CENTRAL RAILWAY OF NEW JERSEY V. Cook. Constitutional law-Negligence-Act of 4th April, 1868, (limiting amount of damages recoverable against railroad companies for injuries) unconstitutional as to injuries caused before as well as after the adoption of the Constitution of 1874. Error to the Common Pleas of Luzerne County. This was an action on the case brought in August, 1873, by Cook against the Central Railway of New Jersey, for injuries sustained on November 7, 1872, while a passenger upon their train. Plea, "Not guilty." Upon the trial it was shown that the defendant's train was thrown from the track, and that the plaintiff sustained injuries, as to the severity of which the evidence was contradictory. The defendant requested the Court to charge that under the Act of 4th April, 1868, the maximum amount that the plaintiff could recover for injuries not resulting in death, was $3000. The Court below (HARDING, P.J.), referring to this Act, charged that the right to recover for personal injuries was one of the personal rights belonging to man before the statute law, and said: "We hold, therefore, that when the Legislature undertook to limit a remedy which it did not give, but which existed prior to all statute law, it simply transcended its authority; more than that, the undertaking involved a usurpation of the functions belonging exclusively to the courts. By the Constitution of 1874, however, the rights claimed by railroad companies, under the legislation referred to, have been wiped out forever." Verdict for the plaintiff for $5000, and a judgment thereon. The defendant took out this writ of error, assigning for error the charge of the Court. Stanley Woodward, for plaintiff in error. I. The Act of 4th April, 1868, (P. L. 58) was constitutional. There is nothing in the new Constitution contrary to it. Sharpless v. Philadelphia, 9 Har. 147. To render a statute void, the constitutional prohibition must be clear and distinct. Vague expressions in the Declaration of Rights must not be construed to be such prohibitions. Penna. R. R. v. Riblet, 16 Sm. 164. Cooley's Constit. Limit. 171, 361. Rosier v. Hale, 10 Iowa, 470. Smith v. Bryan, 34 Ill 377. Act of 21st March, 1806, Purd. 58, pl. 5. II. The new Constitution does not avoid the effect of the Act of 1868, as to actions begun before its adoption. Pulmer, with whom was Hanna, contra. I. The Act of 1868 was unconstitutional, because it was an assumption of power not legislative in its nature. Com'th v. Maxwell, 3 Casey, 444. The power to strip a man of health, life, and limbs, without rendering compensation therefor, cannot be given by legislation. The right to recover for injuries to the person existed at common law, and is one of the indefeasible rights guaranteed to all citizens. Cleveland and Pittsburg R. R. v. Rowan, 16 II. The Act, whether formerly constitutional or not, has been repealed by the new Constitution. March 22. THE COURT: "We think the learned Judge below did not err in holding that the plaintiff could recover more than three thousand dollars for the injury he suffered, caused by the negligence of the railroad company." Judgment affirmed. PER CURIAM. [Opinion in full.] Feb. 26. July '73, 70. VANDEGRIFT V. CASSIDY. Statute of Frauds, Act of 26 April, 1855- What is a promise to pay the debt of another- Where the consideration is to move directly from the person promising, the debt becomes his own, and is not the debt of another." Error to the District Court of Philadelphia. This was an action of assumpsit brought by Vandegrift against Cassidy to recover $200 for materials furnished and work done upon a house of which the defendant below was owner, and one Heiss the tenant. Upon the trial, the plaintiff below testified that the work had been done at the instance and upon the account of Cassidy, although there had been other work done upon the premises at the request of Heiss, who had paid for the same. Heiss, for the plaintiff, also testified, that, though the work had been done to adapt the premises for use by him as a saloon, the contract was between Cassidy and Vandegrift, with his (Heiss') permission. The Court below (BRIGGS, J.) entered a non-suit on the ground that the contract was within the Statute of Frauds. On a rule to take off the non-suit being discharged, the plaintiff took out this writ of error, assigning for error the refusal of the Court below to take off the non-suit. Palethorp, for plaintiff in error, was not called upon. His paper-book contained the following point:The Statute of Frauds contemplates the promise to pay the debt of another; where a man makes a promise directly with another in such a way that the consideration moves directly from himselt and becomes his own debt, it is not within the statute. Malone v. Keener, 8 Wr. 107 Arnold v. Stedman, 9 Wr. 186. Archer, contra, submitted no paper-book. March 22. THE COURT. "There was no ground in the evidence produced on the trial to warrant the application, to this cause, of the Act of 26 April, 1855. The claim of the plaintiff was for the value of labor performed and materials furnished in fitting up a public house of which the defendant was the owner. The contract had been made directly