author: Morrison, J.,

text:
    Talley v. Talley, Appellant.

      Divorce — Adultery—Evidence of wife’s good character.

    In a suit for divorce by a husband against a wife, where the ground is adultery, evidence of the wife’s good reputation for virtue and chastity is inadmissible.

      Divorce — Adultery—Evidence—Misconduct of husband — Act of March 13, 1815, sec. 7, 6 Sm. L. 286 — Condonation.
    In a suit by a husband against his wife for divorce on the ground of adultery, it is error to reject an offer to prove that the husband had also committed adultery during the marital relation.
    Not decided whether the wife could so condone the offense of the husband as to give the husband a right to a divorce for the subsequent adultery of the wife.
    In a suit for divorce on the ground of adultery, respondent requested the court to charge as follows: The two essential elements of the offense are, first, opportunity, and second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor. Held, that the court committed no error in refusing to affirm the point, while referring the jury to the general charge where adequate instructions were given.
    Argued Oct. 5, 1905.
    Appeal, No. 103, Oct. T., 1905, by respondent, from judgment of C. P. No. 5, Phila, Co., March T., 1904, No. 12, on verdict for libelant in case of John E. Talley v. Susan E. Talley.
    Before Rice, P. J., Beaver, Or-lady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Libel for divorce. Before Ralston, J.
    At the trial the respondent made the following offer:
    I offer to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity.
    Objected to. The answer to said offer being as follows : Objection sustained Exception for defendant. [1]
    I offer to prove that the plaintiff, John E. Talley, on or about September 10, 1901, while living with the respondent as man and wife, committed the crime of adultery.

      The answer to said offer being as follows:
    The court, addressing the witness:
    “ Q. When did you know of this? A. I knew from the condition of his clothes. Q. When? A. September 10. Q. The same night ? A. Yes, sir. Q. And you lived with him as his wife after that? A. Yes, sir. Q. For two years? A. Yes, sir.”
    Offer objected to. Objection sustained. Exception for defendant. [2]
    Respondent presented these points :
    11. If you believe, from the testimony, that the plaintiff, during the continuance of his married relations with the defendant, had been guilty of the like crime of adultery with which he has charged her in the libel filed, it is a good defense to this suit, and your verdict must be for the defendant.

      Answer: The defendant’s points are declined upon the ground that they are sufficiently covered in the general charge. [8]
    8. The two essential elements of the offense are, first, opportunity ; and second, adulterous desire or inclination of the parties charged. If these two facts appear in conjunction, you are at liberty to draw an inference of adultery provided you are satisfied thereof by a preponderance of the evidence, and believe the testimony offered in support of the charge. Either of these two facts alone would not be enough to justify you in returning a verdict against the defendant, and if you find that either is absent, your verdict must be in her favor.

      Answer: The defendant’s points are declined upon the ground that they are sufficiently covered in the general charge. [4]
    9. Mere friendly, indiscreet or suspicious conduct does not sufficiently show the guilty desire. Such actions must be considered with reference to the ethical standards of the party’s social equals. Appearances and circumstances equally capable of two interpretations should be decided in favor of the inference of innocence. Answer : Refused. [5]
    Yerdict and judgment for libelant. Respondent appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the biR of exceptions; (3-5) above instructions, quoting them.

      Louis B. Bunk, with him John B. Bead, Silas W. Pettit and H. B. Grill, for appellant.
    The court erred in refusing to permit witnesses to testify on behalf of the respondent as to character: O’Bryan v. O’Bryan, 13 Mo. 16 ; Clement v. Kimball, 98 Mass. 535 ; Marble v. Marble, 36 Mich. 386 ; Derby v. Derby, 21 N. J. Eq. 36, 39; Noel v. Noel, 24 N. J. Eq. 137, 140; Thomas v. Thomas, 51 Ill. 162; Hilker v. Hilker, 153 Ind. 425 (55 N. E. Repr. 81) ; DuBose v. DuBose, 75 Ga. 753; Engleman v. Engleman, 97 Va. 487 (34 S. E. Repr. 50).
    In Pennsylvania the right to offer evidence relating to character in a divorce suit has never been passed upon before so far as the reports show, but such evidence is admissible in other civil actions where character is directly in issue from the nature of the action, e. g.; Libel, Henry v. Norwood, 4 Watts, 347; Defamation, Conroe v. Conroe, 47 Pa. 198; Moyer v. Moyer, 49 Pa. 210; Breach of promise; Van Storch v. Griffin, 71 Pa. 240; Drown v. Allen, 91 Pa. 393; Glace v. Hummel, 24 Pa. C. C. Rep. 550; Hurtzig v. Hurtzig, 44 N. J. Eq. 329 (15 Atl. Repr. 537); Hickerson v. Hickerson, 52 S. W. Repr. 1019; Helmes v. Helmes, 24 Misc. 125 (52 N. Y. Supp. 734); Winston v. Winston, 165 N. Y. 553 (59 N. E. Repr. 273).
    The learned judge, avIio tried the cause, erred in refusing to permit testimony to be given to prove that the plaintiff, John E. Talley, had committed the like crime of adultery : Costello v. Costello, 191 Pa. 379; City of Pittsburg v. Kalchthaler, 114 Pa. 547; Bronson v. Bronson, 7 Pliila. 405; D’Aguilar v. D’Aguilar, 1 Hagg. Eccl. 773; Beeby v. Beeby, 1 Hagg. Eccl. 789; Peck v. Peck, 44 Plun, 290; Clapp v. Clapp, 97 Mass. 531; Morrison v. Morrison, 62 Mo. App. 299 ; Lawlor v. Lawlor, 76 Mo. App. 637; Tracey v. Tracey, 43 Atl. Repr. 713; Keats v. Keats, 1 Sw. & Tr. 334; Cameron v. Cameron, 42 Tenn. 375; Dismukes v. Dismukes, 1 Tenn. 266.
    The learned judge who tried the cause, erred in refusing the defendant’s eighth point: Brown v. Brown, 63 N. J. Eq. 348 (50 Atl. Repr. 608) ; Berckmans v. Berckmans, 17 N. J. Eq. 453 ; Yocum v. Yocum, 3 Pa. Dist. Rep. 615; Inskeep v. Inskeep, 5 Ia. 204; Berckmans v. Berckmans, 16 N. J. Eq. 122 ; Conger v. Conger, 82 N. Y. 603 ; Mayer v. Mayer, 21 N. J. Eq. 246; Jones v. Jones, 18 N. J. Eq. 33; Osborn v. Osborn, 44 N. J. Eq. 257 (9 Atl. Repr. 698). '

      Avery J). Harrington, with him Herbert M. Boyer, for appellee.
    It has been held, not only in Pennsylvania, but in other states and in England, that direct evidence is not necessary to sustain the charge of adultery,: Hurtzig v. Hurtzig, 44 N. J. Eq. 329 (15 Atl. Repr. 537); Loveden v. Loveden, 2 Hagg. Con. 1; Matchin v. Matchin, 6 Pa. 332; Wilson v. Wilson, 154 Mass. 194 (28 N. E. Repr. 167); Daily v. Daily, 64 Ill. 329; Jayne v. Jayne, 5 Misc. 307 (25 N. Y. Supp. 810).
    The court did not err in refusing to admit testimony to the effect that the libelant had always borne a good reputation for virtue and chastity: O’Bryan v. O’Bryan, 13 Mo. 16 ; Dudley v. McCluer, 65 Mo. 241; Engel v. Dressel, 26 Mo. App. 39 ; Home Lumber Co. v. Hartman, 45 Mo. App. 647; Porter v. Seiler, 23 Pa. 424; Ins. Co. v. Hazen, 110 Pa. 530.
    The court did not err in refusing to permit the respondent to give testimony that the libelant had committed the like crime of adultery, respondent having lived with libelant as his wife for a period of two years after her knowledge of the alleged adultery on the part of the libelant: Keats v. Keats, 1 Sw & Tr. 334; Bronson v. Bronson, 7 Phila. 405.
    December 11, 1905 :
   Opinion by

Morrison, J.,

This was a libel in divorce a. v. m. on the ground of adultery, the issue being made by an answer on the part of the' respondent denying the charge and demanding a jury trial. Before trial and verdict the respondent filed a supplemental answer, by leave of court, setting up the adultery of the libel-ant during his marital relations with her as a statutory defense and demanding a jury trial as to the additional issue thus joined, but the court refused to allow any evidence to be given in support of this charge. The result of the trial was a verdict in favor of the libelant, and a final decree in divorce having been granted the respondent appealed to this court.

The record contains five quite lengthy assignments of error, but they can all be considered under three heads : (1) the refusal of the court to hear testimony as to the respondent’s character for virtue and chastity; (2) the refusal of the court to admit testimony that the libelant had committed the crime of adultery during the term of his marital relations with the respondent; and (8) whether the learned trial judge failed in his charge to adequately instruct the jury on the law as raised in the respondent’s eighth and ninth points.

At the trial counsel for the respondent offered to prove by two witnesses, who knew Mrs. Talley continuously up to the date of the trouble with her husband, that she had always borne a good reputation for virtue and chastity. This offer was objected to and the court sustained the objection and allowed an exception to the respondent. It must be conceded that this question is not without difficulty. The action in divorce grounded on adultery is said to be a civil action, yet it partakes very largely of the nature of a criminal prosecution.

In Garrat v. Garrat, 4 Yeates 244, Yeates, J., in pronouncing the opinion of the court in regard to a charge of adultery in a divorce case, said : “ I perfectly concur in opinion with the judges who tried the issues in this libel, that it would be highly dangerous to the citizens in general if they were compelled to answer to criminal charges without being informed of the specific offenses against which they were called upon to defend themselves.

“ Common sense is in unison with the constitution when it declares that, in all criminal prosecutions, the accused hath aright to be heard by himself and counsel, and to demand the nature and the cause of the accusation against him.” There we find a plain declaration to the effect that an action for divorce founded on a charge of adultery is a criminal charge or prosecution.

In Matchin v. Matchin, 6 Pa. 332, Gibson, C. J., said (p. 336): “ A libel for divorce is said to partake of the nature of a criminal proceeding, but the primary intent of it is undoubtedly to keep the sources of generation pure, and when they have been corrupted, preventative remedy is to be applied without regard to the moral responsibility of the subject of it.” This was said in reference to an action in divorce founded on adultery, and it is another declaration of our Supreme Court that such action is of the nature of a criminal proceeding.

