they had not been waived or dispensed with | judgment on the verdict. Both parties bring by the company in its dealings with the de- error, the opinion tiled on the points arising fendant. These were questions of fact, which under the assignments made by plaintiffs bewere properly submitted to the jury. ing here given. R. P. Kennedy and Edward Campbell, for plaintiffs in error. R. C. Dale and Mestrezat & Boyle, for defendant in error. The defendant further claims damages sustained by reason of a misquotation of the market at Oil City. On the 3d day of August, 1885, oil at Oil City was quoted to the defendant at 99 and a fraction. Relying upon the accuracy of this quotation, the defendant ordered his agent at Oil City to sell 90,000 barrels. It turned out, however, that the quotation furnished was inaccurate, and the loss was $713.35. As the company had contracted to furnish the defendant the quotations of the New York and Oil City markets, it was bound to furnish them with accuracy, and the defendant was justified in relying upon them. The questions bearing upon this branch of the case have already been considered, and we do not wish to repeat what has been said. We think the learned judge of the court below was right in his instructions | ly of opinion, however, that by the terms of to the jury, and the judgment is affirmed. (128 Pa. St. 485) FAIRCHILD et al. v. DUNBAR FURNACE CO. (Supreme Court of Pennsylvania. Oct. 7, 1889.) MINES-LICENSE OR CONVEYANCE-DECLARATION -AMENDMENT. CLARK, J. The first question arising upon this record is as to the force and effect of the written agreement, dated April 1, 1854, between John Martin and his son William J. Martin. By this agreement John Martin agreed "to grant to said William J. Martin the right and privilege of digging all the ore on his place and lands; for which said William J. Martin doth covenant and agree to pay said John Martin $200," etc. The learned judge of the court below was of opinion that this was a license merely revocable at the outset, but which, upon payment of the consideration, became irrevocable. We are clear the instrument William J. Martin was in equity invested with the right and title to this ore. The agreement was not under seal, nor did it contain the formal parts of a deed, but it was in writing, and that was sufficient to relieve the transaction from the ban of the statute of frauds. It was in form an executory agreement only, yet in equity it was a conveyance of the title to the ore. It was effectual to pass the title in fee, for when the consideration evinces that nothing less than a fee is intended, equity will supply the words of inheritance. It was not only a grant of 2. An action of trespass qu. cl. fr. for cutting the right to dig ore; it was a grant of the timber cannot be converted into an action for treble right and privilege to dig "for the ore on his damages, under the act of 1824, by filing an amend-plave and lands," and for a sum in solido, 1. A contract not under seal, whereby, for a consideration, (afterwards paid,) the owner of land agrees to "grant the right and privilege of digging all the ore on his land," is an equitable conveyance of the ore in fee, and not a mere license to take minerals, and trespass by the grantee of the own er will not lie against those claiming under such contract for removing ore from the land. ed declaration. Error to court of common pleas, Fayette county; A. L. HAZEN, Judge. which was paid in full. The case bears the closest analogy in principle with Caldwell v. Fulton, 31 Pa. St. 475, the only differTrespass quare clausum fregit by John W. ence being that in that case the transaction Fairchild and others against the Dunbar Fur- was executed by a deed, while here it is connace Company, a corporation. The injury tained in an executory agreement. As the complained of was the digging of ore and rights of William J. Martin, by a series of cutting of timber, and removing the same conveyances, have become vested in the defrom plaintiffs' land, and the declaration was fendants, it follows that the court was right drawn under the common law. The action in refusing the plaintiffs' claim for the price was tried on the gene al issue, and a verdict of the ore. This refusal was placed upon for plaintiffs was set aside, and a new trial somewhat different grounds, but the result granted. An amended declaration was aft-is right, and we will not find fault with the erwards filed, and a second trial resulted in course of reasoning by which that result was a verdict for plaintiffs for single damages, obtained. The court was also right in refusand interest in the sum of $2,320.70, which ing to treble the damages. The summons the court trebled, and rendered judgment ac- was issued August 25, 1881. The action, as cordingly for $6,962.10. On a writ of error defined by the declaration originally filed, was taken by defendant the judgment was re- an action in trespass at the common law. versed, on the ground principally that plain- The amendments of November 27 and Detiffs were not entitled to treble damages. 