The seventh assignment of error is also sustained. The witness had put a value upon the plaintiff's farm. The defendants had a right to test his knowledge and his fairness as a witness upon cross-examination. For this purpose it was proper to ask him if he did not know of sales of farm land in the same vicinity at a much less price than he had put upon a farm of plaintiff, If he did know of such sales but disregarded them in fixing the price of the plaintiff's land, that circumstance is calculated to affect his credibility unless it was explained to the satisfaction of the jury. The judgment is reversed, and a venire facias de novo is awarded. H. C. O. polluted? Was the channel choked with refuse for the purpose of providing the jury with a and the flat cut by the water, and covered with measure of damages in this case. the deposit complained of? Having ascertained what the situation then was, they were next to inquire whether the situation had been made worse during the six years. If So, in what respect, and to what extent? In this way they would be able to reach a correct conclusion as to the extent of the injury done the plaintiff, for which he could recover in this action. The method adopted on the trial was quite different. The plaintiff was permitted to show and the jury was instructed to consider what the plaintiff's farm would be worth as a whole, including the buildings and improvements, with the creek and the flat land in the original condition as it was before the work of pollution began, what it was now worth with the stream and flat in their present condition, so that the difference between these estimates became the measure of damages. We held in Robb v. Carnegie Bros. & Co., Jan. '92, 42. supra, that this mode of estimating damages, which is properly applicable to cases where an entry is made under the power of eminent domain, is not ordinarily applicable to actions of trespass. It is not necessary to repeat the reasons which were given in support of that conclusion. It is enough to say that we adhere to them. In case of a taking, the natural inquiry is how is that which is left affected by the taking. Where nothing is taken, but an injurious trespass is alleged, the question is, what will be the cost of restoring the thing injured to its former condition? If the cost of restoration will equal or exceed the value of the thing injured then the value becomes the measure of the plaintiff's damages. January 15, 1892. Howell's Estate. Collateral inheritance tax—Act of May 6, 1887, § 1-Legacies under $250 liable for tax if the gross amount of estate passing to collaterals equals or exceeds that amount-Meaning of words "estate" and "estates" in the Act of May 6, 1887-Collateral inheritance tax not a tax within meaning of constitutional provision requiring uniformity of taxation-New York statute of June 25, 1887, essentially different from Pennsylvania Act of May 6, 1887. Where an estate passing collaterally exceeds in value $250, each share or legacy so passing, though valued at less than $250, is liable to the collateral inheritance tax imposed by section 1 of the Act of May 6, 1887. The word "estate" in the proviso to section 1 of the Act of May 6, 1887, that "no estate which may be valued at a less sum than $250 shall be subject to the duty or tax," refers to the whole estate passing collaterally, and not to an individual legacy or share thereof. Howell's Estate, 28 WEEKLY Notes, 273, affirmed. But there is still another reason why the measure of damages adopted in the Court below was inapplicable to this case. The defendants had pleaded the Statute of Limitations, and the inquiry was thereby limited to six years. The comparison which the testimony placed before the jury carried them back to a time when the stream was not polluted, and the slate and slack had not been deposited on the plaintiff's land. It brought to their notice, not the injury done in Appeal of the Philadelphia Protestant Episcosix years, but the changes made from the begin- pal City Mission from the decree of the Orphans' ning of operations on Brush Creek, which was Court of Philadelphia County, dismissing excepnearly or quite a quarter of a century before the tions filed to the adjudication of the account of trial. While the learned Judge told the jury the executors of William Howell, deceased. that the plaintiff could not recover for an injury William Howell died on April 20, 1889, leavsustained more than six years before his actioning a last will dated February 12, 1889, of which was begun, he permitted testimony to be given he appointed the Fidelity Insurance, Trust and which brought the entire. change in situation of The will was the plaintiff's flat land to their attention, and which contrasted its value, if in its original condition, with its value in its present condition. This evidence was admitted after objection and Safe Deposit Company executors. bution of over $400,000, in addition to which the testator owned a large amount of real estate. The testator bequeathed as follows: Tenth. I give and bequeath to the Sheltering Arms, Franklin Reformatory, Western Home at 41st and Baring streets, Children's Home at Markoe and Westminster