text:
    Klein v. Patterson, Appellant.

      Sale — Bill of sale — Title—Possession.
    As between vendor and vendee title to personal property may pass under the bill or contract of sale without actual delivery.
    Where an owner of personal property executes a bill of sale for it, and the vendee permits the property to remain in the possession of the vendor upon condition that it shall not be removed 'from the vendor’s premises, and the vendor subsequently removes it to a warehouse, at which place it is surrendered to the vendee on demand, the warehouseman is not liable in an action of trespass to the vendor for surrendering the property. He will be liable, however, for any property surrendered by him to the vendee, and belonging to the vendor, which was not included in the bill of sale. In such a case the vendor is entitled to recover not only the fair value of the goods wrongfully surrendered, but something in addition to the value of the goods not exceeding the legal interest from the time of the wrongful act.
    Argued Jan. 9, 1906.
    Appeal, No. 26, Jan. T., 1906, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 730, on verdict for plaintiff in case of Mrs. Charles Klein v. J. E. Patterson and O. M. Brandow, trading as J. E. Patterson & Co.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass against a warehouseman for the loss of goods. Before Lynch, P. J.
    The facts appear by the opinion of the Superior Court.
    The court charged in part as follows :
    [Are you satisfied from the evidence, including these papers from which I have read material abstracts, that Mackey or the Wilkes-Barre Loan Company was the true owner of this property stored in Patterson & Company’s warehouse ? Neither Mackey nor the company had ever taken it into their possession. They never made, so far as appears here, any demand upon this woman to have it delivered to them. So far as appears, they, without the knowledge of this woman, went to Patterson & Company, made a demand, gave an indemnifying bond to Patterson & Company and then broke open the lock of room No. 10 and carted these goods away. The papers alone do not make in Mackey or the loan company a complete title to this property. This'was in the nature of a lien by which they advanced money to this man and woman and took as security this property, in case the loan was not paid. Had these people paid, neither the company nor Mackey would have had a right to take the property from the possession of Mrs. Klein. This being so, unless there is other evidence in the case which satisfies you that Mackey or the Wilkes-Barre Loan Company was the true owner at the time they took this property from Patterson & Company, they had no right to surrender it and are liable in damages to the value of the-goods so taken.] [1]
    Defendant presented these points :
    1. The undisputed evidence shows that on March 28, 1903, the plaintiff and her husband executed to one H. L. Mackey a bill of sale for all the goods covered by this suit except four items, and on the same day borrowed $20.00 from said Mackey and agreed to hold the goods sold by the bill of sale aforesaid upon a bailment for said Mackey ; that said loan was to be repaid in six monthly installments beginning April 28,1903 ; that •said goods are to be held on the premises at 45 Madison sti'eet, Wilkes-Barre, and are not to be removed from said premises . by the plaintiff without first having obtained the written consent of said Mackey, and if plaintiff and her husband removed said goods in violation of this agreement, or if any of said monthly payments were not paid when due, they granted to said Mackey full power to enter on the premises where the goods were kept and take possession of the same with or without process of law. The undisputed evidence shows that the payments were not made as required and that the goods were removed by plaintiff in violation of the agreement. Answer : Refused. ['2]
    2. Upon the facts of this case it was the right of J. E. Patterson & Company to recognize the title of H. L. Mackey to s the goods covered by said bill of sale and it was the right of the said Mackey to remove the goods from the defendants’ warehouse, and therefore the plaintiff cannot recover from the defendants in this case for the value of any of the goods in the case which were covered by the bailment of March 28, 1903. Answer: Refused. [3]
    3. The defendants in this case are not liable for the goods taken by H. L. Mackey and Ms representatives, which were not covered by tbe bailment aforesaid, because tbe said Mackey had express authority to enter on the premises wherein the goods covered by the bailment of March 28, 1903, were stored and kept and the defendant is not liable for the excessive. or improper exercise of the authority to enter upon the premises to take goods which plaintiff had given to Mackey. Answer: Refused. [4]
    4. The defendants are protected by the terms of the lease against the alleged unlawful taking of any goods not covered by the bailment of March 28, 1903, because the said Mackey’s right to enter the premises arose by the express authority given to him by the plaintiff. Answer: Refused. [5]
    5. At most the plaintiff can only recover the fair value of those goods taken which were not included in the bailment of March 28, 1903 Answer: Refused. [6]
    6. Under all the evidence in this case the verdict must be for the defendants. Answer: Refused. [7]
    Verdict and judgment for plaintiff for $325. Defendant appealed.

      Errors assigned were (1-7) above instructions, quoting them.

      Thomas F. Farrell, with him S. J. Strauss, for appellants.
    — . The bailee can protect himself against the bailor by showing that he has delivered possession, after demand, to the true owner: King v. Richards, 6 Wharton, 418; Floyd v. Bovard, 6 W. & S. 75; Edson v. Weston, 7 Cow. (N. Y.) 278; Bates v. Stanton, 8 N. Y. Superior Ct. 79; Western Transportation Co. v. Barber, 56 N. Y. 544; Whittier v. Smith, 11 Mass. 211; Pulliam v. Burlingame, 81 Mo. 111; Palmtag v. Doutrick, 59 Cal. 154; Ogle v. Atkinson, 5 Taunt. 759; Shelbury v. Scotsford, Yelv. 23.
    If part of the goods have been surrendered to a paramount title, tMs is a defense pro tanto: Haynes v. Tenney, 45 N. H. 183; Healey v. Hutchinson, 66 N. H. 316 (20 Atl. Repr. 332); Palmtag v. Doutrick, 59 Cal. 154; Macomber v. Parker, 31 Mass. 497; Hays v. Riddle, 3 N. Y. Superior Ct. 248.
    As between vendor and vendee, title to personal property may pass under the bill or contract of sale without actual delivery: McCandlish v. Newman, 22 Pa. 460; Pringle v. Pringle, 59 Pa. 281; Pittsburg Glass Co. v. Electrical Supply, etc., Co., 2 Pa. Superior Ct. 170; Croft v. Jennings, 173 Pa. 216.
    April 23, 1906:

      P. M. Thornton, for appellee.
    — The defendant was liable as warehouseman for the loss of the goods: Hoeveller v. Myers, 158 Pa. 461; Safe Deposit Co. v. Pollock, 85 Pa. 391; Clowes v. Hughes Bros., 3 Pa. Superior Ct. 561; King v. Richards, 6 Wharton, 418; Lemont v. R. R. Co., 18 W. N. C. 431; B. & O. R. R. Co. v. Davis & Moore, 20 W. N. C. 514; Holmes v. Penna. R. R. Co., 18 W. N. C. 429; Palmtag v. Doutrick, 59 Cal. 154; Wetherly v. Straus, 93 Cal. 283 (28 Pac. Repr. 1045); Biddle v. Bond, 118 E. C. L. 225.
    A bailee must show that the person to whom the goods were delivered, as agent, was duly authorized as such by the owner to receive them, for if he delivers to any but the owner, consignee or agent, he does so at his peril: Shenk v. Phila. Steam Propeller Co., 60 Pa. 109; Whiting v. Lake, 91 Pa. 349.
    It was not the intention to create a sale. The passing of the title, upon a sale of chattels, depends upon the intention of the parties to be derived from the contract and its circumstances. Therefore there being no sale intended the title did not pass even if she did sign that paper: Com. v. Hess, 148 Pa. 98; Bissell v. Steel, 67 Pa. 443.
   Opinion by

Morrison, J.,

This is an action in trespass to recover from defendants the value of household goods stored in defendants’ warehouse. The plaintiff recovered a verdict for the value of the property and, judgment being entered thereon, defendants appealed.

On March 28, 1903, the plaintiff and her husband, Charles Klein, were the owners of certain personal property consisting of furniture and household goods. On that day they borrowed from H. L. Mackey, through the Wilkes-Barre Loan Company, the sum of $20.00, agreeing to pay the same in six monthly installments, and on the same day executed and delivered to Mackey a bill of sale for the said goods then in plaintiff’s residence at No. 45 Madison street, Wilkes-Barre. This bill of sale was absolute upon its face and was signed and sealedby the plaintiff and her husband and as between the parties it was sufficient to vest in Mackey the title to the goods therein described. On the same day plaintiffs also agreed in writing to hold, upon a bailment, in trust for Mackey, the goods covered by said bill of sale ; not to remove the said goods from the premises at No. 45 Madison street without first obtaining the written consent of Mackey, and if plaintiff or her husband should remove said goods in violation of said bailment contract, or in case of default by plaintiff in paying the monthly installments when due, full power was granted to Mackey to enter upon the premises where the said goods might then be, and take possession of the same, with or without process of law, and sell the same for satisfaction of said debt.

The plaintiff’s husband, Charles Klein, died soon after the execution of the said papers. The undisputed evidence shows that none of the monthly installments were ever paid, and that on May 5, 1908, the plaintiff removed the goods from No. 45 Madison street, and stored the same with the defendant's, who were warehousemen, and the plaintiff regularly paid the defendants the rent for the room in which the goods were stored. On July 15, 1903, Mackey’s alleged agent presented to the defendants the bill of sale of .March 28, 1903, and demanded the possession of the said goods and on that day the defendants delivered the goods to him, taking a receipt and agreement of indemnity therefor. The plaintiff had also stored with the defendants, with the said goods, four additional items of personal property or household goods, which were not covered by the bill of sale and bailment contract of March 28, 1903. In removing the goods covered by his bill of sale, Mackey’s alleged agent took and carried away-the said four items of personal property, and this gives rise, to one of the questions raised in this action.