In 1 Greenleaf on Evidence, sec. 54, it is said : “ To this rule may be referred the admissibility of evidence of the general character of the parties. In civil cases such evidence is not admitted, unless the nature of the action involves the general character of the party, or goes directly to affect it. Thus, evidence impeaching the previous general character of the wife or daughter in regard to chastity is admissible in an action by the husband or father for seduction; and thus, again, may be rebutted by counter proof. . . . And, generally, in actions of tort, whenever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel it.”

In 2 Bishop on Marriage & Divorce, sec. 644, it is said: “ The principle which best commends itself to reason and modern authority is, that the rules of evidence are the same in civil and criminal causes, when the issue, which is the test, is the same. And elsewhere it is held, for example, in an action of slander wherein the defendant pleads the truth in justification, that the plaintiff in reply to the defendant’s testimony, may introduce evidence of his good character, in analogy to the rule prevailing in criminal proceedings. And the doctrine, as applicable to civil and criminal suits, has been well expressed by Chancellor Walworth to be, that, if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evidence or by the testimony of witnesses of doubtful credit, he may introduce proof of his former good character.” See also sec. 645 : “ The practice of the courts generally in divorce suits has been to receive evidence of character to an extent somewhat beyond even the practice of common-law courts in criminal cases. ... In Ohio it was laid down, in an adultery divorce suit, that the complainant’s general reputation for chastity is always in issue, in cases of this sort.”

In Nash v. Gilkeson, 5 S. & R. 352, there was an action of assumpsit, and the defendants, conceiving that the evidence given by plaintiff intended to impeach the honesty of Gilkeson, their testator, brought out in cross-examination of one of the plaintiff’s- witnesses the general character of Gilkeson. Gibson, J., speaking for the court, said: “ There cannot be the least doubt but the evidence was improperly received; Gilkeson’s general character was not put in issue by the nature of the action, and it never was pretended that when a party is incidentally charged by the evidence with the commission of a particular fraud, that the charge can be rebutted by evidence of general good character.”

In Zitzer v. Merkel, 24 Pa. 408, which was an action on the case by a father for the seduction of his minor daughter by the defendant, evidence of the good character of the daughter was offered and received in evidence, but the Supreme Court reversed the judgment for this reason.

A general review of the cases in Pennsylvania does not satisfy us that the court erred in excluding the evidence of the previous good character of the respondent for virtue and chastity. It seems to the writer, however, in view of the criminal character of the charge of adultery, and the moral turpitude involved therein it would be proper to allow a respondent so charged to prove her previous good character for virtue and chastity. But it is a sufficient reply to this contention that the adjudicated cases do not seem to authorize such testimony.

In Porter v. Seiler, 23 Pa. 424, it was decided, as stated in the syllabus : In an action of trespass for injury inflicted with a knife evidence of his general good, peaceable character was not admissible on part of defendant for the purpose of rebutting malice. Evidence of character is not admissible in civil suits except where it is directly in issue, and Avhere from the nature of the issue such evidence is of special importance in the suit trying. Whether the act charged or complained of be indictable or not is not material.”

In many of our sister states it seems that evidence of the previous good character of the respondent in divorce cases founded on adultery has been received. And in Massachusetts evidence of the reputation of the alleged co-respondent was received.

But we are controlled by the general trend of the decisions upon analogous cases in Pennsylvania. And they do not seem to sustain the doctrine of 1 Greenleaf on Evidence, sec. 64, and 2 Bishop on Marriage and Divorce, see. 644.

The second assignment raises the question of the refusal of the court to receive proof of the adultery of the libelant while he was. the husband of the respondent. The offer to prove the adultery of the libelant was specific, giving the date. In our opinion it was error to reject this offer, notwithstanding the fact that the wife had lived with the husband in the marital relation after her alléged knowledge of his adultery. This offer was made under the Act of March 13, 1815, sec. 7, 6 Sm. L. 286, namely: “ That in any suit or action commenced in the said court, for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of the like crime, or has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact, or that the said plaintiff (if the husband) allowed of the wife’s prostitution, or received hire for them, or exposed his wife to lewd company, whereby she became ensnared to the crime aforesaid, it shall be a good defense and a perpetual bar against the same.” Now eliminating from this section four of these defenses, which do not relate to the offer in the present case, and we then have the following: “ That in any suit or action commenced in the said court, for a divorce for the cause of adultery, if the defendant shall allege and prove that the plaintiff has been guilty of the like crime .... it shall be a good defense and a perpetual bar against the same.”

The reason moving the learned court below to reject the offer giving rise to the second assignment, seems to be based upon the fact that the respondent admitted the libelant into conjugal society, or embraces, after she knew of the criminal fact. The act recognizes adultery as a crime and provides that it shall be a good defense and a perpetual bar against an action for divorce on the ground of adultery, brought by a libelant who has been guilty of the same crime. If this libelant had committed adultery as stated in the offer, and we must now assume that it could have been proved, he was guilty of a crime, which was a perpetual bar against his action, unless condonation by the wife would operate to relieve him from this disability.

On the consideration of this case the members of the court do not agree upon the question of whether or not it was in the power of the wife to so condone the offense of the husband, if the evidence warranted a finding that he was guilty of adultery, so as to allow him to procure a divorce from his wife for the same offense. But we are all of the opinion that the court erred in not admitting the evidence to sustain the offer giving rise to the assignment under discussion, and then it would be a question for the consideration of the trial judge whether the evidence was sufficient to go to the jury on the question of the commission of the crime of adultery by the husband during his marital relations with the respondent, and if such evidence were sufficient then the question would arise thereunder as to the knowledge the wife had of his guilt, and whether or not she had condoned, attempted to condone, or could condone the said, offense. In view of the fact that we are not agreed upon this question we have concluded to sustain the assignment and reverse the case and send it back for a new trial, and inasmuch as the evidence may not call for a decision of the question above alluded to we withhold our opinion upon that point until the decision of the question necessarily arises.

In this connection see Costello v. Costello, 191 Pa. 379.

We now come to the fourth assignment which complains of the learned court in refusing the defendant’s eighth point. The ground of this refusal was that the question raised by this point was sufficiently covered in the general charge. This point seems to be in accord with the doctrine of some of the text-writers. But in our opinion, it is perhaps a little too technical and refined for the consideration of a jury by a simple affirmance of it. A careful reading of the charge satisfies us that it was plain and adequate, and it is likely that a reading and affirmance of this point would not have aided the jury in reaching a correct conclusion.

The same may be said in substance as to the fifth assignment, and we do not think, in view of the general charge, that the learned judge erred in refusing to read this point to the jury and affirm it.

The assignments are all dismissed except the second, -which is sustained, and the decree is reversed with a v. f. d. n.


source: Caselaw Access Project

author: Pee Curiam,

license: Public Domain

text:
    Horn & Brannen Manufacturing Company v. Steelman, Appellant.

      Mechanics’ liens — Gas fixtures — Contract—Delivery—Act of June 15,1897, P. L. 155.
    The Act of June 15, 1897, P. L. 155, extending the right to file a mechanic’s lien to persons supplying gas fixtures-and other appliances mentioned in the act gave a right of lien where the goods were contracted for before the passage of the act, but delivered to the building after the passage and approval of the act.
    Argued Oct. 12, 1905.
    Appeal, No. 248, Oct. T., 1905, by defendant, from order of C. P. No. 8, Phila. Co., Dec. T., 1897, No. 806, M. L. D., sustaining exceptions to report of referee in case of The Horn & Brannen .Manufacturing Company v. Walter E. Steelman.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien.
    Exceptions to report of E. Spencer Miller, Esq., referee.
    McMichael, J., filed the following opinion:
    In this case the report of the referee was set aside by the court of common pleas, but no opinion was filed. The Superior Court has referred the case back to us, in order that the views of this court, in differing with the learned referee, may be stated.
    The case was originally argued before Honorable Thomas K. Finletter and Honorable Henry J. McCarthy. Honorable Henry J. McCarthy, to whom had been assigned the duty of writing the opinion, was a very conscientious and painstaking judge, but the great pressure of work -and his serious illness probably prevented the writing and filing of an opinion by him.
    The very courteous language of the court above in alluding to the duty of the inferior courts to file opinions where reports of referees are reversed, has prompted this explanation upon the record of a seeming omission by our court.
    As the writer of this opinion did not sit upon the original argument of the case, a reargument was ordered.

      The question argued before us on the second or reargument was whether the Act of June 15, 1897, P. L. 155, extending the right to file a mechanic’s lien to persons supplying gas fixtures and other appliances mentioned in the act, gave a right of lien where the goods were contracted for before the passage of the act, but delivered to the building after the passage and approval of the act.
    The referee was of opinion that no right of lien existed. His opinion is learned, lengthy, and, although not altogether clear, it reached the conclusion that the plaintiff had no right of lien.
    The Act of Assembly, approved June 15,1897, P. L., 155, is entitled, “ An Act to amend section 1 of a supplement to an Act entitled ‘ An Act relating to the lien of mechanics and others,’ ” etc. By section 1 it is provided “ that upon and after the passage of this act, the several provisions of the act to which this is a supplement be, and the same are hereby, extended to plumbing, gas fitting and furnishing, and erection of grates and furnaces, gas fixtures, electric light fixtures and wiring.”
    As appears by the testimony, the claimant, who knew that this act was before the legislature, made a contract to supply gas fixtures for the building which is the subject of lien, and he states in his testimony that the goods were supplied by him upon the credit of the building, and not upon the personal credit of the defendant. The goods were delivered after the act of assembly was approved by the governor and had become a law. It was argued on behalf of defendant that the goods could not have been sold upon the credit of the building, because there was no act of assembly giving the right to lien at the time the contract was made, and that, therefore, the goods could not have been sold on the credit of the building ; that is, upon the faith of the right to lien by statute, and must have been sold on the personal credit of the defendant.
    On the other side, it was argued that the delivery of the goods to the building upon the faith of the credit of the building is the criterion by which we are to determine whether the right of lien exists.
    The view of this court was, and still is, that a delivery of the goods upon the faith and credit of the building determines the right of lien. The right of lien, in our opinion, came into existence when the debt arose, and this was when the goods were delivered to the building. Prior to that, there was only a contract to deliver goods, and the plaintiff might, if he had chosen, have refused to execute his contract, and all the vendee could have recovered would have been damages for the breach' of contract; title to the goods had not. passed. But when the goods were delivered to the building a debt arose, and the spirit and meaning of the mechanic’s lien law is that as the labor or goods went into and became part of the building, the mechanic or material man should have a right to look to the building for his money. As his labor or goods are, as it were, incorporated into the building, he had a right in the building itself. That right has been called a mechanic’s lien, and the general trend of decisions in this state is in favor of ■ protecting the lien for labor and material where it is possible without straining the law.
    In our opinion, the controlling fact in this case is that there was a law in existence, namely, the act of June 15,1897, giving the right of lien for gas fixtures at the time when the gas fixtures for which the claim in this case was filed were delivered.

