author: Rice, P. J.,

text:
    Sayler, Appellant, v. Walter.

      Evidence — Husband, and wife — Witness—Separate property.

    In an action brought to recover damages for an alleged tortious conversion of personal property, the mere fact that the plaintiff admits in his preliminary examination that both he and his wife, who is not a party to the suit, claim the property in dispute, does not disqualify him to testify on his own behalf and in support of his claim of exclusive ownership of the goods.
    In such a case the plaintiff does not become disqualified because the defendant subsequently and in the development of his own case, testifies that he took the chattels by direction of the plaintiff’s wife who claimed to be the owner of them. The plaintiff should be permitted to testify subject to the power of the court to take such action regarding his testimony as the facts subsequently developed in the trial might warrant.
    In the enactment of sec. 4 of the Act of June 8, 1893, P. L. 344, the legislature did not have in view a proceeding in which only husband or wife was a party and in which no judgment or decree could be entered that could be pleaded as res adjudicata in a subsequent controversy between them involving the same subject-matter.
    Argued Dec. 6, 1905.
    Appeal, No. 146, Oct. T., 1905, by plaintiff, from jndgment of C. P. Northampton Co., Sept. T., 1904, No. 46, on verdict for defendant in case of Eugene Sayler v. Albert H. Walter.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Reversed.
    Trespass for wrongful conversion of cattle. Before Schuyler, P. J.
    At the trial the plaintiff was called :
    Mr. Lehr, counsel for the defendant: We object to the testimony of Mr. Sayler for the reason that this is a question about the ownership of these goods, as between Mr. Sayler and his wife. Albert Walter was the agent for his wife to take these goods away at the time and she claimed the goods.
    The Court: You may examine him.
    Witness sworn and examined on cross-examination.
    Mr. Lehr: “Q. You are the plaintiff in this case? A. Yes, sir. Q. In your action brought you claim for damages for taking away two cows ? A. I claimed my cows. Q. You claim damages for taking away of two cows ? A. Yes, sir. Q. And also for some interest in a sideboard ? A. Yes, sir. Q. And your wife also claims these goods? A. Yes, sir. Q. Who is Albert H. Walter, was he the agent of your wife in taking away these goods ? A. That is more than I can tell. Q. The wife at the time claimed these goods to be hers ? A. Well, I claimed them too. Q. It was a question between you and your wife? A. I bought them and paid for them.”
    Mr. Lehr: I ask at this time to file the following plea:
    The defendant by F. H. Lehr, his attorney, puts in the special plea that the goods for which damages are claimed in this case belong to Catharine Sayler, wife of the plaintiff.
    Mr. Smith : I propose to plead surprise.
    Mr. Smith : I propose to show by the testimony of W. E. Sayler, witness on the stand, that he is the owner or was the owner of two cows and one heifer on October 11, 1902, at the time that the defendant took away the two cows and one heifer, and that at that time W. E. Sayler, the witness on the stand and the plaintiff in this case, was the husband of Catharine Sayler, that Catharine Sayler had deserted him without cause and was living separate and apart from W. F. Sayler, the witness on the stand and the plaintiff in this case, and is now living separate and apart from him without cause.
    Mr. Lehr: The defendant answers by saying that the goods mentioned, that is, the two cows and calf are claimed by Catharine Sayler, the wife of the plaintiff, who also claims to own other property claimed by the plaintiff, and claimed the same at the time they were taken.
    The Court: It may be that you are entitled to a continuance on the plea of surprise. The plea has been entered and you ask to have the case continued on the plea of surprise. I think we will have to continue the case.

      March 12, 1906:
    Mr. Lehr: The defendant moves to withdraw the foregoing plea.
    The Court: Allowed. Let the trial proceed. The objection is sustained so far as the competency of this witness is concerned and a bill sealed for the plaintiff. [1]
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was ruling on evidence, quoting the bill of exceptions.

      Calvin E. Smith, for appellant,
    cited: Norbeck v. Davis, 157 Pa. 399.

      F. H. Lehr, for appellee,
    cited: Norbeck v. Davis, 157 Pa. 399; Pleasanton v. Nutt, 115 Pa. 266; Hill v. Leibig Mfg. Co., 3 Pa. Superior Ct. 398; Bornstein v. Jacobs, 45 Legal Int. 14.
   Opinion by

Rice, P. J.,

This was an action of trover and conversion begun before a justice of the peace and brought into the common pleas by appeal from his judgment. On the trial in the common pleas the plaintiff offered to testify in his own behalf, but objection being made to his competency, and being examined upon his voir dire by the defendant’s counsel, he admitted that his wife also claimed the ownership of the chattels. Thereupon the defendant put in the special plea that the goods for which damages were claimed belonged to the plaintiff’s wife. The plaintiff then pleaded surprise, and also offered to show by his own testimony, in addition to his ownership, that at the time of the trial, as well as at the time of the alleged conversion of the chattels by the defendant, the plaintiff’s wife had deserted and was living separate and apart from him, without cause. Upon the court suggesting that the plaintiff would be entitled to a continuance on the plea of surprise, the defendant withdrew the special plea of ownership in the plaintiff’s wife, and thereupon the court sustained the objection to the competency of the plaintiff as a witness. It will be seen from the foregoing recital that at the time this ruling was made the pleadings did not show that any right, interest or claim of the plaintiff’s wife in the Chattels was either directly, remotely or contingently involved in the issue. As the case then stood upon the record, in-dependency of the admission above referred to, the plaintiff was a competent witness. Did the mere fact, which he admitted in his preliminary examination, that he and his wife each claimed the ownership of the chattels in severalty, make him incompetent to testify in support of his claim of exclusive ownership in an action brought by him against a third party to recover dam-' ages for an alleged tortious conversion? We hold that it did not. In the first place she was not a party to the issue on trial. This, it is true, would not be conclusive of the question, but as the case was presented at the time the ruling of the court was made it did not appear that she was under moral or legal obligation to defend the action, or that she was in fact defending it, or that she was connected directly or remotely with the alleged taking of the chattels from the plaintiff’s possession, or that for any other reason she would be directly or indirectly benefited by a verdict in the defendant’s favor, or be prejudiced by a verdict against him. This being so, the fact that her husband, who proposed to give testimony which would be inconsistent with and contradictory of her claim of exclusive ownership of the chattels, was the plaintiff in the action, cannot affect the question. The rule which would exclude him from giving such testimony in the present case would also exclude him from giving it, if the action had been brought by another, and all the other conditions above referred to were the same. But though at common law husband and wife were not admissible as witnesses against each other, where either was directly interested in the event of the proceeding, yet — according to the doctrine stated by Greenleaf — in collateral proceedings, not immediately affecting their mutual interests, their evidence was receivable, notwithstanding it might tend to contradict, or to show a legal demand against, the other: 1 Green. Ev. (15th ed.) § 342. In Griffin v. Brown, 19 Mass. 303, speaking of the cases bearing upon this point, Parker, C. J., said: “ They establish this principle, that the wife maybe a witness to excuse a party sued for a supposed liability, although the effect of her testimony is to charge her husband upon the same debt, in an action afterward to be brought against him. And the reason is, that the verdict in the action in which she testifies, cannot be used in the action against her husband; so that, although her testimony goes to show that he is chargeable, yet he cannot be prejudiced by it.” It cannot be said that all of our cases go to the same length, and yet in Musser v. Gardner, 66 Pa. 242, which was replevin by a feme sole trader for goods which the defendant had purchased from her husband, it was held that she was competent to testify in her own behalf under the act of 1869. Thompson, C. J., who delivered the opinion of the court, said : “The husband was no party, and that he might possibly be called on at some time or other to answer an implied warranty of title to the property he had sold and now claimed by the wife, was too remote and contingent to bring her within the prohibition of the statute from testifying against her husband. In fact, a decision in this issue, in her favor would by no means be necessarily conclusive in a contest between her husband and the defendant on an implied warranty.” See also opinion of Judge Bucher of the common pleas in Merriman v. Munson, 134 Pa. 114. We are not aware that Musser v. Gardner has been overruled expressly, but it must be conceded that it seems not to be in entire harmony with the later case of Pleasanton v. Nutt, 115 Pa. 266. That also was an action of replevin by a married woman. The defendant pleaded specially that she, the defendant, acquired title by purchase from the plaintiff’s husband, and that he was at the time of the purchase the owner of the property. The plaintiff was permitted to testify, under objection and exception, that the title was in her under a gift from her husband before the alleged sale to the defendant. It was held upon writ of error that the objection should have been sustained. Sterjrett, J., said: “ She was incompetent to thus prove title in herself, because in so doing she was testifying against the interest of her husband. While he was not a party to the record, he was nevertheless interested in the result, in that his wife’s testimony, to the effect that the furniture was not his but hers, at the time he sold it to the defendant below, tended to make him liable for breach of his implied warranty of title in the sale of the furniture as his own.” In Norbeck v. Davis, 157 Pa. 399, which was a sheriff’s interpleader to determine the ownership of goods seized as the property of the husband, but claimed by the wife, it was held that as the husband disclaimed ownership the wife was a competent witness to support her title. To the same effect is Evans v. Evans, 155 Pa. 572. But in the course of his discussion sustaining this ruling of the court below in Norbeck v. Davis, Dean, J., said: “ If the husband actually claimed the property and was on the side of the execution creditor, then the antagonism which the law contemplates would exist.” In Johnson v. Watson, 157 Pa. 454, it was held that the plaintiff was not a competent witness to prove his title to the goods replevied, where the defendant, after claiming the goods, giving a return property bond and pleading non cepit and property, withdrew the plea of property, disclaimed ownership, and averred in a special plea, that the goods were owned by the plaintiff’s wife, which the plaintiff in his replication denied. We take the foregoing statement of the case from the syllabus, but it would seem not to be a complete statement, for Dean, J., who delivered the opinion of the court, said: “ She (the wife) came into court and pleaded her ownership of record. Plaintiff did not demur, but by a formal replication joined issue with the wife, and, by the conclusion to his replication, demanded a jury trial, as between him, the husband, and her, the wife.” It will be seen also from the recital of other facts in the opinion, which we have not referred to, that a recovery of the goods by the plaintiff in that action would have been distinctly prejudicial to the wife’s interests. The case at bar is plainly distinguishable from, and not ruled by, Pleasanton v. Nutt, because, if upon no other ground, it was not claimed at any stage of the trial that the defendant claimed title to the chattels by purchase from the plaintiff’s wife. It is equally clear from the statement at the outset of this opinion that the question of the plaintiff’s competency, as presented at the time the ruling under consideration was made, is not ruled in the defendant’s favor by anything that was said or decided in Norbeck v. Davis or Johnson v. Watson. '“The modern tendency of the law is not to multiply valid objections to the competency of witnesses,” per Strong, J., in Thomas v. Maddan, 50 Pa. 261. The tendency since the time of that utterance, 1865, has been to greatly diminish the number, and this lends plausibility to the argument that, by reason of the desertion of the plaintiff’s wife, the case is within the spirit, if not the strict letter, of sec. 4 of the Act of June 8, 1893, P. L. 344. Notwithstanding the seeming force of the argument it is tobe borne in mind that the incompetency of husband and wife to testify against each other depends not alone upon the prineiples of the common law bnt upon the express words of the statute. It was for the legislature to declare the exceptions to this general rule, and we think it quite plain that in the enactment of sec. 4 of the act of 1893 the legislature did not have in view a proceeding in which only husband or wife was a party and in which no judgment or decree could be entered that could be pleaded as res judicata in a subsequent controversy between them involving the same subject-matter. We therefore concur with the learned judge below in holding that as this case was presented at the trial the fourth section of the act of 1893 did not apply.