■ There is no allegation in this record of any fraud, accident or mistake in the execution of the bill of sale and bailment contract of March 28, 1903, nor is it alleged that there was any inducement for the execution of the same which would authorize a reformation of the writings. As between the plaintiff and Mackey, we are unable to see why the title to the goods in question Was not vested in the vendee by the bill of sale referred to. As between vendor and vendee, title to personal property may pass under the bill or contract of sale without actual delivery: 4 Am. & Eng. Ency. of Law (2d ed.), p. 558; Pringle v. Pringle, 59 Pa. 281; Pittsburg Glass Co. v. Electrical Supply, etc., Co., 2 Pa. Superior Ct. 170; Croft v. Jennings, 173 Pa. 216.

We are, therefore, of the opinion that the "written and oral testimony in the present cases required the court to instruct the jury that Mackey had the right of possession in and to all of the property covered by his bill of sale, and that he was entitled to exercise this right at the time he took the goods from the defendant’s warehouse.

The other important question in the case is the right of the defendants to recognize Mackey’s claim and to deliver the goods to him. When the goods were deposited by the plaintiff with the defendants, the relation of bailor and bailee was established between them, and prima facie, it was the duty of the defendants to take proper care of the property and to deliver it to the plaintiff or on her order. It is well settled law that the bailee cannot set up title in a third person to justify keeping the property for himself: 3 Am. & Eng. Ency. of Law (2d ed:), p. 759. But the bailee can protect himself against the bailor by showing that he has delivered possession, after demand, to the true owner: King v. Richards, 6 Wharton, 418; Floyd v. Bovard, 6 W. & S. 75. Such seems to be the settled law in New York, Massachusetts, California and several other states. But it is sufficient for us to ascertain the law upon this subject in Pennsylvania.

In King v. Richards, 6 Wharton 418, the Supreme Court, by Kennedy, J., said (p. 427) : “ But it would be repugnant to every principle of honesty to say, that after the right owner has demanded the goods of the bailee, the latter shall not be permitted, in an action brought against Mm by the bailor for the goods, to defend against his claim, by showing, clearly and conclusively, that the plaintiff acquired the possession of the goods either fraudulently, tortiously, or feloniously, without having obtained any right thereto.” See also Palmtag v. Doutrick, 59 Cal. 154; s. c. 43 Am. Rep. 245, which in its facts is much like the present case and the decision is in harmony with King v. Richards.

In our opinion, it is not important whether Mackey had an absolute title to the goods in question, or only the right to hold the same until the money advanced, to the plaintiff was paid. In either view he had the right of possession and this being clearly shown by the written evidence, without dispute, the court erred in submitting the case to the jury and allowing a recovery against the defendants as if they had surrendered the property to one who had no title or right of possession. It does not matter that the transaction between the plaintiff and Mackey of March 28, 1903, may seem like a hard bargain for the plaintiff. She and her husband received from Mackey $20.00 and executed the papers of that date, and agreed to pay $29.60 in six monthly installments, at the offices of the loan company, for the loan, drawing papers, etc., and they were competent to execute and' deliver the contracts which they did. The two papers of March 28, 1903, clearly entitled Mackey to the possession of the goods in question, in case the plaintiff should make default in paying the said installments, and, also, if she should remove the property from the premises in which it was to be kept.

In view of the undisputed facts and the law as we understand it, there is manifest error in the charge of the court contained in the first assignment of error and this assignment must be sustained. The. learned court also erred in refusing to affirm defendants’ first point (second assignment of error). We do not sustain the third assignment of error (second point) for the reason that it asked for a binding instruction to the effect that the plaintiff could not recover for the value of any of the goods covered by the bailment of March 28,1903. The person who appeared at the defendants’ warehouse and claimed the goods referred to in the point was not Mackey, but one claiming to act for him, and we think, there was a question of fact for the consideration of the jury as to whether or not this person represented Mackey so that the defendants were justified in delivering the goods to him.

We do not sustain the fourth, fifth, sixth and seventh assignments because the evidence is undisputed that the goods referred to in the points upon which these assignments were based, were not included in Mackey’s bill of sale. In our opinion the defendants are not excused in permitting the removal of these goods and therefore they are liable in this action for the damages caused thereby. When they permitted Mackey’s alleged agent to remove the goods included in the bill of sale, the duty rested upon them to hold the plaintiff’s other goods, subject to her order.

The reason we do not sustain the sixth assignment, in addition to what has been said, is that the point upon which it is based limits the right of the plaintiff to recover the fair value of the goods referred to. That is not the law as to the measure of damages. The verdict was not rendered for more than two years after the goods were taken, and if the plaintiff was not entitled to punitive damages, which is not now decided, she was at least entitled to have the jury instructed that they might allow her something in addition to the value of the goods. The rule on this question is that such allowance may not exceed legal interest, and it may be less.

The judgment is reversed with a venire facias de novo.


source: Caselaw Access Project

author: Pee Cueiam,

license: Public Domain

text:
    Cherry Township v. Sullivan County, Appellant.

      Appeals — Quashing appeal — Interlocutory order — Pleading.
    An order sustaining a demurrer to a statement of claim to a certain extent, “with leave, however, to the plaintiff to amend the statement in this respect,” but overruling the demurrer in all other respects, is an interlocutory order from which no appeal lies.
    Argued March 7, 1906.
    Appeal, No. 7, March T., 1906, by defendant, from order of C. P. Sullivan Co., Sept. T., 1902, No. 62, sustaining demurrer to statement in case of Cherry Township v. Sullivan County.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Demurrer to statement. Before Terry, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      E. J. Mullen, for appellant.

      April 23, 1906:

      Alphonsus Walsh, for appellee.
    — A judgment on demurrer is not a final decree and an appeal therefrom will be quashed : Bishop v. Culver et al., 1 W. N. C. 272.
    An appeal does not lie where proceedings are still pending in the court below: Hope Hose Co.’s App., 2 W. N. C. 451; Com. v. Blatt, 165 Pa. 218.
    A judgment on demurrer is interlocutory or final in the same manner and in the same cases as a judgment by default: Tyler v. Hand, 48 U. S. 573; Kirchner v. Wood, 48 Mich. 199 (12 N. W. Repr. 44); Gesell’s App., 84 Pa. 238; Citizens’ B. & L. Assn. v. Hoagland, 87 Pa. 326.
   Pee Cueiam,

The defendant demurred to the plaintiff’s statement of claim ; after hearing the court held that the statement was defective in a certain particular, and to dihat extent sustained the demurrer, “ with leave, however, to the plaintiff to amend the statement in this respect,” and in all other respects overruled the demurrer. Thereupon the plaintiff filed an amended statement curing the defect pointed out in the opinion of the court. The defendant then took this appeal. The plaintiff moves to quash upon the ground, amongst others, that the order of the court is not a final judgment, and therefore the appeal is premature. The cases, cited in the appellee’s brief, and many others that might be cited, show conclusively that the motion must prevail.

The appeal is quashed at the appellant’s cost, and the record remitted with a procedendo.


author: Pek Cukiam,

text:
    Bigger, Appellant, v. Scouton.

      Taxation — Tax sales — Seated lands — Acts of April 21, 1856, P. L. 477, February 23, 1858, P. L. 45, June 25, 1885, P. L. 187, and June 2, 1891, P. L. 175.
    The third section of the Act of April 21, 1856, P. L. 477, as amended by the Act of February 23, 1858, applies to seated lands, and this section is not impliedly repealed by the Act of June 25, 1885, P. L. 187, as amended by the Act of June 2, 1891, P. L. 175.

