author: Mr. Justice Sharswood

text:
    Chestnut Hill and Spring House Turnpike Co. versus Piper.
    1. Defendants, sued in trespass q. c. f., pleaded “not guilty," and that they had an easement of drainage into the close. Held, that the plaintiff might give evidence that defendants had opened the drain larger than it had formerly been.
    2. Under the general issue the defendants could have given evidence of their easement without reference to the special plea.
    3. The defence set up by the plea of “ liberum, tenemenium, ” can be given in evidence under the general issue.
    4. Mere permissive enjoyment of a privilege does not make adverse user.
    5. Darlington v. Painter, 7 Barr 473, followed.
    February 15th 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Certificate from the Court at Nisi Prius of January Term, 1869, No. 334.
    This was an action of trespass q. c. f. by Austin M. Piper and another, executors, &c., of John Piper, deceased, against The Chestnut Hill and Spring House Turnpike Company, Silas Cleaver and others.
    The pleas were, 1. “Not guilty.”
    2. That the company, by virtue of its charter, had a right of watercourse and drainage over the closes mentioned in the declaration, and their officers, by their direction,- had the right to enter into the several closes adjoining the company’s road, to open such drains through the same as they might deem necessary to carry off the water from their road; the individual defendants, as ofiieers, &c., of the company and by direction of the company, in the reasonable exercise of their right, entered upon the closes to open drains through them, doing as little injury as might be, &c.
    3. That the company was entitled to certain 'easements of drainage upon the closes, and the other defendants, as officers of the company, entered on the closes and opened the drains, doing as little injury as might be, &c.
    There were replications traversing the second and third pleas.
    The two questions raised by the pleadings and the evidence were:
    Had the company, by virtue of their charter and the laws of the state, the right to open drains on the plaintiff’s land ? Had they an easement of drainage where they had opened drains on the plaintiff’s land?
    The case was tried January 17th 1857, before Sharswood, J.
    The plaintiff gave evidence that the turnpike was curbed and paved alongside the plaintiff’s property in Chestnut Hill; in 1868 the curbstone was broken by the agents of the defendants, and an inlet from the turnpike opened through it to arid on plaintiff’s enclosure; it was fifteen or twenty feet long; the curb had been put there about the year 1855, since which time there had been no inlet there; the ditch made across the footway was four feet ten inches wide at the curb, and eighteen inches deep with a plank bridge across the opening, the turnpike was filled up and the water turned across the road into the culvert, and all the water was thrown into plaintiff’s ground. There was evidence of the extent of the injury to the plaintiff. Also, that since 1855, in consequence of the improvements in Chestnut Hill, the quantity of water flowing down the turnpike had been very greatly increased. There had been a drain at the same place into plaintiff’s enclosure, but it was a very small one.
    For the defendants, A. Huston testified that from 1829 to 1837 he rvas superintendent of defendants’ road opposite the plaintiff’s property; there was then an inlet into -his property as now. “ The inlet is no deeper than it was at that time ; the top of the crossAvay is no higher; prior to setting the curbs, the inlet and crossAvay sufficed to take off all the Avater that came down the hill that far.” The defendants gave much evidence that the inlet had been at the place where they had opened it, for thirty or forty years.
    In rebuttal, the plaintiff gave evidence by Peter Fisher, in ansAYer to the defendants’ case, that the inlet had been originally opened to spread the water on the ground, and that there had been no inlet after the curb was set Avhere the defendants claimed there had been one. M. Trace, called by the plaintiff, testified that he saw the inlet in 1868.
    The plaintiff asked witness to state, “ How the two inlets compare or differ in size?”
    The question AYas objected to by the defendants. Allowed by the court and a bill of exceptions sealed.
    The Avitness said the inlet was not over one foot wide in 1844,. and the last he saw of it, it must have been over three feet wide*

      The defendants submitted these points:
    1. The turnpike company and those acting under it had a right to open the drain complained of into plaintiff’s land, provided they judged such drain necessary to carry off and drain the water from the turnpike road, and that the verdict of the jury must be for defendants, unless they find defendants’ act in opening the drain malicious or wantonly injurious.
    2. There is no evidence in the cause that defendants, in opening the drain, acted maliciously, or that such opening was wantonly injurious to plaintiff.
    3. Plaintiff is not entitled to recover by reason of an increase in the amount of drainage thrown upon his land over what it used to be when the inlet through which such drainage flows was first established or at any time since.
    4. If the jury-find from the evidence that the turnpike company, defendants, had and used a drain from the turnpike into plaintiff’s land for more than twenty-one years before the trespass complained of at or about the place where defendants reopened the drain in June 1868, their verdict, under the pleadings and in this form of action, must be for the defendants.
    5. A non-user for a less period than twenty-one years of the drain, after a continuous use thereof for more than twenty-one years, would not affect the right of the turnpike company, defendants, to reopen it.
    6. Upon the whole evidence in the cause' the verdict of the jury must be for defendants.
    The court answered the points as follows:
    “ 1st point. I decline so to charge.

      “ 2d point. This point I affirm.
    “3d point. This I decline to affirm. Defendants had no right to increase the capacity of the drain from what it originally was.
    “ 4th point. This I decline to affirm with the same qualification as in the answer to the third point.”
    He affirmed the fifth point and declined the sixth point.
    The court charged:
    “ I will confine myself, for the most part, to the principles of law applicable to this’case.
    “It is an action of trespass quare clausum fregit, the gist of which is an unlawful entry upon the plaintiff’s possession. If there is an unlawful entry shown, the plaintiff and executor .have aright to recover damages sustained up to the commencement of the suit on January 28th 1869, from dune 1868. If there has been no actual damage, nominal damages only can be recovered. The pleas are not guilty, and two pleas of justification. First, That they had a right to enter on this ground under their charter and the laws of the Commonwealth; and second, that they had certain easements of drainage on the premises. Plaintiffs have traversed these facts. Under not guilty, there must be some evidence of the presence of each of these defendants at the time of the trespass. Under the second plea, defendants rely upon their right to enter under their charter and the laws of the Commonwealth. This is a mere question of law, and I have no difficulty with it. [The company has no authority by its charter to enter upon lands adjoining their road without the permission of the owner.] They are authorized to make a turnpike road over an existing road. It has been argued from this, because supervisors of roads have the right to enter upon adjoining lands, the turnpike company has the like right. It does not follow that, because the penalty imposed upon the company for not properly maintaining their road, is the same as that to1 which supervisors are liable, the company has the same rights of entry for the purpose of drainage as the supervisors. This was not a free road. The company levies toll for its own use. They must show a right under their charter. There is nothing under their charter or laws that confers on this company rights of drainage on adjoining landowners.
    u Third. The burden is upon defendants, under the third plea, to show right of drainage. Was there any grant of such a privilege ? or, what was the same thing, was there a continuous adverse use for twenty-one years or more prior to 1855 of this easement of drainage ? Tnere is evidence of an old inlet there. Was it an easement of drainage? For what purpose made, and who made it ? It is for you to find whether you can presume a grant by owners of Piper’s lot of right of drainage.
    ■ “ Fisher testified that it was closed for some time. Mere permissive enjoyment does not make adverse user. If the use was interrupted from time to time, the jury may say what was the character of the use. To constitute such an adverse use it must be either by virtue of a grant or as a trespass. If, as Fisher says, it was opened for purposes of irrigation, who could have brought trespass ? No harm was done to the company by taking the water off. They could have no action. Fisher certainly knows, if he is to be believed. It is for you to say, on this sort of testimony, whether there was a continuous use of this easement for drainage for twenty-one years prior to 1855. Non-user for less than twenty-one years afterwards would not bar the defendants’ right.
    “ The circumstances connected with the laying of the curb may be considered. By the resolution, defendants say they did give permission to lay the curb. There is no evidence of what their superintendent did. What was done at the setting of the curb is some evidence of the understanding of the parties as to whether or not this was an easement of drainage. If enlarged beyond what it originally was, defendants had no right to increase the capacity of the old drain, and are liable for damages for the excess. If you find there was an easement of drainage, you will find for the defendants, if the capacity of the original drain was not increased. If otherwise, consider damages. There is no evidence of outrage. You are limited to the actual damage between June 1868 and January 1869. The result of a verdict for plaintiff will be, that defendants will probably find means to make other provision for this water. You should be careful not to visit defendants with heavy damages.”
    The verdict was for the plaintiff for $400.
    The defendants took a writ of error. They assigned for error:
    1. Admitting evidence that the drain opened in 1868 was larger than it had formerly been,
    2. The part of the charge in brackets.
    3-6. The answers to defendants’ first, third, fourth and sixth points.