between the parties. In the evidence there was some reference to the employment of the plaintiff by Joseph L. Heiss, the tenant of the defendant. But that was a contract for other work, for which it was testified Heiss had paid. There was direct testimony also of the promise of the defendant to pay this claim. The entry of the non-suit on the ground that the contract sued upon was such an undertaking to answer for the debt or default of another as is required by the statute to be in writing, was clearly erroneous.' Judgment reversed, and procedendo awarded. Opinion by WOODWARD, J. [in full]. July '74, 92. VAN LOON v. DAVENPORT. March 11. Statute of frauds, Act of 21 March, 1772- What required to take parol sale out of operation of. Error to the Common Pleas of Luzerne County. This was an ejectment brought by Davenport in 1872 against Van Loon for a tract of land on the banks of the Susquehanna. Plea, "Not guilty." McGibbeney v. Burmaster, 3 Sm. 332. Lauer v. Lee, 6 Wr. 165. Defendant below has proved a contract of sale; delivery of possession; part payment of purchase money. No valuable improvements have been made because the annual overflow of the river would not allow it. The defendant below had a right to the advantage of every equitable defence, aud it is against equity to rescind this sale. Piersol v. Neill, 13 Sm. 420. All that the plaintiff below was entitled to was the small balance of the purchase money with interest, and this could have been accomplished by a conditional verdict. Reed v. Reed, 2 Jones, 117. Markley v. Swartzlander, 8 W. & S. 172. The case has not been taken out of the Statute of Frauds. The terms of the contract are not clear, direct, and positive. Milliken v. Dravo, 17 Sm. 230. Greenlee v. Greenlee, 10 Ilar. 225. Bush v. National Oil Refining Co., 1 WEEKLY There have been no valuable improvements. Dougan v. Blocher, 12 Har. 28. March 22. THE COURT: "The evidence in this Upon the trial it appeared that in 1852, Davenport's real estate being under judgment and threatened with execution, he sold the premises in question to Van Loon in order to raise money to pay off the liens. The purchase money agreed upon was somewhat greater than the amount of the liens; and with the knowledge and consent, and at the instance, of Davenport, Van Loon paid off the liens, which left a small balance of the purchase money still due to Davenport, who promised to execute at once a deed to Van Loou. The latter, being always ready to pay the balance, amounting to about $40, took possession of the land in 1853, and held it ever since, tilling it and paying the taxes; during this period, and until the present suit, no question was ever raised July '74, 3. as to his rights. No valuable improvements were made, because the annual overflow of the river would have swept them off. There being no dispute as to these facts, the Court below (HARDING, P. J.) charged, inter alia, "We, nevertheless, say to you that the contract established by the testimony is at least indefinite. It is one under which there would be great difficulty in basing a decree for specific performance, were that the proceeding now before us. How much was Mr. Van Loon to pay for the land? He says he paid the creditor of Mr. Davenport, at the request of the latter, one hundred and sixty-four dollars. But what was the balance? He further says he did not consider the land worth two hundred dollars when he bought it. But what was the view of Mr. Davenport respecting its value? What price did he fix and agree to take?" There was a verdict and judgment for the plaintiffs. The defendant took a writ of error, assigning for error the charge of the Court as above given. Stanley Woodward (with whom were Pike & Scott), for plaintiff's in error. The full measure of all that has ever been required to take a case out of the Statute of Frauds has been complied with in this case. Richards v. Elwell, 12 Wr. 261. March 15. ST. JOHN v. WEHINGER. Evidence-Declarations of vendor, though they cannot, when made after sale, affect vendee, may be relevant to show vendee was informed by vendor as to boundary line at time of sale-Relevant offer of testimony admissible for any purpose, where speific purpose not called for. Error to Common Pleas of Pike County. This was an action of ejectment brought by Charles St. John against Frederick Wehinger to recover the possession of some nineteen acres of land in Westfall Township. The defendant pleaded the general issue. This controversy arose between the parties upon a dispute as to the true location of the boundary line between their respective farms. Both parties claimed title under the Buckley Brothers, who formerly held the farms together as one tract. This tract at an early date had been divided by a fence into two lots, which were known respectively as the "Winfield," and "Middaugh" Farms. By a contract, entered into upon the 2d of November, 1868, the Buckley Brothers sold to Wehinger, the defendant, a portion of the aforesaid tract, which was described as being bounded on the north by other lands of Buckley Brothers, formerly known as the Winfield farm." And by another contract dated March 22, 1869, which was subsequently assigned