text:
    Estate of Peter Starr, deceased. David Starr’s Appeal.

      Practice, O. C. — Citation to file an account.

    The proper practice is, where a person who is not a creditor obtains a citation, to answer it, denying that the petitioner is a creditor. This at once challenges his position as such and unless he can make out a primafacie claim, it is the duty of the court to dismiss his petition.

      Appeals — Jurisdiction, Superior Court — Definitive decree.

    The appellate courts cannot take jurisdiction until a definitive sentence or decree has been entered; and a decree of the orphans’ court citing an executor to file an account is an interlocutory decree from which no appeal lies.
    Argued Dec. 8, 1896.
    Appeal, No. 27, Nov. T., 1896, by David Starr, surviving executor, from decree of O. C. Schuylkill Co.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Appeal quashed.
    Motion to quash appeal.
    Margaret L. Tobias filed a petition in the court below alleging, inter alia, that Peter Starr died in 1882, that letters testamentary were granted to David Starr, that more than one year had elapsed since said letters were granted and that the executor had failed to file an account. That the petitioner was a legatee and prayed for a citation. The answer of the executor set up at length that the bequests to the petitioner were of articles in kind which she received and which conld not be enforced by an account, that her remedy, if any, was by action at law, and denied that the petitioner had any standing in court to demand an account from respondent as surviving executor of Peter Starr, deceased.
    The court below on petition and answer ordered and decreed that David Starr, surviving executor of Peter Starr, deceased, file his account in the register’s office on or before February 3, 1896.
    The petitioner appealed.

      Errors assigned were, (1) in decreeing that a citation should issue; (2) in decreeing that the citation should issue before investigating the allegation and denial of the right of the petitioner to such citation, and ascertaining the fact whether at the time the petition was filed said petitioner was interested in the estate of Peter Starr, deceased, as the court was bound to do under rule 19, of said court, sections 2 and 3, which sections are as follows:
    “ Section 2. The parties served with process must appear at the time specified for the hearing, and make answer or demur to the petition, otherwise the Court will proceed to make orders to enable the petitioner to procure testimony in support of the petition, and after hearing the same, make such decree as shall be equitable and proper under the circumstances.”
    “ Section 3. The mode of proceeding in controverted' matters .. shall be by petition, answer, replication, etc., verified by affidavit.”
    (3) Petition was wholly insufficient and not in accordance with the rules of the orphans’ court of Schuylkill county. The petitioner, Margaret L. Tobias, moved to quash the appeal.

      Geo. M. Roads, for motion to quash.
    An appeal does not lie, from the decree or order, of the orphans’ court, directing an executor to file an account; such decree or order being merely interlocutory, and not final, therefore the appeal should be quashed: Palethorp’s Estate, 160 Pa. 316.

      James Ryon, with him Geo. W. Ryon, for appellant.
    Under the denial of the answer of the interest of the petitioner the court below had no jurisdiction to award the citation.

      This proceeding was also against the general practice in our courts : Mercur’s Est., 31 W. N. C. 73; Lightner’s Est., 141 Pa. 273; Barner’s App., 168 Pa. 341; Okeson’s App., 2 Grant, 303 ; Halsey v. Tate, 52 Pa. 311;-Keene’s App., 64 Pa. 268; Keene’s App., 60 Pa. 504; Eachus’ App., 91 Pa. 105.
    January 18, 1897:
   Opinion by

Rice, P. J.,

“ It would involve intolerable mischief if any intermeddler could compel an executor to file an account of his trust whenever demanded. Hence, the proper practice is, where a person who is not a creditor obtains a citation, to answer it, denying that the petitioner is a creditor. This at once challenges his position as such, and unless he can make out a prima facie claim, it is the duty of the court to dismiss his petition: ” Lightner’s Estate, 144 Pa. 273. It may be conceded for present purposes that the court might properly have pursued the course above indicated in the present case; but it does not follow that its action in awarding the citation, without requiring the petitioner to prove affirmatively that she had not received the specific articles willed to her, is reviewable. The petition alleged that the petitioner was a legatee and gave the court jurisdiction to compel the respondent to file an account. The answer did not deny that the petitioner was a legatee, but set up a defense to her claim, namely, that she had received her legacy. If the court had heard the testimony on that question of fact and had decided it erroneously, and awarded the citation, still there would be no appeal, because it would not have been a definitive decree. The same is true where the court refuses to go into the evidence upon the questions of fact raised by the answer, until after the account has been filed. The appellate court connot take jurisdiction until a “ definitive sentence or decree ” has been entered: Act of March 29, 1832, sec. 59, P. L. 213. It is well settled that a decree of the orphans’ court citing an executor to file an account is an interlocutory decree from which no appeal lies: Palethorp’s Estate, 160 Pa. 316. Concerning this question Chief Justice Gibson said: “It would be oppressive to drag a suitor here on every intermediate order, to be delayed a year before he could take another step. A suit in the orphans’ court would be the business of a lifetime, and the appellate court burdened with much unnecessary litigation: ” Eckfeldt’s Appeal, 13 Pa. 171. It is unnecessary to refer to the numerous analogous cases, since these are directly upon the point. It follows that the appeal was prematurely taken.

Appeal quashed.


source: Caselaw Access Project

author: Willard, J.,

license: Public Domain

text:
    Commonwealth v. William Newhard, Appellant.

      Liquor law — Sales io minors in absence of landlord.

    Where orders are given by a liquor dealer in good faith, for the purpose of having them obeyed, forbidding sales to minors, and sales are made in his absence contrary to such orders, such fact so found would constitute a good defense.

      Illegal sale — Bonafides—Question for jury.

    Where sales are made by defendant’s wife to minors, well known both to defendant and his wife to be such, and where there is evidence that the minors had frequented the saloon and bagatelle room and had been furnished with liquor in his presence and the case is submitted to the jury, and a verdict of guilty rendered under proper instructions as to the bona fides of defendant’s orders forbidding sales to minors, the judgment will not be disturbed.
    Argued Dec. 7, 1896.
    Appeal, No. 46, Nov. T., 1896, by defendant, from judgment of Q. S. Northampton Co., Feb. T., 1896, No. 35, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Indictment for selling liquor to minors.
    Under a retail liquor license, effective during the years commencing in March, 1894 and 1895, granted by the court of quarter sessions of Northampton county, William Newhard, defendant in the court below, maintained a bar in his hotel and served liquors. It was practically admitted that shortly after obtaining the license, he placed behind the bar a placard with the inscription “No Liquor Sold to Minors,” at the same time instructing his wife and son to sell liquors neither to minors nor to drunken men. Testimony was admitted to prove that the defendant with his son, on December 16, 1895, left his bar in charge of his wife and proceeded to a neighboring pond to cut ice. During this absence several young men, who upon tiñe trial were found to have been minors at the time, were served with beer and whisky at the defendant’s bar by Mrs. Newhard, wife of the defendant. Testimony was adduced by the commonwealth to the effect that the defendant was present during the sale of some of the liquor. It was contended on the contrary by the defendant that the sales occurred between 3 and 4 o’clock, and that he did not return until 5:30 when he found the young men there; that he at once gave orders to stop the sale of all liquors to them. The court in its charge to the jury instructed them that the defendant was criminally liable, whether the sales made by Mrs. Newhard to the minors were sales as agent for or as wife of the defendant.
    Verdict of guilty. Defendant appealed.
    . Errors assigned were, (1) in charging the jury as follows to wit: “When the proprietor puts a bartender in charge of his bar, a wrongful act by the latter within the scope of his employment, and during the period of time which that employment lawfully covers is presumed to have been authorized by the principal. To such service the law of principal and agent is in some respects applied: Wharton’s Cr. Law, sections 247, 1422, 1503. But the wrong must have been committed in the service for which he was lawfully employed. Let me illustrate •tlié rule. A licensed innkeeper may sell at his bar spirituous liquors on week days but not on Sunday; his agent is therefore lawfully employed for such service during the week, and sales then made even to the excepted classes are made in the strict line of his employment, and are presumed to have been done by the master’s authority, although he is absent. . . . While such violations as I have first described are presumed to have been by authority of the principal, it is only a presumption, which must yield to proof. If there is no other evidence the proprietor may be convicted.”
    (2) In charging the jury as follows, to wit: “ The defendant contends that if sales were made to these minors by his wife they were made without his knowledge and he so testifies. If that be conceded he has put her in charge and whether we treat her as bearing the relation of wife or as agent and bartender, she is presumed to have been acting under his authority ■liand direction, although by reason of his absence he had no knowledge of these particular sales and had given no consent to them specifically. If he was present she is presumed to have acted under his compulsion as his wife ; if he was absent under .the circumstances claimed here by this proof she is presumed as his wife and agent, acting within the scope of her employment, to have made the sales by his authority and direction.”
    (8) In charging the jury as follows, viz: “ The defendant has further testified that two years ago when his license was first granted, he gave express commands that no sales should be made to minors and that a printed notice to this effect was behind the bar. I have said to you that these presumptions to which I have referred may be overcome by proof. Now, if the defendant did in good faith, for the purpose of having it obeyed, give this order and none of the sales were made in his actual presence, it would constitute a good defense. This is supported by his own testimony alone and he is an interested witness; but he is not for that reason to be disbelieved. To reject it for this reason would be to nullify practically the act of assembly which makes him competent; you have a right, however, to consider this interest in determining what credibility he is entitled to receive; you will consider what degree of probability attaches to this statement. Is it or is it not probable that if such instructions were given to the wife she would have disobeyed them? These are all matters for you.”
    (4) In imposing the following sentence upon the defendant, to wit: That he “pay costs of prosecution, a fine of $150 to the • commonwealth of Pennsylvania for use of county of Northampton, and undergo imprisonment in the Northampton county prison for the period of 20 days from this date, the defendant to stand committed until this sentence be complied with.”