15 cember 2, 1886, were to the same effect. Atl. Rep. 656. An amended declaration, until December 18, 1888, did the plaintiff declaiming treble damages for the conversion clare specially upon the terms of the act of of the timber, under act Pa. March 29, 1824, 1824 for treble damages. In Hughes v. Stewas filed after the action was remanded. A vens, 36 Pa. St. 320, it is said: 'The statuthird trial was had under the pleas of "not tory action is cumulative to the common-law guilty" and the statute of limitations, result-remedy, or, perhaps, rather an optional or aling in a verdict for plaintiffs, assessing dam-ternative remedy, for a resort to either would ages at $1,000, and interest, $450. The court be a bar to the other." The cause of action refused to treble the damages, and rendered is the matter for which an action may be 66 Not brought, and it may be said to accrue when | erine C. Fairchild, who died seised of the there is a right of action, a party to assert land, leaving as her heirs the plaintiffs herein. that right, and a party against whom it may Her husband, Alexander Fairchild, also surbe lawfully asserted. This action of tres-vived her, and became a tenant by the curtepass, being brought at the common law, was sy, and he conveyed to the Youghiogheny Iron brought to redress the injury done by an & Coal Company the right to dig ore and cut award of compensation; but the action un- timber on the land mentioned, and received der the statute is not for a redress of the in- in exchange a tract of land of which he afterjury; it is to recover a penalty prescribed by wards died the owner, and it descended to the statute, which, as a police regulation, is plaintiffs. The rights of the Youghiogheny intended for the protection of real property Iron & Coal Company became vested in defrom waste by those who either negligently | fendant. It was contended by defendant or willfully intrude upon the lands of others. that the descent of the land given by the The cause of action accruing under this stat- Youghiogheny Company in exchange for the ute, although arising on the same matter, is mineral rights conveyed to it by Alexander different from that accruing at common law, Fairchild barred the heirs from asserting title and while, perhaps, they may be joined in to the mineral rights, on the ground of colone action, there can be but one recovery. | lateral warranty. The mineral rights, howAn amendment to a declaration will not be ever, were not conveyed by deeds with coveallowed if a new cause of action is thereby nants of warranty, but merely by an agreeintroduced. It will not be allowed unless it ment under seal to sell the mineral rights, plainly appears that the amendment is a mere and to furnish such additional assurances as specification of a claim already counted up- might be necessary to vest title in the venon, especially where the new cause is so old | dee, the latter agreeing to convey the land as to have been barred by the statute of lim- mentioned in exchange. When Fairchild itations. Wright v. Hart, 44 Pa. St. 454; sold the mineral rights in 1872, plaintiffs Smith v. Smith, 45 Pa. St. 403. The judg- were minors. Two of them, during the penment is affirmed. dency of this action, conveyed their interests in the locus in quo, and in the tract conveyed to their father by the Youghiogheny Iron & Coal Company, to Jane Russell and others, reciting therein the conveyance of the latter tract to their father; and this recital was relied on to estop them from claiming the mineral rights in exchange for which their father had received said tract, which tract they held and used as heirs of their father after his death, and conveyed as his heirs. (128 Pa. St. 485) Dunbar Furnace Co. v. FAIRCHILD et al. (Supreme Court of Pennsylvania. Oct. 7, 1889.) COLLATERAL WARRANTY-ESTOPPEL-TREspass. 1. Plaintiffs were the heirs of their mother, who died seised of mineral land. A., their father, tenant by the curtesy, by executory contract, without covenants of title, agreed to sell the mineral and timber rights in said land to defendant's grantor, and received in exchange land, which on A.'s death descended to plaintiffs. Held that, as the contract of A. was only executory, and not a deed with covenants, the descent to plaintiffs of the land received by A. in exchange for the mineral and timber rights aforesaid would not bar them from maintaining trespass for the removal of ore and timber from their mother's land, under the common-law doctrine of collateral warranty. 2. Plaintiffs not having, by their conduct or otherwise, induced the exchange, the fact that they inherited the land thus received by their father would not, by way of estoppel, prevent them from maintaining such action. 3. Nor would they be estopped from asserting title to the mineral and timber mentioned, by the fact that after A.'s death they conveyed the land so inherited from him, and recited in their deed that it was the same land conveyed to their father by defendant's grantor, to whom their father had sold the mineral and timber rights. 4. At the death of A., whatever rights he could grant as to the possession of the land of which he was tenant by the curtesy expired, and plaintiffs could maintain trespass for entries thereafter, they being then in possession. Error to court of common pleas, Fayette county; A. L. HAZEN, Judge. This is the same action of trespass in which the opinion, ante, 443, was filed, and reference is made thereto for a more full statement of the facts out of which the action arose, and to former trial and opinion in 15 Atl. Rep. 656. The defendant claimed under a conveyance of mineral rights by John Martin to William J. Martin, made in 1854. Afterwards John Martin conveyed to Cath R. P. Kennedy and Edward Campbell, for plaintiff in error. R. C. Dale and Mestrazet & Boyle, for defendants in error. ander Fairchild and the Youghiogheny Iron CLARK, J. The agreement between Alex& Coal Company, dated November 15, 1865, was an agreement under seal. But it was an executory agreement only, and it is difficult to see how any question of collateral warranty, or any question akin to that, could be supposed to arise in such a case. If the conveyance of the rights mentioned in