to St. John, the plaintiff, the remainder of the said tract was sold to John Willigan, being described in terms which coincided with the description in the land. The verdict and judgment were for the defendant. A writ of error was taken, and the admission of the offer excepted to assigned for error. W. H. Jessup, for plaintiff in error. Packer v. Gonsalus, 1 S. & R. 526. Pierce v. Hakes, 11 Har. 242. Melldowny v. Williams, 4 Cas. 492. Pier v. Duff, 13 Ibid. 59. [SHARSWOOD J. "It does not specifically appear when Milligan made his statement to the plaintiff in reference to the boundary line."] The evidence circumstantially established that it must have been after Milligan had assigned his interest in the land. Under no circumstances could the evidence object ed to be held admissible. [There was no argument nor paper-book submitted for the defendant in error.] March 22. THE COURT. 66 APPEAL of HETTY and MARY WILSON. Will, construction of-Time of payment of legacy, 'at such time as executrix shall think proper." Appeal from a decree of the Orphans' Court of Philadelphia confirming the auditor's report in Elizabeth Hoge, the testatrix, died leaving a will with the following codicil: Hoge's estate. interest at such times as my daughter, Elizabeth "I give and bequeath, to be payable without Pleasanton" [the executrix] shall in her judgment and discretion think proper, and whether during her lifetime, or by her last will, or appointment in the nature thereof, namely: . . unto my nieces, Hetty and Mary Wilson, each one thousand dollars." The auditor reported "that under the first clause of the last codicil to the will.. the period of payment of these legacies was committed entirely to the discretion of the accountant [Elizabeth Pleasanton], and that payment could not be demanded by these legatees until her death. If said legacies or any of them remain unpaid at her death, those remaining unpaid will be then due and payable, unless the accountant shall have by her last will or appointment,' 'in the nature thereof, directed otherwise;' and in that case the time of payment will be regulated by such will or appointment." The Court below confirmed this report, and from their decree this appeal was taken. Lawrance, for appellant. be postponed until her death; (2) if it could, the (1) The discretion vested in the executrix cannot discretion absolutely ceases on her death, and the auditor erred. A. Sydney Biddle (with whom was G. W. Biddle), contra, were not called upon. April 2. THE COURT said: "However hard this case might seem to be, we have no doubt of the interpretation of the codicil of Dec. 1, 1864, to the The purpose of asking will of Mrs. Elizabeth Hoge. It clearly committed what Milligan told the plaintiff the boundary line the time of the payment of the legacies of her nieces was, or more properly where it was, which is the Hetty and Mary Wilson to the discretion of Mrs. true purport of the question, was not called for, and and doubtless the testatrix expected that this disElizabeth Pleasanton. These ladies were very aged, therefore if the statement was evidence for any pur-cretion would be exercised by Mrs. Pleasanton in pose it did no harm. Now clearly, though Milligan's their favor during their lives, and would not be poststatement to St. John was not binding on the latter, as a matter of fact, because Milligan had parted with poned to a period which would make the legacies his title, yet it was not improper to show that St. useless to them, and merely illusory. But these John was informed by Milligan where he understood were considerations with which the Orphans' Court the line to be when he owned the land. It tended to had no power to deal, the discretion not being comshow that the plaintiff St. John was claiming the mitted to the Court, but to one in whom Mrs. Hoge boundary which he is asserting, with a knowledge that the other line had been claimed by those who preceded him in his title. Now that the latter line, the one indicated by Milligan, is the true line, was shown by other and competent testimony, so that clearly the statement of Milligan made to St. John himself did no injury, while it tended to show to the jury that | V. I.—21 confided." Decree affirmed with costs, and appeal dismissed. Plea, "Not guilty." Upon the trial it appeared that Fister, the defendant, in November, 1866, purchased from Wesner the land in suit, against which at that time there were two liens, (1) a judgment in favor of Greenawalt, entered April 12th, 1862. (2) A judgment in favor of Riegel entered September 15, 1866. On April 12, 1867, a sci. fa. issued to revive the Greenawalt judgment, and the same day Wesner confessed judgment of revival; Fister was not made a party to the record as terre tenant. In May, 1867, a fi. fa. issued to August Term, No. 30, on the Greenawalt judgment as revived; on this writ was the following return: "Seized and taken in execution the following described real estate: ist. A house and lot in Wernersville. 