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was amended by making unknown owner the defend-work sufficient to support himself, and that ant. Held, that the amendment was authorized by

there is due the petitioner for his support $1,650, the act.

and praying for an order for the sale of the The lien was not indexed against unknown owner as required by the act. Held, that the omission to index premises for the payment thereof. did not affect the purchaser at the sheriff's sale.

In answer to this petition George S. Bryan, The sale on the lien was procured to be made by E., the the respondent, claims that, the charge on these husband of the devisee for life of the property, for the

lots for the support of Bentz was divested by purpose of divesting a charge thereon for the support of F., an imbecile, and the property was bid in by Z.

the sale on the municipal lien. for E. Z. afterwards conveyed it to E. Held, that the property in E.'s hands was subject to the lien of the Opinion by OVER, J. Filed April 29, 1882. charge for the support of F.

The charge on these lots for the support of E. executed a mortgage thereon to P., who assigned it to B. B. foreclosed the mortgage and purchased the

Frederick Bentz was expressly created to run property at sheriff's sale. Held, that there was suffi- with the land and its value was incapable of cient notice from the records to put B. on inquiry as being definitely ascertained. It was therefore to the character of the sale on the municipal lien, I a fixed lien, and unless a distinction is to be and that he therefore held the property subject to the made because the lots were sold on a municipal charge for the support of F.

lien and not on a judgment in personam, it was Mary A. Garber in her last will and testa- | not divested by the sale: Heister v. Green, 48 ment, probated the 22d day of May, 1867, de-Pa. St., 102. The Act of January 6, 1861, Slagle's vised three lots of ground in the city of Pitts Digest, p. 179, Sec. 25, under which Bates alley burgh to her daughter, Mary E. Bostwick, for was graded and paved, provides “that the term life, with remainder to her six children, and owner, as used in the act, shall be construed to charged the premises with the support and mean all individuals * * * having any title or maintenance of Frederick Bentz, a son of the | interest in the properties assessed.” And the testatrix, if by reason of sickness, bodily or Act of May 16, 1857, Slagle's Digest, p. 191, Sec. mental infirmily, he should at any time be 13, provides that “all taxes, rates and levies unable to work.

which may hereafter be lawfully imposed or The city of Pittsburgh, on the 22d of March. assessed by authority of said city, on any real 1875, filed a lien against these lots for $203.16, estate therein, shall be and they are hereby dethe amount assessed thereon for the grading, clared to be a lien thereon; and that the said etc., of Bates alley, the work having been com- lien shall have, and shall be fully pleted on the 27th day of September, 1874. I paid and satisfied before any recognizance, mortThis lien was filed against E. Bostwick, tbe gage, judgment, debt, obligation or responsihusband of the devisee for life, as the owner. bility which the said real estate may become On the 17th of July, 1875, the record was charged with, or liable to, from and after the amended by making unknown owners parties passing of this act.”. defendant. The cause then proceeded to judg | These Acts of Assembly certainly comtemment against unknown owner, and the lots plate a proceeding in rem against the property were sold on a levari facias issued thereon, on itself. The improvement is made for the benethe 8th day of October, 1875, to Jacob W. Zahn fit of the property, and the object is to make iser, for $1,100. By deed dated and acknowl- all the estates into which it may be subdivided edged on the 25th day of October, 1875, Zahniser and all interests therein liable to pay for the conveyed them to Edmund Bostwick. He on improvement and subject to the lien therefor the 19th of November, 1875, his wife, Mary and the lien itself prior to all other liens and Elizabeth Bostwick, the devisee for life, joining charges thereon: Salter v. Reed, 15 Pa. St., 263. therein, executed a mortgage thereon in favor | It was held in Perry v. Brinton, 13 Pa. St., of Isaac M. Pennock to secure the payment of 202, that a sale on a municipal lien did not $7,000 in three years from the date thereof, Mr. divest the lien of a prior mortgage. But that Pennock on the 24th day of November, 1875, decision was based solely on the fact that there assigned this mortgage to George S. Bryan. was an Act of Assembly preserving the lien of Mr. Bryan foreclosed this mortgage and pur- the mortgage. In this case there is no Act of chased the property on the 15th day of Septem- | Assembly to preserve the lien. It follows then ber, 1877, and is now in possession of it.

that the municipal lien was a prior lien on Frederick Bentz has been living for the past these lots to the charge for the support of Fredtwelve years with Joel Skellin, administrator erick Bentz, and that if the proper proceedings c. t. a. of the testator's estate, who files this pe- were held thereou that the charge for his suptition, alleging that Bentz has been unable by port was divested by the sheriff's sale: Mitchell reason, both of mental and bodily infirmity, to | v. Steinmetz, 97 Pa. St., 255.

