uphold assignments of property to be acquired in the future; the reason being twofold: "First, to allow such transfers would be to violate the rules against maintenance and champerty; and secondly, because there could be no valid sale unless the thing to be sold was in rerum natura and under the immediate control of the vendor." The first case wherein the principle of enforcing assignments of property to be acquired in the future was thoroughly discussed seems to be that of Holroyd v. Marshall, 10 H. L. Cas. 209, which decided that as soon as the property comes into existence the assignee is entitled to have immediate specific performance of the contract to assign, and the assignor will hold it in trust for the assignee. Under this principle the cargo of a ship to be acquired on a voyage was held assignable, and the fleece of a particular flock of sheep, and even the inheritance to descend from a particular per son. However, the property must be specifically pointed out as the product of a particular ship or flock or person. Belding v. Read, 3 Hurlst & C. 961. Equity considers that as done which a chancellor would decree to be done. This presumes that a chancellor would make a decree if all the proper facts were before him; therefore in equity the element of time is eliminated from the question, but certain facts must be present before that decree can be made. The chancellor cannot supply the facts. The parties must show them to him. In this case the only facts that could have been shown to a chancellor would have been that at the time the contract was signed Woodring was working for someone else. As far as the fruits of that engagement went the chancellor would have sufficient facts before him to make a decree that McDermott was to receive the amount coming from that engagement; but when he makes a decree that McDermott is to receive money from the Lehigh Valley Railroad Company, the chancellor supplies the fact that the Lehigh Valley Railroad has come into this case. The cogent reasons resulting from public policy, as they appear in the opinion of the lower courts in this case and in the opinion of the court in Fairgrieves v. Lehigh Nav. Co. 2 Phila. 182, to which we think it unnecessary to add anything, should influence this court in refusing to extend the operation of equity powers beyond what has been decided in the cases of Mulhall v. Quinn and Jermyn v. Moffitt, supra. Per Curiam: Jacob FOLKENSON, Pl. in Err., V. EASTON BOROUGH, The Act of May 24, 1878, providing for the assessment of damages to property owners, occasioned by the change of grade of streets in boroughs, is not retroactive so as to give damages for injuries sustained prior to the Constitution of 1874. (Argued March -, Decided March 21, 1887.) ANUARY Term, 1887, No. 236, E. D. JANUA Certiorari to the Common Pleas of Northampton County, to review the action of the court in sustaining a demurrer to a petition for a jury to assess damages caused by a change of grade of a street in a borough and dismissing the petition. Affirmed. Reported below, 2. Pa. C. C. R. 511, as Beck v. Borough. The plaintiff presented his petition November 15, 1886, asking for a jury to assess damages caused by a change of grade of a street in 1871. The defendant demurred and assigned for cause of demurrer to petition that it is not sufficient in law, inasmuch as it is shown by the petition that the injury complained of by reason of the change of grade was inflicted in the year 1871; and the proceedings are therefore barred by the Statute of Limitations. The court, REEDER, J., dismissed the petition and sustained the demurrer for the reasons given in the case of Beck v. Borough of Bethle hem, the opinion in which was delivered by SCHUYLER, P. J., as follows: George Beck, the plaintiff, is, and has been since the year 1868, theowner of a house and lotat the corner of Church and Linden Streets, within the corporate limits of the defendant borough. On April 12, 1886, the plaintiff presented a petition to this court, in which he complains that the proper authorities of said borough did during the year 1872" change the grade of said Church Street, thereby causing great damage to his said house and lot, and praying for viewers to assess the damages thus sustained by him. Viewers were appointed as prayed for, and it is to their report that the present exceptions were filed by the defendant. It will be noticed that the injury complained of was, according to the petition, committed in 1872; and there is no pretense that at that time the plaintiff had any claim for compensation that could be enforced against the defendant. But the plaintiff rests his present claim for compensation on the Act of May 24, 1878, P. L. 129, Purdon, Dig. 213, which provides