of a stratum of coal three feet in thickness, the owner is justified when he discovers the fraud in notifying the contractor to stop the drill, and in refusing to pay for the work.
    In such a case the action of the agent of the contractor in fabricating a false core and thus destroying the identity of the true core taken from the stratum in question not only deprived the owner of the reliable information which he was entitled to have but it tended affirmatively to mislead him. •Such an execution of the work was in no sense a substantial performance of the contract, but a fraudulent, defective and worthless performance, the same as no performance at all.
    Argued Oct. 24, 1905.
    Appeal, No. 52, Oct. T., 1905, by plaintiffs, from judgment of C. P. Clearfield Co., Sept. T., 1908, No. 195, on verdict for defendant in case of C. C. Hoover and M. Hoover trading as C. C. Hoover & Company v. Beech Creek Coal & Coke Company.
    Before Rice, P. J., Beaver, Or-lady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit for drilling a well. Before Smith, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instruction for defendant.
    Yerdict and judgment for defendant. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendant.

      A. Q. Cole, with him F. Blake Kuntz, for appellant.
    Relief cannot be given on account of fraud or misrepresentation to a party who has, in fact, not acted on such misrepresentations: ■ DeCamp v. Hamma, 29 Ohio, 467; Weaver v. Carpenter, 42 Iowa, 343; Anderson v. Warne, 71 Illinois, 20; Hanna v. Rayburn, 84 Illinois, 533; Boyd v. Shiffer, 156 Pa. 100 ; Manhattan Brass Co. v. Reger, 168 Pa. 644; Ackman v. Jaster, 179 Pa. 463; Phipps v. Buckman, 30 Pa. 401; Devers v. Sollenberger, 25 Pa. Superior Ct. 64 ; Hoyt v. Hambury, 128 U. S. 584 (9 Sup. Ct. Repr. 176) ; Farrar v. Churchill, 135 U. S. 609 (10 Sup. Ct. Repr. 771) ; Farnsworth v. Duffner, 142 U. S. 43 (12 Sup. Ct. Repr. 164).

      Roland I). Swoope, for appellee.
    The argument on behalf of the appellants that plaintiffs in this case were entitled to recover unless defendant proved affirmatively that it had suffered damage by plaintiffs’ default, is both unsound and untenable : Hartman v. Meighan, 171 Pa. 46 ; Martin v. Schoenberger, 8 W. & S. 367; Gillespie Tool Company v. Wilson, 123 Pa. 19; Caughey v. Parker, 26 Pa. Superior Ct. 289.
    The plaintiffs having placed the entire conduct of the work of drilling in charge of White are responsible for any fraud or improper conduct of their agent. Mundorff v. Wickersham, 63 Pa. 87.
    The contract in this case was entire and the recovery must rest on performance or not be allowed at all. A defective, negligent and worthless performance is no performance whatever : Pepper v. City of Philadelphia, 114 Pa. 96.
    December 11, 1905 :
   Opinion by

Porter, J.,

The defendant company having become interested in an option to purchase certain lands, desired to obtain definite information, before the option expired, as to whether the land was underlaid with coal and, if so underlaid, the thickness and quality of the stratum. They entered into a contract with the plaintiff company to explore the land with a diamond drill, the drilling to be done at such points as the defendant company should indicate, and the work to be paid for at the rate of 12.00 per foot. The work has all been paid for except the last well, 'which was drilled upon a part of the property known as the Noel Farm, for which the defendant company refuses to pay. The plaintiffs brought this action to recover for the drilling of the last well, alleging in their statement: “ That the defendant employed the plaintiff to put down a diamond drill hole on certain lands in Cambria county, for the purpose of investigating the strata underlying the surface at the point indicated by the defendant; that it was agreed by and between the parties that the defendant should pay the sum of $2.00 per foot for whatever depth it was necessary to drill said well at the point indicated; that in pursuance of said agreement the plaintiff entered upon the premises indicated by the defendant, and put down said hole in accordance with the terms of said contract, a depth of 485 J feet, and completed the same on or about June 1, 1903.” The plaintiffs filed' an affidavit of defense, a plea of non assumpsit was entered and upon that issue the case went to trial. The learned judge of the court below gave binding instructions in favor of the defendant company, and the plaintiffs appeal.

There was no dispute, under the evidence, as to the facts material to the right of the plaintiffs to recover. They had alleged in their statement that the contract was entered into and the work done “ for the purpose of investigating the strata underlying the surface at the point indicated by the defendant,” and the evidence clearly established that such was the only object of the parties. C. C. Hoover, the active partner and manager of the plaintiff firm, testified that the purpose of the drilling was to determine the formations of the earth and ascertain the thickness of the coal measures in the property ; that the way in which this is accomplished and the strata through which you pass with a diamond drill shown is by bringing out a core of the strata; as the drill progressed downward a core of the strata passed into the core barrel and was therein brought to the surface and removed ; the core brought out by the drill used in this operation was two and one-quarter inches in diameter. Tins testimony is in absolute harmony with all the other evidence in the case and clearly establishes that the understanding of the parties was that the practical purpose, aim and design of this contract was that the work done under it should result in furnishing to the defendant company a core consisting of a column extending down through the formations of the earth and representing the actual stratification. Such a core would not only have informed the defendants as to the position and thickness of the coal stratum, but would have enabled them to obtain accurate knowledge of the quality and value of the coal.