      Argued March 7, 1906.
    Appeal, No. 12, March T., 1906, by plaintiff, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 66, for defendant non obstante veredicto in case of O. Elmer Bigger v. John G. Scouton, John Andrews and George W. Andrews.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Shrewsbury township. B efore Terry, -P.J.
    On a motion for judgment for defendant non obstante veredicto Terry, P. J., filed the following opinion:
    The verdict of the jury in the above-entitled case was directed by the court and taken in the following form:
    “ You say you find for the plaintiff the land described in the writ, subject to the reserved question whether under all the evidence in the case and the law applicable thereto, the plaintiff is entitled to recover; the court reserving the right to enter judgment for the defendants, non obstante veredicto, in case we conclude the evidence does not warrant a-recovery by the plaintiff.”
    The form of the question thus reserved was adopted with the consent of the counsel for the parties, and the matter is now before us for disposition.
    There are two subjects for discussion. One is whether the acknowledgment of the treasurer’s deed to F. H. Ingham, plaintiff’s grantor, for the land in controversy, was legally proven by the production of an entry thereof upon the court minutes ; and the other, whether the return of said land by the tax collector for unpaid taxes, in pursuance of which the treasurer subsequently sold it, was made within the time prescribed by law.
    The defendants’ objection to the deed, when it was offered, was, in substance, that it was inadmissible unless accompanied by proof that it was acknowledged in open court and an entry thereof made in the court minutes ; and in support of this position the case of Lee v. Newland, 164 Pa. 860, was cited. Whether that case, decided upon peculiar facts, rules the one .at bar,, ip view of the clear minute appearing upon the sheriff’s and treasurer’s deed book offered in evidence by the plaintiff, need not be decided, as, in our opinion, the other question must be resolved in favor of the defendants.
    The tax for which the land in dispute was sold was assessed in 1894. The collector’s return of the land to the county commissioners for exoneration of the tax for which it was afterward sold, was made June 14, 1895.
    It was decided in Vandermark v. Phillips, 116 Pa. 199, that the provision of the third section of the Act of April 21,1856, P. L. 477 (as amended by the Act of February 28,1858, P. L. 45), requiring tax collectors to make their returns to the county commissioners for exonerations on or before February 1 in-each and every year, is mandatory, and its observance is a condition precedent of the right of the commissioners to sell the land so returned for the unpaid taxes.
    Counsel for the plaintiff admits this decision will prevent a recovery in this case if the act of 1856, as amended, is still in force He contends, however, that it has been repealed by the Act of June 25, 1885, P. L. 187, and its supplements; not expressly but by implication.
    By the act of 1885, the term of office of the collector was made one year, beginning on the first Monday of April following his election ; and the tax duplicate is required to be issued to him on or before the first day of August. Upon receiving it he is directed to give notice thereof, and the persons rated therein who pay their taxes within sixty days from the date of such notice are entitled to a reduction of five per cent. Those who fail to make payment within the period of six months from said date are charged five per cent additional, to be added and collected by the collector. The Act of June 2, 1891, P. L. 175, provides that taxes collected within the sixty-day period shall be paid over by the collector to the proper authorities within fifteen days after the expiration of said period; all taxes thereafter collected during his term of office shall -be paid over at regular intervals of one month, and a full and complete settlement of all taxes collected shall be made by him with said authorities not later than three months after the expiration of his term of office. The Act of June 6, 1893, P. L. 333, extends the collector’s official term to three years and requires him to give bond annually.
    The argument of counsel for the plaintiff is that as the duplicate may be withheld from the collector until August 1, and as the period for collecting the tax with the addition of the five per cent penalty begins bn the expiration of six months from the date of the notice aforesaid, the time for returning land for the nonpayment of tax and securing exoneration is thereby impliedly extended. That is, if he waits, as it is contended he should, for the expiration of the six months’ period before making such return and obtaining the exoneration, the collector will have at the longest but one day viz.: February 1, for such action, which, the contention is, would be unreasonable.
    It is further urged that the collector has until July 1 of each year to make the full settlement mentioned in the act of June 2, 1891. This conclusion is reached by the following mode of reasoning: The act of 1885 made the collector’s term of office one year; the act of 1891 requires him to make ful-1 settlement within three months after the expiration of such term; the act of 1893 lengthened the term of office to three years, but requires him to give bond annually; hence, the full settlement aforesaid is enjoyed yearly, within said period of three months, which, dating from March 31, the end of the official term, would extend it to July 1, up to which time he would be authorized to return lands for nonpayment of taxes.
    The weakness of the argument we have just outlined is, first, there is nothing in the act of 1895, or those following it, compelling the collector to wait until the expiration of the aforesaid six months’ period before returning land in order to secure exoneration from the tax with which it is charged; and, second, not only does the act of 1885 fail to expressly repeal the act of April 21,1856, as amended by the act of February 23, 1858, but on the contrary it provides, in section 10, that “ ex-onerations may be made by the authorities and in the same manner as heretofore.”
    The word “ manner” is defined by Webster to mean “ customary method of acting; ” one definition thereof given in the Standard Dictionary is, “usual practice ; ” and in 19 Am. & Eng. Ency. of Law (2d ed.), p. 921, note it is said that it sometimes includes time as well as mode. It seéms to us that if the legislative intent had been to change the time for making land returns it would have found expression, especially as there was an allusion to the. subject.
    April 23, 1906:
    We are unable to perceive any repugnancy between the act of 1856, as amended, and those of later date to which reference has been made, that would warrant us in adjudging the former repealed. As, in our opinion, it is still in force, the case of Vandermark v. Phillips, 116 Pa. 199, is decisive of the question under consideration and requires us to hold that the treasurer’s deed, upon which the plaintiff relies, conferred no-title "because the sale preceding it, and which is recited therein, was held without authority of law — -the tax for the collection of which said sale of this land was made not having been returned on or' before February 1, 1895.
    Accordingly judgment is now entered for the defendants, non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      E. J. Mullen, for appellant,
    cited: Vandermark v. Phillips, 116 Pa. 199.

      J. G. Scouton, for appellees.
   Pek Cukiam,

The contention that the third section of the Act of April 21, 1856, P. L. 477, as amended by the Act of February 23,1858, P. L. 45, does not apply to seated lands cannot be sustained. In Vandermark v. Phillips, 116 Pa. 199, it was held — we quote from the opinion of the court — “The return of taxes was made too late in time, and was too defective in form to constitute a valid basis for a sale of the land in question.” ‘The time there referred to was the time fixed by the act above cited. This was a clear recognition of the application of the act to sales of seated lands, and the plain meaning of the ruling is that either of the objections therein specified, not merely both combined, was sufficient to defeat the sale. It does not detract from the authoritativeness of the decision as a controlling precedent in a later case where the question of the application of the act to seated lands is raised, that the decision cited might have been put exclusively upon the defectiveness of the form of the return.

The sale in question was made for the taxes of 1894, pursuant to a return made by the collector in June, 1895. The act of 1856, as amended by the act of 1858, provides that it shall not be lawful for the county treasurer to sell any lands which shall have been returned and taxes exonerated after February first. Therefore the return was too late, if that provision of the act was then in force. The argument of the appellant’s counsel that it was impliedly repealed by the Act of June 25, 1885, P. L. 187, as amended by the Act of June 2, 1891, P. L. 175, and the time for making return impliedly extended to the time when by those acts the collector must make full settlement, is based largely upon the supposed inconvenience which would result from holding otherwise. The argument is not without force, but it is reasonable to suppose that if the legislature had intended to change the time when the returns must be made they would have fixed the time in express terms and would not have left it to uncertain inference. The fact that they declared that the collector must make full and complete settlement of all taxes collected not later than thred months after the expiration of his term of office, or of the year for which they were levied, raises no certain inference that the legislature intended to fix the same period for making land returns. There is also affirmative evidence that they did not intend to change the law in this respect in the provision that “ exonerations may be made by the authorities and in the same manner as heretofore.” The appellant’s argument ab inconvenienti is fairly stated and fully and satisfactorily answered in the opinion filed by the learned judge below; therefore we need not extend the discussion. We concur in his conclusions that the last cited acts did not abroagate nor amend the provision of the earlier acts under which the return must be made on or before the first day of February in order to be the basis of a valid sale.

Judgment affirmed.


author: Beaver, J.,

text:
    Mohr v. Scherer, Appellant.

      Statutes — Repeal—Deeds and mortgages — Recording acts — Indexes.

      . The general Act of March 18, 1875, P. L. 32, relating to the indexes of deeds and mortgages, repeals the special Act of March 7, 1873, P. L. 222, “regulating the indexing of mortgages in the county of Lehigh.” Farabee v. McKerrihan, 172 Pa. 234, distinguished.
    A local act is not repealed by a general act on the same subject, even with different or inconsistent provisions; but this rule, being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent.
    Where the clear general intent of the legislature is to establish a uniform and mandatory system, as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed.

      Mortgage — Notice—Recording act — Description of property.

    The record of a mortgage is sufficient notice to a subsequent judgment creditor of the mortgagor, when the mortgage correctly describes the property, except in reciting it as situate in a township, of which it was once a part, when prior to recording the mortgage that part of the township in which the property was situated had been erected into a new township.
    Argued Dec. 6, 1905.
    Appeal, No. 173, Oct. T., 1905, by defendant, from judgment of C. P. Lehigh Co., April T., 1905, No. 81, on verdict for plaintiff in case of Franklin J. Mohr, now to use of Thomas Scherer, v. Thomas A. Scherer et al.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Trexler, J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $879.83. Defendant appealed.

      Error assigned was in directing a verdict for plaintiff.

      Calvin E. Arney, with him Edward Harvey, for appellants.—
    A mortgage misdescribing the property must be corrected before foreclosure proceedings are begun: Davis v. Cox, 6 Ind. 481.
    The facts in the present case are very similar to those in Wentz’s App., 10 W. N. C. 284. See also Friedley v. Hamilton, 17 S. & R. 70.
    March 12, 1906:
    Purchasers at judicial sales are not required to take notice of defective or indefinite records: Banks v. Ammon, 27 Pa. 172; Sturtevant’s App., 34 Pa. 149; Dickinson v. Beyer, 87 Pa. 274; Goepp v. Gartiser, 35 Pa. 130.
    The only act which could have repealed the local act would be that of March 18, 1875, P. L. 32. The latter act repeals nothing: Farabee v. McKerrihan, 172 Pa. 234.

      Thomas F. Diefenderfer, for appellee,
    cited: Frick v. Fiscus, 164 Pa. 623; Brown’s App., 82 Pa. 116.
   Opinion by

Beaver, J.,

The question here is twofold: first, was the notice to the terre-tenants of mortgaged premises contained in the mortgage index of Lehigh county sufficient in law to bind them and so make them liable for the payment of the mortgage ? The mortgage index, it is admitted, contains the date of the entry, the name of the mortgagor, the name of the mortgagee and the volume and page of the record. It is claimed, however, that this is not sufficient notice to the terre-tenants of the existence of the mortgage, under the provisions of section 1 of the special Act of March 7, 1873, P. L. 222.

The act in question “ Regulating the indexing of mortgages in the county of Lehigh,” provides: “ That it shall be the duty of the recorder of deeds of the county of Lehigh to note, on the margin of the grantors’ index of mortgages recorded, a brief abstract of the dates of execution and of entry of the real debt secured, when the same becomes due, of the city, borough or township where the mortgaged premises are located, the contents thereof, and the street or one or more of the adjoining owners of land whereon such premises abut (in all cases using figures-where the same are practicable), for which service such recorder shall receive twenty-five cents on each mortgage, in addition to the fees now allowed.” The special provisions of this act were not complied with. Were they in force at the time of the recording of this mortgage ?

The Act of March 18, 1875, P. L. 32, “Requiring recorders of deeds' to.prepare and keep in their respective offices general, direct and ad sectum indexes of deeds and mortgages recorded therein,” etc., provides, among other things, that “ He (the recorder) shall, in like manner, also prepare and keep two general indexes, one direct and the other ad sectum, of all mortgages recorded in his office. Said indexes shall be arranged alphabetically and in such a way as to afford an easy and ready reference to said deeds and mortgages respectively, and shall be written in a plain and legible band: Provided, however, that in any county where such indexes have already been prepared and in use, or where any special law relating to any of said indexes is now in force, they shall be adopted and kept as if made in pursuance of this act.”

