plaintiff below by the introduction of Alder- | Thomas, in January, 1875, she had a husman Jay's certificate of her marriage to Will-band in full life, viz., David Jones, from iam R. Thomas on January 16, 1875. It is whom she had never been divorced, that fact, not even alleged that there was any error in without more, rendered the second marriage the admission or rejection of evidence. To null and void. It matters not that she had rebut the case thus made in her favor, and reason to believe and did believe that he was to maintain the issue on their part, the de- then dead. If, in truth and in fact, he was fendants below introduced evidence tend- then in full life, she was incapable of coning to prove that about 40 years before her tracting the second marriage, and it was alleged marriage to William R. Thomas therefore void. Kenley v. Kenley, 2 Yeates. plaintiff was married to David Jones, at 207; Heffner v. Heffner, 23 Pa. St. 104. In Llaneatog, Wales; that for many years there- the first case the court said: "Though the after they lived together as husband and circumstances attending this case might exwife at Aberdare and at Falda, in same empt the defendant from the pains of bigcountry; and that at the time of her mar-amy, yet her first husband being in full life, riage to Thomas, and even after his decease, David Jones, her first husband, was in full life. In response to this the plaintiff, in turn, introduced evidence tending to show that Jones left Wales, and had been unheard of by her for more than seven years before her marriage to Thomas, and that prior thereto, as well as thereafter, she had reason to believe and did believe that Jones was dead. As to all these allegations of fact on the part of plaintiff as well as defendants in the issue, there was more or less conflict of testitimony. According to the terms of the is-nized. The act of March 13, 1815, § 6, prosue, the laboring oar was on the defendants; and, in view of the evidence on which they relied, they requested the court, in their second point, to charge: "If the jury believe that David Jones was in full life after the marriage of Ann Jones to Mr. Thomas, the marriage was void, and the verdict should be for defendants." and their marriage not annulled by any competent jurisdiction, the marriage was ipso facto void and null." In the latter it was said: "A man having a wife in full life is utterly powerless to make a valid contract of marriage, and his attempt to do so is utterly nugatory." While a well-founded belief in the death of her first husband (if in fact she had one) would have relieved plaintiff from the penalty for adultery, etc., it could not validate the second marriage, if in fact her first husband was living when it was solem vides: "If any husband or wife, upon any false rumor, in appearance well founded, of the death of the other, (when such other has been absent for the space of two whole years,) hath married or shall marry again, he or she shall not be liable to the pains of adultery; but it shall be in the election of the party remaining unmarried, at his or her return, to insist to have his or her former marriage dissolved," etc. The presumption, especially in criminal proceedings, is always in favor of innocence. When a marriage has been regularly solemnized, it is presumed to be valid until the contrary is shown. When that has been done by competent and satisfactory evidence, the presumption of fact, in civil cases, must give way to the actual fact thus established. For reasons above suggested, the first and second specifications of error are sustained. Assuming the jury were satisfied that plaintiff was first married to Jones, and in the absence of any evidence that she was legally divorced from him, the proposition was correct, and with that qualification it should have been affirmed. Instead of that, the learned judge said: "We affirm this, unless you find from the evidence that he was absent for a period of seven years, unheard from, and under circumstances which raise the presumption of his death, as we have already charged you." He had already charged, as complained of in the first specification of error: "Now, under all the circumstances of the case, had she the right to presume, when she married William R. Thomas, that her husband was dead under the law? If she had, then her marriage was legal, and, so far as this case is concerned, she is entitled to her civil rights as the widow of William R. Thomas, and should not be deprived of them." The vice of this instruction is that it gives the presumption referred to all the force and effect of actual death; in other words, it makes the presumption of death conclusive proof of the fact, and therefore remaining specifications present, in a modiirrebuttable. But the presumption of death arising from absence, etc., stands as competent proof of death only until it is successfully rebutted by competent and satisfactory evidence. If that was successfully done in this case, and the jury were fully satisfied that at the date of plaintiff's marriage to In defendants' third point the court was requested to charge: "A presumption of death, if proved, may be rebutted by evidence showing that the man was in full life during or after the period of seven years. The learned judge qualified his affirmance of this, as a general proposition, by saying: "But if the presumption has arisen, as to the wife's subsequent marriage, that he was dead, she is not deprived of her civil rights thereby." This qualification was erroneous, and in its application to the case at bar was