      Error assigned was the order of the court.

      H. Gordon McGouch, with him Henry S. Drinker, Jr., for appellant.
    In the absence of positive indication that the legislature intended to give the act of 1897 retrospective operation, it should not be so interpreted.
    The time at which the debt in question was “ contracted,” within the meaning of the act in question, was not the time of the delivery of the goods, but the time of making, the contract which gave rise to the debt, and therefore the act of June 15, 1897, gives no lien for goods delivered pursuant to a contract entered into before that date.
    In upholding the plaintiff’s construction of the act we must impute to the legislature the intention to abrogate the established rule of law that goods for which a mechanic’s lien is claimed must have been sold on the credit of the building: Oppenheimer v. Morrell, 118 Pa. 189; Fahnestock v. Wilson, 95 Pa. 301; Schroeder v. Galland, 26 W. N. C. 33; Hancock’s, Appeal, 115 Pa. 1 ; Brown v. Cowan, 110 Pa. 588; Haddington Church v. Philadelphia, 108 Pa. 466 ; Presbyterian Church v. Allison, 10 Pa. 413 ; Owen v. Johnson, 174 Pa. 99; Hommel v. Lewis, 104 Pa. 465; Odd Fellows Hall v. Masser, 24 Pa. 507.

      Samuel Q-ustine Thompson, with him Walter Willard, for appellee.
    As liens are peculiarly the creatures of statute and do not exist under the common law, they are debts chargeable against the structures. Such debts are created either by the work done or the delivery of the articles, and then only, when so created, the liens spring into existence: Wilson v. Forder, 80 Pa. 129 ; White v. Miller, 18 Pa. 52.
    December 10, 1905 :
   Pee Curiam,

The six judges who heard this case being equally divided in opinion, the judgment is affirmed.


author: Porter, J.,

text:
    Collins, Appellant, v. Pennsylvania Railroad.

      Mechanic’s lien — Subcontractor—Notice—Act of June 4, 1901, P. L. 431.
    Where a mechanic’s lien shows upon its face that the contract under which the plaintiff furnished the materials was made with a person other than the owner, it is essential under paragraph 11, sec. 11, of the Act of June 4,1901, P. L. 431, that it should state “when and how notice was given to the owner of an intention to file the claim.” A mere statement that the material was furnished “in pursuance of a verbal contract” between the contractor and the plaintiff is insufficient.
    Argued Oct. 19, 1905.
    Appeal, No. 35, Oct. T., 1905, by plaintiff, from order of G. P. No. 1, Pbila. Co., Dec. T., 1903, No. 2657 M. L. D., making absolute rule to strike off mechanic’s lien in case of William J. Collins, trading as Joseph H. Collins & Son, v. The Pennsylvania Railroad Company, owner or reputed owner, and M. F. Seeley, J. S. Seeley and C. R. De La Matyr, trading as Seeley, Son & Company, Contractors.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.

      Rule to strike off mechanic’s lien. Before Beitleb. J.
    The notice and affidavit were as follows :
    “ William J. Collins, trading as Joseph H. Collins & Son, v. Pennsylvania Railroad Company, owner or reputed owner, and Seeley, Son & Company, contractors.
    “ Philadelphia, October 30, 1903.
    “ To the Pennsylvania Railroad Co.:
    “ Please notice, that it is my intention to file a mechanic’s claim against the grain elevator, power house, stock and office building erected upon the lot of ground at Germantown Junction in the city of Philadelphia, bounded by Park avenue, Sedgeley avenue, Clearfield street, and Thirteenth street.
    “ Very truly,
    “William J. Collins,
    “ Trading as Joseph H. Collins & Son.”
    “ City and County of Philadelphia, ss. :
    “William J. Collins, trading as Joseph H. Collins & Son, being duly affirmed according to law, says: I claim from the Pennsylvania Railroad Company, owner or reputed owner, and Seeley, Son & Company, contractors, the sum of $1,134.62, with interest from September 5, 1903, the said sum being the balance due me of the sum of $13,236.04 for materials, to wit: Lumber furnished by me to the said Seeley, Son & Company, for, in, and about the erection and construction of the grain elevator, power house, stock and office building erected upon the lot of ground at Germantown Junction, in the city of Philadelphia, bounded by Park avenue, Sedgeley avenue, Clearfield, and Thirteenth streets, between January 17,1903, and September 5, 1903, on which last mentioned date the last of said material was furnished to the said Seeley, Son & Company, contractors, as aforesaid. The said lumber was furnished by me in pursuance of a verbal contract between Seeley, Son & Company and myself.
    “ I have been informed, and in consequence of such information further notify you, that the buildings aforesaid were erected and constructed by the said Seeley, Son & Company, in pursuance of the agreement made and executed between the said Pennsylvania Railroad Company and the said Seeley, Son & Company for the erection and construction of the said buildings.
    “ Affirmed and subscribed, etc.
    “ Wm. J. Collins.”
    The court made absolute rule to strike off the lien.

      Error assigned was the order of the court.

      Henry Spalding, of Fell f Spalding, with him Alfred Moore, for appellant.

      J. Quincy Hunsioker, with him John Hampton Barnes, for appellee.
    December 11, 1905 :
   Opinion by

Porter, J.,

This mechanic’s lien showed upon its face that the contract under which the plaintiff furnished the materials was made with a person other than the owner, and it was essential, under the provisions of paragraph 11, sec. 11 of the Act of June 4, 1901, P. L. 481, that it should state “ when and how notice was given to the owner of an intention to file the claim.” The court below held the notice set forth in the claim to be insufficient, under the provisions of the 8th sec. of the act of June 4, 1901, and struck off the lien.

We have held, in The Wolf Company v. Pennsylvania Railroad Company, ante, p. 439, that if in a case of this character it appears upon the face of the record that the notice given failed to meet the requirements of the section of the statute referred to, the lien should be stricken off. The right of the plaintiff to file a lien is founded upon the statute, which makes the giving of the notice, required by the 8th sec. of the act, a condition precedent to the exercise of the right. The legislature has made the right of a subcontractor, intending to file a claim, dependent upon his giving the owner written notice to that effect, “ together with a sworn statement setting forth the contract under which he claims,” etc. The vital elements of a contract are the covenants which it contains, and a statement which does not furnish the owner with information as to the substantial covenants of the contract does not meet .the requirements of the statute. The only information which the notice served upon these defendants'conveyed as to the nature of the contract was that: “ The said lumber was furnished by me in pursuance of a verbal contract between Seeley, Son & Co. and myself.” This only informed the ‘ defendants as to the character of the evidence by which the covenants of the contract were to be established, but left them wholly in ignorance as to what the contract really was; and bound the plaintiff to nothing. He might, untrammeled by this notice, prove any covenants, made at any time, so long as those covenants were verbal. This was not the character of notice to which the owner was entitled.

The order of the court below is affirmed.


author: Pee Cxjeiam,

text:
    Penrose, Appellant, v. Caldwell.

      Affidavit of defense — Supplemental affidavit — Practice, C. P.

    A supplemental affidavit of defense cannot be said to be contradictory of the original affidavit of defense, where the supplemental affidavit is fuller and more specific than the original, and it appears that the facts averred in it are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom. •

      Promissory notes — Payment of debt — Affidavit of defense.

    In an action upon a promissory note, an affidavit of defense is sufficient which avers that prior to the giving of the note, a third person had paid to the plaintiff, at a time and place stated, for and on behalf of the defendant, the full amount of the claim for which the note was given “for the purpose of liquidating the said claim in full, if any, that the said plaintiff had,” and that this fact was not learned by the defendant until after he had given the note. ■
    Argued Oct. 19, 1905.
    Appeal, No. 128, Oct. T., 1905, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1904, No. 2684,-discharging rule for judgment for want of sufficient affidavit of defense in casa of Penrose v. Cadwell.
    Before Rice, P. J., Beavejr, Orlady, Porter, Morrison and HenDERSON, JJ.
    Affirmed.

      Assumpsit on a promissory note.
    Two affidavits of defense were filed. The supplemental affidavit of defense was as follows:
    ■ That the said note upon which suit has been entered in the above case has been paid, and the money for the same was paid and received by the said plaintiff in Philadelphia, on, to wit: the latter part of January, 1902, only a few days before note was given by the defendant to the plaintiff in New York city, and while the plaintiff wras assistant paymaster in the United States Navy. The plaintiff’s father, Medical Director Penrose, paying the said indebtedness to the plaintiff, upon behalf of the said defendant, and for the purpose of liquidating the said claim in full, if any, that the said plaintiff had, and, subsequently, deponent avers the said plaintiff accepted and received the note in question from the said defendant, knowing at the time that he had been paid the $100 in full of any claim which he might have against the said defendant, while the said defendant, at the time was innocent and was not apprised of this fact until he subsequently learned, while in Philadelphia, from his friend, Medical Director Penrose, whom he had known a number of years, that he had paid the same for him. Deponent also avers that the plaintiff is endeavoring to collect his claim twice, said indebtedness having been paid as aforesaid, and the said defendant not being indebted to or owing the plaintiff any other sum or sums, or is not indebted to him in the sum for which this suit is instituted of $100.
    Deponent further states that the plaintiff has not complied with his agreement to cancel the note, entered into in New York when the note was signed, whereby he was to be released, under the circumstances more fully set out in the original affidavit.
    Deponent further says in conclusion that there was no consideration upon or for which the said note was given, he never having received a penny from the plaintiff, nor any service or other good and valuable consideration, but in truth and in fact was deceived into giving the said note to the said plaintiff.
    The said defendant is not indebted to the said plaintiff in the sum of $100, with interest, as averred in plaintiff’s statement, or in any sum.