The plaintiffs employed one White and delegated to him the execution of the work and performance of all the duties which they had assumed under the contract. When the coal stratum was passed through the drill brought up a core twenty-two inches in length; White added to this a sufficient amount of coal core taken from a hole on some other property to make a core three feet in length, thus giving it the appearance of a core actually taken from one stratum of coal three feet in thickness; and at the same time entered upon the record of the well kept by him a statement that the drill had passed through a stratum of coal three feet in thickness. He placed this fabricated core in a core box, a device intended to keep the core in the position in which it was taken from the well, and delivered it to the defendant company as the core actually taken from this hole. The drilling was continued for some days after this, when, one of White’s assistants having failed to keep the secret, the defendant company acquired knowledge of the fraud, notified plaintiffs to stop the drill and refused to pay for the work.

The burden was upon the plaintiffs to prove performance of their contract; they had not performed in any other manner than through White and were for his acts responsible. Where one of two innocent persons must suffer by the fraud or negligence of a third, whichever of the two has accredited him, ought to bear the loss: Mundorff v. Wickersham, 63 Pa. 87. The defendants had not agreed to merely have a hole drilled in their land, they had agreed to pay for what a properly and honestly operated diamond drill would take out of the hole. The action of the agent of the plaintiffs in fabricating a false core and thus destroying the identity of the true core taken from the stratum in question not only deprived the defendant company of the reliable information which it was entitled to have, but it tended affirmatively to mislead them. Such an execution of the work was in no sense a substantial performance of the contract, but a fraudulent, defective and worthless performance, the same as no performance at all: Miller v. Phillips, 31 Pa. 218; Hartman v. Meighan, 171 Pa. 46; Gillespie Tool Co. v. Wilson, 123 Pa. 19. One who agrees to pay for the information resulting from an honest investigation cannot be called upon to pay for an intentionally false and deceptive report.

The judgment is affirmed.


text:
    Welch, Appellant, v. Sheaffer.

      Equity — Equity practice — Answer—Demurrer—Dismissal of bill.

    Where on a bill in equity to restrain a continuing nuisance no demurrer or sworn answer is filed, the court cannot on a motion to continue a preliminary injunction, dismiss the bill, although it may dissolve the injunction already granted.
    Argued Oct. 26, 1905.
    Appeal, No. 169; Oct. T., T905, by plaintiff, from decree of C. P. Huntingdon Co., Sept. T., 1905, No. 120, dismissing bill in equity in case of A. S. Welch and Harry Kyper v. W. T. Sheaffer, Henry Shue and James King.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Bill in equity for an injunction. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      jError assigned was the decree dissolving the injunction and dismissing the bill.

      H. H. Waite, for appellant.

      W. H. Woods, with him J. 8. Woods, for appellee. .
    December 10, 1905:
   Oeinion by

Porter, J.,

The plaintiffs filed a bill in equity averring the ownership in fee, by Welch, of a tract of land situate in Shirley township, Huntingdon county, and the possession thereof by his tenant, Kyper; and charging that the defendants had repeatedly and persistently trespassed upon said land, by forcibly breaking the fences and driving through a lane which was the exclusive property of the plaintiffs, and that they threatened to forcibly enter said lane and use it continuously. The bill prayed for an injunction, preliminary until hearing and thereafter to be made perpetual, enjoining the defendants from further acts of trespass. The bill was accompanied by injunction affidavits, and the court below, on June 20, 1905, granted a preliminary injunction. The hearing on the motion to continue the preliminary injunction was held on June 26,1905, the witnesses being examined orally before the judge. The counsel for the defendants, at this hearing, filed what they called an “ objection in writing,” denying the jurisdiction of the court. This paper could not be treated as a demurrer for it attempted to deny the allegations of plaintiff’s bill, nor was it in any sense an answer for it was not verified by affidavit.

The learned judge of the court below heard the testimony, under which he was to determine the question whether the preliminary injunction was to be continued or dissolved; and, on July 14, 1905, entered a decree not only dissolving the preliminary injunction but dismissing the plaintiff’s bill witli costs. We have carefully considered the evidence taken at the hearing upon the motion to continue the preliminary injunction, and are not satisfied that the need of the plaintiff for equitable relief was so urgent or the threatened injury to plaintiff’s property was of such a character as to require the reversal of that part of the decree dissolving the preliminary injunction. No serious consequences can result from withholding equitable relief until the rights of the parties are determined upon final hearing. The dismissal of the bill is, however, an altogether different matter.

The learned judge overlooked the rule, that: “ All defenses, in equity cases, shall be made by answer or by demurrer. ' All issues of fact must be made by answer.” The defendants had neither answered nor demurred ; the record was not in a condition for final decree. The acts of the defendants were charged ' in the bill to be continuous and harassing, and to cause the plaintiff irreparable injury; and it was explicitly averred that the plaintiff had brought an action of trespass against the defendants, which was then pending, and it was further averred . that the defendants were insolvent and that no judgment obtained against them could be collected. Upon the face of the bill the court had jurisdiction and the plaintiff was entitled to the relief which he demanded: Walters v. McElroy, 151 Pa. 519 ; Echert v. Ferst, 30 Legal Intelligencer, 352; Rhea v. Forsyth, 37 Pa. 503; Keppel v. Lehigh Coal & Navigation Company, 200 Pa. 649; Miller v. Lynch, 149 Pa. 460 ; Manbeck v. Jones, 190 Pa. 171; Pennsylvania Railroad Co. v. Bogert, 209 Pa. 589. Had the court proceeded to a final hearing, after the case was properly at issue, the evidence might have disclosed facts which would have warranted the court in retaining the bill until the plaintiff had settled the right, in the pending action of trespass: Leinbach v.Templin, 105 Pa. 522; Leininger’sAppeal, 106 Pa. 398. These are questions which may arise hereafter, but it is very clear that the action of the court below in dismissing the bill, before an issue of any kind had been reached, was erroneous.

The decree dissolving the preliminary injunction is affirmed. The decree dismissing the plaintiff’s bill is reversed, the bill is reinstated and the record remitted for further proceedings.