practically a refusal of the point. The two fied form, substantially the same questions that have already been considered. In view of what has been said, it is unnecessary to notice either of them specially. They are both sustained. Judgment reversed, and a venire facias de novo awarded. (125 Pa. St. 12) Appeal of DEngler. Supreme Court of Pennsylvania. March 18, back, and awarded it to the appellee, because 1889.) EXECUTION-PARTNERSHIP. An execution is leviable upon the debtor's interest in a partnership, though neither the writ nor the præcipe contains any special directions therefor as provided by act Pa. April 8, 1873. Appeal from court of common pleas, Berks county; J. HAGENMAN, Judge. This was a controversy between Franklin Dengler, appellant, and Nicholas Glaser, appellee, both execution creditors of Charles Buettner, as to which was entitled to the proceeds of an execution sale of Buettner's property. The court awarded the fund to Glaser, and Dengler appeals. George J. Gross, Jr., and W. H. Livingood, for appellant. Henry C. G. Reber and Jeremiah K. Grant, for appellee. in the copartnership of Buettner & Stoneneither the præcipe for appellant's writ, nor the writ itself, contained any direction to the sheriff to levy on defendant's interest in the copartnership. If that omission rendered the first levy and sale under appellant's execution void and of no effect, the conclusion of the court below must be correct, but it did not. The act of April 8, 1873, supplementary to the execution act of 1836, which provides "that whenever any judgment has been or hereafter shall be obtained against one or more members of a partnership, upon any individual indebtedness of such defendant or defendants, any such creditor may have execution, * * * which shall command the sheriff or other officer to levy the sum of said judgment, with interest and costs of suit, upon the interest of the defendants in said writ of any personal, mixed, or STERRETT, J. The sole question is, which real property, rights, claims, and credits in of the parties to this contention is entitled to such partnership, and thereupon proceed and the fund realized from the sheriff's sale on sell the same," etc., is in the main declaratheir respective writs of fieri facias against tory of the law as it was recognized in pracCharles Buettner? The writ of appellant, tice before the passage of the supplement. No. 3, March terin, 1888, was issued Feb- Doner v. Stauffer, 1 Pen. & W. 198; Deal v. ruary 18, 1888, in the ordinary form, and re- Bogue, 20 Pa. St. 228; Lucas v. Laws, 27 turned by the sheriff: "Levied February 20, Pa. St. 211; Smith v. Emerson, 43 Pa. St. 1888, on the personal property of the defend- 456; Vandike's Appeal, 57 Pa. St. 9; Durborant, and also on defendant's right, title, and row's Appeal, 84 Pa. St. 404. The rule of interest in the personal property in the firm practice recognized in these and many other of Buettner & Stoneback, a schedule of which cases that might be cited was well stated by is hereto annexed; February 22, 1888, part Mr. Justice WOODWARD in Smith v. Emerof personal property claimed by Catharine son, supra, thus: "An execution creditor of Buettner; and on March 1, 1888, sold the one of two partners has as good a right to balance of the personal property for the sum levy on partnership effects as upon any other of $203.45. So answers George B. Schaeffer, personal property of his debtor. The only sheriff." The appellee's writ, issued Feb- peculiarity about such a levy is that it does ruary 21, 1888, contained a special instruc- not bind the goods in specie, nor does the sale tion to levy on defendant's interest in the co-in pursuance of the levy pass them; but the partnership of Buettner & Stoneback, of which firm he was then a member, and was returned by the sheriff: "Levied February 25, 1888, on the right, title, and interest in the personal property of the defendant in the firm name of Buettner & Stoneback, subject to a former levy, and sold the personal prop-cealment of any other leviable effects." The erty on March 1, 1888, as per return on fi. fa. supplement of 1873 was not intended to proNo. 3, March term, 1888." It will be ob- vide a new remedy, but merely to recognize, served that defendant's personal property, enlarge, and render more effective a remedy and also his interest in the firm of Buettner that had been heretofore long in existence. & Stoneback, were each actually levied on In Kaine's Appeal, 92 Pa. St. 273, the exeunder appellant's writ, one day before the cutions, instead of containing a special comsecond execution issued, and that the levy mand to the sheriff to levy on defendant's under the latter was expressly subject to the interest in the firm of which he was a memformer levy. As stated in the sheriff's re-ber, were in the ordinary form. Under both turn to the first writ, part of defendant's writs, however, the sheriff levied on that inpersonal property thus levied on was claimed terest, as though he had been specifically diby Mrs. Buettner, and the residue thereof rected to do so; and, on the first writ, he sold for $203.45. The obvious meaning of sold the interest so levied on, and realized the return is that the fund for distribution is therefrom the money in court for distribuproceeds of sale of the residue of defendant's tion. The other writ was returned with the individual property, and not his interest in levy, and a venditioni exponas thereon was the copartnership. That being so, the ap- afterwards issued. This court, recognizing pellant is clearly entitled to the fund