      All of which, is true and the deponent verily believes he can prove on the trial of the cause.

      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.

      Daniel JR. Bothermel, with him Joseph A. Oulbert and J. Stanley Smith, for appellant.-
    The original and supplemental affidavits are to be construed as one affidavit: Susquehanna Mut. Fire Ins. Co. v. Sprenkle, 18 York Leg. Rec. 121; Hertz v. Sidle, 20 Pa. Superior Ct. 88 ; Sykes v. Anderson, 14 Pa. C. C. Rep. 329.
    The -affidavit fails to state the information, belief and expectation of ability to prove that the payment of the money was made by plaintiff’s father in liquidation of plaintiff’s claim. The affidavit shows that defendant’s informant is dead : Black v. Halstead, 39 Pa. 64; Newbold v. Pennock, 154 Pa. 591; Tilli v. Vandegrift, 18 Pa. Superior Ct. 485.

      Edgar IV. Black, for appellee.
    December 11,1905 :
   Pee Cxjeiam,

An affidavit of defense must not be self-contradictory. It is argued that an original and a supplemental affidavit of defense are to be construed as one affidavit, and, therefore, when, without explanation, the supplemental affidavit contradicts the averments of the original in matters essential to a valid defense, the court is warranted in holding that they are insufficient to prevent a judgment. This maj'- be conceded as a general proposition, but we think it does not apply to the case. The supplemental affidavit is fuller and more specific than- the original, but the facts averred in it are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom.

The affidavits contain recitals which, for the sake of conciseness, might well have been omitted. Passing these, as well as the averment that the defendant never owed the sum for which the note .was given, we find it distinctly and positively averred that, prior to the giving of the note, a third person had paid to the plaintiff, for and on behalf of the defendant, the full amount of the claim for which the note was given, “ for the purpose of liquidating the said claim in full, if any, that the said plaintiff had,” and that this fact was not learned by the defendant until after he had given the note. The time and place of payment, as well as the sum paid, aré set forth with particularity, and the affidavit concludes: 45 All of which is true and the deponent verily believes he can prove on the trial of the case.” It is thus seen that the defendant avers positively, not upon mere information, the existence of certain facts which, if proved, would constitute a defense, and that he verily believes he can prove them upon the trial. The concluding averment is almost literally a copy of one which in Hutton v. McLaughlin, 1 Pa. Superior Ct. 642, was held sufficient. See also Eyre v. Yohe, 67 Pa. 477.

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


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    Dotterer v. Scott, Appellant.

      Debtor and creditor — Payment—Mistake.
    Where a debtor is ignorant of the full amount due to his creditor, and relies upon misstatement of facts by the creditor, and pays an amount in excess of the real debt, he may subsequently recover from his creditor, the amount of such excess.

      Appeals — Assignments of error — Rulings on evidence — Instruction.
    An assignment of error which includes a refusal of a point, and also the refusal of the court below to permit the call of additional jurymen, is in violation of rule 15.
    When error assigned is to the charge of the court or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment.
    An assignment of error will not be considered which does not quote the judge’s answer to a point totidem verbis, although it contains the point.

      Practice, C. P. — Trial—Jurors.
    Where a case is called for trial, and the defendant and his counsel not appearing, a jury is sworn, the defendant cannot, when the case is proceeded with on the following day, demand that eight more jurors shall be called so that he might have an opportunity of challenging four. In such a case the defendant waived his’right by failing to appear on the day the case was set down for trial.

      Argued Oct. 20, 1905.’
    Appeal, No. 94, Oct. T., 1905, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1900, No. 729, on verdict for plaintiff in case of Abner E. Dotterel* v. John H. Scott.
    Before Rice, P. J., Beaver, Or-lad y, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Assumpsit to recover money paid under mistake.
    The facts are stated in the opinion of the Superior Court.
    Verdict for plaintiff for $976.64, upon which judgment was entered for $891.04, all above that amount having been remitted.

      Errors assigned were as follows :
    1. Refusal of the learned court to affirm the defendant’s second point-.
    2. Under all the evidence in the case the verdict should be for the defendant.
    The refusal of the court to permit the clerk to call eight more jurors so that defendant could exercise his right to have four peremptory challenges.

      Henry J. Scott, for appellant.
    There is no principle of law better settled than that money voluntarily paid with a knowledge of the facts, cannot be recovered back: Matthews v. Smith, 67 N. C. 374; Vick v. Shinn, 49 Ark. 70 (4 S. W. Repr. 60) ; Benson v. Monroe, 61 Mass. 125 ; De La Cuesta v. Ins. Co., 136 Pa. 62; Forbes v. Appleton, 59 Mass. 115.

      Eeoni Meliclc, .of Ifelich, Potter Hechert, for appellee.—
    The following cases show that money paid by mistake may be recovered back when the mistake is mutual; also when the mistake is the mistake of but one party he can recover it back if the other party led him into the mistake; also that negligence in making the mistake does not deprive a party of his remedy; also that accord and satisfaction does not differ from any other contract in this particular: Meredith v. Haines, 14 W. N. C. 364; Kelly v. Solari, 9 M. & W. 54; Krumbhaar v. Yewdall, 153 Pa. 476; Taylor v. Commissioners, 3 P. & W. 112; Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615.
    December 11, 1905 :
   Opinion by

Morrison, J.,

This was a verdict and judgment thereon in favor of the plaintiff for money alleged to have been paid to the defendant under a mistake of fact. The verdict was for the sum of '$976.64, but the plaintiff remitted all of it in excess of $891.04, arid judgment being entered thereon the defendant appealed.

In disposing of the motion for a new trial the learned court below said : “ March 22,1905, this ease is ruled by Girard Trust Co. v. Harrington, 28 Pa. Superior Ct. 615, which follows Meredith v. Haines et al., 14 W. N. C. 364. The jury found against the defendant, and we are quite satisfied that their view was 'the right one to take. There is no merit in the defendant’s case. The rule is therefore discharged.” A careful examination of the testimony and the' arguments, with the cases cited, leads us to the same conclusion. In our opinion there was an ■abundance of evidence to show that when the plaintiff was only indebted to the defendant in the sum of about $127.14, he was induced to pay on June 6,1900, $825, by either a willful or mis- ' taken statement of facts by the defendant. ' It clearly appears . that the plaintiff in making said payment relied on the statement of the defendant as to the amount he was entitled to receive. This being so, it is no answer for the defendant to say that the plaintiff might have ascertained the facts; the real ' question being, was the plaintiff ignorant' of -the amount ac- ' tually due the defendant: Girard Trust Co. v. Harrington, 23 Pa. Superior Ct. 615 ; Meredith v. Haines et al., 14 W. N. C. 364. The learned court below submitted the case to the jury in a charge which is eminently fair to the defendant, and the verdict determines the question of fact that the defendant had in his possession $697.86, with interest thereon from June 6, ‘ 1900, which he was not entitled to retain, because he obtained it from the plaintiff by a misstatement of the facts, and the plaintiff at the time was ignorant of the true amount which he ought, under his agreement, to have paid the defendant.

We find upon the record the following attempt to assign error: “Assignment of error. Refusal of the learned court to affirm the defendant’s second point; (2) under all the evidence in the case the verdict should be for the defendant.

' “ The refusal of the court to permit the clerk to call eight more jurors so that the defendant could exercise his right to have four peremptory challenges.”

■ This so-called assignment is in palpable violation of our rules 15 and 16 : 1. It is evident that this is meant for two assignments of error, because the subjects are radically different, but they are not numbered and subdivided in accordance with the rules of practice. 2. What the court said in answer to the point quoted in the assignment is not given.

When error assigned is to the charge of the court or to answers to points or to findings of fact or law, the part of the charge or the points and answers or findings referred to must be quoted totidem verbis in the assignment: Rule 15. See Kramer v. Boggs, 5 Pa. Superior Ct. 394 ; Lamb v. Leader, 6 Pa. Superior Ct. 50 ; Ewing v. Cottman, 9 Pa. Superior Ct. 444; Crawford & Moyes v. McKinney, 165 Pa. 605.

An assignment of error will not be considered which does not quote the judge’s answer to a point totidem.verbis, although it contains the point: Hall v. Phillips, 164 Pa. 494.

In the above assignment we are left in ignorance of what the judge said in refusing the second point. The counsel says the learned court refused to affirm the defendant’s second point, but he should have set out the very language of the judge. What has been said applies with equal force to the attempt to assign error to the refusal of the court to call eight more jurors so that the defendant could exercise his right to have four peremptory challenges. This portion of the assignment fails to inform us what the court said in the. refusal complained of. Now, turning to the record as printed in the appendix, we find the following : “ March 6, 1905, jury sworn. Adjourned to Tuesday, March 7, 1905, at 10 A. m. March 7, 1905, Mr. Scott requests that eight more jurors be called. The Court: The request is denied and an exception given to the defendant, the case having been called, the defendant not being here, the defendant’s counsel not being here, and no word having been left with the court or its officers as to the whereabouts of either.”

It is not denied that the counsel and the defendant had notice that the case was to be called for trial, and neither of them appearing it was well within the discretion of the court to allow the jury to be called and sworn. In addition to this the court might, in the exercise of its discretion, have proceeded with the trial on the day the jury was sworn. To say the least it is a novel proposition that counsel can come into court the next day after the jury had been sworn and have eight more jurors called, to the end that he might challenge four when he had clearly waived the right by failing to appear on the day when the case was set down for trial. The whole argument of the learned counsel for the appellant, in support of his right to challenge, goes for naught, because nothing is clearer than that he waived this right by failing to appear at the proper time. If this assignment had been in proper form we could only sustain it on the ground of an abuse of discretion by the learned judge below. But on what appears before us, we fail to discover the slightest evidence of such abuse. In our opinion the judgment of the court below is manifestly just.

The assignments of error are dismissed and the judgment is affirmed.


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    Keim, Appellant, v. Brumbaugh.

      Marriage — Breach of promise — Contract—Assumpsit—Action.
    Damages for breach of promise of marriage were recoverable in an action of assumpsit prior to the procedure Act of May 25, 1887, P. L. 271, and the action is still assumpsit and not trespass.

