Pennsylvania Lead Co.'s App., 15 Norris, 116. In cases of this kind the question is not whether the injury is great or small, but whether there is the injury is great or small, but whether there is threatened to be a continuous invasion of one's rights. Com. v. R. R. Co., 12 Harris, 159. An injunction bill will lie to prevent the annoyance and insults incident to repeated and threatened continuous trespasses, each one of which does but small or even nominal injury, as well as to prevent a multiplicity of suits. Brightly's Equity, 295. Scheetz's Appeal, 11 Casey, 94. Pennsylvania Lead Co.'s App., 15 Norris, 116. April 7, 1884. THE COURT. The only question raised upon this record is whether or not a case within equity jurisdiction is therein presented. pleadings, and proceeded as if the action was at law, in ejectment, or trespass; the whole contention as shown by both the pleadings, and the the parties; no irreparable injury was shown, no proofs was upon the legal rights and claims of clear right to the subjects in dispute established. No ground for equitable relief is disclosed. Where rights, which are legal, are asserted on one side, and denied on the other, the remedies are at law, they cannot be settled under equity forms; this is undoubtedly the general rule. if there be no equitable ground of relief inIn actions respecting real property, therefore, volved, the rights of the parties must be determined at law; when thus determined, or when they are admitted in the pleadings, or otherwise clearly appear, an equity based upon that right, superinduced by the acts of the parties, may be asserted, and a decree for equitable relief made, thus equity is made the means not of establishing the legal right, but of giving adequate protection in the enjoyment of it, when thus established. No irreparable injury has been shown, The bill sets forth that the complainants are and it does not yet appear that a multiplicity of the owners, in fee simple, of certain real prop-suits must result, under proceedings at law; all erty in the city of Scranton, extending from parties in interest may be put upon the record Main Street, on the south, to Hyde Park Avenue in a single suit, and non constat that the trial on the north, known as the Calvin Washburn and determination of that suit may not end the lot, upon the western side of which is an alley, sixteen feet wide, leading from Main Street into and over the said property; that the respondents own and occupy the property adjoining on the west, known as the Nicholas Washburn lot; that the respondents have without any right passed and repassed over this alley, and threaten to continue to do so at their pleasure. The bill further charges that the respondents claim, and threaten to enter upon and possess a small part of the Calvin Washburn lot, a narrow strip along the western side, including a portion of the complainants' buildings erected thereon. And that the complainants are and have been in full possession of the alley, and also of the disputed strip of ground, and that the respondents have neither right nor title to either. Where- In Rhea v. Forsyth (1 Wright, 503), Mr. Jusfore to prevent a multiplicity of actions at law, tice WOODWARD, after a review of the cases, confor the redress of these repeated and threatened cluded as follows: "From these and many more wrongs and trespasses, the prayer of the bill is authorities, which might be cited to the same for a perpetual injunction to restrain the respond-effect, it is apparent that where the plaintiff's ents from using the alley, and from taking possession of the said strip of ground. A demurrer to the bill was overruled and an answer was filed, in which the respondents claim the right to use the alley, deny any wrongful act, and allege that their claim is based on a just and legal title; that they are justly and legally entitled to the strip of land referred to in the bill; and deny that the complainants are or have been in the possession of the disputed premises. In the proofs the parties conformed to the controversy; the right to equitable relief may follow, if any equity is superinduced by the act of the parties, but the interference of equity in such a case rests, as stated by Chancellor KENT in Gardner v. The Village of Newburgh (2 Johns. Ch. Rep. 164), "on the principle of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which, upon just and equitable grounds, ought to be prevented." To the same effect are the cases of North Penna. Coal Co. v. Snowden (6 Wright, 488); Norris's Appeal (64 Penna. St. 275); Tillmes v. Marsh (67 Penna. St. 507); Haines's Appeal (73 Penna. St. 169), and Grubb's Appeal (90 Penna. St. 228). right has not been established at law, or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant, but by proofs in the cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, where there is conflicting evidence that goes to the denial of all right. When the emergency is pressing, and the injunction affidavits disclose a prima facie right in the plaintiff, the proper practice, I apprehend, is for the Court July, '84, 