afterwards died: Held, that the intent of the testator was to bequeath vested interests, and that therefore the amount of the legacy to the deceased son should be awarded to his administratrix and not to the residuary legatees. Error to the Common Pleas of Lycoming County. Appeal of Cornelia R. Sproul, administratrix | of Isaac G. Sproul, deceased, from a decree of the Orphans' Court of Lycoming County confirming a report of the Auditor appointed to make distribution of the balance in the hands of Sarah S. Geddes, executrix of the will of Henry Sproul, deceased, as shown by her first and partial account as executrix. Before the Auditor apppointed to make distribution, the following facts appeared: Henry Sproul, by his will, after various devises and bequests, provided as follows: "I give to my sons, Isaac and James, $1000 each, the interest to be paid them annually by my executrix, who is to be their trustee in this bequest." Another provision of the will was as follows: "The residue of my property, real, personal and mixed, I give and bequeath to my daughters." Henry Sproul died on January 16, 1875, leaving to survive him a widow and five children. One of the legatees mentioned above, James Sproul, had pre-deceased his father, having died December 9, 1871, unmarried, intestate, and without issue. The other legatee, Isaac G. Sproul, subsequently died intestate, March 24, 1881, leaving to survive him a widow, Cornelia R. Sproul, the appellant in this case. On May 18, 1881, letters of administration were duly granted to Cornelia R. Sproul, who claimed, before the Auditor, to be entitled, as administratrix of her deceased husband's estate, to the legacy and such interest as might be due thereon under the above clause of the testator's will. The Auditor decided, however, that the testator's intention, as gathered from the whole will, was not to bequeath to his sons vested legacies. He therefore awarded the amount of Isaac G. Sproul's legacy to the residuary legatees. Exceptions were filed to this report, which were dismissed by the Court (CUMMIN, P. J.), and a decree entered in accordance with this report. The administratrix of Isaac G. Sproul thereupon took this appeal, assigning for error the decree of the Court. R. P. Allen (Malcolm Hay with him), for the appellant. Richard H. Thornton (Charles K. Geddes with him), for the appellee. March 10, 1884. THE COURT. After giving nearly all his estate to his wife and daughters and appointing an executrix, the testator in the last clause of his will makes the following bequest: "I give to my sons, Isaac and James, $1000 each, the interest to be paid them annually by my executrix, who is to be their trustee in this bequest. James, the last named legatee, predeceased his father, who died January 16, 1875, and Isaac died March 16, 1881, leaving a widow, Cornelia R. Sproul, the appellant, to whom letters of administration on his estate were granted by the Register of Allegheny County. The contention that prevailed in the Court below was that the legacy to Isaac was merely an annuity of $60; and, upon his decease, the principal from which the annuity accrued passed under the residuary clause of the will to testator's three daughters. On the other hand, it is contended that testator intended an absolute gift of the sum named to be held by his executrix in trust for the legatee, and the interest thereof to be paid to him annually. We have no doubt the latter is the proper construction of his bequest. The words, "I give to my sons, Isaac and James, $1000 each," clearly import nothing less than an absolute gift of that sum. If the additional words "the in terest to be paid to them annually by my execu- The fact that the clause under consideration is preceded by a general residuary bequest in favor of the daughters cannot in the slightest degree militate against the construction we have adopted. As was said in Willard's Estate (18 P. F. S. 327-32), the "residue" of a man's estate, in testamentary language, means whatever is not specifically devised or bequeathed, and in whatever part of a will it may be found, it ought to have that meaning, unless the whole will, taken together, clearly shows it was not so intended. If a testator should begin his will with a bequest or devise of all his residuary estate, and then proceed to make various bequests and devises, it would not vary the proper construction of either. The argument advanced by appellees, that because testator gave nearly the whole of his estate to his wife and daughters it may be inferred he intended to give his son Isaac merely an annuity of $60, by way of remembrance, scarcely arises to the dignity of a petitio principii. We see nothing to create a doubt as to testator's intention to give Isaac an absolute legacy of $1000; but if such doubt did exist, it should be solved in favor of the legatee. As was said by Mr. Justice LowRIE in Sinith's Appeal (11 Harris, 9): "In cases of doubtful construction the law leans in favor of an absolute rather than a defeasible estate; of a vested rather than a contingent one; of a primary rather than a secondary intent; of the first rather than the second taker, as the principal object of the testator's bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible." It follows from what has been said that appellant is entitled to participate in the fund for distribution