      G. W. Geiser and H. J. Steele, for appellant.
    In the trial of a complaint for unlawfully selling intoxicating liquors to a minor, it is error to rule that a sale of such liquors in the master’s shop is prima facie a sale by the master: Commonwealth v. Briant, 142 Mass. 468; Commonwealth v. Wachendorf, 141 Mass. 270; Commonwealth v. Hayes, 145 Mass. 295; Commonwealth v. Stevens, 153 Mass. 421.
    “ If a sale be made by an agent ■ against the authority of the landlord and without his knowledge and assent, he would not be criminally liable: ” Ziegler v. Commonwealth, 22 W. N. C. 111.
    “Whatever may be answerability of the principal for the wrongful acts of his agent in civil actions, he is not answerable criminally when the act is in positive disobedience of his explicit instructions : ” Commonwealth v. Junkin, 170 Pa. 195.
    But the whole question was set at rest in this state by the able and exhaustive opinion of Willabd, J., in Commonwealth v. Johnston, 2 Pa. Superior Ct. 317, where the question as to the liability of a druggist for sales of his clerk, made in his absence and against his instructions was considered. See also as to liability for actions of the wife: Com. v. Murphy, 2 Gray, 510; Com. v. Butler, 1 Allen, 4; 1 Hawkins’ P. C., chap. 1, see. 11; 2 East’s P. C., 559; Rex v. Morris, 2 Leach, 1096, 1106; Hughes’ Case, 2 Lewin Cr. Cas. 231.
    And therefore he cannot be convicted for illegal acts of selling, done by the wife in his absence, unless it is shown to the satisfaction of the jury that such acts were done by his command or authority: Seibert v. State, 40 Ala. 60; State v. Baker 71 Mo. 475.

      James W. Fox, district attorney, for appellee.
    January 18, 1897:
   Opinion by

Willard, J.,

To sell spirituous, vinous, malt or brewed liquors to a minor is declared by statute to be a misdemeanor, and upon conviction the offender shall be fined not less than fifty nor more than five hundred dollars, and undergo imprisonment not less than twenty nor more than ninety days.

According to the testimony on the part of the commonwealth the defendant kept a licensed hotel. In a room over his bar room he also kept a bagatelle table where on this occasion at least boys were permitted to play the game of bagatelle for drinks. These boys were not strangers to the defendant and according to the testimony were well known to him and his family from an acquaintance of five or six years prior to the occasion on which they played for drinks on the defendant’s premises, and by too frequent visits to his bar room became intoxicated from excessive indulgence in drink bought and paid for at the defendant’s bar.

To protect young men and boys from the baneful effects of intoxicating liquors, it has been wisely declared by the legislature a misdemeanor on the part of any person with or without a license to sell to persons under the age of twenty-one years.

On the part of the defendant it is claimed that the penalty of the law should not be visited upon him for his offense, because at the time his wife was behind.the bar and dealt out the drinks to these boys in his absence and contrary to his orders.

If, under the circumstances of this case, he could cast the presumptive legal responsibility of the offense upon his wife, there was ample evidence on the part of the commonwealth that he was present himself a part of the time when the boys were drinking at the bar. This evidence was properly submitted to the jury, and, if believed, it was sufficient to remove the responsibility from the wife and place it where it belonged, notwithstanding the alleged orders and instructions.

It was also claimed by the defendant at the trial, and he testified, that two years before when his license was first granted he gave express commands that no sales should be made to minors, and that a printed notice to this effect was posted behind the bar.

The trial judge instructed the jury that if they believed such orders were given by the defendant in good faith for the purpose of having them obeyed, and that sales were made contrary to such orders and not in the defendant’s presence, such facts, so found, would constitute a good defense.

The question of the good faith of the orders and the fact of the defendant’s presence were fairly and properly submitted to the jury.

In Commonwealth v. Johnston, 2 Pa. Superior Ct. 317, we held that a druggist, who had in good faith given orders to his clerks not to sell in violation of the statute, could not be held criminally liable for an illegal sale by his clerks in his absence, and contrary to his express orders. We reversed the judgment in that case because the trial judge instructed the jury that the defendant was liable notwithstanding his orders whether given in good faith or not to his clerks, and notwithstanding that sales were made by them in his absence and against his express orders. We also decided in that case that the question of good faith was for the jury, and had to reverse the judgment because the trial judge expressly excluded that question front their consideration.

In the case before us the trial judge was careful to protect the defendant’s rights and carefully instructed the jury as to the effect of his alleged orders if given in good faith, leaving to them (as he ought to have done) the question of the bona fides of the orders. The sentence of the court was not only warranted by the statute under which the indictment was found, but was as lenient under the verdict as the defendant had a right to expect.

The specifications of error are all overruled, the judgment is affirmed, and it is ordered that the record be remitted, to the court below to the end that its sentence may be executed.


text:
    West Philadelphia Brick Company, Appellant, v. J. D. Johnson & Company, terre tenants.

      Mechanic's lien — Groups of buildings — Apportioned liens — Private street.

    Where different groups .of buildings are erected under one contract upon the same piece of ground, though separated by a private alley or vacant lot intended for a street, they are subject to an apportioned lien. Under such circumstances a man has the right to file one lien against the entire property, or he can file a lien against each one of the houses, but he cannot file two or more apportioned liens one against each group.
    A material man cannot file two joint apportioned claims under a contract to furnish bricks to sixty-five houses which were separated into two blocks of twenty and forty-five houses by a proposed street, which was not dedicated to and accepted by the city before the commencement of the building. If the street 1ms been duly dedicated and opened as a public street two joint apportioned liens would have been valid.
    Argued Dec. 15, 1896.
    Appeal, No. 69, Nov. T., 1896, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1892, No. 68, M. L. D., on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver,. Reeder, Or-lady and Smith, JJ.
    Affirmed.
    Sci.fa. sur-apportioned mechanics lien.
    The terre tenant having by leave intervened, the question in controversy turned on the' liability of three houses purchased by him for their respective apportionments of $180 a house, amounting in all to $540.
    The other essential facts appear in the opinion of the Superior Court.
    The court below, Biddle, P. J., directed a verdict for the defendant, charging the jury as follows:
    The decision in this case depends upon a question of law. A man has the right to file one lien against the entire property, or he can file a lien against each one of the houses, but he cannot file two apportioned liens against one property.
    Two apportioned liens on parts of one entire block, undivided by any street, cannot be filed; one.apportioned lien can be filed against the whole, or a lien can be filed against each house. Your verdict in this case must, therefore, be for the defendant.
    Yerdict for defendant. Plaintiff appealed.

      Errors assigned were, (1, 2) in directing a verdict for defend.ant and not directing a verdict for the plaintiff.

      Erederick J. Shover, for appellant.

      Allen H. Gangewer, for appellee.
    January 18,1897 :
   Opinion by

Willard, J.,

James Hood contracted with one, E. A. Norton, to erect for the latter sixty-five houses in the city of Philadelphia upon a piece of ground bounded by 40th street, Fairmount avenue, Aspen street and Union street.

On the 19th day of August, 1890, Hood entered into a contract in writing with the appellant by the terms of which the latter agreed to “ furnish and deliver all the brick suitable and necessary for the said sixty-five houses according to the said plan and specifications, the prices above set forth: fifty per centum of the same to be paid in cash when and as said bricks are delivered, and the remaining fifty per centum within ninety days after the said sixty-five houses are finally completed.”

At the time of the execution of this contract the evidence does not show that there was any subdivision of the property by any open street or alley, although a small street was subsequently opened called “ Sloane Str«tt,” extending from Aspen street south to Fairmount avenue. This street was conveyed to the city of Philadelphia by deed of dedication from Albert E. Norton and wife, dated May 5,1891. On June 23,1891, an ordinance accepting the plan of said street was adopted by the councils of Philadelphia, and on November 2, 1891, the street was accepted by the board of supervisors.

The evidence does not show whether Norton opened the street prior to his deed of dedication, or not.

The appellant, not having been paid for his material according to the terms of the contract, and there being a balance due thereon of $9,315, filed two mechanics’ liens in the court of common pleas, No. 1, of Philadelphia, on the 28th of March, 1892, one thereof to No. 62, March term, 1892, against forty-five of the buildings named in the contract, claiming the sum of $5,675 against the buildings named therein; also another lien to No. 63, March term, 1892, against twenty of the buildings named in the contract, claiming against said buildings the sum of $3,640. In both of the liens Albert E. Norton is named as owner and James Hood contractor.

From the bill of particulars attached to and made part of lien No. 63, it appears that the first lot of bricks was delivered under the contract on April 23,1891.

In said lien, No. 63, the property is described as follows: “ against all those twenty adjoining three story brick dwelling houses or buildings and the lots of ground and curtillage appurtenant to the same, situate on the east side of 40th Street between Fairmount Avenue and Aspen Street, in the Twenty-fourth Ward of the City of Philadelphia.”