2d. The tract (describing it) now in suit." There was also endorsed on the outside of the writ: "Levied on real estate August 3d and August 10th, real estate condemned, per inquisition attached." At the inquisition on August 3d, the two tracts above mentioned were condemned. On August 10th another inquisition was held under the same fi. fa., and five other tracts of land in Albany Township were then condemned. No description of this last-mentioned land levied upon was attached to the fi. fa., and the only description of it was in the inquisition August 10th. Of this levy and inquisition, Fister had likewise no notice. On May 23d, 1867, a fi. fa. issued upon the Reigel judgment to August Term, No. 41. No real estate was levied upon by description on this writ, and the return was as follows: "Levied on real estate Aug. 3d, and August 10th; real estate condemned as per inquisition attached to fi. fa. No. 30 of this term." No notice of this levy and condemnation was given to Fister. A vend. ex. now issued upon the Greenawalt judgment (revived), to April Term, 1868, No. 4, commanding the sale of the five lots in Albany Township, Nos. 1, 2, 3, 4, 5; the frame house in Wernersville, and also the tract in suit. The return to this vend. ex. was "sold Nos. 1, 2, 3, 4, 5," to [different parties] "No. 6 to Greenawalt." the Greenawalt executions, it is equally true that the levy, and inquisition, and sale were adequately indorsed by reference and recital on those of Reigel & Brother. There was, therefore, a legal sale of the land in dispute under the Riegel & Brother executions, and the plaintiff took a valid title against Nathan Wesner and all claiming under him. This entitles him to a verdict." To this the defendant excepted. Verdict and judg. ment for plaintiff. The defendant took a writ of error, assigning for error the portion of the charge above given. F. L. Smith and S. L. Young, for plaintiff in error. The Greenawalt judgment was no lien upon the land in suit, by reason of the non-joinder of Fister, as terre tenant in the sci.fa. to revive; therefore the plaintiff below as purchaser at sheriff's sale must deduce a good title under the process upon the Riegel judgment. Now there was no levy made upon the land under the Riegel fi. fa. except by reference to the Greenawalt fi. fa. ; and all proceedings against the tract in suit under this last fi. fa. were void, because the judgment upon which it was founded was no lien upon the land; hence the invalidity of the Greenawalt levy attaches to the Riegel fi. fa. Without a levy a sheriff has no power to sell. What property passes, its quantity, and character, must be determined from the levy; if there was no valid levy, then no property at all passed to the sheriff's vendee. McCormick v. Harvey, 9 Watts, 482. 2. The sheriff's return to the vend. ex. does not show that the land in suit was sold at all. There were seven properties directed to be sold in the body of the vend. ex.; according to the sheriff's return only Nos. 1, 2, 3, 4, 5, 6 were sold; and it is not enough that the land be all mentioned in the sheriff's deed, and that the deed be acknowledged. Barr, contra. The acknowledgment of the sheriff's deed without objection cured all irregularities in the process. St. Bartholomew's Church v. Wood, 11 Sm. 96. The reference to the levy and inquisition on the Greenawalt fi. fa. was sufficient to render valid the Riegel fi. fa. Buehler v. Rogers, 18 Sm. 9. 2. No objection was made to the sheriff's return in the Court below, as to the number of the tracts sold, and the deed supplies defects in the return. March 15. THE COURT. "The proceedings attend A vend. ex. had also issued upon the Riegel judg-ing the sheriff's sale in this case were somewhat ment to the same term, No. 8. The property to be sold was described as in vend. ex. No. 4 (supra). To this writ the return was: "Sold the withindescribed property as returned on vend. ex. No. 4." The sales upon both writs were at the same time. On April 24, 1869, the sheriff executed a deed to Greenawalt, the plaintiff, for the land described in the vend. ex. as No. 6 [the frame house], and also the tract of land in question. The Court below (HAGENMAN. A. L. J.) charged as follows: "Assuming that the Greenawalt judgment had lost its lien by not having included the terre tenant in the sci. fa., still the judgment of Reigel & Brother was a valid lien, and under it this property was sold. Whilst it is true that the indorsement of the levy, and inquisition, and sale was made in full on ragged, but taking all together, we think it sufficiently appears that the sheriff made sale of the property in question, and acknowledged a deed therefor, and that though not very regular, the sale was not void." Judgment affirmed. PER CURIAM. [Opinion in full.] erick Miller, with notice to Gottlieb Weisheit as garnishee. The garnishee pleaded "nulla bona." There was but one assignment of error, and the only question raised was the propriety of admitting in evidence the deposition of Robert Sponouse, which had been regularly obtained at a previous term of the Court, in consequence of the sudden illness of the deponent at that time. The rule of Court, "No. 7," governing the admission of depositions was as follows: "Notwithstanding a rule has been obtained for taking the depositions of witnesses, yet the party offering the deposition must satisfy the Court that