that "In all cases where the proper The learned judge committed no error in en-authorities of any borough *** have or may tering judgment in favor of the plaintiff below, hereafter change the grade or lines of any on the special verdict. The attempt was to as-street *** thereby causing damage to the sign that which had no existence, either sub- owner or owners of property abutting thereon stantial or incipient. There was no foundation*** the court of common pleas*** shall or contract on which an indebtedness might arise. It was the mere possibility of a subsequent acquisition of property. This is too vague and uncertain. It cannot be sustained as a valid assignment and transfer of property. Jermyn v. Moffitt, 75 Pa. 403. Judgment affirmed. appoint viewers to estimate and determine the amount of said damages, who shall make report of the same to the next term of said court; and if no exceptions be filed within ten days thereafter, the court shall confirm the same and enter judgment thereon with costs." Notwithstanding the ingenious argument of which was wrong before, by converting a claim which, although just and equitable, was (for technical reasons merely) utterly worthless into a claim of recognized legal obligation. That this is a legitimate exercise of legislative power will appear from the following citation: "The fact that a claim against a municipal or public corporation is not such an one as the law rec the learned counsel for the defendant, we are clear that this Act is retroactive. There can be but little doubt that the Act as originally framed was intended to apply to future changes of grade only, and it is more than probable that while the Act was on its passage some member of the Legislature, perhaps more concerned for his own private interests than for the rules of grammar or the rights of munic-ognizes as of legal obligation has often been ipalities, caused the word "have" to be inserted before the words "or may hereafter change. But it matters not how the word found its way into the Act. It is enough that it is there, and being there the courts are bound to give it effect if possible. Now the word "have" according to Webster, "as an auxiliary verb is used with the past participle to form preterit tenses;" and as used in the Act of 1878, it must refer to past changes of grade. Nor do we think, as contended by the learned counsel for the defendant, that the Act as thus read is an ex post facto law, within the prohibition of the Constitution. "Er post facto laws relate to penal and criminal proceedings." Grim v. Weissenberg School Dist. 57 Pa. 433. A proceeding against a borough to recover damages for the change of grade of a street is neither penal nor criminal. Nor is the mere fact that an Act is retrospective any objection to it, for there is no clause, either in the Constitution of the United States or in that of this Commonwealth, which prohibits retrospective laws. Lane v. Nelson, 79 Pa. 410. decided by courts of the highest respectability and learning to form no constitutional objection to the validity of a law imposing a tax and directing its payment ***The cases on this subject when carefully examined seem * * * to assert the doctrine that it is competent for the Legislature to compel municipal corporations to recognize and pay debts not binding in strict law, and which for technical reasons, could not be enforced in equity, but which, nevertheless, are just and equitable in their character and involve a moral obligation. To this extent and with this limitation, the doctrine is unobjectionable in principle, and must be regarded as settled. 2 Dill. Mun. Corp. 75. It remains to inquire whether the plaintiff's claim is barred by the Act of 1713, known as the Limitation Act. In the discussion of this question the learned counsel on both sides seemed to take it for granted that the decision of the question would be influenced by article XVI, S 8, of the New Constitution, which provided that " 'Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or en ments, which compensation shall be paid or secured before such taking, injury or destruction." As has already been intimated, prior to the Act of 1878 the plaintiff had no remedy. It had been decided in O'Connor v. Pittsburgh, 18 Pa. 187, and was then the law, that a munic-largement of their works, highways or improveipal corporation was not liable for damages occasioned by the change of grade of its streets. The law was held to be that way for purely technical reasons, to wit: that in changing the grade of its streets a municipal corporation acted as the agent of the Commonwealth; that the act was the act of the Commonwealth, and that the Commonwealth was exempt from coercion by action. The great judge who delivered