text:
    The Mutual Fire Insurance Company of Chester County, v. Samuel W. Showalter, Committee of the Person and Estate of Edward S. Eaby, a Lunatic, Appellant.

      Tort — Lunacy of defendant not a defense.

    The lunacy ol a defendant is no defense to an action for the recovery of. compensatory damages for a tort in which wrongful or malicious intent is not an essential element.

      Insurance — Fire caused by wilful act of lunatic — Lunatic's liability.

    Where a lunatic sets fire to a building owned jointly by himself and sister, an insurance company, having paid the sister’s loss, has a cause of action, under the subrogation clause of its policy, against the lunatic’s estate to recover the sum so paid by it to her. In such action the insanity of the defendant cannot be set up as a defense.

      Actions — Parties—Subrogation of Insurance Go. to right of injured party.

    A person’s property, which was insured, having been set on fire the insured has a cause of action against the wrongdoer which inures to the benefit of the insurance company under a clause of subrogation ; ordinarily such suit should be brought in the name of the insured, but in view of the subrogation clause and assignment made pursuant thereto and an agreement entered of record in the ease the company may maintain the action if the insured could do so.
    Argued Nov. 19, 1896.
    Appeal, No. 112, Nov. T., 1896, by defendant, from judgment of C. P., Chester Co., Oct. T., 1895, No. 44, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for wilful burning of a barn. Before WADDELL, P. J.
    On January 18, 1895, a barn with its contents belonging to Edward S. Eaby and his sister, Mary S. Richwine, was totally destroyed by fire. The property was insured in the plaintiff company, — barn for $850 and the contents for $350. The insurance covered much less than the whole loss.
    Edward S. Eaby, who had become insane, appeared to have set the barn on fire, either wilfully or by gross negligence. The insurance had been recovered by Edward S. Eaby and his sister Mary from the insurance company. Subsequently the company procured an assignment to them for the entire claim for loss which had been suffered by'Mrs. Richwine. The company thereupon brought suit against the estate of Edward S. Eaby in the name of Mary S. Richwine. Subsequently her name as use plaintiff was stricken out and the plaintiff’s statement amended so as to cover only the amount paid her by the company, and a new assignment executed by Mrs. Richwine in accordance with the subrogation clause of the policy.
    The defendant submitted a number of points involving directions which in substance may be summarized: That if the said Edward S. Eaby at the time of the burning of the barn was in such a state of mental incapacity at the time as to be unable to foresee and guard against his conduct the verdict should be for the defendant. These points were refused by the trial judge. The court left the case to the jury on the single question as to whether Edward S. Eaby burned the barn deliberately or by accident, instructing them that if he burned it by accident the verdict should be for the defendant; if he burned it deliberately it makes no difference whether he was sane or insane.
    Verdict for plaintiff $605.68 and 6 cts. costs. Defendant moved for a new trial, which was refused in the following opinion by Waddell, P. J:
    OPINION OF COURT REFUSING NEW TRIAL.
    This was an action brought by the plaintiff to recover, by virtue of an assignment, a certain sum of money, paid by it, as a loss upon a policy of insurance, occasioned by the illegal act of Edward S. Eaby, a lunatic. We submitted to the jury the question, whether the said Edward S. Eaby burned the property insured, saying if he did, and it was done through accident or negligence, the plaintiff could not recover.
    If, however, his insanity was the only defense, this would not avail; that he was liable for the injury done by him, to another’s property, although insane, and he must answer to the extent the plaintiff was required to pay, by reason of his act.
    The jury found for the plaintiff, and we are asked to grant a new trial because of such instructions, and further, because we refused to affirm certain points presented by the defendant.
    We have carefully reconsidered our rulings, in the light of the argument and authorities presented by the counsel for the defendant, and believe they were right as held upon the trial, and must refuse the motion for a new trial.

      Errors assigned were to the refusal of defendant’s points, the substance of which are indicated in the statement of facts.

      J. Carroll Hayes and Wm. M. Hayes, for appellant.—

      Arthur T. Parke, with him Thomas W. Pierce, for appellee. —
    February 16, 1897:
   Opinion by

Rice, P. J.,

The plaintiff company issued a policy of fire insurance to the defendant, Edward S. Eaby, and his sister Mary S. Eaby, to the amount of $850 on the stone barn, and $350, on the contents thereof. For the purposes of the present discussion it is sufficiently exact to say, that on the morning of January 18, 1895, Edward, being insane at the time, after poisoning the cattle, set fire to the barn, and it was totally destroyed. His sister’s loss, as settled, adjusted and paid by the company was $569.25. Subsequently, the company obtained from her an assignment of her claim against her brother. Instead of restricting the assignment to the sum paid her, it was so drawn as to cover her entire loss, which, in fact, was much more than the sum payable to her under the policy. Upon this assignment the company brought an action of trespass in her name to its use against Edward’s committee to recover from his estate her entire loss. After the suit had been brought she filed a bill in equity,' praying for a decree that the assignment be delivered up and canceled. This proceeding resulted in an agreement between her and the parties to the present action whereby her name was dropped, and the case allowed to proceed in the name of the company, without prejudice to its rights by reason of the change of the title of the suit. She thereupon made a new assignment, in accordance with the subrogation clause of the policy, and the plaintiff’s statement was amended so as to cover only the amount the company had paid her. The defendant pleaded not guilty.

The policy contains the following clause: “ If this company shall claim that the fire was caused by the act or neglect of any person or corporation private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the assured for the loss resulting therefrom, and such right shall be assigned to this company by the assured on receiving such payment.” From the very nature of the contract of fire insurance as a contract of indemnity, the insurer, upon paying to the assured the amount of a loss, total or partial, of the property insured, becomes without any formal assignment, -or any express stipulation to that effect in the policy subrogated in a corresponding amount to the assured’s right of action against the person responsible for the loss: Liverpool & G. W. Steam Co. v. Phœnix Ins. Co., 129 U. S. 897; L. ed. Bk. 32 p. 788. In the absence of such assignment and express stipulation and legislative enactment, subrogation is administered upon equitable principles, and may be refused if it comes in conflict with a superior equity. As the rights of the insurer, in such case, are worked out through the cause of action of the insured, the suit against the wrong doer should, ordinarily, be brought in the name of the insured. But whether the right of the insurance company in the present case be regarded as legal or equitable makes little difference, in view of the subrogation clause above quoted, the assignment made pursuant thereto and the agreement entered of record in the case. The companjr may maintain the action if Mary S. Eaby (now Richwine) could.

The single question raised by the assignments of error is as to the liability of an insane person for an act, which, in a sane person, would be an actionable wrong — a trespass. The counsel for the defendant, claiming that this is an open and undecided question in Pennsylvania, argue with great learning and ability that the case comes within the general principle that in the absence of negligence or fraud, the injury is damnum absque injuria and the sufferer must bear his own loss. They say, quoting from Judge Holmes on the common law: “The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of the misfortune. But, relatively to a human being, anything is accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid: ” Holmes on Common Law, 94. The same learned jurist admits later (p. 109) that insanity is a more difficult matter to deal with, and that no general rule can be laid down upon it. He claims however that if insanity of a pronounced type exists, manifestly incapacitating the person from complying with the rule which he has broken, “ good sense would require it to be admitted as an excuse.” It is to be observed that Judge Holmes does not assert that such is the law; and while there is plausibility in the defendant’s contention, the authorities, upon rational grounds, uniformly hold that,, except, perhaps, in those torts where wrongful or malicious intent is an essential element, as for example, fraud, slander and malicious prosecution, insanity is no defense. Mr. Bishop, while seeming to think that it ought to be a defense, nevertheless concedes : “ In those cases wherein the intent is immaterial, there is'abundant authority for saying that insanity constitutes no defense : ” Bishop’s Non-Contract Law, sec. 507.

There is, we believe, no reported case in Pennsylvania in which the question as to the liability of an insane person for his torts has been distinctly raised, and decided by our Supreme Court. But in at least two cases it has been assumed to be a well settled principle of law. In Beales v. See, 10 Pa. 56, it Avas held that an executed contract by a merchant for the purchase of goods cannot be avoided by proof of insanity at the time of the purchase, unless there has been fraud committed on him by the vendor or he has knowledge of his condition. Chief Justice Gibson said: Should he have made a wild and unthrifty purchase from a stranger unapprised of his infirmity, who is to bear the loss that must be incurred by one of the parties to it ? Not the vendor who did nothing that any other man would not have done. As an insane man is civilly liable for his torts, he is liable to bear the consequences of his infirmity as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons it shall be borne by him Avho occasioned it.” In Lancaster Co. Nat’l Bank v. Moore, 78 Pa. 407, Mr. Justice Paxson ' quoted this language with approval and asserted that the general proposition is Airnll settled that persons not sui juris and who have no general capacity to contract debts, are nevertheless liable for their torts and may bind themselves for necessaries. “Such rule rests upon principles of sound public policy.” Speaking of an expression in the opinion in La Rue v. Gilkyson, 4 Pa. 375, upon a point not before the court he said, “But the mere dictum of so eminent a jurist as Chief Justice Gibson is entitled to respect.” In "Wirebach’s Exr. v. First Nat’l Bank, 97 Pa. 543, Mr. Justice Trunkey said: “An insane person is incapable of committing a crime, or making a contract, yet it is common to speak of his torts and his contracts, and on many of them he is liable in a civil action.”

In Morain v. Devlin, 132 Mass. 87, it was held that a lunatic was liable for an injury caused by the defective condition of a place not in the exclusive control and occupancy of a tenant upon the real estate of which he was the owner and of which his guardian had the care and management.

In Morse v. Crawford, 17 Vt. 499, it was held that an insane person who destroyed articles bailed was liable therefor, although at the time of the bailment the bailor knew of his insanity. “ It is a common principle,” said the court, “that a lunatic is civilly liable for any tort he may commit, although he is not punishable criminally.”

