tax is given that the directors may be able to discharge the duty thus imposed, and the words employed must be so construed as to enable them to perform it fully. If the general or school tax should produce a sum large enough to enable the directors to perform both duties, no other tax would be necessary. If it should not, it must be supplemented by the special tax, which must be devoted to the sole purpose of providing the schoolhouses needed. Whether a special tax may be lawfully levied and collected depends on whether greater schoolhouse accommodation is needed in the district than the directors can supply with the means at their command. If such need exists, the best manner in which to meet it is a question for the directors to settle in the exercise of their official discretion. The law authorizes them to meet it by the erection of a suitable building, (which would include the enlargement of an existing building,) by the purchase, and by the renting, of a suitable building for use as a schoolhouse. When they decide which of these methods is best adapted to the exigency and the best interests of the district, they must next inquire whether the ordinary school tax will yield a sufficient sum of money to maintain the schools and provide the additional schoolhouse accommodation. If it will not, then the circumstances have arisen which will justify the exercise of the power to levy and collect a special tax. The subsequent misappropriation of a portion of the proceeds of this tax may render the directors personally liable to the district, in a proper case, but it can have no retroactive effect upon the power of the directors to levy and collect the tax. In the case at bar it appears that the directors of Emporium school district found 409 persons applying for admission to their school. Their schoolhouse furnished accommodation for only What should they do to provide for the 80 persons whom they could not accommodate? It was their duty, under the law, to make some provision for them, and they deliberated as to the best way in which to perform that duty. Their first plan was to erect a new schoolhouse of sufficient size to accommodate the whole number applying, and to supply the probable demand for some years to come; but the expense of such a structure would make it necessary to incur a considerable debt. The question whether the debt should be contracted for this purpose was submitted to the decision of the qualified voters of the borough, and their decision was against it. The directors were thus shut up to the necessity of meeting the demand upon them in a less expensive way. They decided, and so far as we can judge from this record decided wisely, that it was not best to enlarge a building which was old and illy adapted to the wants of the district; nor to buy a building for a temporary purpose; but to rent suitable rooms, and fit them up for occupancy, until the district should be able to make suitable permanent provisions for the scholars within its limits. Having determined upon what must be done, they found the school tax did not provide the means

330.

of doing it. They accordingly levied a special tax to enable them to do what the law required them to do, viz., to make provision for the 80 persons applying for admission to the school, for whom they had no room in the schoolhouse belonging to the district. The plaintiff denied their right to levy the tax, and filed the bill in this case, asking the court to enjoin them against its collection. The learned judge of the court below granted the injunction, following a decision of the superintendent of public instruction, and holding that a special tax could be levied only for one of two purposes,-the purchase of lots of land, and the erection of schoolhouses thereon. We think this interpretation of the act of 1854 is too literal. It leaves out of view the requirement that the directors shall provide suitable buildings to be used as schoolhouses by causing them to be "erected, purchased, or rented," and fixes attention on the clause which limits the use of the fund when raised "solely" to the purchase of ground and the erection of buildings. It limits the meaning of the word "purchase" to the acquisition of a fee simple, and so restrains the directors to one out of the three modes of obtaining schoolhouses which the act gives them. If they can use the proceeds of the special tax for no purpose except the purchase of land in fee, and building upon the land so bought, then they are without means to buy a building already erected, or to rent it for school purposes. The legal meaning of the word "purchase" includes all modes of acquisition except that by descent. A lessee is a purchaser as truly as he who becomes grantee in fee. The difference is in the estate acquired. The estate of the former is a leasehold; of the latter, a freehold; but the mode of acquisition is by purchase in both cases. The school law requires the directors to provide suitable schoolhouses for their district by building, by buying, and by renting. It authorizes them to provide the money for this purpose by levy and collection of a special tax, and prohibits the use of money so raised for any other purpose. The words employed are not the best that could have been chosen, but, read in connection with the section that imposes the duty of providing schoolhouses, they are not difficult of interpretation. read, they declare that the money raised by a special tax must be applied solely to the purchase of suitable lots, in fee or for years, with a suitable building on them, or vacant; and, if vacant, then to the further purpose of erecting a suitable building on each lot for use for school purposes. This makes the provisions of the law harmonize with each other, and provides the directors with the means with which to do what the law requires them to do. narrower construction than this leaves the directors charged with a duty which they have no means for performing, but for the nonperformance of which they are made liable to removal from office. In the case before us it is clearly the duty of the directors to provide for the 80 persons residing in their district, and demanding admission to the public schools. They cannot make provision by the erecting of