to the extent of $1000, and interest thereon from the date to which the interest was paid to her intestate. Decree reversed at costs of appellees, and record remitted with instructions to distribute the fund in conformity to the foregoing opinion. Opinion by STERRETT, J. July, '83, 90. J. H. M. January 18, 1884. Boswell v. City of Philadelphia. Assessments-Water-pipes-City of Philadelphia -Voluntary payment-Recovery of assessment paid under protest. Where houses are erected on a private street in the city of Philadelphia, which has not been adopted by the city, and in which no water-pipe has been laid, the granting of a permit to connect with a water main on an adjacent street is discretionary with the Water Department, and may be prohibited, unless a frontage assessment is paid for water-pipe to be afterwards laid when the street is dedicated. Where under such circumstances plaintiff paid the frontage tax under protest, and afterwards testified that the money was paid as a deposit, to be held in case the city should by ordinance direct a pipe to be laid : Held, this was not such an involuntary payment as would entitle plaintiff to recover the money back, until at least the city has had a reasonable time to lay down the pipe, and that demand should have been made to have the same laid down prior to the institution of a suit to recover the sum paid. Error to the Common Pleas No. 4, of Philadelphia County. Case, by Walter Boswell against the city of Philadelphia, to recover back an assessment paid under protest by him for a water-pipe. The facts as stated in the opinion of the Supreme Court were as follows: "In 1879 the then owner of a newly-erected row of houses on Albemarle Street (a small street not as yet accepted by the city, and upon which no water-pipe had as yet been laid), applied to the Chief Engineer of the Water Department for permission to connect by a private pipe with the public water main on Ellsworth Street, and he refused to grant the necessary permit without prepayment of the frontage tax. In the face of that refusal, and without the knowledge or consent of the Water Department, the owner of the houses caused a private pipe to be laid and connected with the Ellsworth Street main, and thus supplied his houses with water, which he and his tenants continued to use, without payment or tender of water rent, until he was duly notified to take out a permit and pay frontage tax within five days, or proceedings would be instituted to enforce the ordinance forbidding the making of any connection with public or private pipes without a permit, etc. On receiving the notice, a check for arrears of water rent was delivered to the Registrar of the Water Department; but on the following day it was returned, with notice that it was not accepted because of the refusal of the owner of the property to comply with the regulations of the department. No further attention having been paid to the first-mentioned notice within the time therein named, the water was turned off, and a day or two thereafter, upon payment by plaintiff of the water rent in arrear and the frontage tax, the connection was restored, the paytiff's agent declaring that he made it under ment being accompanied by a note from plainprotest. He afterwards testified that it was paid as a deposit, to be held in case the city should then brought suit against the city to recover back by ordinance direct the pipe to be laid. Plaintiff the amount of frontage tax so paid under protest." The Court below directed a nonsuit to be en- Frank P. Prichard, for plaintiff in error. citizens for a stipulated amount, and denied to Girard Life Insurance Co. v. Philadelphia, 7 N. 393. tax was illegally demanded and insisted on as a condition precedent to the granting of a permit, to which he alleged he was entitled, but that, by force of the circumstances in which he was placed, he was compelled to pay, and did involuntarily pay it under protest as an unauthorized exaction, and without any understanding that the city should, under any circumstances, retain the money. [Here follows the statement of facts cited above.] Red Star Stp. Co. v. Jersey City, 16 Vroom, 246. The ordinance of January 29, 1855 (West's Dig., 501), providing that "no permit for the use of water should be issued, unless at the time of the application the person shall exhibit the receipt there is no controversy in regard to it; but it is The water rent having been voluntarily paid, of the proper officer for the amount of the assess-contended that the frontage tax was illegally dement for the expense of laying the water-pipe on manded, and, having been involuntarily paid the premises," clearly refers to where there has been a legal assessment for pipe actually laid. The payment was not voluntary, since it was extorted by stress of urgent necessity. Addison on Contracts, 1041. Chitty on Contracts, 939. Parker v. Great Western Railroad, 7 M. & G. 253. Lewis v. Hammond, 2 B. & Ald. 206. Ripley v. Gelston, 9 John. 201. Railroad Co. v. Commissioners, 8 Otto, 541. under protest, the plaintiff, by whom sixteen of the houses had been previously conveyed, and by whose check the frontage tax was paid, is entitled to recover the amount thus illegally exacted. Testimony was introduced for the purpose of proving these allegations, and the question is, whether, upon the plaintiff's evidence, the jury would have been warranted in rendering a verdict in his favor. If not, the judgment of Union Ins. Co v. City of Allegheny, 40 Leg. Int. 68. nonsuit was rightly entered, and of course there Philadelphia v. Cooke, 6 Casey, 56. Tenbrook v. Philadelphia, 7 Phila. 