the opinion of the court in this case deplored the necessity for the decision, and pronounced it "inequitable to injure the property of an individual for the benefit of the many." And in Re Ridge Street, 29 Pa. 395, the law as laid down in O'Connor v. Pittsburgh, was declared to be "very harsh law." Finding the law in this unsatisfactory condition, the Legislature passed the Act of 1878, which provides not only for compensation in damages for future changes of grade, but also for past changes. It must be admitted that the retrospective feature of the Act is a bungling and reckless piece of legislation; but in principle, persons who had sustained damages before the passage of the Act were as much entitled to compensation as those who at a future day might be injured in their property. By this Act the Commonwealth submits itself and its agents to the jurisdiction of the court; and this is the full import of the Act, except that it provides a more effectual form of proceeding than a common-law action. It is a mistake to say that the Act makes that a wrong which was right before. The exact converse is true, for the Act makes that right As this section provides compensation solely for injuries inflicted in the future, that is after the adoption of the Constitution, it is not easy to see what bearing it can have on a claim for compensation for injuries inflicted two years before the adoption of that instrument; nor can we see that the Act of 1878 is dependent in the slightest degree for its validity on the new Constitution. If it were, the plaintiff's claim would have to fall for the reason just given. But the power of the Legislature to make laws is absolute, in the absence of constitutional restriction; and we have been referred to no restriction that limits the power of the Legislature to pass such an Act as that of 1878. It has already been shown that the retroactive feature of that Act is not unconstitutional. As to the prospective feature of the Act it will be sufficient to refer again to O'Connor v. Pittsburgh, where Chief Justice Gibson, after lamenting the want of such an Act under the Constitution of 1838, uses the following language: "The constitutional provision for the case of private property taken for public use extends not to the case of proprty injured or destroyed; but it follows not that the omission may not be supplied by ordinary legislation." After this slight digression we return to the inquiry whether the plaintiff's claim is barred by the Statute of Limitations. While this Act, strictly speaking, applies only to common-law forms of action, yet it is the cause of action rather than the form of action which determines the applicability of the statute. Wickersham v. Lee, 83 Pa. 425. "Accordingly it has been uniformly held," says Sharswood, J., in Hannum v. Borough of West Chester, 63 Pa. 478, "to apply to proceedings in other courts, and before other tribunals than those of the common law, though the words of the statute are evidently confined to the latter; and this is merely by analogy, as has been some-feasor, but it gives him a single remedy for a times inaccurately stated, but because the true spirit and interest of the statute requires that the rule should be uniform." Further on in the same opinion the law is declared to be that "The bar of the statute is applicable, though the Legislature may provide new and special proceedings in cases, which before were remedied in the common-law forms; for it cannot be supposed that a virtual repeal of the statute was intended. The inquiry must then be, What would have been the form of action at common law, if the special tribunal and proceeding had not been adopted? If in such a proceeding there would have been a bar, it will still continue." It is true that in Hannum v. Borough of West Chester the point decided was that the statute did not apply to the proceedings in that case, which were similar in form to the present proceedings, and like them were for the assessment of consequential damages. It has also been held that the statute does not apply to proceedings to assess railroad damages. Delaware etc. R. R. Co. v. Burson, 61 Pa. 369. It by no means follows that the bar of the statute may not be interposed in proceedings under a retrospective Act of Assembly. Indeed, the principal vice in the plaintiff's argument is in the assumption that the Act of 1878 puts parties theretofore and thereafter injured by a change of grade on the same footing. This would be impossible. Finding nothing, therefore, in the form of the proceedings to prevent the application of the bar of the statute, let us next inquire whether there is anything in the cause of action which, as has been seen, is the true criterion that leads to such a