So

Any

a suitable building, or the purchase in fee of such building, because of an existing debt which voters refuse to increase. If they cannot apply the proceeds of the special tax to the purchase of a leasehold, then they cannot perform the duty which the law, has laid on them. The 80 appli. cants must be denied admission to the school, and the doors be closed against them indefinitely. This could not have been the intention of the lawmakers, and we could not adopt such a construction unless the language employed by them left us no alternative. We are of opinion that the purchase of a leasehold was a proper way to provide for the persons applying for admission to the school in Emporium; and that the levy of a special tax was a proper and lawful mode of raising the money necessary to pay the price, and fit up the building for use as a schoolhouse. If any part of the proceeds of the tax has been improperly used, that is a question to be disposed of on the settlement of the accounts of the directors, with which in this proceeding we have no concern. The decree of the court below is reversed, and the injunction dissolved; the costs of this appeal to be paid by the appellee.

(150 Pa. St. 145)

SCHAEFFER V. TOWNSHIP OF JACKSON. (Supreme Court of Pennsylvania. July 13, 1892.) DEFECTIVE HIGHWAYS-EVIDENCE.

1. Where a hole in the road, and a pile of stones placed on a highway by the town supervisors, rendered the road at that place unsuitable and insufficient for ordinary public traffic, the township is guilty of negligence.

2. Plaintiff had been driven safely past such place when the horse became frightened by a donkey, turned short round, breaking a wheel of the buggy, and ran back, one axle dragging on the ground. The dragging axle caused the buggy to be drawn to the side of the road, where it caught in the hole. The buggy was upset, and plaintiff injured. Held, that the township was not liable; the occurrence being extraordinary, and not the natural and probable result of the negligence, but of an independent, primary, efficient, proximate cause.

Appeal from court of common pleas, Lebanon county.

Action by Edwin M. Schaeffer, by his next friend, against the township of Jackson, for injuries received through defendant's negligence. Judgment for plaintiff. Defendant appeals. Reversed.

W. M. Derr, for appellant. Grant Weidman and P. S. Keiser, for appellee.

HEYDRICK, J. The plaintiff, an infant of less than four years of age, brought suit in the court below to recover damages for injuries received in the same accident out of which Jackson Tp. v. Wagner, 127 Pa. St. 184, 17 Atl. Rep. 903, grew. According to the plaintiff's witnesses, he started in company with his mother, two younger children, and Miss Wagner, the plaintiff below in Jackson Tp. v. Wagner, to drive over one of the highways of the defendant township. At this time, there was upon the side of the road in question a stone pile about 25 feet in length by from 1 to 3 feet in height, and at the side of the stone pile a hole, in respect to the dimensions of which these witnesses differed

widely, varying as to the depth from 8 to 18 inches; as to the width, from 8 inches to 3 feet; and as to the length, from 1 foot to 5 feet. The same witnesses differed as to the width of the road between this hole and the gutter almost as much; one of them asserting that it was but 7 or 8 feet, while four others testified that it was from 12 to 14 feet wide. Upon this evidence, to which greater credit seems to have been given than to that on the part of the defendant, the jury found, under proper instructions as to the duty of the supervisors, that the road was not, on the day and at the place of the accident, suitable and sufficient for public travel, conducted in the ordinary manner and by the ordinary means of conveyance. It must therefore be assumed that the township was guilty of negligence; and as there could be no question of contributory negligence on the part of an infant of such tender years as the plaintiff, the only question to be determined is whether, upon the further facts testified to by the plaintiff's witnesses, the township is liable for the injury sustained by the plaintiff upon this road.