The Act of May 3, 1878, P. L. 43, “ Authorizing and empowering the court of common pleas of the several counties of this commonwealth to change, alter and direct the mode of preparing and keeping indices in the several offices of record in said counties, and for preparing, making and substituting new indices for old indices, or parts thereof,” provides : “ Section 1. That the court of common pleas of the proper county is hereby authorized and empowered, whenever it shall appear advisable, on inspection of the books of record and indices belonging to the several offices of prothonotary and clerks of the several courts, register of wills and recorder of deeds of such county, by its order, to change and alter the mode of preparing and keeping said indices in one or more of said offices, and to direct the mode by which said indices shall thereafter be prepared and kept.” “ Section 2. That the said court is authorized and empowered, whenever it shall appear advisable, by its order, to direet new indices to be prepared and made of the whole or any part or parts of the indices theretofore prepared and kept in any one or more of said offices, and also to direct the mode in which said new indices shall be prepared and kept.”

In the opinion of the court below, overruling the motion for a new trial, it is said : “ In pursuance of said act (the one last referred to) the court of common pleas of Lehigh county, no doubt with a full knowledge of said prior acts, provided that the indexes in the recorder’s office shall be kept in the same manner as these now in relation to the judgments in the court of common pleas of Lehigh county.”

“ The mortgage in question, as all other mortgages in said county, was entered by giving the date of entry, the name of the mortgagor, the name of the mortgagee and the volume and page of the record.”

It seems to us clear that the provisions of the act of 1875, above referred to, being entirely inconsistent with those of the special act relating to Lehigh county, by implication, repealed the latter act. The act of 1875 prescribes specifically how the mortgage index is to be kept, namely, as in the case of deeds, by entering “ in their order the name of the grantor, the name of the grantee, the volume and page wherein the deed is recorded.” The like manner in regard to mortgages would mean that in the mortgage index the name of the mortgagor, of the mortgagee and the volume and page where the mortgage is recorded should be entered.

We are not unmindful of the case of Farabee v. McKerrihan, 172 Pa. 234, in which it was held that: “ The Act of March 18, 1875, P. L. 32, directing that recorders shall prepare and keep two indexes of deeds and two of mortgages, direct and ad sectum, does not contain any repeal of the prior legislation of the state relating to the recording of deeds and mortgages, and does not assume to create any new rule of constructive notice of recorded instruments, and in no way impairs the rule laid down in Glading v. Frick, 88 Pa. 460.” That case refers only to general prior legislation. It will be observed, however, that the proviso in the act relates to “ any county where such indexes have already been prepared and in use, or where any special law relating to any of said indexes is now in force,” and directs that “ they shall be adopted and kept as if made in pursuance of this act.” This seems to us to preclude their being kept both ways, so that, instead of being kept as provided in the special Act relating to Lehigh county, of March 7, 1873, P. L. 222, the indexes should now be kept as provided in the general act of 1875, supra.

This conclusion is in harmony with Com. v. Brown, 210 Pa. 29, in which the present Chief Justice lays down, with great clearness, the result of the cases in regard to the repeal of a local, by a general, act, viz.:-

“A local act is not repealed by a general act on the same subject, even with different or inconsistent provisions; but this rule, being founded on a presumption of legislative intent; will not apply when a contrary intent is clearly apparent.
“Where the clear general intent of the legislature is to establish a uniform and mandatory system, as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed.”

It seems to us that a uniform, mandatory system in regard to the manner in which the indexes as to deeds and mortgages shall be kept is established by the proviso heretofore quoted, the precise provision being that “ they shall be adopted and kept as if made in pursuance of this act.” Whether this be so or not, however, the appellants, under the authorities above referred to, had constructive notice of the existence of the mortgage.

In view of this conclusion, it has not seemed to us necessary to discuss the Act of May 3, 1878, P. L. 43, “Authorizing and empowering the court of common pleas of the several counties of this commonwealth to change, alter and direct the mode of preparing and keeping indices in the several offices of record in said counties and of preparing, making and substituting new indices for old indices, or parts thereof.” This act. was held to be unconstitutional b}r our late Brother Wickham, when on the common pleas bench of Beaver county, from whose decision no appeal was taken, and we do not find that the constitutionality of the act has been passed upon by an appellate court since.

The appellants, who were summoned as terre-tenants, were the purchasers at sheriff’s sale of the land alleged to be described in the mortgage, the sale having been brought about by themselves under proceedings upon a judgment of their own, subsequent in its lien to that of the mortgage. We are of opinion that the index was sufficient notice to them to send them to the record of the mortgage for information.

This brings us to the second question in the case: Did the record give them notice that the land which they purchased was the same land as that described in the mortgage ?

It seems to be admitted that Joshua Miller conveyed to Henry Scherer, by two deeds dated respectively March 29, 1858, and April 5, 1865, recorded in the proper office in deed book vol. 31, pp. 501 and 502, two several tracts of land situate in South Whitehall township. On October 31, 1867, the township of Whitehall, by proceedings duly had, was erected out of portions of North Whitehall township and South Whitehall township, the portion taken from South Whitehall township containing the premises in question. April 3, 1895, Scherer executed a mortgage to Franklin J. Mohr, which was subsequently assigned to Thomas A. Scherer, the use plaintiff here. The appellants obtained a judgment September 17, 1895, under the sale upon which they claim the premises. The description of the two several lots described in the mortgage is practically the same as that of those described in the sheriff’s deed, except that in the mortgage they are described as being in South Whitehall township, in the county of Lehigh, and in the sheriff’s deed as being situate in the village of West Catasauqua, in the township of Whitehall, county of Lehigh. They are described in both places as being designated as lot No. 11 on the plan or plot of town laid out by Joshua Miller, and the lot adjoining the one first described, it being designated in the mortgage as No. 12 and containing no number in the sheriff’s deed. The courses and distances, however, are precisely the same. It is nowhere alleged that there is any land in South Whitehall township, the description of which would apply to the premises in controversy. Indeed, it does not appear affirmatively by the testimony that there is now a township known as South Whitehall in Lehigh county. This, however, may be inferred from the plaintiff’s offer, which was admitted, of the record of the court of- quarter sessions, showing the division of South Whitehall township and also showing that the township of Whitehall was made up of parts of North and South Whitehall townships. A copy of this record we find in the appellee’s paper-book. Assuming, however, that a portion of South Whitehall- township remained, and is now known by the same name, after Whitehall township was formed, did the fact that the land was described as being in South Whitehall instead of Whitehall township invalidate the mortgage and postpone its lien to that of the judgment of the appellants, upon which the sheriff’s sale took place and the conveyance was made by the sheriff to them? The description of the premises in the mortgage is so specific, — being part of a town lately laid out by Joshua Miller upon a street fifty-seven feet wide and running thence to a public road leading along the river Lehigh, — that it would seem to indicate both artificial and natural monuments from which it would be difficult to fix the lots described in any other place than where they are actually found. It is not shown, nor is it alleged, that there was any such place in Lehigh county. The entire case of the appellants is based upon the assumption that the failure to write Whitehall instead of South Whitehall invalidates the lien of the mortgage and makes their judgment the first lien and their title acquired thereunder good as against the holder of the mortgage. So far as we can ascertain the boundaries of Whitehall township from the record of the court of quarter sessions, as printed by the appellee, it would seem as if the Lehigh river was not touched by South Whitehall township. Taking the entire description of the lots contained in the mortgage, we cannot see how it was possible for the appellants, if they made any examination whatever, to have been deceived as to the true location of them. Admitting that they were not bound to go beyond the mortgage to the deeds which are referred to therein, and which were made before the erection of the township of Whitehall, we are of the opinion that the specific description contained therein gave notice to the appellants that the lots levied upon by the sheriff under the proceedings upon their judgment were the same as those contained in the mortgage, assuming, as we may, that the levy, which is not printed, contained the same description as that in the sheriff’s deed.

Wentz’s Appeal, 10 W. N. C. 284, upon which the appellants rely, is not in any sense analogous to the case under consideration. There the mortgage was a lien upon an entirely different-piece of land from that sold by the sheriff, and the reasoning contained in the opinion of Mr. Justice Green does not in any way affect the question here. Nor has Friedley v. Hamilton, 17 S. & R. 70, any relevancy to the question under discussion. In that case a deed, absolute on its face, was recorded.' A defeasance made at the same time was not recorded, and it was held that in such a case the defeasance would be considered as an unrecorded mortgage and postponed to the lien of a judgment of subsequent date. This is, of course, familiar law, but has no application here.

On the whole case, as presented, we think the judgment fox-plaintiff was properly directed.

The assignments of error are all overruled. Judgment affirmed.


author: Beater, J.,

text:
    Philadelphia v. Unknown.

      Tax sales — Redemption—Right to redeem — Interest in real estate.

    The right to redeem land sold for taxes, vested in a dissolved corporation, is an interest in real estate which may be sold by a trustee appointed by the court under the Act of April 15, 1891, P. L. 15, to sell the property of such a corporation.
    Argued Dec. 13, 1905.
    Appeal, No. 204, Oct. T., 1905, by Francis R. Dever, from order of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 1,744, M. L. D., making absolute rule to convey real estate in case of City of Philadelphia v. Unknown.
    Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Rule to compel reconveyance of real estate. Before Will-son, P. J.
    The facts are stated in the opinion of the Supei-ior Court.

      Error assigned was the action of the court in making the rule absolute.

