Negligence will not be presumed. The pre-arrangement for keeping the goods until called sumption is that defendants, either as ware- for by the plaintiff, and thenceforth the liability housemen or carriers, did their duty. The bur- of the defendant was that of a bailee for hire. den of proving negligence is upon the party It was the same as if the passenger had not called alleging negligence. Clark v. Barnwell, 12 How. 272. R. R. Co. v. Reeves, 10 Wallace, 176. Trans. Co. v. Downer, 11 Wallace. 129. The defendants had completed their duty as common carriers and were nothing more than gratuitous bailees, and were therefore only liable for gross negligence, of which there was no evidence. Hutchinson v. Carriers, sec. 357. Richardson v. Goddard, 23 Howard, 28. Shenk v. Steam Propeller Co., to Sm. 109. The facts were within defendant's knowledge, and the injury was of such a nature that it does not usually occur without negligence on the custodian's part. Collins v. Bennett, 46 N. Y. 490, 494. Lamb v. Cam. & Amboy R. Tr. Co., Id. 271, 279. The cases cited by plaintiff in error do not touch this case. All his cases are those where the liability was limited by contract. The rule should not be extended. for his baggage within a reasonable time. A passenger must be allowed a reasonable time after arrival of his baggage to call for and take it away, and during such time the carrier continues responsible according to the strict rule of law relating to common carriers. When the liability as carrier ceases he holds the baggage under a modified liability. His duty to exercise care over the property remaining in his hands grows out of the original contract, and he is, therefore, bound to exercise ordinary care in keeping and preserving it, the original contract, though modified in respect to the degree of liability assumed from a reasonable time after the arrival of the goods, being understood to contemplate a possible delay, and to cover the delivery. (Edwards on Bailments, 90; Hutchinson on Carriers, 708, 712; Burnell v. New York Central R. R. Co., 45 N. Y. 184.) Where the contract is to carry goods by sea from port to port, it is the duty of the consignee to receive the goods out of the ship or at the wharf. If they are not accepted by the consignee the carrier should put them in a place of safety, and when he has so done he is no longer liable on his contract of affreightment. (Richard v. Goddard, 23 How. 28.) So, a passenger should call as soon as practicable for his baggage, but if he does not, the carrier is bound to care for it or send it to a fit store-house. The arrangement between the plaintiff and defendant must be considered in connection with their original contract. There was no actual delivery of the property to the plaintiff; on the contrary, the defendant promised to keep it at November 10, 1884. THE COURT. The par- the instant when delivery might have been tenties agree that compensation having been paid dered. The learned Judge of the Common Pleas for extra weight, the goods were carried as pas-rightly ruled that there was no such delivery as senger's baggage and properly placed on the pier relieved the defendant from the care of the propof the Inman Line in New York, and that they erty, and that from the time of the promise the were examined in the plaintiff's presence by the property remained in the defendant's keeping officer of customs, after which at the request of under modified liability, as that of a warehousethe plaintiff the defendant promised to keep them until demanded. They differ as to some of the terms of the arrangement; one alleging that on the same day the defendant was to move the goods to the National pier and put them under lock and key, and that nothing was said about the risk; the other, that nothing was said about moving the goods, and that the permit to leave them was expressly at the plaintiff's risk. The jury were instructed that if they found the facts as alleged by the defendant, the law in relation thereto was correctly stated by the defendant's counsel. Upon the facts as testified by the plaintiff, it is obvious that the defendant's responsibility as common carrier ended with the man. Hence, the third assignment of error is not sustained. Nor is the first. The declaration, it is true, sets forth the contract of the defendant as a common carrier, and though it is not liable as an insurer of the goods, its modified liability grows out of that contract. A common carrier is regarded as an insurer of the safety of the goods against all losses except such as may be caused by the act of God or the public enemy; and exceptions may arise from the fault of the owner, or from some inherent defect in the goods, or upon an express contract that the carrier shall not be liable for loss from a specified cause. In all such cases the burden is upon the carrier to establish the fact which will bring his that an accidental fire destroyed the pier and all the goods thereon including the plaintiff's; and if it did, there not being evidence that the fire was caused by the defendant's neglect, the verdict should have been for the defendant. But the fact was for