“ The liability to answer in damages for trespass does not depend upon the mind or capacity of the actors ; for idiots and lunatics, as we see by the case reported in Hobart,” (Weaver v. Ward,) “ are responsible in the action of trespass for injuries inflicted by them:” Bullock v. Babcock, 3 Wend. 391.

So in Behrens v. McKenzie, 23 Iowa, 333, where the general liability of lunatics for their torts and on their contracts was discussed, one of the conclusions reached was, that such persons are generally held liable civilly for trespasses and torts, as the actionable quality of such acts does not depend upon intention.

It was held in Cross v. Kent, 32 Md. 581, that in an action for setting fire to and burning a barn neither evidence of lunacy nor that the burning was the result of an accident was admissible in mitigation of the compensatory damages. This was going much farther than the learned trial judge did in the present case, for he instructed the jury that if the defendant accidentally set fire to the building there could be no recovery.

Mclntire v. Sholty, 121 Ill. 660 was an action, by the personal representatives of a person wrongfully killed, against the estate of the person killing. The court, adopting the reasoning of Judge Cooley upon the subject, held that the question of liability is one of public policy, and declared that the rule, that a lunatic, though not punishable criminally, is liable in a civil action for his torts, is too well settled to be disturbed.

In Ward v. Conatsar, 4 Baxt. (Tenn.) 64, an action was maintained against a lunatic defendant and his guardian to recover compensatory damages for the shooting of the plaintiff whereby he was seriously and permanently injured. To the same effect as the last two cases is Jewell v. Colby, 66 N. H. 399.

The case of Williams v. Hays, 143 N. Y. 442 is so closely analogous to the present that we feel warranted in reviewing it at some length. Parsons and Loud insured their one sixteenth interest in the brig, in the Phoenix Ins. Co. The defendant was a joint owner with them, and took the brig to sail on shares. The brig was lost through his negligence or misconduct, and the company paid Parsons and Loud their loss. It thus became •subrogated to their claim, if any, against the defendant, and assigned that claim to the plaintiff. He, standing in the shoes of Parsons and Loud, brought an action against the defendant to recover damages for tlie loss of the vessel, alleging that it was due to his carelessness and misconduct. The defense was that he was not responsible for the loss, because he was temporarily insane. The court of appeals, in an elaborate opinion by Judge Earl, in which the authorities were all collected, held, that the action might be maintained, and that as to the liability of an insane person there is no substantial difference between a negligent tort and a trespass. “ If he caused the destruction of the vessel by what in sane persons would be wilful or negligent conduct, the law holds him responsible. The misfortune must fall on him and not upon -the owners of the vessel.” It seems that the defendant Hays had also brought suit and recovered the insurance on his interest: Hays v. Phenix Ins. Co., 127 N. Y. 656. Concerning this feature of the case, Judge Earl said: “ It is an unquestioned rule of law that an. insurance company cannot successfully defend an action upon its policy to recover for a loss by showing that the insured destroyed the property while insane, or that its destruction was caused by the carelessness of his agents and servants. The liability of the insured to respond in damages for the loss or destruction of the property of another owner stands upon different principles,” citing, Liverpool S. Co. v. Phenix Ins. Co., 129 U. S. 438; Karow v. Continental Ins. Co., 57 Wis. 56; Hays v. Ins. Co., supra.

We have not undertaken to cite all-the cases bearing upon the question, but, after a somewhat thorough research, we have been able to find no case in which it has been held that the lunacy of the defendant is a defense to an action for the recovery of compensatory damages for a tort in which wrongful or malicious intent is not an essential element.

It has been asserted that the rule is, at least in this country, a universal one, that no one can be made liable for injuries to the person or property of another, without some fault or negligence on his part. It is undoubtedly true that the tendency of modern decisions is in that direction, but it is unsafe to say that the rule has no exceptions nor limitations. There are many injuries to which, upon sound principles of public policy, the rule is applicable, that where a loss must be borne by one of two innocent persons it shall be borne by him who occasioned it. Belonging to these classes is the injury to the person or property of another by an insane person, by an act which in a sane person would be a trespass. To apply the last mentioned rule to such a case does not, in the slightest degree, imply punishment of a person who is incapable of wrongful intent; it simply gives compensation to him who has been damaged; it places the loss where the burden more justly belongs. “ Let it be supposed,” says Judge Cooley, “ that one of this unfortunate class meets a traveler on the highway, and, by force, or by terror of his threats takes from him his horse and vehicle, and abuses or destroys them. In a sane person this may have been highway robbery; but the lunatic is incapable of criminal intent, and therefore commits no crime. Neither is the case one in which a contract to pay for the property, nor for the injury can be implied, for the law can imply no contract relations where the capacity to enter into them is withheld. But a plain wrong has been done, because the traveler has been forcibly deprived of his property; and if the person at whose hands the wrong has been suffered is possessed of an estate from which compensation can be made, no reason appears why this estate should not be burdened to make it. In other words, it seems but just that the consequences of the unfortunate occurrence should fall upon the estate of tlie person committing the injury, rather than upon that of the person who has suffered from it. . . . Undoubtedly there is some appearance of hardship— even of injustice — in compelling one to respond for that which, for want of the control of reason, he was unable to avoid; that it is imposing’ upon a person already visited with the inexpressible calamity of mental obscurity an obligation to observe the' same care and precaution respecting the rights of others that the law demands of one in the full possession of his faculties. But the question of liability in these cases, as well as in others, is a question of policy; and it is to be disposed of as would be the question whether the incompetent person should be supported at' the expense of the public, or of his neighbors, or at the expense of his own estate. If his mental condition makes him dependent, and at the same time prompts him to commit injuries, there seems to be no greater reason for imposing upon the neighbors or the public one set of these consequences rather than the other; no more propriety or justice in making others bear the losses resulting from his unreasoning fury when it is spent upon them or their property, than there would be in calling upon them to pay the expense of his confinement in an asylum when his estate is ample for the purpose.” He then proceeds to suggest the considerations of public policy in favor of the rule as we have stated it. They seem to us conclusive of the question. But to quote his remarks at greater length would extend this opinion beyond reasonable limits; we therefore content ourselves with a bare reference to his further discussion of the question: Cooley on Torts, 98, etc. See also 11 Am. & Eng. Ency. of Law, 144; 7 Wait’s Actions and Defenses, 157; 1 Ch. PL, 76; Krom v. Schoonmaker, 3 Barb. 647; Dickinson v. Barber, 9 Mass. 224; McGee v. Willing, 31 Leg. Int. 37 ; Shephard v. Wood, 1 Lanc. Law Review, 175.

Under the testimony there were but two theories as to the cause of the burning of'the barn; one was that it was accidentally caused by the explosion of the defendant’s lantern; the other was that he set fire to it with matches. The court instructed the jury that if it was accidental there could be no recovery, but that if the defendant fired the barn intending to fire it, the fact that he was insane at the time would be ho defense. In thus distinguishing between a pure accident and an act which in a sane person would have been intentional and deliberate the court committed no error. These conclusions render separate discussion of the assignments of error unnecessary. They are all overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Rice, P. J.,

license: Public Domain

text:
    Frank P. Lauer v. Joseph Yetzer, Appellant.

      Promissory note — Novation—Burden of proof.

    Where a creditor accepts the note of a third person in payment of his debt a novation takes place, but the mere acceptance of such note, however, does not constitute a novation without some evidence that it was taken in satisfaction oí the debt. The burden of proof is upon the party asserting the novation.

      Practice, O. P. — Discretion of court as to evidence after case is closed.

    To admit or exclude additional evidence after the evidence is formally closed, is a matter within the discretion of the trial court; and the appellate court will not reverse the decision unless there has been a very plain abuse of discretion.

      Practice, G. P. — Charge of court — Failure to rehearse and comment on evidence.

    Where a case turns upon a single question of fact, which is, whether one of the parties made a certain express promise, and the trial judge accurately and plainly states the question, and fairly submits it to the jury, he cannot ordinarily be convicted of error because he did not rehearse the evidence on the one side and the other, and comment on the bearing of the particular corroborating circumstances where he was not requested to do so.
    Argued Nov. 14, 1896.
    Appeal, No. 154, Nov. T., 1896, by defendant,- from judgment of C. P. Berks Co., Aug. T., 1894, No. 121, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Ermentrout, P. J.
    The facts sufficiently appear from tbe charge of the court, which is as follows:
    Prank P. Lauer, the plaintiff, brings suit upon a promissory note dated November 21, 1898, signed by Albert B. Kuhns and Levi Kuhns, on which 'Joseph Yetzer became accommodation indorser. There is no dispute about the manner in which the note was given. It is admitted that Kuhns was in the saloon business, and that this note was given for the purchase of the stock and fixtures of the saloon No. 1040 Buttonwood street, this city. Having given this note to Mr. Kershner, the agent of Mr. Lauer, Mr. Kuhns obtained possession' of the stock and fixtures. If the case stood there, Mr. Lauer would be entitled to a verdict for $550 with interest from January 24,1894, when the note became due.
    The defendant being called upon makes defense, and what is that defense ? He claims that it was desirable to pass this saloon to one Joseph Steigerwald, and that his assent to the transfer of the license was necessary; that George Kershner came to the house, that he got talking with him about this matter, and that Kershner said that if the license and the stock were transferred, Yetzer need not pay this note. Counsel for defendant say and ask us to say to you that if you believe the evidence of Mr. and Mrs. Kuhns, that the consideration for the transfer of license and the signing the Steigerwalt agreement was the release of Yetzer, the verdict must be for the defendant. We say so. [So that the whole issue presented for your consideration is this: Was there a promise on the part of Kershner made to Kuhns that if the license and stock were transferred, this note need not he paid ? If there was, then the verdict will be for the defendant. If there was not any such promise, then the verdict will be for the plaintiff. That is the whole case.] [1]
    In this case, as in most cases brought to the consideration of the jury, there is considerable discrepancy in the testimony. It is the duty of the jury to try and reconcile all the testimony in the case. If they cannot do that, then they must make up their minds which witnesses are to be believed. [Here is a note. What is the defense ? If the jury believe from the evidence in this case that the license and the stock and fixtures were transferred upon the promise made by Kershner that this note need not be paid, then you will return a verdict for the defendant. For Kershner is Lauer, and Lauer is bound by whatever Kershner agreed to promise. Whether Lauer was present or not or knew anything about the transaction himself, Kershner stands in the place of Lauer, and Lauer is bound by whatever he said.
    This promise is denied by Kershner. If no such promise was given, then the plaintiff is entitled to recover. If the promise was made as eontended'for, then verdict for defendant.] [2]

