Opinion by
Handley, P. J.
The plaintiff commenced his action of ejectment against the defendant,and obtained judgment for the land described in the writ, before the arbitrators, 011 the 10th of May, 1879. An affidavit was presented in term time to .Judge Hand, setting forth the non-residence of one of the defendants, and that he never employed any counsel to appear for him; that the service of the second rule in the case was not served as required by law, whereupon rule was granted to show cause why the award should not be set aside. That rule is still pending. Subsequent to all this the plaintiff commenced his estrepement action to the same number and term as that of the ejectment. The tenant in possession now moves that the estrepement be dissolved, and to sustain his motion files an affidavit, setting forth that he is the agent and tenant of the defendant, L (1 Depew; that an action of ejectment to compel specific performance of a contract for the sale and conveyance of land was commenced by the plaintiff; that there is nothing due the said plaintiff on this land; that the plaintiff has tiled no bond as required by law; that the petitioner will suffer great damages unless the estrepement be dissolved; that his crops arc liable to perish and become worthless if not gathered and harvested at once. The only question we [191]*191¡ire called upon to examine in this case is, whether the tenant in possession may harvest his crops? The statutory definition of waste in Pennsylvania is, that quarrying and mining, and all such other acts as will do lasting injury to the premises, shall be considered waste. 2 Purd. Dig. 1405, pl. 2. What shall be deemed waste may be found, according to common law, in 10 Bacon’s Abr. 422. The tenant, notwithstanding the writ of estropomont, may cut down corn, grass or underwood. Boscoe’s Actions 125, and cases cited. The cutting of an annual crop „ is not within the moaning of our statute, lasting waste or injury. It is nothing but square justice that he who sows should reap.
Motion allowed, and estrepement dissolved.
aotpx op 'Ji/cawr 7) jscistoats ijv sutzíjsmb corvrr op 7,p:/y.>vsy/j yaapa.
The assignment of the stock of a corporation to itself as collateral security for a loan, divests the title of the as-sigor so far as to prevent a sale of it under a fi. fa. against the assignor.
A shareholder in a building association, who has assigned 1ns stock as collateral security for a loan, which is also secured bj' a judgment against him, may elect, upon a sheriff’s sale of his real estate, to have the actual value of his stock deducted from the amount of the judgment before the latter is allowed to participate in the fund arising from the sale.
An attachment of the stock, after such an election,binds nothing but the defendant’s interest, if auy remains after the stock has been applied to the payment of the judgment. — Early and. Lane’s Appeal.
In an action by landlord against tenant for. -rent., the tenant, in his affidavit of defence, averred removal before [192]*192the end of his term, surrender of the lease and entry by the landlord, who made such repairs as could not hare been made while the tenant was in possession, but did not allege acceptance by the landlord of the surrender:
Held (affirming the judgment of the Court below), that talcing possession, repairing, and advertising the house to rent were all acts in the interest and for the benefit of the tenant, and did not discharge him from his covenant to pay rent. — Bruekmann vs. Twibill.
Trustees in domestic attachment are not mere ministerial officers but are clothed with extraordinary discretionary powers.
McCready vs. The Guardians of the Poor (9 S. & R. 94) explained.
It is well settled that trustees who have acted in good faith, and under the advice of counsel, are not responsible for an error of judgment or a mistake of law.
A domestic attachment was issued against A & Co. and was placed in the sheriff’s hands at 2.10 P. M.; afierifacias was issued against A by an individual creditor and placed in the sheriff’s hands at 3 P. M.; proceedings were began to test the ownership by means of sheriff’s interpleader; the trustees in the attachment were advised, however, by their counsel that there was grave doubt whether the attachment. had not been improvidently issued, and under his advice effected a compromise with the execution creditor whereby certain items of property were released by each in favor of the other:
Held, that although the property was in gremio legis at the time the fi. fa. issued, and the levy thereunder was therefore void, yet the trustees had ample discretion to make the compromise, and inasmuch as they had acted in good faith and under the advice of counsel, they could not be surcharged. — Bradley’s Appeal.