the jury, and therefore the defendant's fifth point was properly refused. Judgment reversed and venire facias de novo awarded. case within an exception to the rule. When the | Even if the circumstances in evidence were such carrier has shown that the loss was occasioned by as to leave it doubtful whether the fire was caused a cause from the liability of which he is protected by the defendant's negligence the plaintiff could by law or by contract, it will not be presumed not recover. The jury must find the fact of that his negligence contributed to the loss, but negligence from evidence, and if the proofs leave the presumption will be, in the absence of proof the question in doubt, the burden being upon the to establish his negligence, that the carrier has plaintiff, he has failed to establish his right. done his duty; and if it has been shown that the Hence the prayer for instruction ought to have loss resulted from such cause, without also having been affirmed, namely that the defendant is not shown that the carrier was negligent, the burden liable for the loss of the goods by fire unless the of proving his negligence devolves upon the plaintiff proves, to the satisfaction of the jury, plaintiff. This rule seems to be supported by a that the fire was occasioned by the neglect of the decided preponderance of authority. (Hutchin- defendant. The plaintiff rested upon proof of a son on Carriers, 765-767.) It has been estab- prima facie right. This was repelled by oral lished in New York and Pennsylvania, and testimony which undoubtedly satisfied the jury considered as if applicable to the case of a bailee who receives goods to store for a compensation. Where a carrier, by contract, was exonerated from a loss by fire, he was held liable only as a bailee for hire and it was decided that the bailor could not recover upon simple proof of the destruction of the goods by fire, he must go farther and show that the loss was caused by the negligence of the bailee. (Lamb v. Camden & Amboy R. & Tr. Co., 46 N. Y. 271; Farmham v. Camden & Amboy R. Co., 55 Pa. St. 53.) In the latter case it was said, "that where a bailee accounts for a loss in a way not to implicate himself in a charge of negligence, this is a July, '83, 43. sufficient defence, unless the plaintiff proves negligence." The plaintiff contends that these and like cases are where the liability was limited by contract, and that the rule should not be extended. But such limitation was held to operate no farther than to put the carrier in the place of a bailee for hire. There is no reason The Courts of Common Pleas of this Commonwealth why the rule should not apply to all bailees who have no inherent authority to strike off, vacate, or satisfy a are only liable for the loss of goods when the loss judgment or lien regularly entered. Their jurisdiction at is caused by their negligence, especially to carri-off of judgments or liens improvidently or irregularly common law extends only to the vacating and striking ers who may become subject to a modified liability entered. The Act of March 27, 1865, authorizing them after the termination of their strict liability as to direct satisfaction of judgments which appear of record carriers. to have been satisfied by execution; and the Act of March 14, 1876, granting them the same authority in cases of actual payment of judgments, do not authorize them to vacate or in any way interfere with regularly and properly entered mechanics' liens. For they are not judgments, but specific liens under the statute, and must be proceeded on in statutory form. Opinion by TRUNKEY, J. J. M. S. May 26, 1884. Stoke & Co. v. McCullough. Mechanics' liens-Common Pleas-Striking off The defendant prayed instruction, "That if the jury find that the goods in question were discharged from the steamship and delivered to the plaintiff on the pier or wharf, and that said goods were subsequently left upon said pier, in the custody of the defendant's employés to await the convenience of the plaintiff, and that the same were destroyed by fire, then the plaintiff is not entitled to recover." As already remarked we Scire facias, sur mechanic's lien. The record are of opinion that the testimony did not war-showed the following :rant a finding that the defendant was a gratuitous bailee, and, therefore, this prayer was properly refused. Error to the Court of Common Pleas of Blair County. 1881, March 16. Writ returned "served." 