      J, O. Longstreth, for plaintiff in error.
    The act incorporating the defendants (Pamph. L. 1803, p. 215), authorized the construction of their road over an existing highway, and transferred the duty of keeping the road in order from the supervisors to the company. The Act of April 6th 1802, sect. 10, 3 Sm. Laws 516, authorized supervisors to enter adjoining lands and open drains, &c. The judiciousness of the supervisor’s action cannot be contested unless there has been wanton conduct: Meeker v. Commonwealth, 6 Wright 283; Warfel v. Cochran, 10 Casey 381. Under plea of justification if defendant afterwards by his acts become a trespasser ab initio, the particulars must be specially replied: Stephens on Pleading 221; Chitty on Pleading 625.; Tr. & II. Pract. 51; Oystead v. Shed, 12 Mass. 506. One having an easement of drainage is not restricted to the quantity of water accustomed to flow: Kauffman v. Griesemer, 2 Casey 407.

      J. A. Spencer and 6?. W. Thorn (with whom wTas S. Grormleg), for defendant in error.
    A new assignment under the pleadings was not necessary: 1 Chitt. Pleadings 634; 2 Saund. Pleading and Evidence 1099-1107. The pleas having been traversed by plaintiff, the defendants might verify it by evidence; they W'ere bound to ¡Drove a right co-extensive with the trespass: Barnes v. Hunt, 11 East 451; Darlington v. Painter, 7 Barr 473; Washburne on Easements 42; Carter v. Page, 8 Ired. 190. Trespass lies for the abuse of right: Kissecker v. Monn, 12 Casey 313. If the enjoyment of a privilege be not adverse, the presumption of a grant does not arise; the question is one of fact: Cooper v. Smith, 9 S. & R. 26; Esling v. Williams, 10 Barr 126; Susquehanna County v. Deans, 9 Casey 131; Arnold v. Stevens, 24 Pick. 108; Campbell v. Wilson, 3 East 294; Cooper v. Barber, 3 Taunt. 99.
    March 1st 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

The principal reliance of the plaintiffs in error is upon the first specification. The others have been hut faintly pressed, and may be left upon the charge below.

Had the declaration in this case been in the general form, in trespass quare clausum fregit, and the defendants, without pleading the general issue, had justified by the plea of an easement, there would he great plausibility in the contention that proof of any easement would sustain the plea, and that to avoid this result the plaintiff must new assign. It is unnecessary to consider whether the special character of the declaration rendered this unnecessary. If a plaintiff sets out his claim by metes and bounds, the defendant may plead liberum tenementum, but no new assignment is necessary, for obvious reasons. But here there was the plea of not guilty, and the cause was before the jury on all the issues. Under the general issue the defendants below could have given evidence of their easement without reference to the special plea. Even the defence set up by a plea of liberum tenementum can be given in evidence under the general issue: Fisher v. Morris, 5 Whart. 358. Surely, then, the plaintiff could answer that defence by showing that the trespass complained of was not justified by the easement proved; that while the easement of which evidence had been given was of a drain of one foot, the defendants had made a drain three times that size. Where there are several issues before the jury, whatever would be competent evidence under either, if it stood alone, is admissible. In Darlington v. Painter, 7 Barr 473, the general issue was hot pleaded, yet it was held in that case that a plea of a general right to a watercourse is not sustained by evidence of a particular right. It would follow that the defendants below failed in their defence under the plea of “ certain easements of drainage,” if it appeared on their trial that all they could lay claim to was a drain at a particular place and of a limited capacity. The evidence admitted, therefore, to show that the ancient drains had been very much enlarged, was entirely competent under the authority of that case even under the special plea.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Seeger versus Pettit.
    1. In determining what are removable fixtures the criterion is the intention to annex, not the character of the physical annexation to the realty.
    2. Where the tenant puts in fixtures or conveniences for his own comfort, it is not presumed that he intended them as permanent improvements, to be left for the landlord; as a general rule the tenant may remove them during the term.
    3. For injury to the freehold in removing fixtures the tenant is liable to the landlord in damages.
    4. Defendant and another, who was agent of the plaintiff, composed a firm ■who rented from plaintiff; the firm was dissolved, the defendant continuing in possession as tenant. In an action against him by the plaintiff for removing fixtures put up by the firm, it was competent to show that on the dissolution, the partners treated the fixtures as personal property, and they Were paid for by the plaintiff to his partner.
    5. Hill v. Sewald, 3 P. F. Smith 271, adopted; Pyle v. Pennock, 2 W. & S. 390; Voorhis v. Freeman, Id. 116, recognised.
    February 16th 1875.
    Before Askew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 6.
    This was an action on the case, commenced January 16th 1872, by Ann Pettit against Rowland Seeger.
    The complaint of the plaintiff was that the defendant, being her tenant of premises No. 45 North Front street, Philadelphia, removed from there a coal-bin, gas fixtures, walnut railing, walnut stairs and bannisters, closet, walnut shelves and platform scales. The defence was, that the articles removed had been put into the premises by the tenant during the tenancy, for his own convenience and use.
    The case was tried February 17th 1873.
    The evidence was that the defendant, with one John Pettit, had rented the premises in 1864 from one Bonnafon, and occupied them as partners in the business of selling drugs, &e. The partnership continued two years; during that time the gas fixtures, platform scales and railing were put in. After the dissolution, John Pettit continued business alone. In July 1867, John Pettit purchased the property, and in December of the same year, sold it to the plaintiff, his mother. In 1868 John Pettit again entered into partnership with the defendant, and the firm continued as tenants of the same premises. John Pettit representing his mother in renting them; he always represented her as to the premises up to 1872 ; the rent was paid to him and he accounted to her for it. The walnut staircase and railing were put in by the last partnership in 1870. The firm was dissolved in January 1871, the defendant having bought the interest of John Pettit.
    The plaintiff gave evidence that the staircase was a permanent one; built into the house like any other stairway; the floor had been cut out for the staircase and a temporary trimmer for support put in. After the removal of the staircase, the screw-holes were there; the shelves were fastened to the partition.
    John Pettit, for plaintiff, testified that the scales, stairway railing and gas fixtures, had been put in by Seeger and himself as a firm, and when the property belonged to the plaintiff; the bin had been put in when he was there alone; the shelving was put in by the last firm ; after the dissolution the defendant retained possession of the premises.
    On cross-examination, the defendant offered to ask witness,
      “ Were not these articles included in the inventory and appraisement of the property of the first firm on its dissolution ?”
    The question was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed.
    There was evidence also that the removal of the stairway tended to weaken the building; that the stairway was a support.
    The plaintiff having closed, it was proposed to ask defendant, “ When the firm was dissolved in January 1871, were these fixtures included in the assets for which you paid Mr Pettit?” The question was objected to by the plaintiff, rejected by the court and a bill of exceptions sealed.
    The defendant gave evidence for the purpose of showing that the fixtures had been put up for convenience of the tenants, and were but slightly and temporarily attached to the building.
    The court (Thayer, J.) charged:
    “ [The general rule applicable to the subject is that the tenant, if he has affixed anything to the freehold, during the term, cannot remove it without the consent of the landlord. To this rule, however, there are many exceptions.] The tenant has a right to remove trade fixtures which he has set up — that is, fixtures set up for the purpose of carrying on his trade advantageously. This is on account of the encouragement afforded to trade by public policy. So also may ornamental fixtures and- fixtures put up for convenience, and only slightly attached. to the freehold, and such as may be removed without any serious injury, be removed. The gas fixtures mentioned in this case fall under this description. The tenant, if he put them in, had a right to remove them. [Where the utensil or thing attached is an accessory to the carrying on of a trade, it is to be considered a chattel which may be removed — a trade fixture. Where it is a necessary accessory to the enjoyment of the inheritance, it becomes a part of the inheritance or freehold, even though it may incidentally conduce to the convenience of the tenant in carrying on his trade.]
    Now, to apply these principles to the things removed by the tenant, in this case:—
    [First. As to the stairway: — If that was affixed to the freehold in the manner described by the witnesses, being fastened to the floor and wall and a hole cut through the joists and floor of the second story, to admit access from it, then the defendant had no right to remove it, and is responsible for doing so.] * * *
    [Fourth. As to the coal bin: — If that was fastened to the freehold in a permanent manner, I do not see how it could be removed on the ground of its being a trade fixture; because a coal bin is not only useful in a house where a trade is carried on, but is useful, no matter for what purpose the house may be occupied. Wherever fires are used and coal is used, coal bins are useful.]
    [Fifth. As to closets and shelves: — I do not see how they can be fairly regarded as trade fixtures, if they are built on the wall and permanently fastened, so that they cannot be removed without injury to the freehold. If they were let into the wall and securely fastened to the building, the tenant could not remove them.] * * *
    The verdict was for the plaintiff for $300.
    The defendant took a writ of error; he assigned for error :
    1, 2. The rulings on question of evidence.
    3-7. The portions of the charge in brackets.

      O. S. Pancoast, for plaintiff in error.
    The right of the tenant to remove fixtures depends neither on the nature of their annexation to the freehold nor upon their being purely for the purposes of trade; but the right of removal embraces such as are for ornament, pleasure, convenience, &c.: Elwes v. Maul, 3 East 38; 2 Sm. Lead. Cas. 114, notes by H. & W. 167 (42 Law Lib.); Bishop v. Elliott, 11 H. & G. 122; Hill v. Sewald, 3 P. F. Smith 272; Voorhis v. Freeman, 2 W. & S. 116 ; Meigs’ Appeal, 12 P. F. Smith 28.

