author: Mr. Justice Mercur

text:
    Munhall versus Pennsylvania Railroad Co. and Allegheny Valley Railroad Co. Jackson & Brother versus Same.
    1. Railroad companies have an undoubted right to enter into a just and fair arrangement with a corporation or association whereby their business will be increased, although the effect of the arrangement may be to take business from others. With a view of increasing their business, they may extend more favorable terms to all shippers, although others engaged in the same business may be incidentally injured thereby. The fact that the public patronize those lines of transportation which give the most'favorable terms constitutes no ground of complaint.
    2. The Allegheny Valley Railroad crosses the Pennsylvania Railroad at Allegheny Junction. To compete more successfully with the river transportation, the Allegheny Valley Railroad carried crude oil to the refineries at Pittsburgh, and the manufactured product back to Allegheny Junction, at a uniform rate, thus giving to the refiner at Pittsburgh as favorable terms as if located at Allegheny Junction, and thereby securing a uniform rate on oil from the oil regions to the seaboard. Held, that to deny the right to make such an arrangement would be an unwarranted interference with the management of the business of the railroad, and deprive the public of the benefit of the competition to which it is justly entitled.
    3. The right of connecting railroads to make contracts for through rates is incident to their powers unless prohibited by their charter. Where such contracts are not unjust, unconscionable or in restraint of trade, they will not be interfered with.
    November 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 73 and 74.
    Case by William Munhall against the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company, and by Jackson & Brother against the same defendants.
    These two actions were of like character, and depending upon like proofs, and by consent of the parties, were tried together in the court below.
    They were actions against the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company for conspiracy and injuring the plaintiffs, respectively, in their business.
    The plaintiffs were éngaged in the transportation of crude oil in bulk boats and barges, via the Allegheny river, from the oil regions of Pennsylvania to Pittsburgh and vicinity, and in the prosecution of their business, had invested in and were using steamboats, barges, bulk boats and other appliances specially built for and adapted to said trade. They had ljuilt up a steady and prosperous trade, and had been engaged in the same for a number of years prior to 1871. A large number of persons at Pittsburgh and in the vicinity thereof were engagéd in the business of refining crude oil, and shipping the refined .product to the eastern markets over the Pennsylvania railroad. These refiners had been for several years the regular customers of the plaintiffs in their aforesaid transportation business.
    The Pennsylvania railroad was, and is, the direct route for transportation of refined oil from Pittsburgh to the eastern market. During much of the time covered by the proofs in these cases it was the only route, and during the whole period was the principal and favorite route with refiners at Pittsburgh and vicinity.
    The Allegheny Valley Railroad was completed to Oil City and opened about the year 1869, and it has since been the only route by rail for the transportation of crude petroleum from the oil regions of Pennsylvania to Pittsburgh and vicinity.
    The natural and cheapest route for the transportation of crude petroleum from the oil regions of Pennsylvania to Pittsburgh is the Allegheny river, and for some time after the opening of the Allegheny Valley railroad to the oil trade, as above mentioned, the plaintiffs continued to supply their customers, the refiners, at Pittsburgh and vicinity, with crude oil brought down the Allegheny river in their bulk-boats and barges.
    In the year 1870, and prior thereto, in order to compete with the river trade in the transportation of crude petroleum to Pittsburgh and vicinity, the Allegheny Valley Railroad Company allowed rebates or drawbacks to shippers of crude petroleum over its road ; but this policy left the plaintiffs to open competition, and they, by lowering their rates, retained their trade.
    It was in evidence that early in the year 1870, at the office of the Allegheny Valley Railroad, at Pittsburgh, the president of the road remonstrated with a large transporter of crude petroleum to Pittsburgh, and who had been receiving rebates from the road, against his running oil to Pittsburgh by river, and then and there declared he would “ fix this barge business so there couldn’t be any more barge oil run on that river.”
    It was also in evidence that about 1870 the president of the Allegheny Valley Railroad declared to a Pittsburgh refiner and a broker at Pittsburgh for the purchase of crude petroleum for refiners, that the shipping of crude petroleum to Pittsburgh by the river should he stopped, and that he would compel the barges “ to stop the business and go out of the business.”
    Shortly thereafter the Pennsylvania Railroad Company and the Allegheny Valley Railroad Company entered into an arrangement whereby the Pennsylvania Railroad Company allowed to Pittsburgh refiners of crude oil upon eastern shipments of oil refined at Pittsburgh and vicinity from crude petroleum brought to their refineries from the oil-producing regions of Pennsylvania, via the Allegheny Valley Railroad, a drawback or rebate upon the freight or cost of transportation. But any such drawback or rebate was not allowed upon oil refined at Pittsburgh or yieinity from crude petroleum brought there in barges or boats via the Allegheny river. This general arrangement between the defendant companies, with some modifications in details, prevailed from the time it was entered into between the two roads, about 1870 or 1871, down to the trial of these cases.
    The Allegheny Valley Railroad Company (like the bargemen on the river), carried crude oil from the oil regions to Pittsburgh at one uniform rate, without reference to the point at which it first reached the railroad. But it went a step further in competing with the rivermen. It carried crude oil to the refinery, and its manufactured product to Allegheny Junction, at one uniform rate. Pittsburgh refiners — all of them — were thus put in as good position, as if their refineries had been situate at Allegheny Junction. They had one uniform through rate on oil from the oil regions to the seaboard.
    Parties shipping oil over the Allegheny Valley Railroad, received receipts showing the amount of freight paid. When they shipped their oil east, these receipts were accepted by the Pennsylvania Railroad Company, as evidence that the freight chargeable to the first part of the carriage had been paid, and that company collected only its own freight in money. If no such receipts were presented — if no freight had been paid for carriage between Pittsburgh and Allegheny Junction — it collected freight for the whole route.
    In consequence of this arrangement, the plaintiffs alleged, that refiners of oil at Pittsburgh and vicinity, were compelled to and did desist from purchasing crude pretroleum brought to Pittsburgh or its vicinity, by barges or bulk boats via the Allegheny river, and thus the business of the plaintiffs was almost entirely broken up and destroyed.
    The plaintiffs, to counteract the effect of the above-mentioned discrimination, lowered their rates of freight to 8 and 10 cents per barrel — a rate far below that charged by the Allegheny Valley Railroad Company, which was then about 35 cents per barrel — but without avail.
    They further alleged that their former customers continued in the business of refining crude oil at Pittsburgh and vicinity, and were purchasers of crude petroleum, but that by reason of the above arrangement, they were compelled to withdraw their patronage from plaintiffs, and supply themselves with oil brought via the railroad.
    The plaintiffs having closed their testimony, counsel for defendants move the court for judgment of peremptory nonsuit, for the following reasons:
    1. No evidence has been given connecting the Pennsylvania ■ Railroad Company, one of the defendants, with the combination declared upon. 2. There is no evidence of any illegal combination for any purpose. There is no evidence of any combination for an illegal purpose, and especially none from which the jury could find a malicious injury “to the plaintiffs in their business.” 4. There is no evidence of an unlawful combination between the defendants for the purpose of, and resulting in, “ actual legal damages ” to the plaintiffs.
    The court said: “ We do not see how we could sustain a verdict for the plaintiff under the evidence, and, therefore, judgment of nonsuit granted with leave, &c.”
    This action of the court was assigned for error by plaintiffs, who took this writ.