On November 11, 1892, Albert E. Norton conveyed to Byron G. Buck and W. G. McDowell thirteen of the buildings named in lien No. 63, and on petition duly filed they were, by order of court of February 18,1893, made parties defendant and allowed to intervene. On February 21 they filed their affidavit of defense, and on June 7, 1893, judgment was entered in favor of the plaintiff for want of a sufficient affidavit of defense. Subsequently John D. Johnson by conveyance from Buck and McDowell became the owner of three of the properties designated in lien No. 63 as numbers seven, fifteen and sixteen, and by agreement he was allowed to intervene and defend, and it was agreed that as to his properties the affidavit of defense filed by Buck and McDowell should have the same force and effect as if filed by the said Johnson. Subsequently, to wit, on June 11, 1894, the judgment entered for want of a sufficient affidavit of defense was reversed by the Supreme Court, — see The Philadelphia Brick Company v. Johnson, 162 Pa. 199. The affidavit of defense alleged that two apportioned liens had been filed against parts of one entire block, and that the lien was filed more than six months after the materials were furnished. As the affidavit of defense fairly raised two questions of fact the case was remanded by the Supreme Court to the court below for further proceedings.

On the retrial of the ease the opening of a street called Sloane street became material. If the street was opened and dedicated before the commencement of the buildings, then two apportioned hens could have been filed, while if the street had not been opened and dedicated the ground upon which the sixty-five buildings were erected was one block, but if divided by an open dedicated street there would have been two blocks entitling the contractor to two apportioned hens. The exact time when this street was opened, according to the testimony, is vague and uncertain. There is nothing to show that it was an open traveled street at the time of the execution of the contract between Hood and the appellant, or at the time of the commencement of the building. But the undisputed testimony is that the street was not deeded by Norton or accepted by the city as a street until after the execution of the contract and the commencement of the building. Under the undisputed testimony this property must be regarded as one block, though separated by a prospective street which was not dedicated or accepted at the time the contract was entered into and the building commenced: Atkinson v. Shoemaker, 151 Pa. 153. The court below directed a verdict for the defendant for the sole reason that two apportioned hens against buildings in the same block had been filed, where but one was authorized by law. Whether the hen was filed in time or not was a question for the jury under the facts, but as the judge directed a verdict for the defendant upon the ground that two apportioned hens could not be filed against the same block, that question is not properly before us, and if the judge was right in giving binding instructions to find for the defendant, whether the hen was filed in time or not, is immaterial.

The right to file liens against buildings to secure mechanics and material-men for work and labor done and materials furnished in the construction of such buildings, is a statutory right. A compliance with the terms of the statute is absolutely necessary in order to subject the building to the operation of the lien.

The appellant claims in this case that he has the right, under one entire contract for the erection of sixty-five buildings located on one piece of ground, to subdivide his block and file, one apportioned lien against one part thereof on which twenty buildings are erected, and another apportioned lien against another part thereof on which forty-five buildings are located. He therefore filed his liens for a balance due on his entire contract of $9,315, charging $3,640 of said balance to the part of the entire block occupied by twenty buildings, and the balance thereof, $5,675, to the part occupied by forty-five buildings. Such an arbitrary division between parts of the same block does not rest in the discretion of the contractor and cannot be sustained in the absence of statutory authority.

The appellant contends that his liens are good because not prohibited by statute and because there is no decision against their validity. If this reasoning is sound, then it follows that he had a right at common law to file his liens. That no such right exists requires no argument. The liens must be supported by statute or they are null and void, and it is no answer to say they are good because not prohibited.

The appellant further contends that he is entitled to maintain his liens under the various acts of assembly on the subject, as construed by our Supreme Court, and because the authorities all sustain this form of lien.

In Pennock v. Hoover, 5 Rawle 298, the claim of Isaac Childs was not for one claim for stonework done to thirteen houses, but, as stated by the auditor, Childs filed four claims, first for $80.79 against three houses, second, for $99.50 against four houses, third, for $80.79 against three houses, fourth, for $80.79 against three houses. The auditor reduced the entire claim of $336.74 to $217.38 which he apportioned pro rata among the thirteen houses. In his opinion on this claim, reversing the auditor, Justice Kennedy said “It now only remains to notice what I consider an error in the manner of charging and allowing the claim of Isaac Childs. From the report of the Auditor it appears that he had three several claims of eighty dollars and seventy-nine cents each, which were each charged jointly on three of the houses, and a fourth of ninety-nine dollars and fifty cents, charged on four of the houses. Each claim embraced houses different from that of every other so that no one or more of the same houses were included in any two of the claims. These claims were each reduced something by the Auditor, but then he seems to have charged the aggregate of the balance of them as one entire claim jointly upon the thirteen houses embraced in the four several claims instead of charging the balance of each claim separately upon the proceeds of those houses specified within it, and against which it was filed. This must also be corrected, or otherwise Childs, upon the principle laid down for adjusting and making distribution of the money among the several claimants will receive more than his due proportion.”

It appears from the report of the case that Childs had done Avork as a stone mason upon four groups of the eighteen houses in one block, made his charges and filed his lien against the group according to his contract relative to each group. This he had a right to do. But had his contract been entire for the stone work upon thirteen of the eighteen houses, he could not have arbitrarily cut it into four parts and filed four claims against four groups of the houses; and Pennock v. Hoover sustains no such construction of the act of 1806 and its supplement of 1808.

In construing the act of 1806 it was held that under that act a joint claim could not be filed against two Or more adjoining houses owned by different persons, — Gorgas v. Douglass, 6 S. & R. 512. In Pennock v. Hoover, supra, it was held that under the act of 1806 and its supplement of 1808 a joint claim could be sustained against buildings owned by the same person, per Justice Kennedy, “ I am inclined to believe that the intention of the legislature, when collected from the whole of the Act of 1806, and its supplement of 1808, was to give the party who furnished materials generally, for the construction of two or more houses belonging to the same owner, without knowing how much of them was intended for each particular house, or who performed labor in the construction of them under one entire contract generally, a joint lien upon all the houses, according to the full extent of the contract.”

A mechanic’s lien cannot be apportioned among an entire block of houses belonging to the same owner but separated from each other by public streets: Goepp v. Gartiser, 35 Pa. 130; Schultz v. Asay, 2 Pennypacker 411; Lucas v. Hunter, 153 Pa. 293.

Where different groups of buildings are erected under one contract upon the same piece of ground, though separated by a private alley or -vacant lot intended for a street, they are sub-' ject to an apportioned lien: Taylor v. Montgomery, 20 Pa. 443; Fitzpatrick v. Allen, 80 Pa. 292; Kline’s Appeal, 93 Pa. 422.

The spirit of the act of the 16th of June 1836 authorizes a material-man, who has furnished materials to one contractor jointly and indiscriminately for the use of two buildings owned by different parties, to divide his bill and file a separate lien against each building: Davis v. Farr, 13 Pa. 167.

An apportioned mechanic’s lien for materials may be filed against houses in the same block separated by a prospective street which was not dedicated at the time the contract was entered into and over which the public had then acquired no right: Atkinson v. Shoemaker, 151 Pa. 153.

The authorities cited by the appellant fail to convince us that his position is correct. Section 4 of the act of March 30,1831, provides that “whereas, it sometimes happens, that several houses.and other buildings, adjoining each other, are erected by the same owner, so that it is impossible for the person who has found and provided materials for -the same, to specify in his claim filed, the particular house or other building for which the several items of his demand were so found and provided; and whereas, doubts have arisen as to the true construction, in such case, of the laws of this commonwealth; therefore, it shall and may be lawful, in every such case, for the person so finding and providing materials as aforesaid for two or more adjoining houses and other buildings, built by the same person, owner of the.same and debtor for the said materials, to file with his claim thereof, an apportionment of the amount of the same, among the said houses and other buildings ; and each of the said houses and other buildings shall be subject to the payment of its said apportioned share of the debt contracted, in the same manner as is provided by law in other cases.”

Section 18 of the act of June 16, 1836, provides that “In every case in which one claim for materials shall be filed by the person preferring the same, against two or more buildings, owned by the same person, the person filing such joint claim shall at the same time designate the amount which he claims to be due to him on each of such buildings, etc.”

The appellant, under an entire contract with Hood, the contractor, who had an entire contract with Norton, the owner, for the erection of sixty-five buildings upon one piece of ground, filed two claims instead of one, and apportioned the amount due between two blocks of houses where there was in fact but one, thus creating each block an integer followed by another apportionment among the respective buildings in each artificial block. Had this piece of land been divided by a public street, the appellant’s contract would have doubtless conformed to the true situation, and two liens might have been sustained, one against each block. But as the block was entire, the statute does not authorize the filing of two claims.

The evidence as to the comparative size and value of the buildings is unsatisfactory. The apportionment made between the two blocks would indicate the twenty buildings more valuable than the forty-five, as they were charged with nearly four-ninths of the amount of the balance claimed to be due against the entire sixty-five houses. What injustice might have been done by the apportionment to the appellant we cannot determine from the evidence, nor is it material to do so. It is sufficient to say that no statute or precedent sustains any such subdivision.

We do not think Young v. Chambers, 15 Pa. 266, overruled, and it is ample authority for our conclusions in this case.

There is another aspect that requires consideration. The agreement between the appellant and John Hood was entire. The bill of particulars, as rendered and filed and made part of the lien, was for 2,033,600 brides for premises Fortieth and Fairmount avenue, Aspen, Union streets, etc., etc. While it is held in Davis v. Farr, supra, Harper v. Keely, 17 Pa. 234 and other cases, that a material-man, who has furnished materials to one contractor jointly and indiscriminately for the use of two buildings owned by different parties, may divide his bill and file a separate lien against each building, and while we do not question this right, yet in each of those cases the contract between the owner and principal contractor was an entire one for a separate building, and consequently the lien of the material-man must follow and be governed by the contract of the principal parties. In the above cases Pennock v. Hoover is cited as authority. In that case Justice Kennedy said, “ There being but one contract, and that embracing all the buildings, there could be but one action on the contract and only one lien.” In Taylor v. Montgomery, supra, it was said by Mr. Justice Lowrie “ The mechanics’ lien laws recognize the filing of one lien against several houses, and the apportionment of the amount among them; but they do not define the cases in which such joint lien is proper. In order to obtain such a definition we must resort to the analogy of other cases, and the case of joint contracts requiring joint remedies is an obvious one.”