      William W. Porter, with him Maxwell Stevenson, for appellant.
    — The statutory right to redeem differs essentially from the equity of redemption proper. It exists only in such cases and in favor of such persons as are designated in the statute by which it is created: Read v. Dingess, 60 Fed. Repr. 21; Gault’s App., 33 Pa. 94; Orr v. Cunningham, 4 W. & S. 294; Shearer v. Woodburn, 10 Pa. 511.
    The right to redeem is for the benefit of the owner at the time of sale and no other, and was never intended to aid a speculator. A redemption operates merely to annul the tax sale and reinvest the title in the original owner just as if the tax sale had never been made : Yocum v. Zaliner, 162 Pa. 468.
    March 12, 1906:

      Joseph R. Embery, for appellee.
    — The right to redeem maybe assigned: Gault’s App., 33 Pa. 94; Patterson v. Brindle, 9 Watts, 98; Dubois v. Hepburn, 35 U. S. 1; Orr v. Cunningham, 4 W. & S. 294; Shearer v. Woodburn, 10 Pa. 511; Wistar’s Est., 6 Phila. 55; McCord v. Bergautz, 7 Watts, 487; McBride v. Hoey, 2 Watts, 436; Coxe v. Sartwell, 21 Pa. 480.
   Opinion by

Beater, J.,

The appellant was the purchaser at sheriff’s sale of a lot of ground on the north side of Spruce'street in the 27th ward of the city of Philadelphia, specifically described in the petition of Fergus F. Mac Wilkie, the appellee, for a rule upon the appellant, Frances R. Dever, “ to show cause why she shall not reconvey to him the premises sold as aforesaid.” A rule was granted upon the appellant, June 26, 1905.

From the undisputed facts stated in the petition and the testimony taken under the rule, it appeared that the sheriff’s sale was had for delinquent taxes, under the provisions of the Act of April 19, 1883, P. L. 9, the sale having been made July 6, 1903, and the sheriff’s deed therefor acknowledged July 27, 1903. MacWilkie, the petitioner, was the purchaser at a sale made by a trustee appointed by the court of common pleas No. 1, to make sale of certain real estate which had been the property of the West End Land Association, which at the time of the expiration of its charter was the owner of certain real estate sold for taxes, the right of redemption not having expired.

The proceedings under which the trustee was appointed and the sale made were all in evidence and, on their face, would seem to be regular. The land described in the petition was No 11 in the deed from the trustee to the petitioner, which was conveyed to him in the said deed “ together with the exclusive right to redeem the whole of the said lots Nos. 11, 12, 13 and 14, being the last four lots or pieces of ground above described and granted; and “ Together with .... all the estate, right, title, interest, property, claim and demand whatsoever of the said West End Land Association, and of him, the said Howard A. Davis, trustee as aforesaid, in law, equity or otherwise howsoever, of, in and to the same, and every part thereof.”

It is clear, therefore, if the proceedings were authorized and regular, that whatever interest the said West End Land Association had in the property sold by the trustee passed, under the conveyance, to Mac Wilkie, the purchaser.

The only error assigned is “ that the learned court below erred in making absolute the rule taken upon appellant to show cause why she should not convey to the petitioner for the rule the premises described in his said petition.” The numbered assignments differ only in the reasons upon which the assignment is based. These reasons may be considered in their order.

1. The appellant claims that the right of the delinquent-owner, the said West End Land Association, to redeem the said premises is a personal right which could not be assigned to the petitioner. Why not ? The right to redeem is an interest in real estate. In fact, although the conveyance of the sheriff would appear to be, like the conveyance of a treasurer at a treasurer’s sale for taxes upon unseated lands, a conveyance of the legal title, it becomes complete and operative against the owner only after the right of redemption has passed by lapse of time. The analogy between this sale and that of a treasurer, of unseated lands, is striking and, as to the latter, the law is well settled. “ A treasurer’s sale vests immediately an inchoate title in the purchaser which becomes absolute on the expiration of the time for redemption: ” 20 P. & L. Dig. of Dec. 86,049. "

“ The act of redeeming land from a tax sale operates to set aside or annul the sale, and leaves the title precisely as though the sale had not been made:” Yocum v. Zahner, 162 Pa. 468.

“ The owner of land which has been sold for taxes has a perfectly legal and an efficient means of becoming the absolute owner by redemption, within the time prescribed by law: ” Ley v. Huber, 3 Watts, 367.

In Shalemiller v. McCarty, 55 Pa. 186, it was decided that “ A purchaser at treasurer’s sale takes by his deed but an inchoate title, requiring two years to become absolute. His only certain interest is in the money paid and the twenty-five per cent on redemption. He is not invested with any title whatever to the land, because the owner’s title is not divested. The incidents of title remain in the owner and enable him on his constructive possession to maintain trespass. Unseated land was sold for taxes. The purchaser entered before the two years had expired and cut timber. The owner brought suit before he had redeemed: Held, that he might recover.”

Whilst, in Church v. Riddle, 6 W. & S. 509, Mr. Justice Huston said that the fee simple was in the purchaser at tax sale, there was, nevertheless, a right of redemption remaining in the representatives of the former owner which could be levied on and conveyed to a purchaser at sheriff’s sale. This case is nót, therefore, inconsistent with the uniform ruling in other cases.

In Gault’s Appeal, 88 Pa. 94, in the construction of the Act of May 13, 1856, P. L. 567, which was an act granting a right of redemption within a certain time in sales made by the sheriff upon municipal liens, the Supreme Court carefully considered this entire question, and, in discussing its provisions, said: “ The right of the government to authorize the seizure and sale of land without notice to the owner was seriously doubted, and sometimes stoutly denied, in the early history of tax sales in Pennsylvania; and the only ground on which it can be maintained is the absolute sovereignty of the state in the exercise of its taxing power.

“ But it is a severe exercise of power. To divest ownership, without personal notice, and without direct compensation, is the instance in which a constitutional government approaches most near to an unrestrained tyranny. Whatever tends to modify this right is favorable to the citizen, and ought to be liberally construed, on the principle that remedial statutes are to be beneficially expounded.

“ Redemption is the last chance of the citizen to recover his rights of property, and yet it is here, at the point of the owner’s extremity, the appellant’s argument would have us apply strictness of construction to a statute made for the owner’s relief. The owner may redeem, says the statute; but, says the appellant, those who offered to redeem on September 15, 1858, were not owners at the time of the sale, but became owners afterward.”

Whilst these decisions are not directly in point as to.the construction to be given to the act of assembly governing the sheriff’s sale for delinquent taxes in this case, they are, nevertheless, conclusive as to what the interest of the owner is after the tax sale, and in this respect we see no difference whatever between a sale for taxes on unseated land, by a treasurer, and the sale for delinquent taxes by the sheriff under the provisions of the act in question.

The right of the owner, delinquent although he may have been, to convey this interest in the real estate, grows out of and is an inseparable part of the ownership, and the failure of the legislature to insert the words “his heirs or assigns” cannot, be construed into an attempt to deprive him of the right, which is absolute. Surely, if the owner had been a natural person and had died, the right of redemption could not be denied to his heirs. In what respect, therefore, does the case of an artificial person, whose corporate existence ceases by reason of lapse of time, differ, if a conveyance has been made by the proper person, acting under proper authority, in a proper manner ?

2. This raises the question argued by the appellant under the provisions of the Act of April 15, 1891, P. L. 15. This act, which is an amendment of the Act of June 25, 1885, P. L. 178, provides that: Whenever a corporation has been dissolved, “ whether by decree of court, expiration of time or otherwise, owning land or other real estate within this commonwealth, it shall and may be lawful for the court of common pleas of the county wherein the real estate is or shall be located, upon the petition of any one or more of the shareholders or corporators, or their legal representatives, and personal notice to and service upon all known parties in interest, whose places of residence are known, and such further notice, by advertisement, to others interested, as the court may direct, if no reasonable and sufficient cause be shown to the contrary, to authorize the sale of such real estate in fee simple, at either public or private sale, on such terms as the court may designate, by a - trustee to be appointed for that purpose,” etc. If the defunct corporation had an interest in real estate, as we have shown it had, the trustee appointed by the court of common joleas No. 1, under the authority of the act just cited, undoubtedly had the right to convey that interest, whatever. it was, to the petitioner.

3. The manner in which the trustee discharged his duties would seem, upon an examination of the proceedings which are set .forth in the testimony supporting the rule, to have been in conformity to the requirements of the act referred to, and this would seem to meet the objection in the fourth assignment, that the petitioner had failed to prove, in support of his rule, any of the facts necessary to establish his right to redeem, as required by the act of April 19,1883, supra. The whole argument of the appellant practically rests upon the assumption that the right to redeem was a personal privilege and not an interest in real estate, and this is the fallacy of her position. It was not merely a personal privilege which could not be assigned, but it was an actual interest in the land which had not been divested by the sale and could not be until the time for redemption had passed.

The ability and earnestness with which the argument for the appellant has been pressed upon us has led us to devote considerable time to the study of the principles involved in this case and their discussion herein, but after a full consideration of the ease we have no doubt as to the correctness of the order of the court, making absolute the rule to show cause.

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


text:
    Roats’s Estate.

      Will — Codicil—Defective codicil — Substituted legacy.