in court. the validity of the sale on the first writ, But the court below appears to have acted awarded the money to it. The present chief on the assumption that the fund in question justice, speaking for the court in that case, is the proceeds of sale of defendant's interest said: "These executions were in the usual interest of the debtor in the final settlement of partnership accounts in respect to such goods is what is seized and sold. That interest, however, is leviable, and a fraudulent concealment of it is just as iniquitous, both in law and morals, as the fraudulent con * * *"" form, and the sheriff might well have refused | day and date of the approval hereof, the said to make a levy under them. But he did corporate officers of said borough offer and levy and sell, and the money is now in court agree to pay the sum of three hundred dolfor distribution, and claimed on each writ. lars annually for the term of ten years, to To which must it be applied? Obviously to any company first applying, that will furnish the one on which the sale was made. The a proper, sufficient, suitable, and permanent record shows that it was made on the Kaine supply of water to the said borough, for the writ," etc. extinguishment of fires, cleaning the streets, The learned president of the common pleas and other public purposes, during the said appears to have regarded Hare v. Com., 92 term. On June 17, 1875, the · Pa. St. 141, as ruling that a levy made under Milford Water Company adopted a resolution an execution in the ordinary form upon a accepting the offer, and notice of its action defendant's interest in a partnership is void was communicated to the borough council. and of no effect. In that, we think, he mis- January 25, 1876, the borough council adoptapprehended the principle involved in that ed a resolution "that the application of the case. There, as here, two executions had Milford Water Company, as read, be hereby been issued against a common debtor, the approved, and that the same be recorded at first in the ordinary form, and the second in length, and that the said company be and are the special form authorized by the supple-hereby accepted by the borough of Milford, ment of 1873. The sheriff still had the first for the purposes of, and under and subject to in his hands, unexecuted, when the second the conditions contained in, said borough came into his possession. Both he and the ordinance, to-wit, ordinance No. 2, and that plaintiff in the first writ were theretofore the secretary be authorized and directed to unaware that defendant had any such inter-notify said company of the same." Notice est in the partnership. It was held that the of this resolution was communicated to the sheriff, when informed of the fact, was not water company. The borough paid the bound to levy on the partnership interest water company, for the years ending April under the first writ; and he did not do so, 1, 1877, to April 1, 1884, but refused to pay because he was not so directed by the writ. for the year ending April 1, 1885, and the acIn the case at bar the sheriff, acting under tion is to recover the payment claimed for verbal directions, did make an actual levy on that year. Judgment on a verdict for plainthe defendant's interest in the partnership tiff, and defendant brings error. of Buettner & Stoneback at least one day before appellee's writ was issued. The levy | thus made was good as against the subsequent special execution and levy, subject to the first levy, and the fund raised by the sale is applicable to appellant's execution. In any view that can be taken of the sheriff's returns, whether we regard them as returning the money made out of the sale of de-nance No. 2 of said borough, passed April 9, fendant's individual personal property, or out of sale of his interest in the partnership of which he was then a member, the appellee is not entitled to the fund in controversy. Decree reversed at the costs of the appellee, and ordered that the fund be awarded to appellant. D. M. Van Auken and H. Wilson, for plaintiff in error. J. H. Van Etten, for defendant in error. PAXSON, C. J. The.contract between the Milford Water Company, plaintiff below, and the borough of Milford, defendant, is a valid and binding contract, provided ordi 1875, is a valid ordinance. Just here is the pinch of the plaintiff's case. It is not denied that when the ordinance was passed a majority of councils were also directors of the water company. They were thus contracting with themselves to supply the borough with water. The sixty-sixth section of the act of March 31, 1860, (P. L. 400,). provides that "it shall not be lawful for any councilman, burgess, trustee, manager, or director of any corporation, municipality, or public in(Supreme Court of Pennsylvania. March 18, stitution to be at the same time a treasurer, (124 Pa. St. 610) BOROUGH OF MILFORD v. MILFORD WATER Co. 1889.) MUNICIPAL CORPORATIONS-CONTRACTS. Act Pa. March 31, 1860, (P. L. 400,) prohibits any member, officer, or agent of any corporation from being interested in any contract for the sale or furnishing of any supplies or materials to it. Held, that an ordinance for the supply of water to a municipality for a term of years by a water company, of which a majority of the councilmen were directors, was void, and was not ratified by payments for water made by councils none of whose members was a member of the water company. Error to court of common pleas, Pike county. Action by the Milford Water Company against the borough of Milford, for water furnished to defendant. Ordinance