But it may be said that if the plaintiff’s incompetency did not appear at the time he was rejected, it did appear when the defendant testified that he took the chattels from the plaintiff’s premises by direction of the plaintiff’s wife who claimed to be the owner of them; therefore, it may be argued, no harm was done by the ruling, because the defendant would have been entitled to have the testimony struck out. We are not prepared to say that this would not be true, if these facts had been developed in the presentation of the plaintiff’s case, and it had appeared, as was said in Norbeck v. Davis, that the wife was on the side of the defendant in the issue being tried. Nor do we say that the court would not have been justified in instructing the jury to disregard the testimony of the plaintiff upon the question of ownership, if they believed the defendant’s testimony that he was simply acting as the wife’s agent and under her direction in taking and holding the property. In either of these contingencies there would appear to be that actual antagonism between husband and wife which was in the contemplation of the court in the case last cited. But we cannot agree that the court would have been bound to take the testimony of the defendant as to the facts last referred to as absolute verity, and therefore we cannot declare that the ruling, though erroneous, was harmless. We think the plaintiff should have been permitted to testify — of course excluding confidential, communications — subject to the power of the court to take such action regarding his testimony as the facts subsequently developed in the trial might warrant. Upon the question of practice we refer again to Pleasanton v. Nutt.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Beaver, J.,

license: Public Domain

text:
    Leek v. Livingston Manor Manufacturing Company, Appellant.

      Justice of the peace — Transcript—Amendment.
    A transcript of a justice of the peace after an. appeal filed, may be amended so as to bring upon the record of the common pleas a full and true transcript of the proceedings before the justice.

      Practice, C. P. — Statement—Affidavit of defense — Pleading.
    A statement of claim which consists of nothing more than an unintelligible series of figures, and which contains no intimation as to the character of goods furnished, does not impose upon the defendant the necessity of filing a.n affidavit of defense.
    Argued Jan. 11, 1906.
    Appeal, No. 2, Jan. T., 1906, by-defendant, from order of C. P. Lackawanna Co., Sept. T., 1903, No. 1,174, making absolute rule to amend and rule for judgment in case of William H. Leek v. The Livingston Manor Manufacturing Company et al.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Reversed.
    Appeal from judgment of justice of the peace. Before Newcomb, J.
    Plaintiff filed a statement of claim averring sale and delivery of lumber and material, and alleging that there was due him the sum of $249.98. Attached to statement was an account alleged to have been a copy of books of original entry, as follows :
    Livingston Manor Manufacturing Co. Dr.
    Dec. 29, 1902, To 834 ft. 2x12
    Jan. 17, 1903, “ 794 ft. 2x12
    “ 24, “ “ 1021 ft. Boards
    “ 26, “ “ 1350 ft. “
    “ 26, “ “ 960 ft. 2x12
    4968 ft. @ $10.00

      Feb. 1, 1903 205 2x2x26 149

      6i 1 Cl J., 364 2x2x28 283
    It 1 CC -*■5 622 lfxlfx30 399 ft.
    “ 11, “ 341 2x2x20 ' 189
    11, “ U 732 2x2x26 584
    18, U 1088 lfxlfx30 697
    24, CC 336 2x2x30 280
    24, 373 2x2x26 269
    24, 128 2x2x28 99
    25, 318 2x2x30 265
    25, 244 2ix2ix33 489
    693 2-ix2¿x33 804
    27, 552 lfxlfx30 378
    27, 98 2-ix2ix33 117
    5002 ft. @$16 00 $80.03
    March 26, 1903 613 ten pins @ 6-|-39.84
    28, 705 >6i 45.82
    30, 379 !6-l-24.63
    31, 747 i6* 48.06
    April 1, 606 i 6* 39.39

      ii 2, 173 11.25
    $338.70
    April 2, “ By balance on Jason Cammer order 15.44
    $323.26
    May 6, “ By check 75.00
    $248.26
    1.72 Interest from May 6th to June 19, 1903
    (amt. judg. before Alderman) $249.98
    Other facts appear by the opinion of the Superior Court.

      Errors assigned were the orders of the court.

      A. A. Vosburg, with him John E. Murphy, for appellants.

      Charles L. Hawley and M. J. Manning, with them Gerritt E. Gardner, for appellee.

      March 12, 1906:
   Opinion by

Beaver, J.,

An appeal was taken by Alexander Gillis from a judgment entered by an alderman, at the suit of William H. Leek, against the Livingston Manor Manufacturing Company, in favor of the plaintiff. The appeal was filed. The defendant, alleging that the transcript of the appeal was not a full transcript of the proceedings before the alderman, asked to file an additional transcript which was said to contain the entire proceedings. This was done under a rule to show' cause why the record should not be amended. It can scarcely be called a technical amendment. What the plaintiff sought to do was to bring upon the record of the court of common pleas a full and true transcript of the proceedings before the alderman. This, it seems to us, he had a right to do, and we can see nothing erroneous in the manner in which it was done. See Justice v. Meeker, ante, p. 207.

In addition to the transcript, the plaintiff, in order to compel the defendants to file an affidavit of defense, filed a statement of claim, to which the defendants replied by an affidavit of defense and also a supplemental affidavit. In the original affidavit of defense it is alleged, in its fifth paragraph, “ That it is impossible to file an affidavit of defense to all of the plaintiff’s statement, as the copy attached to plaintiff’s statement is vague and indefinite, inasmuch that it does not set forth what the said Livingston Manor Manufacturing Company purchased from said firm, the whole of said statement being a series of figures which are not intelligible to anyone, perhaps, but to the plaintiff.”

This raises the question, first of all, as to the sufficiency of the statement. Upon an examination of it, it is found to be just what the defendants allege. It consists of twenty-five distinct items. Of these, eighteen contain no such sufficient intimation of what they are as to impose upon the defendant the necessity for replying thereto by an affidavit of defense. These eighteen items do not specify whether they were for lumber, stone, iron or any other material, and it is impossible to tell from the itemized statement what they were. It is true that in the statement it is said that the sum claimed is “ the amount of a book account for lumber and material sold and delivered by the said plaintiff to the said defendant,” etc. If other material than lumber was sold, what was the material ? With the exception of a single item, namely, 1021 feet of boards, there is no intimation whatever in the statement of what the material consisted. Such a statement is not what is required by our procedure act of 1887, and does not impose upon a defendant the necessity of replying thereto by affidavit. The defendants were, therefore, not called upon to file an affidavit of defense. See Altoona Construction & Supply Co. v. Knickerbocker Contracting Co., 29 Pa. Superior Ct. 512.

In this view of the case, it is not necessary for us to consider the questions as to the sufficiency of the affidavits of defense as filed.

The judgment is reversed and a procedendo awarded.


author: Orlady, J.,

text:
    Druzepski v. People’s Street Railway Company of Nanticoke & Newport, Appellant.

      Negligence — Street railways — Passengers—Standing on platform.

    Where a passenger takes his place in the body of a street car, and while therein seated is directed and forcibly urged by the conductor to go out on the rear platform, he cannot be charged with contributory negligence in taking that position, even though there were unoccupied seats inside the car.
    Argued Jan. 8, 1906.
    Appeal, No. 17, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., May T., 1903, No. 391, on verdict for plaintiff in case of Stanley Druzepski v. The People’s Street Railway Company of Nanticoke & Newport.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Lynch, P. J.
    At the trial it appeared that plaintiff was injured late in the evening of March 25, 1903, while riding as a passenger on one of defendant’s cars. Plaintiff’s testimony tended to show that he took his seat inside the car, but was subsequently directed and forcibly urged by tbe conductor to go out on tbe rear platform. While standing on this platform the front wheels of the car left the track, and defendant in some way was injured.
    The court charged in part as follows :
    The plaintiff and his witnesses contend he did take his seat inside of the car, he had in his hand an unlighted cigar, the conductor ordered him, if he wished to smoke, to go out, or ordered him to go out, and put his hand upon plaintiff’s shoulder, and directed him to the platform of the car, and, about the time the door was opened and he reached the platform, the front wheels of the car left the track and he was struck by the brake or thrown against something.
    The defendant’s contention is that the man was not at any time inside the car; he boarded the platform and remained there; the conductor had directed him and others to go inside; they did not do so; he voluntarily stood upon the platform at the time the car was derailed, and even there was not injured, and this, as counsel called it, is a “ fake case,” that is, a case without foundation in fact.
    [If the plaintiff took a seat in the car, and was ordered out upon the platform by the conductor, and in obedience to such order went, and immediately upon reaching there the car was derailed and he was injured without fault on his part, he is entitled to recover such damages as you think are fair and right under the rules which I shall lay down.] [1]
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,180. Defendant appealed.

      JErrors assigned were (1, 2) above instructions, quoting them.