that agreement had been by deed, with covenants of warranty of title in the usual form, it may be that this warranty of the father, with sufficient real assets descending from him to his children, under the rule of Carson v. Cemetery Co., 104 Pa. St. 575, would operate as a bar to the plaintiffs' recovery in this case. But no such case is presented for our consideration, and it is unnecessary to pursue that question further. Nor can we discover any ground for an estoppel, legal or equitable. The only ground alleged is the deed from the Fairchild heirs to Russell, dated the 4th of November, 1882, the recitals of which admit that the land thereby conveyed was the same land which the father had acquired from the Youghiogheny Iron & Coal Company, in consideration of the rights which he agreed to give the company an action of trespass would not lie. The under the executory agreement mentioned. right which Alexander Fairchild had granted But these recitals were simply by way of a to the Youghiogheny Iron & Coal Company description of the land, and, while they may was a right to dig ore and cut timber on this be deemed admissions as to the identity of land. This right was consistent with the the tract, we cannot see that the effect of possession of the land by the grantors, and these admissions or declarations, or even the we find that Alexander Fairchild, in his lifedeed itself, could raise an estoppel. The com- time, and the plaintiffs, at his decease, were pany's right of recourse upon the estate of in the actual and continuous possession of Alexander Fairchild, after his death, was un- the land. The right granted by Alexander affected by this deed, or by any of its recitals. Fairchild ceased at his death. After that The lien of the debt, or the damages sus- event, it is clear that the company had no tained from the breach of the contract, re- further privilege of the timber, and any inmained after the deed as before. The deed, vasion of the tract for the purpose of cutting therefore, did nothing to the company's in- timber was a trespass upon the plaintiffs' jury, nor was the condition of the company possession. thereby in any respect changed. It is not pretended that the plaintiffs who were entitled in remainder allowed their father to hold himself out to the world as the owner, or that they misrepresented the title; that they stood by and encouraged the execution of the contract, or that they ever knew such We are of opinion that the judgment must be affirmed. Judgment aflirmed. REID v. SMOULTER. (128 Pa. St. 324) (Supreme Court of Pennsylvania. Oct. 7, 1889.) CONSTITUTIONAL LAW-OFFICERS. a transaction was on foot. Indeed, it is not even alleged that they did anything which ties of more than 150,000 population, the legislature 1. Const. Pa. art. 5, § 22, provides that, in counamounted to the suggestion of a falsehood, shall, and in other counties may, establish a sepathat they concealed their rights or suppressed rate orphans' court, having certain exclusive powthe truth, that they were silent when they ers; also that the register of wills shall be clerk should have spoken, or that anything that ant clerk, etc. The legislature, by act May 19, of such court, and that he may appoint an assistthey did influenced the conduct of the de- 1874, established such court in certain counties fendant, or misled them in any way to their whose population exceeded 150,000, and adjusted injury. On the contrary, it is admitted that the salaries of the clerk and assistant clerk. Held, that the legislature could not repeal the provision in the recitals of the Russell deed they spoke as to the salary of the assistant clerk of one of the exact truth, and concealed nothing. It such courts, without making any other provision amounts to this: that Alexander Fairchild, therefor, and it is immaterial that the population of the county had become less than 150,000. who was a tenant for life only, acting for 2. Act Pa. April 13, 1887, is entitled "An act to himself, and for himself alone, granted, or amend the fifth section of an act relating to the orattempted to grant, for a certain considera-ganization and jurisdiction of the orphans' court, tion, certain privileges, the duration and ex- counties having more than one hundred and fifty and to establish a separate orphans' court in and for tent of which the grantor and grantees well thousand inhabitants, and to provide for the selecknew at the time were in excess of his right. tion of judges thereof, approved May 19, 1874, as The consideration, having been paid in hand, to appointment of assistant clerks of the said court, was, at the grantor's death, a portion of his the title is not defective, nor is the act invalid as and fixing the salaries of the same. Held, that estate, and those entitled in remainder are local or special, since the constitution recognizes a sought to be estopped simply because this class of counties, and requires a separate court consideration forms part of their inheritance to be established in each. from their father. No case has been brought to our notice which carries the doctrine of estoppel to this length. It is very plain that Alexander Fairchild intended to convey, not only upon the basis of his own interest as tenant by the curtesy, but also of the interest of those in remainder; for he expressly agreed, "without delay, to obtain such other deeds or assurances in the law as might be necessary to vesting the title in the company." If, therefore, he had subsequently become seised absolutely of the estate, an estoppel would certainly have arisen, and rendered the contract effectual to its full extent; for that was its