No. 2, passed April 9, 1875, enacts "that, from the secretary, or other officer, subordinate to the president and directors, who shall receive Salary therefrom, or be the surety of such officer; nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality,or public institution of which he shall be a member or officer, or of which he shall be agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality, or institu- | else to rest upon, and with the destruction of tion, and his office or appointment thereun- its foundation the superstructure crumbles. der, and shall be held guilty of a misdemean- The judgment is reversed, and judgment is or, and on conviction thereof shall be sen- now entered for the defendants below non tenced to pay a fine not exceeding five hun- obstante veredicto. dred dollars," etc. I have quoted this section at length, as I very much fear it is not as widely known as it ought to be, nor as generally observed. It is at least probable PENNSYLVANIA S. V. R. Co. v. WALSH et al. the members of the borough councils who were at the same time members of the water (124 Pa. St. 544) (Supreme Court of Pennsylvania. March 18, 1889.) Error to court of common pleas, Montgomery county; AARON S. SWARTZ, Judge. Action by Maurice A. Walsh and others, executors, etc., against the Pennsylvania Schuylkill Valley Railroad Company, to recover for injuries to property situated in the borough of Norristown. Verdict for plaintiffs. Motion for new trial overruled, and judgment entered. Defendant takes a writ of error. C. H. Stinson, for plaintiff in error. John G. Johnson and Charles Hunsicker, for defendants in error. company overlooked this statute when they RAILROADS IN STREETS-CONSEQUENTIAL DAMAGES. voted for and passed the ordinance in ques- for injury to property unaccompanied with negli The doctrine that there can be no compensation tion; otherwise they must have known they gence, arising from the operation as distinguished were not only making a void contract, but from the construction of a railroad lawfully ocalso subjecting themselves to a criminal cupying a street, when no property is taken from plaintiff, and no change made in the grade of the prosecution. It is almost needless to say street in front of the premises, does not apply to that a contract so prohibited by law is utter a case in which the track is laid so close to the ly void, and there is no power that can premises as to entirely cut off, or to render danbreathe life into such a dead thing. It ap-gerous, all access to them. The injury being the direct result of the construction, the case stands peared, however, upon the trial below, that on the same footing as to consequential damages the borough had been using and paying for as if a portion of the property had been actually this water for several years; that upon some taken.1 occasions when the bills were passed there was less than a majority of councils who were members of the water company, and some years in which there were no members of councils who were also members of said company. From this it was urged that there was a ratification of the contract by councils. The learned judge below adopted this view, and entered judgment on the verdict in favor of the water company. This will not do. There was no ratitication of the contract, because there was no contract to ratify. The water company never contracted with the borough. They contracted with themselves to supply the former with water. To that PAXSON, C. J. While there are numerous agreement the borough was not a party, in a assignments of error in this case, the fifth legal sense. It is true the borough might, presents the only question which requires after its councils had become purged of the discussion. The defendant below asked the members of the water company, have passed court to instruct the jury that "there can be an ordinance similar to ordinance No. 2, and no compensation for injury to persons or thus have entered into a new contract. But property unaccompanied with negligence, no such ordinance was passed, and neither arising from the operation or use of the decouncils nor the officers of the municipality fendant's railroad, constructed on a public can contract in any other way. It is one of street in the borough of Norristown, and so the safeguards of municipal corporations authorized by law, when no land is taken that they can only be bound by a contract from the plaintiff, nor the grade of the street authorized by an ordinance duly passed. changed by excavation or embankments by The act of 1860 is another and a valuable the defendant in front of the plaintiff's safeguard thrown around municipalities. It premises, as distinguished from its construcwas passed to protect the public from the tion; and if the jury does not find negligence frauds of their own servants and agents. It on the part of the defendant causing such inmay be there was no fraud actual or intend-jury, the plaintiff is not entitled to a vered in the present case, but we will not allow dict;" which point the court below answered it to be made an entering wedge to destroy the act of 1860. Of what possible use would that act be if its violations are condoned, and its prohibited, criminally condemned contracts allowed to be enforced under the guise of an implied ratification? It is too plain for argument that the payment by councils for some years for water actually furnished created no contract to accept and pay for it in the future. Nor was this suit brought upon any such implied contract. On the contrary, it was brought upon the contract