78 Pa.

Volume 78 — Pennsylvania State Reports

93 opinions

78 Pa. 15Quinn v. Davis (1875)
1. Davis deposited a piano for storage with Kirby, who bought and sold second-hand furniture at auction and received goods on storage. Kirby had the piano sold at an auction store; Quinn bought it bonfi, fide at a fair sale, without knowing who was its owner. Held, that Davis could recover the piano from Quinn. 2. The owner of a chattel cannot, apart from legal process, be divested of his title to it except through some unlawful or improvident act of his own ; the transfer of possession to another without more is not such act. 3. The transfer must be accompanied by something indicating in the custodian a right of property or power of alienation; there must be proof of language or conduct at least equivocal. 4. McMahon v. Sloan, 2 Jones 229, followed.
78 Pa. 19Royal Insurance v. Roedel (1875)
Certificate from the Supreme Court at Nisi Prius : Of January Term 1878, No. 146. This was an amicable action and case stated in which George F; Roedel and William H. Fry, trading as' George Roedel & Co., were plaintiffs, and The Royal Insurance Company defendants. The facts as they appear by the case stated are as follows :— The plaintiffs occupied a building in Third street, Philadelphia, as shoe dealers and manufacturers. The first and second floors were used as salesrooms and the third and fourth as a factory. They had a large stock of boots, shoes, &c., manufactured and unmanufactured, including materials for the same and machinery, tools, fixtures and sewing-machines. Insurance had been effected upon this property as follows, to wit:— Upon the stock in the whole building, including the third and fourth floors. Policy No. 1,002,742. — The Royal Insurance Co., . $10,000 “ No. 1,325,541. — The London, Liverpool and Globe, 5,000 “ No. 358,745. — The Franklin Fire Insurance Co., 5,000 Total on stock in the whole building, . $20,000 Upon the stock on the third and fourth floors. Policy No. 754,553. — The Royal Insurance Co., . . $8,000 Upon the machinery, &c., on the third and fourth floors. Policy No. 754,553. — The Royal Insurance Co., . . $2,000 On the 14th of February 1872, and while all the policies were in force, a loss occurred by fire to the property insured, which was ascertained as follows: Loss on stock in the salesrooms, .... $29,986.76 “ “ on the third and fourth floors, . . 8,840.73 “ machinery, &c., on the third and fourth floors 2,500.00 The loss on stock in the salesrooms exceeded the amount of the general policies on stock as follows :— Loss on stock in salesrooms, ..... $29,986.76 General policies on stock. The Royal Insurance Co., . . . . $10,000 The London, Liverpool and Globe, . . 5,000 The Franklin Fire Insurance Co., . . 5,000 - 20,000.00 Excess of loss, ■ $9,986.76 The loss on stock on the third and fourth floors exceeding the amount on the special policy as follows:— Loss of stock on the third and fourth floors, . . $8,840.73 Special policy on this stock. The Royal Insurance Co., ..... 8,000.00 Excess of loss, ....... $840.73 The loss on the machinery exceeded the amount of insurance by The policies of The Royal Insurance Company contained the following clauses:— “ In case of the assured holding any other policy, in this or any other company, on the property insured hereby, subject to the conditions of average, this policy shall be subject to average in like manner; and it is also hereby further declared and agreed, that in case there be any insurance in any other office, extending to the property hereby insured, then this company, in case of loss, will only be liable to pay its rateable proportion of the damage ascertained in accordance with the conditions of this policy. “ Persons insuring property at this office must give notice of any other insurance already made, or which shall hereafter be made elsewhere, on the same property on their behalf, and cause a minute or memorandum of such other insurance to be endorsed on their policies, in which case this company shall only be liable to the payment of a rateable proportion of any loss or damage which may be sustained; and, unless such notice be given, the insured will not be entitled to any benefit under this policy.” The adjustment of the loss, under the specific policy for $8000, on stock on the third and fourth floors, upon the principle claimed by defendants to be correct, is as follows :— The loss on stock on third and fourth floors was . $8,840.73 Insurance on stock. The Royal Insurance Co., . $10,000, general pays $3,157.40 The London, Liverpool and Globe, 5,000, “ “ 1,578.70 The Franklin Fire Insurance Co., 5,000, “ “ 1,578.70 The Royal Insurance Co., 8,000, specific “ 2,525.93 $8,840.73 In accordance with this adjustment the defendants have paid on account of the specific policy for $8000 on stock on the third and fourth floors, $2525.93, without prejudice to the plaintiffs’ right to claim any further sum which they might be entitled to against the company for loss on stock on the third and fourth floors, by any other method of adjustment which should be judicially determined to be correct. If the three general policies on the stock, to wit, the Royal Insurance Company $10,000, London, Liverpool and Globe $5000, Franklin Fire Insurance Company $5000, do not, under the circumstances, contribute to the loss on stock on the third and fourth floors, then the whole amount of insurance of policy No. 754,553 of The Royal Insurance Company upon that specific stock, to wit, $8000, was due and payable to plaintiffs. If the court shall be of the opinion that the adjustment, on the principle of contribution, under which the above payment was made by The Royal Insurance Company is correct, and that the lawful claim of the plaintiffs only amounted to the sum paid, then judgment shall be entered for the defendants; otherwise, in favor of the plaintiffs for the sum of $5474.07, with interest-from April 1st 1872, or for any other sum not exceeding that amount which, upon a correct adjustment of the loss, the court is of opinion the plaintiffs are entitled to receive. The contributing clause of The Franklin Fire Insurance Company was:— “ All persons having property insured by this company must, with reasonable diligence, give notice of all additional insurances made in their behalf on the same, whether by this company or by other insurers, and of all changes that may be made in such additional insurances, and cause such notice to be endorsed on their policies — and each company shall be liable to the payment only of a ratable proportion of any loss or damage which may be sustained — and, unless such notice is given, the insured will not be entitled to recover in case of loss.” The contributing clause of The London, Liverpool and Globe Insurance Company, was :— “ That in all cases of insurance, this company shall be liable for such rateable proportion only of the loss or damage happening to the subject insured as the amount insured by this company shall bear the whole amount insured thereon, without reference to the dates of the different policies, or their invalidity, from want of notice of this or other insurance, or from the violation of any of their conditions, or the insolvency of any or all the other insurance companies.” ' The judgment was for the plaintiffs on the case stated for $5474.07. The defendants took a writ and assigned the entry of judgment for the plaintiffs.
78 Pa. 23Snyder v. City of Philadelphia (1875)
1. A vessel laden was lying at a wharf in Philadelphia, within the port warden's line on the Delaware ; it was attempted to move her by a line attached to another wharf, extending to the port warden’s line ; in doing so she grounded on a rook, part of the natural bed of the river, and went to pieces. Held, that under the Act of February 2d 1854, sect. 28, the city was not liable for the injury to the vessel by reason of not removing the rock. 2. Winpenny v. Philadelphia, 15 P. F. Smith 140, remarked on.
78 Pa. 25Mullan v. Philadelphia & Southern Mail Steamship Co. (1875)
1. It is the duty of every employer to exercise reasonable care in providing his laborers with safe machinery, suitable tools and appliances, adapted to the uses for which they are designed. 2. Where a master places the entire charge of his business, or a distinct branch, of it, in the hands of an agent, exercising no discretion and no oversight, the neglect by the agent of ordinary care in supplying and maintaining suitable instrumentalities, is a breach of duty for which the master is liable. 3. The risk which a laborer assumes of injury from the neglect of his fellow, is when they are co-operating in the same business, so that he knows that the employment is one of the incidents of their common service. 4. The plaintiff was engaged as a laborer, under a stevedore employed by the ship-owner, in unloading a vessel; the rope by which the load was raised was one that had been spliced by the mate before the arrival of the vessel at port, and was used as a “ single fall,” which was more liable to part than a “ double fall.” Whilst raising a cask, the rope parted at the splice, the cask fell and injured the plaintiff. Whether the stevedore was a fellow-workman of the plaintiff, and whether the negligence of the mate in splicing the rope was a risk assumed by the plaintiff, were, under the circumstances, for the j^y- 5. It was proper for plaintiff to ask of a witness if, at or immediately after the accident, he heard the stevedore say anything concerning the rope or its insufficiency. 6. Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396, followed.
78 Pa. 33City of Philadelphia's Appeal (1875)
1. The Act of April 28th 1870, fixing the line of Chestnut, street, provided that it should “ not interfere with any buildings now erected on the south side of that streetthe front of a building was taken down and a new front erected on the line prescribed by the act; ornamental columns, pilasters, &c., to the front were extended fifteen inches beyond the line. Held, that these were not prohibited by the act. 2. According to the ordinary course of equity practice, when a case is heard on bill and answer, the allegations of fact in the answer are admitted. 3. In a bill for injunction, if the question is doubtful, it is decisive against the injunction; chancery will not decree an injunction except in a clear case of the invasion of a public or private right. 4. No usage, however long continued, will justify an encroachment upon a highway ; but such encroachment, to be remedied by injunction, must be really an obstruction to the free use of the highway.
78 Pa. 40Schott's Estate (1875)
1. A testator, after providing for his wife, directed that no distribution of his estate should be made until five years from his death, and not then unless his wife were dead. He gave some legacies, and directed that the income of his estate should be paid in sixth parts to certain legatees until the time for distribution of his estate. At the time of the distribution of the corpus of his estate, he ordered it to be divided into six parts ; one part he eave.to his son Guy, and in case of his death without issue before the distribution, he gave it over, with the proviso that if he died before the time of distribution without issue, $5000 in Allegheny bonds should be paid to Guy’s wife. Guy died before the time of distribution, his wife surviving. Held, that she was not entitled to the $5000, until the time of the distribution. 2. The legacy to Guy’s widow vested at his death, but its payment was suspended until the time fixed for the distribution of the testator’s estate. _ 3. Every sentence and word in a will must be considered in forming a judicial opinion upon it, and the intention of the testator from the words of a will taken altogether, must govern its construction. 4. The general intent of a will being ascertained, a particular inconsistent intent will be overlooked.
78 Pa. 45Flounders v. Hawley (1875)
1. By Act of Assembly, a loan association was authorized to lend to its stockholders, and the borrower might repay the loan at any time ; if repaid before the end of the eighth year, there should be refunded to the borrower one-eighth of the premium of every year of the eight years unexpired. “ In case of a recovery of loans by process of law, when the amount collected by or distributed to the corporation shall exceed the amount of the loan taken by the borrower, &c., the money shall be re-loaned and the excess recovered beyond the amount required to pay the loan, &e., shall be returned to the borrower, &c., provided that if the premium offered for the re-loan shall be greater than that originally given by the borrower, the amount of the original premium only shall be paid by the corporation.” A loan of $1500 was made May 17th 1869, the premium being $153. By legal process, April 24th 1871, the property on which the loan was secured was sold by the sheriff, and the association received the full amount of the loan, &c. They again lent the same sum at a premium of $180. Held, that the borrower was entitled to receive from the association the first premium of $153. 2. The act does not require any borrower to pay the premium on any loan for a greater number of years than he retains it; nor can the association on a re-loan keep both the original and second premium for the same period of time.
78 Pa. 48Sankey's Executors v. First National Bank (1875)
Error to the Court of Common Pleas of Union county: Of July Term 1873, No. 73. This was an action of assumpsit, brought August 25th 1869, by Jacob Sankey and others, executors, &c., of John Sankey, deceased, against The First National Bank of Mifflinburg. The claim was that the plaintiffs’ testator, and the plaintiffs after his death on account of the estate, had deposited with the defendants, United States 7-30 bonds, the whole amounting to $6800 ; that when one of the executors called on the cashier for delivery of the bonds, the cashier induced him to receive a certificate of deposit from the bank for the par value of the bonds, although they were, at that time, selling in the market at a premium of 6 or 7 per cent., of which the executor was ignorant, and that the cashier at the time, informed him that those bonds were not at a premium, although he knew that they were. One of the bonds was for $500. The declaration was in the common counts only. The case was tried May 22d 1873, before Junkin, P. J., of the Forty-first District. Jacob Sankey, one of the plaintiffs, testified to the deposit of the bonds; that on the 19th of August 1867, witness went to the bank and asked the cashier for the bonds, to use in the Orphans’ Court of Centre county, in answer to a citation. The cashier said he had shipped the bonds, he did not say where, and had no return ; he said he could do nothing but give the executors a certificate of deposit; that they must have something to show; witness asked the cashier if there was not a premium on the bonds; the cashier said there was not. The witness thought he could do no better than take the certificate of deposit. “ I was not selling, nor intending to sell them, by taking a certificate of deposit; he drew the certificate and wrote something in his book — I did not know what it was— and asked me to sign it.” Before signing, witness said to the cashier, if there was any premium it belonged to the estate and the executors wanted it. His answer was that he did not know that there was any premium on them. “ Then I signed my name below the entry on the book ; I mailed the certificate to The First National Bank of Bellefonte. * * * I got the certificate and went to defendants’ bank and demanded these bonds from the cashier, and he said the president had expressed them that week. * * * I demanded the bonds that day, but did not get them. * * * I gave up the bonds when I got the certificate.” The plaintiff gave evidence that in August 1867, the bonds were worth $106 to $106.50. For the defendants, J. W. Sands, cashier of the defendants, testified, that on the 19th of August 1867, the bonds were sold to the bank by Jacob Sankey, one of the executors. “He wanted the bonds, and I said he could have them, and then he wanted the money, and as I was about to unlock the safe, he said, ‘ Can’t you arrange this matter with the Bellefonte Bank ? ’ that he did not feel secure in carrying that amount through ‘ the Narrows.’ I told him I could give him a draft, for which I would charge him the exchange; he did not seem willing to pay exchange, as he said he wanted to deposit the money in the bank at Bellefonte. I then gave him a certificate of deposit, which I said would answer his purpose same as the money. He then gave me the receipt, which he held, showing bonds in our possession. I took this receipt upon the book, where the bonds were entered ; viz.: ‘ Received, August 19th 1867, these bonds $6800 7-30. Jacob Sankey, one of the executors.’ “ He offered the bonds for sale and sold them; nothing said about premium that I recollect. Once, previously to this transaction, I spoke to one of the executors, Mr. Reighard, and I then told him that it was time to have those bonds sent in to the government for conversion into 5-20s, as after the 15th of' August 1867, they would not be convertible according to the notice; they were then due and all that were held to that date and after would be paid at par. * * * * Sometime after that, Mr. Reighard came in, and he exhibited a letter and said that Jacob did not wish the bonds converted; that he wanted them to run to maturity and then have them paid in money, and gave reasons, that there was a dowry to remain in the farm, and he wished to handle this money. * * * These bonds were actually in the custody of the bank on the 19th of August 1867. I did not tell Sankey that the bonds were shipped. There was no condition attached to the sale of these bonds. These bonds were, with the exception of one $500, of the first series of 7-30s, and fell due 15th of August 1867. They were redeeming these bonds at par after 15th of August 1867. I had no other information on 19th of August 1867, than that the government was paying them at par. Our bank is located at Mifflinburg, Union county, about ten miles from telegraph and railroad. On the night of 20th of August 1867, when the Philadelphia mail came, found that the government had extended the time thirty days for the conversion of these bonds. I did not tell Jacob Sankey, for I did not then know that the government had extended the time of conversion, and I did not tell him that there was a premium on these bonds, because I did not know there was. The bank paid the certificate of deposit. These bonds were converted into 5-20 bonds by the bank, and were returned to bank on 12th of September 1867, except the $500 bond. The time for conversion was extended on the 13th of August, and I got the paper containing it on the night of the 20th of August 1867. The $500 bond of the third series had a premium. Jacob Sankey was there some time before he sold the bonds. When Jacob Sankey came back on 22d or 23d of August, he told me, or may have said to me, that the bonds were worth 6 ■or 6J premium; that he had been told so, and he demanded the premium. T told him that the bank had purchased the bonds and wo uld .keep, th em. ” The following are points of the plaintiffs, and their answers:— 2. The executors had no right to sell the 7-30 United States bonds deposited in said bank, under their value, including the premium, and if defendant, by its officers, induced plaintiffs to part with them below their value, then plaintiffs can recover the difference. Answer. The executors could sell these bonds if they chose to do so, and if they parted with them under their market value, under circumstances which shows no gross negligence on their part, but on the contrary good faith, and under the honest belief that there was no premium on them, they would not be liable to account to the estate for the premium. And unless the bank induced them to part with the bonds under their value, by false representation, the plaintiff cannot recover, as we have fully explained in the general charge, unless it should be for the premium on the $500 bond not due until 1868, as we will explain to you in the answer to the fifth point. 3. If plaintiffs and defendant were both mistaken as to the value of said bonds, not knowing at the time that the same were worth six and seven and one half premium, when they were actually worth that, then it was a mutual mistake, and any sale made under such circumstances does not prevent plaintiffs from recovering the balance of their value. Answer. The mere fact that both Sands and the executor were honestly mistaken in the premium value of these bonds, does not of itself avoid the sale of the bonds to defendant, because, as to the intrinsic face value of the bonds, as to all they called for, and as to all the government had promised to pay, the plaintiffs did get their value.' The fact that there attached to these 7 — 30s a premium value, created by outsiders, in the purchase and sale of these securities, which was not constant nor uniform in the market, and which not only changed up and down, from day to day, but even from hour to hour (a value often trembling in the whirl of a monetary crisis, like a chip in a cyclone), must he considered as so uncertain, as to be insufficient to avoid or rescind a contract because of the misapprehension of this value by the contracting parties. It is so. much a parasite, that the supporting trunk knows nothing of it, and to hold the sale void for such a reason would render their sale impossible; for, however trifling the mistake might be, the principle would be the same. It also must be mutual, bind vendor as well as vendee, and could it be pretended in this case, that if the bank had allowed too much premium, that it could have recovered back ? Sankey’s and Sands’ means of information were the same, and the moment they commenced bargaining for the sale and purchase of the bonds, the trust was broken up and the parties dealt at arms’ length. Therefore we answer this point in this qualified' way, and refer you tp the general charge. 4. The cashier called by defendant proves that a few days after the alleged sale, Jacob Sankey, one of the executors, called at the bank, and demanded the bonds or premium, and that the bank then still had the bonds in controversy in possession undisposed of, and it was the duty of the bank to deliver up the bonds on repayment, or at least pay the premium thereon, and not having done so, plaintiffs are entitled to recover the premium, which is proven to be not less than six or seven and one half to the dollar. Answer. If this was an absolute sale, as sworn to by Mr. Sands, the bank was not bound to return the bonds nor pay the premium, and all this we have fully explained in the general charge. 5. There is no pretence that the bank officers were not aware that the $500 bond of third series was not worth a premium at the time of giving the certificate of deposit; and besides, J. W. Sands, the cashier, swore that he knew there was a premium on bonds not matured. Answer. If Sands told Sankey that there was no premium on any of the bonds, when in fact there was a premium on the $500 bond, then you should find this premium (which would be about $40) for the plaintiffs. 6. Under the evidence plaintiffs are entitled to recover. Answer. We cannot take the case from you, and whether the plaintiffs are entitled to recover depends upon the facts found, as explained in the general charge. The court charged:— * * * “ If the witness, Mr. Sands, is believed, there was a sale of these bonds to the defendant, and the only difference there is between the statements of the cashier and the executor, is in reference to representations made by the cashier; that is, the latter denies that he told the former that the bonds were shipped, and that he told him in addition that there was no premium on them. The testimony of the cashier is supported by all the written papers which were executed at the time, to wit, the receipt, and the certificate of deposit, which indicate an unconditional sale. Then, if Mr. Sands is believed, the only remaining question is, did he fraudulently conceal from the executor any fact touching the value of these bonds, which good faith and fair dealing required him to disclose ? Had Sands, the cashier, any knowledge, bearing upon the market value of these bonds, which was not known to the executor, and which he fraudulently withheld from him ? As a general rule, a vendee about to purchase a chattel from another, is not bound to impart to the vendor any knowledge which he may possess — that the article has advanced in price — but on the contrary he may keep silence, and it is only when he speaks, that he is held to the truth of what he chooses to say. His silence cannot misrepresent. Then, did this cashier say to this executor, that there was no premium on these 7-30 United States bonds, and thus induce the latter to sell at par ? Now if he did, and knew at the time that this was false, that, in point of fact, the bonds were commanding in the market a premium of from six to seven and one half per cent., then he was guilty of fraudulent misrepresentation, and the plaintiff may recover the difference between the par value and the market value of these bonds on the 19th of August 1867.” * * * [Now, we say to you, that if you find the facts to be, that on the 19th of August 1867, when the bank purchased these bonds, it was not known to their cashier, who did the business for the bank, that the government had, by its order of the 13th of August 1867, extended the time for the conversion of the overdue 7-30s into 5-20s, then these plaintiffs cannot recover], because no concealment of a fact could be possible on the part of the cashier, when he had no knowledge that such a fact existed; a man can neither conceal nor disclose what he does not know. To hold that any sudden rise or fall in the market value of an article of traffic, unknown to the vendor and vendee, would render void a sale, would arrest all buying and selling, and the business of the world would stand still, litigation become universal, and trade impossible; therefore, we say to you that, viewing this as a sale of the bonds by the executor to the bank, [the mere fact that at the time of the sale (19th of August 1867), it was known in the centres of trade that the time for the conversion of 7-30s into 5-20s had been extended thirty days, thereby bringing these bonds from par to six or seven per centum premium, but which fact was unknown to the cashier of this bank, does not, in law, make the bank liable to pay the premium in this action], and you should find for the defendant, unless you find under the evidence, that when the executor, on the 19th of August 1867, called upon the former for the bonds, Mr. Sands told him that the bonds were not there, but had been shipped; because, if Sands thus represented that the bonds were shipped, when in fact they were in the custody of the bank, this would be such a fraudulent misrepresentation as would make the bank liable to pay the uttermost farthing of the value of the bonds to these plaintiffs. But did he do this ? * * * Even should you find that the cashier told Sankey, the executor, that there was no premium on the bonds, and told him this because he believed it, this would not entitle the plaintiff to recover, because, although it was untrue in point of fact, still it was not fraudulently false, but only unintentionally and mistakenly so ; so that the only false and fraudulent representation which could affect the bank, would be as we before stated, the cashier telling the executor that he had shipped the bonds when in fact they were still in the custody of the bank. But do you believe that Mr. Sands ever said so, without motive of any kind to induce him thus to misrepresent ?” The verdict was for the plaintiff for $47. The plaintiff took a writ of error, and assigned for error, the answers to their points and the parts of the charge in brackets.
78 Pa. 55Dearie & Wife v. Martin (1875)
Error to the District Court of Philadelphia: No. 44, to January Term 1875. This was a scire facias on a mechanic’s claim, issued May 17th 1873, at the suit of Samuel 0. Martin, against “ James Dearie and Margaret Dearie, owners or reputed owners, and James Dearie, contractor.” The claim was filed on the same day (May 17th 1873) against “James Dearie and Margaret Dearie, owners or reputed owners, and James Dearie, contractor, and factory with its lot No. 2329 Oallowhill street, being a debt incurred for gas and steam-fitting and the necessary labor for the same furnished and done by the said Samuel 0. Martin to the said factory and premises, upon the orders of said James Dearie therefor, within six months preceding the filing of his claim, according to the said bill of particulars for and about the repair, alteration and addition to the said factory, of which the said James Dearie and Margaret Dearie were or are the owners or reputed owners, and the said James Dearie the contractor.” The bill of particulars annexed to the claim was charged:— “Mr. James Dearie, “For factory or lot No. 2329 Oallowhill street, “ To S. 0. Martin, Dr. “ To repairing and altering water, gas and steam-pipes in factory.” To the scire facias the defendants pleaded “ that the said Margaret Dearie, at the time the said labor and materials are averred in said claim to have been done and furnished, was and still is the wife of the said James Dearie, and * * * the said coverture she pleads in bar of the said claim of the plaintiff.” The plaintiff replied “ that the said work and materials were done and furnished at the request and at the authority of the said Margaret Dearie, as well as of the said James Dearie, and were necessary and convenient to the preservation and enjoyment of said estate.” The defendants demurred to the replication, “ that the plaintiff, in a scire facias on a mechanic’s claim filed against the property of Margaret Dearie, a married woman, has to a plea of coverture, set up in his replication the request and authority of the said Margaret Dearie, while no such request and authority are averred of record in the claim itself as filed.” * * * The District Court gave judgment for the plaintiff on the demurrer. The defendants removed the record to the Supreme Court by writ of error; they assigned for error that the court erred in entering judgment for the plaintiff on the demurrer to his replication :— 1. Because there was nothing in the claim to show that Margaret Dearie was the wife of James Dearie. 2. Because no request and authority of Margaret Dearie were averred of record, and on the face of the said plaintiff’s claim as filed.
78 Pa. 59Catawissa Railroad Company's Appeal (1875)
65. This was a bill by Edward Whelen, for himself and others, stockholders of the Catawissa Railroad Co., against the Catawissa Railroad Co. and the Philadelphia and Reading Railroad Co. The allegations of the bill showed that the charter of the Catawissa Railroad Company, under the Act of March 21st 1860, authorized a capital stock of $3,850,000, of which $2,200,000 were to be preferred stock, and $1,100,000 common stock ; the preferred stock to be entitled to a dividend of…
78 Pa. 62City of Philadelphia ex rel. Winmill v. Edwards (1875)
1. An ordinance of Philadelphia required owners to pave in front of their property, and on neglect, after twenty days’ notice, “ left or placed on the premises, if the owner was unknown or could not be found,”, the commissioner of highways should pave, and file a lien for the cost. A notice to pave was placed on the premises, “ under a stone which covered it entirely.” Held, not to be a sufficient notice to the owners. 2. l'he Act of April 19th 1843, relating to defences to municipal claims in “ the incorporated districts of Philadelphia county,” is a restraining act, which takes away a defence that the law would otherwise allow ; it is to be construed strictly and confined to the corporations and districts expressly described in it; it was not intended to embrace the city of Philadelphia. 3. The Act of February 2d 1854 (Consolidation Act), which takes the districts mentioned in the Act of 1843 into the city, does not extend the provisions of the latter act to the enlarged city. 4. The Act of 1843 is impliedly repealed by the Consolidation Act. 5. If the commissioner had authority to contract for the paving, he was bound to do it in conformity with the ordinance.
78 Pa. 66Marr's Appeal (1876)
1. Where an account is asked on the ground of fraud, it is not sufficient to charge fraud in general terms; particular acts of fraud should be stated. 2. Fraud without damage is no ground for relief at law or in equity. 3. Fraud used in obtaining a decree, being the principal point in issue, must be established by proof before the propriety of the decree can be investigated. 4. A bill of review is never sustained on strict law, against equity. 5. A guardian may within a reasonable time be called to file and settle his account, although he may have made a settlement with the ward on his arrival at age. 6. The Act of March 29th 1832, sect. 11, does not prohibit the.Orphans’ Court in all cases from discharging a guardian without his having first settled his account in court. 7. After a ward has arrived at full age, he may waive his legal rights to an account and join his guardian in asking for his discharge; and the court has power to grant it. 8. Where there was a settlement with the ward, and a release to the guardian after she came of age, and on the joint application of the ward and her guardian a decree made discharging the guardian, the decree could not be vacated without proof of some specific act of fraud in obtaining it, or of some injury occasioned by it. 9. The 11th sect, of Act of March 29th 1832, relating to the discharge of a guardian, construed.
78 Pa. 73Stanfield v. Phillips (1875)
1. The declaration in an action for malicious arrest was general; under it only such general damages as the law presumes would follow from the arrest could be recovered. 2. To recover special damages the declaration should set out with particularity the causes which produced them. 3. Evidence of special damages can be given only where they have been properly averred in the declaration. 4. In an action for malicious arrest, under the Act of July 12th 1842, of the plaintiff, who was a merchant, the court allowed a witness to be asked, “ in what manner the plaintiff was injured in credit and circumstances and to what extent.1' Held to be error.
78 Pa. 78Haubert v. Haworth (1875)
1. Mortgagor sued mortgagee for not entering satisfaction on a mortgage which mortgagor alleged had been paid; afterwards mortgagee issued a sci. fa. on the mortgage, and also entered judgment on the bond accompanying it; the mortgagor obtained a rule to open the judgment. Pending all these proceedings the parties made an agreement that the suit for not entering satisfaction and the issue on opening the judgment should be stayed, “ and the issues and questions arising therein be settled and determined, by the final judgment” in the sci. fa. There was a verdict for the mortgagor in the sci. fa. The mortgagee in the action against him for not entering satisfaction pleaded that the mortgagor had agreed “ that the issue and questions arising in this suit should be settled by the final judgment” in the sci. fa. Held, that the plea was bad, either as in abatement or in bar, or as a plea of submission and award. 2. The verdict for the mortgagor in the sci. fa. was conclusive that the mortgage had been paid, and therefore the mortgagee was in default in not entering satisfaction on the mortgage. 3. The agreement was not a bar to the action for not entering satisfaction ; it was that the issues, &c., in that case should be determined according to the judgment in the sci. fa.
78 Pa. 84Fisher v. Saylor (1875)
Error to the Court of Common Pleas of Schuylkill county: Of January Term 1873, No 112. This was an action of assumpsit, brought to the June Term 1870, of the court below, by Daniel Saylor against Daniel B. Fisher. The plaintiff’s cause of action was, that on the 1st of August 1864, he had sold certain real estate in Schuylkill county to the defendant; in payment of the consideration the defendant, amongst other things, conveyed to the plaintiff a house in Philadelphia at $950, under an agreement that if the defendant came whole out of the real estate he bought, he would make up to plaintiff any loss he might sustain on the sale of the house. In March 1868, the plaintiff sold the house for $133.33; the suit was brought to recover the difference between that sum and $950. The case was tried March 20th 1872, before Walker, J. The plaintiff testified as to the sale of the two properties; after some negotiation as to the plaintiff taking defendant’s house in part payment, the defendant said that if plaintiff would take the house, he, defendant, would sustain all losses plaintiff might have, if he, defendant, did not lose on the land; the plaintiff then “ told him, if you lose on the land, I do not want you to make up my loss on the house. He then agreed to that, provided that he came out whole on his land.” He testified that he had sold the house to Mahlon H. Saylor, his brother, for $133, and that was all he had got out of the property. On cross-examination, plaintiff testified that the sale to his brother was a private sale; he had not advertised the property for sale; he had not given the defendant notice that he was about selling the house. He gave evidence that the defendant had made a profit on the land sold to him. He gave evidence for the purpose of showing that the house was of little value and was sold for as much as it was worth. The purchaser testified that he was agent for the plaintiff, for three adjoining houses, including the one in question ; he bought the three for $400, held them for about a year and sold them for $1750, after having put some repairs on them. The defendant testified as to the original contract and as to the value of the house. He had not known of its sale till he was informed by letter from plaintiff. He saw plaintiff, who told him for what he had sold it, and asked him to pay the difference; the defendant refused, saying that he would have taken the house back at the price he had sold it for; plaintiff said he could not do that, as it was sold. The defendant gave evidence that the house in question was the most valuable of the three sold by plaintiff to his brother; and that the two others had been sold about seven months after the sale by the brother for $1620; that the house in question was worth $900 to $950, and that it had been sold to defendant for $950 in July 1864. The evidence of defendant was principally to show that the sale by the plaintiff to his brother was collusive and fraudulent. Amongst other things, the defendants requested the court to charge:— “ That the sale being private and without notice to the defendant, and to the brother of the plaintiff, the jury are to scan the evidence closely, and if there be any evidence of collusion in the sale from the plaintiff to his brother, there can be no recovery in this case by the plaintiff.” The court answered :— “We say that if there was any collusion between Daniel Saylor and Mahlon Saylor in the sale of the property, then the plaintiff cannot recover more than the difference between a fair price for the house and the amount paid to Fisher.” The verdict was for the plaintiff for $500. The defendants took a writ of error, and, amongst other things, assigned for error the foregoing instructions of the court.