      R. P. White, for defendant in error.
    To authorize the tenant to remove a fixture, it must be capable of removal, without destruction or serious injury to the freehold: Taylor’s Landlord and Tenant Act, sect. 547 (notes) 550.
    February 23d 1875.
   Mr. Justice Paxson

delivered the opinion of the court,

There are several specifications of error in this case, all of which we think are sustained. The evidence referred to in the first and second specifications was competent to show that the tenants treated the fixtures as personal property. John Pettit was a son of the plaintiff below, and acted for' her in renting the property, collecting the rent, &c. During a portion of the time he ivas in partnership with Mr. Seeger. It was clearly competent to prove, upon the question of intention, tbat the firm treated the fixtures as their own property, and included them among their assets.

The remaining specifications of error refer to the charge of the court, and may be considered together. Under the earlier decisions physical annexation was undoubtedly the test. But this doctrine no longer prevails. It was overturned in Voorhis v. Freeman, 2 W. & S. 116, followed by Pyle v. Pennock, Id. 390 ; and numerous other cases which will be found collected in Hill v. Sewald, 3 P. F. Smith 271. The true rule to be deduced from these authorities is, that it is not the character of the physical connection with the realty which constitutes the criterion of annexation, but it is the intention to annex. Where a tenant puts in fixtures or conveniences for his own comfort, the law raises no presumption that he intended them as permanent improvements, to be left for the benefit of his landlord; and as a general rule he will be entitled to remove them during his term. For any injury to the freehold by reason of such removal, he is of course liable to the landlord in damages.

The matter of fixtures should have been left to the jury as a question of intention. Instead of doing so, the learned judge applied the law to certain facts of the case, and instructed the jury substantially that, if there was physical annexation, the articles could not be removed. This was error.

Judgment reversed, and a venire facias de novo awarded.


author: Chief Justice Agotsw

text:
    Smith versus Bellows.
    1. The plaintiff, on the request of the defendant paid, for a share in oil land; alleging that he had been deceived by defendant, he sued him in case and declared in assumpsit, for money had and received. Plaintiff was nonsuited at the trial; the nonsuit was afterwards taken off, and plaintiff permitted to declare in tort for the deceit. Held, the cause of action being the same the amendment was proper.
    2. The cause of action accrued more than six years before the amendment, but not before the bringing of the suit. Held, the cause of action being the same, the Statute of Limitations was not a bar.
    3. If the causé of action had not been the same, the Statute of Limitations would have applied.
    4. The circumstances showing that by fraudulent imposition the defendant had obtained money, which he ought to return, either form of action might be supported.
    February 17th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 1.
    This was an action on the case, brought February 5th 1870, by William H. Bellows against Henry H. Smith. The plaintiff declared in assumpsit for money had and received, and in the other, common counts ;' the defendant pleaded “non-assumpsit.”
    The case came on for trial and a jury w‘as called. After some progress had been made in the trial, a nonsuit was entered against the plaintiff. The nonsuit was taken off and the plaintiff was allowed to amend his declaration and declare in tort for deceit. This declaration was filed January 16th 1872, and set out:
    That on the 2d day of January, A. D. 1865, Charles Buchanan owned a farm, consisting of about one hundred acres, in Mill Creek township, in Mercer county, and that Enoch Enochs, William II. Elliott, J. F. Bird, and the defendant, contemplating the project of forming an oil company, upon the basis of the farm, to be called the Mill Creek Oil Company, had procured the refusal to purchase it and to raise money to purchase it and to form the company; they concluded to raise $50,000, by the sale of fifty shares in the company, at $1000 for each share; and for the purpose of inducing the plaintiff to purchase a share, the defendant, on the 7th of March, of the year last aforesaid, intending to deceive, defraud and injure the plaintiff, falsely, fraudulently and deceitfully represented to him that the price to be paid for the farm was $50,000, and if that sum could not be raised in the manner aforesaid, the company would not be formed, and the money paid by the plaintiff would be returned to him; that $10,000 had already been paid for the working capital of the company, and that the defendant had paid for one of the shares $1000. Whereupon the plaintiff, confiding in the representations of the defendant, and not knowing to the contrary, paid him $1000 for one of the shares; Avhereas the price to be paid for tho farm was not $50,000, but only $15,000; nor was tho sum of $50,000 raised, but only the sum of $30,000, no part of which was contributed by either the said Enoch Enochs, William IT. Elliott, J. F. Bird, or the said defendant, nor had the defendant paid for one of such shares $1000; nor had $10,000 been paid for the working capital of said company. And the plaintiff having afterwards discovered that the representations of the defendant were false and fraudulent, he demands of the defendant to return to him the sum of $1000 so paid by him, yet the defendant, knowing his representations tvere false and fraudulent, &c., and made to deceive and defraud the plaintiff, has not paid to him the said $1000, to plaintiff’s damage, &c., $2000.
    The defendant pleaded “Not guilty,” and two special pleas— one, that the cause of action did not accrue “ at any time within six years before the plaintiff changed his cause of action,” &c.; the other, that it did not accrue “ at any time within six years next before the commencement of the suit grounded on the said supposed grievances, in manner and form, as the plaintiff has complained against him.”
    The plaintiff demurred to the first special plea, because it “docs not allege that the defendant was not guilty of said grievance within six years next before the said plaintiff brought his said action.”
    Tho court entered judgment for the plaintiff on the demurrer.
    The case was tried February 17th 1873, before Lynd, J.
    The plaintiff testified that, in March 1865, he met defendant at the office of Gr. Bull, Esq., in Walnut street. Defendant handed him a prospectus of the Mill Greek Oil Company, and asked him to subscribe ; he showed plaintiff a subscription list, calling his attention to defendant’s name on the list. Plaintiff did not then subscribe, but had an interview afterwards with defendant at his own office; defendant then said the Buchanan farm was offered by the owner for $50,000. It was proposed to raise fifty subscribers at $1000 each to purchase it; and if $50,000 should not be subscribed, the company would not go through and plaintiff’s money should be returned. Defendant said he had no interest in it, except that he had subscribed and paid $1000; that $10,000 had been subscribed and paid for a working capital, and a committee appointed to visit the property, had reported in favor of buying it at $50,000. Under these representations plaintiff was induced to subscribe. He subscribed and paid $1000. The company went into operation. The first directors were W. H. Elliott, J. F. Bird, Thomas Wire, W. R. White, and the defendant, H. H. Smith. The land was sold under a mortgage which the company made; plaintiff never got any stock; the stock was worthless; he was credited with it; he was a stockholder to the extent of sixteen thousand shares, the amount he had paid for.
    After much other testimony for the plaintiff, he gave in evidence a deed, dated March 14th 1865, from Charles Buchanan to the above-named directors, including defendant. Plaintiff then, under objection and exception, gave in evidence a deed, dated March 14th 1865* to the same persons, for the Bird farm; the consideration mentioned in the deed being $50,000, with receipt for the payment of the consideration. Also, the subscription list for “ the purchase- money of the ‘ Buchanan farm,’ for the organization of ‘ The Mill Creek Oil Company,’ as per prospectus.”
    The list contained the names of the defendant and the other directors; also, Enoch Enochs and plaintiff, each for one share.
    The plaintiff called J. F. Bird, who testified that Elliott, Enochs and himself purchased the refusal of the “ Buchanan and Bird farms;” they were both purchased together for $30,000; his attention was called to the property by defendant, who introduced him to Enochs. About the 1st of January 1865, Enochs, Elliott and defendant, arranged that witness and Elliott should see the property with reference to forming an oil company; after viewing the “ Buchanan ” and “ Bird ” farms, they found that Bussell and ICneedler held contracts for the refusal of the farms, from their respective owners; after viewing, they concluded there was a prospect of getting oil from the Buchanan farm; up to that point they had been acting for themselves; they had not been appointed a committee to act for anybody ; there had been no meeting at which a committee had been appointed. On their return to Philadelphia, they arranged with the defendant to put the Buchanan farm into the company, as the better farm. A meeting was held at the Continental hotel, of persons proposing to form the company; the company was formed on the Buchanan farm.
    Under objection and exception, witness testified: “ I did not pay $1000 in money; I gave a check for it; it was understood that the check was not to be used, as it was part of my own property; it was to be returned to me.” He further testified: “ The defendant, as treasurer, received all the money that was subscribed; I got one-fourth of $20,000 of stock; there was no reserved stock for working- capital; the property was put in at $50,000; defendant paid $30,000 in money, the remaining $20,000 was taken in stock; there was not a dollar subscribed- for working capital. He got the Bird farm also. I never paid any money, but allowed one-half' of my share to go into the company for working capital. We went to look at the farms with a view to purchase for ourselves ; nobody else was concerned in it; we purchased the farms from Russell and Kneedler; we had no transactions with Buchanan or Elijah Bird.”
    The plaintiff then gave in evidence a contract dated January 17th 1865, by which Kneedler and Russell agreed to sell to Elliott, J. F. Bird and Enochs, the two farms for $30,000, to be paid February 15th 1865, when Kneedler and Russell “are to hand over to Enoch Enochs a clear title in fee, to these properties, in trust for the others concerned.”
    The defendant called W. H. Elliott, who testified as to the purchase by himself, Enochs and Bird.
    On cross-examination- he said, defendant “became one-fourth owner with our consent; we gave it to him because we met together and agreed to form a company; defendant was in consultation with us as to the purchase of the land.”
    A meeting was held at the Continental to form a company; at that time the sale was made by witness, Enochs, and Bird, to the gentlemen there, who agreed to form a company. The meeting voted to buy the Buchanan farm for $50,000; witness made the statement as to its being offered for $50,000.
    Witness was asked who made the offer. The defendant objected to the question and also to any testimony as to what took place at that meeting between Enochs, Bird and witness, the vendors, and those who became purchasers of the farm, as not being cross-examination and irrelevant.
    The objection was overruled and a bill of exceptions sealed.
    The plaintiff proposed to show that witness gave a check for his subscription, on an agreement that it was to be returned. The defendant objected to the offer. It was admitted, and a bill of exceptions sealed.
    Witness testified: “ I paid $1000 — my subscription to the purchase of the Buchanan farm. I paid it with the money that was paid in to the company for me; I held an original share, and by my direction it was sold; I gave a check; it was returned when the-money was paid, the same as any other profit in any transaction. I did not charge for going out to the farm; they paid me, but I did not charge for it.”
    The defendant objected to any examination of witness as to visiting expenses and other miscellaneous expenditures. The court permitted the examination and sealed a bill of exceptions. The witness then testified on those subjects.
    The defendant gave other evidence in answer to plaintiffs case, and closed.
    In rebuttal, plaintiff having given in evidence the act of incorporation of the Mill Creek Oil Company, dated March 21st 1865, and having proved the minute-book of the company, offered it in evidence. The offer was objected to by the defendant. The court admitted all the minutes previous to the plaintiff’s subscription, and excluded those subsequent to it, and sealed a bill of exceptions for the defendant.
    Gr. Bull, Esq., was called by plaintiff, and testified that, after February 1st 1865, a circular was prepared by defendant and signed by witness as secretai-y of the board. This was the “ prospectus ” shown to plaintiff at Mr. Bull’s office.
    The plaintiff offered the circular in evidence. It was objected to by the defendant, admitted by the court and a bill of exceptions sealed.
    The circular was headed “Prospectus of the Mill Creek Oil Company.” It describes the “Buchanan farm,” its situation, its proximity to railroads, its prospects for oil, and other advantages.
    The property was offered for $50,000, and it was proposed to obtain fifty subscribers of $1000 each for its purchase, the subscription to be conditional upon raising the whole amount.
    The plan of organization, &c., urere also set out. The prospectus also gave the names of the directors, of whom defendant was one; he being also treasurer.
    The defendant submitted these points:
    3. If it appears from the evidence that $50,000 was to be paid for the Buchanan farm, and that said sum, or less than that sum was paid for it by the Mill Creek Oil Company, the plaintiff is not entitled to recover, as he was not injured thereby.
    4. If it appears from the evidence that $30,000 only was to be paid, and no more than said sum was paid, the plaintiff would not be entitled to recover in this suit.
    5. If the defendant and others are not entitled to retain the Bird farm, or the stock which they received from the company, the plaintiff is not entitled to recover in this action for that reason.
    6. If the jury find from the evidence that the defendant represented to the plaintiff, that if the $50,000 could not be raised in the manner proposed, the company would not be formed, and the money paid by the plaintiff would be returned to him; yet the plaintiff would not be entitled to recover upon such statement in this suit.
    7. If the working capital of $10,000 was paid in and used by the company, the plaintiff is not entitled to maintain this action.