105. Lehigh Coal and Nav. Co. v. Brown, 4 Out. 338. was no error in refusing to take it off. It is very clear that, under the circumstances, the owner of the property had no reason to complain of the William Nelson West, City Solicitor, for de-action of the Water Department in shutting off fendant in error. The city is not obliged to furnish a citizen water through such pipe as he chooses to lay. City v. Cooke, 6 Casey, 56. A payment made voluntarily, without restraint, even where the demand is unfounded, or a payment made in ignorance of the law, cannot be recovered back. his supply of water. If he had a right to connect with the water main without prepayment of the frontage tax, and a permit to do so was unjustly refused, he should have asserted his right in an appropriate manner, instead of surreptitiously making the connection. It is scarcely necessary to say that the rules and regulations of the Water Department are essential to its good order and government, and should not be violated with impunity. The houses in question were erected on a private street which had not been adopted by the city, and on which no water pipe had then been laid. Under these circumstances, the granting of a permit to connect with the water main on an adjacent street was discretionary with the Water Department; but, conceding, for the sake of argument, that it was the duty of the department to grant the permit without prepayment of the frontage tax, would the jury have been warranted in finding that it was paid involuntarily, and under circumstances entitling the plaintiff to recover the amount paid? We think in case the city should, by ordinance, direct the transcript of a judgment obtained before a pipe to be laid." This is not inconsistent with justice of the peace. Subsequently the justice the statement contained in his letter, and both filed an amended transcript wherein the name o should be considered together. The only infer- defendant "Sarah Christ" was amended so as to ence that can be fairly drawn from this part of read "Mary Christ. On motion of the justice the evidence is that the plaintiff, protesting the Court allowed the plaintiff to file the amended against the right of the department to demand transcript. Subsequently the defendant, Mary the frontage tax before the pipe was laid, paid Christ, obtained a rule to show cause why the the money as a deposit applicable to the payment judgment entered on the transcript should not of the frontage whenever the pipe was ordered be stricken off. This rule the Court made absoto be laid. If this be so-and the jury could lute on the ground that the justice had exceeded not have found otherwise-the city was at least his authority in filing the amended transcript. entitled to a reasonable time within which to Plaintiff thereupon took this writ, assigning for comply with the terms on which the money was error the action of the Court. deposited, and demand should have been made before bringing suit. The pipe was actually laid within a few days after suit was brought, and from it plaintiff's houses have been supplied with water. In his answer to this, the technical objection is made that the pipes were laid without the passage of an ordinance directing it to be done. But, as already observed, the plaintiff proved by his principal witness, that the money was paid as a deposit, to be afterwards applied in a particular way, and without waiting a rea Robert S. Cope, for plaintiff in error. The filing of the transcript did not remove the record or the judgment. Unless appealed from, or removed by certiorari, it was absolute, final, and conclusive. It was not before the Common Pleas and could not be struck off by that Court. Dailey v. Gifford, 12 S. & R. 72. It is well settled that on an appeal from a sonable time or making any demand, he prema- judgment of a justice of the peace the Court of turely brought suit. There was no error in Common Pleas may amend the record by changsustaining defendant's objection to the questioning or adding names of parties. While the cases propounded to one of the witnesses. Neither of the assignments of error is sustained. Judgment affirmed. Opinion by STERRETT, J. MERCUR, C. J., dissents from so much of the opinion as declares the money was not paid under protest. The assumed purpose of the payment was not communicated to the department so as to change the effect of the letter. GREEN, J., absent. Jan. '84, 348. Gehman v. Christ. J. P. K. remain within their jurisdiction the justices must Druckenmiller v. Young, 3 Casey, 97. Schenley v. Commonwealth, 12 Casey, 55. Penna. etc. R. R. Co. v. Bunnell, 31 Smith, 414. W. E. Dorset, for defendant in error. The various statutes allowing amendments all either refer to "courts of record" or are expressed in such language as to exclude cases before justices' courts. Title "Amendments," Brightly's Purdon, 68. It follows that when the justice undertook to make changes in his record after he had entered March 11, 1884. judgment against Sarah Christ, and issued execution against Sarah Christ, returned "no Practice-Justice of