      M. W. Acheson and D. T. Watson, for plaintiffs in error.
    The fact of conspiracy need not be proved, but may be collected from other circumstances: Com. v. Corlies, 3 Brew. 579; and the concurring conduct of the defendants need not be proved : Whar. Crim. Law, sect. 2355; Com. v. Warren, 6 Mass. 74; Com. v. Crowninshield, 10 Pick. 497. In the King v. Parsons et al., 1 W. Bl. 392, it was declared by Lord Mansfield, that there is no occasion to prove the actual fact of conspiracy, but it may be deduced from collateral circumstances. See also Rex v. Murphy, 8 C. & P. 297.
    Combination is criminal, when the act to be done" has a necessary tendency to prejudice the public or oppress individuals: Com. v. Carlisle, Brightly Rep. 40; Com v. Tack, 1 Brew. 511; Com. v. Kilpatrick, 15 Leg. Int. 347.
    Or when the act to be done necessarily tends to prejudice the public or oppress individuals, by unjustly subjecting them to the power of the confederates: Morris Run Coal Co. v. Barclay Coal Co. 18 P. F. Smith 174. If the motives of the confederates-be to oppress, the means they use unlawful, or-the consequences to others injurious, their confederation will become a conspiracy: Id. 187.
    On a railroad, up to its capacity to accommodate, equality must exist at the same rates of transportation, and as far as possible in accommodation: The Cumberland Valley Railroad Company’s Appeal, 12 P. F. Smith 218; Twells v. Pennsylvania Railroad Co., 3 Am. Law Reg. (N. S.) 728; Sandford v. Railroad Co., 12 Harris 381.
    The least degree of concert or collusion between parties to an illegal transaction, makes the act of one the act of all; and the acts and declarations of one may be given in evidence to affect the others: Gibbs v. Neely, 7 Watts 305; Burns v. McCabe, 22 P. F. Smith 315; Confer v. McNeal, 24 Id. 112; 1 Greenl. on Ev., sect. 111; Bredin v. Bredin, 3 Barr 81.
    The discrimination under this combination in favor of refined oil, the product of crude transported to the Pittsburgh refineries via the Allegheny Valley Railroad, and against refined oil, the product of crude transported to these refineries via the Allegheny river, cannot be justified. It is condemned by the decisions of this court in the cases cited.
    The evidence also established indisputably that, in consequence of this combination between the defendant companies, and their united action in carrying out their system of unlawful discrimination, the plaintiffs, respectively, were seriously injured in their business. The disastrous effect upon the plaintiffs was direct and immediate.

      Hampton & Dalzell, for defendants in error.
    Authority to enter into arrangements and contracts with other connecting carriers, for the purpose of providing through transportation, is an incident of railroad corporations, unless withheld by the terms of their charters: Perkins v. P. S. & P. Railroad Co., 47 Me. 573 ; Old Colony Railroad Co. v. Evans, 6 Gray 25. And contracts of this kind, when made with a bona fide purpose to regulate traffic in a reasonable manner, are generally held good: 1 Redfield on Railw. 612; S. W. Railroad v. Redmond, 100 E. C. L. R. 674; Darling v. Boston and Worcester Railroad Co., 11 Allen 298; Gass v. N. Y., P. & B. Railroad Co., 99 Mass. 220. Contracts between railroad companies for division of fares and freights are legal: Sussex Railroad Co. v. Morris and Essex Railroad Co., 4 C. E. Green 13. The right of railroad corporations to divide through fares and freights on authorized lines, or to offer inducements by a reduction in rates to secure freights and travel over such lines, are contracts concerning their own authorized business, and not objectionable unless unconscionable: M. & E. Railroad Co. v. Sussex Railroad Co., 5 C. E. Green 543. Such contracts are not only not ultra vires, but, on the contrary, it is the duty o.f a railroad company to increase its business by all usual and customary means: Stewart v. Erie and Western Railroad Co., 17 Minn. 390.
    Contracts for through rates of freight and travel are not only usual and customary, but they are notoriously consistent with the railway policy of the whole country. They are its basis and the means whereby our railroads, instead of being merely state, have become national highways. Special rates may be made for special shippers, as a class, to secure business: Fitchburg Railroad Co. v. Gage et al., 12 Gray 399; Shipper v. Pennsylvania Railroad Co., 11 Wright 338; Hersh v. Northern Central Railway Co., 24 P. F. Smith 181.
    This arrangement was not oppressive to the public. It cheapened freights, and tended thus to build up the refining business of Pittsburgh. The clearest proof of its beneficial effect is to be found in the fact that every refiner in Pittsburgh availed himself of its terms. ‘ Instead of limiting the oil supply in the general market, it increased it. The defendants carried all the year round and without restriction as to quantity; the plaintiff could only carry during a portion of the year, and then only a limited quantity. The defendants are, therefore, within the test laid down by Tindal, C. J., in Horner v. Graves, 7 Bing. 735, cited by Agnew, C. J., in Morris Run Coal Co. v. Barclay Coal Co., 18 P. F. Smith 185. Declarations of one of two persons charged with combining.or conspiring to defraud another, are not evidence against the absent party until evidence of the combination for the purpose charged be given: Helser v. McGrath, 8 P. F. Smith 458. To make such declarations competent there must be primary evidence of a collusive combination for a common purpose: McDowell v. Rissel, 1 Wright 164; Scott v. Baker, Id. 330; Scott v. Heilager, 2 Harris 238.
    And evidence that each one of the alleged conspirators acted illegally, will not support the action without evidence that they conspired to do the illegal act: Newall v. Jenkins, 2 Casey 159 ; Gaunce v. Backhouse et al., 1 Wright 350.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