The lien was filed against a party as the title to his wife's real estate by purchasing the owner who had no title to the property, and as same at a sherill's sale made on a judgment enunder the oth section of the act a sale only tered against her vendor prior to her purchase. conveyed the interests of those named as de Purchasers from the husband would not, in tendants, it bele necessary to amend the lien. examining his title, receive any notice of the This was done and an unknown owner made fraud practiced on the wife, as the deed to ber the defendant. The question now arises as to for the property was subsequent to the lien on whether this amendment was authorized by which it was sold, it was not in the line of the the act. The 29th section provides for adding title. the names of defendants at any time after the In this case, in the direct line of the title, the lien has been filed and for the service of a scire records showed that this property was devised facias on them before judgment can be entered. I to Mrs. Bostwick for life, with remainder to her The 30th section provides that when the owner children, subject to a charge for the support of is unknown the lien shall be filed against un- an imbecile. known owner and indexed accordingly and for That the property, which was afterwards the publication of the scire facias, anii that the mortgaged for $7,000, was allowed to be sold on sale shall have the same effect as if the real a municipal claim of $203.16. That the sale owner had been named. This section creates a was made without notice to the children or the new class of defendants, and instead of personal imbecile. That it was reconveyed by the purservice, which cannot be made, provides for chaser to the husband of the life-tenant, who, the publication of the writ. These two sections with his wife, mortgages the same to Mr. Pellare to be construed together, and it seems clear nock, a broker, for $7,000. in so construing them that the amendment was The knowledge of these facts alone would authorized by the act.

seem to justify the conclusion that Bostwick All the requirements of the 30th section were procured the sale to be had on the municipal complied with except that the lien was not in- lien for the purpose merely of divesting the indexed against unknown owner. But this omis- terest of the children and the imbecile in the sion would not affect the purchaser at the property. But even if it would not, it certainly sheriff's sale, as the indexing was no doubt became the duty of Mr. Bryan, having notice required for the protection of subsequent pur of these facts from the record, to inquire as to chasers. The parties, interested being notified the character of this sale. by the publication of the writ.

| Had he done so, and exercised ordinary diliIt appears frem the testimony that Edmund | gence and understanding in pursuing his inBostwick, the husband of the devisee for life, quiries, there can be but little doubt he would procured these lots to be sold on the municipal | have discovered its fraudulent character. The lien for the purpose of acquiring the title and respondent then is not a purchaser without borrowing money thereon, and that they were notice of the fraud practiced on this imbecile: purchased by Zahniser for him. If the title | Ilill v. Eply, 31 Pa. St., 336. He does not, therewere still in him, there is no doubt that the fore, hold the property divested of the charge charge for the support of Frederick Bentz could for his support. be enforced against the property. But the re- It appears from the testimony of the petispondent is a purchaser for value of the prop- tioner that the boarding of the imbecile was erty, without notice of the fraudulent character worth two dollars per week, his clothing fifty of the sale, and he therefore holds the same per year and washing and mending about ten divested of the charge for the support of Fred- dollars per year, making in all one hundred and erick Bentz.

| fifty-four dollars per year. That until about

five years since his work was worth three dolIn re exceptions to derreee.

lars per week. Since that time the petitioner Opinion by ()VER, J. Filed August 30, 1882. has not lived on a farm and his services have

The conclusion arrived at on the first consid- not been of much value to him. eration of this case, that the respondent, George The testimony of the petitioner leads to the S. Bryan, was a purchaser for value, without conclusion that an allowance of one hundred notice of the fraudulent character of the sher- and tisty dollars per year for five years, being iff''s sale on the imicipal lien, was based prin- up to this date, would be reasonable compensacipally on the authority of Swieshelm's Appeal. tion for the maintenance of Frederick Beutz

On further reflection, however, I think that during that time by the petitioner. this case should be distinguished from that. For petitioner, John Barton, Esq. In that case Mrs. Swisshelm's husband acquired for respondent, ('. C. Dickey, Esq.

Pittsburgh Legal Journal.