the peace-Appeal-Cer-goods," his proceedings were destitute of legal tiorari-Judgment. and could be set aside on motion by any one interested. Kunkel v. Snoddy, 1 Pearson, 37. March 31, 1884. THE COURT (after stating the facts as above). In this case the learned Court below, upon a petition of the defendant and a rule to show cause, struck off a judgment entered upon a transcript from a justice. The ground upon which this action was taken was that the justice had exceeded his authority in amending the record of the judgment before him by changing the name of one of the defendants from Sarah to Mary. The latter who was the wife of the other defendant was the person who was actually served with the original process, though by the name of Sarah. When the amend- this Court in Boyd v. Miller (2 P. F. S. 431). ment was made she had notice by a rule, duly In that case, as in this, the judgment before the served upon her, to show cause why the amend- justice was against a husband and wife, and the ment should not be made. She choose to disre-wife sought relief. She had entered an appeal, gard the rule and made no response to it. She but had not entered it in time, and it was held took no appeal or certiorari from the decision of she had lost her right to redress because the the justice making the amendment, but after a Common Pleas had no power to open the judgtranscript of the amended judgment had been ment. It does not appear what the wife's comentered in the Common Pleas moved to strike off plaint was as to the judgment of the justice, but the judgment entered upon the transcript. whatever it may have been her opportunity was Whether the justice was in error or not in amend-intermitted by her neglect in entering her appeal, ing the record is immaterial, since if he was, the and any other redress was without the power of remedy to correct it was by appeal or certiorari, the Common Pleas. We cannot perceive any and that mode not having been employed the defendant was without redress. As we understand the decided cases this is their meaning. Thus in Dailey v. Gifford (12 S. & R. 72), we said: "The defendant might have appealed and carried the causes to the Court of Common Pleas, or they might have been removed to that Court by a certiorari, after the filing of the transcript; but the Judges of the Common Pleas could take no cognizance of the judgments for the purpose of reversing them, unless brought before them by appeal or certiorari. We cannot conceive, therefore by what authority they could order these transcripts to be struck off the docket, which was, to several purposes, depriving the plaintiff of the benefit of the judgment. It is the opinion of this Court that no such authority existed." We do not understand this decision to have been based upon any consideration of the difference in principle between these cases and the one at bar. In all alike the question is as to the power of the Common Pleas to reach and control the judicial action of the justice, except in the exercise of its appellate jurisdiction. The granting of an amendment being a part of such action must be corrected, if erroneous, in the same manner as other erroneous actions must be corrected. Judgment reversed, and record remitted with direction to reinstate the judgment. Opinion by GREEN, J. J. D. B. Jr. character of the acts done by the justice in Common Pleas—Equity. entering the judgments, but solely upon the idea that the Common Pleas had no power to strike off the transcript. It was held, without any reference to the character of the action of the justice, that the remedy was by appeal or certiorari. So in the present case these remedies were open to the defendant and they are exclusive. The granting or withholding an amendment is a judicial act done in the due proceeding of a cause. If it is wrongly done, the error may be corrected in the ways provided by law, but the party injured is limited by those methods. In the case of Lacock v. White (7 Harr. 495), the question was as to the power of the Common Pleas to open a judgment entered upon a transcript from a justice, and it was held that the power did not exist. We said on page 497: "It may safely be laid down as the rule in this subject that a judgment rendered by one tribunal cannot be set aside, and the cause heard again by another, though a superior one, except in the strict exercise of appellate jurisdiction." The reason given is fundamental, and touches the power of the Common Pleas to intervene except in the appointed methods for exercising its appellate jurisdiction. The same consideration induced the decision of C. P. No. 3. September 16, 1884. Harper v. The Greenmount Cemetery Co. Bill in equity, praying for an injunction to restrain the company defendant from using a lane over the plaintiff's ground as a passage way to their cemetery; from moving the fences of said lane, building a wall along its sides, sodding the banks, laying a board-walk, putting up signs, making any change thereon, and, also, from using it as an entrance to an additional tract adjoining and partly since incorporated into the land of the cemetery company. The defendant's answer having set up, inter alia, an allotted right of way in them through the said road, the case was referred to a Master, who reported the following state of facts: One Michael Baker, died prior to 1780, seised |