    A codicil is to be interpreted in the light of the circumstances surrounding the testator at the time of its execution, and of the reasons which induced it, especially when they appear on its face; and as its purpose ordinarily is merely to modify and add to and not revoke, it is only permitted to change the will to the extent that it is inconsistent with it.
    Testator by his will gave certain real estate to his daughter for life, and then over to her children. By a codicil he revoked the devise of the real estate to his daughter, and “in lieu thereof,” gave her a bond and mortgage to hold to her “her heirs and assigns forever, and I do ratify and confirm my said will and eodieil in all other respects.” Held, that the daughter did not take the bond and mortgage absolutely.
    Argued Dec. 14, 1905.
    Appeal, No. 221, Oct. T., 1905, by Lavinia R. Clymer, from decree of O. C. Phila. Co., April T., 1905, No. 191, dismissing exceptions to adjudication in Estate of John Roats, Sr., deceased.
    Before Rice, P. J., Beaver., Orlady, Porter, Morrison and Henderson, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that the auditing judge surcharged Lavinia R. Clymer, the accountant, with $1,166.66, being the interest on a bond and mortgage bequeathed to the accountant by a codicil of testator’s will. The reason for the surcharge was that the widow of the testator being alive, and the mortgage not having been given to the accountant absolutely, the interest oh the mortgage was applicable to the uses stated in the will. The material portions of the will are quoted in the opinion of the Superior Court.
    On exceptions to the adjudication, Penrose, J., filed the following opinion:
    Without stopping to consider the very many cases cited in the able assignment of counsel for the exceptant and even conceding for the sake of argument, that the" statement in the textbooks, that a substituted testamentary gift is subject to the qualifications and restrictions of the original gift, does not apply where the gifts are of different natures or not from the same fund — a proposition which the cases cited are far from sustaining — it is enough to say that it is a well-settled principle that a codicil, even where it contains an original gift, will not be understood in the absence of express provision as intended to interfere with the provisions of the will or a prior codicil, further than it is clearly inconsistent with it; and that it is to be interpreted in accordance with the general scheme of the will: Brick’s Est., 20 W. N. C. 45; Whelen’s Est., 175 Pa. 23 ; Phillips’s Est., 1 Pa. Dist. Rep. 311.
    Here the income of the entire residuary estate is given to the children of the testator, during the life of the widow, in equal shares; and as the devise to the exceptant was not to take effect until the trust had thus ended, the legacy, substituted by the codicil for the real estate so given is to be understood as being similarly deferred, otherwise the equality among all of his children, contemplated by the will, would be defeated, and the presumption is always in favor of equality as between those standing in the same relation to the testator. This is made still clearer bjr the gift to the exceptant by another codicil of 1500, which it is expressly provided shall be “ paid to her immediately after,” the testator’s death-words which are wholly wanting in the gift of the bond and mortgage, by the codicil in question “ in lieu of ” the property devised to her at the expiration of the trust. -
    March 12, 1906:
    Expressio unius est exclusio alterius.
    The exceptions are dismissed, and the adjudication confirmed absolutely.

      Error assigned was the decree of the court.

      Joseph S. Goodbread, for appellant.

      William Y. Tripple, for appellee.
   Opinion by

Beaver, J.,

It is difficult to state, as an abstract legal proposition, a question which arises out of the interpretation of any given will. When, therefore, the appellant states, as the question here involved: “ Is a substituted specific legacy attended with the same incidents as the original devise of real estate ? ” the obvious answer is: That will depend upon the intention of the testator, as manifested by the terms of his will. It is essential, therefore, to the proper interpretation of the testator’s will that the parts governing or affecting' the codicil which contains the substituted legacy should be fully stated. They are as follows:

“Item. As to all the rest, residue and remainder of- my estate, real, personal and mixed, I give, devise and bequeath unto my daughter, Lavinia Clymer, to have and to hold the same to herself, her heirs and assigns forever, upon the uses and trusts following, namelyto collect and receive all the rents, income and profit arising therefrom during the lifetime of my wife, Emiline Roats, and to apply the whole of the said rents, income and profits as follows: to pay all taxes, insurance,, assessments, cost of repairs of said premises, and the costs of the execution of this trust, as well as all other obligations for which I am liable, and then divide the balance in four equal shares and pay one equal share thereof to my daughter, Elizabeth Lowder; one other equal share thereof unto my son John Roats, which is to be paid to him or his children by my said trustee as she shall deem advisable and expedient; one other share to my said daughter, Lavinia Clymer; and the other and remaining share to the children of my son Joseph Roats, and the issue of such as may be deceased. . . .

“I give, devise and bequeath premises 2042 Germantown Avenue in the city of Philadelphia unto my daughter, Lavinia Clymer, for and during the term of her natural life, and at her decease I give, devise and bequeath the same unto the child or children of my said daughter, Lavinia Clymer, his, her, or their heirs and assigns, forever.”

In a first codicil to his will, made about two months subsequent to the date thereof, the testator made the following bequest: “I hereby ratify and confirm said will in every respect save so far as any part of it is inconsistent with this codicil.

“ To my daughter Lavinia Clymer I give and bequeath the sum of five hundred dollars, to be paid to her immediately after my death. This bequest is in addition to the provision I have already made for (her) in my said will.”

In a subsequent codicil, made more than four years after the latter one, the testator provided as follows:

“Item. I do revoke the devise in my said will contained of premises 2042 Germantown Avenue unto my daughter, Lavinia Clymer, and direct that the same shall become a part of my residuary estate, to be disposed of as I have in my said will directed of and concerning my residuary estate.
“ Item. In lieu thereof, I give, devise and bequeath unto my said daughter, Lavinia Clymer, the bond and mortgage of twenty-five hundred dollars, given me by William J. Clymer, dated January 11th, 1895, and secured on premises S. W. Corner of Marshall and Diamond streets, Philadelphia, to have and to hold unto the said Lavinia Clymer, her heirs and assigns forever and I do ratify and confirm my said will and codicil in all other respects. ”

The paragraph in the will relating to the residuary estate is as follows:

“ All the rest, residue and remainder of my estate I direct to be equally divided among my children, and the issue of such as may be deceased. And T hereby give to my said trustee, Lavinia Clymer, full power and authority, if to her it should appear at any time advisable or expedient, to sell any or all of my real estate, at public or private sale, and invest the proceeds, and to apply the income and principal in the manner as I have heretofore indicated. ”

The testator also appointed Lavinia Clymer the executrix of his will.

There is no doubt as to the estate which the appellant took under the devise of the real estate — 2042 Germantown avenue, Philadelphia — contained in her father’s will. The fact that she took a life estate, only at the death of the testator’s widow, during whose lifetime the rents, issues and profits of the residue of the testator’s real and personal estate were to be divided as specifically set forth in his will, is not, as we understand it, in any way questioned. Was the legacy contained in the codicil, which was declared to be in lieu of the devise of the real estate in the will, subject to the same conditions ? That is, did it take effect immediately upon the death of the testator, or did the appellant hold it in trust during the lifetime of the testator’s widow, subject to the uses and trusts specifically set forth in the will?

Can we gather the intention of the testator from the words which he used ? After revoking the devise, he says: “ Item. In lieu thereof, I give, devise and bequeath.” He also says, in closing the item, “ and I do ratify and confirm my said will and codicil in all other respects.” Unless the legacy in the codicil is just what it purports to be, namely, a substitute for and subject to all the provisions'relating to the devise of the real estate contained in the will, the will itself would be materially changed.

In Whelen’s Estate, 175 Pa. 23, Judge Penrose, who was the adjudicating judge in this case, in an opinion upon which the decree of the orphans’ court was affirmed by the Supreme Court,- says: “ A codicil is to be interpreted in the light of the circumstances surrounding the testator at the time of its execution, and of the reasons which induced it, especially when they appear on its face; and as its purpose ordinarily is merely to modify and add to and not revoke, it is only permitted to change the will to the extent that it is inconsistent with it. ‘It is the established rule, 1 Jarman on Wills, 176, not to disturb the disposition of the will further than is absolutely necessary for the purpose of giving effect to the codicil. ’ ”

In 1 Redfield on the Law of Wills, 3d edition, * 353, it is said: “ Where a codicil gave a devise, in terms described as being ‘ instead ’ of one contained in the will, but failed to dispose of the ultimate fee in the estate devised by the codicil, it was held that it must go according to the conditions expressed in the will. It was held that the terms ‘ instead of the devise and bequest contained in my said will ’ were satisfied by holding it to be a substitute for that, only to the extent that the disposition in the codicil was inconsistent with that contained in the will. ”

It is urged by the appellant that the item in the original will for the benefit of the appellant, being a devise of real estate, and that, in the codicil, in lieu thereof, a legacy of personalty, the conditions ■ are so changed that the limitations which surround the one cannot be applied to the other. This we think is fully met by the opinion of Judge Penrose, dismissing the exceptions to the adjudication, and without repeating it here further discussion of the question would seem to be unnecessary.

The surcharge of the interest arising from the mortgage, in the appellant’s account as executrix, is sustained.

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


author: Oblady, J.,

text:
    Wenchell, Appellant, v. Stevens.

      Evidence — Expert—Handwriting—Microscopist—Photographer.
    Experts in microscopy or photography are not required to be experts in handwriting in order to qualify them to testify to special facts within the range of their particular scientific investigation.

      Evidence — ■Sealed instrument — Promissory note.

    Where in an action on a sealed promissory note it is claimed that the seal was added after the execution of the note, it is for the jury to determine under all the evidence of conflicting character, whether the seal was genuine. In such a case it is unimportant that the usual attestation clause was lacking from the body of the note.
    Argued Jan. 11, 1906.
    Appeal, No. 15, Jan. T., 1906, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1901, No. 284, on verdict for defendant in case of Miranda H. Wenchell v. William J. Stevens.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Newcomb, J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    But no matter though the seal is written upon the paper, if in putting his signature upon it the party signing it, as in this case of the defendant signing this note — if he did not intend to adopt that seal as his own, then for the purposes of this case it is not a sealed instrument and the right of action would be barred six years from the time the debt became due, which would be some time in 1889. Now, what do you say upon that point ? That is a question worthy your consideration.] [7]
    [Your attention has been called to the relative position of the word “seal” and the signature “William J. Stevens.” You are aware of course that the word “seal” is below the word “Stevens.” Your attention has been called to the fact that there has been some sloping, some upward sloping or slanting of the word “ Stevens,” and the view on the part of the plaintiff is that it was merely to avoid obscuring the signature by keeping the word “ Stevens ” away from the word “seal,” in order to make the name appear plainly written; that therefore Mr. Stevens slanted the signature upwards. Now that is a fair argument, and whether' it is sustained by the facts is for you to say. On the other hand, it would be perhaps equally fair argument to say it was some evidence tending in some degree to show that the man signing the paper was rejecting the seal and evidenced an intention to avoid adopting the seal. Those are the two contentions as to the relation of the word “ seal ” and the signature and should be carefully considered by you.
    Now, if you find on either of those branches of the case in favor of the defendant, that would be the end of it. In other words, if you should find that there had been an alteration in the paper, the word “ seal” put on afterwards, put there without the defendant’s knowledge or consent, that would be the end of the lawsuit and the verdict would be for the defendant. If, on the other hand, you were to find that the word “seal ” was put on before the note was presented to him for his signature, yet in .putting his name to it he did not intend to adopt that seal and make it his own that would be the end of this suit because in either case it would be barred by the statute of limitations.] [8]
    [That defense has been somewhat adversely criticised by the learned counsel. I think it has been spoken of as an unworthy defense. It is a defense created by our statute, by solemn enactment, and one that is founded in the policy of the law which is the outgrowth of long years of experience that advised the law-making powers of the necessity of putting an end to stale claims that are liable to come into court years after the evidence is hopelessly beyond the reach of the parties, where witnesses have died, and so various difficulties are encountered in attempting to ascertain and determine what the truth is. It might be that in some of its aspects this lawsuit is a fair illustration of the wisdom of the law in enacting a statute of limitations, in fixing a time within which suit must be brought and after which they may not be brought.] [9]
    [If you should find upon both of these matters, to which I have endeavored to call your attention with reference to the seal, against the defendant, then the plaintiff would be entitled to a verdict, and the next question would be bow much.] [10]
    March 12, 1906:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (5, 6) excluding offers of expert testimony referred to in the opinion of the Superior Court; and (7-10) above instructions, quoting them.