      Quincy A. Gates, with him Thomas W. Hart and Richard B. Sheridan, for appellant.
    — Plaintiff was on the platform of a moving car at the time of the alleged injury, and according to his own evidence there was abundance of room for him on the inside; he was therefore in a known place of clanger and therefore not entitled to recover: Gaffney v. Union Traction Co., 211 Pa. 91; Thane v. Traction Co., 191 Pa. 249; Bainbridge v. Traction Co., 206 Pa. 71; Penna. R. R. Co. v. Langdon, 92 Pa. 21; Penna. R. R. Co. v. Zebee, 33 Pa. 318; Deery v. R. R. Co., 163 Pa. 403; Rothstein v. Penna. R. R. Co., 171 Pa. 620; Solomon v. R. R. Co., 103 N. Y. 437 (9 N. E. Repr. 430).
    March 12, 1906:

      James L. Lenahan, with him Frank McCormick and Burton W. Davis, for appellee.
    — If the passenger assumes a position of danger at the mvitation of the servant of a carrier, or under the expressed or implied representation that he may safely occupy the position, the carrier will in general be held liable for the injury resulting therefrom : O’Donnell v. Allegheny Valley R. R. Co., 69 Pa. 239; Artherholt v. Erie Electric Motor Co., 27 Pa. Superior Ct. 141; Kitler v. People’s Street Railway Co., 27 Pa. Superior Ct. 602.
   Opinion by

Orlady, J.,

The plaintiff’s right to recover in this case depended wholly upon the finding by the jury of disputed facts. If, as he contended, and, as has been determined by the verdict to be the true version of the accident, he took his place in the body of the car as a passenger, and while therein seated, he was directed and forcibly urged by the conductor to go out on the rear platform, he could not be guilty of contributory negligence in taking that position, even though there were unoccupied seats inside the car. True, his proper place was within the car if there was room there for him, but he was not bound to resort to physical violence to maintain that right. It would be unwise, as well as dangerous to the traveling public, to approve to any rule which might encourage a resort to force under such circumstances. The propriety of the conduct of the passenger and conductor were properly submitted to the tribunal which alone should pass upon it.

When there is room to be seated inside the car in the passengers’ proper place, and no special and sufficient reason is shown why he should not avail himself of it, it is negligence per se to remain on the platform of a moving trolley car, is the law declared in Thane v. Traction Co., 191 Pa. 249; Bumbear v. Traction Co., 198 Pa. 198; Bainbridge v. Traction Co., 206 Pa. 71; Gaffney v. Traction Co., 211 Pa. 91. But, when a passenger furnishes to the jury the special and sufficient reason suggested in the Thane case, he takes himself outside the rule as therein declared.

The derailment of the car was due entirely to the manner of its management, and the verdict of the jury has met with the approval of the court below by the refusal to grant a new trial. On the hearing of that question, we assume that the character of the testimony adduced and its sufficiency were fully argued, and there is nothing on this record to warrant our consideration of the plaintiff’s subsequent disposition of his verdict. The judgment is affirmed.


author: Oblady, J.,

text:
    Conniff v. Luzerne County, Appellant.

      Criminal law — Indictment—Grand jury — Costs.
    A county is liable for the costs of prosecution in a criminal ease in which a defective indictment has been returned by the grand jury, "ignoramus, prosecutor to pay costs,” although neither the prosecutor nor any witnesses had been called before it.
    Argued Jan. 9, 1906.
    Appeal, No. 43, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., June T., 1905, No. 228, for plaintiff on case stated in suit of Sarah Conniff, Administratrix of Michael Conniff, deceased, v. Luzerne Co.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Case stated to determine liability for costs. Before Ferris, J.
    The opinion of the Superior Court states the case.
    The court entered judgment for plaintiff on the case stated.

      Error assigned was in entering judgment for plaintiff.

      Henry A. Grordon, with him William S. McLean and Anthony L. Williams, for appellant.
    — The grand jury was without legal power to return the bill “ignoramus” because no evidence of any kind was submitted to them: Com. v. Ditzler, 1 Lanc. Bar. 483; Com. v. McCuen, 75 Pa. 215.
    March 12, 1906:

      J. J. O’Donnell for appellee.
    — The county was liable: Allen v. Delaware County, 161 Pa. 550.
   Opinión by

Oblady, J.,

The only question involved in this case is the liability of the county for the costs of prosecution in a criminal case in which a defective indictment has been returned by the grand jury, “ignoramus, prosecutor to pay costs,” when neither the prosecutor nor any witnesses had been called before it. The case stated concedes that the proceedings before the justice of the peace, for which these costs are claimed, were regular ; the services rendered by the justice were in direct accordance with the requirements of our law, and that his transcript, with a proper recognizance, was duly returned to the court of quarter sessions.

It is also conceded that the indictment, framed on the information taken before the justice, was defectivé in form, and was submitted to the grand jury for the express purpose of making the county formally liable for the costs of prosecution. This “ slip ” indictment, as it is called, appears to have been sanctioned in cases where the district attorney and the court were of the opinion that it was proper to submit the case to the grand jury, for imposition of the costs on the prosecution or the county and it is due to the present judges of the court to say that the practice has existed for many years prior to their administration, and that justice was done in thus disposing of the case.

The district attorney is the attendant of the grand jury ; it is his duty as well as his privilege to lay before them matters upon which they are to pass ; to aid them in the examination of witnesses, and to give them such general instruction as they may require: Commonwealth v. Bradney, 24 W. N. C. 101; Ziegler v. Commonwealth, 10 Sadler’s Penna. Supreme Court Cases, 404. He is the proper representative of the commonwealth and, by virtue of his office, is intrusted with exceptional power so that, when his management of the criminal business is approved by the court of quarter sessions, an appellate court will presume that there was a good legal reason for such sanction. Treating it as a grossly defective indictment, yet, it contained a substantial statement of the offense charged in the information so as to inform the defendant of the nature of the offense charged against him; it was prepared by the proper officer of the court, was considered by the grand jury, returned and received by the court of quarter sessions as an indictment in due form. It could have been rejected as irregular and returned to the grand jury for amendment, which would have been the better practice. However, to all except the defendant it was a good indictment, and he could raise his objection to it only by demurrer or on a motion to quash before a jury was sworn and not afterwards. Acts of March 31, 1860, P. L. 427, sec. 11; 1 Purd. 1031 (Stewart’s ed.), notes; Proffatt on Jury Trial, sec. 44.

The measure of proof required to find a true bill is laid down by Blackstone (4 Comm. 303) as follows: “ In order to find a true bill a grand jury ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest satisfied merely on remote probabilities; a doctrine which might be applied to very oppressive purposes.”

The return “ ignoramus ” is conclusive of nothing more than that at such time the grand jury were not possessed of sufficient evidence to warrant them in putting the accused to answer. Rowand v. Commonwealth, 82 Pa. 405. The grand jury is bound to make diligent inquiry, according to the "terms of their oaths, and an indictment could not be properly returned as a true bill, without the examination of witnesses under oath called by them or on evidence of their own number; but we have found no case which holds that a grand jury may not return an indictment “ ignoramus ” when no witness is produced to sustain it. Whether many witnesses, or none, are called the return “ignoramus ” means not found, or thrown out. Moreover, the defendant is not without his rights in such a proceeding and he is entitled to a prompt as well as a fair trial. When it is ascertained upon examination that the charge is unfounded, or that it is not possible to secure a conviction, it is the duty of the district attorney, as well in the interest of the county and the proper administration of our laws, to abandon further prosecution of the case. The fact that witnesses were not called does not of itself invalidate the return “ ignoramus, and prosecutor pay the costs.” In case the prosecutor and his witnesses do not appear, the most the district attorney could do would be to proceed against them, and continue the case until the next term, when, unless the delay in hearing happen upon the application or with the consent of the defendant, he would be entitled to his discharge from imprisonment under sec. 54 of the Act of March 81, 1860, P. L. 427. At common law the countyis not liable for such costs: Berks County v. Pile, 18 Pa. 493; and it becomes so only when a statute so directs: Dougherty v. Cumberland County, 26 Pa. Superior Ct. 610. Statutory provision is made for such cases by the numerous acts of assembly. By sec. 1 of the Act of May 19, 1887, P. L. 138, the costs of prosecution in every case of misdemeanor shall, on the termination of the prosecution, by the bill of indictment being ignored by the grand jury, be immediately chargeable to and paid by the proper county. This provision does not relieve the prosecutor from his liability to pay to the county the costs imposed on him by the return of the grand jury, and goes no further than to declare that, in the first instance, the county shall pay the costs of prosecution to the parties entitled thereto.

No excuse has been suggested for such laxity in pleading nor for adopting so unusual a method to determine the liability of the county, and, while not approving the practice indicated in this record, the contention of the county, first, that there was no bill of indictment ignored by the grand jury, and, second, that it was without legal power to make the return of “ ignoramus ” prosecutor to pay the costs,” without calling witnesses before it, cannot be sustained.

The judgment is affirmed.


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    Delaney v. Penn Steel Casting and Machine Company, Appellant.

      Negligence — Master and servant — Safe place for employment — ■Evidence.
    In an action by a boy seventeen years old against a foundry company, Ms employer, to recover damages for personal injuries, the case is for the jury, and a judgment and verdict for plaintiff will be sustained, where the evidence tends to show that the plaintiff was injured before daylight on a Monday morning by a heavy door falling upon Mm; that on the previous Friday the door had become detached from its fastenings and had been temporarily placed in an upright position under the direction of the foreman, and with the approval of the president of the defendant company; that the position in which the door was left was dangerous, and it was liable to be toppled over by anyone attempting to open or close it; that the plaintiff was unaware of its condition, and in attempting to shut it caused the door to fall with the resulting injuries to himself.
    Argued Nov. 22, 1905.
    Appeal, No. 208, Oct. T., 1905, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1903, No. 253, on verdict for plaintiff in case of Louis- Lawrence Delaney, by his next friend and father, John Delaney, and John Delaney in his own right v. The Penn Steel Casting and Machine Company.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Savidge, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,053 for Louis Lawrence Delaney and $316.50 for John Delaney. Defendant appealed.

      .Error assigned was in refusing binding instructions for defendant.