It is clear that the appellant under his contract could not sever it and bring one action against Hood for the brides furnished for twenty of the sixty-five houses, and another for the portion furnished for the remaining forty-five.

We are aware that in Millett v. Allen, 3 W. N. C. 374, it was held that separate liens could be filed against each of several buildings under a contract with the same owner, but the language of the eminent judges above quoted appears to be the true basis upon which to rest a joint apportioned mechanics’ lien.

When this case was first tried in the court below, it was thought by the learned trial judge that the liens were properly filed. On an appeal to the Supreme Court, 162 Pa. 202, on the question of the sufficiency of the lien, Mr. Justice Green said it was a doubtful question, and added “ The affidavit also alleges that a certain street, called Sloane street, running through the whole block which faced on four different streets, was not dedicated or placed on the city plan until after the contract for the entire sixty-five buildings was made, and therefore there was no right in the plaintiff to file two apportioned liens. This also raises a question of fact which may be, and probably is, essential to the- determination of two legal questions, to wit, one, whether two apportioned liens on parts of one entire block can be filed in any ease, and, if so, whether they can be so filed, when as a matter of fact, the land upon which the whole number of buildings was erected was a unit and undivided by any streets running through it at the time of the contract.”

The question of fact having been settled on the retrial, that Sloane street was not dedicated or placed on the city plan until after the execution of the contract and commencement; of the buildings, the trial judge directed a verdict for the defendant on the ground, that two apportioned liens on parts of one entire block, undivided by any street cannot be filed.

In view of all the authorities and the various acts of assembly relative to mechanics’ liens, we are unable to discover any right in the appellant to the extraordinary remedy sought to be enforced in this case. Had he made a contract for the erection of the twenty houses separate from the others in the block, he would have been entitled to his lien apportioned among those houses, but his contract was for sixty-five, and, as his bill of particulars shows, was for bricks used indiscriminately for one construction though consisting of adjoining parts situated upon one piece of land, and no item of the bill shows any particular part of the structure for which any of the bricks were intended, under such circumstances the arbitrary division of the block and a further division and apportionment among the buildings of each part thus established is not warranted by law, and a claim thus filed is bad because unauthorized.

If an apportioned claim against buildings erected under one contract, separated by streets, cannot be sustained “because such an apportionment is neither within the reason nor letter of the acts of assembly,” then for the same reason one block cannot be arbitrarily divided, and two claims filed' where the statute clearly authorizes and contemplates but one.

The judgment is affirmed.


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    Samuel J. Goucher, Appellant, v. Providence Washington Insurance Company.

      Marine insurance — Measure of damages — Running down clause — Liability of underwriter thereunder.

    The perils insured against in a policy of marine insurance, as ordinarily executed, do not include damages to another vessel by collision between such vessel and the vessel injured. This risk, when assumed, will be found in the “ Running Down Clause.”
    In determining the liability of the underwriter under such clause, the value placed upon the vessel insured in thp body of the policy does not enter into the controversy excepting in so far as it is a factor in making the calculation. If by the words of the clause the undertaking of the underwriter is dependent upon the amount which the insured became liable to pay and shall pay, the sum paid will be the amount of damages which have been satisfied to the damaged party: Thomson v. Hopper, 7 E. &B. 172, followed.
    Argued Dec. 17, 1896.
    Appeal, No. 171, Nov. T., 1896, by plaintiff, from order of C. P. No. 2, Phila. Co, June T., 1895, No. 1052; refusing judgment for whole amount claimed in statement of claim, for want of sufficient affidavit of defense.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on policy of marine insurance.
    The plaintiff by his statement claimed to recover $392.74. An affidavit of defense was filed admitting the sum of $199.22 to be due. Upon hearing of the rule for judgment for want of a sufficient affidavit of defense, the court entered judgment in favor of the plaintiff for the amount admitted to be due by defendant, with interest. An exception was thereupon granted to the refusal of the court to enter judgment for the full amount of the statement, with interest.
    Other facts appear from the opinion of the Superior Court.
    Judgment for plaintiff for $199.22. Plaintiff appealed.

      Error assigned, was refusing to enter judgment for the full amount of claim, with interest.

      Horace L. Cheyney, with him John F. Lewis, for appellant.
    The words of the policy are those of the insurance company, and are to be construed most strongly against them: Ins. Co. v. Crooper, 32 Pa. 351; Ins. Co. v. Updegraft, 43 Pa. 359; Ins. Co. v. Brock, 57 Pa. 80; Grandin v. Ins. Co., 107 Pa. 26.
    The word “pay” had been considered under a similar contract in the case of Tolman v. Ins. Co., 1 Cushing, 76; Beals v. Ins. Co., 36 N. Y. 522.
    Where the property insured is valued in the policy, such valuation is, in the absence of fraud, conclusive and binding upon the parties and cannot be contradicted: Phillips on Insurance, sec. 11, p. 183; McArthur on Marine Insurance, p. 70; Tyser on Insurance Losses, p. 162; Barker v. Janson, L. R. 3 C. P., 303; Hodgson v. Ins. Co., 5 Cranch, 100.

      Theodore M. Etting, for appellee.
    Congress had the power to pass the act of 1851, and it is binding on all courts and jurisdictions throughout the United States: Providence & New York S. S. Co. v. Hill Mfg. Co., 109 U. S. 578.
    As to the practice under the act'. That no analogy exists between the transfer of the vessel to a trustee for the benefit of all who may have claims upon the fund and the transfer of the vessel to the libellant himself, would seem to be clear: The Scotland, 105 U. S. 24; Norwich v. Wright, 13 Wallace, 104; The Benefactor, 103 U. S. 239. The amount of the liability has been determined by the decree of the District Court and is binding in all courts and in all jurisdictions : The Providence and N. Y. S. S. Co. v. The Hill Mfg. Co., 109 U. S. 578.
    January 18, 1896:
   Opinion by

Willard, J.,

The appellant, as part owner of the schooner “ R. and T. Hargraves ” and having an insurable interest therein, on the 13th day of December, 1893, entered into a contract with the appellee known as a policy of marine insurance, by the terms of which the latter, in consideration of a premium in money paid by the appellant, undertook and agreed to indemnify him against loss by certain perils of the sea, in said policy named, for and during the term of one year from the date thereof.

Ordinarily under the terms of such contracts, damage done by the vessel insured to another vessel by collision was not held to be one of the perils covered by the contract of indemnity, although there is a conflict of authority on this subject. This led to the insertion of a clause in marine policies known as the “running down ” clause.

In the contract between these parties the Hargraves was valued at the sum of thirty-eight thousand, four hundred dollars ($38,400), and in case of total wreck or loss this amount “ in the absence of intentional fraudulent over valuation ” was the sum fixed to be' paid, and in case of partial loss or damage, under any of the terms of the policy, this sum was to be taken as the denominator of any fractional loss or damage.

The policy in question contained a clause which is here inserted as upon its construction this case hinges. It is as follows : “ It is agreed that if the vessel hereby insured or her owners, shall, in consequence of collision with another vessel, become liable to pay, and shall pay, any sum or sums, for damages resulting therefrom, to said other vessel, her freight or her cargo, in such case this companj'- will contribute towards the payment of three fourths of the total amount of said damages in the proportion that the sum insured under this policy bears to the total valuation of the vessel as stated therein, provided that this company shall not in any event be held liable under this agreement for a greater sum than three fourths parts of the amount insured under this policy.”

On June 14, 1894, at Norfolk, Va., the Hargraves was in collision with, ran down and sunk the schooner “ W. W. Ward.” At the instance of the owners of the latter and other parties interested, a libel was filed in the district court of the United States for the Eastern District of Virginia against the Hargraves, which vessel was thereunder attached and by order of said court (under a stipulation hereafter referred to) sold by the marshal of the district, and at the sale was purchased on behalf of and for the owners of the schooner, Ward, and her cargo for the sum of seventeen thousand dollars ($17,000), which amount was paid into the registry of the court to await the determination of the cause.

Before the sale of the Hargraves by the marshal the following agreement was entered into and filed in the cause pending in the United States Court: “Memorandum of Agreement, made as a stipulation in the above entitled action, on this seventh day of July, 1894, by and between the owners of the schooner ‘W. Wallace Ward’ of New Haven, Conn., the owners of the cargo of coal on board of the said schooner on June 14th, 1894, and the master and crew of the said schooner (by Sharp and Hughes, their attorneys and Proctors lawfully authorized), hereafter known as the parties of the First Part, and the owners of the schooner R. & T. Hargraves ’ of Fall River, Mass., her master and crew (by Carver and Blodgett, their Attorneys and Proctors lawfully authorized), hereafter known as the parties of the Second Part.