      Execution — Exemption—Breach of promise of marriage — Marriage—Act of April 9, 1849, P. L. 533.
    A defendant against whom a judgment has been rendered in an action for breach of promise of marriage, is entitled to the benefit of $300 exemption allowed by the Act of April 9, 1849, P. L. 533.
    Argued Oct. 28, 1905.
    Appeal, No. 219, Oct. T., 1904, by plaintiff, from order of O. P. Huntingdon Co., May T., 1903, No. 10, allowing exemption in case of Cora A. Keim v. I. Harvey Brumbaugh.
    Before Rice, P. J., Beater, Orlady, Smith, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to appraisement for debtor’s exemption. Before Woods, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order allowing the exemption.

      W. M. Henderson, with him H. H. Waite, for ■ appellant.—
    Exemption cannot be claimed upon a judgment for tort.; Edwards v. Mahon, 5 Phila. 531; Kenyon v. Gould, 61 Pa. 292 ; Commonwealth v. Brown, 17 Pa. Superior Ct. 520.
    Prior to the passage of the procedure act of 1887 the action for breach of promise of marriage was an action of “ trespass on the case,” which was distinctively an action ex delicto : Jaggard on Torts, 18 ; Gring v. Lerch, 112 Pa. 244.
    Since the passage of the act of 1887, the action for breach'of promise of marriage should be in trespass: Ellis v. Guggenheim, 20 Pa. 287; Weaver v. Bachert, 2 Pa. 80; Baldy v. Stratton, 11 Pa. 316 ; Gring v. Lerch, 112 Pa. 244 ; McFadden v. Reynolds, 20 W. N. C. 312; Craig’s Case, 2 Phila. 391.

      W. B. Simpson, with him J. B. Simpson and Samuel I. Spylcer, for appellee.
    The action for breach of promise of marriage is always founded upon contract-: Shreckengast v. Ealy, 16 Neb. 510 (20 N. W. Repr. 853); Malone v. Ryan, 14 R. I. 614; Leckey v. Bloser, 24 Pa. 401; Disler v. McCauley, 7 Am. Bank’cy Rep. 138.
    The appropriate action for breach of promise is assumpsit hence the judgment is “ obtained upon contract: ” Harding v. Malcom, 26 Pa. C. C. Rep. 210; Donovan v. Foley, 17 Pa. C. C. Rep. 112; Welker v. Metcalf, 209 Pa. 373.
    There are no exceptions to the rule that the exemption must be allowed upon all judgments “ obtained upon contract: ” Edwards v. Mahon, 5 Phila. 531; Kenyon v. Gould, 61 Pa. 292; Smith v. Carter, 17 Phila. 344.
    December 11, 1905 :
   Opinion by

Morrison, J.,

This was, in form, an action in trespass founded upon a breach of promise of marriage, and it ivas begun by a capias. The result was a final judgment in favor of the plaintiff for 15,000. 'Upon execution issued on this judgment, the defendant claimed the benefit of the exemption Act of April 9, 1849, P. K. 533, sec. 1. The sheriff appraised and set aside to the defendant 1300 worth of personal property and on exceptions to this appraisement, the court below overruled the same and confirmed the appraisement. The reason, in substance, given by the learned court is that the recovery was for a breach of a civil contract to marry. If this conclusion is sound, the decree should be affirmed. The action was in form trespass, but, in substance, it was an action in assumpsit and the damages recovered were for the breach of a contract and for nothing else. We, therefore, quite agree with the court below and we will attempt to vindicate this conclusion.

The act of 1849, provides: “ That in lieu of the property how exempt by law from levy and sale on execution, issued, upon any judgment obtained upon contráct and distress .for rent, property to the value of $800, .... and no more, owned by or in possession of any debtor shall be exempt from levy and sale„on execution or by distress for rent.” We are clearly of the opinion that the plaintiff’s action ought to have been in assumpsit and the issue made by the plea of non assumpsit. The plaintiff’s declaration is the simplest kind of a statement of -cause of action in assumpsit. It simply sets up a contract to marry, a breach of said contract by marrying another person and claims damages as a result thereof in the sum of 125,000.

In 1 Bouvier’s Law Dictionary, p. 283, we find a discussion of the actions of trespass and assumpsit and that formerly the term trespass included every species of wrong causing an injury, whether it was malfeasance, misfeasance or non-feasance,' apparently for the purpose of enabling an action’ on the case to be brought in the king’s bench. It thus includes actions on the case for breach of á parol undertaking, now called assumpsit. As used at the present day, case is distinguished from assumpsit and covenant, in that it is not founded upon any contract, express or implied.

In 1 Chitty on Pleading, p. 102, it is said: “ Assumpsit is also the proper remedy for a breach of promise to marry.” And in vol. 2 of the same work, under the head of declarations in assumpsit, we ’find a form on promises to marry.

In 2 Am. & Eng. Ency. of Law (1st ed.), p. 525, it is said : “ Breach of promise of marriage is not of itself a fraud, and punishable as such; but if there has been also seduction and an attempt to abscond, it has been held to amount to a fraud. The action is of course an action ex contractu.”

In Leckey v. Bloser, 24 Pa. 401, p. 407, it is said: “ But the action for breach of promise of marriage, founded as it is in contract, does not necessarily involve the character of the parties, either for purposes of assault or defense.”

In Von Storch v. Griffin, 77 Pa. 504, it is distinctly decided that an action of assumpsit, with a plea of non assumpsit, properly raises the questions to be tried in an action for damages for breach of promise of marriage.

Schubkagel v. Dierstein, 131 Pa. 46, is a case brought in assumpsit to recover damages for an alleged breach of contract to marry. That case was reversed by the Supreme Court because the court below refused offers to prove that this cause of action was included in a settlement by the parties before an alderman.

In Ellis v. Guggenheim, 20 Pa. 287, the action was assumpsit for breach of a promise of marriage and a plea of non assumpsit, etc., and Woodward, J., said, p. 289: “In an action by a woman for breach of a marriage contract, she is bound to prove not only a promise on the part of the defendant, but a promise on her own part. If there be not mutual promises, the contract is void for want of consideration.”

In Gring v. Lerch, 112 Pa. 244, there was an action in assumpsit on a promise of marriage and plea of non assumpsit, with leave, etc. The judgment in that case was reversed because the court below did not permit the defendant to prove matters which would relieve him from complying with his civil contract to many.

We are clearly of the opinion that damages for breach of promise of marriage were recoverable in an action of assumpsit prior to the procedure act of May 25, 1887, and that the action is still assumpsit and not trespass.

Some weight seems to be given, in the argument of this question, to the fact that the defendant was arrested on a capias at the commencement of the action. This can readily be disposed of by reading sec. 1, Act of July 12, 1842, P. L. 339, abolishing imprisonment for debt except in certain cases, among which are actions for breach of promise of marriage. But in our opinion, this in nowise modifies or affects the later exemption act of 1849 which allows exemption in all actions founded upon contract. The appellant cites Gangwere’s Appeal, 36 Pa. 466, upon the question of exemption. But that case relates to a mortgage and the court held that a mortgage is, in its nature, a contract waiver of the right of exemption. Therefore, it has no application to the present question.

Kenyon v. Gould et al., 61 Pa. 292, is also cited. But that was an action of trespass for slander and of course was not founded upon a contract. That case, however, does decide that the act of 1849 abolishes the exemptions provided in the acts of 1828, 1836 and 1846. This clearly shows that the present question is controlled by the act of 1849.

Lane et al. v. Baker, 2 Grant, 424, is also cited, but that case supports no position taken by the appellant. It is, however, a clear authority that the law exempting property from levj1, and sale on execution extends to cases of debt on contract.

That the present action should have been in assumpsit is ruled in Welker v. Metcalf, 209 Pa. 373.

In our opinion, the present case was founded upon contract as clearly as a case where “ A ” contracts to sell “ B ” a quantity of lumber at a stipulated price per thousand and “ B ” agrees to purchase ; thereafter “ A ” refuses to comply with his contract, and that “B’s” remedy is an action in assumpsit for damages will hardly be disputed by any lawyer. Now, when a man and woman enter into a lawful contract to marry, and one of them is subsequently guilty of a breach of the contract, the remedy of the injured party is an action in assumpsit for damages and the judgments in the two cases, when recovered, do not essentially differ. They are each founded on a breach of contract. It is true the amount of damages in the marriage contract is not as capable of definite proof as on the lumber contract, but when the respective juries have arrived at conclusions, and the courts have approved the same by judgments, they both stand on precisely the same ground in relation to the exemption act of 1849.

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


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    Norris v. Clark, Appellant.

      Evidence — Contract—Date of contract — Memory of witness — Entire contract. -
    In an action upon a contract it is reversible error for tbe court to refuse to permit the defendant to prove a conversation between tbe witness and plaintiff bearing upon tbe issue, merely because a witness could not accurately fix the date of the conversation between himself and tbe plaintiff.

      Contract — Delivery—Entire contract — Cutting logs.

    In an action upon a contract for the cutting and delivery of logs at a site to be designated by tbe defendant, the contract being entire, tbe plaintiff cannot recover, unless he not only cuts the logs, but delivers them at tbe point designated by tbe defendant. He is not entitled to recover tbe whole contract price, less tbe cost of hauling tbe logs from tbe place where they were cut to tbe point of delivery.
    When a contract is entire, before any recovery can be had of tbe consideration money tbe plaintiff must prove that be has performed, or is ready to perform, his part of the contract, or that tbe performance was prevented by tbe defendant.
    Argued Oct. 24, 1905.
    Appeal, No. 41, Oct T., 1905, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1904, No. 469, on verdict for plaintiff in case of Mabel E. Norris and S. W. Norris v. H. E. Clark.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Assumpsit for the cutting and delivery of logs. Before Smith:, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $182.49. Defendant appealed.

      Errors assigned (1-21) sufficiently appear by the opinion of the Superior Court.

      James E. Kelley, with him George B. Bigler, for appellant.
    —Where a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove that he has performed his part of the contract; or that the performance was prevented by the defendant: Shaw v. Turnpike Co., 2 P. & W. 454; Martin v. Schoenberger, 8 W. & S. 367 ; Pallman V. Smith, 135 Pa. 188; Fisher v. Mershon, 9 Pa. Superior Ct. 238; Hartman v. Meighan, 171 Pa. 46 ; Millard v. Morse, 32 Pa. 506; Gill v. Johnstown Lumber Co., 151 Pa. 534.