      W. B. Broomall, with him George M. Booth, for appellant,
    cited: Clough v. Hoffman, 132 Pa. 626.

      J. B. Hannum, for appellee,
    cited: Conley v. Lincoln Foundry Co., 14 Pa. Superior Ct. 626.

      March 12, 1906:
   Opinion by

Oblady, J.,

All the witnesses agree in regard to the important facts in this case, and the defendant’s liability depends upon the measure of care exercised by it in making the place where the plaintiff was working at the time the accident occurred, a reasonably safe one. The plaintiff, a boy aged seventeen years, was an employee in the molding department of the defendant’s plant, and Ids duties required him to be at his work before daylight, to assort and arrange materials for the molders, who were expected to begin their work about six o’clock. He'was working at the proper place and in a proper manner when he was severely injured by a heavy door falling upon him. This door was one of a pair, arranged to move on rollers, and was suspended on hangers from its top, weighing from 500 to 700 pounds.

On the Friday before the accident, the door, from some unexplained cause, became detached from its top fastenings and fell to the ground. The foreman of the department was immediately notified of its condition and said “We are going to have it fixed. “I’ll have it attended to.” Within a few minutes, several employees placed the door in an upright position, but so as to leave an opening of fifteen to eighteen inches at one side, and retained it there by placing against it a heavy wooden prop, guarded at the top by driving two large nails into the door above the brace, and heeling the other end into the' ground by firming it with an iron pipe driven behind it. After it was thus adjusted, the president of the defendant company saw it and approved the arrangement. The plaintiff did not know of the condition of the door, and on Monday morning soon after he went to work, as he states it, “ I felt a breeze going over me and I saw the door open, and I went to shut it; I saw something coming down and I ran.” ■ There is no evidence to explain the removal of the prop or that it was in fact removed.

Soon after the accident five of the workmen, after about fifteen minutes of labor, lifted the door up and placed it on the hangers at the top in its designed combination. The only reason suggested for not doing this work on Friday was that the day’s work was about finished, and the men did not want to do it on their own time. The work done about the door on Friday was, at best, but a temporary expedient and it was liable to be toppled over by anyone attempting to open or close tbe door. It was not regarded as safe by the men who repaired it. While it was safe if untouched, they would not allow anyone to go through the opening, and still regarded it as “ unfixed.” 'The boys of the plaintiff’s class began work about four o’clock, their only light being lamps and torches. The partly opened door was an invitation to use it, and all danger could have been obviated by securely closing the door, or, as was done on the Monday following, by simply lifting it to its proper position. There was nothing in the situation of the prop against the partly opened door in this dimly lighted room to warn the plaintiff of the danger, and whether it was negligent to leave it in that condition was purely a question of fact for the jury to determine. It was submitted to them in a clear and adequate charge.

The judgment is affirmed.


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    Davis, Appellant, v. Fenner.

      Husband and wife — Tenant by curtesy — Estoppel—Will.
    Where a wife devises her real estate to two persons for their lives and then over, and the husband permits the life tenants to enjoy the estate during their lives for a period of seven and one-half years, and does nothing to mislead or injure the remainder-man, he may after the death of the life tenants assert his right to the real estate as tenant by the curtesy.
    Argued Dec. 4, 1905.
    Appeal, No. 205, Oct. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 2,416, on verdict for defendant on case stated in suit of Samuel M. Davis v. Jane M. Fenner.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, J J.
    Reversed.
    Case stated to determine right to the possession of real estate.
    The opinion of the Superior Court states the case.’

      Error assigned was in entering judgment for defendant.

      March 12, 1906:

      B. F. Owens, for appellant.
    — An examination of the authorities in Pennsylvania discloses no case in which a husband or wife has forfeited his or her curtesy or dower by mere lapse of time alone, and the fact that the plaintiff permitted his father-in-law and the latter’s wife to collect the rents during the brief time which they lived after the death of the decedent should not militate against his rights as between himself and his daughter: Reynard v. Spence, 4 Beavan, 103; Clarke’s App., 79 Pa. 376; Cox v. Rogers, 77 Pa. 160; Woodburn’s Est., 138 Pa. 606; Boileau’s Est., 201 Pa. 493; White’s Est., 23 Pa. Superior Ct. 552; Dickinson v. Dickinson, 61 Pa. 401; Anderson’s App., 36 Pa. 476.

      J. J. Rothschild, with him Furth & Singer, for appellee.
    The plaintiff by his conduct has estopped himself from claiming any rights in the premises: Wise v. Rhodes, 84 Pa. 402; Patterson’s Est., 52 Pitts. L. J. 65; Scholl’s App., 1 Monaghan, 572.
    The plaintiff’s conduct amounted to an election in pais: Bradfords v. Kents, 43 Pa. 474; Boileau’s Est., 201 Pa. 493; Dignal’s Est., 50 Pitts. L. J. 311; Patterson’s Est., 52 Pitts. L. J. 65; Wise v. Rhodes, 84 Pa. 402; Scholl’s Estate; 1 Monaghan, 572; Moore’s Estate, 23 Pa. C. C. Rep. 340.
   Opinion by

Oblady, J.,

Mrs. Charlotte L. Davis died May 14, 1897, and by her last will and testament devised to her father, Archibald H. Jarvey, a, lot of ground with a dwelling house thereon erected, “ for the term of his natural life,” and, immediate^ after the death of the father, “ to her step mother, Ann Jarvey, during her natural life,” and, from and immediately after the death of Ann Jarvey, then the remainder to Jane M. Fenner, the defendant in this case. Archibald H. Jarvey died September 16, 1901, Ann Jarvey died March 16,1904, each having occupied the premises under the provision of the will during their respective lives, when Jane M. Fenner entered into possession of the real estate. On November 29,1904, Samuel M. Davis, the husband of the testatrix, gave notice that he claimed the premises as such husband in his right as tenant by the courtesy. A case stated was presented to the court below for decision. The question submitted being, “ Whether after a passive acquiescence in the terms of his wife’s will from the date of her death on May 14,1897, until November 29,1904, the plaintiff could, upon the last named date, demand a life tenancy by curtesy in the premises in question.” A judgment was entered in favor of the defendant, and the plaintiff presents this appeal. We are not favored with an opinion of the court below, and cannot therefore know the reasons governing its decision. In support of the judgment the appellee urges that inasmuch as the plaintiff had full knowledge of all the facts, and had given his unequivocal assent to the occupancy of the property during the life estates granted to Archibald Jarvey and Ann Jarvey, without making an election to take against the will of his wife, for the unusual period of over seven and a half years, such conduct amounted to an election by him to accept the testamentary disposition of the property, and that he is estopped from claiming any rights in the premises. We assume that the case was disposed of on that theory in the court below.

The defendant in this case did not have any right to the possession of the property in dispute, until after the death of Archibald Jarvey, and of Ann Jarvey. While the husband’s right vested at the death of his wife in 1897, if he chose to postpone the assertion of that right so as to permit Archibald Jarvey and Ann Jarvey to enjoy the possession during their lives, it did not in any manner prejudice any right of this defendant. There may have been sufficient reasons, from his standpoint, to warrant such a course towards them, and if Jane M. Fenner was not thereby induced to do something, to incur some liability by reason of such conduct, she was not misled to her injury. She may have hoped, and have even reasonably expected, that he would not assert against her, the right he was willing to waive in favor of others, but it was his privilege to deal so with his interest; and, without more, such non action on his part was not sufficient to extinguish his claim as against this defendant. So far as her right to the property is concerned he delayed putting forth his title from March 16, 1904, the date of Ann Jarvey’s death, and not from May 14, 1897, the date of Mrs. Davis’ death, as contended for by the appellee.

One who pleads estoppel must be one who has in good faith been misled to his injury. The rule is that one shall be es-topped from alleging the truth, only when his falsehood or his silence has induced action by the other party that Avould lead to loss, except for the estoppel: Sensinger v. Boyer, 153 Pa. 628. The principles applicable to such a case are clearly and forcibly set forth in the opinion of Judge Strong, in Hill v. Epley, 31 Pa. 331: “ Silence in some cases will estop. ... It is only when silence becomes a fraud that it postpones. ... It is essential to its being allowed in any case, that it would work an injury. If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations, or silence of the party, he will not be estopped from contradicting them, even though they would be conclusive against his right, if not contradicted.” Waiver is usually a question of intent, but by intent is meant not the secret understanding of a party, but the intention as indicated by language or conduct. No estoppel is to be raised from inference or argument: Huss v. Jacobs, 210 Pa. 145. The same in substance is said in Bigelow on Estoppel, sec. 569, 570. Equitable estoppel consists in holding for truth a representation acted upon, when the person who made it seeks to deny its truth, and to deprive the party who has acted upon it of the benefit obtained. . . . The cases when carefully analyzed show that all of the following elements must actually or presumably be present in order to effect an estoppel by conduct. 1. There must have been a false representation or a concealment of material facts. 2. The representation must have been made with knowledge of the fact. 3. The party to whom it was made must have been ignorant of the truth of the matter. 4. It must have been made with the intent that the other party would act upon it. 5. The other must have been induced to act upon it.”

Under the purely equitable doctrines, unmodified by statute, there is, as it seems, no limit in point of time to a right to elect unless it can be shown that injury would result to third persons by delay: Pomeroy’s Eq., sec. 573, The mere passivity of the plaÍ2itiíf during the lives of Archibald Jarvey and Ami Jarvey could not affect the action or conduct of Jane M. Fenner, inasmuch 'as until their deaths she had no right to the possession, nor could it be known that she would live to claim it. If he could assert his title against Archibald Jarvey or Ann Jarvey, we can conceive of no reason why it should not prevail against this defendant; each estate depended upon the will of Mrs. Davis as its source, and could not become available until the condition precedent mentioned in the will had happened. He was not obliged to speak or act as against the right of this defendant until she was legally empowered to press her title; and he did speak within eight months of the time of .the maturity of her title. She did not expend any money, incur any liability or change her relation to the property by reason of his action or silence in regard to it. There was no concealment of facts, as she had full knowledge of the provisions of the will, and of the plaintiff’s relation to the testatrix. There is nothing in the case on which to apply the doctrine of election or estoppel.

The judgment is reversed and judgment is now entered in favor of the plaintiff with costs.


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    Dox’s Estate.