      Errors assigned were (1, 2) portions of the judge’s charge, reciting same; (B) in rejecting the following testimony offered by the defendant:
    Albert B. Kuhns sworn: “ Q. You have said Mr. George W. Kershner desired you to sell out to Mr. Joseph Steigerwald? A. Yes, sir; they did not ask me to sell, they just came and wanted me to transfer the license to him, and if I would do that I could remove my things. Q. That is, your household goods ? A. Yes, sir. Q. Did you prior to that time have a purchaser for this saloon at more than the amount of the note, who was rejected by Mr. Kershner ? ”
    Mr. Rourke: Objected to as irrelevant and immaterial.
    The Court: Objection sustained for the present. Exception for the defendant. (4) In rejecting testimony offered by the defendant in rebuttal to testimony given in rebuttal by plaintiff, such offer having been made after the case had been closed; (5) in refusing binding instructions for defendant.

      Wm. K. Stevens, of Stevens & Stevens, for appellant.

      Rourke & Heinly, for appellee.
    February 16, 1897:
   Opinion by

Rice, P. J.,

This was an action of assumpsit on a negotiable promissory note for $550, given by one Albert Kuhns, with the defendant, Joseph Yetzer, as indorser, to the plaintiff, for the stock and fixtures of a saloon.

The defendant claimed that subsequently, at the request of plaintiff’s agent, Kuhns transferred the title to the stock and fixtures, and consented to the transfer of the saloon license to one Joseph Steigerwald, upon the sole consideration of the plaintiff’s promise made to Kuhns, to release the defendant from any further liability on the note in suit. Although the defendant was not a party to the transaction, it is not disputed that the promise inured to his benefit, if it was made, and was a complete defense to the action.

The plaintiff, on the other hand, claimed that, some time after the note was given, he again became the owner of the fixtures by virtue of a sale on a landlord’s warrant against Kuhns, and that Kuhns consented to the transfer of the license upon consideration that he and his wife should be permitted to remove their other property from the premises. The plaintiff denied that there was any promise to release the defendant, or that that entered in any way into the consideration for the transfer to Steigerwald.

Here then was a plain and simple issue of fact, if there ever was one. Both sides introduced evidence, of direct and of circumstantial nature, to support their respective contentions, and the learned trial judge, without reviewing, or commenting on the same, submitted the question to the jury in language which could not have been misunderstood. He said: “ So that the whole issue presented for your consideration is this: Was there a promise on the part of Kershner ” (plaintiff’s agent) “made to Kuhns that if the license and stock were transferred, this note need not be paid ? If there was, then the verdict will be for the defendant. If there was not any such promise, then the verdict will be for the plaintiff. That is the whole case.” Where a case turns-upon a single question of fact, which is, whether one of the parties made a certain express promise, and the trial judge accurately and plainly states the question, and fairly submits it to the jury, he cannot, ordinarily, be convicted of error because he did not rehearse the evidence on the one side and on the other, and comment on the bearing of particular corroborating circumstances, where he was not requested to do so. Doubtless there are exceptions to this general rule, and there are cases where a mere statement of the issue would be an inadequate presentation of the case. But this was not such a case. In a case like the present, and submitted'as this was, the court will not be reversed for what was left unsaid, if what was said was not misleading.

But it is urged that the court erred in not instructing the jury as to the legal effect of the acceptance by the plaintiff of a note for $400 from Steigerwald. But what was the legal effect? If the plaintiff promised to release the defendant from liability in consideration of the transfer to Steigerwald a complete defense was made out, and the fact of the plaintiff’s taking a note from the latter added nothing to its strength. If, however, there was no such promise, and the transfer to Steigerwald was, as between him and Kuhns, without consideration, still we cannot say that the mere fact that the plaintiff took a note from Steigerwald would, of itself and without more, prove payment in whole or in part of the defendant’s obligation. The evidence both as to the consideration' and as to the time when this note was taken is vague and unsatisfactory. So far as the evidence shows, it was a transaction wholly between the plaintiff and Steigerwald. There is no evidence that either the defendant or Kuhns knew anything regarding it, or that they stipulated that Steigerwald should assume and pay their debt; or that the plaintiff accepted the note as payment thereof. When a creditor accepts the note of a third person in payment of his debt, a novation takes place. The liability of the debtor is discharged, and that of the maker of the note substituted for it. The mere acceptance of such note, however, does not constitute a novation without some evidence that it was taken in satisfaction of the debt: 16 Am. & Eng. Ency. of Law, 880; Weakley v. Bell, 9 W. 273; League v. Waring, 85 Pa. 244; Hunter v. Moul, 98 Pa. 13; Holmes v. Briggs, 131 Pa. 233; Shepperd v. Busch, 154 Pa. 149; McCartney v. Kipp, 171 Pa. 644. The burden of proof was on the defendant, and he presented no such evidence as would have justified the court in declaring as matter of law, or the jury in finding as matter of fact, that the mere taking of the $400 note was a payment in whole or in part of the note in suit. The case turned on the decision of the single question of fact, which, as we have shown, the court fairly submitted to the jury.

We see no error in the rejection of the evidence specified in the third assignment of error. Its admission would have opened up a collateral issue as to the plaintiff’s reasons for objecting to the admission of the proposed purchaser as his tenant. He may have had perfectly good reasons for so doing. And whether his reasons were good or bad, he had a legal right to object to the change of tenants. The argument that it was improbable that Kuhns would consent to the transfer of property of value to Steigerwald without receiving anything for it and without being released from the note in controversy was a proper one to be addressed to the jury, but the proposed evidence would have added nothing to its force. If the offer was to show that the plaintiff had prevented the sale it was irrelevant. If its purpose was to show that the property was worth as much or more than the face of the note, there was a more direct way of proving the fact. Besides that, there was no dispute as to the value of the property.

The stenographer’s notes of the trial show that the testimony was closed on September 25, and that the court then adjourned. On the following day the defendant offered to rebut, by his own testimony, certain testimony introduced by the plaintiff as to declarations made by him. No reason was given for not introducing the testimony at the proper time, and the plaintiff gave very plausible reasons for not reopening the case. How far they were sustained in the discussion before the court below we have no means of knowing. It is sufficient to say, that to admit or exclude additional evidence after the evidence is formally closed, is a matter within the discretion of the trial court; and it has sometimes been said that its decision is not reviewable. It is perhaps more accurate to say that the appellate court will not reverse the decision unless there has been a very plain abuse of discretion: Hake v. Fink, 9 W. 336; Duncan v. McCullough, 4 S. & R. 480 ; Frederick v. Gray, 10 S. & R. 182; Barnhard v. Petit, 22 Pa. 135.

Judgment affirmed.


text:
    In re Road in Jefferson Township.

      'Road law — Review—Appellate-jurisdiction—Rules of court.

    Where an appeal is taken on any order or proceeding in relation to a public road, the appellate courts will not suffer the merits of the case to be entered into, nor reverse the order of the court of quarter sessions unless for some error or irregularity apparent on the record, or because 'the court below exceeded their jurisdiction or erred in their judgment in •point of law.
    Rule XIII. of the Superior Court is a substantial transcript of the rule of the Supreme Court upon the subject, which is a declaration of the law as established by numerous decisions.

      Practice, Superior Court — Defective assignment of error.

    An assignment of error is defective where matters of fact are alleged which are not brought upon the record and where the evidence in support thereof and also the exceptions are not printed.
    Argued Jan. 12 and 13, 1897.
    Appeal, No. 31, Jan. T., 1897, by A. F. Emery, from order of Q. S. Lackawanna Co., June Sessions, 1895, No. 5, dismissing exceptions to petition, and motion to quash proceedings.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Archbald, P. J.
    Viewers were appointed May 3,1895 and May 25, exceptions to petition and appointment of the viewers were filed and motion to quash proceedings refused. The report of the viewers was filed and exceptions thereto were dismissed.
    The exceptions filed to the report of viewers were overruled by the final judgment of the court in an opinion by Arch-bald, P. J., set out below, the tenth exception being as follows :