      Oscar Mitchell, with him Bell Sartswick, for appellees,
    cited: Dwight v. Eckert, 117 Pa. 490 ; Kunkle v. Mitchell, 56 Pa. 100; Schnebly V. Shirtcliff, 7 Phila. 236.
    December 10,1905 :
   Opinion by

Morrison, J.,

On December 17, 1901, the plaintiffs and defendant entered into a written contract under which the plaintiffs agreed to deliver certain cut logs and to cut, peel and deliver a considerable quantity of timber to the defendant at a mill site to be thereafter located, by the defendant, on Chest creek. -The plaintiffs proceeded with the work and on July 5, 1902, they had performed considerable work under the contract, but had not delivered any of the logs on Chest creek because the defendant had not designated a site for his mill. On July 5, 1902, the parties met and entered into the following supplemental contract:

“We mutually agree one with the other that there has been no logs delivered as per this contract to date and H. E. Clark has paid me for all the logs cut up to and including May 1 and accepts same where they are, and for the consideration of H. E. Clark paying to me 200.00 this day for the logs cut on our place and the bark of same which shall go to William F. Mosser as per contract with him, I agree to deliver said logs when directed to mill located by Clark during Aug. of 1902.

“ H. E. Clark [seal]

“Witness: “S. W. Norris [seal]

“ Jas. W. Mahaeeey.”

Mabel E. Norris did not sign this contract but no point is made of that fact and it is conceded that the parties are bound by the contract.

It is testified to and agreed by both parties that the defendant accepted all of the logs in the woods, without delivery on Chest creek, cut on or prior to May 1. The plaintiffs then proceeded to cut the additional logs referred to in the contract of July 5, 1902, but never delivered any of them to a mill site on Chest creek, but left them along the roads and in the woods where cut. This suit was brought for the recovery of the full contract price for the cutting and delivering said logs.

The pinch of the case is whether the defendant designated a place for the delivery of the logs in accordance with the contract. The plaintiffs contended, and offered testimony in support of their contention, that the defendant never designated any place for the delivery of the logs and therefore they claim the right to recover the full contract price, on the theory that they were excused from the delivery by the conduct of the defendant.

The defendant took the stand and postively testified that he pointed out to Norris a place for the delivery of the logs on Chest creek in accordance with the terms of the contract, but that no logs were ever delivered there. On this point he was corroborated by the testimony of two witnesses who said they were present when the site for the delivery was pointed out to Norris. In addition to this, a witness, King Brickley, was sworn for the defendant and the following offer was made: “ Defendant offers to prove by the witness on the stand that he worked for S. W. Norris, one of the plaintiffs, and that during that time the plaintiff admitted to him that the location for the mill had been designated by the defendant and showed the witness where that location was.” This was objected to for the reason, in substance, that the witness could not accurately fix the date of the conversation referred to. The learned court sustained this objection and excluded the testimony and noted an exception, and this gives rise to the first assignment of error. In our opinion, this offer was competent and there was palpable error in its exclusion. The defendant was entitled to the testimony of this witness and the ground of objection alleged would only go to the credibility of the witness and the weight of his testimony. The important point was, had a mill site been designated by the defendant on Chest creek and the witness’ testimony could not be excluded because his memory was faulty as to the date. If he testified in accordance with the offer, it might have been a strong corroboration of the defendant’s contention that he did point out to the plaintiff, Norris, a location for the delivery of the logs. The first assignment of error is sustained.

We have ten additional assignments of error and it is to be regretted that they must all be sustained. The plaintiffs’ contract to cut and deliver the logs at a mill site on Chest creek was entire and we have no cases warranting the court in holding that there could be a recovery upon the contract if the plaintiffs failed to deliver the logs at a site on Chest creek, if it was designated and pointed out by the defendant to the plaintiffs, in accordance with the terms of the contract.

The errors alleged in the remaining ten assignments all grow out of the refusal of the court to recognize the law as plainly indicated in the defendant’s first and second points which are quoted in the eighth and ninth assignments. The first point: “ The court is respectfully asked to charge the jury that if they believe from the evidence that the plaintiff did not comply with his part of the contract, and did not complete his contract, and has failed to deliver the logs to the point designated by the defendant, there can be no recovery and the verdict must be for the defendant.” Answer : “We decline to so instruct you.” The second point: “The plaintiff having admitted on the stand that if defendant had located a place for a mill he would have been bound to put them there, if a jury believe from the evidence that a place was designated for the location of the mill at which plaintiff was to put the logs and that he did not put them there, there can be no recovery and your verdict must be for the defense.” Answer: “We decline to so instruct you.” The error running through the whole charge is that cutting logs and leaving them in the woods may be considered substantial compliance with a contract calling for the cutting and delivery of the logs to a mill site located at some distance from the place where the logs were cut. We have no cases which go to the extent of sustaining the court in the instructions to the jury in this case that they could find for the plaintiff the balance due on his entire contract, less the expense of delivering the logs to the mill site, if they found as a fact that the mill site was properly designated.

In Shaw v. Turnpike Co., 2 P. & W. 454, it is said (p. 461) : “ That when a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove, that he has performed, or is ready to perform his part of the contract, or that the performance was prevented by the defendant.”

In Martin v. Schoenberger, 8 W. & S. 367, it is said (p. 368) : “ To permit a man to recover for part performance of an entire contract, or to permit him to recover on his agreement where he has failed to perform, would tend to demoralize the whole country.”

In Pallman v. Smith, 135 Pa. 188, it is said in the syllabus: “ In an action to recover upon a contract to cut and deliver all the logs upon a tract of land, the seller cannot recover unless it is found from the evidence that he has substantially complied with his contract, by cutting and delivering all the logs upon the tract of the kind specified.”

In Fisher v. Mershon, 9 Pa. Superior Ct. 238, it is decided as indicated in the syllabus : “ A plaintiff who has defaulted in the substantial performance of an entire contract may not recover to the extent of a part performance.” See Hartman v. Meighan, 171 Pa. 46, where it is said (p. 49) : “ We are not aware that it has ever been recognized as a sound principle of the law of contracts that a plaintiff who has willfully defaulted in the substantial performance of an entire contract may nevertheless recover to the extent of his part performance.”

In Millard v. Morse, 32 Pa. 506, it is held as stated in the syllabus : “ A contract to sell and deliver goods at a certain place gives no cause of action, unless there be a delivery at the place agreed on. Such contract, without performance, is no defense to an action for the price of goods, advanced by the other party to the vendor, on the footing of the contract.” See also Gill, Appellant, v. Johnstown Lumber Co., 151 Pa. 534; Caughey, Appellant, v. Parker, 26 Pa. Superior Ct. 289.

In the record there is some evidence offered apparently for the purpose of excusing the plaintiffs from delivering the second lot of logs on other grounds than the alleged failure to designate a mill site or place of delivery; testimony as to marking, selling and putting some of the logs into the river. As the case must go back for a new trial on account of the errors already pointed out, it is only necessary to say that if there shall be, at the next trial, sufficient evidence to carry this question to the jury it may enable the plaintiffs to recover pro rata for so many of the logs as the defendant accepted at a different place than the mill site. This would be So even if the jury should find that the mill site was properly designated by the defendant, and that no logs were delivered there. We do not, however, think marking the logs, before delivery, and contracting to sell them when delivered, sufficient, without- more, to warrant allowing a jury to find that the defendant waived delivery except as to such logs as he received, or directed to be delivered elsewhere.

But if the jury shall find that the defendant properly designated a place of delivery, and the logs were not delivered there, and delivery was not waived, and that the defendant received none of the logs, then the verdict must be for the defendant.

The assignments of error are all sustained, and the judgment is reversed with a v. f. d. n.


author: Rice, P. J.,

text:
    Schuylkill County Directors v. Jackson Township Overseers, Appellants.
    Poor law — Order of removal — Appeals—Agreement of counsel.

    An appeal for a removal of paupers will not be set aside on the ground that the attorney for the appellant assented to the granting of the order, where it appears that while the attorney agreed that the order might issue, he did so for the purpose of bringing the question of law involved in the case to a final and conclusive adjudication by the quarter sessions without unnecessary delay and expense; and this is especially so where it appears that no motion to quash the appeal was made, that the parties agreed upon a statement of facts, and that the court finally adjudicated the question in controversy.

      Poor law — Settlements—Illegitimates—Removal of mother.

    Prior to the Act of-July 10, 1901, P. L. 639, the settlement of an illegitimate did~not follow the mother when she changed her settlement.
    Where an illegitimate does not remove with his mother to another county, but remains in the poor district where he was bom, and becomes a charge thereon before his mother acquired another legal settlement, and before the passage of the act of July 10, 1901, the removal of the mother and her acquisition of another settlement, does not change the settlement of the illegitimate.
    Argued Oct. 25, 1905.
    Appeal, No. 116, Oct. T., 1905, by defendants, from order of Q. S. Northumberland Co., Sept. T., 1904, No. 22, overruling order of removal in case of Directors of the Poor and of the House of Employment of Schuylkill County v. Overseers of the Poor of Jackson Township, Northumberland. County.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Appeal from order of removal. Before Auten, J.
    The parties agreed upon the following case stated :
    1. Emma J. Kembell was born, raised and had a legal settlement in Jackson township, Northumberland county, and whilst a single woman was delivered of a male bastard child, in said township of Jackson, Northumberland county, on or about October 11, 1888, which said bastard child is known by the name of Harrison Cleveland Kembell, and had always resided in said township of Jackson.
    2. That the said Harrison Cleveland Kembell became a charge upon the poor district of Jackson township, aforesaid, on or about March 22, 1898, as a pauper by regular proceedings had for that purpose and has been maintained as a pauper by Jackson township down to the present time.
    3. The said Emma J. Kembell, the mother of said bastard, on or about the beginning of March, 1898, entered in and was employed for weekly wages as a housekeeper for a certain Elias Klinger, in Upper Mahantongo Township, Schuylkill county, being part of the Schuylkill county poor district, and continued in the said employment until February 22, 1900, at which time she, the said Emma J. Kembell, was lawfully married to her employer, Elias Klinger, pursuant to a marriage license issued by the proper officer of Schuylkill county. The said Elias Klinger is not the father of the said Harrison Cleveland Kembell.
    4. After the said marriage, the said Emma J. Kembell became known as Emma J. Klinger. The said Elias Klinger being at the time of said marriage the administrator of the estate of a former wife of his, and as such administrator sold certain real estate to her, the said Emma, on or about May 3, 1900, for the consideration of the sum, of $360 and made a deed to her conveying the same to her in fee, and that the said Emma and her said husband dwelled upon it since then.
    5. The said Emma J. Klinger was immediately assessed with all taxes such as are levied for county and other purposes, and paid the same to the proper collectors ever since she became the owner of the said premises; the said premises being situated in Upper Mahantongo Township, Schuylkill county.
    6. The proceedings in this case were regularly commenced by information by the overseers of the poor of Jackson township poor district before a justice of the peace residing outside of the said township of Jackson, and at the hearing the said justice called another justice of said county, as provided by law, and the two said justices adjudged that the place of settlement of the said Harrison Cleveland Kembell was in the poor district of Schuylkill county, and granted an order of removal for the said Harrison Cleveland Kembell to the poor district of Schuylkill county. The said order of removal or a copy with the findings of the said justices, is attached to the appeal entered to the number above mentioned, and the same is made a part of this case stated.