      Will — Legacies—Wearing apparel — Jewelry.
    Where a testatrix by her will distributes various articles of personal property and her wearing apparel among friends and gives the residue of her estate to her next of lcin, the words “wearing apparel” will not be construed to include jewelry.
    Argued Jan. 12, 1906.
    Appeal, No. 46, Jan. T., 1906, by Elizabeth Frantz, Lizzie A. Frantz and Sarah A. DeRemer, from decree of O. C. Lackawanna Co., No. 55, of 1904, dismissing petition for order on executor in Estate of Mary A. Dox.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Petition of Elizabeth Frantz, Lizzie A. Frantz, and Sarah A. DeRemer, for an order on the executor to deliver to them certain articles of jewelry. Before Sando, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court dismissed the petition.

      Error assigned was the decree of the court.

      March 12, 1906:

      S. B. Price, for appellant.
    — The words “ wearing apparel ” include jewelry: In re Turnbull, 5 Am. B. R. 231; In re Jones, 3 Am. B. R. 259; In re Henry, 14 Am. B. R. 362; In re Smith, 96 Fed. Repr. 832; In re Caswell, 6 Am. B. R. 718; Sellers v. Bell, 2 Am. B. R. 529; Gooch v. Gooch, 33 Me. 535; Sawyer v. Sawyer, 28 Vt. 249; Frazier v. Barnum, 19 N. J. Eq. 316.

      M. J. Martin, for appellee.
    — Wearing apparel does not mean jewelry: Gooch v. Gooch, 33 Me. 535; Sawyer v. Sawyer, 28 Vt. 249; Astor v. Merritt, 111 U. S. 202 (4. Sup. Ct. Repr. 413); Towns v. Pratt, 33 N. H. 345; Frazier v. Barnum, 19 N. J. Eq. 316; In re Kasson, 14 Fed. Cases, 7616; In re Ludlow, 1 N. Y. Leg. Observer, 322; Fox’s App., 99 Pa. Pa. 382; Bender v. Dietrich, 7 W. & S. 284.
   Opinion by

Oblady, J.,

By the terms of the will of Mary A. Dox sixteen beneficiaries received pecuniary legacies; one, a picture ; one, a sideboard ; and one, plain furniture for two sleeping rooms to be selected by her executor. The eighth item of her will is as follows : “ I give and bequeath to Mrs. Elizabeth Frantz and her daughters my wearing apparel.” Under this clause the appellants claimed “ One diamond ring, one watch and chain, one diamond bar brooch, one pearl and gold cross brooch,” in addition to certain clothing which the executor delivered to them, their contention being that the articles named are included within the general term “ my wearing apparel.”

Cases might be cited which would justify us in holding that the articles named could, with propriety, be included in the term, “wearing apparel,” in case the claim had been made under exemption or tariff laws, or of a passenger whose baggage had been lost or injured by a common carrier, though even in such claims there is a marked discordance in the decisions. See Astor v. Merritt, 111 U. S. 202 (4 Sup. Ct. Repr. 413); Arnold v. U. S., 147 U. S. 494 (13 Sup. Ct. Repr. 406); Gooch v. Gooch, 33 Me. 535; Sawyer v. Sawyer, 28 Vt. 249; Towns v. Pratt, 33 N. H. 345; Frazier v. Barnum, 19 N. J. Eq. 316; In re Kasson, 14 Fed. Cases, 7616; In re Ludlow, 15 Fed. Cases, 8599; Kast v. Phila. & Reading Ry. Co., 28 Pa. Superior Ct. 107.

However, in the case before us, we are to interpret the intention of the testatrix as gathered from her written declaration. It is more in accord with the usual and ordinary meaning given to the words “ wearing apparel,” to hold that she intended that her personal clothing, garments worn, or made for her own use, her dress in general, should pass by this devise, rather than the special and technical meaning suggested by the courts in the construction of statutes and contracts. The beneficiaries were Mrs. Frantz and her daughters, and the record disclosed that thejr were neither heirs, nor next of kin of the testatrix. Further, it is evident that the whole of this kind of property, wearing apparel, was intended to pass to them, and by the most favorable decisions some of the articles, notably the diamond ring and the watch and chain, would be excluded from the bequest. This view is aided by the other bequests of particular items, viz.: a picture, a sideboard and the furniture for the two sleeping rooms. Had she intended to devise to these petitioners jewelry, not necessarily used with clothing, she would doubtless have so specified it. The residuary legatees are of her next of kin, and are given the rest, residue and remainder of her estate of whatsoever nature and wheresoever situate, and were intended to have everything not theretofore specifically devised.

Such articles as are involved in this controversy, without a more special description, or when the doubt as to her intention is so grave, would naturally be included in the latter bequest rather than in the one limited by the uncertain words, wearing apparel, under which the petitioners claim.

The decree of the orphans’ court is affirmed.


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    Leh, Appellant, v. Delaware, Lackawanna & Western Railroad Company.

      Carriers — Common carriers — Carriers of live stock — Special contract— Pleadings — Evidence—Allegata and probata.

    Where a shipper contracts with the initial carrier for the transportation of a carload of horses at a special rate and subject to certain limitations as to the liability of the carrier, and this contract covers the transportation of the horses over all the intervening lines to the point of destination, and the shipper, after a loss sustained, brings an action against a connecting carrier to recover on the common-law liability of such carrier, and the existence of the special contract is made to appear in the development of the plaintiff’s case, the court commits no error in directing a compulsory nonsuit against the plaintiff. In such a case the allegata and probata do not accord, and the whole foundation of the action fails.
    Argued Dec. 6, 1905.
    Appeal, No. 182, Oct. T., 1905, by plaintiff, from order of C. P. Northampton Co., Feb. T., 1903, No. 71, refusing to take off nonsuit in case of M. H. Leh v. The Delaware, Lackawanna & Western Railroad.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Trespass to recover damages for injuries to live stock. Before Schuyler, P. J.

    The facts are stated in the opinion of the Superior Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      Calvin E. Smith, for appellant.
    — That the burden of proof rested on the common carrier to relieve itself of the charge of default or neglect to carry the carload of horses with reasonable dispatch, in the absence of any proof of special contract limiting liability, after due proof of injuries happening to the'horses during transportation; and therefore the court below erred in refusing to take off the judgment of compulsory nonsuit.

      W. S. Kirkpatrick, of Kirkpatrick & Maxwell, for appellee.
    If. it appear by plaintiff’s evidence that a special agreement exists, even though not pleaded, it must be produced or accounted for and its contents proved, for the purpose of seeing whether it has been performed by the plaintiff, and whether the stipulated time and mode of payment were such as to warrant a recovery : Abbott’s Trial Evidence, page 862, section 9.
    March 12, 1906:
    Parol evidence cannot be given of a fact, in relation to which there exists a contract in writing: McKinney v. Lessee of Leacock, 1 S. & R. 27.
   Opinion by

Oblady, J.,

The plaintiff, a dealer in horses, brought this action of trespass to recover damages from the defendant company on its common-law liahility for failure to transport with due care and dispatch a carload of horses. The statement alleges a delivery on September 5, 1902, of a carload of nineteen horses in good condition in “ Car C. C. C. C. No. 2249,” by the L. S. & M. S. R. R. Company to the defendant company at Buffalo, N. Y., a detention of the car at Buffalo until September 7, and a final delivery at Nazareth, Pa., on September 8, in so injured and unsatisfactory a condition, that one horse died within a few days thereafter, and several others were made sick by reason of their negligent transportation.

On the trial the plaintiff testified that on September 3, he had personally shipped the nineteen horses at Indianapolis, Ind., consigned to Nazareth, Pa. On cross-examination it was elicited that he had made a contract for the shipment of these horses with the C. C. & St. L. Railroad Company, which contract was in writing and signed by him. The contract was shown to him (exhibit No. 2) and he identified his signature as genuine. And admitted that it was upon that contract the horses were directed to be shipped, and were in fact delivered to the first carrier, after being' signed by him at Indianapolis; and further, that there was nothing said outside of the contract. Exhibit No. 2 was before the court for its inspection, and on motion a nonsuit was directed, which the court subsequently refused to lift.

We are met at the threshold of the case with the fact, by the plaintiff’s admission, that he had in writing contracted with a common carrier for the transportation of this carload of horses from Indianapolis, Ind., to Nazareth, Pa., at a special rate, and subject to certain limitations as to the liability of the carrier. With this special contract in full force, he had ignored it, and brought this action to recover on the common-law liability of the carrier. It is not material to the plaintiff that the admission was made while he was making out his case, and was not developed as matter of defense. Had the latter course been adopted, and had the exhibit No. 2 been formerly offered and received in evidence as a part of the defendant’s case, a motion for binding instruction would have reached the same result, so far as the plaintiff’s right to recover under his statement of claim and the evidence offered to support it.

The effect to be given to it is purely a question of law, and is before this court for its inspection in the same manner as it was in the court below. The contention of the plaintiff is, that inasmuch as the defendant company accepted the horses for transportation at Buffalo, N. Y., to Nazareth, Pa., the relation of shipper and common carrier for hire was established, and that the defendant company, having acted as a common carrier, cannot evade its common-law liability. The answer to this argument is found in his own testimony and his special contract. The consignment was from Indianapolis, Ind., to Nazareth, Pa., by the original carrier and by connecting carriers, which were indicated by a stamp or imprint on the face of the contract by the initials L. S. & M. S. (for Lake Shore & Michigan Southern), and D., L. & W. (Delaware, Lackawanna & Western) railroads. No advance charges were paid at the point of shipment, and after delivery to the original carrier, the plaintiff returned to his home at Nazareth, Pa., by passenger trains, so that he did not see, nor give further attention to, the horses until their arrival at the point of destination.

The contract for carriage embraced the whole distance and over all of the intervening railroads. Exhibit No. 2 is entitled, “The uniform limited liability live-stock contract for the Cleveland, Cincinnati, Chicago and St Louis Ry. Co.” By its terms, which, according to,,the plaintiff’s testimony, are the only terms upon which he delivered the carload of horses to the first carrier, he acknowledged that “he had his option of shipping the above described live stock at a higher rate of freight according to the official tariffs, classifications and rules of said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier, and connecting railroad and transportation companies, as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided to ship the same under this contract at the reduced rate of freight above first mentioned.”

The question is, has the plaintiff in making out his case shown such a variance in his statement of his claim and the evidence in the case as to justify the nonsuit? Is his right of action to recover on the common-law liability of the defendant company affected by the terms of his written contract, which is a radical modification of his common-law right, and which was executed by him for special considerations ?