66 66 March 29. April 26. Plea in abatement filed. In showing that the goods were destroyed by a fire which burned property of the defendant, Aug. 31. Argued and plea in abatement susas well as of the plaintiff, the plaintiff did not of extra work, and omitted work, proceedings to obtain tained to this extent, as to disputes concerning the value show circumstances that warranted a finding that judgment thereon are suspended until after the event the fire was caused by the defendant's negligence. [of arbitration or attempt to arbitrate. (The arbitrators found for defendant.) as to the value of the extra and omitted work, or July 24, 1882. On petition of defendant, rule granted to ascertain the value thereof, according to the on claimant to show cause why lien should not be satis-method mentioned in the agreement, on August fied; under this rule depositions were taken. January 15, 1883. Plaintiff's answer filed, and deposi tions taken. March 28, 1883. Argued and rule made absolute ex cept as to costs on lien. The other facts are fully set out in the opinion of the Supreme Court. The plaintiff thereupon took this writ of error, assigning for error the order of the Court directing plaintiff to satisfy mechanic's lien without trial by jury as to disputed facts. Alexander & Herr, for plaintiffs in error. The decree dismisses a suit without giving plaintiff a chance to have his rights tried by due course of law. Banning v. Taylor, 12 Harris, 289. The powers of the Court in striking off liens are limited to questions of law arising from the record, and do not extend to matters of fact dehors the record. Frick & Snyder v. Gladdings, 10 Philadelphia Re ports, 79. Harper's Appeal, 4 WEEKLY NOTES, 49. A. V. Dively, for defendant in error. Snodgrass v. Gavitt, 4 Casey, 221. 66 31, 1881, further proceedings on the scire facias, were suspended until after the event of an arbitration or attempt to arbitrate" under the clause above quoted. Arbitrators were thereupon chosen, and their award was made July 10, 1882, in the following form: "We, the undersigned arbitrators, chosen under and by virtue of section five of articles of agreement, between above parties, do say that after being first severally sworn or affirmed, to perform our duties impartially and with fidelity, under the provisions of said section five of articles of agreement, we met the above, on the 19th day of June, 1882, and by continuance on subsequent days, and after hearing the parties, their proofs and allegations, in accordance with the purpose of our appointment, do award, in favor of D. G. McCullough, fifty-nine and seventy one-hundredths dollars, with fourteen dollars costs, being one-half of costs of arbitration." On the 24th of July, 1882, upon the defendant's petition, setting forth the finding of the arbitrators, the Court awarded a rule upon the plaintiffs, to show cause why the mechanic's lien should not be satisfied. An answer was filed, re-depositions taken on both sides, and the case fully considered upon the rule. Upon argument the rule was made absolute; this action of the Court, summarily ordering the satisfaction of the lien, is the principal error assigned. October 6, 1884. THE COURT. A mechanic's lien was entered by William Stoke & Co., the plaintiffs, for work and labor done, in the construction of a dwelling-house for D. G. McCullough, the defendant, under the terms of a written agreement between the parties dated May 2, 1879. The plaintiffs' claim was for $4562.50, the full contract price, and also for extra work to the amount of $570.95. It is admitted that the $4562.50 has been paid, the present contention arises out of the claim for extra work. According to the agreement, all disputes concerning the value of "extra work," and "work omitted," were to be settled by a method provided therein, as follows: "Should any dispute arise, respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and conclusive. But should any dispute arise, respecting the true value of the extra work, or of the work omitted, the same shall be valued by two competent persons, one employed by the owner and one by the contractor, and those two shall have power to name an umpire, whose decision shall be binding on all parties." On March 15, 1881, a scire facias issued upon the lien, and the parties having failed to agree, The lien was regular upon its face, at least no irregularity is alleged against it. If the claim had been substantially defective, the Court, upon special plea, demurrer, or upon mere motion, perhaps might have stricken it off. But the order of the Court was here made upon the proof of payment, a fact alleged on one side, denied on the other. The award may furnish evidence, proper under the plea of payment, but an award thus made is merely evidence, it is no part of the record, it depends for its validity upon a variety of considerations which must appear by oral proof. Our attention has not been directed to any general statute which invests the Courts with power summarily to satisfy or discharge a mechanic's lien, and we find no local statute applicable to such lien in Blair County. By the provisions of the Act of 27 March, 1865 (Pamph. Laws, 52), authority was given to the several Courts of Common Pleas, throughout the Commonwealth, to direct satisfaction to be entered on such judgments, obtained therein, as should appear by the record to have been fully paid, under execution issued thereon; and by the more recent Act of March 14, 1876, the same Courts were authorized to decree the satisfaction of any judgment, in case of actual payment. The Courts have always had power to strike off an irregular judgment, or a decree improvidently entered, but no power existed at the common law, to strike off, vacate, or satisfy a judgment regularly entered. (King v. Brooks, 22 P. F. S. 363; Reynolds v. Barnes, 26 P. F. S. 427; Horner