streets, Sheltering Arms Home Missionary Society, the Episcopal City Mission for the Sick, the Sanitarium Association of Philadelphia, two hundred dollars each, to be paid over to them as soon as convenient after my decease. The Commonwealth of Pennsylvania claimed the sum of $10 on each of these seven charitable legacies of $200 each, which the institutions named argued were exempted by the proviso to the first section of the Act of May 6, 1887, P. L. 79, which provides : That no estate which may be valued at a less sum than $250 shall be subject to the duty or tax. The Auditing Judge, PENROSE, J., awarded the tax to the Commonwealth, filing an opinion, in which he said as follows: "The accountants have withheld collateral inheritance tax from the legacies of $200, but have not paid it to the Commonwealth, preferring to have the question as to the liability of legacies of this amount decided by the Court, in view of the ruling of Common Pleas No. 1, in Commonwealth v. Kerchner, 24 WEEKLY NOTES, 260. In the case cited, the gross amount of legacies passing collaterally was less than $250, the chief part of the estate being given to lineal descendants; and while the reporter's syllabus states as to the point decided that " legacies under $250 are exempt from tax," there is nothing shown by the record to warrant it. The correctness of the decision may be conceded; it is inapplicable to a case like the present, where the estate passing to collaterals amounts to several thousands of dollars. "If the view contended for were correct, an estate of a million dollars passing to collaterals might, by dividing it into legacies of less than $250 each, be made to escape taxation altogether "The tax upon the legacies of $200, amounting to $70, is awarded to the Commonwealth." Exceptions to this adjudication were filed by the above-named legatees, which were dismissed, after argument, by the Court in banc, HANNA, P. J., delivering the opinion, which appears in 28 WEEKLY NOTES, 274. Mission (designated in the will as the Episcopal The Philadelphia Protestant Episcopal City. City Mission for the Sick) thereupon took this appeal, assigning as error this action of the Court. The counsel for the Commonwealth agreed that the decision of the Supreme Court in this case shall apply to the other legacies without separate appeals." John Marshall Gest, for appellant. The word "estates" in the proviso to section one of the Act of May 6, 1887, Purd. Dig. 2148, pl. 1, must have the same meaning as the same word where it is used in the remainder of the section. In the first line the words "all estates" cannot grammatically refer to the entire estate owned by the decedent. The Act simply provides for the taxation of "all estates passing from any person to any person or persons other than father, mother, husband, wife, children," etc., which more naturally refers to the interest or interests which those persons take in the estate of the decedent than to the estate of the decedent itself. And such a construction is strengthened by the phrase "and all owners of such estates shall only be discharged from lia bility for the amount of such taxes or duties by having paid the same over," etc., where the phrase "owners of such estates" clearly means "The liability to collateral inheritance tax is the persons to whom such estates are bequeathed determined not by the size of the legacy, but by or devised; that is, the legatees or devisees of the size of the estate passing to persons not ex- the "estates" which, therefore, must mean legaempt from taxation. This is shown by a simple cies or lands devised. If the word “estate" in reading of the statute: All estates of the proviso means the sum total of the collateral every kind whatsoever situated within this State inheritances, the Act would have said so in passing from any person who may die plainer terms. seised or possessed of such estates, either by will The phraseology of the proviso "that no or under the intestate laws of this State ... estate which may be valued at a less sum than other than to or for the use of father, mother, $250," evidently refers to the valuation or aphusband, wife, children, and lineal descendants praisement made by the appraiser appointed for born in lawful wedlock, or the wife or widow of the purpose. It is only when an estate is given the son of the person dying seised or possessed to collaterals that the estate may be valued at all. thereof, shall be and they hereby are made sub- The legislative intent in enacting the proviso ject to a tax of $5 on every $100 of the clear under construction was, somewhat similar to the value of such estate or estates, and at and after policy which allows a debtor or widow an exthe same rate for any less amount. . . . (Pro-emption of $300, or taxes annuities only where vided that) No estate which may be valued at a less sum than $250 shall be subject to the duty or tax.' they yield annually over $200. If, then, the purpose of the Legislature was to exempt from this duty or tax small legacies, where it would be most keenly felt, they surely would not make the exemption of such small legacy dependent upon the question of whether the entire estate of the decedent was less