38. May 20, 1884. Cline's Appeal, tors-Duty of, as to sales. for the benefit of his estate. to interfere by special injunction, and stay the defendant's hand until the right has been tried at law." Even in cases confessedly within the jurisdiction, as partition, equity will not inter-Decedents' estates-Executors and administrafere if the complainant's title be denied, until he has vindicated it at law; the Court may retain the bill, however, until that has been done. A testator by his will directed that his executor should (2 Aik. 280; Coxe v. Smith, 4 John. Chan. Rep. control his tanyard, the business whereof was to be kept 271; North Penna. Coal Co. v. Snowden, su-up under the superintendence of testator's brother-in-law pra.) A further citation of authorities upon a point so well settled is certainly unnecessary. The cases cited by the appellee are not in principle inconsistent with the case here referred to. In none of them did the dispute involve the ascertainment and determination between the contending parties of their rights at law, the right of the complainant in each of the cases was either admitted or otherwise clearly and incontestably established, and in all of them proper grounds were assigned for equitable relief. careful study of all the cases will disclose no great conflict between them; the same general doctrine is deducible from all. A Some time after testator's death his executor sold to a firm, with whom there was strong reason to believe that the testator had himself dealt, a bill of leather, receiving in payment the note of the firm made to him personally. There was no evidence to show what care the executor took in making the sale nor was it shown that the firm than during testator's lifetime. A few months afterwards had any worse credit or reputation at the time of the sale the firm became notoriously insolvent and never paid the note, which was renewed from time to time, no suit being brought thereon. The family of the original testator having sought after the death of the executor to charge his estate with the amount of the uncollected bill: Held, that the circumstances were not such as to warrant making such a charge. Appeal of Lewis Cline and Carrie Cline, administrators of Andrew Cline, deceased, from a decree of the Orphans' Court of York County, in the matter of the estate of Samuel Grove, deceased. In the case before us, a large number of witnesses was called, and voluminous testimony was taken on both sides, touching the issue raised by the bill and answer. The testimony taken in the behalf of the plaintiff was to the effect that he had purchased and was the owner in fee of the premises in dispute; the deeds and muni- Before the Auditor appointed to review the ments of title were offered and received in evi- account of Andrew Cline, executor of Samuel dence; oral testimony was introduced as to the Grove, deceased, as exhibited by the adminisproper boundaries of the respective lots, the lo-trators of the said Andrew Cline, deceased, the cation of the fences, the nature and extent of facts of the case appeared as follows: Samuel the possession of the premises by the present re- Grove died on August 31, 1872. By his will he spective owners, and their predecessors in title, provided, inter alia :and from all this volume of evidence we are asked to pass upon the legal rights of the parties. We cannot take from the respondents the right to have these questions of fact submitted to a jury, according to the rules of law; to that mode of trial he is entitled under the Constituton. "I will and direct that the tanyard and farm be controlled by my executor until such time as my son John shall have become twenty-one years old. Then my executor and my two sons, Henry and John, to carry on the tanning business (the yard to be stocked out of the funds of my estate), half of the profits of the tanyard, etc., for the use of my two sons, Henry and John. The other half to go into the hands of my executor, for the use of the other members of my family, to wit, my wife and my other children. My sons, John and Henry, to be at an equal expense with my executor in conducting the business of tanyard and farm. I also wish and will that John C, Danner may and will still continue in the yard, and direct affairs under and with the approval of my executor until such time as circumstances may require a change. My friend, Andrew Cline, I appoint my executor." Andrew Cline accepted the trust. In 1877 he filed his first account, which was confirmed absolutely. The present account was filed by his administrators after his death. Objections were raised by the widow and son of the said Samuel Grove, inter alia, because in neither of the accounts was accountant charged with $1364.52, the amount of a bill of leather belonging to the estate sold to J. W. Lescure & Co., of Harrisburg, in March, 1873. In Garrett v. Noble, 6 Simons, 505. Trustees are liable to a surcharge only when they are guilty of fraud, or supine negligence equivalent to fraud. Springer's Estate, I Smith, 342. payment for the same, the said Cline had surcharged, unless there is a plain violation of accepted the note of said firm dated March 20, trust. 