[193]*193EMPLOYEES’ EXCOSES,
In Leopold vs. Salkey, the Supreme Court of Illinois passed on the effect of a cleric’s absence from service, caused by his being arrested and imprisoned two weeks without his fault. He was under contract to serve for three years. This incident occurred early in the term,and in the busy season, so that the employer was compelled to engage another person. The action in which the question was raised was the clerk's action for damages in not continuing him in employ after his release, and after they had paid him all the compensation up to the end of his actual service, lie recovered on the trial 8500,the amount of two months’ salary. The appellate court held he was entitled to nothing, and reversed the judgment.
This question presents a branch of a larger one which has exorcised the wits of the bar and judges both in this country and in England. Fixed contracts for personal services are ordinarily peculiar in this, that while the service is long the periods for payment are usually short and numerous, and temporary inability and excuses of questionable efficacy are frequent, ¡lenco the principles which suffice to settle actions for breach of other executory contracts, such as contracts for sale of goods, often prove inadequate to determine these eases.
The strong cases in favor of the servant are, in England, Hoehster vs. De La Tour, 2 El. & B., 678, and K. vs. Raschen, 38 L. T., N. S., 38; and in Howard vs. Daly, 61 N. Y., 362, where, in a vigorous and able opinion,Prof. Dwight led the commission of appeals far toward the doctrine contended lor, but not sanctioned in the common pleas of New York Moody vs. Leverich and Polk vs. Daily, 14 Abb. P., N. S.
The reasoning; of the court on the Illinois case (8 Cent. L. L, 378) may be well indicated in these brief extracts. The appellee has averred in his declaration, ability, readiness and offers to perform, and his undertaking being an [194]*194entire one, it was incumbent on him to make the averment and support it by proof. (Badgley vs. Heald, 4 Gilm., 64; Swanzey vs.
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Opinion by
Handley, P. J.
The plaintiff commenced his action of ejectment against the defendant,and obtained judgment for the land described in the writ, before the arbitrators, 011 the 10th of May, 1879. An affidavit was presented in term time to .Judge Hand, setting forth the non-residence of one of the defendants, and that he never employed any counsel to appear for him; that the service of the second rule in the case was not served as required by law, whereupon rule was granted to show cause why the award should not be set aside. That rule is still pending. Subsequent to all this the plaintiff commenced his estrepement action to the same number and term as that of the ejectment. The tenant in possession now moves that the estrepement be dissolved, and to sustain his motion files an affidavit, setting forth that he is the agent and tenant of the defendant, L (1 Depew; that an action of ejectment to compel specific performance of a contract for the sale and conveyance of land was commenced by the plaintiff; that there is nothing due the said plaintiff on this land; that the plaintiff has tiled no bond as required by law; that the petitioner will suffer great damages unless the estrepement be dissolved; that his crops arc liable to perish and become worthless if not gathered and harvested at once. The only question we [191]*191¡ire called upon to examine in this case is, whether the tenant in possession may harvest his crops? The statutory definition of waste in Pennsylvania is, that quarrying and mining, and all such other acts as will do lasting injury to the premises, shall be considered waste. 2 Purd. Dig. 1405, pl. 2. What shall be deemed waste may be found, according to common law, in 10 Bacon’s Abr. 422. The tenant, notwithstanding the writ of estropomont, may cut down corn, grass or underwood. Boscoe’s Actions 125, and cases cited. The cutting of an annual crop „ is not within the moaning of our statute, lasting waste or injury. It is nothing but square justice that he who sows should reap.
Motion allowed, and estrepement dissolved.
aotpx op 'Ji/cawr 7) jscistoats ijv sutzíjsmb corvrr op 7,p:/y.>vsy/j yaapa.
The assignment of the stock of a corporation to itself as collateral security for a loan, divests the title of the as-sigor so far as to prevent a sale of it under a fi. fa. against the assignor.
A shareholder in a building association, who has assigned 1ns stock as collateral security for a loan, which is also secured bj' a judgment against him, may elect, upon a sheriff’s sale of his real estate, to have the actual value of his stock deducted from the amount of the judgment before the latter is allowed to participate in the fund arising from the sale.
An attachment of the stock, after such an election,binds nothing but the defendant’s interest, if auy remains after the stock has been applied to the payment of the judgment. — Early and. Lane’s Appeal.