than $250, or upon the equally fortuitous circumstance that the legatee was not alone in his unhappy condition, for it makes absolutely no difference to the legatee of $250 whether he gets all there is or whether the testator left $1,000,000 to wife or children, nor does it make any difference to him, or help him to pay his tax that another man is also left a legacy of the same amount. See note by Samuel Hinds Thomas, Esq., 10 Pa. C. C. Rep. 410. Thomson's Estate, 5 WEEKLY NOTES, 19. The New York Act of June 26, 1887, is almost a verbatim copy of the Pennsylvania Act of 1887; and the New York decisions are clear in holding that the $500 limitation in value refers to the amount of the legacy. In re Cager, 111 N. Y. 343. In re Howe, 112 Id. 100; 48 Hun, 235. In re Smith, 5 Id. 90. McVean v. Sheldon, 48 Hun, 163. The construction given to the Act of 1887, by the Court below, as well as that urged by the Commonwealth, violates the Constitution in that it imposes a tax which is not uniform in its operation upon the same class of subjects. If that view is correct, A., who is a collateral legatee of $200 from an estate valued at one million dollars, pays the tax, whereas B., who receives just the same amount from an estate worth $249 does not. As the thing or subject of taxation is in each case precisely the same thing, to wit, the sum of money received or passing to a collateral, it is clear that A. pays more than B., not because the thing which is taxed is different or belongs to a different class, or because he himself is in a different class from B.; but the tax operates in his case on account of extraneous circumstances which exist fortuitously and do not happen to exist in the other case. Therefore the tax does not act uniformly, and consequently that interpretation of the Act is unconstitutional. Durach's Appeal, 62 Pa. 491. S. Davis Page, Edward P. Allinson, Boies Penrose, and William U. Hensel, attorney-general, for the Commonwealth, were not heard. In their printed argument they quoted an article by PENROSE, J., appearing in the Legal Intelligencer of January 15, 1892, and upon the constitutional question cited— 2 Blackstone Com., 10-13. Strode v. Commonwealth, 52 Pa. 181, 182. Eo die. PER CURIAM. Decree affirmed. A. R. H. A devisee who has given a valuable consideration to the testator for his devise, can obtain no preference over other creditors as such devisee, even though that. were the declared purpose of the testator, for it is an established principle that it is beyond the power of a debtor, by a testamentary disposition, to disappoint the law, either as to precedence or to give a preference of debts. While a distinct acknowledgment of the debt made in a will may perhaps be admissible in an action at law, in reply to the bar of the Statute of Limitations, yet the devisee claiming under the will can claim in no other capacity than as a volunteer. The alienee of such a devisee stands in no better position than the devisee, in so far as the proceeding to charge the land, under the Act of February 24, 1834, P. L. 77, is concerned. Appeal of W. S. Cochran, executor of and devisee under the last will of Patrick Graham, deceased, and Edwin Cochran, alienee of said W. S. Cochran, from the judgment of the Common Pleas of Butler County, in a scire facias issued by the Commonwealth to the use of Ella J. Cochran, against said appellants and others, to charge a certain judgment recovered by Ella J. Cochran against Patrick Graham, upon the lands of which he died seised. The following facts appeared at the hearing in the Court below: Patrick Graham died on October 9, 1886, having first made his will, of At the time of his death he was surety upon which he appointed W. S. Cochran, executor. the bond of Lydia A. Cochran, as guardian of her daughter Ella J. Cochran. Suit was afterwards brought upon this bond, and judgment recovered against the executor of the will of atrick Graham, upon January 16, 1891. Proceedings were afterwards taken under the Act of February 24, 1834, P. L. 77, to charge this judgment upon the real estate of which Patrick Graham died seised, and a scire facias issued to bring in Rebecca Graham, widow of Patrick Graham, deceased, and W. S. Cochran, devisee and Edwin Cochran, alienee de terris. To this scire facias, W. S. Cochran filed an answer or affidavit of defence, setting forth, inter alia, that he was a devisee of certain lands under the will of said Patrick Graham, deceased, "that the land deeded and devised to deponent was in consideration of the work and labor done by deponent and the care and attention given by de ponent to said Patrick Graham and his wife for case. He was a party to the original action in a period of time extending over thirty years, dur- which the judgment was taken, and therefore had ing which time said Patrick Graham frequently his day in Court. The Act of 1834 was not intold deponent he was to be fully paid for said tended to give, and did not give, the right to be work and labor and care and attention and that twice heard upon one issue by the same person: the deed and devise was the said payment from Stewart v. Montgomery, 23 Pa. 410. Lien being said Patrick Graham to deponent. That