the witness, if resident within the county, or within twenty miles of the place of trial, if out of the county, was duly subpoenaed, if living, or that he could not be found after due diligence used, and that he or she is unable to attend at the trial, else the deposition shall not be read." Sponouse resided at Jersey Shore, within the county, and had entirely recovered his health at the time the case was tried, but was not then subpoenaed. At the trial, the plaintiffs below offered the deposition of Sponouse in evidence, after having made the following preliminary proof, to "satisfy the Court that the witness could not be found after due dilgence used," in accordance with the abovecited rule. Frederick Miller, the defendant in the execution, testified: "I made an effort to subpoena Sponouse. I went to his house at Jersey Shore, to subpoena him, on last Tuesday, and he had gone to Baltimore, so his wife informed me. I waited until the next day and did not find him. Wednesday evening I saw him just getting into the street car; he said he was going to Pittsburg. I asked him to stop until I could get a subpoena. He said he had not time." 0. H. Reighard, counsel for the plaintiff below, testified: "Shortly after the trial list was made out, I sent a subpoena to the constable of Jersey Shore, requesting him to subpoena Robert Sponouse. He had subpoenaed him for me once or twice before in this case when down for trial. I received no reply to that letter. I sent another subpoena in a second letter, some time last week, and repeated my request to subpoena Robert Sponouse, and stated that I had written to him previously. Frederick Miller brought that letter back to me on Wednesday of this week, with an indorsement on it that Sponouse was in Baltimore, and could not be subpoenaed. Mr. Sponouse lives in Jersey Shore, this county. I sent Mr. Miller up to Jersey Shore, this week, to subpoena Mr. Sponouse." The defendant below objected that the preliminary proof was not sufficient, the objection was overruled, and the deposition read. Exception was taken to the ruling of the Court, and a writ of error subsequently taken out, wherein the admission of the deposition was assigned for error. Armstrong and Linn, for plaintiffs in error. It is the right of a party to be confronted with the witness of his adversary, unless there is a good and sufficient reason for admitting the testimony in writing. Courts may make such rules on the subject as, to them, may seem proper, but all rules of Court must receive a reasonable coustruction. The evidence shows that the rule of Court in this case was not so construed. O. H. Reighard and Wm. W. Hart, for defendants in error. The Court below was the only judge as to when sufficient evidence had been given to satisfy it of due diligence. A writ of error will not lie to the exercise of a sound discretion in such a case. At all events, the construction of a rule of practice, in the Court below, must be palpably erroneous, in order to obtain a reversal. Wickersham v. Russell, 1 P. F. Smith, 73. In Dennisson v. Fairchild, 7 Watts, 309, it was held that "the question when a deposition may be read, in consequence of the witness' inability to appear in court, must be referred to the discretion of the Court which tried the cause." March 29. THE COURT: "This case is too doubtful, upon the short notes of the testimony before us, to say that sufficient ground for the admission of the deposition of Robert Sponouse was not laid. As the testimony stands in the paper-book it is not very clear to us whether the Court below had sufficient ground to believe that the witness had left the county for Pittsburg. Yet this is not a good ground upon which to reverse. We must take something for granted in favor of the judgment of the Court which had the witnesses before it and was able to determine, more clearly than we can on the short notes before us, how the case actually stood. A party asserting error must make it clearly appear. Every proper and reasonable presumption should exist in favor of the judgments and other proceedings." Judgment affirmed. PER CURIAM. [Opinion in full.] July, '66, 9. March 22. MARVINE V. DREXEL et al., Executors, etc. Practice-Costs. Sur exceptions filed to the master's report on the receiver's account. The decree in this case (reported in 18 Smith, 369, q. v.), stated inter alia that the costs of this suit and all future expenses shall be paid out of the funds in the hands of the receiver." The defendants, who were decreed to pay the costs, excepted. The 1st exception was to a commission of 13 per cent. allowed by the master to the receiver. The defendants asked that this be reduced to 1 per cent., inasmuch as the property had in fact been sold by the auctioneers who were allowed half commissions. Inslee v. Jones, Bright. R. 76. Edw. on Receivers in Ch. 531-2. The 2d exception was to the allowance to the receiver for a counsel fee of $500 paid by him. The 3d exception was to the allowance to the plaintiff as costs, the amounts paid by him for printing the master's report, and exceptions thereto not sustained. See Rules 14 and 44 Equity Practice, Rules of Rogers v. Williams, Leg. Gaz., 1872, p. 6. |