      The foregoing points were refused.
    10. If $30,000 only was paid by the company for the land, the plaintiff has not been damaged by the alleged representations of the defendant.
    The court charged the jury on this point:
    “ That, as you may have understood, I have to leave as a question of fact for you. I cannot understand myself, or I would explain to you, how it is that the plaintiff would not have gone into this operation if the defendant had told him that the land was to cost $30,000, when he did go into it when the defendant told him it was to cost $50,000. But whether he would or would not have gone into it — whether that difference did influence him to go into it — I must leave as a question of fact for you. I cannot take it away from you.”
    The verdict was for the plaintiff for $1000.
    The defendant moved in arrest of judgment; the motion was dismissed, and judgment was entered on the verdict.
    The defendant took a writ of error, and assigned for error :
    1. Allowing the plaintiff to change the form of action.
    2. Entering judgment on the demurrer for the plaintiff.
    3-9. The ruling on the questions of evidence.
    10-15. The answers to the points.
    16, 17. Dismissing defendant’s motion and refusing to arrest the judgment on the verdict.

      W. 8. Price, for plaintiff in error.
    The Act of May 10th 1871, sect. 1, Pamph. L. 265, 1 Bright. Purd. 70, pi. 6, authorizing change in the form of actions should not be extended to cases after the Statute of Limitation has intervened: Shock v. McChesney, 4 Yeates 507; Bank v. Israel, 6 S. & R. 295; Wood v. Anderson, 1 Casey 407; Smith v. Smith, 9 Wright 403; Trego v. Lewis, 8 P. F. Smith 463; Stout v. Stout, 8 Wright 457.
    The act complained of was a wrong and injury to the company, and it must seek the remedy for the benefit of all the stockholders. Individual stockholders are not entitled to cut up and part and divide such a cause of action among themselves, and each maintain a suit upon his supposed share of it: McAleer v. McMurray, 8 P. F. Smith 126 ; Caldwell v. Boyd, 7 Id. 321; McElhenny’s Appeal, 11 Id. 188; Simons v. Vulcan Oil Co., Id. 202; Densmore Oil Co. v. Densmore, 14 Id. 50.
    The plaintiff’s delay in bringing suit should prevent his recovery: Learning v. Wise, 23 P. F. Smith 173; Pearsoll v. Chapin, 8 Wright 9; Negley v. Lindsay, 17 P. F. Smith 217. What is reasonable time or undue delay, when the facts are not disputed, is a question of law to be decided by the court.
    If a subscription is induced by the fraudulent representations of an officer or agent of a company, the subscription may be avoided or rescinded, and the money recovered back from the company : Crossman v. Penrose Ferry Bridge Co., 2 Casey 69; Custar v. Titusville G. & W. Co., 13 P. F. Smith 381.

      R. P. White (with whom was H. R. Edmunds) for defendant.—
    The only cause of action was that defendant had by fraud got possession of plaintiff’s money, and no matter how widely his form of complaint may have been varied, its substance and object was the same. The difference was of form only, and the case was therefore within the statute which is to receive a liberal construction : Knapp v. Hartung, 23 P. F. Smith 290. If the plaintiff adheres to his original cause of action, he may add a count substantially different from the declaration: Cabarga v. Seeger, 5 Harris 514; Schoneman v. Fegley, 7 Barr 433. Plaintiff sues, not for a fraud upon the company, but for a fraud upon, himself, and such suit can be maintained by individual stockholders: Kimmel v. Stoner, 6 Harris 155; Kimmel v. Gosling, 2 Grant 125. The plaintiff could not return his stock, for he never got it, and also because it was worthless: Beetem’s Adm’r v. Burkholder, 19 P. F. Smith 249; Heath v. Page, 12 Wright 131. Besides this verdict is not upon a rescission of the contract, but for damages sustained by reason of the deceit.
    Upon a question of fraud, evidence must be allowed a wide range, and testimony having any bearing, however remote, is admissible : Woods v. Gummert, 17 P. F. Smith 136; Angier v. Angier, 13 Id. 450; Railroad Co. v. Hoge, 10 Casey 214; Kauffman v. Swar, 5 Barr 230. Fraud is not to be considered as a single fact, but a conclusion to be drawn from all the circumstances of the case: Brogden v. Walker, 2 H. & J. 285.
    March 1st 1875.
   Chief Justice Agotsw

delivered the opinion of the court,

A careful examination of this record discloses no error for which the judgment should be reversed. In the view of the case taken by the plaintiff in error, that the action lay against the company only, there would be force in some of the exceptions taken at the trial. But the evidence of the plaintiff below presented a case of individual overreaching on part of the defendant, and it was so submitted to the jury, whose verdict establishes this view of the defendant’s conduct. In that light we discover no error in the manner the case was treated. If the evidence were insufficient to support this view, or its weight fell upon the other side, the remedy of the defendant was in the court below.