78 Pa. 88Stewart's Appeal (1875)
1. A chancellor will not always order an instrument to be delivered up to cancelled when he would refuse specific performance of the contract; he will leave the parties to their legal remedies. 2. To decree an instrument to be delivered up to be cancelled is a matter in the sound discretion of the court, and the power should not be exercised except in a very clear case. 3. Whenever an instrument exists, which may be vexatiously or injuriously used against a party, after the evidence to impeach it has been lost, or which may throw a cloud over the title, and he cannot immediately protect his right by any proceedings at law, equity will afford relief by directing the instrument to be delivered up to be cancelled, or such other decree as justice or the rights of the party may require.
78 Pa. 96Moore v. Kiff (1875)
1. Kiff gave Moore ten notes, one payable each consecutive year without interest; judgment was entered on them ; at the same time ten plain notes were given for the interest, payable yearly. Kiff made payments to Moore from time to time; neither party made any appropriation of these payments to either debt. More than six years after the interest notes were due, in a scire facias on the judgment, the court charged “ as the interest notes are now barred by the statute, these payments must be applied to the debt in controversy.” Held to be error. 2. Where a debtor owes more than one debt to the same creditor, and a payment is made generally, the law makes the application. 3. Where money is paid generally on a debt, it is to be applied first to the interest, and then to the extinguishment of the debt. 4. The interest notes were payable in goods; when payments were made it was agreed that they should be credited on “ the notesthere had been no offer by the debtor to pay in goods : Held to be payment on the debt evidenced by all the notes. 5. When payment of a debt is to be in goods, failure to pay or offer to pay in goods, according to agreement, fixes the liability of debtor to pay in money.
78 Pa. 100Carhart's Appeal (1875)
1. A court of equity will execute a trust where there is a valuable consideration ; but if it be voluntary the legal estate must be put out of the settlor; the question as to its validity being whether it was at first perfectly created. 2. In general, a court of equity will not execute unexecuted voluntary contracts inter vivos, but will leave the parties to their remedies at law. 3. The simple avowal by a purchaser at sheriff’s sale, whether made at the time of the purchase or afterward, that the purchase was for another, will not support the allegation of a trust. 4. Power signed a paper stating that if he purchased lands about to be sold by the sheriff, he would hold them on specified trusts for creditors of the defendant in the execution; after his purchase of the land, Held, under the circumstances of the case, not to create a trust in Power.
78 Pa. 120Fordham & Others' Appeal (1875)
In the distribution of the proceeds of the sheriff’s sale of the real estate of H. C. Burgess and Alexander Smith. About the 5th of September 1871, George H. Burgess, being the owner of the real estate above mentioned, commenced the erection of a building on it; he dug the cellar, laid the cellar-wall and put on the sills ; this work was done between the above date and the 1st of December; he did nothing more after that time.
78 Pa. 122Brown v. Commonwealth (1875)
Error to the Court of Oyer and Terminer of Bradford county: Of January Term 1875, No. 132. Albert Brown was indicted at the September Term 1874, of the Court of Quarter Sessions of Bradford county, for the murder of Cora Greenleaf. The indictment contained two counts: one, in the ordinary form, for the murder of the deceased, and the other, for her murder in perpetrating a rape upon her. The caption of the indictment entitled it in the Court of Oyer and Terminer. The venire for the grand jury, issued out of the Quarter Sessions; the indictment was not certified into the Court of Oyer and Terminer before the trial. The records of all the proceedings on the trial, were contained in the Quarter Sessions docket. The cause was tried before Morrow, P. J., and his associates, in the Oyer and Terminer. The evidence was that the prisoner had ravished the deceased, and afterwards cut her throat. The defence was that the prisoner was insane, and evidence was given in support of it. On the defence of insanity, the court charged: * * * “ Now with regard to the law upon that subject, we shall not undertake to enter upon a discussion of this subject in general, but lay down to you only such few rules as we think will enable you to determine the question raised by this defence. 1st. The law presumes every man to be sane; that is the presumption of law. It also presumes that every man possesses a sufficient degree of reason to be responsible for his crimes, and that presumption continues until the contrary be proven. To establish a defence upon the ground of insanity it must be clearly proved that at the time of the committing the act, the prisoner was laboring under such a defect of reason as not to know the nature and quality of the act he was doing; or if he did it, that he did not know he was doing what was wrong. This is the general rule, but we will more particularly say that ‘ when the reason is dethroned, when a man has not power to distinguish right from wrong, or lacks power to adhere to the right and abstain from the wrong, he is not accountable to criminal law.’ Or if the prisoner was actuated by an irresistable inclination to kill, ‘had murder in his heart,’ and was utterly unable to control his will or subjugate his intellect, and was not actuated by a wicked purpose, or intent to indulge in this depraved propensity to have sexual connection with the deceased, was not actuated by anger or revenge or kindred passions, he is entitled to be acquitted; provided the jury believe that the state of mind, now referred to, has been proven to have existed by satisfactory evidence, at least by preponderating evidence. “ The presumption of law is that he is sane; that he is responsible for any act he may do. The burden then is upon him to show that he was not responsible, by reason of inability to commit crime, and in connection with this, we cannot say, as a test, that because a man is of w'eak mind, that therefore he is excused from the commission of crime; such is not the law. If he has sufficient strength of mind to form a purpose and intent, to know and distinguish between right and wrong, to know the act is wrong, and power to abstain from it, if he had that power, although his mind was as weak as testified to by Dr. Shultz, and was not compelled, as it were, by some power outside of himself to commit the act, then he is responsible. “It makes no difference whether the evidence indicating insanity is brought out by the testimony on the part, of the Commonwealth, or proved directly on the part of the prisoner; but one thing is certain: it must be proved in some way, or at least the weight of evidence that such is the fact must preponderate. * * * The prisoner must here set up positive, actual proof of the existence of insanity upon his part, of an irresistible power controlling him. * * * Now, under all the evidence in the case with regard to the cause of this crime, the time and manner when it was committed, and everything as shown by the evidence, does all this establish the fact that this man had not power to control himself? Is it satisfactory and preponderating evidence to establish the fact that at the time he committed this act, it was not his act but the act of some power controlling him, an irresistible power ? If so, then you should acquit him. It would be monstrous to convict a man of any crime he is not capable of committing, and who does not know right from wrong, and has no moral sense or convictions about it. But, on the other hand, if this evidence does not preponderate and satisfy you that at the time he committed this act he was insane and unable himself to do it, it is clearly your duty to convict him of such crime as in your judgment, under the law, he has committed. The presumption of law is that every person charged with a crime is innocent until he is proven guilty. In this case, the prisoner admits the fact that he committed the crime, and the only question, therefore, for the jury to determine is, was the prisoner capable of committing a crime ? Did he know the act was wrong ? Did he know the nature and character of it ? Was he conscious of what he did at the time? If he was, although he is a person of weak mind, although he is addicted to bad vices-, although he is afflicted with disease, [yet if he had the power of mind enough to be conscious of what he was doing at the time, then he is responsible to the law for that act.”] * * * December 11th, the jury found the prisoner guilty of murder in the first degree. After overruling a motion in arrest of judgment, the court on the 16th of December' 1874, pronounced sentence of death on him. On the 22d of December, the clerk of the Court of Oyer and Terminer transmitted an exemplification of the^ record to the governor. On the 25th of January 1875, a writ of error was filed and its service accepted by the district attorney. On the 10th of February 1875, the Court of Quarter Sessions granted leave to the district attorney to amend the caption of the indictment nunc pro tunc as of September 8th 1874, by striking out “ Oyer and Terminer” and inserting “ Quarter Sessions,” and also to amend the record by striking out all that part of the record made subsequently to return of the bill a “ true bill,” as having been erroneously made by.the clerk by transcribing it into the record of the Quarter Sessions. On the same day, the court directed that the case be certified, nunc pro tunc as of September 8th 1874, from the Quarter Sessions into the Oyer and Terminer; on the same day, the case was certified according to the order into the Oyer and Terminer; and the Court of Oyer and Terminer ordered that the indictment as certified from the Quarter Sessions, be filed nunc pro tunc as of September 8th 1874, in the Court of Oyer , and Terminer; it was accordingly filed as of that day. There was a large number of specifications of error. Those considered by the Supreme Court related to the amendments of the record and to the portions of the charge on the question of the burden of proof of insanity. ■ ■
78 Pa. 129Brown v. Day (1875)
Error to the Court of Common Pleas of Monroe county: Of July Term 1874, No.’ 1. This was an action of ejectment, brought December 2d 1870, by Israel Day, Samuel Saylor, Thomas C. Davis, and William Mc-Murtrie against John Brown, John Stoddart, and John R. Crellin, for a tract of land in Tobyhanna township, Monroe county, formerly part of Northampton, in the warrantee name of Samuel Harvey, containing 413f- acres, bounded by lands in the warrantee names of Mary Harvey and others. The case was tried January 1st 1874, before Streeter, P. J., of the Thirty-fourth district. The plaintiff’s evidence showed: warrant to Samuel ITarvey, dated September 17th 1792, for 400 acres of land on Trout creek, near the river Lehigh, in Northampton county, and survey on the warrant November 19th for 413f acres. Wayne county was cut off from Northampton county in 1798. The tax books of Wayne county show that this tract was taxed in that county as unseated every year from 1799 to 1805 inclusive. Plaintiffs then gave in evidence, under objection and exception, a deed dated February 11th 1806, from Abraham Mulford, sheriff of Wayne county, to Silas Kellogg. The deed recited a warrant from the commissioners of that county, commanding him to sell for taxes such unseated lands as he should be directed by the commissioners; in pursuance of the warrant, he sold and conveyed to Silas Kellogg two tracts, surveyed to Samuel Harvey, one situated “between Trout creek and the Lehigh,” containing 400 acres 150 perches; the other, situated “ on Trout creek,” containing 413 acres 113 perches; one tract surveyed to Mary Harvey, situated “ on Trout creek,” containing 403 acres 60 perches, and a number of other tracts designated in the deed. ■ They gave in evidence, a deed dated January 13th 1806, from Silas Kellogg to John Stoddart, for two tracts on Trout creek, one in the warrantee name of Mary Harvey, for 403 acres 36 perches; the other, in the name of Samuel Harvey, for 413 acres 113 perches, being two of the tracts conveyed by Mulford to Kellogg : Also, deed dated October 23d 1813, from Jonathan Tyson to James Tyson for the undivided half of five tracts, viz.: Mary Harvey, 403 acres 60 perches, Samuel Harvey, 413 acres 113 perches, and three others designated in the deed; also, deed dated October 18th 1814, from Joseph Tyson to James Tyson, for the undivided half of two tracts, one in the name of Mary Harvey, for 403 acres 60 perches, the other in the name of Samuel Harvey, for 413 acres 113 perches; this deed contained a recital that Silas Kellogg sold the same to John Stoddart, and that John Stoddart, by deed poll endorsed on the deed from Kellogg, conveyed the same to Joseph Tyson and Jonathan Tyson on the 24th of May 1808. A witness for plaintiff testified, that Joseph Tyson had claimed or owned the Samuel Harvey tract in Tobyhanna township, and, also, the Mary Harvey tract, which adjoined it, — sixty years before; he built a saw-mill on the Mary Harvey tract; the line'of the Samuel Harvey was about 100 yards from the mill; Trout creek ran through the Mary Harvey; the Samuel Harvey came up to the bank of the creek; the Mary Harvey was partly in Tobyhanna and partly in Ooolbaugh township. James Tyson came there twenty years after the first mill was built, and built a new saw-miill, and as soon as he finished the mill, sold to George Craig ; he was there two years, and lumbered on the land. Amos Moore came after him and lumbered several years; he died whilst in possession; Day and Saylor next claimed the possession; about six or seven years before the trial Brown and Stoddart claimed possession. The dam on the Mary Harvey backed the water on the Samuel Harvey; several houses were built on the Mary ITarvey; there was lumbering done on the tracts by Day and Saylor. Another witness testified that Davis and McMurtrie came after Day .and Saylor; there was a house built when the second mill was built, and it had been occupied down to the time of trial. In 1866 the two tracts were assessed to Day and Saylor; the Samuel Harvey as unseated and the Mary Harvey as seated. The plaintiffs gave evidence from the tax books that the taxes on the Samuel Harvey, assessed as unseated in Tobyhanna, were paid in 1856-1857 by Amos Moore. They then gave in evidence: deed, June 3d 1847, James Tyson to George Craig, for the Mary Harvey, 403 acres 60 perches; the Samuel Harvey, 413f acres; the George Solliday, 34 acres, described together as one tract, containing 850 acres 25 perches. Deed, January 13th 1851, Craig to Amos Moore, for same property, described as one tract. Will of Moore, proved September 23d 1858, devising one half the property to Stephen B. Moore', and directing the other half to be sold by his executors. Deed, April 5th 1859, Stephen Moore to Day and Saylor, for an undivided half of “said 850 acress 25 perches;” same day, deed from executors of Amos Moore to Day and Saylor, for the other undivided half of “said 850 acres and 25 perches;” deed, March 2d 1868, Day and Saylor to Thomas C. Davis and William McMurtrie, for an undivided half of “ said 850 acres 25 perches.” The defendants gave in evidence: assessment of the Samuel Harvey, 413f acres, as unseated in Tobyhanna township, for the years 1858 and 1859, and treasurer’s sale and conveyance of the tract for taxes, on the 2d of June 1860, to S. J. Hollinshead; payment of taxes by Hollinshead for the years from 1860 to 1865, inclusive, and by Brown and Stoddart from 1866 to 1869, inclusive. Also, deed, December 30th 1865, from the widow and heirs of Hollinshead to Brown and Stoddart, for the several tracts of land, including the Samuel Harvey. Patent, May 5th 1870, to Brown and Stoddart, for the Samuel Harvey in Tobyhanna township ; also, connected draft of nine tracts in Tobyhanna and Coolbaugh townships, one being Samuel Harvey, 413f acres, in Tobyhanna, and another, Samuel Harvey, 400 acres 115 perches, in Coolbaugh. They further gave evidence for the purpose of showing that the Samuel Harvey was unseated; also, from the tax books, that the assessments from 1850 to 1861 in Tobyhanna township, in the names of Craig, Moore and Day and Saylor, were of seated land; there were no assessments to either of them of unseated land. In rebuttal the plaintiffs called James H. Stroud, who testified that he had received a letter from Day and Saylor in 1860 ; that he searched for it in all places where it was likely it would be found, and that he had been unable to find it; the search was two or three years after he got it; he had looked through his papers twice since; the last a short time before the trial, at W. Rees’s office, in which he had kept his papers for the last six or seven years, and to which his papers had been removed from the bank, where he had before kept them; he had not searched at the bank for the letter since he had left it; two or three years after he received the letter he searched for it at the bank; he found the receipt, but did not find the letter; his letters were in bundles, endorsed; he took the bundles apart and looked for the letter, but did not open each letter; he kept his papers in a drawer in the bank vault; also private papers in the pigeon holes; the search was in the drawer, but none in the pigeon holes; he left the letters in the pigeon holes when he left the bank ; at Rees’s office he looked inside of every letter separately; the letters in the pigeon holes were to himself as cashier; did not keep his private letters in them. After the adjournment of the court, the witness testified that since the adjournment he had searched in the pigeon holes; he inquired at the bank and learned that the letters had been destroyed; the cashier said the letters prior to 1866 had been put into the cellar, and afterwards had been sold to a man who bought paper and rags. The plaintiffs then offered to give evidence of the contents of the letter; the defendants objected, on the ground that there was not sufficient evidence of its loss; the court admitted the offer, and sealed a bill of exceptions. The witness testified that the letter -was from Day and Saylor; it contained money to pay taxes, with a list of the tracts on which they were to be paid; he left the list with the treasurer, and told him he wanted to pay the taxes on Day and Saylor’s land; the next day he paid the taxes and took a receipt; this was before the treasurer’s sale in 1860; he had no.recollections of the contents of the letter, except in a general way to pay their taxes; he had no recollection of the contents of the list except that it contained the warrantee names; there was one Samuel Harvey on the list; there were two Samuel Harvey tracts, one of which Day and Saylor did not own. When Day got the receipt he found it was for the one which he did not own; this was after the treasurer’s sale, and after the day of redemption. Saylor, one of plaintiffs, testified that, in 1860, he wrote to Stroud to pay their taxes in Monroe county, giving the names, amongst others, “ our Trout creek lands, bought from the Moore family, giving the names of Daniel Ross, Mary Harvey and Samuel Harvey, to pay taxes on the same tract Moore paid on.” He did not own the Samuel Harvey tract in Ooolbaugh township. They then gave in evidence the treasurer’s unseated land-book of Monroe county, showing the payment of the taxes for 1858- 1859 by Day and Saylor, on the Mary Harvey in Tobyhanna; and for the same, years on the Samuel Harvey in Ooolbaugh. The defendants gave evidence, by the treasurer of 1860 and by his books, that the taxes of the tracts which Saylor had testified were contained in his letter, except Samuel Harvey in Tobyhanna, were paid by Day and Saylor, and that at the same time the tax on the Samuel Harvey, in Ooolbaugh, had been paid by them, but that the tax on that in Tobyhanna had not been paid. They gave in evidence a copy of the receipt given June 9th 1860, the time of payment. It contained a list of the same tracts, including the Samuel Harvey of Ooolbaugh, but not of Tobyhanna. The first point of the plaintiff was affirmed; it was:— “ The plaintiffs have shown sufficient title upon which to recover the land in dispute against the defendants, unless the tax sale of 1860 legally passed the title to S. J. Hollinshead.” The second point was :— “ If the jury believe the taxes were actually paid by J. H. Stroud for Day and Saylor upon their unseated lands situate in Monroe county, in the month of June 1860, and, through mistake of the treasurer, the portion directed to be paid upon the Samuel Harvey tract owned by them was not credited to said tract, the sale for unpaid taxes to Mr. Hollinshead was void, and the plaintiffs are entitled to recover the land in dispute.” The court said:— “ We answer this point in the affirmative, unless the jury believe that Day and Saylor by their negligence in some degree occasioned the mistake.” The following were points of the defendants, with the answers:— “ The limitation of five years, fixed by the third section of the Act of 3d April 1804, is a bar to the recovery of the plaintiffs in this action.” Answer : “ This point is denied.” 5. “ If the Samuel Harvey tract in Tobyhanna township was never in Wayne county, no title to it passed by the sheriff’s sale for the non-payment of taxes in that county.” “ This point is true as an abstract proposition, but has no application to this case.” The court charged :— “ The tax sale of 1806 in Wayne county, given in evidence by the plaintiff, was invalid so far as relates to the land in dispute in this case. The Samuel Harvey located in Tobyhanna township, was not located in Wayne county, and Silas Kellogg, the purchaser, took no title to this tract. [That tax sale is a matter of no importance in this case.] On the 3d of June 1847 [James Tyson being in possession of several tracts, including the Samuel Harvey, conveyed them in a body to George Craig], This conveyance embraced 850 acres and 25 perches, and included the Samuel Harvey, the Mary Harvey and the George Solliday tracts. [Craig lumbered on these lands some three years, according to the evidence of Andrew Escheubach, and then by deed dated 13th January 1851, conveyed the same property to Amos Moore. Moore lumbered upon it several years and paid taxes upon it, and died in possession.] The title of Moore was vested in these plaintiffs by deed of the 5th of April 1859. [This recital of facts shows that the plaintiffs were in possession by color of title, and they may recover against an intruder without title.] “ Are the defendants intruders, or are they in possession by virtue of a title? This question can only be considered by determining the validity of the tax sale of 1860 to Stroud J. Hollinshead. “ The tract was unseated, and, if the taxes had not been paid, that sale passed a good title to Stroud J. Hollinshead, who conveyed to these defendants. Day and Saylor attempted to pay these taxes. They sent funds to James H. Stroud, and directed him to pay their taxes. He paid the money to the county treasurer, but the taxes upon the Samuel Harvey in Tobyhanna township were not marked as paid. The evidence shows that the money of Day and Saylor was applied to the payment of the taxes upon the Samuel Harvey in Coolbaugh township, a tract which the plaintiffs did not claim to own. [The money seems to have been credited to the wrong tract. Whose mistake was it? Did the negligence of Day and Saylor contribute, in the least degree, to this mistake ?] If it did, the sale was good, and Hollinshead took a perfect title, which is now vested in these defendants. But if Day and Saylor paid the full taxes, and they were credited to the wrong tract by the mistake of the treasurer alone, and the fault was exclusively his, then the payment was a good one, and the subsequent sale for taxes was void. * * * By whose negligence were the taxes applied to the wrong tract ? If there was any negligence on the part of Day and Saylor, then this tax sale was good, though the treasurer may also have been guilty of gross negligence. Did the list given to the treasurer by Stroud indicate clearly and plainly the tracts upon which the money was to be paid, so that no mistake could be made without gross inattention on the part of the treasurer ? If it did, and the mistake was exclusively the fault of the treasurer, the payment was a good one, and the tax sale void. [The case turns upon the question of fact, which is entirely for the jury. I repeat that if Day and Saylor, by the manner in which they prepared their instructions, contributed in the least degree to the mistake which seems to have been made in crediting the taxes, they are not entitied to recover, but if the fault was wholly and entirely that of the treasurer, the plaintiffs are entitled to recover.”] The verdict was for the plaintiffs. The defendants sued out a writ of error; they assigned for error:— 1. The admission of Sheriff Mulford’s deed in evidence. 2. Admitting parol evidence of the contents of the letter of Day and Saylor to Stroud. 3. Affirming plaintiff’s first point. 4. 5. The answers to defendants’ second and fifth points. 6-11. The parts of the charge in brackets.
78 Pa. 141Freyman v. Knecht (1875)
1. The defendant sold plaintiff a horse, warranting it sound, the eyes being then sore; evidence of the condition of the eyes a year afterwards was admissible for the purpose of showing that the disease was not temporary but permanent. 2. Evidence of the condition of the eyes a year after the. sale was not admissible per se to show that they were diseased at the time of he sale; it should not have been received without evidence to'show what was their condition during the intermediate time. 3. The plaintiff alleging that the warranty had been broken, returned the horse, the defendant refused to receive it, and it was sold as a stray for about the price plaintiff paid. Held, that evidence of these facts was admissible. 4. The horse or its value was the property of the plaintiff, and the defendant might show the price for which it was sold as a stray, as evidence of the value at the sale to the plaintiff. 5. If the defendant was guilty of fraud in the sale and warranty of the horse, the plaintiff might rescind, and on returning or offering to return it, recover back the price paid in case for deceit, or in assumpsit or case for the fraudulent warrant 6. If there were no the plaintiff could not rescind the contract for breach of warranty and return the horse without defendant’s consent. 7. He might sue either in case or assumpsit for breach of warranty, and the measure of damages would be, not the consideration but the difference between the actual value and the value if sound, with interest from the sale. 8. Where there is a warranty and no fraud or agreement to return, the vendee cannot rescind the contract after it has been executed; his only remedy is on the warranty. 9. Kase v. John, 10 Watts 107 ; Vanleér v. Earle, 2 Casey 277, followed.
78 Pa. 145Person's Appeal (1875)
Appeal from the Court of Common Pleas of Qarbon county: No. 122 of July Term 1874. In the distribution of the proceeds of the sheriff’s sale of the personal property of Peter Laux. By the report of the auditor, E. B. Siewers, Esq., appointed to make distribution of the above-mentioned proceeds, it appeared as follows:— On the 19th of January 1874, G. B. Linderman & Co. issued a pluries fi. fa., No. 2, to March Term 1874, against Laux, for debt, $7500; on this writ the sheriff endorsed “ Came to my hands, January 19th 1874, at 4 p. M.” On the same day, F. H. Person issued a fi. fa., No. 3, to the same term, against Laux, for debt, $327.42 ; on this writ the sheriff endorsed, “ Came to my hands, January 19th 1874, at 12.30 p. M.” The auditor heard parol testimony, which showed that for nine years two pigeon holes or boxes had been set apart in the prothonotary’s office for the shei’iff’s writs; in one of them the writs are placed by the prothonotary as soon as they are issued; in the other the sheriff placed the writs after he had executed them. There was, also, a desk in the prothonotary’s office for the exclusive use of the sheriff; he kept a key of the office and had free access to the pigeon holes where the writs were placed. The sheriff was in the prothonotary’s office when writ No. 2 was issued, and 'then knew of its being issued; after leaving the office and going to his dinner, No. 3 was placed in his hands at his residence and he there endorsed the time of its receipt. He returned to the prothonotary’s office about four o’clock, got No. 3 from his pigeon hole, and then endorsed the time of its receipt. The auditor decided, under these facts, that the prothonotary’s office was the sheriff’s usual place of business, that placing No. 2 in the sheriff’s pigeon hole was a proper delivery to him; and as that had been done before No. 3 was put into the sheriff’s hands, No. 2 was entitled to priority in the distribution of the fund, notwithstanding the endorsements on the writs showed that No. 3 came first to his hands. He accordingly awarded the whole fund, $562.40, after deducting costs and expenses, to No. 2. After exceptions by Person, the court, Dreher, P. J., confirmed his report and decreed the whole fund to G. B. Linderman & Co. Person appealed to the Supreme Court and assigned this decree for error.
78 Pa. 147Kemmerer v. Tool (1875)
1. One owning land subject to a lien purchased other land before the lien expired, and agreed, by amicable sci. fa., to revive the lien so as to bind the after-acquired land. "Within four months he was declared bankrupt. Held, that the agreement was not in fraud of the bankrupt law. 2. The circumstance that a debtor consents to do what was for his own advantage would not affect the creditor with knowledge of insolvency, which from other facts he had no reasonable cause to believe. 3. The bankrupt’s real estate was sold by the sheriff, who paid the judgment-creditor in the revived judgment. Held, that the Court of Common Pleas had jurisdiction to entertain a suit by the assignees in bankruptcy for the recovery of the money so paid, if the judgment had been in fraud of the bankrupt law.
78 Pa. 152Grim v. Bonnell (1875)
Error to the Court of Common Pleas of Northampton county: No. 67, to January Term 1875. This was an action of assumpsit, brought October 13th 1873, by Alexander Bonnell against Jacob L. Grim, to recover the price of grain which the plaintiff claimed that the defendant had bought from him, through the defendant’s agent. The question was, whether the grain had been bought from the plaintiff or from the alleged agent. The case was tried September 24th 1874, before Kirkpatrick, P. J. The plaintiff gave in evidence, an entry in his books, charging defendant as follows:— October 11th 1872. 100 bags containing 200 bushels wheat at $1.69 . . . $338 100 bags wheat screenings at $1.25 125 weighing .... 1 J. Gurnee, who was in the employ of plaintiff, testified that in October 1872 the defendant and George Wenner were at the store of plaintiff in New York ; they examined his wheat and talked about prices ; plaintiff said he would not buy then ; if he made up his mind to buy he would leave the order with Wenner; would leave instructions with him whether to buy or not; defendant and Wenner talked about 100 bags of wheat and 100 bags of screenings. When defendant was called on by witness to settle the bill, he said he had settled with Wenner who owed him, that he had bought the wheat of Wenner, and had given him credit on his books. Plaintiff testified : that defendant and Wenner were at his store; Wenner said plaintiff wished to buy about a car-load of wheat and wheat screenings ; plaintiff tried to sell to him ; he said he wished to look around a little; if he concluded to take he would “ have Wenner tell the plaintiff, give the ordera day or two after-wards, Wenner saw the plaintiff and said defendant had concluded to take a car-load of wheat and screenings, and gave an order to plaintiff to ship it to Freemansburg, with the prices marked as they had been given to defendant. It was then proposed to ask plaintiff: “What did George Wenner say to you when he gave you this memorandum about the time when the grain must be paid by Grim ?” The question was objected to as incompetent, unless connected with authority from defendant to make declarations as to the time of payment. The court admitted the question as put, and sealed a bill of exceptions. Plaintiff testified that he asked about pay, and said thirty days was too long; Wenner said defendant would pay it in twenty days; he could pay then as well as any other time ; plaintiff said he would ship the goods. When defendant and Wenner were at the store, the quantity was spoken of by Wenner ; all three talked together. Wenner did not ask to purchase on his own account. Wenner was then in plaintiff’s debt and was insolvent; plaintiff would not have sold him two bushels of wheat; plaintiff sent the wheat to defendant, in consequence of his saying that he would leave word with Wenner for plaintiff. Plaintiff then offered in evidence the memorandum given to him by Wenner, viz. : “J. L. Grim. Freemans Burg Penn New Jersey Central 20 Day time to pay.” “ $167 and Cartage 125 for Screenings 100 Bgs Wheat 100 Bgs Screenings It was objected to by the defendant, on the ground that there was no proof that the paper was written by defendant or authorized by him. The court admitted the offer and sealed a bill of exceptions. The defendant testified : that Wenner owed him since 1872 the sum of $921.50 ; that the debt had not been paid. Wenner was in business in New York, and told defendant when he demanded payment that if he wanted grain he would sell it to him, he had no money; he went with defendant to plaintiff’s store; plaintiff asked defendant if he could sell him a car-load of the screenings; defendant said “No !” Plaintiff then said, “You had better leave your order.” Defendant replied he would see, and left the store. He further testified : “I did not give any authority in that store to buy any grain for me ; I did not at any time give him any order in writing, or by word of mouth, to buy any grain for me.” Defendant was then asked the following questions:— “ Did you subsequently buy the grain in controversy of George Wenner at your mill in Saucon township in this county, and give him credit for the amount on your books ?” Defendant proposed to ask another witness:— “Did you hear George Wenner say, on or about the middle of October 1872, to Grim, ‘I have a car-load of grain at Freemansburg; unload it and give me credit on your books’ ?” Defendant offered in evidence the following letter from Wenner to defendant, Wenner being a resident of New York, and beyond the process of the court. “Reading, Oct. 18th ’72. Sir: If a bill does come from Mr. Bonnell I bought the stuff on twenty days. Will pay it. Will not hurt you any if you get a bill. It was the best I could do. Now take the grain and say nothing. I will do the best I can. Yours, Geo. Wenner.” Also, the day-book of defendant, showing credits of the grain in favor of George Wenner, October 18th 1872. Each of these offers was' objected to as res inter alios acta, rejected by the court, and several bills of exception sealed. The defendant’s seventh point, with its answer, was:— “If the jury believe there was a boná fide sale between Grim and Wenner, that Grim paid for the goods by crediting Wenner with the amount of his bill, and that Grim retained the goods in good faith, believing that he had bought them and paid for them in the regular course of trade, it is their duty to fipd a verdict in favor of the defendant.” Answer. “ This point is denied, as having no material application under the evidence.” The verdict was for the plaintiff for $526.92. The defendant sued out a writ of error, and assigned for error : 1, 2. Admitting the plaintiff’s offers of evidence, which were objected to. 3-6. Rejecting the defendant’s offers of evidence. 7. The refusal of defendant’s seventh point.