meaning as manifest in its language, and this estoppel would have extended to the heirs of Alexander Fairchild. But the difficulty is that the plaintiffs do not claim as the heirs of Alexander Fairchild, but as the heirs of his wife. Nor can we see any ground for the argument that, under the special facts of this case, Error to court of common pleas, Luzerne county; CHARLES E. RICE, Judge. Petition by Henry A. Reid, assistant clerk of the orphans' court, for mandamus to John Smoulter, county treasurer, to compel him to pay the petitioner his salary. The petition was dismissed, and petitioner brings error. John McGahren, for plaintiff in error. William S. McLean, for defendant in error. CLARK, J. The general rule laid down by the learned judge of the court below as to the effect of an amendatory statute is undoubtedly correct. A statute amendatory of another, declaring that the former shall read in a particular way, must, in general, be held to repeal all provisions not retained in the altered form. All matters not incorporated into the amendment the latter must be held to have repealed. The authorities referred to in the opinion of the court are full upon this point, and many more might be cited in support of this general rule of construction. | set up this system of separate orphans' courts, But assuming this, and that the amendatory and it is for the legislature to regulate and section of the act of 1887 is actually merged maintain, not to destroy, it. The constituin the original statute of 1874, a question tion is the paramount law. It is above legarises, we think, upon the power of the legis-islatures and courts. What is therein or lature to repeal the provisions as to the sala-dained and established cannot be set aside by ry of the assistant clerk of any separate or- a simple act of legislation. phans' court, duly established, without mak- James McGreevy, Esq., the clerk of the ing any other provisions in that behalf. The orphans' court of Luzerne county, had an untwenty-second section of the fifth article of doubted right, by and with the consent and the constitution provides that "in every coun-approval of that court, to appoint Henry A. ty wherein the population shall exceed one Reid the assistant clerk. This right was hundred and fifty thousand, the general as- vested in him by the very terms of the consembly shall, and in any other county may, stitution, and, upon receiving the appointestablish a separate orphans' court, to con-ment, and becoming duly qualified, Henry A. sist of one or more judges, who shall be Reid was entitled to perform the duties of learned in the law, which court shall exercise that office, and to receive the emoluments all the jurisdiction and powers now vested thereof. It will not be seriously contended in, or which may hereafter be conferred upon, that the legislature had any power to pass the orphans' courts; and thereupon the juris-upon the necessity for the appointment, for diction of the judges of the court of common this discretion is expressly committed to the pleas within such county in orphans' court clerk, who is to act with the consent and approceedings shall cease and determine." It proval of the court. Nor will it be pretendfurther provides that, "in any county in ed that the assistant clerk might be removed which a separate orphans' court shall be es- from his office by a simple act of legislation. tablished, the register of wills shall be clerk There was no power competent to remove of such court, and subject to its directions in him save the tribunal which conferred the all matters pertaining to his office;" and appointment. that "he may appoint assistant clerks, but only with the consent and approval of said court." By the thirty-first section of the schedule, it was made the duty of the general assembly, at its first session or as soon as may be after the adoption of the constitution, to pass such laws as might be necessary to carry the same into full force and effect. At the time of the adoption of the constitution the only counties of the commonwealth containing a population exceeding 150,000 were the counties of Philadelphia, Allegheny, and Luzerne; and in obedience to this mandate of the constitution provision was made by the act of 19th May, 1874, for the establishment of separate orphans' courts in each of the three counties named, the salaries of the clerk and of the assistant clerk were adjusted, and separate orphans' courts were thereupon duly organized, under the constitution and laws of the commonwealth, in the said several counties. The legislature, in the passage of this act of 19th May, 1874, It may be said, however, that, after the orsimply complied with a command of the con- ganization of the separate orphans' court of stitution, and thereby caused this provision Luzerne county, the county of Lackawanna of the constitution to come into effect. That was taken from Luzerne, thereby reducing act withdrew from the judges of the court of its population, according to the census of common pleas of these respective counties 1880, below 150,000, and that in consequence the right to exercise the power of an orphans' thereof, although within the power of the court, and vested these powers in an inde-legislature, the constitution did not require pendent and exclusive jurisdiction. We the continuance of a separate orphans' court think it would not have been competent for in Luzerne county. It may be that, in view the legislature, by a repeal of this act, to de- of the reduction of the population, it would feat and set aside the constitutional tribunals have been competent for the legislature to rethus established; for