We discover no error in the change of the form of action. The test is in the cause of action, not the Statute of Limitations. If the cause of action is the same declared upon then the suit, quoad it, was brought in time. If the cause of action was not the same, then the action was not brought for it, and the Statute of Limitations would fairly apply. The fact that the first narr. was for money had and received (this being the material count), did not make the change from assumpsit to case in deceit, necessarily a change in the cause of action. The same circumstances of fraudulent imposition, showing that the defendant had obtained the money of the plaintiff, which ex equo et bono, he ought to return, would support either form of action.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Craig’s Administrator’s Appeal.
    1. Retention of possession by the former owner of a chattel sold at sheriff's sale is not an index of fraud, the sale being the act of the law, not of the person retaining.
    2. A judicial sale being conducted by an officer of the law, is deemed to be fair till proved to be otherwise!
    3. A chattel purchased at a judicial sale may be left in the possession of the former owner, on any contract of bailment which the law allows in other cases.
    4. A judgment was confessed by Shoemaker, execution issued on it, and furniture, &e., of Shoemaker, who was tenant of an hotel, bought at sheriff's sale by Craig, the plaintiff. He afterwards bought the lease of the hotel, and after a year from the sale of the personal property, put Shoemaker into the hotel as his agent; he occupied it for four years, when he died : Craig was his administrator. On the settlement of the administration account, creditors of Shoemaker asked to surcharge the account with the value of the furniture, &c., on the ground that the judgment and sheriff's sale were fraudulent. Held, that after so long delay, nothing short of clear, decisive and unmistakable evidence should avoid the transfer of title by the sheriff’s sale.
    5. The payment by Craig of debts contracted by Shoemaker whilst he kept the hotel, was consistent with Craig’s ownership and Shoemaker’s agency.
    6. Inadequacy of price of property sold at sheriff’s sale, will not alone affect proceedings conducted in accordance with the forms of law.
    7. After a report by an auditor that the sale was fraudulent, the Orphans’ Court directed an issue to .the Common Pleas to try that question; the jury found that it was not, and a rule for a new trial was discharged. The Orphans’ Court disregarded the finding of the jury and confirmed the report of the auditor. Held, that the verdict should have controlled the decree of the Orphans’ Court;
    8. In questions of fraud, evidence of acts done before any rights of the parties charging fraud had supervened, which tend to illustrate the conduct of the parties, and develop their relations, is admissible.
    9. Myers v. Harvey, 2 Penna. R. 478, recognised.
    February 17th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of JPMladelqohia: Of July Term 1878, No. 6½. In the matter of the account of James Craig and Catharine Shoemaker, administrators, &c., of N. Kline Shoemaker, deceased.
    The decedent died October 20th 1865. The administrators above named filed their account March 18th 1867. They charged themselves with $354.60, the amount of the inventory of the personal estate, and claimed credits, including $300 retained by the widow under the exemption laws, amounting to $707, leaving a balance of $352.40 due the administrators. C. F. Erickson, Esq., was appointed auditor, to audit and adjust the account, and distribute the balance in the hands of the administrators.
    James Craig, one of the administrators, died in January 1868, and administration of his estate was granted to B. C. Craig and John Maugle. The auditor’s first hearing was on the 30th of April 1868.
    John Hertzler, Harry Hertzler and John Heath, creditors of the decedent, claimed before the auditor that the accountants should be surcharged with the sum of $6800, the price of a lease and the furniture, &c., of the “ Grant House,” a hotel in Philadelphia, which had been sold by Craig as his own to Hartzell, but which the claimants alleged was the property of Shoemaker, the decedent.
    In January 1860, Shoemaker, as tenant of Jacob Lukens, occupied the “ Grant House,” and was the owner of the furniture and hotel fixtures. On the 16th of January 1860, Shoemaker executed to James Craig a bond conditioned for the payment of $3000, with warrant of attorney to confess judgment. Judgment was entered upon it on the 25th of the same month, and on the same day execution was issued, under which the furniture, hotel fixtures, good-will, lease, &c., were levied on; and after.setting apart $300 to the defendant, under the exemption laws, were sold by the sheriff on the 31st of the same month. All the furniture and other chattels were sold by the room and purchased by Craig for $1269. The good-wdll and lease were sold to W. H. Hinchman.
    At the time of the execution of the bond to Craig, Shoemaker was indebted to John Hertzler about $2000, on different, claims not then due, but maturing in the following March and April; also to Harry Hertzler about $300, due about the same time. On some of these claims judgment had been recovered at the time. It appeared, also, from the statement of appellants'; that he was at the same time indebted to John Heath. On his claim judgment was not recovered until February 26th 1863.' The amount of the judgment then was $563.36. A few days after the sale, Craig sold the furniture, &c., to Hinchman, the purchaser of the lease, and took his notes in payment. Shoemaker, with his family, remained in the house a short time, and then removed to a hotel at the corner of Columbia avenue and Tenth street, and afterwards, to another house, on Jefferson street. On the 22d of May I860,, Hinchman assigned his interest in the lease to Craig, and reconveyed to him the furniture, &c., Craig delivering to him his notes. Craig afterwards conveyed the lease and furniture to Isaac Chadsey, and took his notes in payment. In a few months, and before the notes became due, Chadsey, without notice to Craig, sold to Sheldrake, who, afterwards, for the consideration of $400, gave back the property to Craig. About a year after the sale to Chadsey, Shoemaker, at the request of Craig, returned to the house, and occupied it until his death, which occurred on the 20th of October 1865. The widow retained furniture to the value of $300, under the exemption laws, and continued to occupy the premises until the 1st of April 1866, at which time Hartzell, who had purchased the furniture as above stated, took possession, when the widow removed, taking with her the furniture which had been set-off to her.
    The auditor reported that before him the above-named three creditors asked to surcharge the administrators of Shoemaker with the proceeds of the sale of the personal property sold to Hartzell, and interest from April 1st 1866, and also the profits of the business of the “ Grant House,” carried on by the widow, from the 22d day of October 1865, fo April 1st 1866, contending:
    1. That the entry of judgment by Shoemaker in favor of Craig, on the 16th January 1860, and the sheriff’s sale thereunder, were fraudulent, and a scheme to delay, hinder and defraud creditors.
    2. That inasmuch as Shoemaker, the defendant in the execution, remained in possession of the personal property after the sheriff’s sale as the ostensible owner, and exercising every right of ownership, the title set up by Craig or his administrators to the same, is fraudulent and void as to them.
    He further reported as facts in the case, in addition to those before given, that the register of the hotel was opened and kept in Shoemaker’s name as agent. It did not appear for whom he was agent. The word agent was written in small letters. During this time, a period of more than four years, Shoemaker paid rent to Craig, and frequently renewed the furniture as the wear and tear required, which was estimated to amount to $400 per year; purchased supplies, employed the hands, and leased and collected the rents of the stores belonging to the premises. These expenses were paid out of the receipts of the business of the house. After his death, and until the sale to Hartzell, the widow remained on the premises, and had the apparent control of the personal property.
    Evidence was adduced on behalf of the administrators of Craig, to show that having purchased the said property and not succeeding in its management, he induced Shoemaker, after the lapse of a year or more, to return and assume the control as his agent, at a stipulated weekly salary and board of his family, with the express understanding that no debts should be contracted by him, and that all moneys, after the payment of expenses, were to be turned over to Craig; and that Shoemaker, in accordance with these terms, remained in possession until his death, when, with the consent of Craig, and by request of the widow, the business of the hotel was conducted by the son-in-law of Shoemaker, until the sale to Hartzell. The substance of the evidence to controvert these positions was:
    Ramage, a son-in-law of Shoemaker, acted as general superintendent of the hotel for four years, up to Shoemaker’s death; Craig never interfered with the business or financial affairs, nor was consulted about them ; no money was paid to him, except for the rent; the weekly returns, &c., were made to Shoemaker. Ramage at first was at a salary, and afterwards, by Shoemaker’s arrangement, he received one-eighth of the profits; when Craig was at the hotel, it was as a visitor of the family.
    After Shoemaker’s death, Craig told Shoemaker’s brother, that Shoemaker owed him about $2700; that he would sell the property, take his debt out, and give the remainder to the widow; also, that he had told the brother, about the time of the sheriff’s sale, that the judgment on which the property was sold had been given to protect the mutual interest of himself and Shoemaker.
    The auditor reported other evidence of declarations of Craig to the same purport; varying the amount in which Craig alleged Shoemaker was indebted to him; also, of distinct declarations of Craig, that the furniture, &c., was Shoemaker’s estate. After Shoemaker’s death, Craig paid bills that had been contracted by Shoemaker for supplies, furniture, &c., for the house, aggregating about $4000.
    On the facts as found by him, the auditor reported:
    * * * “ Here was a sheriff’s sale or a judgment confessed to Craig, a friend and former patron. The personal effects were valued at $7000, and were sold, including the lease and good-will, for $1329. For a brief period after the sheriff’s sale, the defendant in the execution remains in quiet possession. Subsequently, however, he relinquishes his control or custody of the personal effects, and removes from the premises; but before the expiration of a year, returns and assumes absolute control, and continues in possession as such for nearly four years, until his,death. At the time of the sheriff’s sale, debts of Shoemaker were accruing, amounting to over $3000, all of which is now claimed by his creditors, with interest.
    It is argued that Shoemaker was merely the agent for Craig. Does the law recognise such agencies ?
    The possession of Shoemaker for so long a period, even with Craig’s consent, as against creditors, is a badge of fraud. The purchases of Craig must be regarded as fraudulent, inasmuch as the price was grossly inadequate, and in view of the fact that Shoemaker remained in possession as the ostensible owner, being entitled and securing on the strength of such possession the credit of all the world.
    It is remarkable that three important debts, contracted by Shoemaker while in possession after the sheriff’s sale, w'ere paid after his death by Craig. Bentz & Co.’s bill for liquors, Hough’s bill for carpets, and Lowry’s bill for beef, were all contracted on the faith of Shoemaker’s possession, and necessarily in the course of his business. These bills were charged to him individually, and on his own account. Craig afterwards paid them, and claims credit therefor, as will be seen hereafter.
    The law presumes transactions like those to be fraudulent and void, and the facts developed in the history of this case afford a strong illustration of the reason and policy of the law. There was no such change of ownership as would prevent third parties from trusting Shoemaker; and in the case of the bills contracted by him, Craig recognised the justness of the charge by their payment after Shoemaker’s death.
    Craig never disposed of his supposed interest in the personal property until after Shoemaker’s death. His conduct at that time demonstrates that he was acting as administrator of Shoemaker, and not on his own account. * * *
    “ Under these views of the facts, your auditor finds that the title of Craig was fraudulent as to creditors, and that James Craig’s estate must be surcharged with the proceeds of the sale of the personal property of .the Grant House, which belonged to the estate of N. Kline Shoemaker, deceased. The administrators of James Craig, deceased, are accordingly surcharged with the sum of $6800, with interest from the 1st day of April 1866, to the 1st of March 1869, amounting in all to $7990.” * * *
    The auditor then referred to claims made by the administrators, &c., of Craig against the estate of Shoemaker. Amongst these were the balance due on his $3000 judgment; the amount of bills paid by Craig after Shoemaker’s death and the sum — fixed by the auditor at $2200 — which Shoemaker’s brother and others said Craig alleged after Shoemaker’s death to be due him.
    The auditor surcharged the account with the sum of $6800, the purchase-money of the furniture of the Grant House sold to Hartzell, .with $1190 interest. He stated an account against the administrators by which he found in their hands a balance of $7917.43 for distribution amongst the creditors.
    He allowed the claims of the Hertzlers and Heath with interest. On the ground that Craig had acted fraudulently in reference to the sheriff’s sale, he disallowed all his claims, except $2200, the amount which he had found Craig, after the death of Shoemaker, said was owing to him. The distribution was at the rate of about 90 per cent, on these claims. .