As stated by Judge Couxtek in Cunningham v. Shaw, 7 Pa. 401: “ It is material to observe that the plaintiff had shown by his own evidence that there did exist a counterpart of the contract on his part, which he would not produce. It is the province of courts to decide upon light and knowledge, and they will not grope their way in the dark and under a cloud, when the plaintiff has in his possession and power, a light that would dispel them, but refuses to show it. . . . This corresponds to the just and pervading rule that the plaintiff, who seeks to take money from the defendant, ought to show a prima facie case, clear of all obstruction, according to the material parts of his own contract — parts which might interdict his right, and completely discharge the defendant. The presumption of the law is always against a party who withholds testimony in his power, bearing directly on his case.”

Ordinarily, the burden of proof as to any limitations of common carrier law liability is matter of defense: Schaeffer v. P. & R. R. R. Co., 168 Pa. 209. But here we have the direct admission from the plaintiff himself, that the special contract was made, and that it included the same subject-matter for the whole distance from consignment to destination. The plaintiff did not seek to amend his statement, so that the question is purely one of law, on the effect to be given to his own evidence in support of his statement of claim. It must be conceded that the special contract differed in a fundamental manner from the one laid in the statement. By the' common law, the carrier is an insurer of the goods intrusted to him, excepting as damaged by the act of God, or a public enemy: Farnham v. Camden & Amboy R. R. Co., 55 Pa. 53; Trace v. Penna. R. R. Co., 26 Pa. Superior Ct. 466. But, it is as well settled that a common carrier may, by special contract, limit its liability for loss of or injury to goods intrusted to it for carriage, excepting for loss or injury, resulting from its own or its servants’ negligence: "Needy v. Western Maryland Railroad Co., 22 Pa. Superior Ct. 489; Allana v. Penna. R. R. Co., 183 Pa. 174.

It is said in Ben Franklin Fire Ins. Co. v. Flynn, 98 Pa. 627 : “ In our times the severe rules of pleading find but little encouragement and even so far back as the case of Repsher v. Shane, 3 Yeates, 575, this doctrine of variance was not very strictly applied. Following in the track of that case are many later cases like it. Upon the whole, the principle seems to be that the matter given in evidence must agree with that set forth as the cause of action, in those allegations which are an inseparable and characteristic part of it, and determine its identity.

If there is any allegation which may be stricken out without impairing the legal cause of action, and which is therefore no necessary legal part of it, such need not be proved, being surplusage : Gibbs v. Cannon, 9 S. & R. 198. The case before us is quite the reverse of one in which matter that is mere surplusage is found in the statement. Here we have it disclosed by the plaintiff that his suit is not founded upon his real cause of action, but upon an entirely different one, which he admits he has voluntarily substituted instead of the implied one furnished by common law. No reasonable complaint can be made to requiring a plaintiff to set forth a concise statement of his claim sufficiently specific to enable the defendant to plead understandingly and with full knowledge of every claim which can be made against it or question which can be raised under it at the trial. “As to all matters of substance, completeness, accuracy and precision, are as necessary now to a statement as they were before to a declaration in the settled and time-honored forms: ” Fritz v. Hathaway, 135 Pa. 274. In order to support any action the cause of it must be alleged, the plaintiff does not recover according to the probata, but secundum allegata et probata, and the contract must be always stated, is the declaration of the court in Pumeroy v. Bruce, 13 S. & R. 186.

The text-writers and decisions agree that the contract must be stated correctly, and if the evidence differs from the statement, the whole foundation of the action fails; the contract is entire in its nature, and must be proved as laid: 1 Chitty’s Pleadings, 805-309. Not only must the declaration set out a wrong, and the evidence show a wrong, but the wrong shown must be the wrong alleged: Hennessy v. Anstock, 19 Pa. Superior Ct. 644.

The substantial purpose of the plaintiff’s statement is to apprise the defendant of the nature of the charge against him, and in the event of a recovery to enable him by reference to the record itself to plead the judgment in bar to a second action for the same cause: Bristow v. Wright, 1 Sm. L. C. 1417, and notes. No reason has been suggested to affect in any way the validity of the contract made by the plaintiff at Indianapolis, and, as it covered the transportation of the horses over all the intervening lines to the point of destination, he cannot proceed piecemeal against the several carriers under their common-law liability while his special contract involved the whole distance. He cannot abandon the express contract and resort to an implied one; the one voluntarily made by him must be the measure of his rights and liabilities. The defendant had a right to be advised by the pleadings in advance of the trial of the substantial terms and conditions of the contract under which its liability to a judgment was sought to be enforced : Steph. Pl. 118; Johnson v. Robinson Consolidated Mining Co., 5 L. R. A. 769, and notes. The variance was fatal in showing that the plaintiff had a special contract, which waived the liability of the carrier as to the cause of action laid in his statement, and the nonsuit was properly entered for that reason.

The judgment is affirmed.


author: Henderson, J.,

text:
    Mynick v. Bickings, Appellant.

      Mortgage — Principal and agent — Payment to agent.

    The mere fact that a mortgagee employs an attorney as a conveyancer to prepare the mortgage papers, does not invest the attorney with authority to collect the principal of the mortgage from the mortgagor. This is especially so where the mortgagor knows that the mortgage papers are not in the hands of the attorney, although the attorney had received payments of interest from time to time and such payments had been accepted by the mortgagee.
    Generally speaking, it is the duty of a debtor, who is bound by an obligation in writing to see that the person to whom he pays the money for his creditor has possession of the evidence of indebtedness, unless he can show express authority in the person to whom the payment is made to receive the money.
    The position of an investor would be most precarious if the fact that he employs an attorney from time to time when making loans and authorizes him to make collections of interest, and in special cases of the principal due on securities, is sufficient to warrant a finding of authority generally to collect the principal of all his client’s mortgages, and that, too, when the latter keeps possession of his obligations.
    Argued Dec. 6, 1905.
    Appeal, No. 201, Oct. T., 1905, by defendant, from judgment of C. P. Montgomery Co., March T., 1904, No. 20, on verdict for plaintiff in case of Josephine Myniek v. Richard W. Bickings.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Weand, J.
    At the trial the court charged as follows :
    The mere fact that an attorney is employed to invest money on mortgage does not invest him with the right to receive the principal of that mortgage, unless he has some authority from the mortgagee to do so, either express or implied. Now, when this .man, Mr. Bickings, went to Mr. Jones to pay off part of this mortgage, it was his duty to inquire of Mr. Jones whether he had authority to receive it; but nothing of. that kind took place. He relied on the fact that he had received the mortgage through Mr. J ones. Mr. J ones did not have the mortgage nor the bond with him. If he had, and had produced them, that would have been evidence that he had the right to receive the money; but nothing of that kind took place. Mr. Bickings paid $500 on account, and afterwards only paid Mr. Jones interest on the balance; but Mr. Jones paid Miss Myniek interest on the whole amount, and, therefore, she was under the belief, all the time, that the whole amount was still due. It just simply amounts to this : That Mr. Jones was false to his duty. He received this money, he never paid it over to Miss Mynick, and there is no evidence that he had any right to receive it. Now, this may be unfortunate for this poor man; but, when a loss occurs, the person who occasioned the loss must bear it, and, through his ignorance, probably, he neglected to do his duty, and it is his misfortune that he may have to pay the money the second time. It is my duty, however, to instruct you, under the law, that you are to render a verdict in favor of the plaintiff for the sum of $634.32, being the amount now due, after deducting the $415.10 which was paid into court, and you will so render the verdict in that form.
    Verdict and judgment for plaintiff for $634.32. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Henry Freedley, with him E. D. Egbert, for appellant.
    — Jones was authorized to receive the principal of the mortgage: Beal v. Adams Express Co., 13 Pa. Superior Ct. 143; Valentine v. Parker, 5 Pa. 333; Dougherty v. Hunter, 54 Pa. 380; Culver v. Pocono Spring Water Ice Co., 206 Pa. 481; Duncan v. Hartman, 143 Pa. 595; The Odorilla v. Baizley, 128 Pa. 283; DeWitt v. DeWitt, 202 Pa. 255; Patterson v. Van Loon, 186 Pa. 367; McMahon v. Bardinger, 18 W. N. C. 112; Brooke v. R. R. Co., 108 Pa. 529; Chemical Co. v. Purchasing Co., 22 Pa. Superior Ct. 426; Himes v. Herr, 3 Pa. Superior Ct. 124; Robb v. Penna. Co., 3 Pa. Superior Ct. 254; DeTurck v. Matz, 180 Pa. 347.

      Joseph, S. Goodbread with him J. Joseph Stratton and Joseph Fornance, for appellee.
    — A person dealing with an agent is bound to ascertain the extent of an agent’s authority, and this is particularly the case in dealing with him for the first time: Lauer Brewing Co. v. Schmidt, 24 Superior Ct. 396; Cowden v. Bechlar, 4 Montg. 22; Slaymaker v. Herr, 12 Lanc. L. R. 342; Smith v. Kidd, 68 N. Y. 130; Bryant v. Hamlin, 3 Pa. Dist. Rep. 385.
    In the absence of the possession of the mortgage papers by another than the owner, or of express authority to receive pay-merit thereof, .payment to such person is not good, as against the owner of the' mortgage not authorizing such payment; that an attorney has been doing business for the owner for some time, is not evidence of authority: Pepper & Lewis, Dig. of Dec. vol. 12, Col. 20,729; Bryant v. Hamlin, 3 Pa. Dist. Rep. 385; Pratt v. Eby, 67 Pa. 396.
    March 12, 1906:
    An agent authorized to receive the interest on the mortgage has no right to give a discharge for the principal: Phila. Trust & Safe Deposit Co. v. Roberts, 17 Phila. 9; Eby v. Lamb, 10 Pa. C. C. Rep. 209; Taylor v. Mingert, 33 Legal Int. 238; Bryant v. Hamlin, 3 Pa. Dist. Rep. 387; Smith v. Kidd, 68 N. Y. 130.
    The circumstance of the agent having before received the interest and a part of the principal did not imply that he had any authority to receive it, but as long as he paid it over all .was well, and any other person might have carried it to the creditor as well as he: Wolstenholm v. Davies, Freem. Ch. 289. .
   Opinion by