result. To ascertain just what this cause of action is we must again recur to the Act of 1878 in connection with the undisputed facts: In 1872 the defendant changed the grade of Church Street, thereby causing damage to the plaintiff, whose property abutted on said street. The plaintiff is thus within the purview of the retrospective features of the Act, which provides under such circumstances for a petition for viewers to "estimate and determine whether any, and if any, how much damage such property owner may have sustained, or seems likely to sustain" by such change of grade. Borough of West Chester, applied to the proceedings for the recovery of consequential damages. Bearing in mind the distinction here indicated, the question of the application of the Statute of Limitations in a case like the present becomes easy of solution. We now know what it is that the Act of 1878 does for the plaintiff. It does not give him an infinitude of actions by converting the defendant into a continuing tort single cause of action, to wit: the price of the privilege exercised by the borough in changing the grade of Church Street. If this is the limitation placed on retrospective statutes concerning the same subject matter, a fortiori should a retrospective statute be so construed. Such being the nature of the plaintiff's cause of action, it falls easily within the equity of the Limitation Act of 1713. That Act begins to run when the right of action accrues. Barton v. Dickens, 48 Pa. 523; in the present case it began to run May 24, 1878, the date of the approval of the Act under which the proceedings were begun. The plaintiff, having failed to file his petition within six years from that date, is we think forever barred. As the benefit conferred by the Act was a mere gratuity, we do the plaintiff no injustice to hold that he must be considered as having waived it after so long a delay. There is nothing in this conclusion that is in conflict with Fegley v. Borough, 2 Pa. C. C. R. 505, decided in this court by my predecessor, Judge Meyers, the petition in that case having been filed within six years from the passage of the Act of 1878, although not until after sixteen years from the time the change of grade was made. It was in view of the decision in Fegley v. Borough that I took occasion above to speak of the Act of 1878 in its restrospective aspect as a reckless piece of legislation. I am aware that in Craft v. Borough, 2 Pa. C. C. R. 508, the decision in Fegley v. Borough, is critised as involving a "startling proposition. But it is easier to criticise the effect of that decision than to answer the argument upon which it is made to rest. As strengthening that argument I take the liberty of referring to Leasure v. Mahoning Township, 8 Watts, 552. Nor is the decision reached in the present case in conflict with Knauss v. Borough, decided by myself and not reported, the change of grade in that case having been made since the Act of 1878, which assimilates the case to Hannum v. Borough. The defendant's fourth exception is that "The Statute of Limitations is a bar to this action." Some attempt was made to show that the change of grade was made later than 1872, the time mentioned in the petition; but there is no In McClinton v. Pittsburg etc. R. Co. 66 Pa. pretense that it was made after the passage of 409, Agnew, J., speaking of such a petition as the Act of 1878. We think, therefore, that the that mentioned in the Act of 1878, says: "The exception is well taken; but exactly what dispetition, properly used, is not for the recovery position to make of it is not so clear. The Act of past damages under an unlawful entry, but provides that "If no exceptions be filed" to the for compensation for a right to be invested in the report of viewers "within ten days" after the company. Though the latter is often denomi- same is made, "the court shall confirm the nated damages, its subject is essentially differ- same and enter judgment thereon with costs, ent from the former. It is called damages only** * from which judgment either party shall in the sense of an unliquidated demand, but in its nature it is the price of a purchased privilege." We find the same thought in Hannum v. be entitled to an appeal as in other cases." What is to be done in case exceptions are filed and sustained, and whether the appeal provided is to the supreme court or to this court, in analogy to a writ of error coram nobis, are left to conjecture. In Rodgers v. Borough, 2 Pa. C. C. R. 523, the latter view, so far as the appeal is concerned, seems to have been taken by common consent. We have no precedent, bad or otherwise, to guide us where exceptions are filed. The difficulty would be increased if the exceptions involved questions of fact. Perhaps