In an action by landlord against tenant for. -rent., the tenant, in his affidavit of defence, averred removal before [192]*192the end of his term, surrender of the lease and entry by the landlord, who made such repairs as could not hare been made while the tenant was in possession, but did not allege acceptance by the landlord of the surrender:
Held (affirming the judgment of the Court below), that talcing possession, repairing, and advertising the house to rent were all acts in the interest and for the benefit of the tenant, and did not discharge him from his covenant to pay rent. — Bruekmann vs. Twibill.
Trustees in domestic attachment are not mere ministerial officers but are clothed with extraordinary discretionary powers.
McCready vs. The Guardians of the Poor (9 S. & R. 94) explained.
It is well settled that trustees who have acted in good faith, and under the advice of counsel, are not responsible for an error of judgment or a mistake of law.
A domestic attachment was issued against A & Co. and was placed in the sheriff’s hands at 2.10 P. M.; afierifacias was issued against A by an individual creditor and placed in the sheriff’s hands at 3 P. M.; proceedings were began to test the ownership by means of sheriff’s interpleader; the trustees in the attachment were advised, however, by their counsel that there was grave doubt whether the attachment. had not been improvidently issued, and under his advice effected a compromise with the execution creditor whereby certain items of property were released by each in favor of the other:
Held, that although the property was in gremio legis at the time the fi. fa. issued, and the levy thereunder was therefore void, yet the trustees had ample discretion to make the compromise, and inasmuch as they had acted in good faith and under the advice of counsel, they could not be surcharged. — Bradley’s Appeal.
[193]*193EMPLOYEES’ EXCOSES,
In Leopold vs. Salkey, the Supreme Court of Illinois passed on the effect of a cleric’s absence from service, caused by his being arrested and imprisoned two weeks without his fault. He was under contract to serve for three years. This incident occurred early in the term,and in the busy season, so that the employer was compelled to engage another person. The action in which the question was raised was the clerk's action for damages in not continuing him in employ after his release, and after they had paid him all the compensation up to the end of his actual service, lie recovered on the trial 8500,the amount of two months’ salary. The appellate court held he was entitled to nothing, and reversed the judgment.
This question presents a branch of a larger one which has exorcised the wits of the bar and judges both in this country and in England. Fixed contracts for personal services are ordinarily peculiar in this, that while the service is long the periods for payment are usually short and numerous, and temporary inability and excuses of questionable efficacy are frequent, ¡lenco the principles which suffice to settle actions for breach of other executory contracts, such as contracts for sale of goods, often prove inadequate to determine these eases.
The strong cases in favor of the servant are, in England, Hoehster vs. De La Tour, 2 El. & B., 678, and K. vs. Raschen, 38 L. T., N. S., 38; and in Howard vs. Daly, 61 N. Y., 362, where, in a vigorous and able opinion,Prof. Dwight led the commission of appeals far toward the doctrine contended lor, but not sanctioned in the common pleas of New York Moody vs. Leverich and Polk vs. Daily, 14 Abb. P., N. S.
The reasoning; of the court on the Illinois case (8 Cent. L. L, 378) may be well indicated in these brief extracts. The appellee has averred in his declaration, ability, readiness and offers to perform, and his undertaking being an [194]*194entire one, it was incumbent on him to make the averment and support it by proof. (Badgley vs. Heald, 4 Gilm., 64; Swanzey vs. Moore, 22 Ill., 63.) Inasmuch, however, as appellants covenanted to pay for the services monthly, there could, doubtless, have been a recovery on the contract for services rendered for the month of December, 1874, after the expiration of that month, without any allegation further than that of performance of the contract by appellee during that time, but since that has been paid, and the appellee seeks a recovery only for a breach of contract arising from his not being allowed to perform his part of the contract during the subsequent month, he is bound to aver and show readiness, ability and offers to perform the contract as to the subsequent time. This is held to be the rule in Cunningham vs. Morsell, 10 Johns., 203, where Kent, C. J., carefully examines the authorities, and the Court overrules its previous decisions in Scars vs. Fowler and Havens vs. Bush, 2 Johns., 272, 387. This is approved in Thompkins vs. Elliot, 5 Wend., 496; Bean vs. Atwater, 4 Conn., 3, and McClure vs. Rush, 9 Dana, 64.