“ Witnesseth : First, that the parties of the first part for and in consideration of the Agreement hereinafter made in this stipulation, do hereby agree that the liability of the said parties of the second part shall be limited to the amount that said schooner, ‘ R. & T. Hargraves,’ shall bring at a United States marshal’s sale, properly advertised under the direction of the United States Marshal for the Eastern District of Virginia, as fully and effectually as though taken by the proper proceedings under the United States Statutes and the Supreme Court rules made in relation thereto as far as the said parties of the first part are concerned, or any party or parties claiming by, through or under them. The said owners of the schooner ‘ R. & T. Hargraves,’ may be allowed to contest the amount of the liability to the Libellants in the above entitled action, but not to contest their liability in the first instance, but only the amount thereof, the said Honorable Court to issue a decree limiting the Lability of the said parties of the second part to the proceeds of the sale of said schooner ‘ R. & T. Hargraves ’ hereafter to be paid into the registry of the United States District Court of the Eastern District of Virginia.

“ Second: That the said parties of the second part hereby agree that an interlocutory decree may be entered by the United States District Court for said District in favor of the Libellants finding the said schooner ' R. & T. Hargraves ’ alone to blame for a certain collision with the said schooner ‘W. Wallace Ward,’ as claimed in a libel filed in this action, the amount of the liability thereof to remain open and to be assessed before a Commissioner and the Court if necessary.

“ That a default in that particular may be entered and said schooner ‘ R. & T. Hargraves ’ may be sold by a Marshal’s sale under order of the Court on the first day of August, A. D. 1894, said sale to be advertised and conducted in the usual way that Marshal’s sales are conducted, and that the amount paid into the registry of the Court shall be considered the limitation of liability of the aforesaid parties of the Second Part as to the said parties of the First Part, and that upon the filing of this stipulation an order may issue from this Court limiting the liability of the said owners of the schooner ‘ R. & T. Hargraves ’ so that no further action shall be brought by the said parties of the First Part against the owner or master of said schooner ‘ R. &. T. Hargraves,’ said order of the court to be issued under this agreement to be full and complete as if issued after a special hearing therein.”

On the 9th of January, 1894, the above stipulation was filed and a decree entered for want of an answer, sale of the schooner ordered, and Allen R. Hanckel appointed a commissioner to assess damages.

On October 22, 1894, the following decree was entered in said district court: “ This cause came on to be heard this day upon the papers formerly read and the report of Allen R. Hanckel, heretofore appointed as a commissioner to ascertain and report the damages by reason of a collision, in the libel mentioned. And it appearing to the court that no defense has been interposed and that the time for interposing the same has passed, it is adjudged, ordered and decreed that all persons claiming any right, title or interest in the said schooner ‘ R. & T. Hargraves ’ are in contumacy and default; and the court, proceeding to hear the cause upon the said libel and upon the said report of Commissioner Hanckel does adjudge, order and decree that the amount of loss suffered by the owners of the schooner ‘W. Wallace Ward’ by reason of said collision is thirty-thousand, five hundred and forty-four dollars and ninety-nine cents ($30,544.99), and that the amount of damage suffered by the owners of the cargo of said vessels is two thousand, nine hundred and fifty-eight dollars and seventy-two cents ($2,958.72).

“ It further appearing to the court that the said schooner ‘ R. & T. Hargraves ’ has been sold and that the proceeds of sale are in the registry of this court, it is further adjudged, ordered and decreed that the said proceeds, after the payment of court costs and expenses, shall be divided between the owners of the 'W. Wallace Ward,’ to be paid to Henry Sutton, managing owner, and the owner of the cargo in proportion to their respective losses.

“And it further appearing from the papers filed that the Providence Washington Insurance Company, owner of said cargo, has authorized the said Henry Sutton to collect the amount payable to it, it is further adjudged, ordered and decreed that his receipt shall be a full discharge to the clerk for that proportion.

“It is further adjudged, ordered and decreed that the amounts hereinbefore decreed respectively to the owners of vessel and cargo shall be payable to their proctors of record.

“ And in accordance with an agreement duly filed in this case, it is hereby ordered and decreed that the liability of the owners of said schooner ‘ R.'& T. Hargraves ’ and of her master J. F. Allen, for all damages caused to the owners of said schooner ‘ W. Wallace Ward,’ or her captain and to the owners of the cargo on board at the time by reason of the collision mentioned in the libel herein, or to any parties claiming by, through or under them or either of them, be and it is hereby limited to the amount in the Registry of this Honorable Court received from the sale of said schooner ' R. & T. Hargraves.’ And it is hereby further ordered, adjudged and decreed that the payment of said fund by the clerk in accordance with this decree to the libellants or their proctors of record shall be a full and final discharge of said owners of said schooner ' R. & T. Hargraves ’ and said J. F. Allen, her master, from all claims against them or either of them arising by reason of said collision.”

In the court below the appellant filed his statement of claim, basing it upon the amount of damages to the schooner Ward, as found by the commissioner in the United States district court, to wit, thirty-three thousand five hundred and three dollars and seventy-one cents (133,503.71), and claiming Iris proportionate share thereof under the terms of his policy. To this claim the appellee filed an affidavit of defense, averring that it was only liable for the proportionate share of the amount realized at the marshal’s sale of the Hargraves, to wit: Seventeen thousand dollars (117,000) and admitted its liability for a proportionate amount to be due, to wit: one hundred and ninety-nine dollars and twenty-two cents ($199.22). Upon hearing of rule for judgment for Avant of a sufficient affidavit of defense the court below entered judgment in favor of plaintiff for the amount thus admitted to be due tvith interest. To this an exception was taken and granted. The error here assigned is to the refusal of the court to enter judgment against the defendant for three hundred and ninety-two dollars and seventy-four cents ($392.74) with interest, the amount claimed by the plaintiff in his statement.

Prior to March 3, 1851, where a vessel upon the navigable waters of the United States, through the carelessness or negligence of master or crew, collided Avith and damaged another vessel, the OAvner of the vessel causing the injury was held personally liable for the entire injury inflicted.

Since the passage of the Limited Liability Act by congress in that year, the rule is changed and the OAvner not being in fault himself, on the surrender of the offending vessel to a trustee, as provided in that act, and sale thereof by due process of law, may lose his vessel, but with the surrender of it and sale thereof under a decree in admiralty the owner is absolved from further personal liability.

The undertaking on the part of the appellee was that if the vessel hereby insured, or her OAvners, shall, in consequence of collision with another vessel, become liable to pay, and shall pay, any sum or sums for damage resulting therefrom to said other vessel, her freight or her cargo, in such case this company will contribute, etc.

By the United States statute above referred to, in case the OAvner is not in fault himself, the vessel alone is liable to pay the damage by a proper proceeding against said vessel in the proper court. The undertaking of the appellee is to pay a certain part of the amount that the Hargraves becomes liable to pay and does actually pay; while it is true the commissioner found the damage to the Ward'and her cargo to be thirty-three thousand, five hundred and three dollars and seventy-one .cents ($33,503.71), yet it is equally true when the Hargraves was sold by the marshal the sum realized at the sale was seventeen thousand dollars ($17,000), and this was the sum actually received by the owners of the Ward and cargo for the damage sustained as the result of the collision. If any other sum was paid, who paid it; and from what source was it derived ? It will not do to say that because the damage to the Ward and her cargo was appraised at thirty-three thousand, five hundred and three dollars and seventy-one cents ($83,503.71), therefore the appellee is liable to pay its proportionate share of that amount. The plain meaning and language of the contract is to pay a proportionate amount of the damage ascertained and paid, and the amount paid was seventeen thousand dollars ($17,000).

The value placed upon the Hargraves in the policy does not enter into this controversy, except in arriving at the true fraction of the liability. The Hargraves, so far as we know, was uninjured. Whatever her condition may have been is here immaterial. The risk under the “running down” clause must be confined to the damage done and paid to the owners of the Ward and cargo, for that was the risk assumed by the appellee, in the clause of the policy upon which this suit is founded. The appellant says the owner of the Ward took his vessel and he has lost it, therefore the appellee must pay on the basis of the appraisement, not the amount paid to and received by the owners of the Ward. The answer is, the appellee did not so agree and its liability under the clause cannot be so construed. The owners of the Ward did get the Hargraves, but how? As purchasers at marshal’s sale, they being the highest and best bidders for the same.

The stipulation set forth in the affidavit of defense, entered into between the parties and filed in the United States Court in the libel proceeding, is not material. It in no way affected the rights of the parties, and its only object evidently was to expedite the proceedings. The result reached was the same. The Hargraves was sold by the marshal to pay the damages caused by running down the Ward.

Had the owners of the two vessels entered into a stipulation that the Hargraves should be turned over to the owners of the Ward and her cargo, without further proceedings, in satisfaction of the appraised damage, without collusion between them, then there might be some foundation for appellant’s argument. But no such agreement was made. The vessel was sold at judicial sale under the decree of the United States Court to satisfy the lien of the attachment against her. She brought at that sale seventeen thousand dollars (17,000); that was the. amount paid to the owners of the Ward and cargo, and the only-amount they ever received, and the proper proportionate amount of that sum is the true amount for which the appellee is liable in this case, which was properly adjusted and calculated in the court below, and judgment was there correctly entered for the amount admitted by the appellee in his affidavit of defense.

The contention of the appellant that the appraised estimate of damage, whether paid or not, fixes the true standard of appellee’s liability cannot be entertained without disregarding the contract between the parties.

If “ A ” has a judgment of $1000 against “ B ” which is a lien on the latter’s farm, if the farm is sold at sheriff’s sale, on the judgment of “A,” for $500, that is not paymént of the entire judgment even though “ A ” bids in the farm and it is actually worth more than the amount of the judgment.