      Tenth. One or more of the petitioners, or other parties directly and personally interested in having said road changed, conveyed, or had others convey the viewers from the depot to the ground to be viewed, went with said viewers over said ground, pointed out to them where they wanted said road changed, assisted them in their work, took part in their deliberations, furnished them with entertainment,.and in various other ways' unlawfully influenced said viewers, in making said changes in said road.
    1. Bates and Dunning, two of the present viewers, acted as reviewers when this road was originally laid out, but we fail to see how that now disqualifies them. The report which they then made was . confirmed without exceptions, and an order to open issued. The present proceedings to vacate and relay are in part based upon an alleged mistake in the carrying out of their work, and they certainly are not inappropriate parties to consider and dispose of that question. Had the present objection come from those who allege and seek to correct this it might have some substance, for in such case the viewers would seem to be not unnaturally prejudiced in favor of their former work. But coming from the other side, it is quite different. We question also whether an exception of this sort, which amounts to a challenge, ought not to be taken in limine before the parties have taken the chance of a report in their favor. But without passing on this point, the exception is overruled.
    2 and 3. We do not consider that the petition is open to the complaint that it does not sufficiently set out the condition and circumstances, which call for a vacation of the road, or the part of it which may be relaid. It states that the road as originally intended to be laid out was to cross the line of lands of Edward Moore and Alfred T. Emery at Paupack creek, but that owing to a mistake in the survey of the viewers and a reading of the compass it was reported to cross the creek several rods south of the said dividing line; and that by reason of this mistake the road is laid out upon low ground more expensive to build upon and less convenient to the public than originally intended, and also that by mistake the road has not been opened as laid out and reported, but is only partly so opened, the balance being through private lands and the road rendered practically useless to the public thereby. This is followed'by a prayer for the relaying of the road, or so much of it as may be found useless, inconvenient and burdensome, describing it by its termini the same as in the original petition. We have recognized and enforced in this court the necessity for a strict compliance with the statute which regulates the vacation of roads: Road in Blakely, Scott and Dickson, 1 Lack. Jur. 321; but we think that this sufficiently meets its requirements. The whole road as laid out and opened is attacked on the grounds referred to, so that the petition is not open to the objection that the part sought to be vacated is not specifically designated, and the prayer to relay or supply naturally follows. All things considered, the petition is sufficient to give jurisdiction, and we cannot sustain the objections to it.
    4. The fourth objection is to be disposed of in the same manner. It catches at what is said in the Blakely, Scott and Dickson road, supra, on the case there presented, but misapplies it to the different case found here. That part of the present petition which seeks for a relay of the road is expressly conditioned upon this becoming necessary by a vacation in whole or in part of the present road. The propriety of joining a petition to relay or supply with a petition to vacate is recognized in the case just referred to, and that is simply what we have here. It is useless to urge, that under the petition as it stands the viewers could lay out a parallel road.
    5. Viewers, according to the statute, must report at the next term after their appointment and a report filed after the regular term is closed, and when the court is holding an adjourned session cannot stand. But we know of nothing in the law which requires that the order of appointment must be made within the limits of a regular term. The court whenever it is sitting is competent so far as we can see to make such an order.
    6 and 7. Neither can we see anything in the sixth and seventh exceptions. There is nothing in the law to prevent the vacating and relaying of the whole of a road between the original termini if it is found necessary or advisable to do so, and the viewers in doing it may adopt at various points the bed of the old road if they consider it best: Westchester Road, 2 Rawle, 421 ; Road in Franklin, 7 Pa. C. C. Rep. 273. This is peculiarly the case where the proceedings as in the present instance are to vacate and relay: Hess’ Mill Road, 21 Pa. 217 ; Southampton Road, 21 Pa. 356. And if as here alleged, there has been a mistake either in the reporting or the opening of the road' as originally decided upon by the viewers this is not only the proper, but as it would seem to us, the only means of rectifying it. That the road in many places varies but a few feet from' the road as opened does not affect the question, if it is now at last laid where it ought to be. The road which it supplies is vacated, and a change of it as slight as this cannot entail much expense upon the taxpayers.
    8. The most important change in the road as now reported is the relocation of the bridge over the Paupack. The depositions as well as the photographs in evidence show that this-bridge has never been what it ought to be, and it is a wonder that it has existed as long as it has without detriment to the township by accident and injury to those attempting to travel over it. The present approaches as we understand it do not lead directly up to it so as to make it in continuous line with the course of the road at that point, but it has been thrown across the stream at right angles to the current, and thus at an' angle with the road itself. If these proceedings did no more than effect the reconstruction of this bridge they would be wholly justified. The expense of the change is little to be compared with the safety and advantage of it.
    9. The necessity for the several changes made in the road • was for the viewers, and we see no occasion to revise their judgment. As we have already said, upon one, the bridge, we are' fully satisfied; the rest we de not propose to discuss. In this connection we can but say that the attempt to force this upon us, by the mass of testimony taken to support this exception, has little regard for the work that the judges of this court are called upon to dispose of. The large part of it is irrelevant, ■ and much of it mere repetition, matters to be considered hereafter when allowance is asked for the cost of taking it.
    10. The charges of influence contained in the .tenth exception are not sustained. The viewers took their lunch with them as we understand it, and merely ate it at Mr. Moore’s. That ■ they may have been conveyed back and forth from the railroad station at the expense of some of the petitioners is of no account. • If a man cannot be accommodated in that way without having' it influence him, he is not fit to be a viewer, and we do not propose to carry the rule against entertainment that far. We have-several times, in fact, declined to do so: Road in Carbondale, No. June Session, 1893 ; Mulholland v. Rush Brook Water Co., No. 177, March Session, 1894. Besides that, this was a review, and the expense of it, of which this would be a part, is supposed to fall on the petitioners: Davis v. Lackawanna, 3 C. P. Rep. 194, and they have a right'to meet it in advance if they choose: Road in Plymouth, 5 Rawle, 150. So as to parties interested having made suggestions as to where they thought the road ought to go, there is nothing to prevent this ; in fact one purpose of a view is to give all concerned a chance-to be present and be heard, and it is the duty of the viewers, within reasonable limits to give respectful audience to them. There is nothing more than this in the present instance that we can discover.
    11. That the exceptant, Mr. Emery, will be seriously injured by the change in the road we fail to see. His approach to the creek will, no doubt, in part, be cut off, being now by the relocation to be shared with Mr. Moore, his neighbor. That this has been the subject of contention between the two and the source of this long litigation we are well aware, but we do not propose to be drawn into this personal controversy. The viewers in the present site of the bridge have evidently regarded it as effecting an equitable division of the water privileges between them, and as a matter of our own independent judgment we are not persuaded otherwise. Each will now as we understand it have a share, where before it was all possessed by one. If this does not fully meet the case from Mr. Emery’s side, he has his claim for the damages experienced.
    12. The exception to the oath taken by the viewers is hypercritical. The complaint is that they were sworn to perform their duties “ with impartiality ” instead of “ impartially.” This-is a hairsplitting distinction which needs no comment.
    Other question seem to be discussed in the brief of counsel, but as they are not raised by the exceptions we do not stop to consider them. The exceptions are overruled and the report of the viewers is confirmed finally.

      Errors assigned were (1-14) in not sustaining the exceptions to the petition and to the report of viewers which exceptions are sufficiently indicated in the opinion of the court below, with the exception of the 12th, which was to the tenth exception, reciting same, as set out above.

      C. B. Gardner, for appellant.

      John F. Scragg, for appellee.
    February 16, 1897:
   Opinion by

Rice, P. J.,

Where an appeal is taken from any order or proceedings in relation to a public road, this court will not suffer the merits of'the case to be entered into, nor reverse the order of the court of quarter sessions, unless for some error or irregularity apparent on the record, or because the court below exceeded their jurisdiction, or erred in their judgment in point of law. Rule XIII. This rule of court, which is a substantial transcript of the rule of the Supreme Court upon the subject, is but a declaration of the law as established by numerous decisions. The tenth exception (12th assignment of error) alleges matters of fact which are not brought upon the record, and the evidence in support of the allegation is not printed in the paper-book. For the reasons stated we could not consider it, if it were printed, we therefore dismiss the assignment without further remark, and without further expression of opinion upon the questions intended to be raised thereby. See Hamilton Street, 148 Pa. 640, Keller’s Road, 154 Pa. 547.

The questions raised by the other assignments of error are fully and satisfactorily answered in the opinion of the learned judge of the court below. We do not deem it necessary to add anything to what he has said concerning them.

Finding no error in the record the order is affirmed, and the appeal dismissed at the costs of the appellant.


author: Wickham, J.,

text:
    Sarah M. Hill, now assigned to Wm. J. Baldy, Appellant, v. Chas. P. Harder, sheriff of Montour county.

      Practice, G. P. — New trial at subsequent term erroneous.

    The court has no power to permit a motion for a new trial after the term at which the judgment was entered has passed.
    Argued. Jan. 18, 1897.
    Appeal, No. 44, Jan. T., 1897, by plaintiff, from order of C. P. Montour Co., June T., 1894, No. 108, granting a new trial.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass against sheriff of Montour county. Before Ikeler, P. J.
    Summons issued June 5,1894. March 18, 1896, jury called, issue joined and a verdict for plaintiff for $117.78. March 20, 1896, reasons for a new trial filed. June 5, 1896, motion refused. June 5, 1896, assignment of judgment filed, jury fee paid and judgment entered.
    On October 19, 1896, the court revoked the order of June 5 refusing a new trial, and made absolute the same.

      Errors assigned were, inter alia, making decree of October 19, 1896, as follows: “We think, therefore, that our order of -‘June 5, should be revoked and the rule for a new trial made absolute, which is now, October 19, 1896, done.”

      H. M. Hinckley, with him W. J. Baldy, for appellant.
    In making the order of October 19, granting a new trial, the court was no longer exercising sound discretion, and the day of the discretion having passed the power of the court is annulled : Lance v. Bonnell, 105 Pa. 46 ; Van Vliet v. Conrad, 95 Pa. 494; Conrad v. Ins. Co., 81* Pa. 66; Oil Co. v. Carothers, 63 Pa. 379.

      R. S. Ammerman and Edward Sayre Gearhart, for appellee.
    February 16, 1897:
   Opinion by

Wickham, J.,

On March 19, 1896, the plaintiff obtained a verdict, and the same clay the defendant moved for a new trial. On June 5, 1896, the court below after argument, made and filed the following formal order, to wit: “Now, June 5, 1896, the rule for a new trial is discharged and a new trial is refused.”

The plaintiff thereupon paid the jury fee and, according to the usual practice, judgment was entered against the defendant, on the verdict. Thus the matter stood, so far as the record shows, until October 19,1896, being the first day of the second term after the entry of judgment, when the court, for a reason not set forth in support of the defendant’s motion, filed an opinion granting a new trial. The concluding words of the opinion are as follows: “We think, therefore, that our order of June 5, should be revoked and the rule for a new trial made absolute, which is now, October 19, 1896, done. Filed October 19, 1896.”