      During the hearing before the auditor the administrator requested the auditor to recommend the Orphans’ Court to direct an issue “ to try the question of the ownership of the personal property in the Grant House at Shoemaker’s death.” The auditor declined to recommend the issue. He filed his report April 2d 1869.
    On the 13th of July 1869, the Orphans’ Court directed an issue to try the question before a jury in the Court of Common Pleas, whether the personal property in the Grant House, belonged to N. Kline Shoemaker at the time of his death; the Hertzlers and Heath to be plaintiffs in the issue and the administrators, &c., to be defendants.
    Craig’s administrators filed exceptions to tbe auditor’s report.
    The issue was tried in the Court of Common Pleas, November 22d 1869, before Ludlow, J.
    The evidence there was substantially the 'same as that before the auditor.
    Under objection by the plaintiffs, the defendants gave in evidence the bills and receipts in the name of Shoemaker as agent, and other bills and receipts collected after Shoemaker’s death by Craig, for matters connected with the hotel, partly before and partly after Shoemaker’s death — some in Shoemaker’s name as agent, and some in Craig’s name. A number of the receipts were for rent paid by Craig to the owner of the hotel: it being admitted that Craig paid the rent to the landlord until July 5th 1866.
    The evidence (as before the auditor) was conflicting and somewhat confused, part of it tending to show that the ownership was in Shoemaker, and part that it was in Craig. It is so fully considered and analyzed in the opinion of Judge Woodward as to require no further statement.
    The verdict in the issue was for the defendants, and a rule for a new trial was discharged.
    The record of the issue was certified to the Orphans’ Court, and the exceptions to the auditor’s report were then argued.
    After the argument, the following opinion of the Orphans’ Court was delivered by Ludlow, J.
    “ This case has a special history. When it came before the court several years ago, twenty-five exceptions were filed to the report of the auditor. An effort was then made to send the ease to a jury in the Common Pleas upon an issue framed for that purpose. After argument, an issue was awarded. This issue was tried, and a verdict rendered in favor of Craig’s estate, and therefore against the findings of the auditor.
    “ The exceptions to the auditor’s report are again before this court, and we are also informed of the result of the jury trial upon the issue framed. The evidence produced, and the proceedings had in the Common Pleas, are all before us now, and we must proceed to dispose of the exceptions to the auditor’s report. It requires no argument to prove that we may decline to be governed by the verdict of the jury. An issue awarded out of the Orphans’ Court is precisely like an issue out of a court of chancery; for the Orphans’ Court, exercising jurisdiction analogous to that of a court of equity, is to be governed by the same principles. The whole object of the issue is to satisfy the consciences of the judges; and'if, after a careful inspection of the records and proof submitted at the trial, the consciences of the judges are not satisfied, it is their plain duty to disregard the verdict. In Mill’s Appeal, 10 Harris 325, the Supreme Court restate these principles; and as they cannot be doubted, we shall act upon them.
    “ The contest in this case arose out of an alleged effort made by one James Craig, administrator of Shoemaker, to protect the property of Shoemaker from the lawful demands of his (Shoemaker’s) creditors.
    “ The auditor found that Craig had bought the personal property of Shoemaker at the ‘Grant House’ for a fraudulent purpose ; and as no title passed, he or (as he is now dead) his estate must be surcharged with the proceeds of the sale of this personal property.
    “The jury in the feigned issue found otherwise, but we are satisfied that that verdict ought not to stand, and that the finding of the auditor was right.
    “ It is true that I, as the judge of the Common Pleas who tried the issue, refused a motion for a new trial; but as this action of the court was only technical, and as I did not see any objection to the legality of the trial, the result upon the motion made could not have been different. Now, however, and in the Orphans’ Court, when called upon critically to examine the evidence produced at the trial, I cannot say that it or its result ought to have any weight in the final settlement of this controversy.
    “ The circumstances attending this sheriff’s sale, the manner in which it was conducted, the price which the property brought, the appearance and reappearance at the house of Shoemaker, the manner in which the business was conducted by him, and the statement made by Craig himself, as proved by the testimony of one witness, to wit: that ‘he had so much against the property, and the balance belonged to Shoemaker; that he owed him $2000, to reach his (the witness’) debt — the balance was to be paid in instalments, which were to go to Kline Shoemaker;’ all appear to bear but one construction, and that one not favorable to the exceptants.
    “In reviewing the evidence at the trial, we cannot but believe that the introduction of testimony in the nature of bills and receipts collected after Shoemaker’s death, by Craig, had much to do with this verdict; and while I do not yet see that it was not legal testimony, yet my brother Allison and myself think it had an unjust and most injurious weight with the jury.

      “ After a very careful and protracted examination of all the evidence, we are forced to disregard this verdict, and to sustain the auditor.” * * *
    The court thereupon decreed * * * “that the said John Maugel and Reynels Cowden Craig, administrators as aforesaid, pay the amount of the estate of the said Nicholas Kline Shoemaker, as found by the auditor to be in the hands of the said James Craig at the time of his death, out of the estate of the said James Craig in their hands, with interest from the time of filing the said report, to the persons entitled thereto according to the report of the auditor.”
    The administrators of Craig appealed to the Supreme Court and in several specifications, assigned for error : the dismissal of their exceptions and the decree of the Orphans’ Court.

      J. Otterson and W. L. Hirst, for appellants.
    After such delay as is here the presumption is, that the sheriff’s sale was a lawful sale, and that the debt was an honest debt. The auditor had no right, in this collateral proceeding, to set either aside: Wilkinson’s Appeal, 4 Barr 284; Richards v. Elwell, 12 Wright 365. Craig having purchased at a judicial sale had the legal right to employ Shoemaker as his agent to keep the hotel: Myers v. Harvey, 2 Penna. R. 478 ; Dick v. Cooper, 12 Harris 220 ; Walter v. Gernant, 1 Harris 515; Streeper v. Eckart, 2 Whart. 307; Schott v. Chancellor, 8 Harris 199.