78 Pa. 158Mudge v. Williamsport (1875)
Error to the Court of Common Pleas of Lycoming county: Of January Term 1874, Nos. 241, 242. The proceedings in this case arose upon the account of Hiram Mudge, treasurer of the city of Williamsport, which was incorporated January 14th 1866. The 29th section of an Act passed March 22d 1870, Pamph. L. 525, appointed three persons named in it, city auditors, any two of whom should be a quorum, to audit, &c., the accounts of the city treasurer, &c., “ and make report thereof to the city council, with a statement of the balance due from or to said treasurer, &c., and once in every year cause to be published, &c., a just and true account of all the moneys which shall have accrued to the city during the, year, and also the disposition thereof, * * * and the said auditors shall have the same authorities that county auditors now have by law';” * * * the auditors named to hold their office until the next city election, when their places were to be supplied by a new election. By the Act of April 15th 1834, sect. 55, Pamph. L. 547, 1 Br. Purd. 301, pi. 16, it is enacted, that:— “ The report of the county auditors shall be filed among the records of the Court of Common Pleas of the respective counties, and, from the time of being filed, shall have the effect of a judgment against the real estate of the officer who shall thereby appear to be indebted either to the Commonwealth or to the county.” Section 56 of the same act gives the county or the officer, on whose accounts the report is made, an appeal from the report to the Court of Common Pleas, and the court is authorized to direct an issue to try the same. A majority of the auditors, on the 1st of April 1872, made a settlement of the account of Mudge, as city treasurer, by which there appeared to be in his hands a balance of $58,303, and on the 11th of May 1872, they made report of the settlement, and the city asked the Court of Common Pleas that the report might be filed amongst the records of that court, under the provisions of the 29th section of the Act of March 22d 1870, and of the 55th section of the Act of April 15th 1834. Mudge objected to filing the report, denying that there was any authority by law to file it. On the 18th of May 1872, the court granted leave to the city to file the report of the auditors under the provisions of the Acts of 1834 and 1870 above mentioned, ‘‘to have such effect as fixed and provided by said Acts of Assembly.” On the 12th of June 1872, the defendant appealed from the report to the Court of Common Pleas of Lycoming county. The court directed a feigned issue, “ wherein the city of Wil-. liamsport shall be plaintiff, and Hiram Mudge, defendant, to determine whether the amount, found by the auditors of the city of Williamsport, to be due from the said defendant, as treasurer of said city, is more or less than is legally due from said defendant to said plaintiff, and what amount, if any, is due from defendant to plaintiff, on his account as treasurer of said city. Karr, to be filed, &c., plaintiff to give twenty days’ notice before court to defendant, of items and the character thereof, with which they propose to charge defendant, in addition to the amount found to be due by the auditors, and the defendant to serve same notice on plaintiff, of items and character thereof, which he claims should be credited to him in said account, and. which were rejected by the auditors.” The case was tried, November 28th 1873, before Gamble, P. J. The plaintiff offered in evidence the report of the auditors before stated, for the purpose of showing the indebtedness of the defendant. The defendant objected to the offer, on the grounds that, in directing the issue, the court was not authorized to make any order which would dispense with making out the plaintiff’s case by competent and legal testimony; the finding of the auditors is not evidence against the defendant; and being an issue in pursuance of an appeal, the plaintiff’s case must be established de novo. The offer was admitted, and a bill of exceptions sealed. The report was then given in evidence. Much evidence was offered, and, under objection and exception, some was received and some rejected; the grounds upon which the Supreme Court decided the case render it unnecessary to refer to it further. Under the direction of the court the jury found for the plaintiff for |63,304.33. The defendant sued out two writs of error, one from the appeal and the other from the feigned issue. He assigned fourteen errors. 1. Admitting in evidence the report of the auditors 13. The order directing the filing of the report. 15. The order directing the feigned issue.
78 Pa. 161Commonwealth v. Reiter (1875)
1. An indictment set out an Act of Assembly — of April 17th 1869 — to lay out a state road ; averred that it was laid out through Cascade township ; that all the requirements of the act had been complied with, and that the supervisors of that township had neglected to open it. Held, that the supervisors were liable on the indictment. 2. The 4th sect, of the act provided, after the report, &c., were filed, the road should be a “public highway,” and upon notice it should be opened, &c., as other public roads. ' The 5th sect, required the supervisors, upon the request of a person interested, “who may offer to advance money,” to open “ any certain portion ” of the road, to take his obligation for the sum and let out the opening to the lowest bidder, and on refusal the supervisors should be liable to the penalties “ now imposed ” for refusing to open roads. Held, on demurrer, that the supervisors, on notice under the 4th section, were bound to open the road, without such advance, and expend the general funds of the township for the purpose. 3. The obligation on the supervisors, under the 5th section, is to open “ any certain portion” of the road on request of one interested who will advance the money. 4. A supplement was enacted, which dispensed with some requirements of the act and imposed duties not in it. ■ The indictment was for neglect of duty after the supplement under its modifications. Held, that the supplement was valid and the supervisors were liable under it. 5. The notice need not be in writing; and its reasonableness was for the jury, having regard to the season of the year and the sufficiency of township funds. 6. Edge w. Commonwealth, 71 Barr 275 ; Grafms v. Commonwealth, 3 Penna. R. 502: Phillips v. Commonwealth, 8 Wright 197, followed.
78 Pa. 166Keller v. Young (1875)
Error to the Court of Common Pleas of Clinton county: Of ■ July Term 1874, No. 251. This was an action of trespass, q. c. f., brought May 3d 1873, by Peter W. Keller and James David, against William B. Young, Edward Worth, R. T. Barber, Nathan McOloskey and others. The locus in quo was originally part of a larger tract of 415 acres in Centre county, in the warrantee name of Peter Hahn. Subsequently, Clinton county was erected out of parts of Centre and Lycoming counties. The whole tract was sold for taxes by the treasurer of Centre county to parties under whom the defendants claimed; the locus in quo was sold for taxes by the treasurer of Clinton county to parties under whom the plaintiffs claimed. By Act of June 21st 1839, Pamph. L. 362, certain parts of the counties of Lycoming and Centre by boundaries, as designated in the act, so as to include Logan, Lamar and Bald Eagle townships, then in Centre county, were erected into a new county, to be called Clinton, and commissioners were appointed by the act to “ ascertain and plainly mark the boundary lines ” of the new county. By the 7th section of the Act of April 11th 1848, Pamph. L. 505, other commissioners were appointed “ correctly to run and mark distinctly the boundary line between said counties, agreeably to the act creating Clinton county, * * * the commissioners shall make out drafts, one to be filed in the commissioners’ ofiice of each of the aforesaid counties, * * * and the report of said commissioners shall be final and conclusive.” An Act of April 28th 1857, Pamph. L. 332, recited the appointment of the last commissioners ; that they ran and marked the division line and reported a draft thereof according to law; it further recited that there was a discrepancy between the draft or report made by the commissioners and the marks on the ground of that part of the line from Beach creek to the west branch of the Susquehanna. The act then appointed other commissioners “ to run and mark distinctly the boundary line between said counties, from the west branch of the Susquehanna to Beach creek, agreeably to the act creating Clinton county, and the commissioners shall make out two drafts, giving the names of the warrantees, where known, along said division line, * * * and in case there should be any discrepancy between the drafts made by said commissioners and the marks upon the ground, the former shall govern and be final and conclusive.” These commissioners failed to act, and by Act of February 5th 1859, Pamph. L. 83, other commissioners were appointed, who “ shall correctly run and mark distinctly the boundary line between the counties of Centre and Clinton, and it shall be the duty of said commissioners to lay down on their drafts the tracts of land through which the lines may pass, agreeably to the Act of Assembly creating such counties and the supplements thereto; and the said commissioners, or a majority of them, shall make out three drafts, one of which shall be filed in the commissioners’ office of each of said counties, and the other be filed in the surveyor-general’s office, there to be kept as a matter of record, * * * and the report of said commissioners shall be final and conclusive.” On the 28th of November 1859, the commissioners reported:— “ We the undersigned, a majority of the commissioners named in the said act as commissioners aforesaid, do report the following courses and distances as being run and marked upon the ground as and for the division lines between the said counties. Beginning at a fallen sugar-tree corner on the bank of the Susquehanna river; * * * thence south four miles and 260 perches;'* * * then east along the division lines of certain tracts of land as represented on the diagram, east five miles; * * * then south three miles; * * * then south; * * * east two miles and 240 perches to the bank of Beech creek, and down the middle of said creek; * * * and we do further certify that, in pursuance of the requirements of the Act of Assembly, we used every means in our power to ascertain with certainty the true position of all the tracts of land through which the several courses run as laid down, and that the surveys as represented are correct in the respective counties.” * * * The draft placed the whole of the Hahn tract in Centre county, making the county line the eastern boundary of the tract; the courses and distances as stated in the report and draft, and those marked on the ground, ran the line through the tract, leaving the locus in quo, a triangular tract of about 173 acres, in Clinton county. On the trial before Mayer, P. J., September 17th 1872, the plaintiffs gave evidence of the assessment of the 173 acres, the locus in quo, in Clinton county, and its sale, for taxes of 1866— 1867, by the treasurer, on the 8th of June 1868, to A. H. Strayer and William H. Brown; the vesting of their title under the sale in plaintiffs in 1870, and the cutting of timber on the tract by the defendants. The defendants gave evidence of the assessment of the whole Peter Hahn tract, 415 acres, in Centre county, and its sale for taxes of 1850-1851, by the treasurer, on the 14th of June 1852, to John T. Hoover, and that this title was vested in the defendants in 1867. The court, after stating the facts, the Act of Assembly, the filing of the report, and draft by the commissioners, charged:— “ There is also appended to the draft the report of two of the commissioners, in which they say 1 that the surveys as represented are correct in the respective counties.’ From this draft it appears, as well as from the testimony, that the whole of the Peter Hahn tract was laid down as lying and being in Centre county, the divi-' sion line as represented on the draft being the eastern boundary of the Peter Hahn tract. It will be observed, that [as the Act of Assembly made it the official duty of the commissioners to lay down on the drafts to be filed by them in the commissioners’ offices of both counties the tracts through which the division line between the counties passed, to be there kept as a matter of record, and as the report of the said commissioners was to be final and conclusive, we are of the opinion that the draft and the report of said commissioners must be taken as determining the location of the tracts of lands through which said division line passes, for the purposes of assessment and taxation.] We think that the legislature intended that when this draft was filed and became a matter of record, and when they made the report of the commissioners final and conclusive, it was for the purpose of enabling the taxing oflicers of the two counties to ascertain the tracts of land which would be properly assessable and taxable within the territorial limits of each of the said counties, and to enable the owners of unseated lands, by an examination of the record in either county, to ascertain in which of the two counties their tracts would be properly chargeable with taxes, and where they would be required to pay the same. [This being our view of the law which is applicable to the facts of this case, we are of the opinion that the assessment of the 178 acres, part of the Peter Hahn tract in Clinton county, and its sale by the treasurer of Clinton county in June 1868, conferred no title upon the purchaser, and that the plaintiffs acquired no title under said sale, although the lines and monuments found upon the ground of the Peter Hahn survey would place these 173 acres on the Clinton county side of the division line. We therefore instruct the jury to find a verdict for the defendants.”] The verdict was for the defendants. The plaintiff sued out a writ of error and assigned for error the parts of the charge in brackets.
78 Pa. 172Dougherty v. Thayer (1875)
1. The motion, &c., for a rule on garnishees under the 56th sect, of June 13th 1836 (Attachments), may be regulated by a standing order under the power of the court to regulate its practice. 2. The rule on the garnishee to answer is of right, not of discretion. 3. A general rule is a standing order to accept the motion and grant it whenever asked for in a prescribed form of practice.
78 Pa. 174Nichols v. Haynes (1875)
Error to the Court of Common Pleas of Lycoming county: No. 286 to January Term 1874. On the 3d of October 1870, Aaron J. Haynes brought an action of assumpsit against A. T. Nichols and A. C. Moore, partners, &c. The defendants being owners of timber land in North Carolina and a saw-mill in Virginia, in the year 1869, employed the plaintiff to go to the timber tract and superintend the cutting and hauling logs, rafting them, &c. The plaintiff’s wages were to be $50 per month. His claim was for wages for ten months ; and also for the services of his wife as cook for the hands; the claim on this account was for nine months at $15 per month. During his superintendence the defendants furnished him money and goods, which were to be sold to the hands and used in boarding them. The main controversy was the plaintiff’s disbursement of the money and goods. The cause was tried January 5th 1874, before Gamble, P. J. The plaintiff testified as to his employment, &c., that he paid the men in money and goods; he did not keep any account of groceries used in the boarding-house; he kept a book in which he entered the cash and all the other goods. He had received from the defendants besides groceries $978.68; his charge for outlay and his own claim for services was $1444.25. On cross-examination, he said that the entries were made in his book from September 1st 1869 to July 1st 1870 ; he made them as soon as he delivered the goods ; he kept the account “mostly ” on paper and transferred it to the books, but did not keep a day-book ; they were transferred every day when he was there to do it; when he was away they were kept until he came home, by his wife and a man he had. The plaintiff then offered in evidence “the book of account containing the account between the plaintiff and the defendants, also containing the account between the defendants' and the men employed; said accounts having been kept by plaintiff, showing the disbursement of the money received in payment of men.” The defendants objected: 1. That the book did not show the amount of credits to which the defendants are entitled for goods furnished. 2. That the book is not evidence of the amount of cash paid out by plaintiff, cash not being the subject of a book charge. 3. The book on its face shows that it is not a book of original entries, and the plaintiff swears that it is not his day-book. The book was admitted in evidence, and a bill of exceptions was sealed for the defendants. The defendants gave evidence in answer to the plaintiff’s case. The court charged: * * * “We have admitted all the offers of evidence in order that you might have all the information the parties could give you in reference to the cause. [We have admitted the books of original entry on both sides. Books of original entry are evidence of work and labor performed, and of goods sold and delivered. Strictly speaking, they are not evidence of anything else. They are not, strictly speaking, evidence of money paid, but sometimes they serve to assist a jury where there is other evidence bearing upon the point. When there is no other evidence of the payment of money than the evidence in the book, the book is not evidence of such payment. It serves to corroborate the others, to convince the mind when there is other evidence of payment.] * * * “ The principal difficulty, is in relation to the payments. Where there is a conflict of evidence it is your duty to inquire which of the parties had the best opportunity for knowing the facts of which he testifies. [“ There is quite a difference in the accounts stated by the parties. Where witnesses differ materially, it is proper for us to consider which of them has the best opportunity of knowing the facts of which he affirms. Looking at it in this point of view we think the plaintiff had every opportunity to know the affairs'of that concern. He has produced a book here which he says contains an account of the moneys received by him and the moneys paid out by him. You will have that book out with you, and will give it careful consideration. If you find that the book contradicts the evidence of the plaintiff, it will weaken the credibility of his testimony. If, on the other hand, you find that the book coi'roborates his statements his evidence would be the most reliable.] He had an opportunity of knowing what money he received and what he paid out. The defence does not claim that either Mr. Nichols or Mr. Moore had that information. They depended upon other sources for their information.” * * * The verdict was for the plaintiff for $551.54. The defendants took a writ of error and assigned for error the admission of plaintiff’s book in evidence and the part of the charge in brackets.
78 Pa. 177Phillips v. Dunkirk, Warren & Pittsburg Railroad (1875)
Error to the Court of Common Pleas of Warren county: No. 284 to January Term 1874. This was an action of ejectment, commenced August 17th 1872, by D. C. Phillips against the Dunkirk, Warren & Pittsburg Railroad Company, fpr a piece of land, about .52 perches in length and 25 feet in width, belonging to the plaintiff, and adjoining his other land, over which a public road, formerly a turnpike, had been laid and opened, and which was afterwards occupied by the defendants’ railroad. After the appropriation of the road by the defendants for their railroad, the public no longer used the road, hut the defendants, under the 13th sect, of General Railroad Law of February 19th 1849 (Pamph. L. 81, 2 Br. Purd. 1221, pi. 39), constructed another l-oad in the place of the original road, which was then abandoned, without any formal vacation through the Court of Quarter Sessions. No proceedings had been had for the assessment of damages to the plaintiff. On the trial, December 9th 1873, before Vincent, J., the foregoing facts appeared by the evidence. The following were points of the plaintiff with their answers:— 3. The plaintiff being the owner of land bounded by a public road, which road had been abandoned by the public, another having been provided by the proper authorities, owned to the centre thereof, and -had a right to extend his line to the centre of said road, and the entry of defendant and laying his railroad track upon that portion of the road belonging to plaintiff was wrongful, without authority of law, and a trespass. 4. The defendant has no right to the occupancy of that portion of said road belonging to plaintiff without paying him for the same, and the plaintiff is entitled to recover in this case. These points were answered in the negative. 5. If the old road has been entirely and notoriously abandoned by the public authorities and the travelling public, and a new one constructed as a substitute sufficient for the accommodation of the travelling public, and universally adopted by them, the owner of the soil may resume possession and occupancy of the ground thus abandoned, and maintain his action as such owner for any invasion or interruption of his occupancy by any party or person without his permission. Answer: Affirmed as a general proposition, but not as against the defendant in this case. 6. If the jury believe the old turnpike road through or along the west line of the plaintiff’s land has been abandoned and disused, the plaintiff had the right to the occupation of the ground to the centre of the road, and if the defendant occupies any portion thereof the plaintiff has the right to recover unless the defendant has secured the right of way in the mode pointed out by law. , Answered in the negative. 7. There being no evidence that this road was ever laid out and opened by the public authorities, but was constructed and after-wards abandoned by the Warren and Ridgeway Turnpike Company, and adopted and continued in use by the travelling public, no formal vacation of it by the action of the court or public authorities, was necessary to authorize the owner of the soil to resume full possession, if the same had been abandoned as a public highway by the travelling public and the road commissioners.- Answer: We think under the evidence before us we must presume that this road was laid out according to law, and must be so treated by us here. It must be vacated according to law as a public highway, to occupy any part of it, and as this has not been done, but as it is yet occupied as a highway, or, as we have explained in our general charge, we answer this in the negative. The court charged also: * * * t! The defendants have actually constructed another road satisfactory to the township authorities in place of the part thus occupied by the railroad track. This road so supplied has never been formally vacated, but is practically and in fact abandoned as a township road, because of the impossibility of safely using it, and we treat it as vacated, in this suit. The plaintiff claims that having thus actually been vacated as a township road, his right of possession, as an adjoining owner, at once revived and extended to the centre of the old highway. This would be so, if the old road had been vacated for public use, but such is not the fact. [When it was abandoned for use as a township road it was only that it might be at once occupied as another public highway, that by law had a right so to occupy it upon complying with certain duties to the public, which it is conceded it has done. The plaintiff never recovered his right to occupy this road as against the public, or in other words, to reduce it to private possession, and not having the right of possession as against the defendant he can not recover in this case. We cannot think that the defendant was bound to provide the public with a new road at its own expense, and then pay adjoining landowners damages for the use of land the landowner had then no right to occupy, as against the public and their last easement, and which they had supplied by another equally passable.]” The verdict was for the defendants. The plaintiff sued out a writ of error. — He assigned for error the answers to his 3d, 4th, 5th, 6th and 7th points, and the parts of the charge in brackets.
78 Pa. 181Snow v. Deerfield Township (1875)
344. This was a feigned issue framed September 7th 1871, on appeal entered June 5th 1871, by B. A. Snow and John McCoy, road commissioners of the township of Deerfield, from the settlement of their accounts by the township auditors, in which they refused to allow the commissioners credit for $800, expended in making a road in the township, and reported that the commissioners owed the township $800. In the issue, the township was the plaintiff and the commissioners defendants.
78 Pa. 185McCue v. Commonwealth (1875)
Error to the Court of Oyer and Terminer of Lycoming county: Of January Term 1875, No. 51. On the 25th of November 1874, a true bill was found against Barney McCue, for the murder of John Dieter. On the 27th of November the defendant being arraigned, pleaded “Not Guilty,” and the same day the trial commenced, before Gamble, P. J., and his associates, judges of the Court of Oyer and Terminer of Lycoming county. Barney McCue, the defendant, and John Dieter, the deceased, occupied together a room in the basement of a building on the banks of the Susquehanna, about three miles from the borough of Muncy. The furniture of the room was a few stools, a bench, and a bunk in which McCue and Dieter slept. The bunk was in a corner of the room near a window, and about eight feet from the door; the bench stood under the window between the bunk and . the door ; the door opened on a porch about six or seven feet wide, which extended the whole length of the house. The Commonwealth called Charles McCarty, who testified:— “ On the 25th of October last I was at the house occupied by McCue and John Dieter. I was in the house before the shooting. Barney asked me to go in. John Dieter was lying in the bunk. Us three were there alone. Barney and I were sitting at the window. I thought John was asleep. Barney drew a pistol out of his pocket. I said, “Barney, do you carry a pistol?” He said he did; it stood him in hand to, and he would use it probably before I thought. Dieter jumped up and said, “ You are always talking of putting a bullet in somebody. If you think you can put one in me, come out and try it.” And John pulled his coat off as he went towards the door, and I jumped and got out first, and Barney grabbed the pistol from the window and followed. I was out first, and John ran against me and knocked me partly down. I ran across the street; Barney followed up very close. Barney walked up within four feet of John Dieter and fired. John said, “Barney, you have put one of them into me,” and for an instant they were covered with smoke. Next I saw John choking Barney, in the middle of the street. I was then near to them, and turned away and left them. Not one word more was said by John to Barney in the house than I have mentioned. I had only been in the house a few minutes. Barney just came back from Beardsley’s, and within fifteen minutes after, the shooting occurred. As John jumped from the bunk Barney grabbed his pistol. John ran out between the outer posts to the lower end of the steps. John stopped outside of the foot of the steps, toward the river. Barney came out between the inside posts, under the steps, and came towards John and shot him. John ran that far and then faced round toward Barney, with his right side rather towards Barney, as he came out from under the steps. * * * John had to pass Barney to get out. Barney was sitting with his back towards him. John dropped his coat before he got to the door. John did not stop, hut ran right out, and did not say a word. . Barney came out under the steps, within four feet of John. John was. standing about twelve feet from the door,, near the foot of the steps. Barney walked right up toward him to within four feet and then shot. John had stopped and turned round. The smoke of the pow'der prevented me from seeing them clinch. I did not see Barney raise the pistol the second time — the smoke prevented. I was within eight feet of them — a side view. When I saw them clinched, after the smoke had raised, they were facing each other, and when they fell Barney was on the broad of his back. There was not a word said by Dieter about me being there. No quarrel; no hard words. I thought John was asleep. I heard nothing between them until John said” (as before stated). Two other witnesses, who were sitting about twenty yards from the house, testified to about the same facts. There was evidence also that the pistol was afterwards picked up in the road ; it was a four-barrelled revolver ; it was cocked; had two charges in it; one barrel was discharged, and the fourth was apparently empty. There was evidence tending to show that McCue was intoxicated. In the course of the trial the Commonwealth proposed to ask Amelia Wertman, a witness, If McCue, in August preceding the trial, wanted to pay attention to her, and at the same time wanted her to run away with him, and if at the time of Dieter’s death she was not engaged to him; to be followed by evidence that McCue had said in the hearing of another witness, soon after the shooting, that he had often told the deceased that he had better leave Amelia Wertman alone, she would be a curse to any man, and now his words had come true — for the purpose of showing motive and malice. The prisoner objected to the offer; it was allowed by the court, and a bill of exceptions sealed. The witness, Amelia Wertman, answered the question in the affirmative. Catharine Reifsnyder testified that, about half an hour after the shooting she heard McCue say he had always told John to keep away from Amelia Wertman, that one part of his body would run away with his brains, and now it had come to pass. The defendant’s 5th point was:— “ If the jury believe from the evidence that the killing occurred while the prisoner was in the heat of passion, produced-by the threatening actions and language of deceased towards the prisoner, then, if guilty at all, he could only be convicted of manslaughter.” The court answered:— “ The fifth point affirmed, if the jury find in the evidence any such facts as it recites or assumes.” On the 1st of December the jury found the defendant “ Guilty of murder in first degree.” The record then has this entry:— “ And now, December 6th 1874, prisoner, Barney McCue, brought into open court, and the sentence of the court is: That you, Barney McCue, prisoner at the bar, be taken from hence to the jail of the county of Lycoming, from whence you came, and from thence to the place of execution within the walls of said jail, and that you he there hanged.” * * * The defendant removed the record to the Supreme Court by writ of error. He assigned a number of errors, amongst others, the admission of the evidence objected to ; the answer to his fifth point; that the Commonwealth did not show any motive for the crime ; there was no evidence which would furnish “ ingredients” of murder in the first degree ; and that the record did not show that the prisoner was asked, before sentence, if he had anything to say why sentence of death should not be pronounced against /him.
78 Pa. 192Waite v. Palmer (1875)
Error to the Court of Common Pleas of Warren county: Of January Term 1875, No. 350. This action was originally brought before a justice of the peace by H. B. Waite against II. H. Palmer, and removed into the Court of Common Pleas by appeal entered September 2d 1872. The justice’s transcript did not appear on the paper-book. On the 28th of April 1873, the declaration was filed. The declaration was “ H. H. Palmer, &c., was summoned to answer H. B. Waite of a plea that he render unto him $60. * * * And .thereupon the said II. B. Waite saith that whereas the aforesaid H. H. Palmer, on the 27th day of January 1873, * * * by his certain bill obligatory, * * * acknowledged himself to be indebted and promised to pay in three days * * * to said plaintiff the sum of $60.” * * * On the same day the defendant pleaded, “ Nil debit,” &e. Same day, on motion of the plaintiff, the court allowed him “ to amend the title to tins case and all pleadings therein so that the same shall stand and read, Mary Morris, for use of H. B. Waite, v. II. H. Palmer.” On the 3d of March 1874, the defendant, by leave of the court, added the plea of “Non est factum.” On the trial of the case, March 3d 1874, before Wetmore, P. J., the plaintiff offered in evidence the following note:— “ $60. Garland, January 27th 1871. Three days after date I promise to pay to Mary Morris or bearer the sum of sixty (60) dollars, with use, for value received. Waiving all right to the exemption of property from sale under Act of April 9th 1849. Without stay of execution. Witness my hand and seal. Hosea Palmer, [l. s.]” The defendant objected to the offer, because the note offered was not the one described in the declaration. The court admitted the offer and sealed a bill of exceptions. The verdict was for the plaintiff for $71.16. The defendant took a writ of error and assigned for error the admission of the evidence objected to.
78 Pa. 194Kilborn v. Field (1875)
161, to July Term 1874. This was an action of debt, brought April 2d 1874, by Eurman Field and Margaret his wife, late Kilborn, in her right, against James R. Kilborn. The cause of action was the following note :— “ $400. On the 1st day of January, A. D. 1872, I promise to pay to Margaret A Kilborn four hundred dollars, without defalcation, for value received, with interest from date. Witness my hand and seal at Williamsport, this 4th day of August 1870.
78 Pa. 196Harkinson's Appeal (1875)
1. A mother sold her place of business and contracted that “she will not engage in the same business, directly or indirectly,” in the Twepty-second Ward within ten years, but would by her counsel promote the business of the purchaser; she bought a lot and put up buildings suitable for the business for her son; she advanced money to him for carrying on as she had done to other children in their business. The master found that the business was really that of the son and not that of the defendant, was carried on by him on his own credit and means, and not by her. There was no evidence of injury to the purchaser. Under a bill to restrain her, from aiding in the business, permitting the premises to be used for the business, or selling the property to be used for the business : Held, under the circumstances an injunction should not be decreed. 2. Agreements in restraint of trade generally, are void ; to be valid they must be limited in time or partial in their operation and supported by a sufficient consideration.. 3. That a court of equity may enjoin against the free exercise of a trade, the violation of the agreement should not be doubtful. 4. Certainty is an essential element in the contract whose enforcement is sought by an injunction, and some appreciable damage should be shown. 5. When damages will compensate the benefit derived or the loss suffered, equity will not interfere by injunction.
78 Pa. 205Chambers v. Union National Bank (1875)
1. An Indiana bank drew on a Philadelphia bank in favor of the cashier of a New York bank ; the draft was stolen, the name of the cashier (payee) forged as endorser and passed to defendants, October 16th, in payment of goods sold to the holder, they giving to him a check on the Philadelphia bank for the difference which was drawn, and the draft endorsed by the defendants was deposited to their credit in the same bank. After learning of the fraud, on November 2d the bank demanded payment of the draft from defendants. Held, that the demand was in time. 2. Under Act of April 6th 1849, the amount of the draft could be recovered back from the defendants. 3. The holder of a draft which is endorsed and passed by him, guaranties the prior endorsements.