      Charles L. Hawley and A. A. Vosburg, of Vosburg & Dawson, for appellant.
    — It was error to exclude the experts: United Brethren Mut. Aid Society v. O’Hara, 120 Pa. 256; Continental Ins. Co. v. Delpeuch, 82 Pa. 225; Gaines v. Com., 50 Pa. 319; McLain v. Com., 99 Pa. 86; Luco v. United States, 64 U. S. 515; Del. & Chesapeake Steam Towboat Co. v. Starrs, 69 Pa. 86; Ferguson v. Hubbell, 97 N. Y. 507; Stead v. City of Worcester, 150 Mass. 241; Van Wycklen v. Brooklyn, 118 N. Y. 424 (24 N. E. Repr. 179); Ry. Company v. Wood, 113 Ind. 544 (14 N. E. Repr. 572); Abbott’s Trial Brief, 508; Burnett v. Ry. Co., 76 Minn. 461 (79 N. W. Repr. 523).

      E. N. Willard, of Willard, Warren & Knapp, with him George B. Davidson, for appellee.
   Opinion by

Oblady, J.,

The only material question involved in this appeal is the action of the court in sustaining the objections to the offers of the testimony of Dr. John C. Price and Charles L. Griffin, the one a microscopist and the other a photographer. The important question of fact for decision by the jury in the trial in the court below was, whether the word “ seal,” inclosed within a scroll, had been added to the note after it had been signed by the defendant. The genuineness of the signature to the note was admitted, and the note, as well as a photograph of it, and an enlarged photograph of the three last letters of the signature taken with the scroll and its inclosed word, were received in evidence without objection.

It was conceded that Dr. Price was an expert in the use of the microscope, and that Mr. Griffin had had twenty-five years’ experience as a photographer. The offer in each case was to prove that, with the aid of the microscope .and camera, the witness would say that the last part of the signature overlaps the scroll and was last written. The evidence offered in the fourth, fifth and sixth assignments was objected to, and rejected solely for the reason that the witness did not profess to be nor qualify as an expert in handwriting. Testimony of other witnesses was introduced by the plaintiff tending to support her theory, and by the defendant that the ink with which the scroll and word seal were written was lighter in color, and that the scroll was applied upon the point of junction with the defendant’s signature. These specialists were not offered as handwriting experts, but only to prove by the microscopist that, when subjected to a critical examination by the microscope, “ He ascertained, as a result of his examination, that the last part of the signature overlaps the seal,” and by the photographer, “ That when he took a photograph of the seal on the note, upon a greatly enlarged scale, he could see upon the plate of the camera that the black ink of the signature came down over the blue ink of the scroll below; that the greatly enlarged reproduction of the seal on the ground glass of the camera enabled him to see that much more plainly than it could be seen upon the note itself.”

The Act of May 15, 1895, P. L. 69, defines the competency of experts and the rules of evidence in questions of simulated or altered handwritings, and if we assume the scroll and its inclosed word to be “ a writing in dispute ” within the provisions of that act, there is nothing in this case to suggest a comparison or placing in juxtaposition of genuine or disputed handwritings. The act in nowise changed the law as to other evidence in determining the fact in dispute in this case: Shannon v. Castner, 21 Pa. Superior Ct. 294. Experts in microscopy or photography are not required to be experts in handwriting in order to qualify them to testify to special facts within the range of their particular scientific investigation. The note being in evidence before the jury, inevitably the admitted signature and disputed scroll would be compared. To the naked eye it is apparent that they touch or may overlap ; whether the name was written first or both by the same ink, was the controverted fact. If a competent expert microscropist or photographer could confidently say that the letter of the signature was over- the scroll, his testimony should be received, and if he gave intelligent reasons for his conclusions, he would be entitled to credit with the jury: In re Hopkins’ Will, 172 N. Y. 360 (65 N. E. Repr. 173); s. c., 65 L. R. A. 95. The final determination of the fact would still remain a question solely for the jury on all the evidence submitted, and subject to the same tests as in the case of a handwriting expert under the act of 1895, by which it is provided that it is competent for counsel to require from the expert “ a statement of the principles on which he bases his work, the details of his work, and his opinion that the results are important to the point in issue, or the reasoning, analysis and investigation by which he has arrived at his opinion.” The value of expert testimony depends largely on the experience or study of the witness. The greater the experience or knowledge the greater is the value of the opinion resting upon it: Wells v. Leek, 151 Pa. 431.. Simply to exhibit the result of the work and withhold an examination of the various steps necessary to produce it, together with an analysis of the methods employed in the progression, and an intelligent account of each incident which is necessary to explain it, would be but a part only of the exact truth of the test for which the expert’s services are required. This is particularly so when we consider the complicated arrangement of the microscope and camera, the skill and experience necessary to adjust and use them, the accommodation of the object and lens with technical nicety to the eye of the observer in order to secure truthful and convincing results. It would be very unsatisfactory, at least, if not impossible, to exhibit such a process in detail to the untrained eyes of a jury during a trial. Such an attempt would be a poor substitute for the permanent enlargement of the object which would present the disputed fact to all the jurors alike, and not vary with their several examinations. While the proportions are so enlarged thereby to the vision that faint lines and marks, which perhaps could not be discerned by natural vision, are disclosed, and while the copies are accurate in all respects, except only in size and color, yet the process by which the result is secured may, or may not, make manifest still further important facts, depending upon the skill of the operator. If it be true that such an examination discloses to the skilled operator the difference in the color of the ink, and the order in which it is placed upon the paper, the fact so ascertained is as competent as any other fact in regard to which he may be examined: Marcy v. Barnes, 82 Mass. 161; s. c., 77 Am. Dec. 405; U. S. v. Ortiz, 176 U. S. 422; 44 L. ed. 529 (20 Sup. Ct. Repr. 466). In careless, inexpert or interested hands these highly sensitive instruments are capable of very serious misrepresentation of the original: Beardslee v. Columbia Township, 188 Pa. 496. The same objection could be urged, with like force, to every species of expert or skilled testimony, and a thorough examination of the witnesses is always expected, and is necessary to determine the true measure of their credibility before the jury. See also Dederichs v. Salt Lake City R. R. Co., 35 L. R. A. 802; City of Geneva v. Burnett, 58 L. R. A. 287; Oskamp v. Gadsden, 17 L. R. A. 440 and notes.

As stated by Dr. Wharton in his work on Criminal Evidence, sec. 9, “ Whenever there, is a specialty in which there is an expert, then the expert may be examined as to the specialty. What the telescope can assure us of; what the microscope can assure us of; what we can be assured of by chemical tests; what we can be assured of by careful induction, produced by long and accurate observation, as to all these lines, experts are summoned.” The principal contention, however, is that, conceding the scientific knowledge of the artists, and that care and skill were used in the observations; yet, it was not competent for them to testify to what they saw in their field of vision under the microscope and in the camera, in support of the offers. Even in confining the question to such limited boundaries, we are not without authority to warrant the admission of such testimony. In Stevenson v. Gunning’s Estate, 64 Vt. 601 (25 Atl. Repr. 697), it was held that, a witness shown to be an expert in the use of the microscope might properly be examined as to what he saw when he examined a note alleged to have been forged, in regard to its appearance; although it is error to allow one shown only to be an expert in the use of the microscope to go further and express his opinion that one character had been changed to another. And in Bridgman v. Corey’s Estate, 62 Vt. 1 (20 Atl. Repr. 273), it was held to be error “ to exclude the testimony of an expert witness, that upon an examination under the microscope, of the paper bearing the writing in question, he discovered traces of pencil marks, and that the fiber of the paper has the appearance of being rubbed and broken before the ink was laid, and it was a mistake to exclude it upon tbe ground that the microscope, being in court, could be used by the jury, and that they were as well able to judge of the fact to which the witness’s attention was proposed to be called.”

When the note was offered in evidence, the court held that there was not any alteration apparent on the face of the paper, such as courts take notice of as matter of law to require the person offering it to explain an alleged alteration before receiving it is an item of evidence. This ruling was manifestly proper, and, as the note then appeared from an inspection of the paper itself, the seal was an integral part of it: Duncan v. Duncan, 1 Watts, 322. It was not a question of the sufficiency of the seal as such, but of its genuineness. If found by the jury to be genuine, it would follow, as matter of law, from its location and form, that the maker adopted it as his seal, and the jury should have been so instructed. The slight departure from the printed line where the signature touched the scroll from above, would not, of itself, be sufficient to justify the jury in finding that the maker intentionally avoided a genuine seal which had been placed for his adoption. The validity of a writing should not be imperiled by so unsubstantial and meaningless a fact. The defense was that there was no seal on the paper when the defendant signed it. How then could it reasonably be urged that he slanted his signature to avoid and reject the seal he was contending had no existence ? Whether the seal on this note was adopted by this defendant was for the jury under all the evidence: Hacker’s Appeal, 121 Pa. 192; Lorah v. Nissley, 156 Pa. 329. Nor is it important that the usual attestation clause is lacking from the body of the note. As stated by Chief Justice Tilghman in Taylor v. Glaser, 2 S. & R. 502, “Two principles are well founded: One, that although in the body of the writing, it is said, that the parties have set their hands and seals, yet it is not a specialty unless it is actually sealed and delivered; another, that if it be actually sealed and delivered, it is a specialty, although no mention be made of it in the body of the writing; the fact, and not the assertion, fixes the nature of the transaction.” See also Long v. Ramsay, 1 S. & R. 72; Miller v. Binder, 28 Pa. 489.