depo- an incident of the debt, has he an available denent is informed and believes that the balance fence to the scire facias? He claims that bedue Ella J. Cochran from her guardian Lydia cause the devise to him of the land sought to be A. Cochran, was not a debt against the estate charged was upon a valuable consideration, such of said Patrick Graham, until she the said land was thereby exonerated from all debts of Lydia A. Cochran, had failed to pay over the mon- the testator; in other words, that he is a pureys in her hands being the property of said Lydia chaser for value of the land devised. It will be A. Cochran, and for above reasons shown the de- conceded that if the scire facias embraced land ponent believes that the judgment at C. P. No. of which the debtor did not die seised, the owner 186, March Term, 1891, should not be or remain would have had a good defence of which he could a lien on any of his lands or execution thereof." have availed himself. But as this appellant adEdwin Cochran also filed an affidavit of de- mits that his debtor died seised of the land fence, setting forth, inter alia, that on April 1, sought to be charged, is he in any better posi1887, he had purchased from said W. S. Coch- tion than the appellee? As creditors, their ran, devisee of Patrick Graham, a certain tract rights became fixed by the death of the common of land, being a portion of the tract so devised debtor, and are equal. There is no pretence of to W. S. Cochran. That at the time of said pur- a sale, or of a covenant to stand seised, upon chase, there were no debts, dues, or demands which to base a preference, having been made. owed by the estate of Patrick Graham, of which The appellant can obtain no preference as devisee, deponent or his grantor knew. That the judg-even though that were the declared purpose of ment in question was not recovered until more the testator, for it is an established principle that than three years afterward. That he had com- it is beyond the power of a debtor by a testamentplied in full with his agreement to purchase ary disposition to disappoint the law, either as to said tract of land and had made valuable improvements upon the land. That at the time of his purchase he knew the demise to W. S. Cochran had been for work and labor done for Patrick Graham, and was not simply a bequest, but the said will was in reality only a deed for the same, and said W. S. Cochran took the land free from the lien of debts of the decedent. Judgment was entered upon these answers in favor of the plaintiff; whereupon W. S. Cochran and Edwin Cochran took this appeal, assigning for error this action of the Court. Lev. McQuistion (J. B. Bredin, J. Vanderlin, and S. Cummings with him), for appellants, John M. Thompson & Son, for appellee. January 4, 1892. STERRETT, J. We were not referred to any rule of Court under which this judgment was entered. It may have been done under a practice peculiar to the Court below. However that may have been, the case was treated here, by counsel on both sides, as a judgment for want of a sufficient answer or affidavit of defence, and as such we dispose of it. It will be observed that the only appellants are W. S. Cochran, executor of Patrick Graham and devisee under his will of the land sought to be charged, and Edward Cochran, alienee of said W. S. Cochran, It is clear that the appellant, W. S. Cochran, is concluded from contesting the debt in this precedence or to give a preference of debts. The will was by its nature the voluntary act of the testator, ambulatory, revocable, and spoke only from the death of the debtor. While a distinct acknowledgment of the debt, made in the will, might perhaps be admissible in an action at law in reply to the bar of the Statute of Limitations, yet the devisee claiming under the will can claim in no other capacity than as a volunteer. Those who claim as creditors claim in paramount right and adversely to the will. Even the widow, who is said to take as a purchaser, takes in subordination to the rights of the creditors of her deceased husband. Our statutes of distribution are based upon the theory that the assets of decedents, real as well as personal, are distributable primarily amongst his creditors, and the "surplusage" only amongst next of kin, legatees, or devisees, as the case may be: McBride's App., 72 Pa. 480. Patrick Graham having admittedly died seised of the land sought to be charged, the devisee must take in subordination to his debts. As the defence of W. S. Cochran's alienees is the same as his, they are in no better position so far as the scire facias is concerned. It may be that the equities between them may be worked out on execution, but the present proceeding is simply one of lien. Judgment affirmed. H. S. P. N. U.S. S. Circuit Court— Oct. '86, 13. Meyer et al. v. Cadwalader. Newspapers-New trial-Unfair and corrupt newspaper publications during trial of cause -Presumption that jury have seen such pub-, lications-When right to move for a new trial is not waived. Where evidently inspired newspaper comments and re ports of interviews of so gross a nature as to be well calculated to prejudice a jury against one of the parties to a cause have