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case came in the first instance, while holding

that there had been a misrepresentation as to a ESTABLISHED 1853.

material fact, was of opinion that the defendant E. Y. BRECK,

Editor. having had it put in bis power to ascertain the S., Vol. XII.

real facts of the case, and having neglected to No. 7.

ascertain them, was not entitled to rescind the PITTSBURGH, PA., SEPTEMBER 27, 1882.

contract. The Court of Appeal reversed this

decision, and held that where a misstatement MISREPRESENTATIONS LEADING TO CON

of material fact has been made, whether inten

tionally or not, by way of inducement to enter TRACTS.

into a contract, it lies on the party who made (FROM THE LONDON LAW TIMES.]

the misstatement to prove that the party who We reported not long ago an interesting case

entered into contract with him did not in fact on specific performance, decided by the Court rely upon the misstatement, but upon his own of Appeal at Lincoln's inn, which arose out of

investigation into the facts of the case. Otheran advertisement that appeared in our columns wise, according to the principles which formerly two years since, and the result of which should prevailed in the court of equity, and which are be to induce advertisers to be more careful as to

now, by virtue of the Juricature Act, prevalent the character of the statements which they set in all the courts, the party who made the misbefore the public: Redgrave v. Hurd. 45 L. T. / representation will fail in an action for specific Rep., N. S.. 485. It will also, no doubt. be fre-/ performance, and the party to whom it was quently referred to for the valuable statement |

made will be entitled to a rescission of the by the Master of the Rolls of the law as to the

contract. avoidance of contracts which have been entered Mr. Justice FRY, in his judgment, referred into after representations which are inaccu-to the case of Altu'oodl v. Small, in the House of rate, though not, strictly speaking, fraudulent.

Lords, 6 Cl. & Fin, 232, as supporting the view The material part of the advertisement was as

) which he took, that the clefendant, having had follows:

the opportunity of testing the statements made LAW PARTNERSHIP.-An elderly solicitor of moderate to him could not, in the absence of fraud, avail practice, with extensive connection in a very populous himself of their incorrectness. The Master of town in a Midland county, contemplates shortly retiring, the Rolls, in his judgment, showed that this and having no successor, would first take as partner an

case did not bear out the proposition deduced efficient lawyer and advocate, about forty, who would not object to purchase advertiser's suburban residence,

from it by the learned judge, and which, it may suitable for a family, value £1,600.

be observed, is also contained in the head-note The defendant in the action answered the to the report. That case arose out of the sale advertisement, and according to his own evi- | by the appellant Attwood to the British Iron dence (though his was contradicted by the plain- | Company of a valuable iron and coal mining tiff), he was informed by the advertiser, at an property in Staffordshire for the sum of £550,000, interview which he had with him, that his and was remarkable alike for the great length practice had amounted to from 2007 to 4001 a of time which it occupied-being heard for fortyyear. Accounts were produced in reply to a six days in the House of Lords alone-by the request for further particulars, but they only numerous points of practice and pleading which showed a sum of 2001 a year as the outside gross it involved, and by the difference of opinion earnings of the practice. The defendant ac. between the learned lords who took part in the cordingly asked by a letter (to which, however, hearing of it. In the result, Lords LYNDHURST Mr. Justice Fry gave a somewhat different con- and WYNFORD) were of opinion that a case of struction) how this discrepancy was accounted fraudulent misstatement had been made out for, and the reply to this inquiry, given at a against the vendor, such as to disentitle him to second interview, was a reference to a mass of specific performance of the contract. On the papers which, according to the plaintiff', con- other hand, Lords COTTENHAM, BROUGHAM tained the details of work done which had not and DEVON were of opinion that specific peryet gone into the accounts. The defendant was formance must be decreed notwithstanding that satisfied with this explanation, and signed the some of the statements made by the plaintiff contract; but it proved that the papers in ques. | proved to be incorrect; but the reasons assigned tion did not represent more than 51 or 61 beyond by them for this conclusion were, as the Master that which had been shown in the accounts. of the Rolls pointed out, somewhat different. He afterwards declined to complete the pur- However, his lordship was os opinion that they chase; and Mr. Justice FRY, before whom the might be summed up in these three: (1) that there was no fraud, (2) that the company were abandoned brick yards, was uneven, and in one aware of the facts, and (3) that they did not rely portion of it there was a well of water about six upon the statements of the vendor, but solely feet in diameter and twelve feet deep. This upon their own investigations. His lordship well was constructed originally for purposes of laid down the law resulting from that case, and drainage, as well as to supply water for brick illustrated in many of the cases on misstate- | making. The field was not enclosed, nor was ment in prospectuses substantially as we have there any guard around the well. The sides of stated it above. He also referred to the state- the latter were sloping at the top. There were ment of the law on the subject made by Lord | no bushes about it to conceal it from the eye, CAIRNS n the case of Reese River Silver Min- and its situation was such that no one would be ing Co. v. Smith, L. Rep., 4 E. & I. App., 64: likely to walk into it, unless in the darkness of If persons take upon themselves to make as the night. It was over one hundred feet from sertions as to which they are ignorant whether the public highway, and about three hundred they are true or untrue, they must, in a civil yards from the nearest house. There was evipoint of view, be held as responsible as if they dence of a path or paths across the field, but not had asserted that which they knew to be un- directly to the well, and that it was used to some true.” This, as was observed by the Master of extent as a place of resort by children and adults. the Rolls, is a somewhat wider doctrine than | About four o'clock on the afternoon of Friday, has been laid down in the cases at common law, July 9, 1880, the plaintiff's son, a boy of seven but is now, of course, of universal application. years and ten months of age, was found drowned