These two cases were argued together. They involve the same questions. The court below ordered a compulsory nonsuit in each case, and refused to take off the judgments.

They are actions on the case against the defendants for conspiracy and injury to the plaintiffs respectively, in their business. The latter were engaged in the transportation of crude oil, in boats and barges down the Allegheny river, from the oil regions of Pennsylvania to Pittsburgh. The Allegheny Valley Railroad Company was engaged in transporting it by rail. The crude oil was brought to Pittsburgh by both modes, principally for the purpose of being there refined, and then sent to the seaboard for market. Competition was thus created. The railroad company had some advantages over the bargemen. At some seasons of the year there was an insufficiency of water in the river, at others it was frozen. The railroad could carry at all times. At first the crude oil was carried in barrels. As the quantity largely increased, tanks were substituted. This made transportation by railroad more desirable, and gave it an additional advantage.

The cause of complaint is, that the Allegheny Valley Railroad Company entered into an arrangement with the Pennsylvania Railroad Company, the effect of which was to take from the plaintiffs that transportation of oil which they othei-wise would have obtained. It is not complained that the price of freight from Pittsburgh east was increased by this arrangement, nor that the public in any manner suffered thereby.

Each party had an undoubted right to enter into a just and fair arrangement with a corporation or association of men, whereby its business should be increased, although the effect of the arrangement may have been to take business from the other. Either party, with a view of increasing its business, may extend more favorable terms to all shippers, although others engaged in the same business may incidentally be injured thereby. The fact that the public patronize those lines of transportation which give the most favorable terms, constitutes no just ground of complaint. What then are the facts ? It is shown that each party carried crude oil from any point at which it was taken, to Pittsburgh and its vicinity, at one rate, without regard to the distance; and that refiners had a uniform through rate for refined oil to the seaboard via Allegheny Valley and Pennsylvania Railroads from any given point where the crude oil first reached the former road. The Allegheny Valley Road crosses the Western Pennsylvania Railroad at Allegheny Junction, and by means of the latter road connects with the main line of the Pennsylvania Railroad. In order to more successfully compete with the river transportation, the Allegheny Valley Road carried crude oil to the refinery at Pittsburgh, and its manufactured product to Allegheny Junction at one uniform rate, thus giving to all the refiners at Pittsburgh as favorable terms as if their refineries had been located at Allegheny Junction. They had one uniform rate on oil from the oil regions to the seaboard. We are unable to discover anything unjust of unfair in this. To deny this right to the Allegheny Valley Road would be an unwarranted interference with the management of its business, and would deprive the public of the benefit of the competition to which it is justly entitled.

Then as to the action of the Pennsylvania Railroad Company, in the transportation of refined oil from Pittsburgh east. It was carried over the road of each company. Each was entitled to and received its share of the money thus earned. The fact that it was first all paid to one and afterwards adjusted between them, gives the plaintiffs no right to complain. These two companies had the right either for their own convenience or for the convenience of the refiners and shippers to require the whole freight on refined oil to be paid to the one that first carried it. The right of connecting railroad corporations to make contracts for through rates, is incident to their powers unless prohibited by their charters. 1 Redf. on Railways, sec. 146 : Perkins v. P. S. and P. Railroad Co , 47 Maine 573; Sussex Railroad Co. v. Morris and Essex Railroad Co., 4 C. E. Green 13; M. & E. Railroad Co. v. Sussex Railroad Co., 5 Id. 543. In the present case the right was not prohibited. It was exercised in a just and reasonable manner. It was not unconscionable. The Pennsylvania Railroad Company carried refined oil at no different rate, whether it was the product of crude oil brought to Pittsburgh by rail or by water. The same rate was charged to each. The mode of receiving its pay was different. That carried by water paid in money only; that by rail partly in receipts showing money already paid. This was no rebate. It was no unjust discrimination. Neither company received a.ny share of the other’s earnings. Each received its own. \Ye see nothing unjust or unequitable in the arrangement proved on the part of either of the defendants. It is not a restraint on trade, as in Morris Coal Company v. Barclay Coal Company, 18 P. F. Smith 173; nor does it come within the principle condemned in Twells v. Penn. Railroad Co., 3 Am. Law Reg. (N. S.) 728. If the plaintiffs suffered thereby it is an incident often occurring to persons engaged in transportation, as new modes are adopted and reduced rates thereby established. Neither corporations nor individuals ought to be denied all reasonable benefits which flow from the active competition of trade.

Having the right to adopt rates lower than crude oil could be earned in barges, the fact that the president of the railroad company expressed an intention of driving all the business away from the barges, cannot change the case. His object was to secure freight for his road. The fact that he foresaw the result of his efforts in so doing, and also declared it, matters not. Neither he nor the company which he represented was thereby compelled to relax all just and reasonable methods to increase the business of the road. It is unnecessary to refer specifically to other matters discussed. In view of the whole evidence, and the questions of law arising thereon, the learned judge committed no error.