78 Pa. 210Bond v. Bunting (1875)
Error to the District Court of Philadelphia: No. 136, to July Term 1873. This proceeding was commenced August 27th 1872, in an action of assumpsit, by Martha W. Bond against the Mutual Benefit Life Insurance Company, on a policy of insurance, not under seal, dated January 26 th 1870, issued by the defendants to Mrs. Bond, the plaintiff; the insurance ivas for $10,000, on the life of her husband, John R. Bond,'payable to her in ninety days, after due notice to the defendants of the death of the husband. On the 28th of December 1871, a paper was executed, purporting to be under the hands and seals of John R. Bond and Martha W. Bond, assigning to Henry B. Bunting in trust for “ James H. Bond and Jane S. Bond, children of the said John R. Bond (the amount of the policy), over the sum of $5600, which the said Martha W. Bond reserves for herself and for her own use, and subject to the payment pro rata of the funeral expenses,” &c. The signature of John R. Bond was by his mark. James H. Bond died on the day after the execution of this assignment. The policy remained in the possession of Mrs. Bond. On the 5th of January 1872, notice of the assignment with a copy of it was served on the insurance company. On the 24th of the same month, Mrs. Bond furnished the company proof of her husband’s death, and stated to them that she had been informed that a portion of the insurance money was claimed by an alleged assignment from her; she notified the company not to pay to any one but herself. On the petition of the company, a rule was granted for the parties in interest to interplead, and the court directed the corapany to pay the insurance money into court. The court awarded the issue between Henry B. Bunting, trustee of James H. Bond, and Jane S. Bond, as plaintiff, and Martha W. Bond, defendant. The questions in the issue were:— 1. Whether a paper, purporting to he an assignment of a portion of the policy of insurance on which the above suit has been brought, dated December 28th 1871, and to be signed by John R. Bond by making his mark thereto, was in fact so signed by him. 2. Whether, if so signed, the said John R. Bond so signed the same under the pressure of undue influence. 3. Whether, if so signed, the said John R. Bond, at the time of so signing, had sufficient mental capacity to understand the nature and consequences of the act of signing. 4. Whether Martha W. Bond, at the time of signing the same, had sufficient mental capacity to understand the nature and consequences of the act of signing. 5. Whether Martha W. Bond signed the same under the pressure of undue influence. 6. Whether there was any consideration for an assignment of any portion of said policy. 7. Whether there has been any assent by the Mutual Benefit Life Insurance Company to any assignment of any portion of said policy. The issue was tried May 28th 1873, before Lynd, J. A large amount of testimony was heard on the questions, whether the husband had in fact signed the assignment; if so, whether he and his wife had sufficient understanding when they signed, and whether they signed it under the pressure of undue influence. The first five issues were found for the plaintiff in the issue; the sixth and seventh were found for the defendant; the jury, as to the sixth, finding also that the consideration moving from John R. Bond was affection for his children, and that Mrs. Bond, the defendant, received no pecuniary consideration. The plaintiff moved for judgment on all the issues. The District Court entered judgment for the plaintiff, Hare, P. J., delivering the opinion as follows:— “This case originated in the following circumstances: in the year 1870, Mrs. Martha Bond insured the life of her husband, John R. Bond, for the sum of $10,000, in the Mutual Benefit Life Insurance Company of New Jersey. She subsequently joined him in executing an instrument under seal, by which the amount insured above the sum of $5000, was assigned and set over to one Henry Bunting, in trust for her husband’s children, who are alleged to be the offspring of a former marriage. This was not the conduct of a stepmother; but when her husband’s influence was removed by death, she challenged the right of the trustee to the fund. The money was paid into court, and an issue framed and submitted to a jury, who found that the only consideration for the transfer was the affection which John R. Bond bore to his children. It is proper to add, that the trustees had notice of the assignment — a circumstance which might be material in England, but seems to be of no moment in Pennsylvania. We have now to determine the validity of the assignment, with the aid of the light derived from this verdict. “ It is obvious^jrom what has been said, that the case involves two inquiries.NTs a voluntary assignment of a chose in action, which does-not pass the legal title, effectual as an equitable transfer Jj Can a married woman dispose of her personal property, without a separate acknowledgment ? “ Those who are conversant with such studies, know that the former question has been the subject of a protracted controversy, which is not yet terminated. It was long held, that where an assignment without a -valuable ^consideration was legally inoperative, it could not be upheld in equity: Kennedy v. Ware, 1 Barr 445. The presence of a seal made no difference in the application of the principle: Ellison v. Ellison, 6 Vesey 658; Ward v. Audland, 8 Beavan 20. If the instrument was so worded as to confer a right of action in debt or covenant, the plaintiff would not be restrained by an injunction. If it was not, the want of a legal remedy did not afford a ground for equitable relief. In either case, the chancellor suffered the law to take its course. “The rule, as stated by Lord Eldon, in Ellison v. Ellison, is, ‘ that if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as, upon a covenant to transfer stock, &c., if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant. But if the party has completely transferred stock, &c., though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court.’ A grant which fails of effect at law, is a covenant in the sense of this distinction. In Ward v. Audland. Lord Langdale said: ‘ If the property was legally vested in the plaintiff, he might have recovered it at law, and applied it on the trusts; if the property was not legally and effectually vested in the plaintiff, then, as the deed was voluntary, this court could afford no assistance to the plaintiff in recovering it; and, under these circumstances, the only question between the parties is, what is the legal effect of the assignment? * * * The debt and policy of assurance are choses in action not assignable at law, and it is plain that the whole estate and interest of the assignor did not and could not pass to ,an assignee; and I apprehend that, in the case of a voluntary deed, neither the assignor nor his executor could’ have been compelled to permit the assignee to use his name for the recovery of the debt.’ So in Meek v. Kettlewell, 1 Hare 474, the vice chancellor was clearly of opinion, that an assignment under seal of that which did not pass at law by the operation of the assignment itself, unaccompanied by other acts, was no better than a covenant or agreement to assign. It was by treating a deed which failed of effect as a covenant, that chancery was enabled to give relief through a decree for specific performance: Chew v. Barnet, 11 S. & R. 389; Bayler v. The Commonwealth, 4 Wright 37. Hence it followed, that where the grantor received no consideration, and the obligation was merely gratuitous, the grantee was left to find such remedy as he could at law. “ This course of decision seems to have been well founded in the peculiar doctrines of equity and the relation which they bore to the common law. It can hardly be vindicated on the broad principles of jurisprudence. It is a general rule, that he who owns, shall have the power to dispose. The jus disponendi should not be withheld except for some sufficient cause, and on special grounds. What, if anything, the grantor receives as an equivalent, concerns him, and not society at large. The right to give is consequently as clearly incident to the right of property as the right to sell. Choses in action are as much within the scope of this principle as lands or chattels;. and yet, as they cannot be legally assigned, the refusal of equity to aid voluntary transfers rendered it impossible to give a chose in action. The effect was to impose an arbitrary restraint on alienation, which was not unfrequently attended with injurious consequences. A large amount of property is locked up at the present day, in bonds, stocks, and other evidences of debt. A capitalist might count his wealth in these by thousands, and yet find it difficult to provide for a friend or relative. It was easy to give a house or chattel, but if he attempted to bestow a debt, there was an unexpected obstacle. A demand might be sold, or pledged, or released, but it could not be the subject of a voluntary transfer. If the donor was versed in the law, he might obviate the difficulty by collecting the money, and investing it in the name of the beneficiary. But this required time and more knowledge than is ordinarily possessed. It was, moreover, impracticable where, as in the case of a policy of insurance, the debt was payable at a future day and contingent. “ The evil was so obvious, that there was a constant effort to escape from it. A chose in action could not be assigned without a valuable consideration, but where a trust exists, it may be enforced, though in favor of a volunteer. Hence an inference, that where a man declared that he held assets which belonged to him in trust for a volunteer, it was a valid gift. If, said Lord Cranworth, ‘ I say expressly or impliedly that I constitute myself a trustee of personalty, that is a trust executed and capable of being enforced without considerationand the doctrine was applied in numerous instances to choses in action. “ It is not easy to find any sufficient ground for this distinction. “It was established, at an early period, that the transfer of the legal title, in trust, for a third person, would vest the beneficial interest in the latter. Such was the origin of uses, and, subsequently, of trusts. A declaration of trust, under these circumstances, substantiates the existence of a duty which would be obligatory, independently of the declaration. But it does not follow that an admission can give rise to a fiduciary obligation where none exists. ‘ The ordinary power of a chancellor,’ said Gibson, C. J., in Read v. Robinson, 6 W. & S. 329, ‘extends no further than the execution of a trust sufficiently framed to put the title out of the grantor, or to the execution of an agreement for a trust founded on a valuable consideration,’ and the language of the same judge, in Morrison v. Beirer, 2 W. & S. 86, shows that he regarded a declaration of trust as inoperative where it does not rest on an antecedent obligation. “ In this uncertainty we may revert to principles. A declaration of trust by the owner of property in favor of a volunteer, has no peculiar efficacy. It is simply a gift, which derives its force from the will of the donor. As applied to land, it is, consequently, invalid, if not under seal; and perhaps even then, unless the estate lies in grant. Where the law prescribes the mode of conveyance, it must be followed. When, however, there are no legal means of transfer, any words expressing an intention to confer a present interest, may be effectual in equity. There can be no clearer manifestation of a design to part with the right of property in favor of another, than an absolute assignment to him or for his use. The notion that a gift, which would be valid if made through a declaration of trust, will fail if put in the form of an assignment, was accordingly repudiated in Richardson v. Richardson, Law Rep. 3 Eq. 686. “ The question Avas, whether the beneficial interest in certain promissory notes passed by a voluntary assignment of all the donor’s personal estate. She did not endorse the notes, and the legal title consequently remained in her. The chancellor said that it was impossible to contend, after the decision in IiekeAvich v. Manning, 1 De Gex, Mac. & G. 176, that the beneficial interest did not pass by the assignment, because ‘ the decision in that case was not merely that a person who, being entitled to a reversionary interest or to stock standing in another’s name, assigns it by a voluntary deed, thereby passes, notwithstanding that he does not, in formal terms, declare himself to be a trustee of the property; but it amounts to this, that an instrument executed as a present and complete assignment, is equivalent to a declaration of trust.’ “ Here, as in Kekewich v. Manning, the instrument was under seal, but the ratio decidendi was broad enough to include an assignment by parol. Accordingly where the donor signed and delivered the following memorandum to his physician : ‘ I hereby give and make over to Dr. Morris an India bond, number D. 506, value 10007, as some token for his kind attention to me during illness;’ Lord Romilly said, ‘ the writing is equivalent to a declaration of trust. If the donor had said : “ I undertake to hold the bond for you,” that would have been a declaration of trust, though there had been no delivery. This amounts to the same thing, and Dr. Morris is entitled to the bond:’ Morgan v. Millison, Law Rep. 10 Eq. 475. “ The decisions have advanced, step by step, to this conclusion, which is now established in England. The case of Kennedy v. Ware may be thought to indicate that it does not prevail in Pennsylvania. I have endeavored to show that the English authorities, on which Chief Justice Gibson relied, have been overruled. If' this were a court of error, our course would be clear. As a tribunal of the first instance, we ought to adhere implicitly to the rulings of the court above. If the case of Kennedy v. Ware, were identical with this, it would control our judgment. The assignment there was by parol. Here it is under seal. The difference seems to be immaterial, according to the authorities, but it affords room for a doubt. There is another consideration. The fund is given in trust for Jane and James S. Bond. They are described in the instrument as the children of John R. Bond. If they are also Mrs. Bond’s, there is a meritorious consideration arising from a-tie of blood. It seems that equity will give effect to a provision for a wife or child, though not for a collateral relation : see Hayes v. Kershaw, 1 Sandford Oh. 258; Buford v. McKee, 1 Dana 107; Dennison v. Goehring, 7 Barr 175; Kennedy v. Ware, 1 Id. 445. It was alleged-during the argument that these were Bond’s children by a former wife, but this does not appear of record. On the whole, we deem ourselves entitled to uphold the assignment. “ The other branch of the ease is hardly less obscure. At common law a married woman had no power to dispose of her personal estate. The right of alienation belonged to her husband, and could only be exercised by her as his agent. The act of 1848 provides, that the property of a feme covert shall not be sold, mortgaged or transferred, or in any manner encumbered by her husband, without her written consent first had and obtained before one of the judges of the Court of Common Pleas of this Commonwealth. Whoever drafted this act seems to have forgotten that disabling the husband does not enable the wife. The act forbids him to transfer without her written consent, &c., but it provides no means by which she can alienate. The result was a painful uncertainty, which the lapse of twenty-five years, and an exhaustive judicial investigation, have not removed. In Moore v. Cornell, 18 P. F. Smith 820, Sharswood, J., said that the great object of the statute was to secure the property of a married woman against her husband and his creditors. It did not confer upon her any power or capacity which she did not possess before, except that of making a will, and of binding her estate by a contract for necessaries. It had accordingly been held, in Stoops v. Blackford, that an assignment of a mortgage by a married woman is invalid, unless her husband joins in the instrument, and it is authenticated by her separate acknowledgment. It was said, in the course of the same opinion, that a mortgage, though in form a conveyance of land, is substantially a security for a debt. It is personal property — a chose in action — and whatever gives the money secured by the mortgage, will carry the security along with it. “ It might be inferred from this language, that the transfer of a wife’s personal property requires not only the concurrence of her husband, but' an acknowledgment in accordance with the Act of 1848, as modified by that of April 9th 1849. “ Such a rule would render it impracticable for a married woman to dispose of her stocks and furniture, or even to make the smallest present, without calling in a justice of the peace or notary public. Nay, more, the restriction would extend to purchases, because it is impossible to buy without giving an equivalent. It has not been imposed in terms, and we may believe that the court above will do some gentle violence to the Act of 1848, rather than adopt a conclusion fraught with injurious consequences. The judge who delivered the opinion in Moore v. Cornell, has shown in other instances, with his wonted clearness, that if a mortgagee is a creditor, he is something more. He is an owner, who may enter and take rents and profits, until the debt is satisfied. Hence, a transfer of his interest may be acknowledged and recorded; a mode of authentication which would be inappropriate in the case of a chose in action. The result is, that according to the best consideration that we have been able to give to the subject, the ti’ustee is entitled to the fund transferred by the assignment.” The defendant, Mrs. Bond, took a writ of error; she assigned for error:— 6. Not entering judgment for the defendant. 7. Deciding that the partial assignment of the policy of insurance by John R. Bond and Martha, his wife, without the separate acknowledgment of the wife under the Act of 1848, was sufficient to pass her interest in the said policy to the extent of the assignment. 8. Deciding that the assignment created a valid and binding trust in Henry B. Bunting as trustee, enforcable against the said Martha W. Bond. 9. Deciding that the assignment, though without valuable consideration, was sufficient to bar the right of the said Martha W. Bond to the portion of the said policy intended, to be transferred by the said assignment.
78 Pa. 219Philadelphia, Wilmington & Baltimore Railroad v. Stinger (1875)
1. Negligence is the absence of care, according to the circumstances. 2. It is the duty of an engineer approaching a highway, if danger is to ■ be apprehended, to give warning by sounding the whistle, or other sufficient' alarm ; the failure to do so is negligence per se, to be determined by the court. 3. The court is to decide the question of negligence, where the precise 'duty is determinate and the same under all circumstances. 4. A wanton, unnecessary sounding of the whistle is negligence. 5. A railroad company having a chartered right to propel their cara by steam, are not responsible for injuries resulting from the proper use of such agency. 6. Whether alarming a horse and causing an accident by a rapidly-moving train, or sounding a whistle, will make the company liable for damages, depends upon whether it was from want of proper care in those in charge of the train. 7. What would be due care in running a train through a sparsely settled rural district might be negligence in approaching a large city. 8. A train was passing through a city on a railroad which had a number of short curves, so that persons could see the train but for a short distance; it was crossed by several streets and passed over a river on a drawbridge; the rule of the company required that the whistle should be sounded about a certain point, to warn the bridge-tender and persons about to cross at other streets. Held, the use of the whistle at that point in the ordinary manner was not negligence. 9. If the whistle had not been sounded at such point and one had been injured by reason of the omission, it would have been negligence per se. 10. One driving an unbroken or vicious horse, or one easily frightened by a locomotive, along a public road running side by side with a railroad, does so at his own peril; the right of the company to move their trains on their road is as high as that of the individual to use the public road. 11. Rrankford & Bristol Turnpike Co. v. Philadelphia & Trenton Railroad Co., 4 P. R. Smith 345, adopted.
78 Pa. 228Lucas v. Government National Bank (1875)
Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 171. This was an action of assumpsit, brought May 21st 1873, by The Government National Bank of Pottsville, against John Lucas and J. D. Jones, trading as John Lucas & Co. Thé suit was for the recovery of the amount of a check for $3000, dated October 8th 1872, drawn by George J. Richardson in favor of defendants and by them endorsed and payable at The Mechanics’ National Bank of Philadelphia, on the 1st of November 1872; also a note of Richardson for $2500, dated July 5th 1872, payable in four months to the defendants and by them endorsed ; also a note of Richardson for $4000, dated September 28th 1872, payable in four months to the defendants and by them endorsed. The defendants filed an affidavit of defence, June 24th 1873: “ That the said notes and check were sold to said plaintiffs at a discount of from 18 to 24 per cent, per annum, and defendants received from the plaintiffs the amount of said notes and check, less said rate of discount. In addition to the above, the said plaintiff has received from said George J. Richardson, on his notes, within the past two years, the sum of not less than $3000 in excess of the legal rate of interest, the same having been purchased by the said plaintiff at about the rate of 21 to 24 per cent, per annum discount from said defendants, and said defendants claim from plaintiffs double the aforesaid amount, as provided by the Act of Congress.” Subsequently, June 24th, by leave of the court, defendants filed a supplemental affidavit of defence, setting out that through an oversight they had stated in the original affidavit that the discounts, amounting to $3000, had been paid by Richardson, and averred that the discounts had been paid by themselves. On motion of the attorney of the plaintiffs, the court (Walker, J.) entered judgment against the defendant for $9466.81, the whole amount of the claim, less interest at the rate of 18 per cent, per annum from the maturity of the paper; the court holding that the claim as to the $3000 was in the nature of a penalty, and could not be the subject of a set-off; and that under the Pennsylvania Act of Assembly of March 28th 1858, sect. 2, Pamph. L. 622, 1 Br. Purd. 803, pi. 2, such excessive interest could not be recovered except suit were brought for it within six months. The defendants took out a writ of error and assigned for error: entering judgment in favor of the plaintiff for $9466.81, and holding that the affidavits of defence were insufficient.
78 Pa. 233Corn Exchange National Bank v. National Bank of the Republic (1875)
1. A forged check was deposited on Saturday with the defendant bank and on Monday it was delivered to the plaintiff, the drawee bank, in the exchanges through the Clearing House ; the depositor drew against the deposit on Monday after the exchanges were “made. On Tuesday the plaintiff notified the defendant of the forgery, and demanded repayment, which was refused. Held, that there was no negligence in the time of the notice and demand. 2. The right of the plaintiff to recover back the money did not depend on the right or ability of the defendant to recover from the forger. 3. The Act of April 5th 1849, is not merely declaratory of the law as it then stood; it gives a clear right to’ the plaintiff to recover the money paid by him to a previous holder. 4. The Clearing House rules required that notice as to paper specified should be given within a certain time ; forged paper was not amongst that specified. In an action to recover the amount of forged paper paid by the plaintiff to defendant, the rules of the Clearing House were not evidence for defendant. 5. All the facts in this case not sufficient to go to the jury on the question of negligence. 6. Levy v. Bank U. S., 1 Binn. 27, not law. Tradesmens’ Bank v. Third National Bank, 16 P. B. Smith 435, compared.
78 Pa. 238Passmore v. Western Union Telegraph Co. (1875)
78 Pa. 246Columbia Coal Co. v. Miller (1875)
1. Miller, lessee of a colliery, at a rent per ton of coal mined, agreed with plaintiffs to sell them all the coal mined, they agreeing to pay him all cost of mining expenses, &c.; if plaintiffs should be in default for a time specified, in payment of the cost, expenses, &c., Miller might treat the agreement forfeited. On even date with the agreement Miller mortgaged his leasehold as collateral security for his performance of his covenants in the agreement. The plaintiffs made default in payment of expenses, &c., for the time specified, and Miller gave them notice that he would annul the lease at a time he named; after that time the plaintiffs, alleging that Miller had broken the covenants in his lease, sued out the mortgage. Held, that nothing was due on it, as the agreement had been forfeited for the breach of plaintiffs’ own covenants in it. 2. Miller had confessed judgment to other persons, and after the breach of plaintiffs’ covenants, and notice to them of the annulling of the agreement, the leasehold was sold under the judgments. Held, that this was not a breach by Miller. 3. The plaintiffs not having performed their covenants had released Miller and enabled him to treat the mining agreement as at an end.
78 Pa. 252Smith v. Hogeland (1875)
319. This was an action of assumpsit, brought January 26th 1870, by Barclay J. Smith and Owen W. Worstall, trading as B. J. Smith & Co., against Isaac Hogeland. The plea was “ payment.” The action was founded on the following note: “ $1000. Newtown, Pa. 12 mo. 5th 1868.” On the first day of April next after date I.promise to pay to the order of Isaac Hogeland, at the First National Bank of New-town, one thousand dollars, without defalcation, for value received.
78 Pa. 257Haverly v. Mercur (1875)
Error to the Court of Common Pleas of Bradford county; Of January Term 1874, No. 210. This was an action of assumpsit, brought November 7th 1870, by Amasa Haverly against Mahlon C. Mercur. The plaintiff’s claim was as follows :— The firm of Whittenhall & Co., composed of Whittenhall and Andrews, were contractors to build the Sullivan and Erie Railroad, in the counties of Sullivan and Bradford; the defendant was president of the railroad company; the plaintiff was a sub-contractor for the construction of two sections of the road. His allegation was that Whittenhall & Co. had not paid him the estimates when they became due; that he complained to the defendant that he was unable to carry on the work because the prices were too low, and because he was not paid, and that he would be compelled to discharge his hands and abandon his contract; the defendant told him to continue at the work and finish the sections and he would see him paid; that in consequence of this promise he did continue at the work and finish the sections, but the defendant had refused to pay him. The promise was not in writing; the question was, whether under the facts in the case, it was within the Statute of Frauds. The case was tried December 9th 1873, before Streeter, P. J. The plaintiff testified that he commenced work under his contract with Whittenhall & Co., and continued for three or four months, as long as he had the means. In February he told the defendant that it did not pay, and he was not getting any money; defendant said he had better keep on; he afterwards heard that Whittenhall was good for nothing ; he told defendant, and said he would not work any longer under him, and should quit. Defendant told him that he was living there, raising his own provisions, and had better go on and build the road. Defendant said, “ he would tell me what to do, I should go to work, keep a strict account of everything I put on the road, and return it to Everett (the superintendent of Whittenhall & Co.), and he, defendant, would pay me or see that I had my pay. He said I should not lose one cent by it; told me this was confidential. * * * I -went back and went to work on the road again; I completed the job about December 1st 1869. I had the conversation with Mr. Mercur when I agreed to go on in March 1867. * * * There was due me about $12,000. * * * “I had a conversation at the bridge when I had got the abutments pretty well along; he thought I was getting along well; I told him the men were dissatisfied at not getting their pay, and were leaving me. He said he had told me that I should lose nothing, and told the men they should not be afraid of me, as I was the only man that could pay gold. * * * Had a conversation with Mercur in the latter part of November or first of December 1867. I was in the stage going down to see Mercur., Others were stop-, ping work, and I was going down to see if I had not better quit. I told him I was going down to see him to know if I had not better stop work. * * * He told me it would not do to stop work on the rock job. I told him I could not carry it on, as my resources were exhausted. He told me to come down with a team and he would see about getting a load of provisions; I did so. He -went with me to Mix &'McOabe’s, and told them to let me have a load of provisions, and he would see that they had their pay. I got provisions there at different times nearly all winter. * * * “ He told me to keep my charges for expenses as I had done; I told him I had done so except for ox-team work. He told me at different times to get all I could out of Mr. Andrews, and that it would not hurt me. He wanted this to be kept confidential, because others would be trying to get him to secure them. This account includes charges for my own time, except for about three or four months. I put in my own time, because he told me to keep a strict account of everything. This account is a correct one. On cross-examination he said : * * * « J signed receipts when I got the money of Whittenhall & Co. I received money from them a good many times ; sometimes once a month, sometimes once in two or three months, as long as I worked there. * * * It was estimated that, my whole work would come to $35,990.70. They could not make an estimate of the amount of work done by me after the slide. I presumed that Everett and Dodd informed me after the slide that they would have to estimate the amount of work by the quantity each man done daily. After this occurred they paid me from my pay-rolls. I returned my pay-rolls to Mr. Everett every month. I continued to get money from him from time to time as long as I worked there. * * * I might have seen Andrews in Mercur’s new bank ; I dunned him every time I saw him. I bid off earth work at 35 and rock at 90 cents. My contract was executed at that price. I worked at that price till I made the arrangement with Mr. Mercur. I can’t tell when the price was increased to 40 cents and $1. I did not have any estimates, and did not receive my pay at that price. The engineers made measurements nearly every month. After these measurements were made, I went to Mr. Everett to get my pay. I think I did make frequent complaints to Mr. Everett that Andrews did not pay me regularly and better. I did make complaints to Mercur that Andrews did not pay. Mercur has judgment against me for $600. I gave the note on the 15th of February 1870. This was given in part for money at the time I gave the note, about $200 ; the balance was for money I had had previous to that time. I gave him Andrews’s draft for the money got before draft for $375. This draft and the $200 made the $600 note. * * * In March 1867; I had the conversation with Mr. Mercur, when he told me to keep an account, he told me at that time that he would pay me or see me paid. I have done all I could to get my pay from Andrews. I think the last time I saw Andrews was in 1868. They owed me $6000 or $7000 at that time. The contract with Mercur was made just after the first slide into the thorough cut. Commenced keeping an account of my own time the 1st of June 1867. * * * I asked Mr. Everett for a statement of the amount that had been paid’me. I understood the statement to be correct. * * * The amount paid by Everett to Mix & McCabe was figured in. It was about this time we first talked; he, Mercur, told me to get all I could out of Andrews and he would pay the balance. It was in the same conversation that he said I should keep on teazing him. I asked him to put it in writing, and he refused to do it, because if he did he would have to secure others. During the progress of this work I asked Mr. Mercur to pay me at different times. He said money was very tight; said that Andrews was slow about selling bonds. I frequently complained to Mercur about Andrews or Whittenhall being slow to pay. In the fall or winter of 1867 I looked over the accounts with Mr. Everett; there was some $8000 due me. Mercur wanted me to take bonds; he did not tell me at what price Andrews would let me have the bonds. Mr. Everett thought there would be money to pay with in the spring. Mr. Mercur told Mix & McCabe that if they would let me have a bill of goods he would see it paid. Mr. Everett paid that bill. It was some time after we made the bargain that Mercur refused to put it in writing.” On re-examination he said. * * * “ I recollect going up to Mercur’s house with George Neal. When coming down I was complaining of Whitten hall’s being a miserable fellow. He said I should keep teazing him, it would not hurt me. He said he had told me before that I should make out an account of my expenditures ; I did make it out and handed it to Mr. Mercur sometime afterwards. * * * I told Mr. Mercur that some people said that a promise to pay was of no avail unless it was put in writing. Said he thought his word was good. If he put it in writing the the rest would want him to do it for them.” George B. Neal testified: “ I recollect the conversation between Mr. Mercur and Mr. Haverly, as mentioned by him. I heard Mr. Mercur ask Mr. Haverly if he had made out that bill. Mr. Haverly said he had not entirely. Mr. Mercur told him to make out an itemized bill and hand it in so that he could carry it before the board. Mr. Mercur has told me that he would rather see Amasa paid than any of the rest of the contractors.” Charles Chilson testified: “ I had a talk with Mercur about the work of Haverly. He asked me if I saw anybody at work there. I told him I did see a few there. I told him the report was that Haverly had got to quit. He said he told him to go on and he should lose nothing. This was in the spring of 1867.” J. S. Campbell testified: “ I heard a conversation between Mr. Mercur and Haverly in the bank. It was after they commenced working on the railroad. Mr. Haverly came into the bank and complained to Mr. Mercur that he would have to stop; that he had no provisions. Mr. Mercur told him that he must not stop ; that he would get him a load of provisions; asked him if he had a team there. He said that he had a team, and Mercur ordered him to take it around to McCabe & Mix’s. During the conversation Mr. Mercur said he would pay him or see him paid, I am not certain which. That was when urging him not to stop. He expressed much anxiety not to have him stop.” * * * William Burdick testified: “ I was driving the stage. I recollect when driving of meeting Mr. Mercur at the watering-trough near Wilcox’s. Mr. Haverly said to Mr. Mercur that he must have some money or he would have to stop his work. Mr. Mercur told him he must not stop the work, but must keep on and he would pay him or see he had his pay for all he did. I heard a short conversation in the bank between Mr. Mercur and Mr. Haverly. Mr. Haverly told him he must have some money, and Mercur told him he must keep on and he would see that he had his pay.” William Northrup testified: * * * “ I was in the bank one day, I think in 1868, in the fore part of November. Mr. Haverly said he had used up all the money he had and he must quit if he could not get means to carry it on. Mercur told him he must not quit, that cut must go on. He told him they wanted to go to laying iron in the spring and that cut was going to bother them, and it must go on. He said he would see that he had his pay or would assist him in getting it.” A. J. Gorsline testified: “I recollect of riding with Mr. Bur-dick in the stage in November or December 1867. We met Mr. Mercur near by Wilcox’s mill, on the turnpike. * * * Haverly got out of the stage. Mercur asked Haverly how he got along. He said very slow and poorly, and he would have to stop if he did not have some pay; said he had no money to pay the men and the men would not go on without money. Mercur said, ^No, don’t stop, the work must go on, Mr. Haverly, and I will pay you or see you paid.’ He told him he should not lose a cent, and that he would he responsible, or words to that effect.” * * * John Sullivan testified: “ I heard Mercur say that Haverly said he could not go on with the work. He said Haverly must not quit, but he would see him paid. He furnished a load of provisions.” * * * There was other evidence of much the same character as the foregoing; there was evidence also of payments by Everett on behalf of Whittenhall & Co. to the plaintiff, or on his account, during the time the work on the contract was progressing, and after the alleged promise by the defendant. The plaintiff having closed his case, the defendant moved for a nonsuit for the reason':— “ That the evidence on the part of the plaintiff shows that the undertaking of the defendant set forth in his declaration was a collateral undertaking (not in writing) to plaintiff’s contact with Whittenhall & Co., and is within the Statute of Frauds and Perjuries, and the plaintiff cannot recover.” The defendant’s motion was allowed, and a judgment of nonsuit entered by the court. The plaintiff excepted to the decision of the court ordering the nonsuit; but no motion to take off the non-suit was made to the court in banc. The plaintiff took a writ of error, and assigned for error the entering of judgment of nonsuit.