been published during a trial, and presumably seen by the jury, a new trial will be granted where the verdict is against the parties attacked. Where, during a trial extending over several days, the jury separating after each daily session, the leading newspapers in the city in which the trial was taking place published matter calculated to prejudice the jury against one of the parties, it will be presumed that the jury saw the matter published. After the publication during a trial of the first of a series of newspaper articles reflecting against one of the parties, a motion by that party was made for withdrawal of a juror and a continuance, which was refused: Held, that having done this he had not waived his right to move for a new trial on the ground that the jury had been unduly influenced, although he made no subsequent objection to the proceeding of the trial. t in suit had imposed upon them a tariff tax of fifty per cent., which was paid. They were then sold to the public, the tax being taken into consideration as one of the elements of their cost. The importers now seek to have the tax reduced to twenty per centum ad valorem, but cannot possibly refund to the consumers who really paid the tax the excess of duty. The common-sense point to be submitted to the jury would be: “ 'If you find that the goods have been wrongly assessed, but that the importer has sold these goods, charging the duty of fifty per centum to the consumer, your verdict should be for the defendant (the government), because it would be impossible to refund the tax to those to whom it properly belongs," On the next day there appeared in the Times an article headed "The Tax Refund Grab," which is too long to quote in full, but which contains the following statement, also referring to the trial mentioned above: But the infamy of a tariff system that seems to be constructed with a special view to just such grabs as these, whereby the people are doubly taxed, without the pretence of benefit to any domestic interest, surpasses anything of the kind in modern political history. . . . Certainly the importer ought to have his recourse against the imposition of unlawful duties, but it ought to be confined to the goods remaining on his hands. When he has sold them his equities are gone. Very soon the demand will come to do away with all this absurdly complex system that protects nothing but jobbery and the robbery of the people, and has helped to produce the present deficit in the national treasury. On the same day an article appeared in the Philadelphia Press, also too long to quote, and also referring to the trial above mentioned, which contains the following statement:— The verdict now reached applies only to past imports, on which duty was paid, under the Act of 1883, up to last October. Like many other cases, this trial has shown Motion for a new trial by plaintiffs, on the tional policy. how much stronger legal precedent is than law and naNo one questions that every tariff Act for ground that the verdict was against the weight thirty years represents the settled determination of Conof the evidence, and that the jury had been in-gress to protect home industry. Any reduction of a duty fluenced by reports of interviews concerning the through the construction of tariff statutes defeats this pol trial and by comments thereon appearing in the icy. Yet the Federal Courts, as a whole, are uniformly unfriendly to a construction favorable to protection, on leading newspapers of Philadelphia where the the old principle that revenue laws are to be construed trial was taking place. strictly and against the government. Congress has sought in vain to change this practice, which leads to verdicts like that of yesterday, against which the common sense of the jury led it formally to protest. Assumpsit, by Meyer & Dickinson to recover excess of duties paid on various articles, variously classified by the appraiser, but claimed by the importers to be principally used for trimming hats. During the trial a number of newspaper articles calculated to prejudice the jury against the plaintiffs appeared. On June 19, 1891, the day on which the trial was commenced, the following article, referring to a trial of a similar character immediately preceding the trial the verdict in which was moved to be set aside by this motion, appeared in the Public Ledger : In the important hat-trimming case that has been on trial before Judge ACHESON for several days, there was one point not submitted to the jury which would be bad law, but good common sense. The chinas and marcelines On June 21, an article, purporting to be a statement of Special Agent Hanlon, and referring to this case, was published both in the Press and in the Inquirer. It had evidently been carefully prepared, and read as follows: THE TWENTY MILLION RAID ON THE TREASURY. Special Agent Hanlon Tells Some of Its Inner History. THE TWELVE CONTESTED SAMPLES UNDER CLOSE SCRUTINY. Silks, Dress Trimmings, Ruchings, Linings, and Almost Everything Else Imported Asked to be Classified as Hat Trimmings, to the Great Loss of the Government. There was much comment in mercantile circles yesterday over the verdict in the celebrated hat-trimmings case |