Fields v. Stokley. which it is used or allowed to be used. It is true that a private person not specially aggrieved cannot abate a public nuisance, and especially where a statute provides a remedy for an offense created by it, that must be followed. It is well settled however that a private person, if specially aggrieved by a public nuisance, may abate it. In Rung v. Shoneberger, 2 Watts, 23, it was held by this court that the erection of a building upon the public square of a town was a public and not a private offense, and might be abated by any one aggrieved. In that case the buildings were removed by officers of the town by virtue of the authority of the town council and the persons in possession, and who had erected the buildings had recovered in an action of trespass. The judgment however was reversed, Mr. Justice ROGERS saying: "A nuisance, whether public or private, may be abated by the party aggrieved, so that it is done peaceably and without a riot. The reason (says Blackstone, 3 Com. 5) why the law allows this private and summary method of doing justice, is because injuries which obstruct or arrest such things as are of daily convenience and use require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice." The jury, under the charge of the learned judge, has found these buildings to be of that character. The city of Philadelphia was the owner of large and valuable property in their neighborhood. Any hour of the day or night they were in danger of being set on fire by those who frequented them with the owner's permission. It is stated as a fact in the special plea, and of course a fact admitted by the agreement, that the public safety was imperiled. Nothing more was necessary to justify the action of the defendant. If the owner or tenant of a powder magazine should madly or wickedly insist upon smoking a cigar on the premises, can any one doubt that a policeman or even a neighbor could justify in trespass for forcibly ejecting him and his cigar from his own premises? It is true, that a private person assuming to abate a public nuisance takes upon himself the responsibility of proving to the satisfaction of a jury, the fact of nuisance. The official position of the defendant as mayor of Philadelphia did not relieve him from his personal responsibility in this respect. But he has been sustained by the verdict of the jury, which is a justification of his alleged trespass. We are of opinion that this case was properly submitted to the determination of the jury, that there was nothing in the charge calculated, to mislead them, and that it would have been manifest Fields v. Stokley. error, if the learned judge had affirmed the plaintiff's point, and thereby in effect instructed the jury to find a verdict in his favor. Judgment affirmed. NOTE BY THE REPORTER.-In Meeker v Van Rensselaer, 15 Wend. 39%, it was held that a dwelling-house, cut up into small apartments, inhabited by a crowd of poor people, in a filthy condition, and calculated to breed disease, is a public nuisance, and may be abated by individuals residing in the neighborhood, by tearing it down, especially during the prevalence of a disease like the Asiatic cholera. The house had originally been a tannery, and under the floors were the old tan vats filled with putrid stagnant water, which oozed through the floor. And in Harvey v. Dewoody, 18 Ark. 252, the same was held of a house used in such a manner as to endanger a town by fire and to be offensive to the citizens. In this case the defendants were mayor, councilmen, etc., sued individually, and they justified under an ordinance ordering the demolition of the house. The court said: "It is clear, we think, from the plea, that the mayor and councilmen had the right to have the nuisance complained of removed or abated in some one of the modes provided by law, even though in doing so it should be found necessary to destroy the house or tenement, as was the case in the instance at hand. The measure was regarded and esteemed by the corporate authorities as rather of a mixed character, partly sanitary and partly economical, to preserve other adjacent property in the town; and as such, we hold that every citizen holds his property subject to such regulations. * • *The party aggrieved by a nuisance, whether the public or an individual, may either resort to the appropriate remedy in one of the forms hereinbefore designated, or else may avail himself or itself of the right to abate the nuisance." In Davis v. Williams, 16 Ad. & El. (N. S.), 546, it was held that where a house obstructs the exercise of a right of common, the commoner may, after notice and request to remove the house, pull it down, although the plaintiff is actually inhabiting and present in it. But to justify such extreme measures the nuisance must be a physical and not merely a moral one, and the act must be necessary to the abatement. So, in Brown v. Perkins, 12 Gray, 89, it was held unlawful for persons whose relations and friends frequent a building to obtain intoxicating liquors sold there, to break it open and destroy the liquors. SHAW, C. J., said: "As it is the use of a building, or the keeping of spirituous liquors in it, which in general constitutes the nuisance, the abatement consists in putting a stop to such use." The like was held in Gray v. Ayres, 7 Dana, 375, of the destruction of a house which was the resort of criminals and disorderly persons, and used as a repository of stolen goods. The court said: “Although the destruction of the house might have been the most effectual mode of suppressing the nuisance, yet as the house itself was not a nuisance, nor necessarily the cause of one, its destruction was not a necessary means of abating the nuisance." "Although it may be in general true that individuals may abate a physical public nuisance by force, it is not in general true that they may use force in abating a public nuisance which is not of a physical or substantial nature; and therefore it is not true, as a general proposition, that they have a right to abate a nuisance of this kind, or that in doing so they may pull down a house because it is the seat of the nuisance," etc. So Lord RAYMOND said, in Rex v. Papineau, 2 Str. 688. "If a dye-house or any stinking trade were indicted, you shall not pull down the house where the trade was carried on." And so in Welch v. Stowell, 2 Doug. (Mich.) 332, where the marshal and aldermen, prosecuted for tearing down a house, undertook to justify under an ordinance requiring them to demolish the building as a house of ill-fame and a common nuisance. The court said: "The law undoubtedly authorizes the corporation of Detroit, or any person residing within its limits, to abate any nuisance that may exist. This right is one of the few exceptions to the general rule that no man shall take the law into his own hands; the exception finds its vindication in the law of necessity. It is a right however to be exercised with caution. Care must be taken that nothing is done but what is absolutely necessary to abate the nuisance. * It is said that the house was a nuisance. This may be