78 Pa. 266Gilbert's Appeal (1875)
1. The finding of an auditor on the facts should not be disturbed unless for clear error. 2. After the death of a partner, two of the administrators sold the decedent’s interest in the firm at private sale to a surviving partner, who was also an administrator, at a price less than the value. Held, that the sale was voidable at the election of any party in interest, and all the administrators were chargeable with the actual value. 3. That the administrators acted in good faith and under the advice of counsel, would not justify the transaction. 4. One of the administrators mingled the funds of the estate with his own and used them in his business. Held, that the accountants were chargeable with interest on the funds of the estate thus treated.
78 Pa. 271Coxe v. Deringer (1875)
326. This was an action of ejectment for a tract of land in Sugarloaf township, in the warrantee name of Samuel Rope, containing 400 acres, brought, May 3d 1872, by Theophilus T. Deringer and others, against Charles S. Coxe and others. The plaintiffs are the heirs and legal representatives of Henry Deringer, deceased.
78 Pa. 293Erie Railway Co. v. Decker (1875)
832. This was an action on the case, brought September 1872, by Daniel Decker against The Erie Railway Company.
78 Pa. 296Deibert's Appeal (1875)
1. A provision of a will was, “ concerning all my wordly goods; * * * after my decease, each of my two children shall have §100, and of the remainder they shall yearly draw the interest, or if my trustee shall see proper he shall give them part of the principal. I appoint my brother Reuben as trustee over my goods, and he shall hold all moneys in hand, and take care of the. same and interest.” Held, that the trust was active. 2. Ashhursfc’s Appeal, 27 P. E. Smith 464; Earp’s Appeal, 25 Id. 119, compared.
78 Pa. 298Commonwealth v. McGuirk (1875)
341. At the January Sessions 1874, Patrick McGuirk was indicted for selling liquor without license and pleaded “ Guilty.” On the 16th of January the court sentenced the defendant to pay a fine of $50 and the costs of prosecution, and at the same time a rule was granted to show cause why the fine should not be paid to the school directors of Osceola borough, where the offence was committed.
78 Pa. 301Renovo Overseer v. Half-Moon Overseers (1875)
26, to January Term 1875. On the 21st of May 1873, Ira Fisher and W. L. Wilson, overseers of the Poor District of Half-Moon township in the county of Centre, presented their petition to the Court of Quarter Sessions of Clinton county, setting out:— “ That on or about the 1st day of May A. D. 1872, one Michael McGuire came into the said township of Half-Moon, wildly deranged ; that he was unsafe and dangerous to be at large; that he immediately became a charge upon said…
78 Pa. 303Long v. Spencer & Co. (1875)
Error to the District Court of Philadelphia: Qf July Term 1873, No. 91. This was an action of assumpsit, brought May 81st 1871. by Elam B. Long, administrator d. b.n. of John E. Cottrell, deceased, against W; G. Spencer, G. B. Newton and J. Mitton, trading as W. C. Spencer & Co. The action was on a note drawn by W. C. Spencer & Co., defendants, dated January 4th 1871, to their own order, payable in four months, for $2500; it was endorsed by the drawers — by G. B. Newton and “ J. E. Cottrell, per W. K. Hemphill, administrator.” The case came on to be tried on the 6th of March 1873, before Lynd, J. When the case was called, it appeared that the defendant’s counsel, under a rule of the court, had struck the list of jurors ex parte, striking not more than twelve names from the panel; the plaintiff objected to having the names so struck excluded, and asked that the jury might be selected from the whole panel; the court overruled the objection and directed that the jury be selected from the panel in attendance, excluding those that had been struck, and sealed a bill of exceptions for the plaintiff. The plaintiff called William Ayres, who testified that the second endorsement was in the handwriting of G. B. Newton. On cross-examination he testified, that he found the note on the day of Cottrell’s death among the papers of the firm of Cottrell & Ayres, and of J. E. Cottrell; he kept his papers with the firm papers. The defendants admitted that the last endorsement was by W. K. Hemphill, administrator. Plaintiff gave evidence that administration of J. E. Cottrell’s estate had been granted to Hemphill, February 7th 1871; that the letters of administration had been revoked April 14th 1871, and on the 29th of May 1871 administration d. b. n. had been granted to the plaintiff. He then gave in evidence the note, viz.: “ 2500. Philadelphia, January 4th 1871. Four months after date we promise to pay to the order of ourselves, twenty-five hundred dollars, papable at the National Bank of the Republic, without defalcation. Yalue received. W. G. SPENCER & Co.” [ stamp. J Endorsed: “W. G. Spencer & Co., G. Bolton Newton, John E. Cottrell, per W. it. Hemphill, administrator.” There was also the following endorsement:— “Internal revenue stamps to the value of $1.25 affixed to this instrument and cancelled by me, at the request of Elam B. Long, administrator, this third day of February 1873. Penalty remitted upon proof that the proper stamping of the same was inadvertently omitted. W. B. Kenney, Collector First District.” The plaintiff then closed. The defendants called W. G. Spencer and offered to prove that whilst Hemphill was administrator he admitted that the note was not stamped when it came into his possession ; that he had examined the books and papers of Cottrell and could find no trace of any consideration having been given for the note. The offer was objected to by the plaintiff, admitted by the court and a bill of exceptions sealed. Witness testified that in February 1871, Hemphill, after his appointment as administrator, stated that the note with other papers of Cottrell came into his possession as administrator; that it then had no revenue stamp on it; there was no memorandum upon it to show that it had ever been used for any purpose, and so far as he had seen or knew there was nothing in Cottrell’s papers to show that any consideration had been given for it; that he had deposited the note with the Union Banking Company and directed a revenue stamp to be placed on it. W. Wingall, a clerk of the Union Banking Company, was called by defendants, who offered to prove by him that when the note was brought to the bank it was without stamps — as evidence that there was no consideration from Cottrell; that the stamp was can-celled by witness. The plaintiff objected to the offer, it was admitted and a bill of exceptions sealed. The witness testified that he believed the cancellation was his ; either the note was unstamped when brought to witness or it was stamped and he merely cancelled it. The defendants gave him no authority to cancel. W. G. Spencer, again called, under objection and exception, testified that the cancellation was not his nor that of any of his partners ; it was not done by his authority. Under objection and exception, G. B. Newton testified that the cancellation of the stamp was not in his writing nor done by his authority. In rebuttal, the plaintiff gave evidence by Ayres, that Cottrell died February 3d 1871; that between the date of the note and Cottrell’s death several sums of money had been paid by Cottrell to Newton and during the same time Newton was almost daily at Cottrell & Ayres’s office, and his visits were generally for money ; Cottrell had paid money on account of Spencer & Co.’s note; Cottrell & Ayres were not indebted to Newton. There was other evidence, for the purpose of showing consideration for the note. The court, amongst other things, said to the jury:— “ It was imprudent for defendants to make a promissory note and let it pass out of their possession without value. In law, whenever passed, the holder is entitled to the face of it, and when presented to the court and jury his primá facie case is made out. If the note is passed for any specific purpose the law presumes everything against the maker; that is the unfortunate position of the defendants in this case. They do not deny the making or giving of it out; but say, in point of fact, that no consideration was paid by Mr. Cottrell; they make this out in two ways : they say the note was not when found in such a condition that a prudent business man would take it, and it was an incomplete note. The law certainly at that time required a note to be stamped, and it is plain to my mind that it was not at the time stamped. Defendants want you to infer from the absence of stamps that the whole transaction was incomplete. You must take this, and upon the consideration of your minds give value to it.” The verdict was for the defendants. The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error :— I. Excluding from the jury drawn the names which had been struck, and directing the jury to be drawn from those remaining. ■ 3. Allowing the admission of Hemphill, the administrator, that the note was not stamped when it came into his possession, as evidence of want of consideration. 4. Allowing evidence by the bank clerk, that he cancelled the stamps on the note ; and that the note was without stamps when brought to the bank, as evidence of want of consideration. 5. 6. Admitting evidence that the cancellation was not made by any member of the defendants or by authority from either of them, as evidence of want of consideration. 7. The part of the charge given above.
78 Pa. 308Commonwealth ex rel. Brechemin v. Union Burial-ground Society (1875)
Error to the Court of Common Pleas of Philadelphia: Of July term 1873, No. 132. This was a proceeding, in the name of the Commonwealth, at the relation of Charles Brechemin, for a mandamus against The Union Burial-ground Society of Philadelphia. The petition was filed December 2d 1872 by the relator, as attorney in fact for Lewis Brechemin and Rosaline, wife of William L. Fairchild. A supplemental petition was filed December •6th 1872. The petitions set out the incorporation of the defendants in the year 1827 ; that the corporation had been owner of a large tract of land in Philadelphia, purchased to be disposed of for burial lots. Article 2d of the charter provided that the society should consist of such persons as might be admitted members and complied ■with the articles and rules. By article 11th each member should be entitled to one lot, and should hold it as a burial-place to him and “ his heirs and assigns for ever.” On the sale of each lot and payment of the purchase-money, a deed was to be delivered to the purchaser. On the 31st of August 1828 a deed for a lot was delivered to William Martin, “ his heirs and assigns for ever.” On the 17th of September 1871, Martin conveyed the lot to Charles Hepburn, Jr., who, by assignment of September 22d 1831 on the original deed, conveyed the lot to Louis Brechemin; he died March 12th 1866, seised of said burial-lot, which in his lifetime he had used for the interment of the deceased members of his family, and he was buried in said lot; by his will he devised all the residue of his estate unto his three children, Lewis, Charles and Rosaline, above named, to be divided by his executors or by converting the same into money, either by public or private sale, and appointed his sons Lewis and Charles and son-in-law, W. L. Fairchild, his executors; that the defendants at several meetings allowed the legal representatives of deceased members of burial-lots to vote, but for several years last past that right has been refused. By article 5th of the constitution of the defendants, one annual stated meeting was to be held on the first Monday of December, and special meetings by resolution of the society, or called at the request of five members. A stated meeting in December had been held every year, for the election of officers ; at an adjourned stated meeting held February 7th 1859 a resolution was adopted: “That any members duly authorized by a family or owner of a lot and bringing a deed shall be entitled to a vote, and to participate in the meetings of this society.” At the annual meeting of the defendants, on the first Monday in December 1869, the relator, duly authorized by Lewis Brechemin and Rosaline Fairchild and her husband William L. Fairchild, to attend that meeting and vote in-their behalf at any election of the defendants, was present; the relator was at the meeting held on the first Monday in December 1871, and attempted to vote for the election of officers; the president of the defendants decided that the relator was not entitled to vote, and rpfused to receive his vote, and that the defendants concurred in the opinion that the relator had no right to vote; at tbe same meeting the relator protested in writing against such refusal. The relator averred that by the constitution and by-laws of the defendants, he was entitled to vote at all elections of the defendants, and that his vote had been uiilawfully refused. The prayer was for a mandamus, commanding the defendants to receive the vote of the relator, &c. An alternative mandamus was issued. On the 17th of December 1872 the defendants answered: That by their constitution they had power to make by-laws not inconsistent with their constitution, which by-laws might be passed, altered or amended, at any stated or special meeting, two-thirds of the members present concurring, having been proposed at least one meeting previously; the alteration or amendment to be proposed at one meeting, and acted on at a succeeding meeting, with the concurrence of two-thirds of the members present, provided that one hundred members should be present at the meeting; that no person could he a member of the company until regularly admitted, and none but members should have any vote in the affairs of the company ; the defendants admitted that Lewis Brechemin died seised of the lot, and that it passed by his residuary devise to his executors, to be disposed for the benefit of his children; they averred that the lot had not been conveyed by the executors, but it remained in the name of the decedent; that neither the relator nor Lewis Brechemin and Rosaline Eairchild were members of the society; they denied that the relator was entitled to vote, and averred that their refusal of the relator was in conformity with their articles and by-laws; the meaning of the resolution of February 7th 1859, was to allow members to represent lot-holders who were not members, but did not extend the rights of membership beyond the fundamental law of the society, which could not be done by resolution, hut required a change in the articles of the society, as provided by their articles ; that when the society decided that the relator had no right to vote, they virtually repealed the resolution. The deed for a lot was in the following form: — “Be it known that A. B., of the-of Philadelphia, having paid to the treasurer of the Union Burial-ground Society the sum of $10, in consideration thereof, there is hereby granted and conveyed to the said A. B. a certain lot. .* * * To hold to the said A. B.,-heirs and assigns for ever; on condition, however, that the said lot shall he used by the said heirs and assigns as a place of burial or interment, according to the constitution and by-laws of the said society, and for no other use or purpose whatsoever ; and the said A. B., having signed the constitution thereof, is entitled to all immunities, privileges and benefits, in mutual right and in common with the other members thereof, so long as-shall continue in possession of the said lot or piece of ground; subject, nevertheless, to the said constitution and by-laws.” The Commonwealth demurred to the answer. The Court of Common Pleas gave judgment for the defendants on the demurrer, Ludlow, J., delivering the following opinion :— “ By the petition filed in this case, we are asked to command ‘ The Union Burial-ground Society of the City and County of Philadelphia,’ to receive the vote of one Charles Brechemin. “ The right of the relator to vote depends upon the organic law of the society. To that, and to that alone, can we look for a solution of the question now before the court. “ It will hardly be contended that a person who is not a member of the society could vote, unless some such right existed in the charter, or in a by-law passed under the authority of the charter; and when, therefore, we find an absence of any provision relating to persons who are not members, we are necessarily confined to the right of those, and those only, who are members. “ In the second article of the charter we find a provision which clearly declares who shall be the members of this society: ‘ it shall consist of such persons, citizens of this Commonwealth, who may be admitted members, and comply with the articles and rules hereinafter mentioned.’ “ The relator and those he now represents never have been admitted into the membership. “ It is, however, argued that the heirs and legal representatives of one Lewis Brechemin have a right to vote, because a lot had been sold to one William Martin, ‘ his heirs and assigns for ever,’ in 1828, and the relators claim by assignment from and under the original grantee. “ Under the constitution, art. 11, we presume William Martin to have been a member, but we are at a loss to understand how a conveyance to Martin, ‘ his heirs and assigns,’ could confer upon his legal representatives in the ownership of the lot merely, the personal rights which are conferred upon persons, citizens of the Commonwealth, and who, as such, were admitted, members, the rights of membership. “ The resolution of 7th of February 1859 was evidently intended to permit a representation of the owners of lots not members of the society, by a legal member, hence ‘ any members duly authorized by a family or owner of a lot, and bringing the deed, shall be entitled to vote and participate in the meetings of the society.’ “ If any other construction can be placed upon this resolution, then it is in conflict with the constitution, for no person can be a member unless he shall be admitted as such. “ An attempt was made to remedy a defect in the constitution by the passage of additional by-laws, but that this could not be accomplished will appear by reference to art. 25, chap. 1, of the constitution, which declares that alterations and amendments may be made, ‘ Provided, there he not less than one hundred at the meeting.’ “ It is not pretended that members to the number of one hundred ever attended the meetings, and hence any by-laws or resolutions which changed radically the qualifications of members or the test of membership, would be null and void. “ On the whole case, we are of the opinion that the relator has no rights as a member, technically so called, under the constitution, and we must, upon the pleadings, enter judgment upon the demurrer for the defendants.” The relator sued out a writ of error, and assigned for error the entering judgment for defendants on the demurrer.
78 Pa. 312Caldwell v. Coates (1875)
153. This was an attachment-execution, issued November 26th 1864, by John D. Caldwell against Paul Klotz and James Armstrong, trading under the firm name of Paul Klotz, in which Benjamin Coates and George M. Coates, trading as Coates Brothers, were garnishees. The garnishees pleaded “Nulla Iona.” The plaintiff, on the 26th of November 1864, recovered a judgment for $293.32 on which this attachment-execution was issued.
78 Pa. 316Franconia Township Road (1875)
Certiorari to the Court of Quarter Sessions of Montgomery county : Of July Term 1874, No. 93. On the 15th of May 1871, a number of inhabitants of Franconia township petitioned the Court of Quarter Sessions for viewers for a public road from the county line road between Montgomery and Bucks counties, on land of Henry H. Roth, to the Harleysville and Souders turnpike road, on lands of M. S. Henzey and Jonas Mayer. Viewers were accordingly appointed. They reported that they had viewed and laid out a road, beginning at a point in the county line road, on land of Henry H. Roth, and by various courses and distances crossing the North Pennsylvania railroad to the Harleysville and Souders turnpike, on lands of Michael Henzey, &e. The report was filed August 24th 1871 and confirmed Nisi. On the 25th of November, the North Pennsylvania Railroad Company filed exceptions to the report of the viewers, viz :— 1. That no notice had been given to that company of the time and place of the meeting of viewers, nor had the company any knowledge thereof, and they were not represented at the view. 2. The petition set out no definite point for the beginning or ending of the road and was so uncertain that viewers could not be appointed upon the petition. 3. The points of beginning and ending were indefinite and uncertain. The report was set aside January 8th 1872. On the 6th of March 1872 another petition of inhabitants of Franconia township for the same road was filed, and viewers were appointed. The viewers reported a road, beginning at Souders’ station and Harleysville turnpike, on land of Michael Henzey, &c., and crossing the North Pennsylvania Railroad, thence by various courses and distances to the county line road, on land of Henry H. Rhoads, being the same road laid out by the former jury. This report was filed May 22d 1872, and on August 19th exceptions were filed, viz. 1. That the proceedings were in contravention of a rule of the Court of Quarter Sessions, that “ when a procedure for a road or bridge has finally failed, another application for such contemplated road or bridge shall not be acted on for one year from the session at which such road or bridge was finally rejected.” 2. The road will cross the North Pennsylvania Railroad at grade and be extremely dangerous, and impose an undue burden on the railroad company to prevent accidents. 3. The road is unnecessary, there being four other roads running parallel with it within a mile and a half. Testimony was heard upon the exceptions. There were a number of continuances of the case until April 8th 1874, when the exceptions were dismissed and the report confirmed: and “ petition to be filed as of to-day, on or before May 2d 1874, for a review, and rule granted to show cause why jurors should not be appointed. Returnable 3d Monday of May 1874.” On the 2d of May 1874, a petition for a review was filed; after setting out the report, &c., laying out the road, &c., it continued :— “Your petitioners further represent that the said report has been pending upon exceptions filed thereto until the 8th of April A. D. 1874,” and prayed for the appointment of reviewers. On the Í6th of June 1874, the petition for review was dismissed, Ross, P. J., delivering the following opinion:— “ This application for a review has some meritorious considerations to support it. “Before the original petition was filed, I, as an individual member of the court, had announced my intention to disapprove and refuse to lay out any public road crossing a railroad at grade, unless it appeared that a controlling and imperative necessity required such road for the accommodation of the public. “ After this petition was filed, and report made upon it, Mr. Fox, the counsel for the exceptants, came into court and inquired whether the court had made such a rule. He was informed by the court what had been said by the presiding judge, and was also told that when a full bench was present a consultation would be had, and if the associates agreed with the presiding judge, such would be the policy of the court in laying out public roads. A conference was had, and the court determined to lay out no public road which crossed a railroad at grade, unless a controlling and imperative public necessity required such road. The counsel for the exceptants then filed exceptions to the report, relying on the fact that this road crossed the track of the North Pennsylvania Railroad at a grade, and did not file a petition for a review. “ On the final hearing of the exceptions, the associate judges came to the conclusion that the facts in the-case did present the road as one demanded by a controlling and imperative public necessity, and dismissed the exceptions. In this conclusion I did not, and do not concur, and should have sustained the exceptions. “ My colleagues desire me to say that they adhere to the rule, where the public safety justifies it, and will enforce it in all proper cases, but that in this instance they are satisfied that public safety and convenience require a road at this point. u The exceptants alleging that they were misled by the announcement of the court, ask that they be permitted to file this petition for a review. “ If we could entertain it under the law and the rules of court, we would do so, but the hastiest examination shows that we cannot. The rule with its exception was announced, and the court have decided that this road was within the exception. If the ex-ceptants thought it was not, they took the risk of their own judgment and must abide the result.” The exceptants removed the record to the Supreme Court by certiorari, and assigned for error:— 1. Not setting aside the report of the viewers under the rule of court. * * * * * * * * * • * 3. Dismissing the petition for review.
78 Pa. 320Hummel & Co.'s Appeal (1875)
Appeal from the Court of Common Pleas of Snyder county. In Equity. No. 280, of January Term 1874. The bill in this case was filed August 22d 1873, by L. R. Hummel and others, trading as L. R. Hummel & Co., against the Lycoming Eire Insurance Co. The object of the bill was to strike off a judgment against the plaintiffs, in which the defendants in the bill were plaintiffs; to set aside the execution issued on it; to reduce certain assessments made on the plaintiffs’ premium note as insurers in the company, and for a statement of the affairs of the company. The defendants were incorporated by virtue of an Act of Assembly of March 20th 1840. The act enacted that all persons who should insure ,with the company, should be members whilst they continued insured and no longer. Every person becoming a member should, before receiving his policy, deposit his promissory note for such sum as the directors should determine, a part of which note, not exceeding ten per cent., should be immediately paid, and the remainder be payable in part or the whole when the directors should deem it requisite for payment of losses by fire and expenses of the company, and at the expiration of the time of the insurance, the note, or so much as remained unpaid, should be given up to the maker; the company should have a lien in the nature of a judgment waiving inquisition on all the property insured to the amount of the deposit note, the prothonotary of the proper county to enter it on the judgment docket, to be in all respects as a judgment entered upon warrant of attorney and execution, might issue at any time for so much as might be due and demandable; when property insured should be alienated the policy to be void, tbe policy to be surrendered, tbe insured to receive his deposit note, and satisfaction to be entered on the judgment, but the alienee might have the policy assigned to him -with the consent of the directors within thirty days after the alienation. After ascertaining a loss by fire, the directors should determine the sums to be paid by each member as his proportion of the loss, which should be paid within thirty days after notice, &c. The act was to continue for twenty years, the legislature reserving the right to alter or modify its provisions. By a supplement passed July 26th 1842, the foregoing provisions as to judgment, &c., were reenacted, and it was further provided that, before any execution should issue against a member, the officers should make out a statement of the amount of premiums received, the manner in which the moneys had been expended, and file a copy of the statement in the office of the prothonotary of the county where the member to be charged resides. By another supplement, passed May 1st 1861, the company was authorized at their discretion to make insurances, for which cash premiums only should be received, and the sums thus received paid into the common treasury, and the company should be responsible for all losses to the property insured, but the insured should not be members of the company. On the 28th of April 1869, L. R. Hummel, C. Hower and E. W. Dundaugh, trading as L. R. Hummel & Co.,' made application to the defendants for insurance to the amount of $10,000, on a planing mill, &c., in Selinsgrove ; they gave a premium note for $8000, and paid $400 in cash on it. On the 3d of May 1869, the defendants issued the policy to plaintiffs in accordance with his application : the policy was subjéct to by-laws, conditions, &c., of the act of incorporation. The 10th condition was : “ Whenever an assessment shall have been made upon tbe premium notes, and the same is not paid within thirty days after having been demanded by the company, through iheir agents or receivers, the policy of insurance given upon such notes, shall be null and void, until the said assessment be paid, and the directors shall retain such premium-notes and collect thereon such sum or sums so assessed.” On the 1st of May 1869 and before the policy was issued, the defendants levied an assessment, No. 26, on their premium-note for $240, and on the 1st of May 1870 another assessment, No. 27, for $320 ; in the fall of 1870, Dundaugh sold his interest in the firm to J. H. Fisher, who was accepted as a member of the firm, which continued under the same name. On the 17th of February 1871, the original firm, with the consent of the company, transferred the policy.of insurance to the new firm (the plaintiffs), who gave their premium-note for $8000, instead of the one first given. About May 1st 1871, another assessment of $400, No. 28, was levied on the new note, these assessments were paid within thirty days respectively ; about October 10th 1871, another assessment, No. 29, for $1000 was levied ; another’, No. 30, for $400, about May 1st 1872, and another, No. 31, for $400; about May 1st 1873. The defendants insured property in the state of Illinois and other states than Pennsylvania at stock rates and on the mutual plan, and also on stock rates in Pennsylvania, without the knowledge and consent of the plaintiffs ; the plaintiffs refused to pay the last three assessments. On the 3d of April 1872, after the refusal of the plaintiffs to pay assessment No. 29, the defendants entered judgment in the Common Pleas of Snyder county on the premium-note for $6880, and filed a statement in accoi’dance with requisitions of the Act of Assembly.- The statement showed the operations of the company from June 10th 1870 to June 10th 1871, at which last date the amount of assets over liabilities appeared to be $266,667.82 ; and the operations of the company from June 10th to October 10th 1871, at which last date the excess of assets over liabilities appeared to be $84,168.88. They filed also an “ estimated statement;” in this, amongst the liabilities, was that of loss by the Chicago fire $450,000, and amongst the assets the above stated actual balance of $84,158.88, and the amount anticipated from assessment No. 29 ; showing the estimated amount of assets over liabilities to be $138,261.54. On the 17th of September 1871, about eight months before assessment No. 31 was made, Eisher sold his interest in the firm to Jeremiah Bogar and Isaac Albert. To September Term 1873 of the Court of Common Pleas of ■ Snyder county, the defendants issued execution on their judgment on the premium-note and instructed the sheriff to collect assessment No. 29 for $1000, and No. 30 for $400. The bill set out the foregoing facts ; it further set out that the defendants were endeavoring to collect assessments No. 29 and No. 30, for the purpose of paying losses incurred by fire in Illinois and other states than Pennsylvania, and also from losses in Pennsylvania on insurance made at stock-rates ; and the plaintiffs averred that, according to condition No. 10, assessment No. 30 could not be collected. They averred that the defendants refused to allow them credit for $400 paid at the time of the application and assessment No. 26 for $240. That assessment No. 29 was excessive, the defendant having at the time more assets than were necessary to meet the losses, &c., and assessments Nos. 29, 30 and 31 were made on estimated losses, contrary to the charter. The defendants amongst other things answered, admitting the insurance of property outside of Pennsylvania, both on the stocks and mutual plan, and that assessments Nos. 29 and 30 were levied for the payment of losses under such insurances, and that the proceedings were under Act of May 1st 1861, which was part of their charter; they denied that at the time of the assessments they were in possession of the funds to meet demands against them; the liabilities over the assets — including $450,000 for the losses by the Chicago fire — was $524,693.80 ; the assessments were on actual losses already accrued and monthly losses accruing. The plaintiffs replied, amongst other things, that the supplements of 1842 and 1861 had not been accepted by the members, and were, therefore, not binding. An examiner was appointed, who reported the testimony; the court, without referring the case to a master, decreed as follows : “And now, December 20th, 1873, it appears to the court that the respondents are not now claiming assessment No. 31, the court dismiss the bill of complainants and order them to pay the cost of this proceeding.”' The plaintiffs appealed to the Supreme Court, and in a number of specifications assigned the decree for error. The Supreme Court referred the case to W. J. Greenough as master. He reported:— 1. That the defendants were bound by the supplements of 1842 and 1861, and could levy assessments to pay losses at stock-rates as well as those on the mutual plan. 2, 3. That the policy became void under the tenth condition, by reason of defendants’ refusal to pay assessment No. 29, and they were therefore not liable to assessment Nos. 30 and 31, and that in consequence of the alienation by Fisher to Bogar and Albert, the plaintiffs were not liable for assessment No. 31. 4. That the directors, under the facts in the case, were authorized by their charter to make assessment No. 29. 5. He reported a somewhat minute calculation of the assets and liabilities, and found that the losses by the Chicago fire were not so great as the defendants had estimated them. 6. That the defendants had the right to enter judgment on the premium-note of plaintiffs and issue execution for the sums “ due and demandable.” 7. That the statement filed contained inaccuracies, and was, therefore, not such an one as the Act of Assembly required, and would not support the execution issued, but the defendants had the right to issue execution for the amount actually due, as ascertained by the calculation made by him. He therefore recommended a decree that the defendants be restrained from collecting assessments Nos. 30 and 31, and also assessment No. 29, except $515.66, which sum, with interest, they be allowed to collect by the execution, &c. The defendants excepted to those parts of the report in which the master decided against them. They stated with their exceptions that they had not issued an execution to collect assessment ■ No. 81, and did not intend to do so.
78 Pa. 326Egbert v. Egbert (1875)
1. The signature of a subscribing witness to an ordinary instrument implies only that it was signed by the party purporting to have signed it; but subscribing as a witness to a will is an assertion that the testator was of sound mind when he executed it. 2. The condition of the testator’s mind at the time of executing the will is part of the res gestae. 3. On the trial of an issue devisavit vel non, it is competent for the defendant to cross-examine a subscribing witness as to the condition of the testator’s mind at the time the paper was executed. 4. All occurring at the execution of a will, including the testator’s mental and physical condition, is proper for cross-examination. 5. The presumption is in favor of sanity, and the burden of proving unsoundness in a testator is upon the party impeaching the will.
78 Pa. 329Roy v. Townsend (1875)
53, ' This was an ejectment commenced April 1st 1870, by Rachel M. W. Townsend, Wilson Moore Jenkins and Jacob M. Ellis, executors, &e., of John Wilson Moore, deceased, against Michael Roy, Patrick McAdams, John Payne and E. D. Rush.
78 Pa. 334Hanna v. Holton (1873)
1. The assignment of a security to a creditor to hold as collateral security of his debt, establishes a privity of contract, which invests him with the ownership of the collateral for all purposes of dominion of the debt assigned. 2. When the collateral is lost by the insolvency of the debtor in it, through the supine negligence of the creditor, he must account for the loss to his own debtor. 3. Plaintiff assigned to defendant a judgment against Jackson, the lien of which expired September 1863, as collateral for money lent to plaintiff; defendant neglected to revive the lien; Jackson sold his land July 1866 and the judgment against him was lost. Held that defendant was liable to plaintiff on the ground of negligence. 4. Jackson, at the sale of his land, was solvent, and the judgment was collectible. He afterwards died insolvent. Held that the Statute of Limitations began to run from the time of the sale, not from the time when the lien expired.