The later statements of the learned trial judge, accompanying the allowance of the bill of exceptions to the order of October 19, 1896, are no part of the record and cannot be received to aid or contradict it. . The same remark of course is also applicable to the somewhat heated remarks of the counsel on both sides. Nor are we concerned with any question of veracity raised, in pais, between the counsel, or the court and the counsel for the plaintiff.

Talcing the record as it stands, it was'manifest error to grant a new trial, at the time the order therefor was made. It was then too late. The court had no power to permit a motion for a new trial after the term at which the judgment was entered had passed: King v. Brooks, 72 Pa. 363; Lance v. Bonnell, 105 Pa. 46; Hill v. Egan, 2 Pa. Superior Ct. 596. What cannot be done directly it is not permissible to do indirectly, as was here attempted, by revoking the order refusing the new trial and seeking to breathe new life into the original motion. If this were allowable, the power of the court to set aside a judgment, entered after the refusal of an application for a new trial, would be limitless as to time, so long as the judgment remained unpaid.

The orders granting a new trial and staying the writ of fieri facias are reversed and set aside, the appellee to pay the costs.


author: Willard, J.,

text:
    The City of Philadelphia v. John C. Lyster, Appellant.

      Municipal ordinances — Nuisance—Equity—Injunction.
    Equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation restraining a certain act, unless the act is shown to be a nuisance per se.
    The mere fact that a certain thing is prohibited by ordinance, does not render it a nuisance per se, if it be not otherwise such, so as to authorize an individual, or the city itself, to have it enjoined.

      Board of health — Removal of garbage — Nuisance.
    AVhile the board of health has discretionary power to declare the keeping of garbage, offal and refuse matter upon the streets, alleys and the premises of individuals a nuisance, that discretion is not sufficiently far reaching’ to declare the act of a private contractor in removing the garbage to be a nuisance, when he has adopted the precise means for the purpose prescribed by the ordinance of the city.

      Public officers — Power of board of health as to declaration of nuisances.

    The board of health of Philadelphia, in the exercise of the extraordinary powers vested in it, does not have the power to declare a given act to be a nuisance in fact and in law. Such power has not as yet been delegated to the said board.
    Argued, Deo. 18, 1896.
    Appeal, No. 158, Nov. T., 1896, by defendant, from decree of C. P. No. 4, Phila. Co., Dec. T., 1895, No. 1074, awarding special injunction until further order from the court.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Bill in equity to restrain collection of garbage. Before Thayer, P. J.
    An abstract of the bill and answer disclosed the following conditions:
    COPY OE ORDINANCE.
    Section 1. That after the passage of this ordinance, it shall not be lawful for any person or persons, other than contractors with the city, to collect kitchen garbage or offal, without first having obtained a permit from the board of' health; or for any person or persons to convey kitchen garbage or offal in any of the streets of the city, excepting in metal carts water-tight and securely covered, so that none of the contents shall fall, leak or spill therefrom or be exposed to view.

      Sec. 2. Any person or persons violating any of the provisions of this ordinance, shall be liable to arrest, and incur a fine of five (5) dollars for each offense committed, collectible by any magistrate of the city.
    All ordinances or parts of ordinances inconsistent herewith be, and the same are hereby repealed.
    Paragraph 2 alleged that the board of health had officially determined that the disposition of garbage by feeding it to hogs or by spreading it on land either in Philadelphia or the adjoining counties was a nuisance, and prejudicial to health of the citizens of Philadelphia. It also alleged the reason of this finding to be the extreme probability that the pigs thus fed whose meat they deemed unwholesome would be sold to said citizens. Also that the board had made efforts to stop both of the things complained of, and deemed it important that garbage be disposed of by cremation, or incineration. Also that plants for incineration and utilization after incineration of garbage were erected in the city, and in the opinion of the board provided a method of disposing of garbage not attended with discomfort to citizens or injury to the public health.
    Paragraph 3 alleged that specifications had been prepared for inter alia the removal of kitchen garbage and offal, and set them out at length.
    Paragraph 4 alleged that proposals were made under these specifications, and accepted, by means of which all garbage must be collected and disposed of in such manner as to prevent any nuisance arising from spreading it on lands in or adjacent to Philadelphia or feeding it to hogs kept in Philadelphia.
    Paragraph 5 alleged that by reason of these contracts the city was enabled to have its garbage disposed of without prejudice to health; that contractors would not be willing to make these contracts unless they had the exclusive power to collect.
    Paragraph 6 alleged that the board of health had determined to grant no permits to persons other than contractors, and that no permits are granted by said board.
    Paragraph 7 alleged that the defendant collected garbage without a permit, and fed it to pigs in Delaware county. That disagreeable odors from his piggeries reach Philadelphia. That the pigs., when fed, will probably be sold in the city, and that the meat thus sold of the pigs thus fed, in the opinion of the board of health, is unwholesome.

      Paragraph 8 alleged, that the defendant collected garbage in the city and hauls it through the streets to the prejudice of the public health.
    Paragraph 9 is a recapitulation of certain other allegations of the bill.
    The prayers are for an injunction to prevent defendant from (a) collecting garbage in the city; (If) carrying it through the streets; (e) feeding the garbage to hogs or spreading it upon lands in the city of Philadelphia or adjoining the city; and (d) general relief.
    The answer admitted the ordinance and prayed fqr proof of the official determination of the board of health, of, the specifications, proposals and contracts, and of the erection of plants for the incineration of garbage.
    It denied the right of the board of health to determine the question as alleged in the bill; it denied that the acts complained of were a nuisance or prejudicial to public health; it denied that the incinerating plants were efficient means of disposing of garbage; it denied that the city could not make advantageous contracts if permits were granted to private parties.
    It alleged that the incinerating plants were themselves nuisances ; that the city, at some of its institutions, was feeding garbage to pigs.
    It admitted that defendant was collecting garbage without a permit; that he hauled the garbage which he collected in the sort of wagon provided by the ordinance, to his farm in Delaware county, and there fed it to pigs. It alleged that defendant had asked the court to award a mandamus to the board of health to issue a permit, which proceedings were pending of the same term and number as this case.
    It denied expressly that anything the defendant was charged with doing was a nuisance or prejudicial to public health.
    It alleged that the hotel keepers and restaurant keepers in the city had asked to have their garbage collected by private collectors, as this was the most efficient method, and caused the least detriment to public health.
    It alleged that defendant was a responsible person.
    It denied that plaintiff had any standing in a court of equity for the enforcement of a municipal ordinance.

      die -following verbal opinion was delivered by Thayer, P. J.:
    die court is of the opinion that the city had the lawful right to pass this ordinance, and to delegate to the board of health the discretion which was given in regard to licensing or refusing to license people to carry on a business affecting the public health. The court considers that it is a lawful ordinance, and one entirely within the scope of the powers conferred upon the city. It is plain, from the evidence, that the' defendant is about to carry on this business without the permit which the ordinance renders indispensable, and he ought to be enjoined from doing so.
    Preliminary injunction granted.
    Defendant can proceed before referee hereafter, if he so desires.
    The court made the following decree, viz:
    [And now, to wit, 17th day of October, A. D. 1896, the above case coming on to be heard on bill and admission in answer, the court ordered and decreed tha,t a special injunction issue restraining John C. Lyster or his agents or employees from collecting kitchen garbage and offal within the limits of the city of Philadelphia, without a permit from the board of health, until further order of the court.] [1]

      Errors assigned were (1) in making decree, reciting same; (2) in not dismissing plaintiff’s bill.

      Lewis Lawrence Smith and George Tucker Bispham, with them Charles Henry Jones, for appellant.
    It is conceded that the city of Philadelphia has the usual police powers incident to a large city to pass ordinances for the public health and the abatement of nuisances. The power to abate anything that is a nuisance is, however, based on the fact that the thing is a nuisance: Dillon on Municipal Corporations, sec. 376; Wood on Nuisances, sec. 744; Yates v. Milwaukee, 10 Wallace, 497; Butchers Union Co. v. Crescent City Co., 111 U. S. 757.
    The board of health may regulate the' collection of garbage, as it may any business (and as was done in People v. Gordon, 81 Mich. 306,) but it may not directly or indirectly prohibit it unless prepared to prove that it is a nuisance, and then it must pursue its common law remedies or prohibit it to all alike. Such action is in violation of the fourteenth amendment of the constitution of the United States.
    But where acts or things are not nuisances per se they must be lawfully ascertained to be such, as was held in Denver v. Mullen, 7 Colo. 356, 357.
    The city is not entitled to an injunction to restrain the violar tion of a city ordinance unless the act be a nuisance per se. The remedy is fixed by the ordinance itself: High on Injunctions, 3d ed. § 1248; 10 Am. & Eng. Ency. of Law, p. 965; Phillips v. Allen, 41 Pa. 481; Honesdale Borough v. Weaver, 2 Dist. Rep. 344; Wood v. McGrath, 150 Pa. 451.

      James Alcorn, assistant city solicitor, and John G. Johnson, with them Charles E. Perkins and John L. Kinsey, city solicitor, for appellee.
    The legislature is invested with full power to legislate for the protection of the public health: Powell v. Com., 114 Pa. 293; Thorpe v. Railroad, 27 Vt. 149.
    An ordinance to regulate the removal of kitchen garbage, sweepings, etc., is within the delegated police powers vested in the municipality of Philadelphia: Dillon on Municipal Corporations, sec. 211; Water Works Co. v. Water Works Co., 14 Fed. Rep. 194; State v. Payssan, 47 La. Ann. 1029; Peoria v. Calhoun, 29 Ill. 317; St. Paul v. Colter, 12 Minn. 41; State v. Orr, 35 Atl. Rep. 770.
    The prevention of nuisances is quite as important as their abatement: Raymond v. Fish, 51 Conn. 80, 96; Vandine, Petitioner, 6 Pick. 187.
    The city is entitled to an injunction restraining the appellant from collecting garbage, because it has no adequate remedy at law: Beach on Injunctions, p. 1052; Scranton v. Oil Co., 5 Lan. Law Review, 277.