1873, payable at sixty days, in his own name and without security. This note was several times renewed. The firm of J. W. Lescure & Co. were possessed of real estate worth about $2000, but at the time of the above transaction, it was incumbered by judgments amounting to over $1000. The real estate of David P. Lescure, one of the firm, was sold by the sheriff in August, 1872, at which time the firm was insolvent, and on November 11, 1875, the firm's real estate was also sold by the sheriff for $100. Lescure & Co. never recovered from their failure, and their whereabouts after the spring of 1874 is unknown. No suit was ever brought on the above note, the parties being irresponsible, and the whole amount was lost. There had been former dealings with this firm. The accountants charged themselves, for the executor, in the account filed, with $544.35 received from J. W. Lescure & Co. in 1873, but it does not appear who sold them this bill, or on what terms it was sold. About December, 1872, Clinton Keister, a witness before the Auditor, who had been selling leather to Lescure & Co., discovered on inquiry that they were not responsible, that their real estate was incumbered to its full value and that the firm was insolvent. But another witness testified to dealings with the said firm on credit in the autumn of 1874, receiving in payment two notes and a check, all of which went to protest. Upon these facts the Auditor found that if Andrew Cline had made proper inquiries in the spring of 1873, he would have discovered the facts ascertained by Mr. Kiester, that Lescure & Co. were insolvent, and wholly irresponsible. In neglecting to make such inquiries, and in taking the note of the firm without security payable to himself, individually, the executor, Andrew Cline, was guilty of gross negligence such as in law makes him responsible for the loss. The Auditor accordingly surcharged his estate with the amount of the bill and interest to date, and imposed upon the said estate the costs of the audit. To this report exceptions were filed by the appellants, the administrators of the said Andrew Cline, which were dismissed by the Court, the report confirmed, and a decree entered in accordance with the recommendations thereof. Whereupon they took this appeal, assigning for error the dismissal of their exceptions, and the confirmation of the report. E. W. Spangler, for the appellants. The testator did not require that security should be taken for leather sold. Trustees who merely commit an error of judgment will not be McCourt's Appeal, 11 WEEKLY NOTES, 161. The fact that Andrew Cline took this note in his own name cannot add to his liability. A trustee is liable for using trust funds as his own, but equity is not so severe where, as here, the money never came into his hands. Comm. v. McAlister, 4 Casey, 485. The executor was not bound to sue on the note or the renewals, when they became due. Neff's Appeal, 7 Smith, 97. Konimacher v. Kimmel, 1 P. & W. 213. Nor to sue at all, after the firm became insol vent. Johnston's Estate, 9 W. & S. 109. This exception should have been filed to Cline's first account, which included this transaction. W. C. Chapman, for the appellees. June 9, 1884. THE COURT. The error of this case consists in the misapplication of well understood principles of law. It is undoubtedly true that the measure of diligence and care required of a trustee is precisely that which a man of ordinary prudence would practise in case of his own estate. (Fahnestock's Appeal, 14 WEEKLY NOTES, 50.) So where an executor or administrator sells the goods and chattels of his decedent, the general rule is that he must take security, or the sale is at his own risk. (Konimacher v. Kimmel, 1 P. & W. 207; Johnson's Estate, 9 W. & S. 107; Swoyer's Appeal, 5 Barr, 377.) In the case in hand the testator directed that his tanyard and farm "be controlled by my executor until such time as my son John shall have become twenty-one years old. Then my executor and my two sons, Henry and John, to carry on the tanning business (the yard to be stocked out of the funds of my estate), half of the profits of the tanyard, etc., for the use of my two sons, Henry and John. The other half to go into the hands of my executor, for the use of the other members of my family, to wit, my wife and my other children. My sons, John and Henry, to be at an equal expense with my execu- | sale. In such case it might have been his duty tor in conducting the business of tanyard and to take security. But the testator directed his farm. I also wish and will that John C. Danner business to be carried on for an indefinite period may and still continue in the yard, and direct for the benefit of his estate. He may have affairs under and with the approval of my exe- thought he was acting wisely in doing so. As a cutor until such time as circumstances may general rule such provisions in wills result disasrequire a change. My friend, Andrew Cline, I trously, and this case is not an exception to the