v. Hower, 3 Wr. 126; Breden v. Gilliland, 17 P. F. S. 34.) Until after the passage of the Acts above referred to, no such power existed. But a mechanic's lien is not a judgment until judgment be entered upon it, the claim is a specific lien under the statute, and the Court has no power over it, except in the form provided by statute. A scire facias is the legal means of its enforcement, and either party may oblige the other to come to trial. If no scire facias be issued, the defendant may by rule proceed as if a scire facias had issued. In the case at bar, however, a scire facias had been regularly served, whether or not the claim had been paid and the debt discharged was a question of fact, which could only be determined by a jury. The award, its validity and effect are matters which can only be considered at the trial of that issue. They are not properly before us now. If we had the power, we have not the means of determining the matters in controversy between the parties; the evidence upon which the order of the Court is based is no part of the record, but in the suit still pending all proper matters of defence can be properly pleaded and proven. The order and decree of March 28, 1883, is reversed and the mechanic's lien is reinstated. Opinion by CLARK, J. July, '83, 172. H. L. N. January 28, 1884. Wistar v. Scott. Will-Devise-" Male issue"— Construction. Where the term "male issue" is used in a devise as descriptio personarum, and is restricted to such as shall be living at a specified time, it is a word of purchase, and embraces all male lineal descendants, of whatever generation, in being at the time specified, unless a contrary intention clearly appears from the context. Held, further, that under said devise all male lineal descendants of A. of whatever generation living at the their descent from A. through males or females, were endetermination of the said life estate, whether tracing titled to share per capita in said real estate. Held, therefore, that the said two sons and four grandsons were each entitled to one-sixth of said real estate. Error to the Common Pleas No. 1, of Philadelphia County. Ejectment, by John M. Scott, Lewis A. Scott, Jr., and Alexander H. Scott, the said Alexander and Lewis A. Scott, Jr., being minors, and suing by their guardian Lewis A. Scott, against Richard Wistar, William Lewis Wistar, and others, tenants in possession of said Richard and William Lewis Wistar, for certain premises situate in the city of Philadelphia. Plea, not guilty. The following case stated was agreed upon by the parties: All parties to the action claim through and under Richard Wistar, late of the city of Philadelphia, who died in the month of June, 1821, seised in fee simple of the real estate and premises described in the writ of ejectment in this case. The said Richard Wistar left his last will and testament in writing, dated the 24th day of February, 1816, with a codicil thereto, dated the 16th day of January, 1819, both duly proved at Philadelphia on June 25, 1821, and registered in the office of the Register of Wills for the city and county of Philadelphia. That part of the will which gives rise to the present controversy reads as follows: "Item. I do hereby give and devise unto my said daughters, Catharine and Sarah, all that my lot or piece of land called Prospect Hill, containing about six acres and a half, and all the buildings and improvements thereon to hold to them for and during all the term of their natural lives and the life of the survivor of them, and from and immediately after the decease of the survivor of them, I give the same unto the male issue then living of my said son Richard their or his heirs and assigns in fee, but if no such issue shall then be living, in such case I give the same unto all the children of my said daughters Catharine and Sarab, and my said son Richard, their heirs and assigns in equal parts according to the number of them." The said testator's son, Richard, married Hannah O. Lewis, June 23, 1824. He survived his said wife, and died the 3d day of November, 1862, leaving five children born to him of said A testator, after devising certain real estate to his two daughters for life and the life of the survivor of them, gave the remainder "to the male issue then living of my son A., their or his heirs and assigns in fee," and in de-marriage, namely:fault of such issue, then "unto all the children of my said daughters and my son A. in equal parts.' A., who was unmarried at the date of testator's death, married subsequently thereto, and died, leaving surviving him at the time of the termination of the life estate two sons, and four grandsons, the latter being sons of A.'s daugh ters: Held, that the words "male issue," being unexplained by the context, and A. taking no estate under said will, were descriptio personarum and words of purchase. 1. Sarah Wistar, who first married Dr. Joseph Hopkinson, who died leaving the said Sarah surviving, and she has since married and is now the wife of James M. Gillilan. 2. Rachel L. Wistar, who married Alexander E. Harvey, and she and her husband are both living. 3. Richard Wistar, one of the defendants. 