      S. H. Rich, for appellees, from whom the reporter received no paper-book.
    May 10th 1875.
   Mr. Justice Woodward

delivered the opinion of the court,

The duty assigned by the Orphans’ Court to the auditor whose report is the subject of discussion here, was to investigate and decide a question arising out of a series of transactions which were alleged to have been tainted by fraud in intent and act, and whose results, as against the present appellees, were alleged to be, therefore, void. Instead of entering upon the examination of the evidence with his mind directed to the true point of the controversy, he assumed at the outset that the sheriff’s sale of N. K. Shoemaker’s property to James Craig and the subsequent- possession by Shoemaker were a fraud in law. After stating the general facts, the auditor opened the discussion of the testimony by saying : “ The law presumes transactions like these to be fraudulent and void, and the facts developed in the history of this case afford a strong illustration of the reason and policy of the law. There was no such change of ownership as would prevent third parties from trusting Shoemaker.” The rule of Myers v. Harvey, 2 Penna. R. 478, was entirely disregarded. That rule, which has been repeatedly affirmed and uniformly recognised, was stated by Gibson, C. J., in these words : “ Retention of possession by the former owner of a chattel sold at .sheriff’s sale, is not an index of fraud, because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the law, shall be deemed fair till it is proved to be otherwise. A chattel thus purchased, then, may safely be left in the possession of the former owner on any contract of bailment the law allows in any other cases.” Starting with the mistaken theory of the existence of a legal fraud, it is by no means surprising that the opinion of the auditor upon the effect of the testimony was different from that of the jury on. the trial of the issue directed to the Common Pleas, and different from that which has been reached by this court.

In January 1860, N. Kline Shoemaker was keeping a tavern at the corner of Eighth and Spring Garden streets, then known as the Richards House, and afterwards called the Grant House. On the 16th of January, he confessed a judgment to James Craig for $3000. There is nothing in the record to show that this judgment was not for a sum of money actually due. On the contrary, Mr. Bonham testified that “it was not for any more than Shoemaker owed from his statement and the examination of the book.” A fieri facias was issued, a levy was made on the furniture in the tavern, property of the value of $300 was set out to the defendant on.his exemption claim, and on the 31st of January, the residue of the furniture was sold to Craig for the sum of $1269, and the lease of the premises was sold to William II. Ilinehman for $200. Shortly afterwards Craig sold the furniture to Ilinehman, who took possession of the tavern. It was found he could not pay for the property, and Craig repurchased it, buying the lease at the same time, and paying to Ilinehman the $200 he had bidden at the sheriff’s sale. Craig then sold to Isaac Chadsey, who was in possession some months, and sold out to Sheldrake. He discovered that in Sheldrake’s hands his security for the purchase-money would be valueless, and an arrangement was made between them by which Sheldrake surrendered possession of the property on payment of $400 by Craig. In the meantime, Shoemaker, w'ho had remained in the house a short time after the sheriff’s sale, had removed first to a house at the corner of Tenth street and Columbia avenue, where he lived about a year, and afterwards to a house on Jefferson street. Failing in the efforts he had made to dispose of the property, Craig asked Shoemaker to take charge of it and manage the house as his agent. The proposition was accepted, and Shoemaker returned under an arrangement that he should receive a weekly allowance, that his family should be boarded in the house, and that he should contract no debts. He remained there until his death on the 20th of October 1865. A. II. Ramage, his son-in-law, carried on the business until the 1st of January 1866, when Craig sold the furniture to A. D. Hartzell for $6800. After Shoemaker’s death, the existence of debts incurred in the management of the house to the amount of $4000, was discovered, and these debts Mr. Craig paid.

Letters of administration upon the estate of Shoemaker were granted to his widow and Mr. Craig. They filed their account on the 13th of March 1867. Before the auditor to whom the account was referred, a successful effort was made to surcharge the estate of Craig (who died in January 1868, before the hearing commenced) with the $6800 received from Hartzell for the Grant House furniture. The auditor reported that the sheriff’s sale was fraudulent; that the property belonged to Shoemaker at the time of his death; that Craig’s whole claim should be reduced to $2200; and that his estate was entitled to no dividend on account of the judgment for $3000, and no dividend on the $4000 of debts which he had paid. After the report was returned an issue was awarded, a verdict in favor of Craig’s administrators was rendered, and a rule for a new trial was entered and discharged. Upon the subsequent argument of the case in the Orphans’ Court, the exceptions which had been taken by the appellants were dismissed, and the report of the auditor was confirmed. ‘“j

From the date of the sheriff’s sale to the time when the administration account was filed, no steps were taken by the appellees to test the regularity of the proceedings under the judgment, or to collect their own claims. All the items of John Hertzler’s debt became payable during the year 1860; the judgment of Harry Hertzler was entered on the 25th of February 1860; and that of John Heath on the 26th of February 1863. The property in dispute had been within the reach of two of these judgment-creditors for the period of seven years, and within reach of the third for a period of four, when this effort to surcharge the administrators of Craig was made. After a delay so long continued, nothing short of clear, decisive and unmistakable evidence could have the effect to annul and avoid a transfer of the title to personal- property by a judicial sale. Craig’s claim of ownership did not rest on the acts of the parties. It rested upon a judicial record and the acts of an officer of the law. Shoemaker had acquiesced throughout. He recognised the title of Craig down to the day of his death. For sixteen months after the sale, all his connection with the property was severed. In that interval, and with the judgments of two of the appellees ready for execution, Craig was permitted to make contract after contract in relation to the furniture and the lease of the house. The rent was paid to the landlord through him. And from the time Shoemaker was invited to return and resume the charge of the house, he pretended to hold no other relation than that of agent for Craig.

A thorough analysis of all the testimony upon which the decision of the auditors was based, would involve a good deal of gratuitous and superfluous labor. It was conflicting, vague and inconclusive. There is scarcely an item of it of the definite character which the case required. Taking the facts shown on the part of the appellees alone, they would fail to support the claims of creditors who had slept on rights now so vigorously asserted for seven years, and who did not take out of the office of the Orphans’ Court the certificate of the appointment of the auditor until after the'death of Craig. The testimony of the witnesses David K. Shoemaker, Ramberger and Oldham, that at different times after N. K. Shoemaker’s death, Craig said he would give the money received for the furniture to the widow, after deducting the amount due him, was not only consistent with his ownership of the property, but the declaration amounted to an assertion of such ownership. As the widow of an utterly insolvent intestate, Mrs. Shoemaker would have been entitled to nothing, of course. One may do what he will with his own, and the promise proved by these witnesses would harmonize entirely with all that was proved of the relations between Shoemaker and Craig, which were manifestly those of beneficiary and benefactor. It is true that Thomas L. Worthington swore that Craig said the balance beyond his debt of about $2000 belonged to Shoemaker’s estate, but that statement is inconsistent with the account given by the other witnesses of what occurred in conversations that must have been identical, for Worthington is proved to have been present on two occasions when the subject was discussed in the presence of Ramberger and Oldham. The only direct evidence cotemporaneous with the sheriff’s sale to affect its validity and good faith, was that of D. K. Shoemaker, who said that Craig declared the object of the sale and purchase was to protect the mutual interests of N. I£. Shoemaker and himself. In view of a regular judgment, a regular execution, the due performance of his official functions by the sheriff, the surrender of the property by Shoemaker, his removal from the premises, and his acquiescence in the title of Craig throughout his lifetime, it is sufficiently clear that whatever else the language of the witness may be taken to imply, it can raise no doubt of the understanding of the parties concerned that the title to the furniture was vested in Craig. There remain the statements of Hartzell and his father-in-law, Gerhart, that Craig said the property he sold to Ilartzell belonged to Shoemaker’s estate. Against these statements are arrayed not only the evidence of the other witnesses for the appellees in regard to the language used in the conversations which they heard, and the evidence furnished by the written contract with Ilartzell, which shows the sale to have been apparently made by Craig in his individual right, but the proof also of the whole course of dealing for five years ; of the absolute ownership exercised after the sheriff’s sale, as shown by the contracts made with Hinchman, Chadsey and Sheldrake; of the acts and declarations of Shoemaker, as sworn to by George Wood, Lewis Bitting and Ephraim C. Bush; of the business transactions by the parties, explicitly and clearly described by Mr. Bonham; and of the pregnant fact that after Shoemaker’s death, Craig paid unanticipated debts that had been improvidently incurred to the amount of $4000. The discrepancy between the amount bidden at the sheriff’s sale and the sum for which the furniture was sold to Hartzell, was pressed as a ground for deducing fraud in the transaction. The discrepancy was large, and it may indicate that the amount produced by the sheriff’s sale was less than the value of the property. But this is not an unusual incident of such sales, and mere inadequacy of price, even if it were clearly established, would not alone affect proceedings that were in accordance with forms of law. Regard must be had also to the fact that startling changes had been made in all values by the disturbances of the currency of the country between January 1860 and January 1866. There was not in the whole volume of the testimony, jnaterial to warrant the decision of the auditor.

If doubt were entertained of the accuracy of this conclusion, the verdict of the jury in the feigned issue would, in view of the character of the evidence, be itself conclusive. The order for the issue was most discreetly made. The case was one which peculiarly required the intervention of a jury of plain business men, and an investigation of the questions in dispute by them under the legal guidance of an experienced judge. There is no other form of inquiry so thorough, so unprejudiced, so accurate and so safe. The verdict was allowed to stand, and it should have controlled the decree of the Orphans’ Court. The main reason given for disregarding it by the learned judge who decided the cause, was the “ unjust and most injurious weight with the jury” which the “ testimony in the nature of bills and receipts collected after Shoemaker’s death by Craig” was assumed to have had. The right of the jury to weigh the value of the evidence was unquestionable. The court were to decide upon its competency, and as to that, no doubt seems to have been felt in the court below. The question in issue wras one of actual fraud. This evidence showed the connection of Craig with the property after Shoemaker’s death, it is true, but before any claim on the part of the contesting creditors had been asserted, and before any question of title had been raised. There had been proof that Shoemaker was Craig’s agent. The debts had been contracted in violation of the agreement between them, but under circumstances that forbade a denial by Craig of the authority of Shoemaker to bind him. On the mere technical ground that it tended to contradict Ramage, on whom the appellees relied to establish ownership in Shoemaker, the offer was admissible, for the creditors whom Craig paid had been sent by Ramage to him. But for general and broad reasons, in a case like this, involving a charge of fraud, the admission of evidence of acts done before any rights of the appellees had supervened, which tended to illustrate the conduct of the parties and develop the truth of their relations, was amply justified by recognised and accepted rules.