78 Pa. 339French v. Commonwealth ex rel. Zimmerman (1875)
1. Sect. 22, art. 5 of the Constitution, requiring the erection of separate Orphans’ Courts in counties containing more than 150,000 inhabitants, and constituting the register clerk of such court, is designed to establish a new tribunal for the administration of that branch of the law and to provide for its new officials. 2. It withholds from the former clerk of an Orphans’ Court the newly-created powers and duties pertaining to a clerk of the new court. 3. The Act of May 19th 1874, providing for the erection of a separate Orphans’ Court in Luzerne county, &c., substantially re-enacts the constitutional requirement. 4. The register of wills in such counties had no such vested right to his office as to preclude the people from abolishing the office or abridging the term by the New Constitution. 5. A register of wills of Luzerne county was commissioned in 1872 for three years; in 1873 a clerk of the Orphans’ Court was commissioned for three years ; in 1874 a separate Orphans’ Court was established. Reid, that under the New Constitution, the register was clerk of the Orphans’ Court. 6. The former Orphans’ Court having been abolished by the Constitution, the powers and duties of the clerk fell with it.
78 Pa. 342Fritz v. Brandon (1875)
Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 224. This was an action of ejectment, commenced April 22d 1863, by Nelson Brandon and Henry Snyder against xindrew Fritz, Henry Fermier, John H. Brown and others, “ for a tract of land in Union township, Schuylkill county (formerly Northumberland county), containing about 200 acres or thereabouts, bounded by lands surveyed to James Smith, Christian Immel, John Klinger and others, being the same tract of land which was owned by Elizabeth Bitler,” &c. Edward J. Silliman and James B. Boylan were afterwards added as plaintiffs. The case was tried November 17th 1873, before Pershing, P. J. The plaintiffs gave in evidence, warrant dated March 21st 1827, to John Bitler for 100 acres of land, being unimproved, &c., in the township of Union ; survey by G Réber, deputy surveyor, June 22d 1829, for 199 acres 63 perches and allowance; calls to adjoin Casper Thiel on north, James Smith on east, and vacant on south and west; accepted 17th 1829. They gave evidence that the title to this survey had passed to Elizabeth and Hannah Bitler, and showed assessments in their name for 1842 and 1843 of 300 acres of unseated land in Union township, from the treasurer’s sales book ; the sale on June 10th 1844, of 300 acres in the name of Elizabeth and Hannah Bitler to the county commissioners. They then gave in evidence under objection and exception, assessments on the same land from 1832 to 1841 inclusive, for the purpose of identifying it with the land sold by the treasurer in 1844; deed Henry Shoemaker, treasurer, to Samuel Medlar and others, county commissioners, dated July 13th 1844 for 300 acres, assessed in the name of Elizabeth and Hannah Bitler. They further gave in evidence from the commissioners, register of unseated land up to 1846, “ 300 acres of land sold as the property of Elizabeth and Hannah Bitler for $6.62” to C. M. Straub at commissioners’ sale, July 16th 1849, for $6, and deed dated August 13th 1849, from Lewis Dreher and others, county commissioners, to C. M. Straub, reciting the treasurer’s deed to the commissioners; deed December 27th 1855, from Straub to Elizabeth Bitler, for 300 acres in Union township, reciting treasurer’s and commissioners’ sales and deeds. Receipt of state treasurer to Nelson Brandon, August 19th 1856, for $73.40 purchase-money, and interest on 199 acres 63 perches of land in Union township, Schuylkill county, surveyed on warrant to John Bitler, and $10 for patent; deed, December 18th 1858, Elizabeth Bitler to Nelson Brandon, “for all her right, title and interest” in all the real estate in Schuylkill county to which she was entitled; deed, dated April 16th 1860, Elizabeth Bitler to Henry Snyder, for one undivided half pax’t of the 199 acres 63 perches of tract adjoining James Smith, Casper Thiel, Christian Immel and John Klinger ; deed, dated April 17th 1860, Nelson Bx’andon to Henry Snydei', for “ all the undivided half of said tract conveyed to him by the said Elizabeth Bitler.” They then gave in evidence conveyances since the commencement of the suit, viz., from Snyder to J. B. Boylan for an undivided third of land in controversy, and from Brandon to E. S. Silliman for an undivided sixth of the same land. They then, under objection and exception, gave a large amount of evidence for the purpose of identifying the tract sold for taxes, and rested. For the defendants; T. R. Bannan, Esq., testified that he had been appointed by the county commissioners to collect money due to the county, amongst others the amount due by Straub for the purchase-money of the Bitler ti’act sold to him by the commissioners, and other claims in favor of the county against him. The bill for these claims was dated November 27th 1854. The deed for the Bitler tract was presented to Straub ; he did not object to taking the deed, but objected to paying the pui-chase-money, because the county owed him money; he paid no money on the bills. The commissioners settled with Straub, and the deed was given to him shortly before Straub’s deed to Elizabeth Bitler December 27th 1855. They then gave in evidence the application of James Silliman et al., for eighteen tracts of land, supposed to be in Berks county, filed 1st July 1793, viz.:— “ James Silliman, for 400 acres land on north'side of Mahanoy mountain, adjoining or near lands surveyed to Davis Rees, supposed to be in the county of Berks ; Susannah Silliman, for 400 acres, adjoining o’r near land surveyed to Isaac Pearson, and adjoining land this day granted to James Silliman; Henry Thiel, for 400 acres, adjoining land this day granted to Susannah Silliman ; Mary Thiel, for 400 acres, adjoining Henry Thiel; George Rose, for 400 acres, adjoining Mary Thiel; Catharine Rose, for 400 acres, adjoining George Rose; Jacob Kelchner, for 400acres, adjoining Catharine Rose ; Maria Kelchner, for 400 acres, adjoining Jacob Kelchner; John Shomo, for 400 acres, adjoining Maria Kelchner; Ann Maria Shomo, for 400 acres, adjoining Jo'hn Shomo ; Casper Thiel, for 400 acres, adjoining Ann Mary Shomo; Christian Immel, for 400 acres, adjoining Casper Thiel; Christian Troxel, for 400 acres, adjoining Christian Immel; John Klinger, for 400 acres, adjoining Christian Troxel; John Witman, for 400 acres, adjoining John Klinger; Mary Witman, for 400 acres, adjoining John Witman ; William Witman, for 400 acres, adjoining Mary Witman ; Jacob Yeager, for 400 acres, adjoining William Witman. Endorsed, “ Berks county, 1st July 1793. * * * J. Silliman & Co., 18 warrants, 400 acres each, 7200 acres. Paid in specie ...... ¿£180 Fees paid ....... ¿£9 Receipts delivered with copies.” Also, warrants of July 1st 1793, to each of the applicants except John Witman, Mary Witman, William Witman and Jacob Yeager. Surveys on the fourteen warrants on the 21st, 22d, 23d and 24th of October 1793; and certified copy list of accepted returns by William Gray, deputy surveyor of Northumberland county, viz.:— 1794. March 15. James Silliman . . 381| acres. Susannah Silliman 386J “ Henry Thiel 407J “ Mary Thiel . 476 “ George Rose 482 “ Catharine Rose 464| “ Jacob Kelchner 377 “ Should be 371 Maria Kelchner . 439£ “ John Shomo 377 .“ Ann Maria Shomo 439£ “ Casper Thiel 400 “ Christian Immel . 400 “ Christian Troxell . 400 “ John Klinger 400 “ ” All the surveys were on the waters of Catawissa creek, and were endorsed:— “N. B. Another return on this same warrant made by Henry Vanderslice, deputy surveyor of Berks county, and located in another place.” The defendants then offered, patent dated December 10th 1806, to John Myer for the James Silliman tract, to be followed by patents to parties claiming under the warrantees for eleven of the thirteen tracts in the block located by Gray, deputy surveyor, to be followed by evidence that defendants claim under three of the tracts which underlie and with which the Bitler tract interferes. The offer was objected to by the plaintiffs, that the James Silliman patent was not to show that the plaintiffs claim title to any portion of the land embraced in it or that it interferes with the Bitler survey. The court rejected the offer so far as it related to any patents except those claimed to interfere with the Bitler survey; and sealed a bill of exceptions for the defendants. The patents offered in evidence were to John Myer for the James Silliman, the Susanna Silliman, the Henry Thiel, the Mary Thiel, the George Rose, dated December 10th 1806; the Catharine Rose, and the Jacob Kelchner, dated January 13th 1808, to Jacob Trout for the Casper Thiel, January 25th 1813, and to Lewis Reeser for the Christian Troxel, the Christian Immel and the northern half of the John Klinger, January 28th 1865. They gave in evidence assessments of 1841, Union township unseated list, for 1841, 1842, 1843, Christian Troxel 400 acres, and sale of same tract to commissioners, June 10th 1844 ; deed, dated and acknowledged July 13th 1844, Henry Shoemaker, treasurer, to S. R. Medlar and others, county commissioners; entry in commissioners’ register of unseated lands, in Union township 1844, 400 acres, sold.as property of Cbi'istian Troxel, and marked “sold to John W. Roseberry, B. Nehff and H. Krebs at commissioners’ sale, July 16th 1849, for $18 purchase-money paid, deed Lewis Dreher and others, commissioners, to Roseberry, &c., delivered September 1st 1849.” Similar entries as to the Christian Immel, John Klinger tracts; also, treasurer’s sale of the Casper Thiel tract, June 9th 1834, to the commissioners; sale by them to B. T. Taylor and J. Clayton ; also, evidence that the title to the Christian Troxel, Christian Immel and the northern half of the John Klinger tract and the Casper Thiel tract vested in John H. Brown. Lease, April 13th 1863, Brown to Henry Eermier, for the above-mentioned tracts, under the Gray surveys, for one year, and renewed from year to year up to the time of trial. The defendants then gave in evidence connected draft from Land Office of fourteen surveys, returned by W. Gray, deputy surveyor of Northumberland county; also certified connected draft of seven of the fourteen Gray surveys, with the John Bitler survey of 199 acres 63 perches plotted on it, to show the interference, which appears to be with the Casper Thiel on the north, Christian Troxell on the south and slightly with Christian Immel on the west. They gave in evidence, sale of 209 acres in name of John Bitler' in Union township to commissioners, and by them January 23d 1843 to Charles E. Mann ; also, returns of road taxes for 1841, on unseated land in Union township, in the names Casper Thiel, Christian Immel, John Klinger and Christian Troxel, sold to commissioners; the Casper Thiel sold by them February 13th 1843 to B. F. Taylor and 0. E. Mann, and the other three July 16th 1849 to J. W. Roseberry, Benjamin Nehff and Henry Krebbs, and the vesting of the title of the John Bitler to 209 acres, February 23d 1859, in John H. Brown. They gave evidence that all the actual distances of the Bitler survey overran the official, so that the content, according to the measurement on the ground, is about 100 acres more than appears on the official survey ; that the John Bitler was principally ou the Christian Troxel, that it interfered with the Christian Itnmel, 8 acres 71 perches, with the Casper Thiel 26 acres 46 perches ; part of it, northwest of the Christian Troxel, 138 square perches is on the John Shomo. The evidence was that the tracts surveyed by Gray were never in Berks county, they were in Northumberland county. In rebuttal, the plaintiffs, under objection and exception, gave in evidence copies of surveys made by Henry Vanderslice, deputy surveyor of Berks county, on the 5th, 6th, 7th, 8th, 9th, 10th and 11th of July 1793, on the eighteen warrants granted July 1st 1793, on the application of James Silliman and others above stated, with evidence of their location on the ground, viz. : certificate of the return of these surveys July 16th 1793; of the fourteen of the surveys, being those given in evidence by the defendants as having been made by William Gray, deputy surveyor of Northumberland; there is endoi’scd on eleven of them: “Another return on this same warrant made by William Gray, deputy surveyor of Northumberland county;” on one of them “N; B. A survey ret’d on the within mentioned warrant in Northumberland county ;” on two of them, “ N. B. Survey executed and patented on the within mentioned warrant in Northumberland county ;” also, a connected draft of seventeen of the above tracts, including the fourteen surveyed by Gray; caveat, dated July l8th 1793, John Kunkle and Aaron Bowen against granting patents to the eighteen warrantees for land situate in Oatawissa valley, Northumberland or Berks county, granted them by warrants dated July 1st 1793, the caveators alleging that they had warrants dated May 19th 1798, for part of the same land; certificate of surveyor general, dated November 26th 1873, that no action was taken under the caveat, and that no citation issued. There was other evidence of the location of those warrants. The evidence taken in the case was very voluminous; what is above given, with the opinion of the Supreme Court, it is supposed will sufficiently elucidate the questions decided in that court. Amongst other things the court charged :— “ The conclusion to which we have come is, that the surveys made by Gray were upon exhausted warrants, that his attempt to locate them a second time was an unofficial act and void, and that the lands included in his surveys not previously appropriated belonged to the Commonwealth, and were left open for future appropriations. This sweeps away many of the questions raised upon the trial, and upon which we have been requested to instruct 7 ov.” The following were points of the plaintiffs which were affirmed: 4. The tax sales in 1844 by the treasurer to the commissioners could pass but one good title at best to the land in controversy, and that the sales under the assessments in the names of Christian Immel and Christian Troxel passed no title to the land in controversy, there being no title in either the said Immel or Troxel to the land in controversy, or any portion thereof, and that if the jury believe the assessments of 300 acres in the names of Hannah and Elizabeth Bitler applied to the land in controversy, the sale under these assessments passed the only good title to the commissioners, and the only one the commissioners could sell, and that as it was this title that was sold to C. M. Straub he acquired a good title by his purchase from the county commissioners. 5. The survey made by Gray, deputy surveyor of Northumberland county, after the date of the warrant and survey and return by Vanderslice, deputy surveyor of Berks county, was wholly void and of no more effect to establish title than any lines of a mere trespasser. 9. The surveys of Christian Troxel, Christian Immel and John Klinger, purporting to have been made by Gray, deputy surveyor of Northumberland county, after the date of the surveys and returns thereof, by Vanderslice, deputy surveyor of Berks county, upon the warrants of July 1st 1793, were wholly void and did not give the warrantees any rights either against the state or any other claimant of the tract covered by said Gray surveys, and consequently the assessment of the tracts called for by such Gray surveys and tax sales thereof, were also void for want of jurisdiction, for until appropriation of the land the commissioners had no right to assess it, and therefore no title based on a sale thereof for taxes on the assessment of these lands in 1841, ’42 and ’43, in the names of Troxel, Immel or Klinger, will pass any title to the purchaser as against an assessment of the land in controversy in the names of Hannah and Elizabeth Bitler, and a sale thereof for taxes on the same day as the sales based on the assessment in the names of Troxel, Immel or Klinger. 10. The sale by the county commissioners of the 800 acres assessed to Hannah* and Elizabeth Bitler, to C. M. Straub, the conditions of the sale at the time by Straub, and the execution and acknowedgment of the deed to him by the commissioners, on the 13th August 1849, and the payment of the purchase-money, and subsequent delivery of the deed to him, vested title in him from the day of sale. The following point of the defendants was denied :— ■ 9. The plaintiffs making claim under the John Bitler survey of 1829, and having shown no title or interest in any of the older surveys with which it interferes as made by either Gray or Vanderslice in 1763, and the surveys by William Gray, deputy surveyor of Northumberland county, of the Klinger, Troxel and Immel in 1793, having been accepted by the Commonwealth on the 15th March 1794, and the Casper Thiel having been patented in 1813, and the Klinger, Troxel and Immel subsequently, such acceptance of the aforesaid surveys made by Gray was a valid and legal appropriation of the land against every one but the Commonwealth, and as the Commonwealth has never objected, but on the other hand has accepted and by patents confirmed said surveys, and the surveys under which the defendants claim having been made and returned more than twenty-one years prior to the survey of the John Bitler in 1829, the presumption of law is under the facts in evidence in this case conclusive of the fact that the title was legal and perfect to the Klinger, Troxel, Immel and Thiel surveys made by William Gray as against the junior survey of the John Bitler in 1829, and the defendants are entitled to a verdict. The verdict was for the plaintiffs. The defendants took a writ of error, and assigned sixty-one errors, amongst others. 9. Rejecting the patents to parties claiming under the warrantees for eleven of the thirteen tracts in the block of surveys located by Gray, to be followed by evidence that defendants claim under three of said warrants which underlie and with which the John Bitler survey interferes. 13. Receiving in evidence copies of surveys made by Henry Yanderslice, deputy surveyor of Berks county in July 1793, under the eighteen warrants granted, on the application of James Silliman, with evidence of their location on the ground, &c., for the purpose of showing that the Gray surveys were on exhausted warrants. 26. The part of the charge given above. 33, 34. The answers to the plaintiffs’ 4th and 5th points. 38, 39. The answers to the plaintiffs’ 9th and 10th points. 53. The answer to defendants’ 9th point.
78 Pa. 357Zeigler v. Shomo (1875)
1. An assignment of a bankrupt’s land by a register to an assignee in bankruptcy, not acknowledged or proved, as required by the laws of Pennsylvania, cannot be recorded in that state. 2. From the commencement of proceedings in bankruptcy the estate of the bankrupt is in the custody of the District Court of the United States; its jurisdiction is superior and conclusive and its decrees final and absolute. 3. A purchaser at an assignee’s sale of a bankrupt’s property under an order of the District Court and decree confirming it, is not bound to see that every particular in the appointment and qualification of the assignee has been complied with ; he takes whatever title was in the bankrupt. 4. Land was sold as a bankrupt’s; in ejectment against him by the purchaser, he defended on the ground that the right of possession was in his wife when the writ was served. If the wife had no title, her possession was that of her husband and the defence could not be sustained. 5. Evidence in this case not sufficient to show that an absolute deed to husband was in trust for his wife.
78 Pa. 365Lawrence & Others' Appeal (1875)
322. The bill in this case was filed May 9th 1872, by the Philadelphia and Reading Railroad Company against Jacob S. Lawrence and others, partners as Lawrence, Merkle & Co., lessees, and divers other persons, owners of the land referred to in the bill.
78 Pa. 370Watts's Appeal (1874)
Appeal from Nisi Prius. In Equity. No. 2, to July Term 1870. The bill in this case was filed by Henry M. Watts, John M. Bickel, Lewis Seal, Charles E. Anspach and James Anspach, plaintiffs, against The McKean and Elk Land and Improvement Company, John C. Cresson, William Biddle, Frederick Fraley, Samuel Mason, Mordecai L. Dawson, John Livezey, Samuel Welsh, James It. Greeves, Frederick Collins, William Hacker, Charles H. Hutchinson, Harry G. Clay, William Welsh, Robert P. Kane, The Pennsylvania Company for Insurance on Lives, &c., the executor, &c., of I. P. Hutchinson, deceased, the executrix, &c., of S. M. Leiper, deceased, the executors, &c., of Jeremiah Hacker, deceased, S. Mason and E. F. Gay, trustees of McKean and Elk Land and Improvement Company under a first mortgage, C. H. Hutchinson and H. G. Clay, trustees of same company under a second mortgage, The New York and Erie Mining Company and The Erie Mining Company. On the 6th of February 1856, an act was passed to incorporate The McKean and Elk Land and Improvement" Company. It recited that Samuel M. Leiper died seised of an undivided fourth of land in the counties of Elk and McKean, &c.; that the other owners were desirous of converting their interests into the stock of a corporation, established by the act; that the interests of the widow and children would be injured by a sale of the lands by proceedings in partition which were threatened by the other owners, and that the executors of Leiper had no authority to convey the land to such corporation and receive as the other owners were about to do payment in the stock of the corporation; it was enacted - Sect..l. That the executors, &c., of Leiper might sell and convey to the corporation the interest of Leiper in the lands, and receive its stock in payment. Sect. 2. That Henry M. Watts, John K. Kane, Frederick Fraley, John C. Cresson, Samuel Mason, John Livezey, Joseph Cresson, Jeremiah Hacker, Mordecai L. Dawson, Samuel Welsh, James R. Greeves, I. P. Hutchinson, William Biddle, Thomas Struthers, and the executors of Leiper, their associates, successors and assigns, should be a corporation under the name of The Mc-Kean and Elk Land and Improvement Company, with.all the privileges, &c., of a corporation. Sect. 3. The corporators above named should, as soon as convenient, elect seven directors, to serve for one year; each share of stock to entitle the holder to a vote; the directors to choose one of their number for president, and other officers might be elected and appointed; the governor to issue letters patent on notice of the organization of the corporation. Sect. 4. The corporation to value their lands and convert them into a common stock, to be divided into a convenient number of shares, which were to be apportioned amongst the owners of the , lands according to their interests respectively, for which shares certificates should be issued. Sect. 5. The directors to sell the land and receive “ any moneys, mortgages or other securities, including the certificates of stock of this corporation, in payment, * * * provided, that the said corporation shall sell and dispose of at least one-half of all their land within ten years, and the remainder, except 2000 acres, within twenty years from the date hereof. Sect. 6. The corporation to have power to lease for a period not exceeding twenty years, any of the lands and the right, &e., of mining and carrying away iron ore, coal and other minerals and materials from the land, and “ to aid in the development of the minerals and other materials, the use and transportation of them to market, and promote the clearing and settlement of the country; * * * to employ their capital in the construction of such railways, not exceeding twenty miles in length, as may be necessary from such mines, to intersect the Sunbury and Erie or the Allegheny Valley Railroad; * * * to create a capital stock of $100,000, for the purposes specified in this section.” Sect. 7. Dividends from the sales of lands, &c., to be made amongst the shareholders at least once a year, “ and when the proceeds of the sale of lands are paid to the holders of certificates of stock, such certificates shall be surrendered to the corporation and cancelled, and new certificates issued according to a uniform rule of equitable adjustment of the rights of shareholders, * * * so that whenever the whole of the lands shall have been sold the certificates representing the same shall have been entirely exhausted and cancelled.” On the 14th of April 1864 a supplement to the foregoing act extended the time for selling the lands of the company five years. Another supplement, passed March 16th 1867, authorized the company to borrow money for purposes of improving and developing their lands, and for all other purposes of the corporation, at such rate of interest as they might deem advisable, or by sale of the bonds at a discount and secure the payment of the money borrowed by mortgage or mortgages on their estate. A supplement was passed February 10th 1852, to the Act to incorporate the Sunbury and Erie Railroad Company (passed April 3d 1837). It authorized municipal or other corporations to subscribe for the stock of the Sunbury and Erie Railroad Company, and to borrow money to pay therefor; the bonds that might be issued by such corporations bearing interest at six per cent, per annum might be received by the railroad company as cash in payment of the subscriptions for stock, &c. The bill set out:— 1. That H. M. Watts, July 1st 1855, was owner of one-fourth, Leiper’s representatives one-fourth, Fraley, Cresson, Hacker, Greeves, Biddle and Hutehinson’s estate were owners of the other half of land in McKean and Elk counties, comprising between 120,000 and 150,000 acres ; and the act (above stated) to incorporate the McKean and Elk Land and Improvement Company. 2-9. Set out the provisions of the act, its acceptance, issue of letters patent, &c. 10, 11. Conveyance of the land to the corporation, and its conversion into stock; 108,000 shares issued to the owners of the land, and 12,000 shares reserved for incidental expenses. 12. That plaintiffs held more than 30,000 shares of the stock ; and charging the directors with neglect of duty, malfeasance in office and perverting the purposes of the corporation. 13. That the directors neglected to sell the land as required by the act of incorporation, viz., one-half in ten years, and the remainder in twenty years, and make dividends of the proceeds at least once a year. 14. Subscribing without authority of law for 1625 shares of the stock of the Sunbury and Erie Railroad Company ; to he paid for $100,000 in cash and 5000 acres of land, Watts, who was president, voting against the subscription and resigning. 15. 16. Watts’s various protests and efforts to withdraw his land. 17. Assessment of 60 cents per share on the stock. 18. The unlawful execution of a mortgage, February 1st 1863, for $200,000 to Mason and Gay, trustees. 19, 34. Selling and conveying land to the Erie Mining Company, and the New York and Erie Mining Company in 1865, and accepting 11,750 shares of the stock of those companies in payment. 20, 21. Unlawfully executing a mortgage, June 22d 1867, for $267,000, to C. H. Hutchinson and Harry C. Clay, as trustees; the bonds secured by both mortgages taken by the directors, who were makers, sellers and purchasers. 22. Sale in 1857 of 9000 acres of land for $51,654. 23 — 25, 32. In 1868 the directors proposed to sell 98,795 acres and sold 35,600 acres at various prices, 62 per cent, payable in stock, 36 per cent, in mortgage bonds, and 2 per cent, in cash; the 35,600 acres were part of 98,600 acres estimated by a committee of the directors at $2,254,788 ; the sales were to shareholders, creditors and directors, on terms prescribed by themselves, and would exceed $400,000. 26, 27. Since November 1859, Watts had been persistent in his efforts, by written and verbal communication, to withdraw his land or purchase it; and the refusal of the directors to sell to one Putnam, who proposed to purchase 15,000 acres at $25 per acre. 28. The directors, by accepting conveyances of the land from the owners, assumed all the duties imposed by the charter, which they have neglected and refused to perform, &c. 30, 33. The directors, without authority of law, had contracted debts, and engaged in the erection of saw-mills, hotels and other buildings, and had misappropriated the funds instead of dividing them amongst the shareholders. 31. The directors mortgaged the lands so that they necessarily became purchasers of the bonds secured by the mortgages; on the 20th of February 1870 they threatened to foreclose the mortgages if the stockholders did not raise money to pay taxes. The relief prayed for was for a decree:— That the two mortgages were void, and not a lien; that the sales to the two mining companies be set aside, or if valid that the directors individually pay the plaintiffs their proportion of $117,500, the value at which they estimated the shares of these companies’ stock; that the subscription to the Sunbury and Erie Railroad stock was without authority of law, and the directors-pay the plaintiffs the damages they may have suffered by it; that an account be taken, and defendants pay, &c.; that the land to which plaintiffs may be entitled be conveyed to them clear of encumbrance; or, if that cannot be done, that the directors individually pay the plaintiffs the value for each acre they should not be able to convey ; that the sale of the 35,600 acres was without authority and void, or that the directors pay plaintiffs their proportion of their value; that they pay the taxes; and an injunction restraining a sale by the trustees under the mortgages; there was also a prayer for general' relief. The answer of the McKean and Elk Land and Improvement Company denied the allegations of the 12th paragraph of the bill; denied the charges in the 13th paragraph, and averred that they had done all in their power to effect a sale of the land; the land was inaccessible, except in the neighborhood of the Sun-bury and Erie Railroad; the completion of this road had been delayed for nearly nine years; outlays were required for roads, &c., without'funds to make them; all the large shareholders, except Mr. Watts, were willing to contribute ; there was always an agent residing in the neighborhood to make sales; whilst Mr. Watts was president, the price of farm land had been fixed at $5 per acre, but under the direction of the defendants, in January 1861, the price was fixed at $2 per acre without obtaining purchasers; no sales of any magnitude had been made during Mr. Watts’s presidency,-nor had he, although often requested, suggested any plan for effecting sales. Denied recollection of allegation in 27th paragraph, that Putnam offered to purchase land at $25 per acre ; demanded proof of it and of his ability to pay. Admitted the subscription to the Sunbury and Erie Railroad stock. They averred that the importance of the railroad as an outlet to the lands, even at a large outlay, was appreciated from the beginning and recognised by Mr. Watts in drafting the charter. In 1858 a committee, of which he was one, reported that a fair price could not be obtained without such outlet. The Act of February 10th 1852 conferred authority to make the subscription ; a committee was appointed to negotiate with the railroad company, the effort being to save the construction of a connecting road by securing a change of route, and obtaining a route which was contiguous to and traversed the lands for many miles; authority from the stockholders to make subscription, of which $91,000 of first mortgage bonds were agreed to be taken. There was a failure to make any arrangement with Mr. Watts because of his unreasonable demands, and because he claimed an allowance for the charter and to be free from any responsibility to the Sunbury and Erie Company, and that he asked warrants along the line of the railroad. There was a large indebtedness for taxes, surveys, &c.; the shareholders, who had previously assisted, declined to contribute further on account of Mr. Watts’s persistent refusal to aid or to permit the lands to be sold at public sale, or to raise, funds; and his dissent from any assessment on the shareholders to pay the liabilities; and interposing difficulties to raising money from sale of lands, and warning the company not to permit them to be sold for taxes. The stockholders, on the 16th of May 1862, authorized the first mortgage to pay the then present indebtedness and the subscription to the railroad ; $91,000 of the mortgage bonds were appropriated to pay the subscription and remainder to legitimate indebtedness; none of the proceeds of the mortgage were converted to the private use of the directors or misapplied. The second mortgage was made with the approval of the stockholders, under the Act of March 16th 1867. Watts admitted the propriety of investing funds for improvements, and that the Act of 1867 removed most of his objections to the carrying on of improvements, &c., by the corporation. The bonds were not chiefly taken by the directors; opportunity was offered to Watts to subscribe; he .agreed to subscribe to a working capital, and withdrew his subscription because, as he alleged, it had been made with the understanding that he was to be president. At a stockholders’ meeting in February 1868, a plan for the division of the land amongst them was recommended, which was referred to a committee for conference with the directors; there were other meetings for the same purpose, and on May 29th 1868 a public sale was authorized, should the plan of division fail; it did fail, and there was a public sale October 20th 1868. There were throughout the answer denials of neglect of duty and of misapplication or misappropriation of the funds. Separate answers of the other defendants were filed, denying, amongst other things, misappropriation of the funds and neglect of duty. Some of these denied any connection with any of the matters charged. Replications were filed and an examiner appointed, who took and reported a great mass of testimony. William J. Price, Esq., was appointed master. He reported elaborately and at great length. He found the following facts :— At a meeting of the directors they resolved that the shares of stock to be issued should be equal to the number of acres, and then should not exceed 108,000 shares, each share to represent one acre, and to be estimated at $50 till otherwise ordered; the shares reserved were 12,000, and were to abide the future action of the company. The directors acted with great promptitude to carry on the primary objects of the corporation. The lands were of great value for timber, coal and iron, and also for agricultural purposes, but it was an almost unbroken wilderness, and away from public highways, so that their resources could not be made available. The Sunbury and Erie Railroad and the Allegheny Valley Railroad were looked to as soon to furnish outlets to market. The leading object of the company was to sell the lands and divide the proceeds amongst the stockholders. All the directors labored earnestly to interest capitalists and make sales of the lands. In May 1858 a committee of the directors was appointed to endeavor to effect sales of the lands and stock, and ascertain if any thing could be done to aid in procuring an outlet to market. In September the committee reported, that obtaining a fair price for their lands could not be accomplished until there was an outlet for their mineral product, and that which seemed likely to benefit them first was the western portion of the Sunbury and Erie Railroad ; this railroad (afterwards the Philadelphia and Erie Railroad) was not opened till seven years after the report; its first train went through in October 1865. This delay prevented sales of lands and there were no dividends; but the accumulation of taxes and the necessary expenses were large and to be provided for. In 1859 the company subscribed for $162,500 of the stock of the railroad company, in order to secure a railroad through their lands ; the subscription was paid in 1863, by $91,000 of the mortgage bonds mentioned in the bill, 4800 of the reserved 12,000 shares of stock, and 200 acres of land. The first mortgage was issued February 1st 1863, to Samuel Mason and Edward F. Gay, as trustees ; the bonds secured by it amounted to $200,000, and were to meet the subscription to the railroad stock and other liabilities. During the oil excitement in 1864, 1865, a lease was made to an oil company of some of the company’s lands supposed to contain oil. This enterprise failed; while the excitement continued, the stock of the Land and Improvement Company was sought after and sold at increased prices; some was sold at $20 per share, but upon the failure of the efforts for oil its value decreased; Lewis Seal, one of the plaintiffs, bought 800 shares for $1 per share. In September 1866, the stockholders authorized the directors to raise by loan $200,000 to meet liabilities accrued, and provide means to meet future liabilities;' and to issue bonds to be secured by a second mortgage. Mr. Watts denied the power of the company to raise funds in that way; the Act of March 16th 1867, supra, was passed to confer the power. A second mortgage and bonds were executed June 22d 