Henderson, J.,

The appellant applied to Silas Jones, an attorney, for a loan of #1,000 which Jones promised to procure for him and for whose services with reference thereto the appellant agreed to pay him #20.00. The money was obtained from the plaintiff and the appellant executed a bond and mortgage to her for the amount borrowed. Interest was paid to Jones from time to time and by him paid to the plaintiff and on October 31, 1898, #500 was paid to Jones on the principal. On October 16,1902, the appellant paid #100 to a clerk in Jones’ office tobe applied on the principal. This latter amount was given to the plaintiff but the payment of #500 was not paid to her; nor had she knowledge that it had been received by Jones until after his death. It is now contended by the appellant that the plaintiff should be charged with the payment of #500 on the ground that Jones was agent for her and authorized to receive pa3rments of principal and interest on the mortgage. It is not claimed that the bond and mortgage were placed in his bands for collection, nor that he had express authority to receive payments thereon. The plaintiff received and retained the bond and mortgage after the loan was made and they were not in the possession of Jones at the times when the payments were made to him. The right to the credit is not claimed by way of estoppel because Jones was held out to the appellant by the plaintiff as her agent, but 'because of an undefined employment in connection with loans made by her to other persons. This employment was sought to be shown by an offer to prove that Jones was the agent of the plaintiff in loaning money on mortgage and judgment and the collection of the principal as well as the interest on those loans “ and that this course of dealing continued through their whole connection with him.” It was not proposed to show that the plaintiff was engaged in loaning money as a business or that Jones was her agent, generally. The argument is that if the plaintiff allowed or employed Jones to collect money on loans made by her and pay the same to her such action invested him with authority to receive and receipt for principal or interest on any bond or mortgage which she held, without express authority from her so to do; and in this view of the case, it would not seem to make any difference whether the number of loans was large or small. The act of Jones with reference to two or three loans would commit the plaintiff to responsibility for his conduct with reference to the one now under consideration or others which may have been made by the plaintiff. The mere fact that the attorney acted as a conveyancer in the transaction between the plaintiff and defendant did not invest him with authority to collect the debt. The obligations were given to the plaintiff. This the appellant well knew. They were not in the possession of Jones at any time when payments were made. The defendant had not been requested to make payments to Jones, nor had the plaintiff held out the latter as having authority to receive payments on the debt. Relying on his integrity and apparently to avoid the inconvenience of finding the plaintiff and paying her, he gave the money to Jones to be paid over. In so doing he assumed the risk that Jones might not act in good faith. If, at the time the payments were made, the bond and mortgage had been in Jones’ possession such possession would have been evidence of his control of the obligations. The debtor might have made himself secure by insisting on the production of the obligations and having the payments indorsed thereon. Generally speaking, it is the duty of a debtor, who is bound by an obligation in writing, to see that the person to whom he pays the money for his creditor has possession of the evidence of indebtedness, unless he can show express authority in the person to whom the payment is made to receive the money. Loans made by the plaintiff were independent transactions completed when the security was delivered and the money paid. The completion of one transaction would not invest the attorney with power to act in another outside of the express authority given him or that implied in his engagement as an attorney in professional business. Nor did the fact that payments of interest were received from time to time and accepted by the creditor imply that he had authority so to receive them. When the money was paid to the creditor the debtor received credit for the payment, but any other person might have handed the money to the creditor with the same effect as when done by the attorney through whom the loan was effected: Williams v. Walker, 2 Sandf. Ch. 325; Smith v. Kidd, 68 N. Y. 130; Story on Agency, secs. 98, 104; Haines v. Pohlmann, 25 N. J. Eq. 179. The position of an investor would be most precarious if the fact that he employs an attorney from time to time when making loans and authorizes him to make collections of interest, and in special cases of the principal due on securities, is sufficient to warrant a finding of authority generally to collect the principal of all his client’s mortgages and that, too, when the latter keeps possession of his obligations. Numerous cases, of which Dougherty v. Hunter, 54 Pa. 380; Brooke v. R. R. Co., 108 Pa. 529; Culver v. Pocono Spring Water Ice Co., 206 Pa. 481; Chemical Co. v. Purchasing Co., 22 Pa. Superior Ct. 426, are examples, are cited by the appellant’s counsel relating to the authority of an agent when engaged in the discharge of his duty in the prosecution of a business, but we think they are not applicable to the facts of this case. Our attention has been called to our own case, Himes v. Herr, 3 Pa. Superior Ct. 124, as an authority in support of the appellant’s position. In that case, however, the attorney was acting in a strictly professional capacity. A judgment had been entered in the court of common pleas. He procured a revival of the judgment, was attorney in the case and clearly capable of receiving the amount of the debt. Moreover, tbe plaintiff in the judgment ratified his act and accepted from him a deed in satisfaction of the sum receipted for by him. In view of the relation of the attorney to the case and the subsequent conduct of the plaintiff in the judgment we do not see how any other conclusion could have been reached: McMahon v. Bardinger, 18 W. N. C. 112, is of like character. An action was pending on a mortgage. Muh took an assignment of the mortgage, Webster acting as his attorney. After the assignment the sci. fa. was discontinued. Afterwards, the attorney pressed the defendant for payment and succeeded in collecting a part of the mortgage. Soon thereafter he issued a sci. fa. on the mortgage and on the same day gave a receipt for the money which he had theretofore collected. A few weeks later the plaintiff discovered that the payment had been made to his attorney. The court permitted this evidence to be introduced for the purpose of showing that Webster was acting as attorney in the case for Muh at the time the payments were made to him. The facts tended to show the employment of the attorney for the collection of the debt and that being the case the payment to him by the debtor would be a good discharge from liability. In the case we are now considering the agent did not act in the capacity of an attorney in a proceeding in court; nor was there any intimation of a ratification or compromise. He who transacts business with an agent is bound to inquire as to the nature and extent of his authority. In the present case the defendant made no inquiry but assumed that because Jones effected the loan he was authorized to receive the debt and interest. The plaintiff did not mislead him and he, rather than the plaintiff, should bear the misfortune of his inattention.

The judgment is affirmed.


text:
    Roberts v. Lentz, Appellant.
    Argued Dec. 7, 1905.
    Appeal, No. 62, Oct. T., 1905, by defendant, from judgment of C. P. Montgomery Co., March T., 1904, No. 82, on verdict for plaintiff in case of Emma Roberts v. Henry G. Lentz, Surviving Executor of Benjamin Lentz, deceased.
    March 12, 1906:
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Swartz, P. J.

      Henry Freedley, with him E. L. Hallman, for appellant.

      J. B. Larzelere, Jr., for appellee.
   Opinion by

Rice, P. J.,

• This appeal was argued with the appeal in Norristown Trust Co., etc., v. Henry G. Lentz, post, 408, in which we herewith file an opinion. It was very frankly conceded by the appellant’s counsel that if the judgment in that case was affirmed full justice would be done, so far as his client is concerned, by an affirmation of this judgment also. In view of this concession and of the judgment we have entered in the case inferred to, we are not called upon to enter into a discussion of the questions raised by the two assignments of error in this case, but feel warranted in disposing of the case in the manner suggested.

The judgment is affirmed.


text:
    Norristown Trust Company, Appellant, v. Lentz.

      Evidence — Witness—Competency of — Party dead.

    Where both the plaintiff .and the defendant in a judgment are dead, legatees of the defendant may testify to the fact of the payment of the judgment by the executor of the defendant to the executor and trustee under the will of the plaintiff, prior to the decease of such executor and trustee.
    Argued Dec. 7, 1905.
    Appeal, No. 214, Oct. T., 1905, by plaintiff, from judgment of O. P. Montgomery Co., March T., 1904,No. 81, for defendant on case tried by the court without a-jury" in suit, of Norristown Trust Company, administrator dLb.' n. c. t. a. of Sarah Burns, deceased, et al. v. Henry G. Lentz, executor of Benjamin Lentz, deceased, real owner and tenant in possession.
    March 12, 1906:
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur judgment.
    The case was tried before Swartz, P. J., without a jury under the Act of April 22, 1874, P. L. 109.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for defendant.

      J. B. Larzelere, Jr., for appellant.
    — The witnesses were incompetent: Shroyer v. Smith, 204 Pa. 310; Rudolph v. Rudolph, 207 Pa. 339; Patterson v. Dushane, 115 Pa. 334; Darragh v. Stevenson, 183 Pa. 397; Fisher’s Estate, 7 Pa. C. C. Rep. 17; Roth’s Est., 150 Pa. 261; Thomas v. Miller, 165 Pa. 216; Krumrine v. Grenoble, 165 Pa. 98; Kauss v. Rohner, 172 Pa. 481; Acklin v. McCalmont Oil Co., 201 Pa. 257; Hostetter v. Schalk, 85 Pa. 220; Lavelle v. Melley, 27 Pa. Superior Ct. 69.

      Henry Freedley, with him E. L. Hallman, for appellee.
    — By the express terms of the act the decedent must be “a party to the thing or contract in action; ” he must have “ a right therein,” and “ an interest in the subject in controversy.” Silas Jones, the executor of an executor, had none of these: Crane v. Hastings, 49 P. L. J. 91; Jackson v. Penna. Co., 2 Pa. Dist. Rep. 225; Dickson v. McGraw, 151 Pa. 98; Allen’s Est., 207 Pa. 325; Bank v. Henning, 171 Pa. 399; Broadrick v. Broadrick, 25 Pa. Superior Ct. 225.
   Opinion by

Rice, P. J.,

This was a scire facias sur judgment entered in 1876. The defense was payment. The case was tried before the court without a jury, and resulted in a judgment for the defendant. As shown by the well considered opinion filed by the learned judge who tried the case, this judgment was the legitimate conclusion from his findings of fact, and the latter were fully warranted by the testimony, if the witnesses who gave it were •competent to testify. As to the conclusiveness on appeal of ■ the findings of fact of the trial court, unless they are manifestly erroneous and unwarranted, we need cite no authority.