It may be conceded that the appellee was put in jail without his fault, yet this would not relieve him of his covenant to, give his whole time, attention and skill to appellant’s business. It is not claimed to have been through appellant’s fault that he was put in jail,and there is no reason, therefore, why appellant’s business should suffer in consequence of it. He might have guarded against this by an exception in his covenant, but he did not do so. The rule is, it is a good defence to ' an action on a covenant in a contract that the obligation to perform the act required was dependent upon some other thing, which the other party was to do and has failed to do. And the defence is good, although the omission of the other party to do the thing required of him was produced by causes which he could neither foresee nor control. 2 Parsons on Contracts, 6th ed., 674; Chitty on Contracts, 11th Am. ed., 1086.
There is a class of cases where a party contracting to [195]*195render personal services after part performance becomes disabled by inevitable casualty, and is thereby prevented from fully completing Ms contract, has been held entitled to recover for the services actually rendered upon a quantum meruit. Fenton vs. Clark, 1 Vt., 557; Hubbard vs. Belden, 27 Vt., 645; Dickey vs. Linscott, 20 Me., 453; Wolfe vs. Howes, 20 N. Y. 197. But these furnish no warrant for the position that the labor can, in such cases, recover upon the contract for a failure to ' pay for future services which he has been prevented from performing. On the contrary, they proceed upon the theory that the contract is discharged by the inevitable casualty, and therefore allow the party to recover simply for what he has earned. Another class of cases may be found whei’e a party attempting to rescind a contract on account of the default of the opposite party is held precluded by his acceptance of the property, labor, etc., of the opposite party.
But such cases can have no application here. In those cases it is required that it shall be in the power of the party to abandon the material ro product of labor received and rescind the contract in toto, without an abandonment of his own property. And his lailure to thus abandon them is construed as an acceptance of performance. See Eldridge vs. Rowe, 2 Gilm., 91. When neither party is at fault, the absence of the servent from the master or employer, without his consent, by whatever cause occasioned, for an unreasonable length of time, we are of opinion, authorizes the master to treat the contract as abandoned; and what, in such case, is an unreasonable length of time, depends upon the nature of the necessities of the business in which the servant is employed.
The inhabitants of Georgia must be peculiarly athletic, possibly descended from the warriors of the Trojan siege, for we find several of them indicted for throwing “rocks.” The case, however, disappoints us, for it appears that witnesses were not certain whether the missiles were “rocks or brickbats.” Plain vs. State, 60 Ga. 284.
[196]*196
TUB LOJt’GBST LA JLS U/T.
This is related to have been the famous “Berkley suit,” which lasted upwards of 190 years, having commenced shortly after the death of Thomas, fourth Lord Berkley, in the reign of Henry V., (1416), and terminated in the seventh of James I., (1609). It arose out of the marriage of Elizabeth, only daughor and heiress of the above baron, with Richard Beauchamp, Earl of Warwick,- — their descendants having continually sought to got possession of the castle and lordship of Berkley, which not only occasioned the famous lawsuit in question, but was often attended with the most violent quarrels on both sides, at least during the first fifty years or more, in the year 1469, (tenth of Edward TV.), Thomas Talbot, second Viscount Lisle, great grandson of the above Elizabeth, residing at Wotton-uirder-Edge,was killed at Nibleygreen,in a lurious skirmish between some 500 of his own retainers,and about as many of those of William, (then) Lord Berkley, (whom he had challenged to the field), who likewise headed his men; when, besides the brave but ill-fated young Lisle, (scarcely at age at that time), about 150 of their followers were slain, and 300 wounded, chiefly of the Wotton party, who fled on the fall of their leader. Lord Lisle's sisters were his heirs, and their husbands (one of whom also got the title) followed up the suit, as their descendants did after them, till down to the time of the first Jamos, when Henry, eleventh Lord Berkley, obtained a decree in favor of his claims, and got full and quiet possession of the lands and manors in dispute.
In Marshall vs. The State, 59 Ga. 154, the court say: “A man who can voluntarily shoot is capable of malice, unless he can plead some infirmity beside drunkenness. To be too drunk to form the intent to kill, he must be too drunk to form the intent to shoot.” Which is good practical doctrine, even if liable to criticism in logic and metaphysics.
E. P. Eisner, Esq., for plaintiff.
John A. Gorman, Esq., for defendants.