Judgment affirmed in each case.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Appeal of J. W. Christy et al.
    1. In a partnership bill the plaintiffs and defendants were members of an unincorporated association called the “ Concord Bank.” The prayers were for an account for contribution. One of defendants denied his liability to account, on the ground that he was not a member of the co-partnership. Held, that his liability was a question to be settled before the equities between the parties could be gone into.
    2. The plaintiffs alleged that they had become security for and been compelled to pay large sums on account of the partnership. To establish the liability of the partner who refused to contribute and ascertain the amount he was entitled to pay involved the adjustment of complicated accounts. Held, that the questions thus to be settled were not adapted to an ordinai-y jury trial, and that a resort to equity proceedings was proper.
    3. The reference of the case to the master was general. His report was only as to the liability of the defendant who refused to contribute. Held, that the proper practice would have been to have made a special reference to the master to report upon the preliminary question of the defendant’s liability as a partner, but as the master had done what he ought to have done, under a proper reference, this court will regard the order as amended.

      November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Common Pleas of Butler county: Of October and November Term 1876, No. 268. In Equity.
    Bill in equity filed by J. W. Christy, Robert Campbell, W. C. Glenn, H. C. Linn, J. C. Glenn, William Conway and W. H. Timblin against W. H. Timblin, AVilliam Conway, Robert Campbell, J. W. Christy, A. B. Rhodes, W. J. Breaden, R. J. Thompson, Samuel Russell, W. C. Glenn, J. C. Glenn, W. C. Bryson, H. C. Linn, David Morrison, A. M. Hutchion, W. W. Christie, Peter Grace, H. P. Conway, S. M. Kier, W. Wallace Perkins, E. M. Campbell, Yiola McElwain, Elenor Campbell, M. M. Say, T. B. Clark and J. N. Wick, to compel contribution by defendants to pay the losses and settle the partnership account of the firm, of which plaintiffs and defendants were members, the same being insolvent.
    The bill, inter alia, set forth:
    1st. That on or about the 5th of April 1873, the plaintiffs and defendants, above named, entered into a. co-partnership to carry on the business of banking, under the name, style and title of the “ Concord Savings Bank.”
    2d. That the partners above named, at a meeting held at their banking house in Greece City, agreed and determined that the capital stock of said bank should consist of one hundred- shares, each share to be $300, to be paid in from time to time to said bank. That all the foregoing plaintiffs and defendants subscribed for and became liable for shares in said bank, in different proportions, the number of H. P. Conway being eight.
    3d. That the said association or partnership was organized by the election of W. H. Timblin as truste.e and II. C. Linn, J. 0. Glenn, Robert Campbell, Wm. Conway, J. W. Christie, David Morrison, A. M. Hutchison,. W. H. Timlin, W. Wallace Perkins, W. W. Christie and W. C. Glenn as directors, on or about the 5th of April 1873, at a meeting regularly called and held at Greece City, at the banking house of the Concord Savings Bank. That the said board of directors was elected and organized with W. H. Timblin as president, II. C. Linn as vice-president, and J. C. Glenn, W. C. Glenn and David Morrison as discount committee. That it was agreed that W. H. Timblin, David Morrison and Dr. II. C. Linn, act as a committee to procure a cashier arid bookkeeper for said bank. That at the said meeting the aforementioned parties agreed to pay in one-fourth of the capital stock, and that the capital stock should be $30,000. That at the said meeting they agreed that they would commence the said business of banking on or about the 24th day of April 1873.
    4th. That the committee aforesaid, appointed, by and with the consent of the board of directors, J. N. Wick, cashier, and Henry Bredin, bookkeeper, and the officers above named took upon themselves the duties of th'eir respective offices and acted in that capacity until about the 1st day of September 1873, when the said bank, by resolution of the board of directors, was removed to the borough of Sunbury; and the cashier and bookkeeper, aforesaid, continued in said office until about the 1st of October 1873, when they resigned their respective offices, and J. C. Glenn as cashier carried bn the business of said bank until about the 27th day of November 1873, when the business was stopped and payment suspended for the want of funds.
    5th. That while the said partnership in the said general banking business was being carried on, losses were sustained by the said partnership to the amount of about $50,000, in the course of their business as bankers. That a very small amount of the capital stock, to wit, $6075, had actually been paid in, and that the said partnership has no available assets to pay said indebtedness.
    6th. That the plaintiffs, J. W. Christy, Robert Campbell, W. C. Glenn, H. C. Linn, J. C. Glenn, Wm. Conway and W. H. Timblin, borrowed money and have become individually responsible to the amount of $27,653.50, in order to pay the most urgent debts of the said partnership, and to relieve themselves and co-partners from judgments and executions thereon. That the amounts aforesaid were borrowed to pay depositors in said bank on the credit of the co-partners above named. Yet the defendants above named refuse and neglect to come in and contribute their share of the losses of the said co-partnership and deny their responsibility so to do.
    7th. That the co-partners above named are each of them able to contribute his legal share of the losses sustained as aforesaid while carrying on said business, except W. IT. Timblin, T. B. Clark, W. W. Christie, W. Wallace Perkins, S. M. Kier, J. N. Wick, R. J. Thompson, Viola McElwain, Elenor Campbell, and M. M. Say, who at present are believed to be insolvent and unable to contribute their shares of the losses aforesaid.
    Wherefore, your orators pray—
    1st. That a just and true account be taken of all transactions between the parties to this bill, as well as the items and amounts of indebtedness due from said partnership to the creditors of said firm; and generally, that an account be taken or stated between the partners aforesaid; also one. showing the indebtedness of the firm and the debts due said firm, and from and to whom they are due and owing.
    2d. That the court decree that the partners above named, viz: Wm. Conway, Robert Campbell, J. W. Christy, A. B. Rhodes, W. J. Breaden, Samuel Russell, W. C. Glenn, J. C. Glenn, W. C. Bryson, IT. C. Linn, David Morrison, A. M. Hutchison, Peter Grace, H. P. Conway and F. M. Campbell, who are responsible, be directed to contribute each according to the number of shares of the stock subscribed and held by them in said bank, a sum which in the aggregate will amount to the entire indebtedness of said co-partnership, and that the contribution shall be a pro rata of the entire indebtedness of said bank on the number of shares held by each responsible stock or shareholder.
    3d. That the court decree that each stockholder contribute pro rata on the number of shares of stock of said bank held by him, a sum of money which in the aggregate will amount to the entire indebtedness of said firm or partnership.
    4th. That the court direct the defendants who have refused before the filing of this bill to contribute their share of the losses of said partnership, to pay the costs of this proceeding.