As the case is presented to us, the question upon which it turns is the competenejr of the testimony of Henry G. Lentz and Charles Lentz, both of whom were legatees, and the former was executor, under the will of Benjamin Lentz, the original defendant in the judgment. This question also is quite fully considered in the opinion filed by the learned trial judge, and we think was correctly decided in favor of their competency. The important dates are: April 28,1894, death of Sarah Burns, at that time the owner of the judgment; August 16, 1897, death of Benjamin Lentz, the defendant in the judgment; May 5, 1903, death of Silas Jones, executor and trustee under the will of Sarah Burns. The testimony objected to relates to matters occurring after the death of Sarah Burns, and principally to the allegation of payment of the judgment by Henry G. Lentz, executor under the will of Benjamin Lentz, to Silas Jones, executor and trustee under the will of Sarah Burns. The witnesses were interested, but their interest was not adverse to the right of Benjamin Lentz; therefore, under the words of the act of 1887, and the construction heretofore given to them, they were not incompetent, by reason of his death, to testify in behalf of his estate: Smith v. Hay, 152 Pa. 377; Brose’s Estate, 155 Pa. 619; Crosetti’s Estate, 211 Pa. 490; Mullet v. Hensel, 7 Pa. Superior Ct. 524; Foringer v. Sisson, 14 Pa. Superior Ct. 266. Their interest was adverse to the right of Ephraim Burns, the original plaintiff in the judgment, and of Sarah Burns, whose ownership was derived under his will, and, therefore, not being called by the plaintiff, they were incompetent to testify to any matters occurring before the death of Sarah Burns, but not as to matters occurring afterward, unless they were rendered incompetent by the death of Silas Jones. The question is whether he was a party to the “ thing or contract in action ” — the judgment and the bond on which it was entered — whose “right thereto or therein has passed, either by his own act or by the act of law, to a party on the record who represents his interest in the subject in controversy.” Whatever the fact may be, the question is not complicated by any proof that he embezzled the money or did not properly account for it. Nor can we see that the fact that he was trustee, as well as executor, affects the question. The transaction, namely, payment of the debt, was with him as executor, and what is more important, the right or interest in the subject in controversy which was represented by the present plaintiff was not derived through or under Silas Jones, but through and under the will of Sarah Burns. The act of 1887 declares that no interest or policy of the law, except as provided in section 5, shall make any person incompetent as a witness. By that act competency of witnesses in civil cases is the rule and incompetency the exception: Pattison v. Cobb, 212 Pa. 572. To warrant the exclusion of a witness upon the ground of interest it must appear that his case comes within the express terms of the exception embodied in clause (e) sec. 5, properly construed. If the language of the exception were ambiguous and reasonably susceptible of two constructions, one of which would preserve equality, by excluding every person whose interest is consonant with or adverse to the right of a deceased party to the thing or contract in action, and the other would not, the argument in favor of adopting the former construction would be very strong. But while the principle of equality in such cases is desirable to be maintained, yet, as has been well said, no rule on this subject has ever been successfully formulated in language which will invariably and under all circumstances produce perfect equality where one of the parties to a contract is removed by death: Darragh v. Stevenson, 183 Pa. 397. Where the language of the exception to the general rule of competency is plain and unambiguous it must be followed, even though, where death has intervened, it may seem to give one party interested in the result of the litigation an advantage over the other. In the leading case of Smith v. Hay, 152 Pa. 317, the late Chief Justice McCollum said: “ We cannot construe this act contrary to its plain provisions simply because cases may arise in which one party to the issue is by these provisions competent and the other is disqualified.” A careful examination of the cases which have arisen under it will show quite strict adherence to the words of the statute in its construction, and if they are followed here, taking nothing from and adding nothing to them, we think there is no escape from the conclusion that this case, so far as the competency of the testimony as to the transaction with Silas Jones is concerned, is not brought within any of the exceptions. He was not a party to the contract, and no right or interest of his, or derived through him, is involved in the issue, which would not have been involved in it if the alleged payment had been made to him as the agent or attorney of Sarah Burns. No reason can be given for excluding the testimony under consideration which could not with equal propriety be invoked to exclude the testimony in the supposed case. Nothing is more common than the admission of testimony as to negotiations, dealings and acts of deceased officers of a corporation, or deceased agents of a natural person, notwithstanding the fact that the other party, in whose favor the testimony is given, is, by reason of the death of the officer or agent, placed in a better position. But it has been held uniformly that this is not a valid reason for rejecting the testimony: American Life Insurance & Trust Co. v. Shultz, 82 Pa. 46; Sargeant v. National Life Insurance Co., 189 Pa. 341. Other instances might be cited where the legislature has not attempted to maintain perfect equality at the sacrifice of other considerations. But it is unnecessary to pursue this general discussion further. We have examined with care all of the authoritative decisions cited in the appellant’s brief and do not find that they conflict with the foregoing conclusion upon the precise question for decision. The other questions discussed by counsel in their brief seem to us to be fully and satisfactorily answered in the findings and opinion of the learned judge below. The same is true of the question we have particularly discussed.

All the assignments are overruled and the judgment is affirmed.


text:
    Lilly, Appellant, v. Krause.

      Boroughs — Consolidation of boroughs — Councilmen—Vacancy in ■ office— Elections.

    Where two boroughs are consolidated under the Act of June 6, 1893, P. Jj. 335, and the chief burgess of one borough becomes a member of the council of the new borough from the ward in which he resides, and' such ward has thereupon four councilmen, an election in such ward for a councilman held within a year after the consolidation and a month prior to the expiration of the term of one of the four members is invalid. No vacancy can exist in such ward until the expiration of the term of a second councilman, and the consequent reduction of the number of members to below three.. In such a case it is not necessary that the former chief burgess nor the town council shall take any. affirmative action to continue him as a member.
    March 12, 1906:
    Argued Dec. 7, 1905.
    Appeal, No. 224, Oct. T., 1905, by-plaintiff, from order of C. P. Northampton Co., June T., 1905, No. 39, overruling demurrer to return to writ of alternative mandamus in case of Robert J. Lilly v. Edward J. Krause, II. J. Myers et al., members of the town council of the borough of Bethlehem.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Petition for alternative mandamus. Before Scott, J.
    The facts are stated in the opinion of the Superior Court;

      Error assigned was the order of the court.

      Harry C. Cope and Robert S. Taylor, for appellant.
    — A borough council has no right to pass on the legal question whether or not a certain person who produces his certificate of election as councilman is entitled to be seated: Hulseman v. Rems, 41 Pa. 396; Com. v. Meeser, 44 Pa. 341; Kerr v. Trego, 47 Pa. 292.
    The law has made the return the only evidence of an election, in the first instance, and conclusive until it has been corrected or shown to be false by a judicial determination: Ewing v. Thompson, 43 Pa. 372; Goldsworthy v. Boyle, 175 Pa. 246; Com. v. Fletcher, 180 Pa. 456; Com. ex rel. Ross v. Baxter, 35 Pa. 263; Hulseman v. Rems, 41 Pa. 396; Com. v. Reno, 25 Pa. C. C. Rep. 442; Com. ex rel. v. Common Council of Phila., 9 Pa. Dist. Rep. 257; Com. v. County Comm’rs, 6 Wharton, 475.

      W. E. Roster, for appellees.
   Opinion by

Orlady, J.,

The merits of the plaintiff’s claim to a seat in the council of the consolidated borough of Bethlehem depend upon the construction to be given to the fifth section of the Act of June 6, 1893, P. L. 335, which is as follows : “ The Chief Burgess of that Borough which shall have been first incorporated shall be the Chief Burgess of the new borough, to serve as such until a Chief Burgess shall have been elected and duly qualified in accordance with the laws of the Commonwealth. The Chief Burgess of the other borough shall become a member of the town council of the new borough from that ward in which he shall reside, and shall continue a member thereof until the expiration of his term of office. The members of the town council of each of the said boroughs shall be members of the town council of the new borough from the wards in which they respectively reside, and no election for members of the council shall be held in any of the wards until the number of members from such ward shall have been reduced to three, by the expiration of terms of service of members in office at the time of such consolidation, and thereafter, annually, there shall be elected in each ward one member of council for the term of three years, and all vacancies in the office of Chief Burgess or member of the town council shall be filled in the manner provided by law. ”

A. C. Huff had been the chief burgess, elect, of the borough of West Bethlehem for a term of three years which expires March, 1906. The new borough was created August 16,1904, and by the provisions of the above section, A. C. Huff was transferred to a seat in, and became a member of council of the consolidated borough from the new sixth ward of Bethlehem, in which he resided, for the remainder of his term. At the time of consolidation of the boroughs, the second ward of West Bethlehem, which subsequently became the sixth ward of the new borough of Bethlehem, was represented by three councilmen, who under the terms of the same section were continued as members of the council from the wards of their respective residences until the expiration of their terms. That of Frank V. Kleckner expired on March 6-, 1905. This plaintiff was duly nominated, voted for, and returned as elected at the February election in 1905, a member of council from the sixth ward of the new borough. He presented his certificate of election with his oath of office, and requested that he be permitted to exercise the rights and privileges of a member, which was refused him, and this petition for a mandamus was presented to enforce the alleged right. It thus appears that at the expiration of the term of councilman Kleekner, by the very terms of the act, there were yet three members of that body from the sixth ward of the borough. There was no vacancy to fill, and by the letter of the law, “ No election for members of the council shall be held in any of the wards of the new borough until the number of members of such ward shall have been reduced to three by the expiration of the terms of service in office at the time of such consolidation. ” It was not necessary that A. C. Huff, the former burgess of West Bethlehem, nor the town council, should take any affirmative action to continue him as a member. When the consolidation was effected he became at once a member of the town council. His status was continued by the provision, — “he shall become a member of the town council of the new borough from that ward in which he shall reside, and shall continue a member thereof until the expiration of his term of office. ”

It so happened that the first year after the consolidation, the sixth ward had four members instead of three. This contingency was provided for and the remedy to prevent such further unequal representation guarded against by the other provisions ; the transition from two boroughs to one was intended to be effected with as little disturbance of office or membership in council as possible. No one was ousted from his elected place. As stated by Mitchell, C. J., in Commonwealth v. Keystone Benefit Association, 171 Pa. 465: “ The fabric of modern law is too complicated and the displacement of any part of it too far reaching for its entire effect to be foreseen by any legislator.”

Under the facts agreed to the members from the sixth ward held, to wit: Jacob Franklin held until March, 1906 ; and John Clark until March, 1907. The title of A. C. Huff as a member from that ward was of the same quality as that of either of the other members. The ward had its full quota of representatives and the election of the plaintiff to fill a vacancy which did not exist was without any warrant of law.

The mandamus was properly refused and the decree is affirmed.