      George Tucker Bispham in reply.
    “When the board of health have determined that a thing is a nuisance, the decision is final, and the thing becomes a nuisance by reason of that decision.”
    The only case cited in support of the proposition is Kennedy v. Board of Health, 2 Pa. 366.
    The issue of nuisance was thus admitted. The court’s interpretation of the Slaughter-house Cases, 16 Wall, 36 is a mistaken one. That case, and the later case of Butchers’ Union Co. v. Crescent City Co., 111 U. S. 757, do not establish any such doctrine as that stated on page 771.
    To the list of authorities cited in appellant’s paper-book should be added Sellers v. R. R. Co., 10 Phila. 319.
    February 16, 1897:
   Opinion by

Willard, J.,

Without any effort to enforce its ordinance, and in the absence of any evidence that even an attempt has been made to enforce it against the defendant, the appellee contends that its provisions are not adequate to accomplish the object intended. If so, the legislative branch of its government, in our opinion, is clothed with ample power to provide the necessary remedy, and to that branch of the city government' the argument should be addressed. It is well established that “Equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal corporation restraining a certain act, unless the act is shown to be a nuisance per se: ” High on Injunctions, par. 1248. “ The mere fact that a certain thing is prohibited by ordinance, does not render it a nuisance, if it be not otherwise such, so as to authorize an individual, or even the city itself, to have it enjoined: ” Spelling on Extraordinary Relief, par. 399.

The rule laid down in High on Injunctions, supra, is fully sustained in Manchester v. Smythe, (N. H. 1887), 18 Am. & Eng. Corporation Cases, 474; Wason v. Sanborn, 45 N. H. 169; Perkins v. Foye, 60 N. H. 496; Waupun v. Moore, 34 Wis. 450 ; Village of Pine City v. Munch, 42 Minn. 342; Lawyer’s Reports Annotated, vol. 6, p. 763; Village of St. Johns v. McFarlan, 33 Mich. 72.

We do not wish to be understood as deciding in this case that the ordinance and regulations of the city of Philadelphia are not reasonable and valid enactments. In Vandine’s Case, 6 Pick. 187, under a state of facts strikingly similar to those in this case, in a proceeding in the municipal court under the provisions of an ordinance of the city of Boston in nearly the precise language of the ordinance before us, the ordinance was sustained and the judgment of the municipal court affirmed. We are of the' opinion that the extraordinary powers claimed by the board of health have been misapprehended as applied to this case; in other words, the power to declare this appellant’s acts as nuisances in fact and in law has not yet been delegated, by the legislature to the said board of health. We are further of the opinion that the remedy for the unlawful acts alleged rests with the legislative branch of the city government, and if an adequate remedy has not been provided, that fact will not give a court of equity jurisdiction to supply the defect in the ordinance by injunction in the absence of proof of an honest effort to enforce its provisions and its inadequacy demonstrated.

It must be observed in this case that the nuisance is alleged to consist in the dumping of garbage, offal and refuse matter, and the effect thereof. This is the root of the evil, and large discretion pertaining to the same is vested in the board of health, and while the board has the discretionary power to. declare the keeping of garbage, offal and refuse matter upon the streets, alleys and the premises of individuals a nuisance, that discretion is not sufficiently far reaching to declare the acts done by the- appellant in removing the garbage to be a nuisance, when he has adopted the precise means for that purpose prescribed by the ordinance of the city.

The decree appealed from is based upon the fact of the violation of the ordinance by the defendant in collecting kitchen garbage and offal in Philadelphia without a permit from the board of health. We have not discussed all the questions raised, but have sufficiently indicated our reasons for reversing the decree.

The second assignment of error is sustained, the decree of the court below of October 17,1896, is reversed, and the injunction dissolved at the cost of the appellee.


text:
    Mary E. Williams, late trading as M. E. Williams, to the use of William C. Duror, her assignee for the benefit of her creditors, Appellant, v. Jacob Myers.

      Practice, O. P. — Affidavit of defense — Traverse of cause of action.

    Where an original obligation upon which plaintiff bases his cause of action is expressly traversed with a specific denial oí its material parts, and the whole tenor of the affidavit is a refutation of the contract set up in the plaintiffs declaration, nothing further is necessary to put the plaiuliff to proof of his claim before a court and jury.

      Argued Dec. 17, 1896.
    Appeal, No. 166, Nov. T., 1896, by plaintiff, from order of C. P. No. 3, Phila. Co., Sept. T., 1896, No. 259, discharging rule for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on a special contract.
    Plaintiff’s statement alleged: That defendant was the general contractor for a building. Thomas Brown was the contractor for the plumbing, with whom M. E. Williams, the plaintiff, contracted to do certain slate work in and about the said building. That, before any work was done by plaintiff, Brown became insolvent and plaintiff declined to go on, whereupon defendant agreed to assume Brown’s liability if plaintiff would proceed, he, defendant, being under a penalty; whereupon plaintiff did go on with the work and furnished labor and material to the amount of $288.50 for which charge a copy of book entries was attached.
    Defendant filed the following affidavit of defense.
    Jacob Myers, the defendant in the above case, being duly sworn according to law, deposes and says that it is wholly false and untrue that deponent stated, either verbally or otherwise, at any time or place, that he would assume all or any liability to plaintiff, M. E. Williams, for any work done or to be done by her for Thomas Brown, under the contract set out in plaintiff’s statement, or for any other contract, or for work done or to be done at the Pennsylvania Institute for the deaf and dumb at Mount Airy, in the city of Philadelphia, or for work done or to be done at any other place; and it is also wholly false and untrue that said plaintiff, M. E. Williams, did any work or had any contract, agreement or understanding to do any work for deponent at said institute, either on April 10,1893, or any other time, or that he is indebted to her in any sum whatever. All which facts deponent says are true, and he expects to be able to prove them on the trial of the cause.
    The court discharged a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was refusal to enter judgment.

      Webster A. Melcher, for appellant.
    -The affidavit is insufficient in that it sets out general statements and conclusions instead of facts.
    It does not deny the grounds of liability averred in the statement, and those which arise by implication from the averments therein made.
    It is evasive: Neal v. Vollrath, 24 W. N. C. 124; Ashman v. Weighley, 29 W. N. C. 569.
    An affidavit which is general is bad: Sharpless v. Stirman, 4 Dist. Rep. 569; Wile v. Onsel, 1 Dist. Rep. 188.
    Specific facts, and not general statements and conclusions, must be set out: Bank v. Stadelman, 153 Pa. 634; Erie v. Brady, 127 Pa. 169.
    An averment that defendant is “ not indebted ” is like one of “payment,” which (unless fully explained) is bad: McCracken v. Church, 17 W. N. C. 45; Solly v. Moore, 1 Dist. Rep. 688; Iron Co. v. Vandervort, 164 Pa. 572; Galey v. Fitzpatrick, 171 Pa. 50; Barker v. Fairchild, 168 Pa. 246; Hutton v. McLaughlin, 1 Pa. Superior Ct. 642.

      Alex. Simpson, Jr., for appellee.
    Where an original obligation upon which plaintiff bases his cause of action is expressly traversed, with a specific denial of its material parts, and the whole tenor of the affidavit is a refutation of the contract set up in the plaintiff’s declaration, nothing further is necessary to put the plaintiff to proof of his claim before a court and jury: Hutton v. McLaughlin, 1 Pa. Superior Ct. 642. And to the same effect are Landis v. R. R., 133 Pa. 579; Galey v. Fitzpatrick, 171 Pa. 50.
    It has been many times said, and said wisely, that the office of an affidavit of defense, like that of a statement, is to set forth the facts, not the evidence which may be educed in support thereof. This rule is founded on the language of the affidavit of defense law, act of March 28, 1835, sec. 2, P. L. 88, which requires the filing of an “ affidavit of defense stating therein the nature and character of the same,” and appellant’s evident disappointment is because of appellee’s obedience to this rule.
    February 16, 1897 :
   Opinion by

Rice, P. J.,

It is very difficult to discuss this case seriously. The defendant’s liability, if any, arose out of an express promise, that, if the plaintiff would perform her contract with Brown, he, the defendant, would assume Brown’s liability for the moneys to be paid the plaintiff thereunder. But the plaintiff’s allegations that the defendant did “ verbally state that he would assume all liability upon the aforesaid contract,” and that the defendant requested the plaintiff to do the work for him, and that she did the work for him, are clearly, explicitly and unequivocally denied. “ Where an original obligation upon which plaintiff bases his cause of action is expressly traversed with a specific denial of its material parts, and the whole tenor of the affidavit is a refutation of the contract set up in the plaintiff’s declaration, nothing further is necessary to put the plaintiff to proof of his claim before a court and jury: ” Hutton v. McLaughlin, 1 Pa. Superior Ct. 642 ; Barker v. Fairchild, 168 Pa. 246; Galey v. Fitzpatrick, 171 Pa. 50.

The appeal is dismissed at the costs of the plaintiff, but without prejudice, etc.


text:
    Estate of Sarah Nichols. Appeal of James Nichols, Petitioner.

      Register of wills — Citation to file will.