authorized by ordinance No. 2. It has nothing as follows: "Refused. It is true that the ordinary and proper use of a railroad cannot be regarded as an element of damages, unless the construction of the railroad interferes with the property of the plaintiffs; but we cannot say that if the jury find that this railroad is not negligently operated, they must find a verdict against the plaintiff." The Concerning the rights of abutting land-owners when a railroad company constructs and operates (N. J.) 14 Atl. Rep. 897, and note; Railroad Co. v. its road in a street, see Thompson v. Railroad Co., Larson, (Kan.) 19 Pac. Rep. 661, and note. stone on the side of the street next to the plaintiffs' property, by means of which the access thereto, if not actually cut off, was rendered dangerous. In this respect the case is upon all fours with Railroad Co. v. Duncan, 111 Pa. St. 352, 5 Atl. Rep. 742, and County of Chester v. Brower, 117 Pa. St. 647, that the mere laying down of the tracks in plaintiffs below are the owners of a certain property situated in the borough of Norristown, having a front of about 196 feet on Lafayette street. Upon this property there is a church building about 30 feet back from said street, in the rear-basement of which is a school-room; a parsonage about 40 feet back from said street; and three tenement-houses 12 Atl. Rep. 577. It was urged, however, on the line of said street. The defendant company has constructed its railroad upon Lafayette street, and has laid its tracks close to the curb-stone in front of said church, parsonage, and tenement-houses, and has since continuously and constantly run locomotives and trains of passenger and freight cars over said tracks. This action was brought in the court below for damages arising from the erection and construction of the defendant's road; the allegations being that said street or highway is "obstructed, closed, and destroyed, and all access to the front of said messuage and tenement, parsonage, church edifice, and school is prevented, cut off, and taken away, and the same rendered difficult and dangerous of approach, and the said parsonage, church edifice, and school remained unfit and unsafe for use as a parsonage, church, and school, and their value was wholly and totally destroyed." We have recently discussed so fully the question of consequential injuries resulting from the erection and construction of railroads that a further elaboration of the subject is deemed unnecessary. Our latest case is Railroad Co. v. Marchant, 119 Pa. St. 541, 13 Atl. Rep. 690, in which it was held that the word "injury," (or "injured") as used in section 8, art. 16, of the constitution, means such a legal wrong as would be the subject of an action for damages at common law; that for such injuries both corporations and individuals now stand upon the same plane of responsibility. In that case, as in the prior case of Railroad Co. v. Lippincott, 116 Pa. St. 472, 9 Atl. Rep. 871, there was no injury to the property by reason of the erection and construction of the road, and we held that the constitutional provision was not intended to apply to injuries which were the result merely of the operation of the road, as distinguished from its construction; and that in such case there could be no recovery for the annoyance of smoke, noise, and cinders, etc., caused by the running of the company's trains, unaccompanied with negligence. In other words, 3. Where the court distinctly charged that plainthat the injuries resulting from the exercise tiffs could not recover for any injury to their les of a lawful business, in a lawful manner, offered on the subject, it will be presumed that the sees, and there was no objection to the evidence without negligence and without malice, are verdict was only for the damages to plaintiffs redamnum absque injuria. We cannot, how-versionary interest, and a refusal to charge that ever, apply that rule to this case for obvious all the testimony is as to the difference in the marreasons. In Railroad Co. v. ket value of the entire property, undiminished by Lippincott, and any leasehold interest, and that, there being no evRailroad Co. v. Marchant, supra, as in this idence from which the value of plaintiffs' revercase, there was no actual taking of any por- sion can be assessed, the verdict must be for detion of the plaintiff's property. But there fendant, is not error. 4. A charge that, should the jury come to the the analogy ceases. In the cases cited there conclusion as to a certain amount which should be was no injury by reason of the construction allowed plaintiffs, they should add to that amount of the road; here there was an injury, and a interest from the time of the construction, though serious one, the direct result of the construc- allowed as such, is substantially correct, as it technically inaccurate, inasmuch as interest is not tion. The track was laid close to the curb-should be allowed as damages. (124 Pa. St. 560) PENNSYLVANIA S. V. R. Co. v. ZIEMER et al. RAILROADS IN STREETS-CONSEQUENTIAL DAMAGES 1. Though the construction stakes for a railroad abutting owner, the right of action for injuries are placed in a highway in the life-time of the consequential upon the construction of the road after his death is in the widow and heirs, and not in the personal representatives; there being no injury to such owner from the mere placing of the construction stakes. 2. In such action, evidence of what the railroad company paid to other abutting owners for the privilege of laying its tracks in the highway, is inadmissible. |