The decree of the court below is reversed, and the report of the auditor is set aside; and upon the filing in the Orphans’ Court of a certificate of the verdict and judgment in the feigned issue in the Common Pleas, it is decreed that the account of the administration of the estate of N. Kline Shoemaker, deceased, filed in the register’s office on the 13th of day March 1867, be confirmed ; and it is further decreed that the costs of all proceedings subsequent to the filing of that account in the Orphans’ Court be paid by the appellees.


author: Mr. Justice Mercue

text:
    Lawrance versus Fussell.
    1. Under the Act of March 28th 1855, the plaintiff in actions on notes, &e., may enter judgment by default on the third Saturday after the return, unless the defendant have filed an affidavit of defence ; provided that no such judgment shall be entered, unless the plaintiff shall within two weeks after the return-day of the writ, file a copy of the instrument on which the action is brought. A copy filed with the praecipe was a compliance with the requirements of the act.
    2. The object of the act was to designate a time beyond which a copy of the instrument could not be filed.
    3. Defendant made a note payable to plaintiff; he endorsed the note to a bank, which endorsed it to another bank; there was no averment in the affidavit of defence that the note had been taken up by plaintiff, or that he had any interest in it. Held, that there was not shown any right of action on the note in the plaintiff.
    4. If the note had been endorsed in blank, the possession by drawer would have been sufficient evidence of his ownership and that he had taken it up.
    5. If a note be specially endorsed, its negotiability is ended, and it is incapable of being sued on, except by the special endorsee.
    6. The note was endorsed by the Media Bank, the first endorser, to the second endorsee “for account” of the Media Bank. This was a restrictive endorsement, and the holder could not sue the drawer on it.
    February 19th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 54.
    This was an action of assumpsit, brought March 10th 1875, by Milton Fussell against Edward S. Lawrance, on two promissory notes, of which the following are the copies filed in the case, as the claim of the plaintiff. The copies were filed with the praecipe.
    “$104.21. Philadelphia, November 27th 1872.
    Ninety days after date, I promise to pay to the order of Milton Fussell, one hundred and four and yVa dollars, without defalcation, value received. Payable at the Grirard National Bank, Philadelphia. Edward S. Lawrance,
    Endorsed: 206 W. Washington Square.”
    “ Milton Fussell.
    “Pay First National Bank, Philadelphia, for account of First National Bank, Media. Jos. W. Hawley, Cashier.”
    “105.38. Philadelphia, November 27th 1872.
    Sixty days after date, I promise to pay to the order of Milton Fussell, one hundred and five and T3ff80 dollars, without defalcation, value received. Payable at the Grirard National Bank, Philadelphia. Edward S. Lawrance,
    Endorsed : 206 W. Washington Square.”
    “ Milton Fussell.
    “ Pay First National Bank, Philadelphia, for account of First National Bank. Jos. W. Hawley, Cashier.”
    The defendant’s affidavit of defence was:
    1. The copy of notes was not filed “ within two weeks after the return of the original process,” as required by Act of Assembly; the original process was returnable to the first Monday of April instant, the 7th of this month. The “ praecipe and copy of promissory notes upon which suit is brought,” were filed together on one sheet of paper, on March 19th 1873, the same day the original process was issued, and I believe and expect to be able to prove that said praecipe and copy were filed before the original process was issued.
    2. By the said copy filed, it appears that said Milton Fussell, plaintiff, endorsed the said notes over to the “First National Bank, Media,” and that the “First National Bank, Media,” in turn endorsed said notes over to the “ First National Bank, Philadelphia, for account of First National Bank, Media,” and there is no averment on record that said notes ever returned to the ownership of said Fussell.
    On the 3d of May 1873, the court entered judgment against the defendant for want of a sufficient affidavit of defence, and the damages were assessed at $214.74.
    The defendant took a writ of error, and assigned for error that the court entered judgment against him for want of a sufficient affidavit of defence.
    The Act of Assembly under which the judgmentwas entered was approved March 28th 1855, Pamph. L. 88, 1 Bright. Purd. 495, pi. 13. It is as follows:

      “ Sect. 2. In all actions instituted in the said court on bills, notes, bonds or other instruments of writing, for the payment of money, and for the recovery of book debts, * * * it shall be lawful for the plaintiff, on or at any time after the third Saturday succeeding the several return days hereinbefore designated, on motion, to enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and character of the same: Provided, that in all such cases no judgment shall be entered by virtue of this section, unless the said plaintiff shall, within two weeks after the return of the original process, file in the office of the prothonotary of the court, a copy of the instrument of writing, book entries, record or claim, on which action has been brought.”

      P. S. Lawrance, p. p., plaintiff in error.

      Gr. O. Punes, for defendant in error,
    cited Dugan v. United States, 3 Wheat. 182; Byles on Bills 149, note 1; Mullen v. French, 9 Watts 96; Weakly v. Bell, Id. 278.
    May 10th 1875.
   Mr. Justice Mercue

delivered the opinion of the court,

The first objection in the assignment presents the question, whether copies of the notes were filed at such a time as to authorize the judgment to be taken for want of an affidavit of defence.

The Act of 28th March 1835, Pamph. L. 88, which authorizes a judgment to be taken for want of such affidavit, provides, “ that in all such cases no judgment shall be entered by virtue of this section, unless the said plaintiff shall, within two weeks after the return of the original process, file in the office of the prothonotary of the court * * * a copy of the instrument of writing, book entries, record, or claim, on -which action has been brought.”

In this case, copies of the notes declared on, were filed with the praecipe, which directed the summons to issue. Technically, they they were not filed “ after the return of the original process;” but, in fact, they were actually on file during the whole of those two weeks. The object of the law -was to designate a time beyond which a copy of the instrument could not be filed, so as to give a plaintiff the benefit of this section. A defendant was not to be required to examine the record every week for an indefinite length of time to ascertain the plaintiff’s claim, but was bound to take notice of what the record showed in those two weeks. He could in no wise be injured by the earlier filing of a copy. It gave him a longer period in which to prepare his affidavit. The filing of a copy then, with the praecipe, is within the true intent and spirit of the statute, requiring it to be filed within two weeks after the return of the original process.

The second objection is, that the record showed no such property in the notes, as to give the defendant in error a right of action. The facts set forth in the affidavit are substantially these: the defendant in error endorsed the notes over to the First National Bank, Media; which bank, in turn, endorsed them over to the First National Bank, Philadelphia, for account of First National Bank, Media; and there is no averment on record that the notes were returned to the ownership of the defendant in error. The court deemed this affidavit insufficient, and entered judgment against the plaintiff in error. An examination of the record fully sustains the affidavit. The only cause of action there averred is contained in a statement filed, which contains a copy of the notes, with the endorsements thereon, and an assertion that he claimed the amount of the notes with interest and costs. The record showed the ownership of the notes had once passed from him. There was no averment that he had paid or taken them up, or that he had in any manner acquired or held any interest or property therein.

If the notes had been endorsed in blank only, the possession of them would have been sufficient evidence of ownership. Although the defendant in error had once passed them away by endorsement and delivery, yet if he had regained the possession again, it would be prima; facie evidence that he had paid and taken them up. Weakly v. Bell et al., 9 Watts 273. Even if the endorsements subsequent to his had been in full, the weight of authority is, that the presumption would be the same: Morris v. Foreman, 1 Dall. 193; Dugan v. United States, 3 Wheat. 172. But if it be specially endorsed, its negotiability is at an end, and it becomes incapable of being sued upon by any one, except the special endorsee : Sigourney v. Lloyd, 8 B. & C. 622; 5 Bing. 525; Ancher v. Bank of England, Doug. 639; Treuttel v. Barandon, 8 Taunt. 100 ; Gorgerat et al. v. McCarty, 2 Dall. 144. The endorsement here is further qualified. This subsequent endorsement being made for the account of the endorser, was restrictive: Byles on Bills *121. A holder who takes anote which is restricted by a restrictive endorsement, cannot sue the drawer upon it: Id.

It is true, under the Act of Assembly, permitting a statement of a plaintiff’s claim to be filed, great exactness is not required, but the record should in some manner show, either by positive affirmance or legal presumption, a right of action in the plaintiff. This record is defective in both respects; therefore,

Judgment reversed, and a procedendo awarded.