    The register of wills performs the full measure of his duty, under the act of 1832, by issuing a citation to parties, who are alleged to be in possession of a will, requiring them to produce and file said will for probate. He has no power to try the question, as to whether a will was made or whether the parties cited have it in their possession or control. No healing or trial before the register is contemplated, and he is without power to enforce any decree.
    The petitioner is remitted to the indictment or action for damages provided by the act of March 18, 1832, P. L. 185.
    Argued Jan. 12, 1897.
    Appeal, No. 14, Jan. T., 1897, by James Nichols, from decree of O. C. Lackawanna Co., No. 810, Series A., 1895, dismissing appeal from register of wills.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Citation issued on petition directed to Mary Davis and J ames Nichols to appear and show cause why the will of Sarah Nichols should not be produced and admitted to probate, May 21,-1892. Before Abchbald, P. J.
    September 9, 1892, proceedings were dismissed at cost of petitioner. May 17, 1895, the petitioner filed a petition asking that the case be opened on the ground of after discovered testimony. On this petition a new citation issued, testimony was taken and proceedings dismissed by the register. Subsequently an appeal was taken to and dismissed by the orphans’ court. The decedent, Sarah Nichols, died on March 29, 1885.

      Errors assigned were to the decree of the court dismissing the appeal from the register.

      A. A. Vosberg, with him W. S. Hulslander, for appellant.

      Lemuel Amerman, with him R. H. Holgate and B. F. Akerley, for appellee.
    -The petitioner’s remedy was exclusively under the act of March 15, 1832, P. L. 185. His powers were exhausted when he issued the citation. If the parties failed to respond the register had no power to compel them to do so, nor is he vested with authority to take testimony on the subject, nor to act thereupon judicially. In such cases the petitioner is remitted to the indictment or action for damages as provided by the act of 1832: Prentzell’s Est., 1 W. N. C. 222; McDonald’s Est., 14 Phila. 253.
    In any event the appellant is barred by the statute of limitations from taking his appeal, more than three years having elapsed between the time of the dismissal of the proceedings by the register of wills unappealed from and the taking of the appeal in this case: Kepner’s Appeal, 94 Pa. 74.
    An appeal does not lie for any matter that is in the discretion of the court, as the overruling a motion for a new trial: Houser v. Com., 51 Pa. 332.
    February 17, 1897:
   Opinion by

Wickham, J.,

Sarah Nichols died on March 29, 1885. On May 21, 1892, James Nichols, one of her sons, presented his petition to the register of wills of Lackawanna county, alleging that his mother died testate, and that her will was in the possession of Mary Davis and Asa A. Nichols and Flora Nichols, his wife. The register thereupon issued a citation to these parties, requiring, them to produce and deposit the will for probate. The proceeding was had under section 7 of the act of March 15, 1832, P. L. 185, which provides as follows: “The register having jurisdiction as aforesaid shall, at the instance of any person interested, issue a citation to any person having the possession or control of a testamentary writing alleged to be the last will and testament of a decedent requiring him to produce and deposit the same for probate, and if such person shall conceal or withhold such writing during the space of fifteen days after being personally served with a citation issued in the manner and form aforesaid, he shall be liable to an indictment as for misdemeanor, or to an action for damages by the person aggrieved.” The register heard the testimony on both sides, and on September 8, 1892, dismissed the proceeding.

On May 17, 1895, James Nichols presented another petition to the register of wills then in office, alleging that he had discovered new evidence, and for that reason asking for a rehearing, and a citation to Mary Davis and Asa A. Nichols to show cause why the will of the said Sarah Nichols should not be produced and admitted to probate. The citation went out, and after due hearing, the register made the following order: “Now, August 14, 1895, after a careful review of all the testimony before us, it is not sufficient to warrant us to change the decision heretofore made by the register of wills in these proceedings, therefore the prayer of the petitioner is refused, and the costs placed upon the petitioner.” From this decision, which was in effect, merely a refusal of a rehearing, James Nichols appealed to the orphans’ court, which court dismissed the proceeding.

The application for a rehearing was in the nature of a motion for a new trial, and its refusal, in the absence of something on the record to show a gross abuse of discretion, would not under any circumstances be reviewable here. If the decision of this question were to determine the fate of the appeal, we see nothing to indicate any abuse of discretion on the part of the register or the court below.

But we are further of the opinion that the register performed the full measure of his duty, under the act of 1832, by merely issuing the first citation. He had no power to try the question, as to whether a will was made or whether the parties cited had it in tbeir possession or control. It became the duty of these parties to “produce and deposit the same for probate” within fifteen days after service of the citation, if they had the will in their possession or control. No hearing or trial before the register is contemplated by the act, and he is without power to enforce any decree he might make in the premises. The issuing and the service of the citation are merely preliminary to, and a ground work for, the remedies expressly provided by the statute, namely, indictment or action for damages. This construction of the act was long since adopted by the orphans’ court of Philadelphia county (see Prentzell’s Estate, 1 W. N. C. 222, and McDonald’s Estate, 14 Phila. 253), and is the only one admissible.

Had this question of the register’s jurisdiction been raised in the court below, we doubt not the learned judge thereof would have held as here indicated.

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


text:
    George A. Twibill v. The Lombard and South Streets Passenger Railway Company and the Electric Traction Company, Appellants.

      Vendor and vendee — Way—Implied covenant running with land.

    Where a street is laid out by the grantor himself over land which he sells in lots, there is necessarily an implied covenant that he will open it at least for the use of his grantee. Such a covenant runs with the land.

      Deed — -Reference to street or way — Equitable grant of light of way.

    A description referring to a street laid out or to be laid out by the grantor, ordinarily operates as an equitable grant of the right of way and binds privies in title with notice.

      Right of way arising by deed — Denial of title — Abandonment.
    When aright of way is claimed by grant, such right cannot be extinguished by disuse or lost by non-user unless there be a denial of title or other act, on the part of the adverse party, to quicken the owner in the assertion of his right, and an abandonment of a servitude created by deed cannot be inferred from non-user by grantee.

      Acceptance of a street by city not necessary to sustain grant in a deed.

    It is not necessaiy in order to preserve the rights of vendees to a proposed street mentioned in a deed that the street or way should be accepted by the city, or that it should be graded, paved or otherwise improved.

      Easement — Right of way — Obstruction—Trespass.

      A successor in title to a grantor of a right of way by deed, will not be justified in building over a street laid out by the common grantor, thereby obstructing the right of way vested by deed in other grantees abutting on the proposed street. Infrequent use, non-use or failure of the city to accept and improve the street will not be defenses to an action of trespass brought by such other grantee vested with a right of way in said proposed street.
    Argued October 16, 1896.
    Appeal, No. 130, Nov. T., 1896, by defendants from judgment of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 1133, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for obstruction of right of way.
    The defendants submitted the following points:
    1. That under all the evidence in this case the plaintiff cannot maintain his action against the defendants.
    2. That under all the evidence in this case the verdict must be for the defendants.
    3. That under all the evidence in this case, there is no covenant or undertaking shown or liability imposed upon the defendant company to permit the twenty-five feet wide street, called Watts street, to be opened through its property.
    4. That there is no evidence in this case to show any duty or obligation imposed upon defendants to refrain from using or building upon any portion of its property.
    5. That under all the evidence in this case the defendant company has the right to build across its lot, without regard to the claim of the plaintiff to have an easement or right of way for the said twenty-five feet wide street, called Watts street, across the defendants’ property.
    6. There is no evidence that Watts street was ever laid out on the city plan, and the ordinance forbids the opening of a public street less than thirty feet wide. The plaintiff has therefore no right to a public street twenty-five feet wide, and can sustain no action for not opening such a street.
    7. From all the evidence it appears that Watts street was never opened or laid out, and therefore the defendants cannot have been guilty of a trespass in obstructing a street which has never existed.

      8. If the jury find that the defendants and Markoe, under whom it claims, had and maintained open, notorious, and adverse possession of the strip of ground twenty-five feet wide, being-part of defendants’ lot which would have been part of Watts street if opened, then the plaintiff cannot recover.
    9. In no event can the plaintiff recover any more than nominal damages.
    The court charged the jury as follows: “ In this case all that I need say to you is that you may render a verdict in favor of the plaintiff, which will be nominal.”
    Other facts sufficiently appear in the opinion of the Superior Court.
    Verdict for plaintiff for $1.00. Defendants appealed.

      Errors assigned were, (1-8) refusal of defendants’ points, reciting same; (9) charge of the court; (10) in overruling the objection of the defendants to the admission of the evidence of the plaintiff, George A. Twibill, who was offered by his counsel as a witness to prove the erection of a stable on the defendants’ premises, cutting off twenty-five feet, (11) in overruling the objection of the defendants to the admission of the following testimony given by George A. Twibill: “ Q. What is the effect of closing Watts street upon your improving your lot? Q. Are you or not prevented from building ? A. Yes, sir; nobody will buy a-nj’- lots from me while the stable is there, and I pay $2,500 taxes on it for the last five years — $500 a year; in this season it is $700. Then I paid interest on a mortgage, $1,500 a year; and they are going along making money while I am paying these taxes.”

      Wm. Henry Lex and George P. Rich, for appellants.

      Henry Budd and Thomas R. Elcock, for appellee.
    February 16, 1897:
   Opinion by

Wickham, J.,

This controversy relates to a way, called by the plaintiff Watts street, which he alleges is appurtenant to certain land owned by him in the city of Philadelphia. His right depends largely on the construction to be given certain words used in conveyances made by one James Bond, who was the predecessor- in title of all the parties to the litigation.

In 1854, Bond owned in fee simple a block of ground bounded north by Snyder avenue, east by Thirteenth street, south by Jackson street, and west by Broad street. By deed of March 4, 1854, recorded June 21st of the same year, Bond and his wife conveyed to Hittie Markoe a part of this land, describing it as follows: “ All that certain lot or piece of ground situate at the southeast corner of Broad street and Snyder street, in the late district of Moyamensing, now within the city of Philadelphia. Containing in front or breadth on the said Broad street one hundred and twenty feet, and extending in length or depth eastward of that width (crossing a certain new street fifty feet wide, laid out by the said James Bond and intended to be opened for public use, at the distance of two hundred and sixty-five feet eastward from and parallel with the said Broad street, and also crossing two other new streets, each twenty-five feet wide, laid out by the said James Bond and intended to be opened for public use, one of them at a distance of one hundred and fifty feet eastward from and parallel with the said Broad street, and the other of them at the distance of eighty-seven feet six inches westward from and parallel with Thirteenth street) five hundred and fifteen feet to the west side of the said Thirteenth street. Bounded northward by the said Snyder street, southward by ground granted to Joseph Maitland, eastward by the said Thirteenth street, and westward by said Broad Street.”