1867, Charles H. Hutchinson and Harry C. Clay being the trustees. The master found that the failure to sell more land within the time limited by the charter could not be attributed to the neglect of the directors or to a disregard of the provisions of the charter. The long delay in the opening of the Philadelphia and Erie Railroad contributed in a large measure to the disappointment of the objects and calculations of the original owners of the land. “ In this condition of things, the successive boards of directors were obliged to assume a difficult and at times a delicate management ; but they appear to have communicated frequently with the other stockholders, and to have conducted their management under the counsel and with the approval of a large majority of them. In the opinion of the master, the evidence fully justifies the conclusion that the successive boards of directors proceeded from time to time in such manner as they honestly believed to be for the best interests of all the stockholders.” As to the subscription to the Sunbury and Erie Railroad, * * * £‘ The railroad company being without means to complete the undertaking, those who were supposed to be benefited by the road were called upon to contribute to its construction. The location of the road at some points was made dependent upon the manner in which such calls were responded to. * * * The railroad would not have touched the land of the McKean and Elk Company at all, if the subscription had not been made ; but that it would have been laid at least ten miles away. With the subscription, however, the road was laid about fourteen miles through the company’s land, and added considerably to its value. ££ The following facts show what action was had in the McKean and Elk Company, in relation to the subscription complained of, so far as it appears in the evidence. The attention of the board of directors was called to the subject by Mr. Fraley, in August 1857. The directors’ minutes, under date of December 14th 1857, show that the president laid before the board a programme for a basis of land operations between the McKean and Elk Company and the Sunbury and Erie Railroad Company, which was referred to a committee of three stockholders — John C. Cresson, John K. Kane and Henry M. Watts — to report at a future meeting. On December 26th 1857, that committee presented a communication to the board, which was considered ; and it was agreed that the company would negotiate with the Sunbury and Erie Railroad Company for 15,000 acres of land, at six dollars per acre, to be paid for in the stock of the railroad company at par. That transaction does not appear to have been consummated as proposed. But at a meeting of directors, held on the 5th day of May 1859, called for the purpose of considering the subject of subscribing to the stock of the Sunbury and Erie Railroad Company, a committee of three— Henry M. Watts,-Frederick Fraley and James R. Greeves — was appointed, with authority to make a subscription of $1-00,000, conditioned on the adoption of the route by the West Clarion and Two-mile run, the subscription not to be payable until the road was completed. The subscription appears to have been made'on the 14th day of June 1859, payable in 5000 acres of land at $12.50 per acre, and $100,000 in cash, upon completion of the road. It appears also to have been made by the directors for and in the name of the McKean and Elli Company. The directors at that time were Henry M. Watts — who was also president of the company — John 0. Cresson, Samuel Mason, MordeeaiL. Dawson, Frederick Fraley, James R. Greeves and Robert P. Kane. Mr. Watts resigned as president and director on the 12th day of November 1859. The subscription thus made by the directors for the company was ratified by the stockholders. The answer of the McKean and Elk Company in this case, supported by the minutes of a stockholders’ meeting held May 16th 1862, shows that the act of the directors was adopted, and that they were authorized by the stockholders to borrow $200,000, to pay, among other things, the subscription to the Sunbury and Erie Railroad Company, and to issue bonds of the McKean and Elk Company, secured by a mortgage of its lands, for repayment of the money so borrowed. “ At a meeting of the directors of the McKean and Elk Company, held March 13th 1863, Mr. Fraley, of the committee to subscribe, reported that the Philadelphia and Erie Railroad Company had agreed to settle the McKean and Elk Company’s subscription by receiving $91,000 of six per cent, bonds of said company, 200 acres of land at or near the summit — to be selected by mutual agreement — .and 4800 shares of the reserved stock of the company, for which the McKean and Elk Company was to receive $162,500 of the stock of said railroad company at par. This proposition was accepted by the board of directors.” The master was of opinion that the company had power to make the subscription. As to the first mortgage:— * * * “At the time of the creation of this mortgage, the taxes upon the lands of the company for the years 1860-61, amounting to $11,600, were due and payable, and the lands were liable to be sold for the taxes. The company was without money, and stood indebted to stockholders for advancements to a considerable amount, to páy current expenses. It was indebted also for surveys and explorations of the lands, necessarily incurred in preparing them for sale, and as part of the efforts of the directors to induce purchases. The company was also under obligation to meet the subscription to the stock of the Sunbury and Erie Railroad Company. The efforts to raise money by sales of lands had proved abortive, as had also an attempt to obtain a loan by assessing the sum rateably upon the stockholders. In this condition of affairs, a stockholders’ meeting was held on the 16th of May 1862, to consider and take action upon the financial condition of the company, at which meeting it was unanimously ‘ resolved that the directors be and they are hereby authorized to borrow the sum of $200,000 for the purpose of paying off the present indebtedness of the company; for the payment of the subscription to the stock of the Philadelphia and Erie Railroad Company, and for such other purposes as the interests of the company may, in their judgment, require, * * * and the repayment of the money so borrowed shall be secured by mortgage of the real estate of the company.’ “ Thereupon the board of directors resolved to borrow the sum of $200,000 in the name of the company, and to execute and issue bonds for the same, * * * and a mortgage of all the lands of the company to Samuel Mason and Edward F. Gay, in trust, to secure the payment of the principal and interest of the said bonds. * * * The bonds and mortgage were thus created by the company, and the proceedings of the directors therein were grounded upon the action of the stockholders as the source of authority for .what they did. It is true, that the charter of the company is silent upon the subject of borrowing money. It neither expressly authorizes nor forbids it; and it may be assumed that such a transaction was not contemplated when the charter was obtained. * * * A corporation has incidental authority, when not specially restricted, to borrow money for any of its lawful purposes, and when by its charter it is authorized to purchase in fee or for any less estate all such lands, tenements and hereditaments as shall be necessary and convenient in the prosecution of its works, and the same to sell and dispose of at their pleasure, it has power to mortgage its real estate to secure the payment of a debt. The master is of the opinion, therefore, that the said first mortgage, dated the 1st day of February 1863, was not ultra vires and void, as charged in the bill. “ The second mortgage stands upon a footing different from .the first one, under thé Act of March 16th 1867, supra. * * * “ At a meeting of the stockholders, held the 18th day of September 1866, the directors were authorized by resolution to raise by loan the sum of $200,000, ‘ for the purpose of discharging the present and providing funds to meet future obligations of the company.’ * * * The bonds with 6 per cent, interest * * * tobe secured by mortgage of the estate of the company. And the directors were authorized to sell the bonds at such time, at such rates and on such terms as they should deem best for the interests of the company. At a meeting of the directors, on the 24th of September, it was resolved that, agreeably to the said authority given by the stockholders, the sum of $200,000 should be raised by a sale of 6 per cent, bonds of the company; * * * that the payment of the said bonds should be secured by a first mortgage on the lot of ground and buildings now erecting thereon for.a hotel, and the lots of ground and buildings to be erected thereon by the company for dwelling and boarding-houses, situate in the town of Kane; and also by a second mortgage on the other estate of the company, said mortgage to be made to trustees, and to contain provisions for the release of the mortgaged premises, in the case of sale, on the payment to the trustees of the proceeds, of not less than one-fourth of the purchase-money, or of the securities received therefor. It was also resolved to offer the bonds to the stockholders at the rate of seventy-five cents on the dollar. The foregoing authorizations are recited in the mortgage. * * * The master is of the opinion that the mortgage is within the terms of the supplement to the charter of the company, already referred to at large, and therefore valid.” As to the sale of land to the mining companies, “ There were certain portions of the lands of the McKean and Elk Company interlaced with lands belonging to other parties, some of which latter Gen. Thomas L. Kane had purchased and obtained rights to purchase, and which were known to contain limestone and outcroppings of coal. On the 11th day of May 1865, at a meeting of the directors of the McKean and Elk Company — called to consider the propriety of placing a portion of the lands of the company lying in Johnson’s Run Goal Basin in two coal companies about being formed, one to be called the Erie Mining Company, the other the New York and Erie Mining Company — Gen. Kane attended, and it was proposed to start these organizations with each about 800,000 acres of land, of which it was thought the McKean and Elk Company could furnish nearly one-half, the remainder to be furnished by the parties owning very valuable coal lands, adjoining lands of the McKean and Elk company. 1 The board believing the interests of our stockholders would be promoted by these companies being organized, it was, on motion, resolved that the proposition be accepted on the terms to be agreed upon by the Committee on Real Estate.’ ” “On the 7th of November 1865, it was resolved by the directors to make those sales to the two mining companies, and to receive in payment therefor, shares of the capital stock of those companies, and that one-half the stock thus received in payment should be transferred and paid over to Samuel Mason and Edward E. Gay, trustees of the first mortgage, upon their executing proper releases of the land sold. The conveyances were subsequently made and the stock received. The entire stock of the mining companies was distributed to the McKean and Elk Company, and to the private owners, in proportions corresponding with the lands contributed by them, respectively, to the companies. The lands conveyed to said mining companies were so interlaced with others, not belonging to the McKean and Elk Company, as to be incapable of being worked to advantage, and were without outlet — isolated and practically valueless, unless incorporated with the other adjoining lands. This transaction is not charged in the bill to have been fraudulent or intentionally wrong; and the defendants claim, through the answer of the McKean and. Elk Company, that the transaction was a fair one, advantageous to that company, and that it was approved by the body of the stockholders. * * * The mining companies appear to have been formed at about the time the Philadelphia and Erie Railroad was opened for business, and were no doubt looked to as a means of developing the mineral lands which were conveyed to them, and of yielding to the McKean and Elk Company a full share of the wealth which the lands were 'supposed to contain. “ It is apparent from the evidence that the transaction in question was explained to and approved by most of the stockholders of the McKean and Elk Company, though the master does not find any evidence that Mr. Watts was present, or that he gave in his assent. Whether Charles E. Anspach was then a stockholder, does not clearly appear, though he became one some time in the month of November 1865. Neither of the other plaintiffs became stockholders until some time afterwards. The plaintiffs have not proved a want of good faith on the part of the directors of the McKean and Elk Company in the transaction, nor that the directors were, in any event, to acquire personal gain beyond that which might come to them as stockholders, and in common with all the others. It is quite possible, however, that there may have been an error of judgment about it, which has been rendered most apparent by subsequent experience; but if that be so, it was an error in which the body of the stockholders participated. * * * The stock of the mining companies was believed to be valuable when received in payment for the lands sold to those companies, with prospects of considerable increase in value at no distant day. The plaintiffs substantially affirm thus much in their bill, when they give the directors’ estimate as to the stock. It was at that time certainly equivalent in value to the land conveyed by the company, or thereabouts, for the shares of stock had been apportioned according to the values of the lands which constituted the capital of the mining companies, and were issued to the respective vendors of the lands accordingly. If the stock thus taken has since depreciated in value, or even become worthless, without wilful neglect or wrongful misconduct of tbe directors of tbe McKean and Elk Company, yet those directors are not required by the charter of the company to become guarantors of the ultimate value of the securities which.they are authorized to receive in payment for lands sold; nor are they individually liable for honest mistakes of judgment in relation to present or future value of the securities taken in payment. “ The master is not aware of any ground on which he would be justified in reporting either that the sale was made without au-' thority of law, or that the directors, individually, should account and pay to the plaintiffs in respect of it. “ The lands of the mining companies were sold for taxes in June 1870, and bought in at the treasurer’s sale,- by Gen. Kane, under previous arrangement, which has since been put into the form of an agreement. By the terms of that agreement, Gen. Kane holds the lands which belonged to those companies before the treasurer’s sale, in trust for and to convey them to said companies respectively. So that if those lands were part of the most valuable mineral lands of the McKean and Elk Company, as averred in the bill, the stock of the mining companies held by the McKean and Elk Company must still possess value.” * * * As to the public sales of land : “ There are upwards of thirty persons interested as purchasers under the sale of October 1868, and those which followed it upon the same terms, who had paid for and taken conveyances of the land so purchased, according to the terms of sale, but who have not been made parties to the bill.” * * * “ The opening of the Philadelphia railroad, whilst it had enhanced the value of the lands, had not caused them to be immediately sale-able. The only sale made for cash after its opening was to Jackson Shultz in August 1867, for about 9000 acres, at $6 per acre, the minerals underlying being reserved; he established a large tannery, but would not have bought if the railroad had not been opened; it appeared that the other lands could not be sold in a reasonable time for prices satisfactory to the stockholders. On the 10th of February 1868, the directors submitted to them a report, advocating a conversion of the stock and bonds into the land itself by such stockholders as might desire to do so ; this was unanimously adopted. The land was immediately divided into suitable parcels, having regard to their character and value; and maps, &c., prepared, showing the location of each parcel and its position relatively to mineral, timber and other advantages; this preparation showed great labor and care. At a special meeting of the stockholders May 12th 1868, the plan was recommended by a committee of the directors, who made an elaborate report on the subject. The report was ordered to be printed and a copy sent to each stockholder ; the meeting adjourned for two weeks. The report contained a valuation of the land which after deducting an amount sufficient to pay the bonds, other liabilities and leaving a cash balance, showed that “ the value of each share of stock or its purchasing power ” would be $20.44. The purchase-money was to be payable in cash, or in the mortgage bonds of the company, and stock in the following proportions: 80 per cent, in stock, 7 per cent, in first mortgage bonds or cash, 8 per cent, in second mortgage bonds or cash, and 5 per cent, in cash ; any of the payments could he made in cash. At an adjourned meeting of the stockholders, May 29th 1868, the plan was approved and they resolved that the directors be authorized to sell the lands to the stockholders, or any other persons who would buy on the conditions of the plan before the next July 15th ; that the bondholders be requested to agree to release the lien of the mortgages on any lands sold on the terms mentioned in the resolution ; that if the bondholders would not agree to release or the whole of the lands should not be taken, the directors were authorized to sell the lands at public sale in Philadelphia on the third Tuesday of the next October, after notice by publications specified in the resolution, and in such manner in addition as should be calculated to give full information. All the shareholders did not agree to the plan and the sale was held at the Philadelphia exchange on the 20th of October 1868. The terms were cash, or 36 per cent, of the purchase might remain secured on the premises sold, payable in five annual instalments; 62 per cent, in the company’s stock at $6 per share, and 2 per cent, cash to be paid when the land was struck off; any of the payments might be made in cash. Purchases were made by stockholders only and amounted to 28,000 acres for $342,617, of which 2 per cent, was paid in cash and the remainder in the mortgage bonds of the company. On the 22d of October the directors authorized the president and treasurer to sell the remainder of the land, at the minimum price and on the terms proposed ; 18,000 acres were sold to the stockholders, the prices aggregating about $160,208. “ By this plan, while the purchasing-power of the stock was reduced from $20.44 to $6 per share, the minimum prices of the lands offered for sale were reduced in corresponding proportion. It was believed that, by reducing the minimum prices to correspond as near as practicable with the prices at which similar lands near to or adjoining those of the McKean and Elk Company had then recently been sold at private sales, persons who were not stockholders might be induced to purchase at this public sale. Tracts of land were sold at various prices, the average of which wras about $11.25 per acre. Purchasers paid the 2 per cent, in cash, surrendered their mortgage bonds and stock, and received conveyances from the company, discharged from the lien of the mortgages, and the mortgage debts and outstanding shares of stock were correspondingly reduced, before the bill in this case was filed. * * * If it were conceded that the terms of sale were thus unequal — and to that extent unfair — would the concession justify either decree for which the plaintiffs have prayed in that behalf ? It inight have furnished a ground for setting the sales aside, or an injunction against the consummation of them, remedies which must be sought before the price was paid and deed of conveyance delivered ; but it is difficult to see that the sales were for that reason void, and could be so decreed upon complaint made eighteen months afterwards. The bill was not filed until April 1870. “ As to a decree that the directors do individually pay to the ' plaintiffs their due proportion of the value of the lands sold, and that they pay the taxes assessed and due upon the land, that would really be but a decree for individual damages, which are not recoverable in equity. The directors appear to have acted in this affair, as in others already noticed, at the instance of and in conjunction with the stockholders, and within the chartered powers of the corporation. The master is unable, therefore, to recognise that the directors have incurred individual liability in respect of the sales complained of. * * * “ The master has been unable to find any proof that either of the plaintiffs offered or even desired to purchase any of the land at the October sales. Afterwards, in May 1869, Charles E. Anspach, signing for himself and others, agreed to take five of the remaining sections, on the terms of the sales in October, but he did not comply with his agreement. It would appear from all the evidence taken together, that whatever may be the intrinsic value of th'e lands, they brought a fair market value; and if any particular tract or tracts were sold at a sacrifice, the fact has not been established by proof. If the prices at which other lands in the same neighborhood were sold, or the price of that sold by the company to Jackson Shultz, or the market value of the stock of the company at that time — each share representing one acre at least — is taken as a criterion of value of the land sold in October, it will be found in either case that the prices then obtained may well be regarded as fair market prices.” * * * The master then went into a calculation to show that the results of the sales did not produce injury to the plaintiffs. “ There is still the objection contained in sect. 32 of the bill, that the directors became purchasers at the public sale in October 1868, ‘ upon such terms and conditions as they themselves had prescribed.’ The master is of the opinion, in view of tbe facts already stated, that the terms and conditions of the sale, and the sale itself, should rather be regarded as having been prescribed by the stockholders, and that the duties of the directors in relation to- it were ministerial only.” As to the buildings: “ It is claimed in the answer, that the buildings complained of were erected for the purpose of stimulating sales of the lands, and that the work was done with the full knowledge and approval of the stockholders, in annual and special meetings assembled; that the hotel and buildings were erected at the town of Kane, under a promise of the Pennsylvania Railroad Company (lessees of the Philadelphia and Erie) to make that a stopping-place for their trains, and the site of their machine and work-shops, if they were finished in accordance with a certain plan; before that was done, there were no accommodations for persons visiting the lands; that they were authorized to be built in 1865, but not finished until 1868, being several times stopped for want of funds; and the stockholders were from time to time notified of the progress of the hotel, and appealed to for contributions of funds to complete it; that during the presidency of Mr. Watts, the company became possessed of a saw-mill. A new one was erected with a view to furnishing the timber for the hotel and buildings, and to showing the company’s 'resources in timber, and thereby encouraging sales. * * * The real question, therefore, relates to the power of the McKean and Elk Company to erect the buildings. “ The averments of the answer appear to be supported by the evidence in relation to the buildings, and the motives for erecting them. The contest has been chiefly carried on concerning the hotel, which appears to have cost about $60,000. The cost of the other buildings does not appear in the evidence; and it is inferred, from what little has been said of the dwelling-houses, that they were erected in part for the use of employees of the company, and at no great expense. “ If it is true that the company was authorized by its charter to erect a hotel upon its land, then the master would not report that it was injudicious to erect the one in question; for if it has drawn to thé same immediate locality a railroad station, depot, work-shops, and a machine-shop, and formed the nucleus of the growing town of Kane — on the line of the Philadelphia and Erie Railroad — it can hardly be called an injudicious improvement to stimulate sales of the lands. And it has not been shown that stockholders have been injured by it, for the company still owns the hotel, and the evidence furnishes no reason to conclude that it is not worth all it cost. “ The directors acted in this matter under a belief that they were authorized by the charter, and still more directly by the supplement of March 16th 1867, to improve the property of the company in the manner they did. Such also appears to have been the opinion of the principal plaintiff in this case; for it is in proof that Mr. Watts, speaking of the said supplement to the charter, said to one or more of the directors: ‘ This, gentlemen, is just what you want. You can do anything under this you please.’ Neither of the other plaintiffs was a stockholder when the work was undertaken. * * *■ The master is of the opinion that the hotel was not such an improvement as the company was authorized to make. It has appeared to him, that both Mr. Watts and the directors were mistaken — but fairly and honestly mistaken — in their construction of the power conferred by the supplement which authorized the borrowing of money 4 for the purpose of improving and developing the lands of the said company, and for all other purposes of said corporationand that the phrase, 4 for all other purposes of said corporation,’ is referable to such purposes as were justifiable under the charter as it stood before the supplement was passed. * * * 44 The master has been unable to find evidence of objection on the part of any stockholder other than Mr. Watts, prior to the institution of this suit, to either of the matters complained of in the bill. It is considered by the master that neither of the plaintiffs, except Mr. Watts, has shown that he has a status to contest the subscription to the Sunbury and Erie Railroad, nor the first issue of bonds and the mortgage made to secure them; nor the erection of the hotel. They did not become stockholders until after the subscription had been made and settled for, and the bonds had been issued, and the hotel had been authorized and was in course of erection. The same may be said in regard to the sales of land to the Erie and to the New York and Erie Mining Companies, which appear to have been authorized at a directors’ meeting held on the 11th day of May, and the terms of sale concluded on the 5th day of November 1865. Hence, the master considers that Mr. Watts is the only one of the plaintiffs who has shown a status to inquire into or contest either of those transactions. It may be important, then, as bearing upon the questions of laches and limitations — urged for the defendants — to know what was Mr. Watts’s course of dealing with the several matters complained of prior to the commencement of this suit. The following facts are deduced from the evidence, as bearing upon this branch of the case.” The master then recapitulates the facts of Mr. Watts’s dissatisfaction with the railroad subscription, with the mode proposed to raise money to pay, occurring ten years before filing the bill; that first mortgage bonds were issued seven years before filing the bill, Mr. Watts then asserting that the measure was not within the corporate powers of the company; that he knew that the other stockholders and directors differed from him and that they were managing the corporation in accordance with their own views ; and that he knew of various other matters of which he complains in the bill, at times considerably anterior to filing the bill; that whilst protesting against many of those things of which he complained, he took no other steps to arrest them ; that he saw and had knowledge of the improvements being made, and of many of the expenditures complained of, without making objections within a reasonable time, in some eases not until the institution of these proceedings. “ The master is of opinion that it was the duty of Mr. Watts— if he meant to contest the subscription to the Sunbury and Erie Railroad, or either of the issues of bonds, or the mortgage made to secure them, or either of the sales of lands, or the erection of the hotel or of the saw-mill — to make his application to a court of equity without unnecessary delay. And further, that the delay which preceded the commencement of this suit — regarded in connection with the large sums of money invested by directors and stockholders of the company, as well as by third persons in the intervening time, and upon the faith that the proceedings of the company were legal — has been sufficient to warrant a denial of relief to the plaintiffs in a court of equity. The plaintiffs’ duty to proceed at an earlier day was, in the view of the master, no less to the directors and other stockholders of the company — who contemplated investing their own money in large sums, incurring heavy expenses, and assuming new relations to the property, in the belief that they were acting by due authority and for the general good— than to third persons who were to enter into contracts and invest their money also, upon the faith of the legality of the company’s acts. The various periods of delay between ten years as the longest, and eighteen months as the shortest, were surely long enough, under the circumstances of this case, to raise a counter equity against the plaintiffs. And it will be remembered that the rule, that a party guilty of unreasonable delay in the enforcement of his rights, thereby forfeits his claim to equitable relief, is more especially applicable to cases in which he lies by until other parties have incurred expenses, invested money, or entered into relations or engagements of a responsible or burdensome character.” The master reported that in his opinion the plaintiffs’ bill should be dismissed; he reported also the form of a decree in accordance with his opinion. The plaintiffs filed exceptions to the report. The court at Nisi Prius (Williams, J.) overruled the exceptions, and decreed that the bill be dismissed. The plaintiffs appealed to the court in banc, and in a number of specifications assigned the decree for error.
78 Pa. 396Hopkinson v. Leeds (1875)
1. A defendant arrested under a ca. sa. was permitted by the sheriff’s deputies, for a compensation, upon presenting himself at the sheriff’s office every morning, to go at large from day to day until he was discharged upon giving bond to take the benefit of the insolvent laws : Meld, that this was a permissive escape, for which the sheriff was liable. 2. It is the duty of a sheriff to keep a defendant under a ca. sa. in safe and strict custody ; if the sheriff allows him to go at large for the shortest time, either before or after the return-day of the writ, he is liable for an escape. 3. It is not a defence that the prisoner voluntarily returned and surrendered himself to the sheriff, or that he was subsequently discharged under the insolvent laws. 4. The attorney of the plaintiff in a ca. sa. has authority to consent to defendant’s discharge from arrest; if he does, the sheriff is not responsible for an escape. To discharge the sheriff, the evidence of the consent should be clear, direct and positive. 5. A prisoner under a ca. sa. having been permitted by the sheriff to go at large, a subsequent assent of the plaintiff’s attorney to his remaining at large would not relieve the sheriff. 6. Cross-examination must be confined to matters as to which the witness has been examined in' chief, or to such questions as may tend to show the bias and interest of the witness.
78 Pa. 401McCarter's Appeal (1872)
Appeal from the Register’s Court of Philadelphia: Of January Term 1872, No. 94. This was an appeal from the Register’s Court, dismissing the appeal to that court from the order of the register, awarding a precept to the Common Pleas to try the validity of a paper writing, purporting to be the will of John McCarter, deceased. McCarter, residing in Bucks county, on the 27th of June 1865, executed the paper in question. He afterwards moved to Philadelphia where he died in May 1871, leaving nine children, two of whom were Catharine and Emily. Three of them, other than these t-wo daughters, filed a caveat against the probate of the will. The reasons assigned in the caveat are stated in C. J. Thompson’s opinion. The formal execution of the paper was proved before the register, and testimony taken on the questions raised by the caveat. On the oral request of the caveators for an issue to the Common Pleas, to try those questions, he issued a precept for that purpose and Catharine and Emily McCarter appealed to the Register’s Court. In the Register’s Court the appellants objected that the request for an issue was not in writing; that court, Peirce, J., holding that the request for an issue should regularly be in writing, dismissed the appeal, and directed the request in writing to be filed with the register mine pro tune. Catharine and Emily McCarter appealed to the Supreme Court and assigned this decree for error.
78 Pa. 403Pownall v. Bair (1875)
Error to tbe Court of Common Pleas of Lancaster county: Of May Term 1875, No. 7. This case commenced before a justice of the peace, from whose judgment an'appeal was entered in the Court of Common Pleas, on the 10th of November 1870. The plaintiff was Abraham Bair and the defendant Greorge Pownall; the declaration was in the common counts ; the plea was non-assumpsit. On the trial, October 20th 1873, before Hayes, J., the circumstances of the case appeared to be as follows :— Brinton Walter was the general agent in Lancaster county for the sale of the mower and reaper of Dodge, Stevens & Co., of Auburn, New York; the defendant was employed by Walter as his sub-agent, and the defendant employed the plaintiff to assist him in selling machines, agreeing to give him $12.50 on every machine sold. The plaintiff sold four machines ; one of them was sold and delivered to a man named Wertz, on his promise to give a note for it next day, with good security ; the note was not given, and. Wertz proved insolvent; the machine was returned to Walter some two years afterwards at a loss of $105. The defendant alleged that the plaintiff when he sold the machine knew of Wertz’s insolvency, and the only question was what amount of damages the defendant could interpose to the plaintiff’s claim. After the plaintiff had proved his case, as above stated, defendant testified, that be ascertained that Wertz wished to buy a machine ; that he told plaintiff that Wertz was not worth anything, and directed him not to sell to Wertz; defendant was responsible to Walter for $105, which was the loss by the sale of the machine to Wertz. There was other evidence as to Wertz’s insolvency, and plaintiff’s knowledge of it when he sold the machine; also, that Pownall was held accountable by Walter for the loss. The court, after stating the facts, charged : * * * “ But if tlae jury believe from the evidence that he knew Henry Wertz’s circumstances when he delivered the machine to him ; that he let him take it away on his mere promise that he would give his promissory note with his father as surety ; that he was previously forbidden to sell to Wertz by his employer, the defendant, then he was not only guilty of culpable negligence in parting with the property intrusted to his agency and care, but acted in the matter beyond and without authority, and, of course, would not be entitled to anything from the defendant for such sale. The defendant contends that Bair should account for the loss sustained by reason of this sale, to wit: the $105. But, in the first place, there is no plea of set-off in the case; again, the defendant has lost nothing; he says he is responsible to Brinton Walter ; but he has not been called upon to pay anything on that account, nor has anything been demanded of him. He has therefore no claim upon the plaintiff which he could establish in a suit against him. Besides, Brinton Walter, as has already been stated, was not the owner of the machine, but the general agent to sell. On the whole, there seems to be no bar to the recovery of the stipulated amount claimed by the plaintiff of his employer, the defendant, on the sale of the three machines to unexceptionable purchasers, and if the jury come to that conclusion from all the evidence before them, they will find a verdict for the plaintiff to that extent, $12.50 for each machine, with interest.” The verdict was for the plaintiff for $45.25. The defendant took a writ of error and assigned the charge for error.