Whatever the condition of the road may have been, the party passed over it safely, and without noticing any defect there. in, but when they had reached a point about 120 feet beyond the stone pile, where the road was in good condition, they met a donkey drawing a cart loaded with tin cans, and another donkey, which, in the language of the witnesses, was "loose, and came towards the horse." Thereat the horse became frightened, the driver lost control of him, and he turned suddenly around, wrenching the spokes of one of the front wheels out of the hub, and fled in the opposite direction; the hub of the broken wheel falling to and dragging upon the ground. When the buggy reached the hole already described, the end of the axle dropped into it, and the plaintiff was thrown out upon the stone pile. The testimony upon the part of the defense showed very clearly that the occurrence was as is stated by the reporter and in the opinion in Jackson Tp. v. Wagner, supra, differing somewhat from the foregoing statement; but in considering the assignments of error in this case, the plaintiff's testimony will be accepted as verity. So accepting it, was the defendant township answerable for the injury received by the plaintiff? It is a general rule, as well settled as anything in the law of negligence, that a man is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, but if his fault happen to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result. This rule applies in actions against municipal and quasi municipal corpora tions as well as to natural persons and private corporations. The concurrence of that which is ordinary with a party's negligence does not relieve him from responsibility for the resultant injury. Examples of such concurrence may be found in cases where, by reason of causes known to the public authorities, horses are likely

the part of the principal contractor in failing to keep his agreement with the owner, nor by an agreement between the owner and principal contractor subsequent to the one under which he began work, and of which he had no notice, wherein the principal contractor undertakes to deliver the building to the owner free of all liens. Schroeder v. Galland, 19 Atl. Rep. 632, 134 Pa. St. 277, distinguished.

Appeal from court of cominon pleas, Philadelphia county.

Scire facias upon mechanic's lien by George H. Cook and others against Christopher J. Murphy, owner, or reputed owner, of a certain building, and Robert Christy, contractor. Murphy, although having no defense or objection to the plaintiffs' lien considered alone, claimed in his affidavit of defeuse the right to set off as against it damages sustained by reason of the failure of Christy to do other work on the building as he had contracted, and also by reason of his failure to complete the building within a certain time, and to defend against plaintiffs' lien on account of a subsequent contract between Christy and him, in which Christy had undertaken to deliver the building free of all liens. This last contract was made after plaintiffs' work was nearly completed, and without plaintiffs' knowledge. From a ruling of the court refusing to enter judgment for want of a sufficient affidavit of defense, plaintiffs appeal. Reversed.

Sheldon Potter and Leoni Melick, for appellants. E. Spencer Miller and J. Granville Leach, for appellees.

STERRETT, J. The only question presented by this record is whether the court erred in refusing to enter judgment for want of a sufficient affidavit of defense. That question, we think, is entitled to an affirmative answer. If this were a scire facias on a claim filed by Christy, the principal contractor, for work and labor done and materials furnished by himself under his contracts with the owner of the building, averments of default, and consequent damage, such as are contained in this affidavit of defense, would be sufficient to prevent judgment; but the plaintiffs were subcontractors, under Christy, for the painting and glazing of the house, without notice of the supplemental contract of April 7, 1890, and as such contractors under the original contract of December 13, 1889, between Christy and the owner, they fully performed their part of the agreement, and filed their claim in due form, giving the items and dates thereof in detail. The integrity of their claim is not, in any manner, impeached by the affidavit of defense, nor is it even suggested that they did not perform their undertaking with due diligence, and in strict compliance with the terms of said contract. Conceding, for the sake of argument merely, that the principal contractor himself and other subcontractors were in default, as alleged, and that the defendant, owner of the building, was thereby damaged, it by no means follows that the plaintiffs are answerable for such damage or any part thereof. To hold that they are would be virtually declaring a subcontractor is bound by every provision of the contract between the owner and the principal con