The fifty foot new street mentioned in this description after-wards became and now is, Juniper street, on the city plan. Watts street is the twenty-five foot street one. hundred and fifty feet east of Broad street, and running parallel therewith.

Hittie Markoe died seized of the lot above described, and by deed of December 15, 1874, recorded December 30, 1874, her executors conveyed to the Lombard and South Street Passenger Railway Company, under which the other defendant seems now to claim, a portion of said lot fronting one hundred and seven feet six inches on Broad street, and extending back of the same width along Snyder avenue to Thirteenth street. The conveyance contains, by way of recital a full description of the whole Markoe lot, including the street in dispute. It will thus be seen, that the purchaser from Hittie Markoe’s executors liad full notice as to this street.

Returning to Bond, we find that by deed dated April 4,1854, recorded February 19,1855, he and his wife conveyed to Joseph Maitland another lot adjoining the one sold Hittie Markoe a month earlier, and described it as follows: “ Situate on the east side of Broad street, at the distance of 120 feet southward from the south side of Snyder avenue, in the district of Moyamensing, in the county of Philadelphia, containing in front or breadth on the said Broad street 120 feet, and extending in length or depth eastward of that width, between lines parallel with the said Snyder avenue (crossing a certain new street 50 feet wide, laid out and opened by the said James Bond for public use, at the distance of 265 feet eastward from and parallel with the said Broad street, and also crossing two other new streets, each 25 feet wide, laid out and opened for public use by the said James Bond, one of them at the distance of 150 feet eastward from and parallel with the said Broad street, and the other of them at the distance of 87 feet 6 inches westward from and parallel with Thirteenth street, and extending from Jackson Street to McKean street), 515 feet to the west side of the said Thirteenth street. Bounded northward and southward by other ground of the said James Bond, eastward by the said Thirteenth street, and westward by the said Broad street.” The description in the Markoe deed indicates, that Maitland must have had at least an equitable title to his lot prior to March 4, 1854.

By mesne conveyances, all duly recorded, and in each of which the street under consideration is mentioned as having been actually “ laid out and opened for public use ” by the said James Bond the lot last mentioned finally vested in Charles L. Borie, whose executors and trustees, by deed dated April 24, 1890, recorded May 23, 1890, conveyed to the plaintiff that part of the lot lying west of Juniper street. This deed very briefly describes the land granted “ together with all and singular the improvements, streets, alleys, passages, ways, waters, watercourses.” Watts street is not specifically mentioned or referred to, nor was it necessary, looking at the plaintiff’s rights, that it should be.

Again going back to Bond, we find that by deed of even date with that made to Maitland, and recorded August 30, 1854, Bond and wife granted to John Seiser, Jr. a lot, part of the said larger parcel, having a front of forty feet on Broad street and extending back of the same width to Thirteenth street, and described the street in dispute as having been “ laid out and opened by the said James Bond for public use.” All of this lot west of Juniper street finally vested in the plaintiff, by deed from the Thirteenth and Fifteenth Streets Passenger Railway Company, dated April 27, 1898, and recorded May 3d of the same year. The words last above quoted are found in all the mesne conveyances, five in number and duly recorded, between Seiser and the company. In the company’s deed to the plaintiff, the disputed street is described as “ a new street laid out and opened by James Bond for public use, at the distance of 150 feet eastward from and parallel with said Broad street.”

In addition to the two lots already spoken of, the plaintiff is the owner of another, adjoining the same, one hundred and twenty feet wide on Broad street, and extending of the same width to Juniper street, being the west end of a lot conveyed by Bond and wife to Harry Ingersoll, by deed dated May 11,1854, recorded May 29, 1854, and granted to the plaintiff by Ingersoll’s widow, by deed dated April 11, 1891, recorded April 16 of the same year. Each of these deeds refers to the street in question, as laid out by the said James Bond and intended to be opened for public use.

Watts street has never been physically improved, or defined by fences or buildings, nor have the city authorities done anything towards accepting it. Two months after the plaintiff purchased his first lot, the defendants built a stable across the street, thus completely obstructing it, and, from a business standpoint making it impracticable for the plaintiff to subdivide the land and sell it in smaller lots, as he had intended doing.

It is not necessary, in determining the plaintiff’s right to the way, to go outside of Ms first purchase, because if the streets were appurtenant to the land then bought, he was entitled to a verdict. The fact, too, that the city never adopted or recognized the street has no effect on the plaintiff’s right. This suit is between private parties, claiming under the same predecessor in title, who, it is alleged, established a right of way over his own land for the benefit of himself and those who might follow Mm in the ownership of different parts thereof. Whether the public have the right to insist on the opening of Watts street as a public highway, is a matter of no importance here. As Mr. Justice Green says in Opening of Brooklyn Street, 118 Pa. 640: “ If it be a street laid out by the grantor himself over land which he sells in lots, there is necessarily an implied covenant that he will open it at least for the use of his grantees.” Bond’s grantees and those holding under them are alone interested in the present proceedings. It is a well known legal principle, that a description referring to a street laid out or to be laid out by the grantor, ordinarily operates as an equitable grant of the right of way and binds privies in title with notice.

In Bombaugh v. Miller, 82 Pa. 203, a well considered case, the plaintiff sued as has the plaintiff here, in tort for obstruction of his right of way claimed by grant, it was held, after a review of numerous authorities, that such a right cannot be extinguished by disuse or lost by nonuser unless there be a denial of the title or other act, on the part of the adverse party, to quicken the owner in the assertion of his right, and that an abandonment of a servitude, created by deed, cannot be inferred from rare user by the grantee. In Spackman v. Steidel, 88 Pa. 459, a case strongly relied on by the appellant, and in its dicta not unfavorable to him, it is not clear that anything more was really decided than that an actual, open, uninterrupted, uncontested, adverse obstructing of the way by fences and buildings for thirty-five or forty years destroyed the plaintiff’s title thereto, the court saying, “ After this great lapse of time, we think the present action cannot be sustained.” It appeared, moreover, in that case, that no possession of the way was ever given or taken under the deed.

In the present case, while the evidence outside of the deeds is meager, we think it is sufficient to justify the inference, that until within five years before suit brought, the plaintiff and his predecessors in title could and we may presume did, without hinderance, go whenever they chose, between Jackson street and Snyder avenue, along and over the now disputed way. According to the uncontradicted testimony of John H. Dye, one of the witnesses for the defense, that part of the block over which Watts street extends was at the time of the trial still unimproved, save by the defendants’ stable and a fence. Evidently the fence was of comparatively recent origin, as the witness says the lot had been used as a place of deposit for rubbish, showing that it must have been open and accessible, and the defendants’ counsel stated and offered to prove that the fence, which was made out of second-hand material, was built by the plaintiff, after his purchases, to enclose the ground for base ball games.

We then have this state of facts, looking at the plaintiff’s rights as resulting from his earliest purchase, and not considering his title through Seiser, which, of course, would make his case still stronger. First, the deed from Bond and wife to Hittie Markoe, under and through whom the defendants claim, wherein the way is in effect described as actually laid out and existing and intended to be opened for public use. As to its location, it can and always could be ascertained by the most unskilled person capable of measuring with a tape line. It is only necessary to measure from Broad street eastwardly one hundred and fifty feet along Jackson street, and the same distance from Broad street in the same direction along Snyder avenue, and then stretch a line from one of the points thus found across the lot to the other. This line will indicate the western boundary of Watts street. Second, the deed from Bond and wife to Maitland, made one month after the Markoe conveyance, in which the way is described as then, “ laid out and opened by the said James Bond for public use ; ” followed by the mesne conveyances down to and including the deed to Borie, all containing the same words, and the deed from Borie’s executors to the plaintiff, in which all streets, alleys, passages and ways were granted as appurtenances. Whether we consider Bond as having in the Markoe deed retained title to the land occupied by the way in question, subject to an easement in his vendee, or as having granted the fee in the land covered by the same, reserving to himself the right to fully open the street thereafter and dedicate it to the widest use, matters not, because, in either event, he was master of the situation. That he exercised his right, if the latter of the two views be correct, only a month later by the deed to Maitland, which was recorded within a year after its date, cannot be disputed. Third, we have the rights of the plaintiff and his predecessors in title undenied by word or act, until after the plaintiff purchased the Maitland lot, together with the fact, inferable from the uncontradicted testimony offered in behalf of the defense, that up to the same time they could and did use the ground, set apart for the street, on the few occasions when they needed to do so. The lots were probably nearly all street until the defendants put up the long stable complained of. It was not necessary, in order to preserve the rights of the holders of title under Bond, that the street or way should be accepted by the city, or that it should be graded, paved, or otherwise improved. While it is not a Philadelphia street, it is a way, lawfully created by the original owner of the land, and of such a character that every abutting lot owner can insist, as a matter pertaining to his own right, that it may be used by the public, if they see fit-to travel it.

The contention of the defendants, that the mention of the way, by Bond in his conveyances, should be regarded as in the nature of a description merely, is untenable. As a description, it would be needless, confusing, and absurd. Bond had a purpose of his own to serve in laying out and opening the streets through the block. It is not hard to see that by doing this, he expected to obtain better prices for the various subdivisions of the block, which he might sell from time to time, and that he probably succeeded in doing so.

The plaintiff finds part of his land almost valueless to him, unless Watts street is kept open. It is not denied that many of his lots will be practically unsalable. In our opinion, he was entitled to sustain his action, and the learned trial judge committed no error in so instructing the jury.

Judgment affirmed.