appoint my executor." rule. It has certainly impaired the estate. But we must be careful not to throw the consequences of the testator's folly upon the executor unless it clearly appears that he deserves to be so punished. The said Cline took upon himself the execution of this trust. He appears to have been an old man, and there is nothing to show that he had any knowledge of the tanning business. In 1877 he filed an account in which was included the administration of his trust for the first five years. The present account was filed by his administrators after his death. This contention grows out of an attempt to surcharge his estate with the amount of a bill of leather, $1364.52, which in 1873 he sold to the firm of J. W. Lescure & Co., on account of Samuel Grove's estate. It was urged on behalf of the widow and children of Samuel Grove that the sale was improvident; that Lescure & Co. were at that time insolvent, and that with reasonable diligence and proper inquiry on the part of the executor he would have ascertained that fact; and that he should have sold the leather for cash, or taken security for the payment of the money. The Auditor's finding of facts was meagre and not entirely satisfactory. He finds, however, that the firm of J. W. Lescure & Co. were insolvent in August, 1873, at which time the real estate of one member of the firm was sold by the sheriff. He finds further that about December, 1872, Clinton Keister, a witness before the Auditor, who had been selling leather to said firm, discovered on inquiry that they were not responsible, that their real estate was incumbered to its full value, and that the firm was insolvent. This bill was sold in March, 1873. There was no finding that at that time the credit of the firm of Lescure & Co. was not as good as during the lifetime of the testator. It does not appear to have been at any time a firm doing a large business, or having a large capital and credit. Yet the testator, shortly before his death, appears to have dealt with it. Andrew Cline, the executor, charges himself in his first account with $544.35 received for leather from the firm. There is no direct proof that this leather was sold by the testator, yet as it was not pretended that it had been sold by the executor, we have a right to assume, what all the probabilities of the case indicate, that this sale was made by the testator. If the leather sold by the executor in March, 1873, had been manufactured by the testator, and had come into the hands of his executor for the purpose of closing up his estate, there would have been more reason for holding the estate of the executor responsible for the loss upon the| The position that the executor should have taken security for the leather is not worth discussing. With the sharp competition of business it would be unreasonable to require security from every customer. There would be no sales upon such terms. This executor was to carry on the business in the same way the testator had been carrying it on, and in no other manner. If it resulted in a gain the estate would have the benefit of it; if in a loss, such loss must fall upon the estate. It would be a harsh rule to put the losses upon one who had no possible participation in the profits. This loss was a business loss. Looking at it from the light we now have the sale was unwise, yet we cannot doubt that it was made in perfect good faith. The executor found that his testator had sold the firm leather, and as before stated, he received the money in one bill of several hundred dollars which had been sold by him. This was about the time the executor sold the bill of March, 1873. Other tanners were then selling to the firm, and its general credit and reputation had not been seriously impaired. Aside from this it is plain from Samuel Grove's will that his executor was to have merely a general supervision over the business. It provides that John C. Danner, who appears to have been a brother-in-law of the testator, was to remain upon the premises and direct the business. Danner was there when testator died, and was to remain and manage the business. The testator, no doubt, had entire confidence in him, and it was this confidence, in all probability, which influenced the testator to make the provision for continuing the business. That he relied upon his executor, an old man, unacquainted with the tanning trade, to enter into the details thereof, is hardly among possibilities. The executor had a general supervision, nothing more. And nothing more was possible under the circumstances. Without the constant personal care of a practical tanner no profits could be expected. This the executor could not give without relinquishing entirely his own affairs, and were he disposed even to do that, there is nothing to show that he was competent. We have no information as to what care, if the owner's vendor. Held, that there was a perfect defence to the claim, that it was competent for the defendant to show the mistake in the receipts delivered to him as to the situs of the property. And further, that the city was at liberty to