very true; but it was a nuisance in consequence of its being the resort of persons of ill-fame. That which constitutes or causes the nuisance may be removed; thus, if a house is used for the purpose of a trade or business by which the People's Bank v. Kurtz. health of the public is endangered, the nuisance may be abated by removing whatsoever may be necessary to prevent the exercise of such trade or business; so a house in which gaming is carried on, to the injury of the public morals; the individual by whom it is occupied may be punished by indictment, and the implements of gaming removed; and a house in which indecent and obscene pictures are exhibited is a nuisance, which may be abated by the removal of the pictures. Thousands of young men are lured to our public theaters, in consequence of their being the resort nightly of the profligate and abandoned; this is a nuisance. Yet in this, and in the other cases stated, it will not be contended that a person would be justified in demolishing the house, for the obvious reason that to suppress the nuisance such an act was unnecessary. So in the case before us, the nuisance was not caused by the erection itself, but by the persons who resorted there for the purposes of prostitution." The court distinguished Meeker v. Van Rensse laer on the ground that there was no way of abating the nuisance but by pulling down the building. PEOPLE'S BANK V. KURTZ. (99 Penn. St. 344. Corporation — implied warranty on sale of stock of. On a sale of shares of corporate stock there is no implied warranty that the stock has not been fraudulently issued by the officers in excess of the amount authorized by the charter. A CTION to rescind a purchase of notes with collateral transfer of shares of stock, and to recover the money paid, on the ground that the stock was an over-issue. The defendant had judgment below. Hood Gilpin, F. C. Brewster and Charles Gilpin, for plaintiff in error. Samuel Dickson and R. C. McMurtrie, for defendant in error. SHARSWOOD, C. J. It was held at first that in an action on the case for deceit against a party who had sold a personal chattel to the plaintiff, to which he had no title, that it was necessary to aver a scienter. Dale's case, Cro. Eliz. 44; Roswel v. Vaughan, Cro. Jac. 196. But this doctrine was subsequently exploded, and an averment of possession considered sufficient, as the vendor must be intended cognizant of his own title, the sale being necessarily an affirmation of title. Cross v. Gardner, Carth. 90; Medina v. Stoughton, 1 Ld. Raym. 593. It may now be regarded as well settled, that a party selling, as his own, personal property of which he is in People's Bank v. Kurtz. possession, warrants the title to the thing sold; and that if by reason of defect of title nothing passes, the purchaser may recover back his money, though there be no fraud or warranty on the part of the vendor. This doctrine is held to apply to choses in action as well as other descriptions of personal property. Charnley v. Dulles, 8 W. & S. 353. Shares of stock in a corporation are choses in action, giving a right to dividends and an interest in the capital. The certificate is the evidence of such ownership, and there can be no doubt that if the certificate is forged, or the holder is not such bona fide, so that he has no claim on the corporation, the vendor would be liable to his vendee on the implied warranty of title. His possession of the certificate would be as to his vendee possession of the stock, just as possession of a bond or note is possession of the debt which they represent. Where however there has been a fraudulent over-issue of stock, evidence by certificate under the genuine seal of the corporation, the case presented is somewhat different. It has been settled, that a corporation is liable to bona fide holders of such fraudulent certificates, because like individuals, they are responsible for the fraudulent exercise of the power intrusted by them to their officers or agents. It is unnecessary, in this case, to consider whether they are bound to permit a transfer on their books and to deliver a new certificate to the bona fide vendee. It may be that when the over-issue is in excess of the amount authorized by the charter, they would not be. But it seems to be established, upon principle as well as authority, that the bona fide holder of such a fraudulent certificate would have a right of action against the corporation, and that his measure of damages would be the market value of his stock at the time the transfer was demanded. Willis V. Philadelphia & Darby R. Co., 6 W. N. C. 461, and cases cited in the opinion of Judge HARE. The vendor of such a certificate has then a title which he can transfer, and a remedy against the corporation. Suppose the shares in the case before us had been transferred by an original subscriber, his vendee would have been in the same position as the assignee of shares subsequently issued in excess of the charter. He would have had a clear right to demand a transfer and new certificate. Such certificate however would have been worth to him only the value of the stock in the market at the time. If his transfer had been refused, he would be entitled to the same remedy and the same measure of damages. The vendor VOL. XLIV-15 of shares of stock certainly does not warrant the solvency of the corporation. Corporations are especially liable to be made insolvent by the embezzlement and fraud of their agents or officers. It matters not whether the loss arises from robbery or embezzlement, or by the fraudulent issue of stock, the value of the stock is depreciated. It matters not whether such fraud or robbery was before or after the sale of the stock, the bona fide vendor cannot, under the rule in question, be held responsible for the depreciation in value. one of the risks which are assumed by all dealers in such securities. It is agreed in the case stated, that "the certificates were in the usual form, and regular on their face, and were issued by the duly constituted officers of the company, and were sealed with the genuine seal of the corporation." We are of opinion that the implied warranty of title extended no further, and that there was no breach. Judgment affirmed. A lessee vacated the premises during the term, and gave the keys to the landlord, who took and retained them, but notified the lessee that he should hold him for the rent, and subsequently let the premises to another, after notifying the lessee of his intention to do so. Held, that the lessee was liable for the difference in the rent received. A CTION against a surety on a lease. The head-note and opin. ion show the facts. The plaintiff had judgment below. M. Arnold and Wm. W. Kerr, for plaintiff in error. Wm. Gorman, for defendant in error. PAXSON, J. Nothing is better settled in Pennsylvania than that a tenant for years cannot relieve himself from his liability under his covenant to pay rent, by vacating the demised premises during the term, and sending the key to his landlord. The reason for it is that in the absence of fraud, one party to a contract cannot re |