these courts, although store the jurisdiction to the judges of the put into actual operation by the legislature, court of common pleas in all matters pertainwere created by, and now exist under, the ing to the orphans' court. We will decide authority of the constitution itself. Having that question when it arises, but the legisladone what the constitution required, it would ture did not do so. The judges of the sepnot have been in the power of the legislature arate orphans' court, as constituted under wholly to undo it. The constitution itself the act of 1874, at the time of the passage of If the legislature may repeal the act adjusting the salary without making any further or other provision in that behalf, it may practically abolish the office. If the assistant clerk may thus be deprived of the office, the clerk of the court and the judge are both liable to the same fate, and in this way that might be done by indirection which could not be done directly. It is true that the salary is a matter which, by the constitution, is submitted to the discretion of the legislature. In the exercise of that discretion, by the act of 1874, the salary was fixed at $1,500, and this rule of compensation will continue until by some other statute it is changed. The salary first fixed may perhaps be increased or diminished, subject to the restriction of the thirteenth section of the third article of the constitution, as the legislature should from time to time see fit to provide; but to repeal the provision for a salary altogether is to remove the clerk from his office. of the company, the policy was forwarded to S., who delivered it to plaintiff, lifted the premium, embraced it in a former report, deducting commissions, sent it to the special agent, and thereafter collected assessments, and gave receipts, which were recognized by the company. Held, that S. was the agent of the company in effecting the insurance. 2. The provision in the policy that "if any broker, or other person than the assured, shall have procured this insurance to be taken, he shall be considered the agent of the assured, and not of the company," referred to persons doing business on their own account, and not to agents of the com the act of 1887, were, and still are, the judges We are of opinion that the act of April 13, We are clearly of opinion, however, that the act of 1874, so far as it relates to Luzerne county, is not repealed thereby. The order discharging the rule to show cause is therefore reversed, and judgment entered for the plaintiff below, that an alternative mandamus be issued. Record remitted for further proceedings. (128 Pa. St. 553) KISTER V. LEBANON MUT. INS. CO. (Supreme Court of Pennsylvania. Oct. 7, 1889.) INSURANCE-AGENCY-WARRANTY-Evidence. 1. In an action to recover on a fire insurance policy, it appeared that one S. subscribed his name to plaintiff's application for insurance as agent of the company, made a statement of the exposures as agent, approved the risk as agent, and that, after these transactions were brought to the notice 3. Where the questions asked the assured by an insurance agent are answered truthfully, but the agent writes down false answers, and cheats the assured into signing a false warranty and paying the premium, a policy issued thereon cannot be avoided on the ground that the warranty was false, nor will the assured be estopped to show the falsehood and deceit of the agent, by the rule that oral evidence is inadmissible to vary or contradict his written warranty. 4. A condition of an insurance policy, that it shall be void "if the assured have the property incumbered without notice to the company indorsed hereon," is not violated by liens placed on the Property after it is insured, to take the place of liens thereon existing at date of insurance, and of which the company then had notice. Error to court of common pleas, York county. Action in assumpsit by John Kister against the Lebanon Mutual Insurance Company, of Jonestown, Pa., to recover on a fire insurance policy. On the trial it appeared that after the defendant sent one of its officers to examine Kister's properties, on November 5, 1885, R. P. Strominger, a justice of the peace of Goldsboro, was authorized by the defendant company to take the application of Kister on the hall property for $1,000. This agent filled up the application. To the seventh interrogatory, "Have you ever suffered loss of property by fire? If so, were you insured, and in what company?" Kister answered that he had three fires,-one in the tenant-house on his farm, 16 years ago, on which the loss was $500; one in Goldsboro, loss $75; and one on the confectionery in Goldsboro, loss $800; and that the insurance was in the Lebanon Insurance Company of Jonestown, Pa., the Dover Insurance Company, and the Farmers' Insurance Company of York. The answer put down by the company's agent was: “Yes, small loss; Farmers' of York; Dover; Leb. Mut. of Jonestown." To interrogatory ninth, "Is it incumbered? To what amount, if so? Is the incumbrance insured?" Kister answered that there were liens on all his property of over $4,000, but there was some paid on them, but how much he didn't know. The agent, however, wrote in the application, "None." Kister did not read his answers, and was not aware when he signed the application that the agent of the company had not put down the answers as he had given them, and never discovered these errors of the agent until his attention was called to them by the company's affidavit of defense, which was that the warranties of Kister were false. The application containing these warranties, and signed by Kister, having been |