In Arnould on Marine Insurance, vol. 2, p. 730, in treating of the “running down ” clause, it is said : “ In another way he, the insured, may sustain a loss without remedy under this special clause; • that is to say, if he, after damage done to another ship by his own, stand by and see his ship sold under decree of the court of admiralty for a smaller sum than she is worth, his right against the underwriter is confined to the amount actually paid under the decree, and he cannot claim for loss by reason of the forced sale under decree.”

In Thomson v. Hopper, 7 E. & B. 172, the facts were identical with the facts in this case. The “ running down ” clause was in the same language; the face of the policy was for three thousand pounds (£3,000) ; the ship insured ran down and destroyed another ship. By a decree of the admiralty court the insured ship was sold to satisfy the damages for the sum of two thousand one hundred and ten pounds (£2110). Opinion by Lord Campbell, C. J. “ It is clear that the underwriters are liable only by virtue of the special clause. Their liability must be limited by its terms; and these are that they are to make good ‘three fourths part of the sum so paid.’ The sum paid is here the amount of the damages which have been satisfied to the damaged party.”

By Wightman, J. — “ If the owners of a damaged ship had taken the Margaret in satisfaction of their claim, there would have been more ground for Mr. Mainsty’s argument, as it is, there is none.”

By Crompton, J. “ The underwriters limit their ability by using the word paid. No more than ¿62110 is here paid.”

On principle and authority full effect must be given to the contract of the parties as made. By their own covenants they have fixed a standard of liability between themselves too plain to be misunderstood. The court below correctly construed the contract and entered judgment for the true amount of the appellee’s liability under its contract of indemnity.

The judgment is affirmed.


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    John W. Adams, Appellant, v. William H. Ford, M. D., et al. (Members of the Board of Health of the City of Philadelphia), and Sanders Newmeyer.

      Nuisance — Abatement—-Power of board of health. -
    The board of health in Philadelphia has final jurisdiction in determining the fact of nuisances which it orders to be removed.
    A privy well may or may not be a nuisance per sé according to circumstances, and the board of health has power to determine the character of such wells and to direct the necessary things to be done in order to prevent its becoming or remaining a nuisance. If cleaning the well does not abate the nuisance the board may take the next step and order the well to be filled up.
    Argued Dec. 16, 1896.
    Appeal, No. 68, Nov. T., 1896, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sept. T., 1895, No. 678, dismissing bill for injunction.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Bill in equity to enjoin filling up of plaintiff’s privy well.
    The cause was heard in the court below on bill, answer and proofs under the new equity rules of 1894, and the court, Biddle, P. J., dismissed the bill ip. the following opinion:
    The bill in this case was filed to restrain the board of health of the city of Philadelphia from filling up and abating a certain privy well, the existence of which after cleaning had been declared to be a nuisance prejudicial to the public health.

      FINDING OF FACTS.
    The facts are not in dispute, and are admitted by both sides. The plaintiff is the owner of a dwelling-house, situate at No. 732 Carver street, and one Sanders Newmeyer is the owner of premises No. 731 South street, the rear portion of said premises adjoining the rear portion of the premises of the plaintiff. The said privy well is situated partly on the premises of the plaintiff and partly on the premises of the said Newmeyer, the said well having been used in common by the owners and occupants of the respective premises for twenty -years and upwards up to the year 1894. During the month of June, 1894, said well, in pursuance of a complaint, was ordered to be cleaned by the board of health.
    The well was cleaned, and subsequently the board of health, after an inspection, was ^of opinion that the cleaning of the well did not abate the nuisance. The said board of health thereupon ordered the well to be abandoned and filled with clean earth. The plaintiff thereupon filed this bill, praying for an injunction to restrain the board of health from filling the well, on the ground that while the board of health had authority to remove the cause of any nuisance arising from said well, by ordering it to be cleaned, scoured, or cemented, it had no power or authority to order the well to be filled. “ The plaintiff offers to show that said well was similar in construction and condition to all such wells now in daily use in the city of Philadelphia, and that said well was not in itself a nuisance, and that any objection that could be made against it on the ground of its being a nuisance could be removed by cleaning, scouring or cementing it, and the plaintiff voluntarily offered to do these things.” [2]
    This offer was overruled, and exception was taken thereto by plaintiff.
    CONCLUSIONS OF LAW.
    The court is of the opinion that the order of the board of health directing said well to be filled and the nuisance abated, was conclusive as to the question whether cleaning, scouring and cementing would remove the cause of the nuisance, and that the board of health had authority to order the well to be filled up, if, in their opinion, it was a nuisance, and that the propriety of its action in that regard could not be inquired into by any court of justice in the absence of positive fraud or bad faith. The bill is dismissed.
    Bill dismissed, the court certifying that the amount involved in the bill does not exceed the sum of $1,000, exclusive of costs. Plaintiff appealed.

      Errors assigned were, (1) in finding and holding as matter of law that the board of health had authority to order said well to be abated and filled up ; (2) in rejecting plaintiff’s offer of evidence as recited in the opinion of the court below; (3, 4) to the conclusions of law of the court below; (5) dismissing plaintiff’s bill.

      Thomas Earle White, for appellant.
    The power given to a municipal body to abate nuisances in any manner it may deem expedient is not an unrestricted power; such means only are intended as are necessary for the public good. The abatement must be limited by its necessity, and no wanton or unnecessary injury to the property or rights of individuals must be committed : Babcock v. Buffalo, 56 N. Y. 268 ; Eddy v. Board of Health, 10 Phila. 94; Phila. v. Provident Trust Co., 132 Pa. 224.

      Howard A. Davis, with him John L. Kinsey, city solicitor, for appellee.
    Relied on act of April 5, 1849, P. L. 346; Act of June 30, 1885, P. L. 250, and Kennedy v. Board of Health, 2 Pa. 366.
    Upon the question of the right to an injunction it was decided in the case of The Iron Works v. Borough, 3 Lancaster Law Review, 107, that “the discretion of a municipal corporation will not be controlled by injunction; ” and again, “ to warrant the granting of an injunction to restrain' municipal action, it must clearly appear that the officers of the corporation are acting in excess of the powers granted by law.” Tittle v. City, 2 Pearson, 153; Mellon v. Scranton, 3 Law Times, (N. S.) 118.
    January 18, 1897:
   Opinion by

Willard, J.,

This case rests upon the proper construction of the acts of assembly relative to the powers and duties of the board of health of the city of Philadelphia. The act of January 29,1818, P. L. 38, provides, inter alia, as follows : “ It shall be the duty of the said board of health to cause all offensive or putrid substances, and all nuisances which may have á tendency in their opinion t'o endanger the health of the citizens, to be removed from the streets, lanes, alleys, highways, wharves, docks or any other part or parts of the city of Philadelphia, and to cause such of the privies within the limits aforesaid to be emptied or corrected with lime or otherwise at the expense of the individuals who are the owners of the houses to which .the said privies are appurtenant, as the board shall from time to time deem necessary for the health of the inhabitants thereof.”

The act of April 5, 1849, P. L. 346, provides, inter alia, as follows: “ The board of health shall have full power and authority’to remove the cause of all nuisances, that exist now, or may be hereafter created, hi the same manner and by the same authority as the existing laws now authorize them to remove all nuisances.”

This bill was filed by the appellant to prevent the filling of a privy vault or well, partly on his premises, with clean earth in order to prevent a nuisance in a thickly populated part of the city of Philadelphia. The facts found by the trial judge, which are not in dispute, show that during the month of June, 1894, said well, in pursuance of a complaint, was ordered to be cleaned by direction of the board of health; that the well was cleaned, and subsequently the board, after an inspection, were of Opinion that the cleaning of the well did not abate the nuisance. The board of health thereupon ordered the well to be abandoned and filled with clean earth.

A privy well may or may not be a nuisance per se according to circumstances. According to the facts of this case, ample authority is vested by the legislature! in, the board of health to determine the character and location of the \Vell in question and to order and direct the necessary things to be done in order to prevent the nuisance. By the acts of assembly that discretion is vested in the board of health, and it is not for this court to disturb or question the exercise o.f that discretion. In this case the board declared that the cleaning of the well did not abate the nuisance, and so it is found as matter of fact. This being so, the board had the right to take the next step and order the well filled with clean earth.-

In Philadelphia v. Provident Trust Company, 132 Pa. 224, the board went one step- further, and in the exercise of its discretion directed the erection of water closets and connections after having directed the cleaning of the well. This, it was held, was in excess of delegated authority. In that case it was an admitted fact that the cleaning abated the nuisance. In this case it is a matter of fact that the cleaning was not sufficient without filling, which, in its discretion, the board of health properly ordered to be done.

That “ no wanton or unnecessary injury to the property or rights of individuals must be committed in the abatement of nuisances,” as held in Babcock v. Buffalo, 56 N. Y. 268, is undoubted law, but the facts in this case show no wanton or unnecessary injury.

In Kennedy v. Board of Health, 2 Pa. 366, the court held that the board of health “have final jurisdiction in determining the fact of nuisances which they order to be removed.” In that case the defendant maintained upon a vacant lot in Philadelphia a stagnant pool of water which the board of health deemed a nuisance and ordered the defendant to fill it with-earth that the nuisance might be abated.- Failing to do so, the board of health caused it to be filled with two hundred and fifty-four (254) loads of earth, and filed a lien against the lot for the recovery of the cost of filling, which on appeal was sustained. Had Kennedy been directed to clean the stagnant pool, and this means having proved ineffectual on investigation by the board of health, and the filling subsequently ordered, can it be successfully asserted that the act of cleaning could be interposed as a defense to the scire facias on the lien for the filling of the pool? We think not; this case is ruled by Kennedy v. Board of Health, supra.