The judgment is reversed andavenire facias de novo awarded.


author: Head, J.,

text:
    Livingston, Appellant, v. Kerbaugh.

      Practice, C. P. — Rules of court — Construction—Review.
    Every court is the best judge of its own rules, and an appellate court will not reverse for any construction of such rules unless it is manifestly erroneous and injurious.
    Where the court of common pleas construes one of its own rules so as to make the practice under it conform to the spirit and meaning of the procedure Act of May 25, 1887, P. L. 272, the action of the court below will not be reversed by the appellate court, although the language of the rule may be susceptible of another construction.
    Where a rule of court provides that “in appeals from the judgments of the justices of the peace, the appellant shall within ten days after the filing thereof, file a specific affidavit of claim or defense,” and the court construes the rule as applicable only in cases ex contractu, as far as an affidavit of defense is required, the appellate court will not adopt another construction.
    Argued March 13, 1906.
    Appeal, No. 24, March T., 1906, by plaintiff, from order of O. P. Cumberland Co., May T., 1905, No. 7, striking off judgment in case of George Livingston v. H. S. Kerbaugh, Incorporated.
    Before Rice, P. J., Beaver, Orlady, Porter, Morrison, Henderson and Head, JJ.
    Affirmed.
    Rule to strike off judgment. Before Sadler, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order striking off the judgment.

      G. Wilson Swartz, for appellant.
    — The uniform practice in Cumberland county for many years in all such cases whether in assumpsit or trespass, has been to file affidavits of defense.
    Under the general power of the common pleas to regulate its practice, it has authority to make a rule requiring defendants to file affidavits of defense, and directing judgments against them if affidavits be not filed within a certain time: Vanatta v. Anderson, 3 Binn. 417; Jordan v. Cooper, 3 S. & R. 564; Barry v. Randolph, 3 Binn. 277; Wilkins v. Anderson, 11 Pa. 405; Gannon v. Fritz, 79 Pa. 303; Lehman v. Howley, 95 Pa. 299.

      April 23, 1906:
    The local rule of court has the same force as a statute, until it is superseded by positive legislation.
    The act of 1887 does not apply to appeals from justices of the peace: Lentz v. Sylvester, 6 Pa. C. C. Rep. 580; Marshall v. Neiman, 6 Pa. C. C. Rep. 176; Craig v. Knitting Co., 13 Pa. C. C. Rep. 444; Heroy Co. v. Smith, 18 Pa. C. C. Rep. 27; Meredith v. Ferguson, 19 Pa. C. C. Rep. 190; Locher v. Sensenig, 9 Pa. Dist. Rep. 704; Watson v. Wehrly, 11 Lanc. L. R. 49; Moore v. Hose Co., 5 Montg. Co. 190.

      Caleb S. Brinton, of Rupley & Brinton, with him Philip T. Meredith, for appellee.
    — An examination of the act of 1887 clearly shows that it was the intention of the legislature to confine the remedy by judgment for the want of an affidavit of defense to actions ex contractu alone as they were before the act was passed and not to extend this remedy to actions, ex delicto or in their nature ex delicto: Corry v. Penna. R. R. Co., 194 Pa. 516; Marlin v. Waters, 127 Pa. 177.
    The fact that this case arises on an appeal from a justice of the peace to the common pleas does not create a different rule of practice from cases commenced in that court: Potts v. Benzenhafer, 6 Pa. Dist. Rep. 433; Gould v. Gage, 118 Pa. 559; Marlin v. Waters, 127 Pa. 177; Newbald v. Pennock, 154 Pa. 591; Corry v. Penna. R. R. Co., 194 Pa. 516; Craig v. Brown, 48 Pa. 202.
    Each court is the best judge of its own rules and the Supreme Court will not interfere with the constructioit put upon its rules by the court below except for palpable abuse: Brennen v. Prudential Insurance Co., 148 Pa. 199; Morrison v. Nevin, 130 Pa. 344; Bair v. Hubartt, 139 Pa. 96.
   Opinion by

Head, J.,

The disposition of this case requires the consideration and determination of but a single question. Was the construction of one of its own rules by the learned court below so palpably erroneous and injurious to the appellant as to warrant a reversal of the decree complained of ? There is nothing in this record that demands a discussion of those general powers to make rules governing the transaction of their own business inherent in all courts of record, or expressly conferred by our own act of 1836. Nor would, it be useful or profitable to attempt to define or classify the subjects concerning which, since the passage of the procedure act of 1887, courts may still make rules for the entry of judgments, etc., without coming into conflict with the provisions of that act. We have before us a single rule of the court of common pleas of Cumberland county; a construction of that rule by the court that made it resulting in a decree striking off a judgment by default and an appeal from that decree.

The controlling principle by which an appellate court is to be guided in the considez’ation of such a questiozz has been oftezi announced by our Suprezne Court azid is plainly stated by Sterbett, C. J., in Carpet Co. v. Latimer, 165 Pa. 617, in the following language:

“ We have no doubt as to the correctness of the learned judge’s construction of the rule in this case; but if we had, it would requiz’e much more than that to justify our interference. As has been frequently said, every court is the best judge of its own rules, and this court will not reverse for any construction uzrless it is manifestly erroneous and izrjurious: Coleman v. Nantz, 63 Pa. 178; Wickersham v. Russell, 51 Pa. 71; Gannozi v. Fritz, 79 Pa. 303.”

The plaintiff began an action of trespass against the defendant before a justice of the peace, claiznizig daznages less than $300, and obtained a judgment for $180. The defendant took an appeal azid filed his transcript in the common pleas on February 6, 1905.

Counsel for plaintiff entered his appearance on February 24, 1905, and on the same day directed the entry of judgment “ by default for want of azi affidavit of defense izi favor of the plaintiff for $180 with iziterest, etc., according to rule of court No. 23.”

Rule' 23 of that court is as follows: In appeals from the judgments of the justices of the peace, the appellant shall within ten days after the filing thereof, file a specific affidavit of claim or defense, as the case may be, and in the same shall set forth that the appeal is not taken for the purpose of delay, but because he believes injustice has been done to him; and on failure to do so, the prothozzotary shall, ozi a prsecipe frozn the appellee or his attorney, ezzter judgmezit for the plaintiff for the same amount given by the justice of the peace, with interest and costs, if the defendant be the appellant, and for the defendant for costs if the plaintiff be the appellant.”

The defendant then petitioned the court to strike off the judgment as unwarranted under a proper construction of the rule cited, and, after hearing, an order was made as prayed for, and from this order or decree this appeal was, taken-.

Had the action been originally instituted in the common pleas we do not understand appellant to claim that any affidavit of defense would have been required. The procedure would have been the simple one contemplated by the act of 1887 in such cases. If, then, the rule in question is to be construed as appellant contends for, it would follow that the practice and procedure in the lower court, in all actions arising ex contractu, whether originating in the court or coming there by way of appeal, would be uniform and free from confusion or doubt; whilst in the other great class of actions, those arising ex delicto, there would be a wide and serious divergence in the practice, depending on no sound consideration of reason or policy, but solely on the decision of a plaintiff as to whether he would begin his action in the court or allow it to reach there by appeal. That uniformity of practice in the trial of all actions essentially the same is a thing to be desired will not be denied by anyone. In speaking of the spirit and meaning of the act of 1887, Mr. Justice Mitchell, in Marlin v. Waters, 127 Pa. 177, said: “ The act was undoubtedly intended as a step towards uniformity of practice. ... A statute which as already said, was intended to promote uniformity, ought not to be so construed as to create or preserve such diversities, etc.” The plainly expressed desire of the learned court below to so construe its own rule as to keep it in harmony with the spirit of the act of assembly does not therefore seem to us to be proper ground for censure. And especially is this true where no violence is done to the language of the rule itself and no injury is done to anyone. The rule does not say, “ in all appeals from the judgments of justices ” etc., as the appellant would have it read; nor does it say, “ in certain appeals ” as the court construes it to read. To correctly ascertain its meaning we must read into it either the one omitted word or the other. In one case we emphasize the lack of harmony between the rule of court and the general law and maintain useless and arbitrary differences in the progress of actions of the same kind through the courts. In the other we use the rule to promote the object contemplated by the legislature, and to keep the practice in all cases of the same class uniform.

Not only does the construction adopted by the court below thus tend to improve its procedure by removing sources of confusion and mistake and relieving honest litigants from the danger of summary penalties, but it does, in the case before us, no possible injury to the appellant. It is not contended that the defendant is in any danger of insolvency, or that for any other reason there would be any difficulty in collecting a judgment if one should be recovered after a trial on the merits before a jury. We do not mean to say that the language of the rule may not be susceptible of the construction placed on it by appellant; but we do say that all doubts as to the proper construction must be resolved in favor of the one adopted by the court below, because it is primarly best qualified to construe its own rules. It has adopted a construction which, in our opinion, does no violence to the rule itself and no injury to appellant. Following, therefore, the cardinal principle laid down by the Supreme Court, we are obliged to say that we find no such manifest and palpable error in the decree or order appealed from as would warrant us in reversing it.

Appeal dismissed at costs of appellant and a procedendo awarded.