    5th. To grant such other and further relief in the premises as to the court may seem proper.
    H. P. Conway, one of defendants, filed an answer, of which, the following is an abstract:
    1st. That to the best of his knowledge, information and belief, there was a co-partnership formed on or about the date mentioned between the plaintiffs and certain of the defendants named, to carry on the banking business as alleged, but denies that he became a member of said co-partnership at the date mentioned, or any other.
    2d.' That the partnership in said concern did agree on the amount of the capital stock, the number of shares and the value of each share, as alleged, but denies that he was one of said partners or had anything to do with the agreement, and that he subscribed and became liable for the payment of eight or any other number of shares of stock.
    3d. That the allegations may or may not be true as to the partnership, but denies that he was a member, or bound by the organization and election mentioned, or by fixing the amount of capital stock, and time they would commence the banking business.
    4tb. That he knows nothing about the matters alleged in paragraph 4 of plaintiffs’ bill, but believes that they are true, and alleges that the removal of said bank was unauthorized by the stockholders, and contrary to the rules and by-laws said to have been adopted by the co-partnership.
    5th. That the allegations contained in paragraph 5 of plaintiffs’ bill are true, but that he was not a partner in the business. That the business was entirely too general; was run principally by the plaintiffs, or some of them, as directors and officers in a very unskilful and profligate manner, without regard to rules or by-laws, or the rights of the stockholders or depositors. That the books of the concern are in the possession or under the control of the plaintiffs, or some of them, or of their counsel. And that they are able to furnish a complete statement of the indebtedness, the assets, whether available or not and the loss incurred. That the said losses were incurred by mismanagement of the directors a.nd officers, of whom the plaintiffs were a part, and did most of the business, by permitting loans and over drafts, in violation of the rules and by-laws of the partnership, &c.
    6th. That the plaintiffs did borrow money from the individuals mentioned as alleged, but denies that it was borrowed for or applied to the payment of depositors who deposited in said bank, especially denying his co-partnership, and that any deposits were made on his account, and alleging that the defendants did not relieve themselves or prevent the obtaining of judgments against them, and that the money was borrowed to pay obligations or deficiencies occasioned by neglect and fraudulent conduct of the directors and officers of said bank. And further that it is not true that all the defendants refuse to contribute to the losses of said co-partnership, or that he is legally liable to contribute. That several suits have been brought against him by the creditors of said co-partnership, in the Court of Common Pleas of Butler county, Pennsylvania, along with others as a member, for an amount in the aggregate of over eight thous- and dollars, and being in excess of his liability if he were liable for all the plaintiffs allege. That he has denied his partnership in said suits by affidavit, and that they are still pending.
    7th. That the allegations contained in paragraph 7 of plaintiffs' bill are true, but again denies his membership and liability to contribute to the alleged losses of said co-partnership. That the plaintiffs are nor entitled to the relief asked for against him, because they allege no assets in his hands, and allege no fraud nor contemplated fraud, in support of their prayer. That the plaintiffs have not shown themselves entitled to relief in the second prayer. That judgments are now of record in the Court of Common Pleas of Butler county, against the responsible partners in said concern, ■ which are liens on real estate for all or nearly all the indebtedness, ■and that a decree in equity would not make the money any more secure to the creditors.
    That a complete remedy Being available at law and already secured, the plaintiffs are not entitled to the decree asked in the fourth clause o-f their prayer for relief, but that plaintiffs should pay the costs.
    This defendant further alleges that certain of the plaintiffs herein named, to wit: J. W. Christy, Robert Campbell, W. C. Glenn, J. 0. Glenn, H. 0. Linn and William' Conway, did on or about the day of December 1874, file their petition in the District Court of the United States, for the Western District of Pennsylvania, at Pittsburgh, praying that themselves and the other defendants be adjudged bankrupts, alleged as members of the said co-partnership called the “Concord Savings Bank.” Whereupon the said court, granted a rule on this defendant, among others, to show cause why the prayer of said petition should not be granted, to which he filed his answer under oath, denying that he was a member of said co-partnership or in any way liable for any of its debts. That issue was joined on said rule and answer, which is still pending in said court.
    This defendant alleging that he is willing and able to pay all claims against him which are just, or for which he is adjudged liable, asks that the plaintiffs’ bill be dismissed and they be ordered to pay the costs.
    The case was referred to a master for the purposes stated in the prayers of the bill. Testimony was adduced before the master who made a report to which H. P. Conway filed, inter alia, the following exceptions:
    1st. The report is incomplete. The reference to the master was general, and included the whole case or none of it. The plaintiffs put in all the testimony they claimed to have upon the whole ca.se. The master has no authority to pass upon the question of fact, except as incident to the equities claimed in the bill without defendant’s consent.
    2d. The master should have reported explicitly upon the question raised before him on behalf of defendants, and in defendant’s answer as to the rights of plaintiffs to maintain their bill upon the law and facts before him; and should have reported, that plaintiffs are not entitled to a decree in their favor therein in any event, and that their bill should be dismissed.
    10th. Concluding that IT. P. Conway was a member of said partnership, and owned or took eight shares of stock therein, and became liable and is liable to contribute to pay the losses of the partnership ; and all the conclusions of the master upon the facts and law pertaining to such membership and liability of said defendant.
    11th. Not reporting that the creditors of the “ Concord Savings Bank” are not prosecuting this suit. That they have a full, complete and adequate remedy at law, for their claims against said partnership; and that, as between H. P. Conway and the plaintiffs, they are not entitled to any contribution from him in any event in this suit.
    12th. Recommending a decree in the form prescribed; and not reporting, that the necessary parties to enable the court to make a decree at all, have not all been brought into court; and not reporting, that plaintiffs are not entitled to a decree against defendant, and that their bill should be dismissed at their cost.
    The court, McJunkin, P. J., after argument, without filing any reasons therefor, sustained the exceptions, dismissed the bill and ordered plaintiffs to pay the. costs. From this decree they took this appeal.