in this well. According to the testimony, bis Supreme Court, Penn'a.

death must have occurred between one and four o'clock P. M. There was nothing to throw any

light upon the circumstances connected with GILLESPIE et al. v. MCGOWAN.

his sad fate beyond what I have thus briefly There is no obligation upon the owner of a vacant lot or

stated. unused brick yard to fence it, so far as his duty to | The father of the boy brought this action in passers-by is concerned.

the court below to recover damages or compenWhere a boy nearly eight years of age was drowned in a

sation for his death; the ground of the action well, over one-hundred feet from the highway, dug in an open field, the owners thereof cannot be held to have

being that the owners of the field were guilty of been gunty of negligence in permitting the well to re- negligence in permitting the well to remain main without a guard.

without a fence or guard of some kind to protect Hydraulic Works Co. v. Orr, 2 Norris, 332, is authority lit. The jury rendered a verdict in favor of the only for its own facts. It was not intended to assert the doctrine that “a child cannot be treated as a tres

| plaintiff, upon which the court below entered passer or wrongdoer,” and so far as it appears to sanc

a judgment against the defendants, who have tion such a principle, it must be overruled.

brought the record into this court by a writ of Where the owner of land makes an excavation thereon error for review. at such a distance from the highway that a person

Upon the trial in the court below, the learned would knowingly trespass before any injury could possibly happen, the owner cannot be made to respond in judge instructed the jury as follows (see first and damages in the event of any one falling into the exca- second assignments): “I say to you that a vation and being injured.

child cannot be treated as a trespasser or wrong. A child of tender years cannot be charged with contribu

doer, and even trespassers may have rights tory negligence. “But this principle cannot be applied as a rule of law in all cases to children nearly eight

when injuries are negligently inflicted upon years of age." Such cases should be referred to the them. The true principle which must be apjury; it is error to rule them as questions of law.

plied to a case of this kind is this, the owner of Hydraulic Works (h. v. Orr, 2 Norris, 332, commented

premises in the neighborhood of a populous city upon and distinguished. Gramlich v. Wurst, 5 Norris, followed.

and opening on a public highway, must so use

them as to protect those who stray upon them Error to the Court of Common Pleas, No. 3,

and are accidentally injured.". of Philadelphia county.

This ruling was based upon Hydraulic Works Opinion by PAXSON, J. Filed April 24, 1882. Co. v. Orr, 2 Norris, 332. The language used