The judgment of the court below is affirmed.


text:
    Assigned Estate of the Solicitors Loan and Trust Company.

      Trusts and trustees — Banks and banking — Mingling of trust funds with general deposits.

    Where money, received by a trust company as trustee, is not lcept distinct nor invested in any specific way, but is mingled with the general mass of money on deposit and used in the general banking business, and there is no means of tracing or ascertaining its identity in any form or species of property, the cestui que trust is not entitled lo a preference over general creditors in a distribution of the assigned estate of the trust company.
    Argued Dec. 16, 1896.
    Appeal, No. 132, Oct T., 1896, by T. De Witt Cuyler and Effingham B. Morris, assignees, from the order and decree of C. P. No. 2, Phila. Co., Dec. T., 1895, No. 1132, directing the assignees of the Solicitors Loan and Trust Company to set aside the sum of $807.54, to be held by them as a trust fund for the benefit of the estate of John Cob-son, a lunatic.
    Before Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Petition to have funds, placed with a trust company, set aside as a special trust fund.
    Frederick K. Cobson was appointed by the court of common pleas, No. 4, Phila. Co., committee of the person and estate of John Cobson, lunatic, on October 21, 1895, and security in the sum of $10,000 required. He thereupon arranged with the Solicitors Loan & Trust Company to furnish the required-security upon the deposit with said company, as indemnity, of all moneys, securities and proceeds from the same belonging to the estate of the lunatic, under the provisions of an indemnity agreement, and the same not to be withdraAvn except by order of the court and on orders or checks countersigned by one of the officers of said company.
    On December 24, 1895, the Solicitors Loan & Trust Company was approved as surety by the court and executed the requisite bond, receiving, as indemnity, from Frederick K. Cob-son all cash and securities of the lunatic’s estate valued at $4,691.26, of Avhich $807.54 was in cash and the balance in securities.

      An assignment to Effingham B. Morris and T. DeWitt Cuyler, for the benefit of creditors, was made on January 3, 1896, by the Solicitors Loan & Trust Company.
    An order of the court of common pleas, No. 4, was granted to Frederick K. Cobson on April 7, 1896, whereby he was authorized to sell certain securities and expend the proceeds from the same in the payment of medical bills, board and other proper charges connected with the care and maintenance of the lunatic, and in addition thereto allow the sum of $10.00 per week for his future maintenance and support.
    Upon application to the Solicitors Loan & Trust Company for the cash deposit of $807.54, the same was not paid over on the ground that it was not sufficiently earmarked to form a trust fund for the estate of the lunatic. The committee, Frederick K. Cobson, contended that such was his intent upon placing the same with the company, not that it should be regarded as an ordinary deposit.
    A petition representing the above facts, together with the contentions of the committee of the lunatic was presented by Frederick K. Cobson to the court below and by a decree of that court the petition was granted and the assignees of the Solicitors Loan & Trust Company ordered to set aside the sum of $807.54 to be held by them as a trust fund for the benefit of the estate of John Cobson, lunatic.
    From tlris decree, directing the setting apart of the sum of $807.54 as a trust fund, the appeal is taken by the assignees above.
    Prayer of the'petition granted and decree entered directing the assignees to set apart $807.54 to be held by them as a trust fund for the benefit of the estate of John Cobson, a lunatic. Assignees appealed.

      Error assigned was, entry of decree, reciting same.

      Richard S. Hunter, for appellants.
    Even if the averments of the petition had been proved it is clear that the assignees cannot set apart, in a special trust, money deposited in the general fund of the company. This is decided in the following cases: Thompson’s Appeal, 22 Pa. 16; Bank v. King, 57 Pa. 202; People’s Bank Appeal, 93 Pa. 107; Carmany’s Appeal, 166 Pa. 622. The latter case cannot be distinguished from the present one.

      R. J. Byron, with him J. S. Clark, for appellee.
    It is an elementary principle that trust funds may be followed through various conversions so long as their identity can be established. The assignees of the insolvent company represent the company itself as its creditors. These creditors are entitled to the assets of the insolvent company only, but not to any trust funds that belong to other parties.
    This general subject is considered in full in an able opinion by Seymour, J. in Bank v. Dowd, 38 Fed. Rep. 172, where the learned judge suggests four principles.
    The real issue is, in what cases can a trust fund be followed where it has been mingled with other moneys of the trustee ? The leading case is Knatchbull v. Hallett, L. R. 13 Chancery, 696; Bank v. Ins. Co., 104 U. S. 54; Bank v. King, 57 Pa. 202; Freiburg v. Stoddard, 161 Pa. 259; Frelinghuysen v. Nugent, 36 Fed. Rep. 229; Peters v. Bain, 133 U. S. 670. On the general subject see also Bank v. Ins. Co. 104 U. S. 54, and Cavin v. Gleason, 105 N. Y. 256.
    January 18, 1897:
   Opinion by

Willard, J.,

The facts of this case are to be gathered from the petition presented by the appellee in the court below, and the agreement attached thereto and made part thereof.

Upon this petition the appellant rested without denial by answer or otherwise, and upon it the court acted and made the order from which this appeal is taken.

The cash item of eight hundred and seven dollars and fifty-four cents (#807.54) is all that is immediately involved in this controversy. When the money and securities were deposited with the trust company, it was agreed between the company and the appellee that “ the proceeds of all securities, and all securities and moneys belonging to said estate shall be deposited with the said parties of the first part (the trust company), and shall be and remain in their custody and control until the same shall be duly and legally distributed and awarded by the court having jurisdiction of the accounts of the said party of the second part, except such payments as may be legally required in administering the estate, and then shall be paid out to such person or persons as the same may be directed to be paid to by the award, order and decree of said court.” It further appears from the petition that the money and securities were “not to be withdrawn except by order of the court and on orders or checks countersigned by one of the officers of the company.”

In construing the agreement of the parties we treat the language as understood in connection with the business in which the parties were engaged at the time of the transaction. The money was placed under the control of the trust company. Such payments as were legally required in administering the estate were to be made upon the order of the court and upon cheeks. Where would the money be placed in order to answer and pay checks ? Would it be sealed up in a package with the name of the estate marked thereon ? Or would it naturally be deposited and mingled with the other funds of the company for the purpose of answering and paying orders or checks as presented?

When the order of court of April 7,1898, was made, directing the payment of certain bills for medical attendance, medicines, board and other proper charges incident to the management of the estate, the property of the trust company had been in the hands of the assignees for the benefit of creditors for over three months. The assignees answered that they could not pay over the sum of eight hundred and seven dollars and fifty-four cents ($807.54) cash “ on the ground that said money was not sufficiently earmarked so as to form a trust fund for the estate of the lunatic; and on the further ground that the said money, when placed in the hands of the Solicitors Loan and Trust Company, was entered by the company on its books as a deposit in the name of Frederick K. Cobson, committee of John Cobson.”

The above language is quoted from the petition. While it is true that the petitioner further states “ that he did not agree or consent that said cash should be deposited in the ordinary way, or be regarded as an ordinary deposit,” we are of the opinion, under all the facts, that the moneys of this estate amounting to eight hundred and seven dollars and fifty-four cents ($807.54) were legitimately deposited and mingled with the other moneys of the trust company, and at the' date of the assignment the trust company was debtor to the estate to that extent as an ordinary depositor.

Tbe rule of law that trust funds may be followed through various conversions so long as their identity can be established by sufficient and proper earmarks, is a salutary one, and is sustained and approved by our Supreme Court in numerous decisions.

To the other rule which allows the cestui que trust preference over other creditors, where moneys of an insolvent trustee for distribution are mingled with his, unmarked and undefined, we do not assent. This rule once established opens the door to a flood of alleged preferred claims, depending for their establishment upon oral testimony as to the intent and agreement of the parties at the time of the deposit, and when carried to its logical conclusion in ordinary cases, would leave the honest unsecured creditors at the mercy of the unscrupulous. Let him who claims preference over others out of the funds of an insolvent trust company show the plain impress of some earmark upon the money or thing claimed to be preferred, and not leave the identity to the uncertainty of human recollection; otherwise, let him take his chances with others to share in the common fund to be distributed.

This is the rule in Pennsylvania, and we see no good reason for departing from it.

The facts in this case are not exceptional and we cannot hold the appellee entitled to preference over the other creditors of the trust company without an unwarranted departure from the rule requiring reasonable identification.

We cannot distinguish this case from Carmany’s Appeal, 166 Pa. 622, in which case it is decided “ where money received by a bank as trustee is not kept distinct nor invested in any specific wajr, but is mingled with the general mass of money on deposit and used in the general banking business, and there is no means of tracing or ascertaining its identity in any forpi or species of property, the cestui que trust is not entitled to a preference over general creditors in a distribution of the assigned estate of the Bank.” To the same effect is People’s Bank’s Appeal, 93 Pa. 107; Bank v. King, 57 Pa. 202; Thompson’s Appeal, 22 Pa. 16; in which latter case it is held “ whenever a trust fund has been wrongfully converted into another species of property,' if its identity can be traced it will be held, in its new form, liable to the claim of the cestui que trust; but the right of pursuing it fails when the means of ascertainment fail; and this is the case when the subject-matter is converted into money or confounded with a mass of property of the same description.”

We see nothing in the facts of this case to distinguish it from the above cases. The specification of error is sustained and the order of the court below of June 18, 1896, directing Effing-ham B. Morris and T. DeWitt Cuyler, assignees of the Solicitors Loan & Trust Company, to set aside the sum of $807.54 to be held by them as a trust fund for the benefit of the estate of John Cobson, a lunatic, is overruled and set aside.


author: Rice, P. J.,

text:
    Franklin D. Heffner, Appellant, v. John M. Sharp, Constable and Bailiff.