      McCandless & Greer, for plaintiffs in error.
    The plaintiffs’ right to maintain their bill as members of the co-partnership known as the “ Concord Savings Bank,” is founded on two grounds: 1st. For an account and settlement of the affairs of the bank on the insolvency of the co-partnership; and, 2d. For contribution for moneys paid and advanced on account of the indebtedness of the firm, to a much larger amount than their respective proportions thereof. Either of which grounds, in our opinion, under the evidence and authorities, is sufficient to support the bill for the purpose of an account and settlement of the concern on the one hand, and contribution on the other. And in support of the bill on the first ground, we cite Story on Partnership, 6th ed., sect. 229, 282, 347, 361; 1 Story’s Eq. Jur., 10th ed., sects. 671, 672, 683; also Collyer v. Collyer, 2 Wright 257; Gloninger v. Hazard, 6 Id. 389; Tutton v. Addams, 9 Id. 67; Persch v. Quiggle, 7 Smith 247; Hedge’s and Horn’s Appeal, 13 Id. 273.
    In support of the bill on the second ground, we cite Story on Partnership, 6th ed., sect. 220, 521, 522; 1 Story’s Eq. Jur., 10th ed., sect. 492, 493, 496, 504; also 8 Harris 41.
    While it is true, that the reference to the master was general, yet it is not true that the plaintiffs submitted their whole case. The denial of partnership by H. P. Conway, one of the defendants, necessarily raised a preliminary question to be disposed of before proceeding to an account. To which question the plaintiffs’ testimony was principally directed, and upon which the master reported, finding the defendant a partner, and liable to account and contri bute; to which findings these exceptions were filed, and certified to the court by the master for decision. Here we contend, that the master was right in distinguishing the question of partnership from that of account, and it should have been passed on by the court as a separate and distinct question: Collyer v. Collyer, 2 Wright 257.

      Geo. A. & A. T. Black, for appellee.
    In Collyer v. Collyer, supra, it does not appear that there was any report of a master, except of the testimony taken before him ; no exceptions appear, and no opinion from which the court above was able to see the grounds for the dismissal of the bill. Here the exceptions are full and specific, and the decree sustains them, thereby plainly showing the points decided and the reasons therefor.
    If the articles of association were adopted and binding on defendant, an action at law will lie on them against him, because they contain a covenant for contribution: 1 Story’s Eq. Jur., sect. 661.
    The plaintiffs bring their bill in their own names and in their own rights, but the answer and proof show that they were directors : Morse on Banks and Banking 117, &c., 450, &c.; Story on Agency 199, &c.; Story on Partnership 159, &c.
   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

This was a partnership bill. The plaintiffs and defendants are respectively members of an unincorporated association called- the “Concord Savings Bank.” The prayers were for an account and for contribution. H. P. Conway, one of the defendants, by his answer denied his liability to account, for the reason that he was not a member of the co-partnership. The liability of the other defendants to account and contribution was not denied. The denial of the partnership by Conway, raised a preliminary question as to him which, under the authorities, it was necessary to settle before the equities between the parties could be gone into: Collyer v. Collyer, 2 Wright 257. The master accordingly proceeded to hear the case, and upon testimony which is entirely satisfactory, found the fact that H. P. Conway was a member of the partnership ; that he was liable to contribution, and recmomending a decree for an account. Upon exceptions filed to his report, the court below dismissed the bill.

This was error. The subject-matter of the bill was clearly within the jurisdiction of equity. It comes within the express terms of the Act of 16th June 1836, conferring equity powers upon the courts. See also Collyer v. Collyer, supra; Tutton v. Addams, 9 Wright 67 ; Hedge & Horn’s Appeal, 13 P. F. Smith 273. The point strongly pressed on behalf of Conway, that the plaintiffs had an adequate remedy at law, is not well taken. The questions to be settled, were not adapted to an ordinary jury trial. The plaintiffs allege, that they had become security for, and had been compelled to pay large sums on account of the partnership. To establish the liability, and ascertain the amount the defendant Conway would be entitled to contribute, necessarily involved the adjustment of complicated accounts. The flexible machinery of a court of equity, is peculiarly adapted to such proceedings, and has very generally driven out of use the old remedy by action of account render.

Objection was made, that the report was incomplete; that the reference to the master was general, and included the whole case. It is true the reference was general. This was a mistake, and probably an oversight. The proper practice would have been to have made a special reference to the master, to report upon the preliminary question of the defendant Conway’s liability as a partner. As the master has done just what he ought to have done under a proper reference, we may well regard the order as amended. The objection is purely technical, and the irregularity did no harm. Mere technicalities are not favored in equity, which regards substance rather than form.

The court below gave no reasons for dismissing the bill, and we are unable to see any.

The decree is reversed at the costs of the appellees; the bill is re-instated ; the decree reported by the master is approved ; and it is ordered that the record be remitted to the court below for the purpose of taking an account, and for such further proceedings as may be necessary.