      Error assigned was order overruling order of removal.

      S. B. Boyer, for appellant.
    The order should have been sustained : Nippenose Twp. Overseers v. Jersey Shore Overseers, 48 Pa. 402; Scranton Poor District v. Danville Poor District, 106 Pa. 446 ; Commissioners of the Rouse Estate v. McKean County Poor Directors, 169 Pa. 116; Burrell Twp. v. Pittsburg Guardians of the Poor, 62 Pa. 472; Toby Twp. Overseers v. Pine Twp. Overseers, 19 Pitts. Leg. Jour. 73; Lower Augusta v. Selinsgrove, 64 Pa. 166; Wayne Twp. v. Jersey Shore, 81 *Pa. 264.

      W. F. Shepherd and William W. By on, for appellees,
    cited: Limestone Twp. Overseers v. Licking Twp. Overseers, 1 Penny. 475; Buffalo Twp. v. Lewisburg Borough, 1 Pa. C. C. Rep. 121; Overseers of the Poor of Lewisburg v. Overseers of the Poor of Milton, 18 W. N. C. 141; Poor District of Lock Haven v. Poor District of Chapman Township, 22 W. N. C. 114; Brady Township v. Clinton Twp., 1 Pa. C. C. Rep. 127.
    December 11,1905':
   Opinion by

Rice, P. J.,

This case came into the court below by appeal of the directors of the poor of Schuylkill county from an order of removal issued by two justices of the peace upon the information of the overseers of the poor of Jackson township,- Northumberland county. It is contended that the appeal was improperly taken, and that the order of removal should have been confirmed because the attorney for the former district, by writing indorsed on the copy of the notice of the hearing before the two justices, assented to the granting of the order. An examination of that paper shows that, while the attorney agreed that the order might issue “ the same as if the facts,” set forth in the information, “ were legally and regularly proven,” he did not expressly admit that they established the legal settlement of the pauper in the district he represented, but only that “ the only question in the case is a question of law arising on the facts.” The evident purpose was to bring this question of law to final and conclusive adjudication without unnecessary delay and expense. It would require a strained construction of the paper to hold that it precluded the district he represented from the right to appeal, and to have the question adjudicated by the court, even though it be assumed that the attorney had authority to bind the poor district by an agreement to that effect. Moreover, this was not the construction which the parties put upon the paper. No motion to quash the appeal was made, but the case was brought to hearing before the court upon an agreed statement of the facts, which concluded as follows : “ The court is to decide and ascertain the legal settlement of the said Harrison Cleveland Kembell, whether the same be in Jackson township poor district or in the Schuylkill poor district on the foregoing facts, and to affirm or discharge the order of removal. ■ The costs to follow the finding or judgment, and each of the parties reserves the right to appeal to a court of error.” The court was- clearly right in holding that it had jurisdiction to decide the question above presented as to the legal settlement of the pauper, and to affirm or discharge the order of removal in accordance with its decision of that question, notwithstanding the foregoing assent of the attorney to the issuing of the order.

The 11th section of the act of June 13,1836 declares that every illegitimate child shall be deemed settled in the place where the mother was legally settled at the time of the birth of such child. In Overseers, etc., of Nippenose Twp. v. Overseers, etc., of Jersey Shore, 48 Pa. 402, Chief Justice WoodWABD intimated that the child “perhaps may derive from her mother a subsequent settlement acquired by her,” but the question did not arise upon the facts of that case, and therefore was not decided. It did arise, however, in Overseers of Limestone Twp. v. Overseers of Licking Twp., 1 Penny. 475, and it was there distinctly held that the settlement of an illegitimate does not follow the mother when she changes her settlement. This case was decided in 1881, and the ground stated in the opinion for the decision, but not expressly stated to be the only ground, was, that the act of April 27, 1855 only confers upon illegitimate children the capacity to take or inherit real and personal estate from their mother, but none of the other rights of legitimate children are conferred upon them. This decision unquestionably would control the present case, whether the settlement of the mother of the illegitimate in Schuylkill county was acquired by the ownership and occupancy of, and payment of taxes upon, a freehold, or by service, or derivatively from her husband, unless the act of July 10, 1901, P. L. 639, requires a different ruling. The first section reads as follows : “ That illegitimate children shall take and be known by the name of their mother, and the common-law doctrine of nullius filius shall not apply as between the mother and her illegitimate child or children. The mother and her heirs, and her illegitimate child and its heirs shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other in the same manner, and to the same extent, as if the said child or children had been born in lawful wedlock.” We are not prepared to say, in view of the foregoing provisions, that the settlement acquired by the mother in another district by her own act would not, under any circumstances, become the derivative settlement of the illegitimate child. It is to be borne in mind, however, that in this case the illegitimate did not remove with his mother to Schuylkill county, but remained in the poor district where he was born, became a charge thereon before his mother acquired another legal settlement, and before the passage of the act of 1901, and remained a charge thereon from that time to- the date of removal, which was August 17, 1904. In general, a person who is chargeable to and receiving aid as a pauper from one district cannot acquire a settlement in another so long as that relation exists. Overseers, etc., of Lewisburg v. Overseers of Milton, 18 W. N. C. 141; Overseers, etc., of Penns Township v. Overseers, etc., of Selinsgrove, 18 W. N. C. 143; Poor District of Lock Haven v. Poor District of Chapman Twp., 22 W. N. C. 114. An apparent exception to this general rule was established by the case of Scranton Poor District v. Directors, etc., of Danville and Mahoning, 106 Pa. 446. It was there held that a man may gain a new settlement by residence and paying taxes in a new district, notwithstanding the fact that during the same time his wife, whom he had abandoned, was receiving relief as a pauper in the district of his former settlement, and that in such case an order is proper for the removal of the wife to the new settlement acquired by her husband. It is argued that upon the same principle the pauper in this case should be held to have acquired a settlement derivatively from her mother in Schuylkill county. We think, however, the cases are plainly distinguishable. In the first place the act expressly declares the rule as to the settlement of an illegitimate child, and in the second place the point for decision in the case last cited was whether the husband could acquire a settlement in another district while his wife was receiving aid as a pauper in the first district, and that question having been determined affirmatively it followed by express direction of the act, that the settlement of the husband became the settlement of the wife. Whatever may be the effect of the act of 1901 as to future cases, we are unable to conclude that its effect was, under the facts of this case, to transfer the legal settlement of the pauper from the place where he was born, and where his mother was legally settled at the time of his birth, to the place in Schuylkill county to which she had removed.

The order and judgment are affirmed.


text:
    Union Township Road.

      Road law — Irregular proceedings — Quarter sessions — Common pleas.

    A petition for the appointment of road viewers is not fatally defective because it is addressed to the common pleas, where it appears that it was actually filed in the quarter sessions and endorsed in that court, and that all the subsequent proceedings, including the appointment of viewers, and the confirmation of their report, were made by that court.

      Road law — Viewers—Report—Defective proceedings.

    Where road viewers fail to report within the term, the same viewers may be appointed under the same petition at the next regular term.
    The fact that only two out of three viewers signed the report is not a ground for setting aside the proceedings three years after the final confirmation of the report and after the road had been opened and public money expended thereon to a considerable amount.

      Road law — Termini—Practice, Q. S.

    Where a road has been opened and in use by the public for years, the proceedings to open the road will not be set aside because the termini were somewhat indefinite in their location.
    Argued Oct. 26, 1905.
    Appeal, No. 126, Oct. T., 1905, by DuBois Borough, from order of Q. S. Clearfield Co., Sept. T., 1899, No. 4, setting aside road proceedings in case of Union Township Road.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Reversed.
    Petition to set aside road proceedings. Before Patton, P. J.
    The opinion of the Superior Court states the case.

      Errors assigned are quoted at length in the opinion of the Superior Court.

      Singleton Bell, of Bell $ HartswioJc, with him Thos. H. Murray, J. P. O'LaugJdin and Hazard Alex. Murray, for appellant.^
    If either terminus is fixed the other may be ascertained by courses and distances: Road in Dunbar Twp., 12 Pa. Superior Ct. 491; Hector Twp. Road, 19 Pa. Superior Ct. 120; Bean’s Road, 35 Pa. 280; Sterrett Twp. Road, 114 Pa. 627.

      As to the view and report being by but two viewers. We say it has taken them too long to find that out: Road in Wilkin’s Twp. Road, 5 Cent. Repr. 701; Adams Twp. Road, 130 Pa. 190; Road in North Franklin Twp., 8 Pa. Superior Ct. 358 ; Winter Avenue, 23 Pa. Superior Ct. 353.