      Replevin for arrears of dower — Set-off inadmissible.

    In actions of replevin growing out of a distress for rent or arrears of dower, set-off is inadmissible in the sense in which that term is commonly used.

      Replevin — Set-off-—Evidence—Family settlements.

    Plaintiff’s offer of evidence was properly rejected, which attempted to set off against arrears of dower distrained for, and which had accrued under a decree in partition, a cross demand growing out of an alleged mistake in an amicable settlement of the widow’s claims against the plaintiff for moneys due from him, individually and as administrator, to the widow. Settlements of family disputes are favored in law and equity and are in any case reluctantly reopened.
    Argued Nov. 14, 1896.
    Appeal, No. 159, Nov. T., 1896, by plaintiff, from judgment of C. P. Berks Co., March T., 1896, No. 6, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Replevin for goods distrained for arrears of dower.
    Lucy Heffner, widow of Daniel Heffner, (subsequently intermarried with one Schearer) distrained through the defendant constable, John M. Sharp, for arrears of dower alleged to be due her on an estate of which her son, Franklin D. Heffner, was seized. The son Heffner replevied and made offers of evidence tending to show that by his inadvertence and mistake, if corrected, in a certain adjustment and settlement made between himself and his mother some years previous, an overpayment or set-off would appear which would show that no dower was in arrears at the time of the distraint made. The court rejected these offers, which formed the ground for the first four assignments of error, Endlich, J., charging the jury as follows-:
    In this case there does not seem to be any question to be passed upon by the jury. The only evidence here is that this party, Lucy Schearer, at whose instance this distress was made was entitled to a certain amount of dower at the hands of the plaintiff. There is no evidence to contradict her in this case that can be submitted to the jury, and, therefore, your duty in this matter will be to find a verdict in favor of the defendant, and to find the amount of interest in arrears due to Lucy Schearer, together with the interest on said arrearages, was $140.50, that she is entitled to.
    Exception noted for plaintiff.
    Other facts appear in the opinion of the Superior Court.

      Errors assigned were, (1-4) rejection of all offers of evidence, reciting same; (5) error in charging the jury.

      D. E. Schroeder, for appellant.
    A defendant upon common law principles is in general entitled to retain or claim by way of deduction all payments made by him, and all just demands and allowance accruing to him in request of the same transaction or account, which forms the ground of action, and in this respect such defense is clearly distinguishable from sehoff: Chitty’s Pleading, 495; Chitty on Contracts, 1266 (11Am. ed.).
    Set-off should not be confounded with the defense, that there was an agreement by which plaintiff should accept certain counter demands in satisfaction of his claims: Livermore v. Newburyport Insurance Co., 2 Mass. R., 232.
    As to mistake and forgetfulness of appellant in matter of settlement with widow in 1892, appellant cites the following: Horton v. Harbridge, 127 Pa. 11; Meredith v. Haines, 14 W. N. C. 364.
    Under the pleadings the appellant’s offer of testimony, overruled and assigned for error, should have been admitted: Weber v. Rorer, 151 Pa. 487.

      J. H. Marx, for appellee.
    Set-off is inadmissible in replevin: Anderson v. Reynolds, 14 S. & R. 439; Fairman v. Fluck, 5 Watts, 516; Peterson v. Haight, 3 Wharton, 150.
    If the appellant’s proof sustained the offer, he could, after May 3, 1892, have maintained an action for the recovery of the overpayment: Everson v. Fry, 72 Pa. 326. Therefore, the appellant’s right to recover the alleged overpayment is as a set-off, and not as a legal and technical payment. It is the nature of his right that distinguishes this case from Weber v. Rorer, 151 Pa. 487, relied upon by the appellant.
    January 18, 1897:
   Opinion by

Rice, P. J.,

This was an action of replevin. The defendant admitted and justified the taking of the goods under a distress' warrant issued by Lucy Schearer for the collection of the interest or arrears of dower due to her for the years 1892 and 1893. The plaintiff pleaded “payment ” and “ no interest due andin arrears.”

It appears by the pleadings and evidence that in proceedings in partition in the estate of Dan’l Heffner, deceased, a purpart was adjudged to, and accepted by, Franklin D. Heffner, the plaintiff in this action. On March 31, 1888, he entered into recognizance to pay Lucy Heffner, now Schearer, the widow of the decedent, the sum of $62.36 yearly, being the interest on one third of the valuation of the purpart less costs. The decree itself was not offered in evidence and is not printed in the paper-books, but according to the plaintiff’s allegation in his offer of evidence, it subjected him to no liability for interest accruing prior to April 1, 1888, the date of the decree. The instalments falling due on April 1, 1893 and April 1, 1894 not having been paid when they fell due, Lucy Schearer dis-trained for the same and this action of replevin followed. The plaintiff claimed on the trial of the issue that he was justified in refusing payment because of a double payment for the years 1885 and 1886; and in support of this contention he offered to prove the following facts: Franklin D. Heffner was the administrator of his father’s estate. After an adjudication of his account, his mother, Lucy Schearer, instituted proceedings in the orphans’ court to enforce payment of the sum adjudged, to be due her as her share of the personalty. Franklin filed an answer or petition in which he acknowledged to owe her arrears of dower amounting to $62.36 yearly from April 1,1885, notwithstanding the fact that the partition proceedings were not instituted until 1888. He also claimed that while her share of the personalty was .only $532.83 he had paid her before filing his account of $950.

On the hearing in the orphans’ court, or at least at the time of the hearing she brought in a personal claim of $200 and .interest for money loaned to him. Franklin did not dispute this, the proceedings in the orphans’ court were not pressed to a conclusion, and amicable settlement of all these matters was finally reached on May 3,1892, in which she was allowed credit for dower interest from April 1, 1885 to April 1, 1891. The balance found to be due her on this settlement was $206.56 which he paid. The plaintiff claims that when he filed his answer in the proceedings above referred to, and when he made this settlement he forgot that he had furnished his mother with butter, milk, eggs, wood and other articles equal in value to the dower interest for the two years beginning April 1, 1885, and that there was a subsequent agreement between them that these articles should be considered as payment of the interest for those two years. His counsel argues that, although he did not make payments which were specifically applied to the instalments of interest for the years 1892 and 1893, yet the foregoing facts show payment of all the arrears of dower that had accrued at the time of the distress, and that under the rulings in Weber v. Rorer, 151 Pa. 487 the evidence of them was admissible for that purpose.

The point decided in Weber v. Rorer was that in an action of replevin where the question under the pleadings was how much rent, if any, was in arrears at the time of the distress, it was improper to reject evidence that overpayments were made by the tenant in previous quarters, and to limit the proof to such payments only as were made in the quarter for the rent of which the distraint was made. That case is distinguishable from the present in several particulars. There the alleged over payments were made on account of rent reserved in the lease under which the tenant occupied the premises at the time of the distress. If the tenant had alleged over payment of rent reserved in the lease for a preceding term, it is prohable that a different conclusion would have been reached. Here the alleged double payment was made on account of the widow’s dower accruing prior to the time when the premises were accepted by the plaintiff, and indeed prior to the institution of the partition proceedings. No pretense is made that at the settlement of May 3, 1892, there was any thought in the minds of the parties that the plaintiff was anticipating the payments of interest which would accrue under the decree, or was paying generally upon that account.

The credits allowed were for specific years prior to the decree, and as to those years, according to the plaintiff’s allegation, there was a special and independent arrangement between him and his mother. Again, the settlement of May 3, 1892, was made on the basis of the plaintiff’s sworn answer to the proceedings his mother had instituted. She having been led to abandon those proceedings and to amicably adjust and compromise the several matters in dispute between them, it would be manifestly inequitable to permit him to set up his mere forgetfulness as a ground for going behind the settlement, and forbid it to be opened for all purposes. But, if this were permitted, it would follow, that in an action of replevin where, stating it most broadly, the only issue raised by the pleading was, whether arrears of dower had accrued after the partition decree and were unpaid at the time of the distress, the court and jury would be called upon to try other issues; namely, what arrears of dower or mesne profit had accrued prior to the decree; was theie an agreement by which something besides money was taken in payment thereof; was there a mistake made in the settlement of May 3,1892; what was due and unpaid the plaintiff’s mother as her share of her husband’s personal estate — a matter peculiarly within the jurisdiction of the orphans’ court; — what did the plaintiff personally owe her for borrowed money. The substantial objection to the admission of this evidence is not that the questions of fact raised would he numerous and complicated, nor, perhaps, that the settlement made in May, 1892, was in every respect conclusive, but that it would not show that the interest distrained for was not due and unpaid. The offers were in effect an attempt to set off against the dower interest for the years 1892 and 1893, which had accrued under the decree in partition, a cross demand growing out of an alleged mistake in an amicable settlement of the widow’s claims against the plaintiff for money loaned to him personally, for money due from' him as administrator, and for money which he had voluntarily admitted under oath was due to her on account of her dower for specific years prior to the partition of his father’s estate. The law is well settled in Pennsylvania that in replevin growing out of a distress for rent or arrears of dower, set-off is inadmissible in the sense in which that term is commonly used. Furthermore, settlements of family disputes are favored in law and in equity, and we are of opinion that the court correctly held that the adjustment of the several matters in dispute'made bjr the plaintiff with his mother was so far conclusive that it could not be reopened in this case.

Judgment affirmed.'