text:
    Cummins versus Hurlbutt.
    1. To set aside a written instrument on the ground of fraud, the evidence thereof must be clear, precise and indisputable, and of that which occurred at the execution of the instrument.
    2. A jury should not be permitted to find fraud to impeach a settlement in writing on any fancied equity, or on vague, slight or uncertain evidence, although they might think it fairly and fully satisfied them.
    November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Beaver county: Of October and November Term 1878, No. 21.
    This was the petition of Charles D. Hurlbutt to open a judgment given by said Hurlbutt to Samuel P. Cummins. The court granted a rule on plaintiff in said judgment to show cause why it should not be opened, and afterwards made the rule absolute. The •defendant then pleaded “want of consideration and fraud.” The suit was before Stowe, P. J., of the Court of Common Pleas, No. 2, of Allegheny county. The following assignments of error and the facts set forth in the opinion of this court sufficiently state the case:
    1. The court erred in refusing the plaintiff’s eighth point: “That upon all the evidence in the case, the compromise agreement of September 30th 1870, is conclusive upon the defendant, and the verdict of the jury should be for the plaintiff.”
    2. The court erred in that part of its charge, which is in these words: “Now this agreement” (that of September 30th 1870) “ estops the defendant from setting up any fraud in the original agreement which he had discovered up to that time, and it is his duty to fully and fairly satisfy you that he was again imposed upon and defrauded by plaintiff in regard to this last agreement. Here the allegation is that the fraud consisted in representing and inducing the defendant to believe that the three feet vein was the one that had the great value in it, and was good for gas purposes. This is as emphatically denied by the plaintiff as it is insisted upon as being true by defendant. Here again the facts are for you. We can only say if it is not found by you to be true (and it is the duty of the defendant to fairly and fully satisfy you by the evidence that it is true) you should find for the plaintiff; but if it is true, then you should find for defendant to an extent, and deduct from plaintiff’s claim to an amount equal to the difference between the value of the property as it actually was at the time of the compromise and as it would have been if it had been as represented.”

      S. B. Wilson and Frank Wilson, for plaintiff in error.
    We deny that there was any fraud on the part of the plaintiff in the original contract. It was simply a trade of lands in which, as is usual, each party praised the qualities and overestimated the value of his own property. Moreover, it was consummated after a thorough examination by the defendant. But inasmuch as the defendant’s testimony in regard to that transaction was to some extent corroborated by that of his wife and son, it was properly submitted to the jury. But the allegation of fraud in the procurement of the compromise agreement, of September 30th 1870, stands upon a very different footing. In regard to that transaction the defendant relied solely upon his own testimony, which was emphatically contradicted by the plaintiff, and was not corroborated by any circumstances in the case. It should, therefore, we think, have been withdrawn from the jury or submitted in very different language from that contained in the charge.
    But even if the testimony of the defendant had been sustained by other evidence, did it furnish any sufficient ground for setting aside the written contract? The substance of his complaint about the compromise, stated in his own words, was this: “The basis of the compromise was that he (the plaintiff) said the three feet vein was the one the money was in, and I believed it.” This at most was but the expression of an opinion, as to the correctness of which the parties had equal means of information. Where the means of knowledge are equally accessible to both parties, each must judge for himself: Kintzing v. McElrath, 5 Barr 467. It is error te submit a question of fraud to the jury upon slight parol evidence to reform a written instrument. The evidence of fraud must be clear, precise and indubitable, otherwise it should be withdrawn from the jury: Stine v. Sherk, 1 W. & S. 195; Irwin v. Shoemaker, 8 Id. 75; Dean v. Fuller, 4 Wright 474. Since parties are allowed to testify in their own behalf, it has become still more necessary that this important rule should be strictly adhered to and enforced: Pennsylvania Railroad Co. v. Shay, 1 Norris 198.

      J. J. Wiehliam and JS. B. Daugherty, for defendant in error.
    It is very seldom that perfectly clear proof can be produced of a a fraud. In civil cases one party is as much entitled as the other to any doubt which may arise on the evidence. If the defendant in this case produced such evidence of the fact he alleged against the plaintiff’s paper, as the jury could reasonably and safely rest their coneciences upon, it was enough: Abbey v. Dewey, 1 Casey 413.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

We cannot say the court erred in refusing to affirm plaintiff’s eighth point. The first specification of error is not sustained. The second is to tlie charge of the court, stating the certainty of the evidence necessary to impeach a •written instrument for fraud.

In November 1869, defendant purchased of the plaintiff, certain lands, on which a mine of coal was opened, situate in Beaver county. In payment thereof, he conveyed to plaintiff some lands in Missouri, and others in Delaware; and gave his bond with warrant of attorney, to confess judgment, conditioned for the payment of §33,648.40, payable in instalments. Judgment was entered thereon. The vein which had been worked, was visited and examined by the defendant before he purchased. He took possession under his purchase, and mined and shipped coal to market. He had difficulty in selling it. The quality was not as good as he claimed it had been represented by the plaintiff. He became dissatisfied, complained to the plaintiff and urged relief. On the 19th July 1870, he wrote plaintiff urging him to do “justice voluntarily ” to avoid “making a legal process necessary.” Interviews followed between the parties. The negotiation finally resulted in a compromise and settlement, made in writing, signed and sealed by the parties, on the 30th September following. By the terms thereof, the plaintiff gave back to the defendant the lands in Missouri, and agreed to receipt and satisfy five several payments on the judgment, amounting in the aggregate to $13,045. In consideration of which, the writing averred, the defendant “waives all objection to the payment of the remaining several payments on said bond, at maturity.” The five instalments were receipted on the judgment in pursuance of agreement. In December 1875, defendant applied to court to have the judgment opened. In June following, the rule to open was made absolute. The defendant pleaded “ want of consideration and fraud.” The object was to avoid the payment of the remaining instalments. This writ of error is to the judgment entered on the trial of that issue.