      W. 0. Pentz, for appellee.
    Where the order of review had expired before its execution, all subsequent proceedings under it, were unauthorized: Road in Reserve Township, 2 Grant, 204; Hansberry Street, 7 Pa. Dist. Rep. 505 ; Frankstown Twp. Road, 26 Pa. 472; Harris v. Mercur, 202 Pa. 313.
    The proceedings were in the wrong court: Bryson’s Road, 2 P. & W. 207; Road in Lower Towamensing Twp., 10 Pa. Dist. Rep. 581; Benjamin v. Armstrong, 2 S. & R. 392; English v. English, 19 Pa. Superior Ct. 586 ; Harris v. Mercur, 202 Pa. 313 ; Norwegian Street, 81 Pa. 349.
    If only two of three road viewers participate in a view the error is fatal: Ryan Township Road, 3 Kulp, 76; Plains Twp. Road, 7 Kulp, 233 ; Foster Township Road, 1 Kulp, 249; In re Springbrook Road, 64 Pa. 451; Butler Twp. Road, 6 Kulp, 443; Ashley Boro. Road, 10 Kulp, 257.
    Each terminus of a proposed road must be a highway or at some place to which the public resorts, and where neither the petition nor the accompanying draft shows such termini, the proceedings are invalid and insufficient to support a decree of confirmation: Frankford Township Road, 11 Pa. Dist. Rep. 78; O’Hara Twp. Road, 152 Pa. 319.
    Although the road may have been opened and money spent on it, yet that cannot cure the jurisdiction : Bennett v. Hayden, 145 Pa. 586; Smith v. Wildman, 178 Pa. 245 ; O’Hara Twp. Road, 152 Pa. 319; Frankford Twp. Road, 11 Pa. Dist. Rep. 78 ; Winslow Road, 10 Pa. Dist. Rep. 750 ; Taylor & Co. v. Knipe, 2 Pearson, 151.
    December 11,1905 :
   Opinion by

Morrison, J.,

This record might be fitly described as a comedy of errors, but the only questions which can now be considered are such as go to the jurisdiction of the court, as it is too late to review the irregularities and errors which might have been raised by exceptions before the final confirmation. It is and must be conceded that the proceedings must now stand unless they are found to be void. Of course a void judgment, decree or order can be stricken from the record at any time when it is brought to the attention of the court.

On May 19, 1899, a petition was presented to the court for the appointment of viewers to lay out a public road and three viewers were appointed. These viewers not having acted in pursuance of their appointment, the same petition was again presented to the court on December 4, 1899, and the same viewers were reappointed. On February 9, 1900, viewers’ report filed, and February 15, 1900, confirmed nisi. On May 11, 1900, confirmed absolutely and on October 11, 1900, order to open issued.

After this road had been opened and public money expended thereon to a considerable amount, the borough of Du Bois on December 14, 1903, petitioned the court to set aside the confirmation and strike off the report because but two viewers met and acted and made report and for other reasons stated in the petition. On this petition a rule to show cause was granted as prayed for.

It appears from the record that on December 21, 1901, a petition was presented and viewers appointed to view, vacate and supply the road in question and that on April 22, 1902, the viewers reported against the prayer of the petition to vacate and supply. On November 22, 1904, Patton, P. J., of the 33d judicial district, specially presiding, filed a lengthy opinion reviewing the alleged errors in the record and proceedings of the road laid out and opened as above referred to and made the following decree : “ And now, November 26, 1904, the petition is granted, the report of the viewers is set aside and all proceedings quashed and the respondents directed to pay the costs.”

The assignments of error are as follows : 1. The court erred in stating in the opinion as follows: “ The order issued to the viewers has upon it both the seals of the common pleas and quarter sessions.” 2. The court erred in stating in the opinion filed as follows: “Neither the petition, the report of the viewers or draft set forth the township or county in which the road is located.” 3. The court erred in its decree, which decree is as follows: “Now, November 26, 1904, the petition is granted, the report of viewers is set aside and all proceedings quashed and the respondents directed to pay the costs.”

We only find in this record three questions which seem worthy of consideration, in view of the fact that no exceptions were filed to the original report of viewers and that the road was lawfully opened and in use by the public for about three years prior to the attempt to set aside and quash the proceedings.

1. It is said that the original petition was addressed to the court of common pleas and that it did not designate the township or county in which the proposed road was located. It is true that the petition was inadvertently addressed to the court of common pleas, but it was filed in the quarter sessions and indorsed in the same court and the order to the viewers was issued from the quarter sessions and signed by the clerk thereof, and the seal of that court was impressed upon the order. It appears that the seal of the court of common pleas was first, by mistake, placed upon the order but the clerk certifies that this was a mistake and that he immediately corrected it by impressing the quarter sessions’ seal over it. In addition to what has been said, the report of viewers was made to the court of quarter sessions, filed therein, and confirmed by said court both nisi, and absolutely and the order to open was issued from the same court. We therefore conclude that the objection that the proceedings were not in the court of quarter sessions is wholly without merit. We also think that it sufficiently appears in the petition, proceedings, orders, etc., that the proposed road was in Union township, Clearfield county, and that there is no merit in that objection.

2. It is strenuously contended that the report and all proceedings founded thereon are void because it was only signed by two viewers. In our opinion this objection does not warrant the conclusion that the proceedings were void. The court of quarter sessions had jurisdiction of the subject-matter and appointed three viewers, and we think this appointment was regular, notwithstanding the fact that the same viewers were appointed at the May and December terms, 1899. The viewers having failed to act under the first appointment, it is very clear that the court had power at the next regular term to reappoint the same or other viewers upon the same petition. This was done and the viewers directed to report at the next regular term, and they did report at said term. Therefore, we see no merit in the objection that the viewers did not report at the December term. All of the cases upon this point hold in favor of the regularity of the action of the court in continuing the authority of the viewers by reappointing them on December 4, 1899, and ordering them to report at the next term.

As to the objection that only two viewers reported, we do not consider it fatal to the proceedings. No exception was filed to the report and it is not denied but practically conceded that the party instrumental in having the proceedings set aside and quashed had full notice of the original petition and all the proceedings, and never filed an exception nor moved to have the proceedings set aside, until about three years after the final confirmation. In view of the facts in this case, we think it ought now to be presumed that before the final confirmation of the report of viewers, the court ascertained to its satisfaction that the viewers were all qualified and present, notwithstanding the fact that the report is only signed by two viewers and does not show on its face that the other one was present and qualified.

In Springbrook Road, 64 Pa. 451, this question was passed upon by the Supreme Court and Sharswood, J., speaking for the court, said (p. 453) : “ Everything is to be presumed in favor of the regularity of the proceedings in a court of justice; .... The second assignment of error is, that it does not appear by the report that the viewers were all present. This exception was not made in the court below, and if made there in all probability the report would have been amended according to the fact. ... It is enough to say that it has often been decided in this court that it need not appear on the face of the report that all the viewers were, present at the view.” Citing several cases.

We think the question of the report being signed by but two viewers was raised too late. To sustain the decree of the court below will in effect allow the petitioners to appeal from the final confirmation of these road proceedings more than three years after the entry of the final decree. If the petitioners were aggrieved, they ought to have appealed within six months from May 11, 1900, and this rule applies with great force where they do not deny having due notice and knowledge of the proceedings : Road in Adams Township, 130 Pa. 190; Road in North Franklin Township, 8 Pa. Superior Ct. 358; Winter Avenue, 23 Pa. Superior Ct. 353. In re Road in Elk Township, 2 Pa. C. C. Reps. 45, McPherson, J., held as stated in the syllabus : “ A jury of three reviewed a road, only two of whom signed. Of these two, one had been notified by mistake, another party having been appointed. The exceptant was present at the view and made no objection. Held, that the analogy of the rule concerning jurors would be followed and the report would not be set aside.” This ruling was made when exceptions had been filed in due time, and if it is sound, and we think it is, it applies with much greater force where the question is not raised until more than three years after confirmation. See also Commonwealth v. Robert Thompson, 4 Philadelphia, 215, opinion by Allison, J.; also Millcreek Road, 9 Pa. C. C. Reps., 592, McPherson, J.

The court below cites and seems to rely on Morrison’s Lane, 3 S. & R. 210, where it was not stated in the report of the reviewers of a public road that they were all sworn, the proceedings were quashed. But this was raised by exceptions at the proper time and we do not regard it in conflict with Springbrook Road, 64 Pa. 451, and if it were, the latter case would control because the decision was made in 1870, while the former was made under the act of 1815 in 1817.

The court also cited and relied on O’Hara Township Road, 152 Pa. 319, but we do not consider it controlling because in that case the appeal was promptly taken. The court cited Norwegian Street, 81 Pa. 349, but that was a decision on exceptions duly filed. Nor do we consider Harris v. Mercur, 202 Pa. 313, cited by the court below, a controlling case on the facts before us.

3. The only other objection to the record which we consider at all serious is that the termini of the road are not fixed with sufficient accuracy. In considering this question it must be borne in mind that this road had been open and in use by the public for more than three years before the present attack upon It. The petition called for a public road to begin at the old supply road near a mine operated by Henry Wertz, and to intersect the road from Home Camp to Rockton, about one mile below Home Camp. The report of viewers shows that they began “ at a point on the old supply road near coal mine opened by Henry Wertz ” and thence located the road by courses and distances to a point “ eight feet south from a line and parallel with it with centre of road to road leading from Home Camp to Rockton at post by marked stump, a plot or draft of road as laid out aforesaid is hereunto annexed, showing courses, distances and improvements which road is necessary in our opinion for a public road.” If we assume that the starting terminus is sufficiently accurate, there is no question but what the road can be located by a surveyor following the courses and distances and this will inevitably locate the other terminus, regardless of the post and marked stump referred to. Where a road has been opened and in use by the public for years, we do not think it should be considered void because the termini are not fixed with such accuracy as many of the cases require. It is not improbable that if exceptions had been filed before confirmation, or if the question under consideration had been raised by petition and motion before the road was opened and public money expended thereon, the location of the termini of this road might have been held too indefinite : Hector Township Road, 19 Pa. Superior Ct. 120; O’Hara Township Road, 152 Pa. 319. In both of these cases the attacks upon the records were promptly made.

In the present case there. does not seem to have been any difficulty encountered in locating and opening the road and we do not think the inaccurate description of the termini furnishes grounds sufficient to warrant setting aside the report and the proceedings at this late day. Moreover, we think the termini are located better than in O’Hara Township, and Hector Township Roads.

We sustain the second and third assignments of error, and reverse the decree and reinstate the proceedings and the road, and order that the costs of this appeal be paid by the appellee.