The defendants below were the owners of a was not that of this court, yet it is only fair to field near Long lane, in the southern part of the learned and able president of the court bethe city of Philadelphia. This field had forin- | low to say that it is substantially the ruling of erly been used as a brick yard, but the brick the learned judge who tried the case in 2 Norris, clay having been exhausted, it had long since and which was affirmed here. That case, howceased to be used for such purpose and was lying ever, was decided upon its own peculiar cirout in commons. The surface, as is usual in cumstances. The Hydraulic Works Company maintained upon its premises what this court Wurst, 5 Norris, 74, in which it was held that designated as a dangerous and deadly trap, “where the owner of land in the exercise of weighing over eight hundred pounds, and liable lawful dominion over it, makes an excavation to fall at any moment and “crush children thereon, which is such a distance from the pubbeneath it like mice in a dead fall.” It was in lic high way that the person falling into it would the heart of the city, close to a public highway, be a trespasser upon the land before reaching it, and the access to it frequently left open; and it the owner is not liable for an injury thus suswas, moreover, so constructed as not to give any | tained." In that case the deceased, during a irdication of its danger. It was to such a struct- dark night, fell into an excavation made for the ure, so situated, that the learned judge who tried construction of a vault, upon a lot fronting on that case below applied the language referred to one of the public streets of the city of PhiladelIt is also to be noticed that the opinion in Hy-phia. The excavation was within eighty feet draulic Works Co. v. Or makes no reference to of the street and was unguarded; but the court the assignments of error, and contains no au- held the owner was not liable. The well estabthorities in support of it. What this court lished principle in such cases is that “where an meant to decide in that case was, that a person excavation is made adjoining a public way, so who maintains such a dangerous trap, close to a that a person walking on it might, by making public highway in the heart of a large city, a false step or being affected with sudden giddimight be liable to a person injured thereby, ness, fall into it, it is reasonable that the person although such person were a child of six years making such excavation should be liable for of age, trespassing upon the premises, and the the consequences. But when the excavation is familiar principle was invoked that “one may made at some distance from the way, and the not justifiably, or even excusably, place a dan-person falling into it would be a trespasser upon gerous pitfall, a wolf trap or a spring gun, pur- | the defendant's land before he reached it, the posely to catch even willful trespassers poaching case seems to be different:" Hardcastle v. The upon his grounds." Hydraulic Works Co. v. 1 South Yorkshire Railway Co., 4 Hurl. & N., 67: Orr is authority only for its own facts. It was Hounsell v. Smith, 7 C. B. N. S., 731. The same not intended to assert the doctrine that "a child doctrine was asserted with much force by Chief cannot be treated as a trespasser or wrongdoer;" | Justice GIBSON, in Knight v. Abert, 6 Barr, 472, and so far as it appears to sanction such a princi- where he said: “A man must use his property ple, it must be considered as overruled. To ap- so as not to incommode his neighbor'; but the ply such a doctrine to a boy lacking but two maxim extends only to neighbors who do not months of eight years of age would overturn the interfere with it or enter upon it. He who law as it has existed in England and in this suffers his cattle to go at large takes upon himcountry for two hundred years. It needs but self the risks incident to it. If it were not so, to turn to as familiar an authority as Blackstone a proprietor could not sink a well or a saw pit, to see that a child of this age is liable for his dig a ditch or a mill-race, or open a stone quarry torts, and may be punished for his crimes. It or a mine hole on his own Ibnd, except at the is true, the law properly holds that a child of risk of being made liable for consequential tender years shall not be charged with contrib- damages from it, which would be a most unutory negligence. But this principle cannot be reasonable restriction of his enjoyment." This applied as a rule of law in all cases to children principle is further sustained by Philadelphia nearly eight years of age. Much may depend & Reading Railroad Co. v. Hummell, 8 Wright, upon the character of the injury, the circum- 378; Gillis v. The Penn'a Railroad Co., 9 P. F. stances under which it occurred, and the size, Smith, 129; Cauley v. P., C. & St. L. R. Co., 29 intelligence and maturity of the child. In such PITTSBURGH LEGAL JOURNAL, 270; Duff v. cases a jury must be allowed to pass upon the Allegheny Valley Railroad Co., 27 Id., 58. question of contributory negligence; it is error It is settled by abundant authority that to to rule it as a question of law.

enable a trespasser to recover for an injury he Nor do we assent to the broad proposition must do more than show negligence. It must that "the owner of premises in the neighbor- appear there was a wanton or intentional injury hood of a populous city, and opening on a public intricted on him by the owner. It is sufficient highway, must so use them to protect those who to refer to Gillis v. The Railroad Co., supra, stray upon them and are accidentally injured." | where the subject is discussed by the present This doctrine rests chiefly upon the case above Chief Justice, and many of the authorities rereferred to, which was not intended to decide ferred to. In Ihydraulic Il'orks ('0. v. Orr there any such principle, and is in direct confiict with was a recklessness that may be said to partake the recent well considered case of Graumlich v. 1 of the nature of wantonness, and it is only upon

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