the easiest way out of the present difficulty will be to treat the defendant's fourth exception as a plea to the jurisdiction, the want of jurisdiction appearing on the face of the proceedings. The defendant's fourth exception is sustained and the proceedings are set aside. The assignment of error specified the action of the court in sustaining defendant's demurrer, that the Statute of Limitations, was a bar to the proceeding and in dismissing plaintiff's petition. Messrs. H. S. Cavanaugh and H. J. Steele, for plaintiff in error: The Act has been given a retrospective effect by all the lower courts that have so far passed upon it. Fegley v. Borough, Craft v. Borough, and Beck v. Borough, 2 Pa. C. C. R. 505, 508, 511. There can be no doubt of the right of the Legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided that no objection to them exists, other than their retrospective character. Grim v. Weissenberg School Dist. 57 Pa. 435; Lane v. Nelson, 79 Pa. 407; Hepburn v. Curts, 7 Watts, 300; Leasure v. Mahoning Township, 8 Watts, 551. The Legislature in granting the municipal charter did not make a contract such as was contemplated by the Constitution, which could not be modified by subsequent legislation. Cooley, Const. Lim. 334. Granting, however, that this Act did impair the obligation of contracts, it is clearly competent for the Commonwealth to pass a retrospective law impairing her own right. Davis v. Dawes, 4 Watts & S. 401. When on the part of the government or its subordinate agents a moral obligation to relieve its citizens exists sufficient to support a promise if the same state of things existed between individuals, the Legislature has the right to recognize the obligation and to direct its discharge. Lycoming v. Union, 15 Pa. 166; Town of Guilford v. Cornell, 18 Barb. 615; New Orleans v. Clark, 95 U. 644 (Bk. 24, L. ed. 521). The Statute of Limitations can have no application to proceedings under the Act of 1878, because the injury complained of is in the nature of a nuisance, every continuance of which is a new nuisance for which a fresh action will lie; and it can only be barred by adverse possession or user for twenty-one years. Broomall v. City of Chester, 1 W. N. C. 228; 3 Bl. Com. 220; Smith v. Elliott, 9 Pa. 345; Fell v. Bennett, 1 Cent. Rep. 409; Delaware etc. Canal Co. v. Torrey, 33 Pa. 149: Whitehouse v. Fellows, 10 C. B. N. S. 765; Holmes v. Wilson, 10 Ad. & Ell. 503; Hannum v. West Chester, 63 Pa. 475. The evident object of the Act was to provide a remedy and at the same time avoid a multiplicity of suits. Humphrey v. Irvin, 4 Cent. Rep. 685; O'Connor v. Pittsburgh, 18 Pa. 187. The Statute of Limitations does not apply because a special statutory remedy, which precludes all others, has been provided for a cause of action unknown to the common law. Wood, Limitations, § 29, 36, 39; Penrose v. King, 1 Yeates, 344; Richards v. Bickley, 13 Serg. & R. 395; Summerville v. Holliday, 1 Watts, 507; Cork & Bandon R. Co. v. Goode, 13 C. B. 824; Bullard v. Bell, 1 Mason, 243; Delaware etc. R. R. Co. v. Burson, 61 Pa. 369; McClinton v. Pittsburgh etc. R. Co. 66 Pa. 404; Hannum v. West Chester, 63 Pa. 475; Council v. Moyamensing, 2 Pa. 224; Magee v. Commonwealth, 46 Pa. 358. The statute does not apply because the injury complained of was an exercise of the right of eminent domain. A municipal corporation, invested with the right of eminent domain, being the agent of the State, was liable to damages for injuries to private property, no further than it was declared to be so in its Act of incorporation. M'Clenachan v. Curwin, 3 Yeates, 362; East Union v. Comrey, 100 Pa. 362. Prior to the Constitution of 1874 municipal corporations were held to be not liable for damages by reason of the change of grade of their streets or indeed for any consequential injury. Philadelphia & Trenton R. R. Co. 6 Whart. 25; Green v. Reading, 9 Watts, 382; O'Connor v. Pittsburgh, 18 Pa. 187. How, then, could the statute apply to a future remedy, the granting of which would depend entirely upon the grace of the Legislature. Hannum v. West Chester, 63 Pa. 475; McClinton v. Pittsburgh etc. R. Co. 66 Pa. 410. Mr.Wm.Beidelman,for defendant in error: The reasonable and proper application of the Act of May 24, 1878, seems to be that it was intended simply to provide a remedy for the infringement of the new right created by article XVI, § 8, of the Constitution of Pennsylvania, because prior to the adoption of that instrument there existed no right of action, either at common law or by statute, for the recovery of damages inflicted by a change of grade. New Brighton v. United Presby. Ch. 96 Pa. 331. Unless the Constitution by its very terms is made retrospective, it, as well as the Act of 