4. William Lewis Wistar, another of the de- | leaving no issue, but leaving a widow, Lillie fendants. 5. Fanny A. Wistar, who married Lewis A. Scott; both she and her husband are still living. Catharine Wistar and Sarah Wistar, daughters of the said testator, to whom he devised by his will an estate in the aforesaid premises for their joint lives and to the survivor for her life, as therein expressed, are both dead without issue and unmarried. The said Catharine Wistar died in the year 1822, leaving her sister, Sarah Wistar, surviving, and the said Sarah Wistar died on the 21st of September, 1866. The said devisees for life held possession of the said premises during their joint lives, and the said Sarah, as the survivor of them, held sole possession thereof after her sister Catharine's death until her the said Sarah's death. At the death of the said testator's daughter, Sarah Wistar, there were in being the following named sons and grandsons of Richard Wistar, the son of the testator, to wit: 1. Richard Wistar, born December 14, 1829. 2. William Lewis Wistar, born March 25, 1831. [The above-named Richard Wistar and William Lewis Wistar are two of the defendants, and are the only sons of the said testator's son Richard.] 3. Richard W. Hopkinson, born July 21, 1862. [The last named was a grandson of the said testator's son Richard, being the child of said Sarah Hopkinson (born Wistar), a daughter of said testator's son Richard; which said Sarah married Dr. Joseph Hopkinson, by whom she had issue this son Richard W. Hopkinson above named. The said Joseph Hopkinson, the father of said Richard, died, leaving his said wife surviving, who has since intermarried, and is now the wife of James M. Gillilan.] 4. John M. Scott, born September 19, 1858, one of the plaintiffs. 5. Lewis A. Scott, Jr., born January 30, 1864, another of the plaintiffs. 6. Alexander H. Scott, en ventre sa mere, at the death of testator's daughter, Sarah Wistar, and born December 25, 1866, the other of the plaintiffs. Hopkinson, and leaving his mother, the said Sarah Gillilan (born Wistar), surviving. All the others of the male descendants as above designated of said testator's son Richard, who were living at the death of said testator's daughter, Sarah Wistar, are still living. The above-named Rachel L. Harvey, wife of Alexander E. Harvey, and a daughter of said testator's son Richard, had issue one son, namely, Clifford Harvey, who was born alive on the 20th day of March, 1866, and who died on the following day, March 21, 1866. The above-named Fanny W. Scott, wife of Lewis A. Scott, and daughter of said testator's son Richard, had issue one other son, in addition to the plaintiffs above named, namely, Richard W. Scott, who was born on the 21st day of October, 1859, and died September 1, 1860. The defendants, Richard Wistar and William Lewis Wistar, at and immediately after the death of said testator's daughter, Sarah Wistar, took possession of the aforesaid real estate under claim to be entitled to the whole thereof under the limitations and provisions of the said testator's will, and have ever since, by themselves and by tenants holding under them retained the exclusive possession thereof, and taken as well the rents and profits thereof as also certain damages awarded for opening public streets through the same; and have paid the taxes and certain municipal charges thereon. No suit by any one claiming under the abovenamed testator has ever been brought contesting the right of the said defendants, Richard Wistar and William Lewis Wistar, to such exclusive possession until the present action was brought. The other defendants are parties who claim under them, the said Richard Wistar and William Lewis Wistar, and are in actual possession of parts of said premises by lease, demise, or grant from them only. If the Court, under the facts above stated, is of opinion that the plaintiffs, or any of them, are entitled to recover from the defendants any share or portion of the real estate above mentioned, then judgment is to be entered in favor of said plaintiffs, or such of them as shall be decided to be so entitled to recover, that they have and recover from the defendants such share or shares, [The above-named John M. Scott, Lewis A. Scott, Jr., and Alexander H. Scott, are grand-portion or portions of the said premises as the sons of the said testator's son Richard, being the children of Fanny W. Scott (born Wistar), a daughter of the said testator's son Richard, which said Fanny married Lewis A. Scott, Esq., by whom she had issue the three male children last above named, living at the death of said testator's daughter Sarah Wistar.] The above-named Richard W. Hopkinson died intestate on the 30th day of December, 1881, Court shall adjudge of right to belong to such plaintiffs. But if the Court shall be of opinion that neither the plaintiffs, nor any one or more of them, are entitled to recover any share or portion of the aforesaid real estate, then judgment to be entered in favor of the defendants. costs to follow the judgment, and any party or parties, as aforesaid, to be entitled to a writ of error. The |