tractor, whether it relates to his part of the work or not. Such a proposition on which the lien law in favor of material men and subcontractors is based would virtually make them sureties for the principal contractor, instead of making the building their security. The authority of Christy to bind the building as surety to the plaintiffs for the amount of their work and materials sprang not from his supplemental contract with the owner, made when the painting and glazing was nearly completed, but from the original contract of December 18, 1889, of which alone the plaintiffs had notice. The latter contain's no provision that can be construed into a waiver of right to file a lien, nor does it provide for the completion of the building, or payment of damages for noncompletion thereof within a specified time. In form, it is an ordinary building contract, specifying the kind of building, cost, etc., not even providing for time and mode of payment. There is nothing in its provisions to bring the case within the principle of Schroeder v. Galland, 134 Pa. St. 277, 19 Atl. Rep. 632, and that line of cases. The supplementary agreement contains other provisions, but, inasmuch as the plaintiffs do not appear to have had any notice thereof and cannot be affected thereby, it is unnecessary to consider them. When plaintiffs were employed by the contractor to do the painting and glazing, they knew or must be presumed to have known the terms of the original contract, -the only one then in existence. In the absence of any notice that its terms were changed, they had a right to presume that it remained unaltered. It was not their duty to inquire, during the progress of their work, whether a supplemental agreement was made or not. If it was to the interest of either party to that agreement that the plaintiffs should be informed of the change in terms, etc., it was the duty of such party to give notice thereof. As the case is presented, the plaintiffs are not affected by any of the provisions of the supplemental agreement, and there is nothing in the terms of the original, or in the facts presented in the affidavit of defense, to justify the refusal of judgment for the amount of their claim and interest. It is ordered that the record be remitted to the court below, with direction to enter judg ment against defendants for the amount of plaintiffs' claim, with interest, etc., unless other legal or equitable cause be shown to said court why such judgment should not be so entered.

(150 Pa. St. 85)

In re CLEMENT'S ESTATE.

Appeal of SCOTT et al. (Supreme Court of Pennsylvania. July 13, 1892.) FRENCH SPOLIATION CLAIMS-PAYMENT OF AWARD -DISTRIBUTION OF ESTATE "NEXT OF KIN."

Under Act Cong. Jan. 20, 1885, (U. S. St. 283,) authorizing citizens or their legal representatives having claims on the French government for spoliations prior to July 31, 1801, to petition the court of claims, and requiring that court to examine the claims, with their present ownership, and, if by assignee, the date of the assignment, and to report to congress for final action, but providing that the finding and report should not be construed as committing the United States

to payment of any such claims, the administratrix of C., a deceased sufferer from French spoliations, presented her petition, and obtained awards. Act Cong. March 3, 1891, (U. S. St. 862,) thereafter passed, made appropriations to pay the findings of the court of claims on the claims, among others, of S., administratrix of C., provided that awards in the case of individual claimants should not be paid until the court of claims certified that the personal representatives on whose behalf the award was made represented the next of kin, and the courts which granted the administrations certified that the legal representatives had given adequate security for the legal distribution of the awards. Held, that the money was not a direct gift to the next of kin of deceased, but was part of his estate, distributable by the administratrix accordingly, the words "next of kin" being used in the sense of those entitled to participate in the distribution of the estate.

Appeal from orphans' court, Philadelphia county; HANNA, Judge.

Petition of Mary B. Scott, administratrix de bonis non of Jacob Clement, deceased, for distribution of the estate. From a decree determining that certain funds were not distributable as part of the estate, the administratrix and others ap- | peal. Reversed.