78 Pa. 407Lancaster County National Bank v. Moore (1875)
1. Persons not sui juris or not having capacity to contract debts are liable for torts and may bind themselves for necessaries. 2. Moore, desiring to borrow money from Stauffer, gave his note to him; it was discounted bona fide at a bank for Stauffer, and he gave Moore his check for the amount. An inquest commenced afterwards found Moore a. lunatic for a time anterior to the discount of the note; the finding was traversed. The bank had no notice of the finding or of Moore’s lunacy. Held, in a suit by the bank against Moore, on the note, that under the circumstances the insanity of Moore was not a defence, the contract being executed and without fraud. 3. The inquisition was but primá facie evidence of insanity. 4. Reports in the neighborhood that Moore was insane, were not evidence in a suit against him by the bank on the note.
78 Pa. 415Evans v. Reed (1875)
Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 44. This action was originally account render, brought to November Term 1869 of the court below, by Jacob Evans against George K. Reed and.Julius Levy, “ late partner with the plaintiffs.” On the 17th of October 1871, the court allowed the plaintiff to strike out the name of Levy as one of the defendants. The case was tried before Hayes, J., against Reed alone, August 28th 1872. On this trial Evans, the plaintiff, and Reed, the defendant, were both examined as witnesses. A verdict was rendered for the plaintiff; the court being of the opinion that the action should have been in assumpsit, set aside the verdict and directed a new trial. Afterwards the plaintiff died, and his administratrix, Caroline Evans, was substituted as plaintiff, and the form of action changed to assumpsit. On the trial September 3d 1874, the plaintiff offered to read the notes of testimony taken by Judge Hayes on the former trial of this case ; this was objected to by the defendant, because the action was originally account render against Levy and Reed; Levy’s name was stricken off on motion of plaintiff; a verdict on the issue between Evans and Reed; a new trial, plaintiff’s death suggested, his administratrix substituted, and the form of action changed. The offer was rejected and a bill of exceptions sealed for the plaintiff. No other evidence was offered by the plaintiff, and the court directed that a verdict should be rendered for the defendant; a verdict was so rendered. The plaintiff took a writ of error and assigned for error the rejection of the evidence offered by her. "
78 Pa. 418Nissley v. Heisey's (1875)
Writs of error to the Court of Common of Pleas of Lancaster county: Of May Term 1875, Nos. 47, 49. This was an action to the April Term 1873, of the court below, by David M. Eyer, executor, &c., of Daniel K. Heisey, deceased, against Joseph W. Nissley and Martin Nissley. On the 12th of September 1874 a case stated was filed, showing the following facts.
78 Pa. 423Collins v. Smith (1875)
1. Collins by agreement under seal with Murphy sold him a boat undei’going repair, for part cash and the remainder in payments of $20 per month, Collins reserving the “ right and possession of the boat till the whole was paid, Murphy having the right to sell the boat upon paying Collins what might be due on it.” Murphy paid part of the purehase-money and after-wards Smith paid part of the balance, and then endorsed on the agreement, that he agreed to enter into a partnership with Murphy, “ on the within agreement, and account to Collins for the full amount of the agreement.” In an action of assumpsit in the common counts under the general issue by Collins against Smith to recover the balance due: Held, that the agreement and endorsement were evidence. 2. Smith, by the endorsement, made the original contract with Collins his own. 3 The non-joinder of a co-contractor can be taken advantage of only by plea in abatement. 4. If the declaration is on an individual contract, a joint contract is not a variance. 5. Bellas v. Ragely, 7 Harris 275; Chorpenning v. Royce, 8 P. P. Smith 474, approved.
78 Pa. 426Numbers v. Shelly (1875)
84, to May Term 1875. This was an attachment-execution issued September 2d 1871, by Joseph W. Numbers against Abraham F. Shelly and T. N. Brubaker, in which Benjamin McOutchen and C. W. Brubaker, assignees, &c., of Shelly, were garnishees. On the 22d of September 1871 interrogatories were filed.
78 Pa. 429Hess v. Beates (1875)
1. Under the Domestic Attachment Act of June 13th 1836, sect. 20, the wife of the debtor may retain $300 worth of his property. 2. Her right is not affected by her husband's waiver of the exemption; the law withdrawing the property from the grasp of his creditors, and allowing it to his wife and family, it ceased to be his property for the purposes of execution. 3. Under a domestic attachment, $300 worth of goods were set apart to the wife; an execution was issued against the husband on a judgment waiving the exemption, and the same goods levied on and sold. In an inter-pleader proceeding, it was Held, that the wife was entitled to all the proceeds, and the execution creditor was directed to pay all the costs, including the sheriff’s and the costs in error. 4. After the goods were sold, the money was ruled into court, and an inter-pleader rule on the wife was obtained by the sheriff; she filed an affidavit claiming the property, and an issue was directed: Held, that the proceedings were informal, but the wife having appeared and claimed the property, the parties were within the provisions of the Interpleader Act, and the money in court was substituted for the goods. 5. Under the discretion given by the Interpleader Act, the court could do justice between the parties, including the disposition of the whole costs.
78 Pa. 432Reck's Appeal (1875)
63. In October 1874, John Blocher, administrator, &c., of Elizabeth Blocher, deceased, petitioned the Orphans’ Court of Adams county, setting forth that Joseph Blocher, late of that county, deceased, by his will, proved June 22d 1866j directed that after his debts, &c., should have been paid, all the rest of his real estate should be sold: he then directed as follows:— “ It is my will that my beloved wife, should she be living at the time of my decease, receive the interest…
78 Pa. 436Waugh's Appeal (1875)
71. The appeal in this case was by John B. Waugh, William P. Waugh, Flora A. Dufphey, late Waugh, and Mary E. Waugh, from the decree of the Orphans’ Court in relation to the assessment of the… Held: that the land was subject to the collateral inheritance tax ; that the assessment was not too high, and dismissed the appeal. The appellants below appealed to the Supreme Court, and assigned this decree of the Orphans’ Court for error.
78 Pa. 443Sower v. Weaver (1875)
78. This was an action of ejectment, brought April 2d 1873, by George Sower against Henry Weaver, for a tract of land in Washington township, containing about 64 acres. The defendant is the husband of Elizabeth, late Sower, a daughter of the plaintiff. The cause was tried January 26th 1875, before Fisher, P. J. The plaintiff gave in evidence a patent from the Penns to George McMillan, dated December 6th 1871, for 193 acres in Washington township, York county.
78 Pa. 448Charles v. Huber (1875)
1. Challes made a will devising land to two sons at a valuation; it was witnessed by two witnesses. The will, when presented for probate, showed an erasure of the valuations and other valuations interlined. One of the witnesses having died, his writing was proved and the will admitted to probate by the register. In an issue on appeal, the will was admitted as primfi, facie under the probate. The surviving witness testified that the alteration was made after the execution by direction of the testator, afterwards re-acknowledged before the same two witnesses; the handwriting of the deceased witness was proved on the issue. Held, that the paper as offered was not proved as a will. 2. The evidence of the surviving witness contradicted the prima facies of the probate, and the altered will stood on the proof of but one witness, and was therefore unproved.
78 Pa. 452Myers's Appeal (1875)
99, to May Term 1875. In the distribution of the estate of William Nell and wife under deed of assignment for the benefit of creditors to Michael B. Blauser, dated April 14th 1878.
78 Pa. 454East Brandywine & Waynesburg Railroad v. Ranck (1875)
108, to May Term 1875. This case commenced in a proceeding by viewers to assess damages by reason of the construction of the East Brandywine and Waynesburg Railroad through the land of Jacob Ranck. The viewers having reported, there was an appeal to the Court of Common Pleas, where an issue was formed January 29th 1878, as in an action of trespass q. c. in which Jacob Ranck was plaintiff, and the East Brandywine and Waynesburg Railroad Company were defendants.
78 Pa. 457Penn Township v. Perry County (1875)
25. _ _ To tbe August Term 1874, of the court below, an amicable action was entered between the township of Penn, plaintiff, and the county of Perry, defendants.
78 Pa. 460Stevick v. Commonwealth (1875)
Error to the Court of Oyer and Terminer of Cumberland county: Of May Term 1875, No. 43. This was an indictment found August 24th 1874, against Martin Stevick. It contained three counts :— 1. Eor committing a rape on Clara E. Gephart. ■ 2. Assault and battery on Clara E. Gephart with intent to commit a rape. 3. Fornication with Clara E. Gephart. On the trial August 26th 1874, before Junkin, P. J., the defendant offered himself as a witness, under the Act of April 3d 1872, section 1 (Pamph. L. 34, 1 Br. Purd. 625 pi. 21), which in proceedings against persons charged with offences “ not above the grade of misdemeanor,” allows the defendant upon his own request to be a witness. The Commonwealth objected to him as incompetent because the indictment contained a count for felony. On that ground the court sustained the objection, excluded the witness and sealed a bill of exceptions. From the charge of the court below enough of the case is presented for the understanding of the assignment of error and the application of the principles of the opinion of the Supreme Court. The court charged:— “ The prisoner, Martin Stevick, is charged by this indictment with rape, defined in law to be the offence of having carnal knowledge of a woman against her will. It is a charge easily made and difficult to defend against; and so sensible is the law of this that evidence is received on behalf of the defence, uniformly disallowed in all other cases. For instance it is permitted the defendant to show, where he can, that the character of the person ravished is bad for chastity — and in order to guard against false charges in cases of this kind — it has been deemed an important test of the sincerity of the woman, that while the commission of the offence was in progress she cried aloud, struggled and complained on the first opportunity, and prosecuted the offender without delay. Where the proof shows that the woman neither struggled, nor cried out, when cries might even by possibility be heard, and delayed invoking the arm of the law for the punishment of the offender, suspicion is justly aroused, that the charge is false and feigned. * * * “ But when the female has done all these things, the law gives great consideration to her complaint. [We could expect a grown woman whose cries could by possibility be heard, to cry out, while a girl of tender years could be excused from so doing.] “ This little girl Clara swears, that on the 23d of July last, the prisoner overtook her on the road from Newburg (where she had been on business) to her aunt’s, with whom she lived, passed her near a grave-yard, hitched his horse, came a little way back to the stone bridge to meet her; did meet her there and offered her fifty cents to permit him to take liberties with her; she declined the offer, and he then passed on in advance of her a short distance, and when she came up took hold of her, pulled her into a fence-corner by the wayside, and threatened to shoot her if she cried out, then threw her down and had connection with her; penetrated her person, but had not completed sexual intercourse before Mr. Ramp came or was seen coming in the direction they were, whom the defendant perceiving desisted and ran off and hid in the neighborhood of the grave-yard. [She gives details with minuteness, and if believed, makes out the full charge of rape against the prisoner.] She is supported by Mr. Ramp; the gentleman whose, appearance interrupted the movements of the prisoner; in some of the details, such as his coming into view when he did ; her hurrying up after him, and overtaking, and keeping up with him for one and one-half miles, although he was on horseback, and telling him that there was a man back at the grave-yard that she was afraid of. And Mr. Ramp says that he told her that he had seen the bushes. shake, but he had seen no one. Thus she learned that they were not seen by Ramp, and that he had nothing to disclose, yet nevertheless, she tells her aunt about it next morning, and seemed troubled. Now these circumstances are important in determining whether, as is alleged by defendant, she consented to sexual inter-' course. If she had done so she was deeply interested in concealing it, yet she tells her aunt about it next morning, and at that time, as she had ascertained from Ramp, no one knew it but herself and the young man. Then it is pertinent to inquire why should she reveal the occurrence to her aunt ? and if she consented why was she in trouble ? and if she consented why her hurry to keep up with Ramp. Then it appears that, she had no acquaintance with this defendant; they were strangers to each other; never spoke with each other before; lived four miles apart, and he followed her from his home in Newburg on her way to her home, and is it likely that parties who had no previous knowledge or acquaintance should thus consent to sexual intercourse on the highway ? All these things are to be considered by you. “But whether the crime of rape, in its legal signification is established, depends upon the following facts being established to your satisfaction, and beyond a reasonable doubt, namely: did the prisoner penetrate the person of this girl Clara ? because unless you are satisfied that such was the case, the offence of rape is not made out, but would amount to an assault and battery, with intent to commit a rape — a very different offence — but is also charged in this indictment under the second count. To convict of rape, it is necessary that the person of the girl should have been penetrated; but any entry, however slight, is sufficient, and there need be no emission of seed. This girl, being over thirteen years of age (she is going on fourteen), was in law capable of consenting to sexual intercourse. Where the consent of the female is obtained, though by fraud and deception, there is no rape; but connection with a woman when insensible or unconscious, from whatever cause, is rape. Absence of assent will constitute rape, except where the female is under ten years’ of age, because children of such tender years are incapable of consenting to connection. But where the consent is obtained by threats of inflicting great bodily injury, that is not the kind of assent which relieves the act from the grade of rape. But even assent after the act is committed is no defence, and if consent is given, but afterwards withdrawn before the act, and the party instead of desisting goes on to consummation, that would be forcible and against consent, and the offence of rape is complete. When there is nothing to deter the woman from resisting, and she is conscious, and able to show dissent and does not, it will be taken as her assent. A doubtful or mixed case, that is, where the evidence renders it uncertain whether the female consented or not, the offence of the rape is not established. “ Then did this girl consent ? If she did not, and the prisoner forced her, and prevented her struggles and cries by threatening violence to her person — great bodily harm — and thus he succeeded in penetrating her person but a little, he is guilty of rape, and you should convict. On the question of the consent of Clara, you should consider the probabilities of one so young as thirteen years only being exposed to the promptings of desire, passion and lust. Ordinarily concupiscence does not develop in one so youthful, but sometimes it does, and cases are not infrequent establishing this fact. Yet nature ordinarily gives warning of the age of puberty. * * * Do you discover any such indications about this slender and child-like form ? We see none. “ Then looking carefully into all the facts and attending circumstances, do your minds from these facts and circumstances, naturally, without wishing or seeking, reach the conclusion, that the prisoner did assault this little girl, and commit the crime of rape upon her person ; or failing in the accomplishment of his ultimate purpose, did his efforts only amount to an assault and battery, with the intent to commit the crime of rape ? If you are satisfied beyond a reasonable doubt, that he assaulted and consummated his purpose, then find him guilty on the first count of the indictment. If he attempted and failed, find him not guilty of rape but guilty of assault and battery with the intent to commit a rape. If, however, there is a reasonable doubt as to whether the prisoner assaulted this girl for the purpose aforesaid — but you are on the other hand satisfied that this sexual intercourse was by consent of the girl Clara — you should acquit on the first and second counts, and convict on the third count, which is for simple fornication.” The jury found the defendant guilty on the first count of the indictment. He was sentenced to one year’s imprisonment in the Eastern Penitentiary. He removed the record to the Supreme Court by writ of error, and assigned twelve errors:— 1. The joinder of a count for rape with a count for fornication. 2. Rejecting the defendant as a witness. 4, 6. The parts of the charge in brackets. 5, 7, 8, 9, 10. Statements by the court as to tne evidence in other parts of the charge. ■ 11. The court should have charged that the crime of rape was not proved, and directed an acquittal. 12. The sentence was unauthorized — is illegal and void.
78 Pa. 465Garrett v. Dillsburg & Mechanicsburg Railroad (1875)
Error to the Court of Common Pleas of Cumberland county : Of May Term 1874, No. 62. (Re-argument.) This was an action of assumpsit, brought to the April Term 1872, of the court below, by the Dillsburg and Mechanicsburg Railroad Company against Andrew Garrett. The action was to recover the amount of subscription by the defendant to the capital stock of the plaintiffs. The case of Bucher against the same company, 26 P. F. Smith 306, was a suit on a subscription to the same stock, under somewhat different circumstances. The plaintiffs were incorporated under the Railroad Law of April 4th 1868, Pamph. L. 62, 2 Br. Purd. 1211. The first section authorized any number of citizens, not less than nine, to form a railroad company, and for that purpose, to sign articles of association, stating the name of the company, &c., the amount of capital, which should not be less than $10,000 per mile, the names of officials, &c. The articles of association, after being acknowledged, &c., as provided by the act, to be filed in the office of the secretary of the Commonwealth and recorded, &c., shall be the charter of the company. The articles of association not to be filed with the secretary of the Commonwealth until $9000 per mile be subscribed, and ten per cent, paid in cash to the directors ; if the whole stock be not subscribed when the articles are filed, &c., the directors may keep the books open until all be subscribed, &c., and every subscriber shall pay ten per cent, of his subscription, in money, in good faith, when he subscribes, “and no subscription shall be received or taken without such payment.” The declaration in the first count was that the defendant associated himself with others by written articles, for the purpose of constructing, &c., a railroad, under the name of the Dillsburg and Mechanicsburg Railroad Company, the capital stock to be $350,000, in shares of $50 each; the defendant subscribed for five shares, for which he agreed to pay $250, &c., setting out the articles of association, which prescribed that the name of the association should be the Dillsburg and Mechanicsburg Railroad Company; that the length of the road, as then contemplated, was about seven miles from Mechanicsburg, in Cumberland county, to Dillsburg, in York county; the capital to be $350,000, in shares of $50 each; the names of officers, &c., and the subscription of the defendant to the articles for five shares of the stock, September 2d 1871. The declaration contained the common counts also. The plea was, “Non assumpsit.” The case was tried January 22d 1874, before Junkin, P. J. Plaintiff gave in evidence the articles of association, recorded in the office of the secretary of the Commonwealth, November 1st 1871, with the subscription of defendant appended for five shares ; minutes of the association, directing the calls for payment of the whole of the subscription in various instalments, the last being payable May 1st 1871. The plaintiff rested. The defendant then made the following offers: 1. That the company did not proceed to build a road from Mechanicsburg, but from Silver Spring township, a mile distant; that defendant’s subscription was made at a public meeting, at which time, the speakers there stated, that if he put down his name it would not bind him, unless he paid ten per cent, of the subscription money. The offer was objected to, because a change of terminus would be an infringement of corporate duty, to be taken advantage of exclusively by the Commonwealth. 2 and 3 (substantially the same). That when the articles were offered at a public meeting of the people of Mechanicsburg before the organization Judge Watts, the president of the association, stated that it was contemplated to build the road from Mechanicsburg to Dillsburg; citizens were asked to subscribe, and were told that the meeting was preliminary merely, and the subscribers would not be bound by their subscriptions until they were called on and actually paid ten per cent, of their subscriptions; that they could withdraw their subscriptions before they had paid the ten per cent.; that the meeting was called merely to see what could be done; and that defendant subscribed on these representations, believing them to be true. 4. That when the charter was about to be applied for, the association not having the requisite number of shares to secure it, Judge Watts, the president, subscribed for 193 shares, anticipating that the Cumberland Valley Railroad Company, who were interested in the project, would take it, and that as president of the company, he directed the treasurer to pay the full amount of the subscription to enable them to secure the charter; that this was done and the charter was thus secured; this being the mode in which the $9000 per mile was paid. All the offers were objected to as irrelevant, were rejected and bills of exception sealed. The defendant’s point and answer were:— Point: If Andrew Garrett, the defendant, at the time he subscribed, did not know what he was subscribing; and was told by the parties who were subscribing at the same time, that his subscription was not binding until the ten per cent, was paid by him; his subscription is not binding and the plaintiff cannot recover. Answer: “ These instructions are refused. Defendant was bound to know what he was subscribing. All that was said about the defendant’s subscription not being binding, is of no avail.” The court charged: “ The defendant is liable under this evidence and you will find for the plaintiff.” The verdict was for the plaintiff for $559.94. The defendant took a writ of error and assigned for error:— The rulings of the court on the questions of evidence, the answer to his point and the charge of the court.
78 Pa. 469Shughart v. Moore (1875)
1. When a promise is made by one in consideration of the-execution of a writing by another, the promise may be. shown by parol evidence. 2. Powelton Coal Co. v. McShain, 25 P. P. Smith 238 ; Weaver v. Wood, 9 Barr 220, followed.
78 Pa. 473Chestnut v. Harbaugh (1875)
1. An executed contract is not void although made on Sunday. 2. The Sunday law of 1705 does not declare a contract made bn that day void, but the law will not lend its aid to enforce an executory contract so made. 3. Lyon sold to Chestnut mules belonging to him and in the'possession of Chestnut, who gave his note dated on Sunday, which he paid. Held, that the contract was not, for that reason void, if the mules had been delivered to Chestnut in pursuance of it. 4. The possession of Chestnut was primá facie evidence of his title.
78 Pa. 477Commonwealth ex rel. Roddy's Administrator v. Kreager (1875)
Error to the Court of Common Pleas of Somerset county: Of May Term 1875, No. 109. This was a scire facias sur recognisance, in the Orphans’ Court of Somerset county, issued November 28th 1878, by the Commonwealth, to the use of the administrator of Anne Roddy, deceased, against Frederick Kreager, “ agent of Rachel Kreager” and others his sureties, with notice to the terre tenants. Sarah McNeal died previously to March 3d 1871, intestate, leaving as her heirs at law three sons and five daughters; and seised of a tract of land containing about 300 acres. One of the daughters was Anne Blubaugh, a widow, another Rachel Kreager, wife of H. C. Kreager; one of the sons was James McNeal. On the 3d of March 1871, on the petition of James McNeal, the Orphans’ Court awarded an inquest for the partition of the real estate of the decedent. The inquest finding that the real estate could not be divided, valued it; the inquisition was confirmed in May 1871 and on the 13th of September 1871, the land was adjudged to Rachel Kreager; on the same day, “ Rachel Kreager by her agent in fact Frederick Kreager” and sureties entered into recognisance to the Commonwealth in the sum $8034.32, conditioned for the payment of $1147.75 to each of the heirs of Sarah McNeal, deceased. Anne Blubaugh married William Roddy on the 23d of November 1871 and died March 2d 1872. On the trial, April 8th 1875, before Hall, P. J., the plaintiff gave the above facts in evidence and rested. Under objéction and exception the defendants gave evidence as •follows:— Elizabeth King testified that in 1871, Mrs. Roddy told her that she wanted Kreager to take the farm for the benefit of the daughters ; she often said she had agreed that Frederick Kreager should take it, and wanted him to take it for the heirs ; Mr. Roddy was not present at these conversations. Elias Griffith testified that Mr. Roddy said Mr. Kreager was going to take the farm and she was agreed to it; he was to take it for the heirs and hold it till they saw fit to sell it. She spoke to the same effect frequently; she afterwards said he had taken it; no one was present at the conversation. A. H. Coffroth, Esq., testified to about the same effect, and also that Mrs. Roddy said she would have an agreement drawn under his directions and Kreager would take the property. He could not say that he drew the agreement. The plaintiff’s second point which was negatived was:— “ As between vendor and vendee, parol evidence cannot establish a trust in the vendee for the use of the vendor in the face of a record giving the vendee an absolute title.” The court charged :— • * * * “ The record offered in evidence does not give Mrs. Roddy any title to the land ; on the contrary, it divests her title and gives her a right to a sum of money secured by a recognisance. The defence set up to the payment of this recognisance is by the party to whom the land was decreed. He alleges a parol agreement between certain of the heirs, of whom Mrs. Roddy was one, and himself, by which he was to take the land in right of Rachel Kreager and hold it in trust for the five sisters, of whom Mrs. Roddy was one. If such a bargain was entered into by Mrs. Roddy, and the land was taken by Kreager at the appraisement in pursuance of it, and if Mrs. Roddy ratified and approved it afterwards, such contract may be established by parol evidence, and Mrs. Roddy can be held to her bargain, although it was not reduced to writing. But the burden of proving this agreement is on the defendants, and the evidence must be clear and satisfactory.” The verdict was for the defendants. The plaintiff took a writ of error. The errors assigned were the admission of the evidence objected to ; the refusal of the plaintiff’s point and the charge.
78 Pa. 479Saxton v. Mitchell (1875)
10. This was an amicable action and case stated, in which Thompson Mitchell, presiding elder of the Methodist Episcopal Church for the Carlisle District of Pennsylvania, was plaintiff, and John 0. Saxton and Mary Ellen, his wife, in her right, and James M. Ralston and Margaret J., his wife, in her right, representing themselves and the other heirs at law and legatees of John Dunlap, late of Harrisburg, deceased, were defendants.
78 Pa. 484Snively's Executors v. Stover & Wife (1875)
61. This was an amicable action of debt, instituted April 15th 1874, by Andrew S. Stover, and Ann Elizabeth, his wife, in her right, against Lemuel Snively, Jacob S. Snively and J. P. Bishop, executors, &c., of Samuel Snively, deceased.
78 Pa. 490Rauch v. Commonwealth (1875)
Writs of error to the Court of Quarter Sessions of Blair county: Of May Term 1875, No. 18, 19 and 86. The three writs were argued together. On the 28th of July 1874, No. 25 to July Sessions of the court below, an indictment was found against Frederick W. Rauch and Charles Rauch “ for selling spirituous, vinous and malt liquors,” &c., to Al. Mulligan and others.
78 Pa. 495Rough v. Commonwealth (1875)
,At the January Term 1875 of the Supreme Court, sitting in Philadelphia, an application for an allocatur was made by Charles Bough, who had been convicted at the January Term of the Court of Quarter Sessions of Blair county for selling liquor without license. The application was heard before the court in banc. The facts and the grounds of the application, are fully stated in the opinion of Chief Justice Ag-new, delivered March 9th 1875.
78 Pa. 497McKinney v. Snyder (1875)
1. The object of a point is to obtain a clear and reliable instruction to aid the jury in the formation of an intelligent verdict. 2. The court should decline to receive a point when it is so obscurely worded as to confuse the jury. 3. An acknowledgment of a debt to take it out of the Statute of Limitations must be made to the creditor or his agent. 4. An acknowledgment of a debt made to the agent of the creditor without the knowledge of the debtor that he was such agent has no more force than if made to a stranger. 5. A promise to pay to take a debt out of the statute ought to be made under circumstances which indicate an actual intention to pay. 6. The Act of 1869 allowing parties to testify should prevent the relaxing of any of the rules of law under the Statute of Limitations and of Frauds.
78 Pa. 501Coble v. Nonemaker (1875)
1. As a general rule an attaching creditor can acquire no claim to property in the hands of the garnishee other than the debtor could assert the garnishee. 2. Eves, by Nonemaker as his agent, gave to Coble a chattel mortgage of store goods to secure a debt to Coble not then due, being part of the purchase-money of the goods ; Eves put Nonemaker into possession of the store ■ to carry it on as his agent before the debt became due ; Nonemaker knowing it was still unpaid, bought the store from Eves for a valuable consideration without intent to defraud creditors, and Eves moved to another state. In foreign attachment against Eves, Coble could recover the goods from None-maker in whose hands they had been attached. 3. Although Coble had not taken possession of the goods under the mortgage and it was void against innocent purchasers, it was a valid contract between Coble and Eves, and notwithstanding Nonemaker paid a valuable consideration, by his knowledge of Coble’s equities he was not an innocent purchaser. 4. A legal principle is never so applied as to protect fraud. 5. The title to the store was held by Eves in trust to the extent of the unpaid purchase-money, and Nonemaker took it subject to the trust. 6. As to Coble, the contract between Eves and Nonemaker worked no change of title to the goods ; it left them as when the mortgage was made. 7. The trust for Coble as to the goods existing in Eves, the transfer to Nonemaker created him trustee for the same use. 8. If an estate in trust be conveyed to a volunteer, he will be bound by the trust, although he had no notice of it. 9. If the grantee of a trust estate for full value have notice of the trust he is bound just as the grantor. So as to purchasers with notice of any equitable encumbrance. 10. The right of Coble by his mortgage to take possession of the goods did not confine him to replevin, although that was the most obvious remedy.
78 Pa. 507Levy v. Levy (1875)
1. By the New York Code, every action must be prosecuted in the name of the real party in interest; two creditors of defendant assigned in New York their claims to the plaintiff, who himself was a creditor of defendant, he brought one suit in Pennsylvania for all in his own name. Held, that the suit was properly brought. 2. In Pennsylvania a suit on a chose in action must be brought, in the name of the holder of the legal title. 3. When by lex loci eontraclús the legal title passes by assignment the holder of such title may sue in his own name in whatever forum he brings suit.
78 Pa. 511Owen's Appeal (1875)
Appeal from the Orphans’ Court of Oentre county. Of May Term 1875, No. 11. On the 29th of April 1874, William Atherton presented a petition to the Orphans’ Court of Centre county, setting forth as follows : “ That a petition, purporting to have been signed by your petitioner, et al, is on record in the Orphans’ Court of said county, by which Albert Owen, administrator, &c., of Richard Atherton, deceased, has obtained possession of a large sum of money belonging to your petitioner, to wit: the sum of one thousand pounds sterling in gold, being the amount received by the aforesaid Richard Atherton, deceased, on behalf of your petitioner under the last will and testament of Eleanora Atherton, deceased, late of Manchester, England, which amount the share of your petitioner of said money the said Albert Owen acknowledges in said petition by placing the same on record and entering bail in the sum of twenty-five thousand dollars, in accordance with the order of your honorable court, to have in his possession and which he holds as the trustee of your petitioner. * * * * And further, the original papers, after diligent search made, cannot be found. “ Your petitioner prays your honors to discharge the said Albert Owen as trustee in this case, as he has no recollection of delegating such powers to the said Owen as he has exercised over the moneys and rights of your petitioner, denying him the right to invest any portion of his money in real estate, or the use of any portion of the same beyond the sum of twenty-five dollars per month, but to declare the said petition, as recorded, to be void and of no effect, as your petitioner verily believes that the same was never signed by him, and that he never intended to give the said Owen any power over said money, more than to transfer the same from the Tyrone Bank to the Philipsburg Bank and which power he did give. “ Your petitioner, therefore, prays that 'yc>ur honors discharge the said Albert Owen from the trusteeship, and that the said money, to-wit: The sum of one thousand pounds sterling gold, as received by Richard Atherton, deceased, from the executors of Eleanora Atherton, deceased, in December 1870, be paid over to your petitioner in currency, with such premium as the gold was worth at the time it was first paid, and with legal interest on the same, either forthwith or at such days and times as to your honors may seem just and proper, compelling the said trustee to show what investment he made of said fund, and show what interest he received from the same.” * * * The court, upon the hearing of the petition, made the following order: — • “ And now, April 24th 1874. petition read, and the court, after due consideration, do order and decree that notice of the presentation of this petition be given to Albert Owen to appear at August term next, and answer to a rule of court, to be issued upon him, to show cause, if any he has, why the prayer of the petitioner should not be granted, and the court do order that said Albert Owen pay to the said William Atherton one hundred and fifty dollars within thirty days from date.” The record shows the following entry: “May 5th 1874, I accept service and waive issue on the within order and decree. Albert Owen.” Owen appealed to the Supreme Court and assigned the order for error.