enforce its claim as against the premises, a description whereof had, by mistake, been inserted in the receipted bill delivered to defendant. any, was exercised in making this sale. It may against the particular premises in question, rightly dehave been made by the executor, or it may have scribed, which was, however, made out in the name of been made by Danner. The executor is now A municipal claim being subsequently filed against said premises in order to enforce the dead. If he were living he might possibly ex-payment of said last named bill, and a scire facias having plain the transaction. He may have made issued thereon: inquiries in regard to the standing of Lescure & Co., which to him were satisfactory. No attempt was made to cast this burden upon him until after his death, although there was abundant opportunity to do so before. It would be a harsh rule to charge his estate with the loss of this money now, and the law does not require us to do so. Under the circumstances we do not attach much significance to the fact that the note was taken in his individual name. He was carrying on business for an estate, and to some extent upon his own credit. Nor is it material that no suit was commenced upon the note. If nothing could have been recovered by means of a suit, it would have been a waste of money. There is nothing to show that the money could have been collected, and the renewal of a note was within the executor's discretion, and his discretion appears to have been exercised in good faith. We are of opinion that the Court below erred in surcharging the estate of Andrew Cline, deceased, with the sum of $2183.23, and in imposing the costs of the audit upon said estate. The decree is reversed at the costs of the appellees, and it is ordered that the record be remitted for further proceedings in accordance with this opinion. Error to the Common Pleas No. 1, of Philadelphia County. Scire facias sur municipal claim by the city of Philadelphia against William Wolf and Jacob Schoening for $60, being an assessment for the building of a sewer, against property alleged to belong to them, and situated on North Fourth Street, in the city of Philadelphia. On the trial the following facts appeared: Jacob Schoening, one of the defendants, was the owner of property numbered 849 and 851 North Fourth Street, in the city of Philadelphia, which had formerly belonged to William Wolf, the other defendant, and had come into Schoening's possession through a sheriff's deed, wherein the lot was described simply as being a forty-foot lot on the "east side of Fourth Street between Brown Street and Poplar Lane." This deed was duly registered, and accompanying the deed was a draft or plot giving the dimensions and locality of the premises. Schoening owned no other property on North Fourth Street, nor did it appear that Wolf had ever owned any other. In 1875 the city built a sewer upon North Fourth Street, between Brown and Beaver streets, for which Joseph Conklin was awarded the contract. By its terms he was to be paid in assessment bills, made out against the properties on the line of the sewer by the proper officers, and assigned to him. As soon as the sewer was completed, and before any of the bills against the property owners had been assigned to Conklin, he colceipts-Act of March 14, 1865-Act of March lected from Schoening, among others, $60, the 29, 1867. Opinion by PAXSON, J. Jan. '83, 209. C. K. Z. January 10, 1884. Wolf and Schoening v. City of Municipal claim. Sewers. Contractors -Re A city contracted for the construction of a sewer, the contractor agreeing to accept in payment of his work the assignment to him of certain assessment bills against properties benefited, the remainder whereof were to be retained by the city. After the completion of the work the contractor received from a certain property owner the amount in full of the assessment against his property, giv: ing him a slip receipt, wherein, by mistake, the payment was specified to have been made on account of premises in a totally different locality. A settlement having subsequently taken place between the contractor and the city, the former sent to the property owner as a further receipt a duly authenticated department bill receipted by him, made out in the property owner's name, for the premises situate in the same square, which, however, he did not Among the bills retained by the city was one own. amount of the latter's assessment, and gave him a receipt for the construction of a sewer in front of premises 741 North Fourth Street." Schoening did not own premises No. 741 North Fourth Street, which were situate in a different square from that in which the house he did own was situate, and on account of which he paid the $60, as above. With this receipt Conklin coupled a verbal promise that, in a few days, he would deliver a department receipt for the money. Upon the following day the city had a settlement with the contractor, and assigned to him, among other bills, one which Conklin receipted, and, when properly indorsed, transmitted to Schoening, which read as follows: |