1878, should be given prospective effect. Cooley, Const. Lim. 5th ed. pp. 76, 456. What the Legislature evidently intended by the words "have changed" was any change made after the adoption of the Constitution, and before the passage of the Act of 1878. Such a construction would make the Act consistent, not only with existing laws but with common sense also. Per Curiam: The court committed no error in sustaining the demurrer of the defendant. It certainly was not the intention of the Act of 1878 to give damages for injuries sustained prior to the Constitution of 1874. Before this time no remedy existed whereby a recovery could be had for such injuries; and we cannot assume, from the rather careless language of the Act that its retroactive power should go back of the Constitution, upon which it is based. Judgment affirmed. NEW YORK. COURT OF APPEALS. Mr. John O'Byrne, with Mr. Arthur C. Palmer, for appellant: To render a statement admissible as a dying declaration it is not enough that it appears that PEOPLE of the State of New York, Respts., the person making it was under the impression V. Peter SMITH, Appt. that death must ultimately ensue; but it is necessary that it should appear that the person was conscious at the time that death was actual imminent. Reg. v. Forester, 4 Fost. & F. 857; S. C. 10 Cox, C. C. 368; Reg. v. Osman, 15 Cox, C. C. 1; Maine v. People, 9 Hun, 113, 115; 1 Greenl. Ev. § 158; Roscoe, Crim. Ev. 31; Brotherton V. People, 75 N. Y. 161; People v. Robinson, 2 Carr. & P. 629, 631; Reg. v. Jenkins, 11 Cox, Park. Crim. Rep. 246; Rex v. Van Butchell, 3 C. C. 250; Rex v. Fagent, 7 Carr. & P. 238; Rex v. Spilsbury, 7 Carr. & P. 187; Reg. v. Megson, 9 Carr. & P. 418; Welbourn's Case, 1 East, C. L. 358; Wilson's Case, 1 Lewin, 78; Re Errington, 2 Lewin, 148; State v. Medlicott, 9 Kan. 257; Starkey v. People, 17 Ill. 20; King v. Commonwealth, 2 Va. Cas. 78, 80; Smith v. State, 9 Humph. 924; Lewis v. State, 9 Smedes & M. (Miss.) 120; Robbins v. State, 8 Ohio St. 163; Brakefield v. State, 1 Sneed, 218; People v. Evans, 4 N. Y. Crim. Rep. 1. On a trial for murder, where dying dec-ly 3. Held, further, that the admissibilty of 4. Although as a general rule the trial court should confine the preliminary examination to the facts relating to the declarant's condition of body and mind at the time, yet the inquiry will remain in each case, under its own peculiar circumstances, how far the examination should extend in order to ascertain the mental condition and belief of the deceased. But, assuming for the purpose of argument that the necessary foundation had been laid, the declaration was inadmissible in view of all that the deceased said. The same principles of law are applicable to the contradictory statement of persons in extremis as to those of a witness under oath. M'Pherson v. State, 9 Yerg. 279. The evidence would not have been admissible in an action for damages. Lambeth v. State, 23 Miss. 323; 1 Greenl. Ev. § 156, note 1; People v. Davis, 56 N. Y. 96; approved, 95 N. Y. 275; Waldele v. N. Y. Cent. etc. R. R. Co. 95 N. Y. 275; 19 Hun, 69; 14 Crim. Law Review, 817; 15 Crim. Law Review, 1, 70, 104; Chapin v. Marlborough, 9 Gray, 244; Rockwell v. Taylor, 41 Conn. 59; Lubey v. Hudson Riv. R. R. Co. 17 N. Y. 131; State v. David narrative of past occurrences or relate to past When the declarations offered are merely transactions, they are incompetent. 5. The exercise of that discretion by the y. 95; Travelers' Ins. Cov. Mosley, 8 Wall. 397 1 Greenl. Ev. § 110; People v. Davis, 56 N. (75 U. S. bk. 19, L. ed. 437). or three times attempted to kill deceased is not A dying declaration that the prisoner had two admissible. 6. Held, further, that it is apparent that the determination of the trial court to hear all that the deceased said before deciding whether any of it was Wharton, Homicide, 307; Nelson v. State, admissible was not, under the circum-7 Humph. 542; 1 Taylor, Ev. 542, § 530. stances, arbitrary nor an abuse of dis- The courts have held that if evidence which cretion; and as the general term had is inadmissible is introduced, an error is comheld that the rights of the prisoner were mitted which is not cured by striking the same not prejudiced, its conclusions must pre-out, provided the same was prejudicial to the vail. prisoner. (Andrews and Peckham JJ., dissented.) (Decided March 1, 1887.) A The facts appear from the dissenting opinion of Andrews, J. People v. Zimmerman, Daily Reg. Sept. 14, 1886. The evidence which found its way upon the record and was subsequently stricken out was, ant. It was the duty of the court to determine whether, upon the facts proved, the statement of the deceased was competent. Its decision upon that question is a matter of law and may be reviewed |