Samuel C. Perkins, for appellants. A. A. Hirst, for appellees Mary P. Bailey and Susan P. Sterling. Charles H. Sayre and Geo. Sergeant, for other appellees.

66

"

HEYDRICK, J. By an act of congress approved January 20, 1885, (U. S. St. at Large, 283,) it was provided "that such citizens of the United States, or their legal representatives, as had valid claims to indemnity upon the French government arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to the 31st day of July, 1801, might apply by petition to the court of claims within two years after the passage of this act;" and that court was required to "examine and determine the validity and amount of all the claims within the description above mentioned, together with their present ownership, and, if by assignee, the date of the assignment, with the consideration paid therefor." It also required the attorney general of the United States to "resist all claims presented under this act by all proper legal defenses, and the court to report to congress for final action the facts found by it, and its conclusions." But it was provided that "such finding and report should be merely advisory as to the law and facts found," and should not be "construed as committing the United States to the payment of any such claims." Under the provisions of this act the administratrix de bonis non of Jacob Clement, deceased, who appears to have been a sufferer from Frence spoliations, presented her petition to the court of claims, and obtained "awards," presumably for the amounts hereinafter mentioned. This was followed by an act of congress approved March 3, 1891, (U. S. St. at Large, 862,) whereby it was enacted "that the following sums be, and same are hereby, appropriated to pay the findings of the court of claims on the following claims for spoliations by the French, namely: On the brig Experience, James

Houston, master, namely, Mary B. Scott administratrix de bonis non of Jacob Clement, deceased, seventeen thousand one hundred and forty dollars and thirtythree cents. In the matter of the brig Polly, Hugh Smith, master, Mary B. Scott, administratrix de bonis non, and so forth, of Jacob Clement, deceased, six thousand nine hundred and forty-seven dollars and sixty-five cents: * provided, that

in all cases where the original sufferers were adjudicated bankrupts the awards shall be made on behalf of the next of kin, instead of to assignees in bankruptcy, and the awards in the case of individual claimants shall not be paid until the court of claims shall certify to the secretary of the treasury that the personal representatives on whose behalf the award is made represent the next of kin, and the courts which granted the administrations respectively shall have certified that the legal representatives have given adequate security for the legal disbursement of the awards." The moneys thus appropriated "to pay the findings of the court of claims on the claim of Mary B. Scott, administratrix de bonis non of Jacob Clement, deceased, were paid to her, and, less the expense of administration, constitute the entire fund for distribution; and the question is, to whom shall that fund be distributed? The leading thought that pervades the act of 1885 is that certain citizens of the United States bad sustained losses by reason of the failure of their government to extend to them that protection which is due from government to citizens or subjects, and that the United States owed these citizens, or those who stood in their shoes, some duty in respect to the losses so sustained. The obligation, it must be admitted, was an imperfect one, and congress was careful, perhaps unnecessarily, to declare that nothing in the act contained should be construed to commit the United States to the payment of the losses. But, notwithstanding this declaration, further action in recognition of the undefined duty was clearly contemplated, and the sufferers from the French spoliations, or their legal representatives or assigns, were invited to incur expense in reliance upon that contemplated action. The claims to be presented were regarded by the act, not as something in the nature of an heirloom, but as choses in action that had passed or would pass to the legal representatives of the original sufferer; and title either by administration or by assignment was sufficient, and, except in the case of a surviving sufferer, was necessary, to give a petitioner standing in the court of claims, and must be found by that court as part of the basis of any congressional action upon the claim. No provision was made for proof of claims by next of kin. It is therefore evident that when the administratrix of Jacob Clement had established his claim and her title to it, and congress appropriated money "to pay the findings of the court of claims" in her favor, it intended something more than a mere gratuity. To pay is to discharge a debt or obligation, not to be stow a gift. And the money was appropriated to be paid, not only in discharge