The defendant attacked this deed of settlement and compromise, on the ground of alleged fraud. While this written instrument presents no legal bar against being impeached for fraud in the original purchase, yet this should not be done on doubtful or uncertain evidence. This agreement was executed about ten months after the defendant had received a deed and taken possession of the land. He had worked one of the mines, and appears to have had ample time and sufficient opportunity to inform himself in regard to the character and value of his purchase. With all this actual or presumed knowledge, and to avoid making “ a legal process necessary,” he executed the instrument which he now seeks to impeach. He accepted and retains the land in Missouri, restored to him, and the benefit of the satisfaction of $13,045, on the judgment. He keeps all which the writing avers to be the consideration for his waiving all objection to the payment of the residue of the judgment, and now seeks to avoid the payment of that residue. His present defence then starts with a presumption against his right to make this further defence. The presumed conclusive effect of this writing, is sought to be overthrown by the evidence of the defendant, that he did not at the time of its execution accuse the plaintiff of fraud, nor think he had intentionally misrepresented in regard to the coal. It is, therefore contended, that the compromise was not made under any allegations of fraud, and consequently, no such question, was settled. On the other hand, the plaintiff testifies, that before the compromise, the defendant did charge him with fraud, and with having cheated and deceived him. Two other witnesses corroborate and sustain the plaintiff. The latter further testified, that the whole basis of the compromise was to avoid the law, and that they settled all matters. If the question of fraud in the sale was compromised and settled, it is conceded that it cannot again be set up by the defendant. In view of the undoubted fact, that the object of the compromise was to settle a controversy in regard to the plaintiff’s representations on a sale of the land, and that it resulted in a specific ratification of the part of the judgment now in dispute, we think the charge of the court was inadequate. It was hardly sufficient to say, the defendant should fairly and fully satisfy them of the fraud alleged by him. Under the unquestioned circumstances of this case, the jury should not be permitted to find fraud to impeach the written settlement, on any fancied equity, nor on vague, slight or uncertain evidence, although they might think it fairly and fully satisfied them. The evidence of fraud should be clear, precise and indubitable, and of that which occurred at the execution of the instrument. Evidence less than this, is insufficient to justify setting it aside for fraud : Stine v. Sherk, 1 W. & S. 195; Irwin v. Shoemaker, 8 Id. 75. In so far as the part of the charge covered by the second specification, is in conflict with this opinion, the assignment is sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Messimer's Appeal.
    Where a bill and answer in an equity suit simply present the ordinary case of property claimed by one party in possession of another party, it is a mere ejectment bill, and there is nothing to give a court of equity jurisdiction.
    November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1876, No. 234. In Equity.
    Bill in equity filed by W. E. Messimer and D. C. Backus, partners, as Messimer & Backus, against P. A. Templeton, J. Y. Foster and William Templeton.’
    The following opinion of Bredin, P. J., sufficiently states the cáse:
    “ The plaintiffs’ hill sets forth nothing that-brings his case within the equity jurisdiction of the court.
    “ His bill alleges: That Roland Island and A. H. Williams were owners of the undivided one-fourth of a certain lease for oil purposes, and of the engine and other fixtures necessary to a pumping-.well on said lease. That plaintiffs by virtue of a sheriff’s sale became the owners of said interest, but that defendants who are in possession of said lease and well refuse to recognise plaintiffs’ right or account to them for their share of the profits of said well, &c.
    “ Wherefore they pray:
    “ That defendants be restrained by injunction from selling any of said property. And ordered to account to them for oil produced since their purchase at sheriff’s sale. And also pray for a receiver to take charge of said well, and for costs.
    “ This bill could have been safely demurred to for -want of jurisdiction.
    “ The defendants in their answer admit that plaintiffs became the owners of the undivided eighth belonging to Island, but claim that Williams’s eighth had' before sheriff’s sale been purchased by one of defendants, and belonged to said William Templeton, and they aver their readiness to account for the eighth of the proceeds of the well, and pray that plaintiffs’ bill be dismissed, and for their costs.
    “ The answer does not aid the bill or supply any of its deficiencies. The case presented on bill and answer is simply the ordinary case of property claimed by one party, plaintiff, in the possession of another party, defendant. The parties stand in no relation to each other that would give us jurisdiction, and there is no complication of accounts or other ground of equitable relief. The bill must therefore be dismissed.
    “And now, to wit: July 20th 1876, after hearing and argument on exceptions to the report of the master, the. court dismiss plaintiffs’ bill for want of jurisdiction, and direct the "costs, except the costs of defendants’ witnesses, be paid by the plaintiffs.”
    The plaintiffs took this writ, and alleged that the court erred:
    1. In.not decreeing Williams’s sale and Templeton’s purchase fraudulent and void as to the plaintiffs. 2. In not decreeing that the plaintiffs took title to the whole undivided one-fourth owned by Island and Williams in said well, &c., by their purchase at sheriff’s sale. 3. In not decreeing that P. A. Templeton and J. Y. Foster account to the plaintiffs. 4. In dismissing the plaintiffs’ bill.

      Thompson & Scott, for appellants.
    For the purpose of enforcing their rights, and compelling their partnei’s to account to them for their portion of the proceeds or profits of said partnership, the remedy was either by an action of account render or by bill'^in equity. Ejectment would not have been a proper remedy, neither could it have been maintained; the possession of P. A. Templeton and J. Y. Foster, their tenants in common and partners, was the possession of the plaintiff; neither one was entitled to maintain ejectment against the other for any purpose. It was with a view of compelling P. A. Templeton and J. Y. Foster to account for and pay over to the plaintiffs their share of the profits this bill was filed, and not for the possession of the well or leasehold.

      W. D. Brandon, for appellees.
    The only question to be decided here is, whether the court below erred in dismissing the plaintiffs’ bill for the reason given. The plaintiffs’ complaint is, “that the defendants refuse to recognise their claim and title” to the undivided one-fourth interest in the property, and consequently do not account to them for the proceeds. The whole testimony before the master relates to title, not a word about the amount of the production, proceeds or expenses. The question of account or other equitable relief was not raised or heard of after the filing of plaintiffs’ bill and appointment of a reqeiver, of which no record even seems to exist. The master’s report deals only with the question of title, and his chief error was in not dismissing the plaintiffs’ bill as prayed for by defendants, because to sustain it he must decree the title to be in the plaintiffs. It is then properly a question of title. There are no mutual, disputed or complicated accounts, no discovery sought, no ground whatever for equitable relief.
    The remedy of the plaintiffs was by ejectment: Gloninger v. Hazard, 6 Wright 389; North Pennsylvania Coal Co. v. Snowden, 6 Id. 488; Rhea v. Forsythe, 1 Id. 503; Mammoth Vein Coal Co.’s Appeal, 4 P. F. Smith 183. The simple denial by the co-tenants in possession, of the plaintiffs’ right and title on demand made, is conclusive against jurisdiction until the right has been established at law, and is sufficient to warrant his ejectment. Cases above cited; also Law v. Patterson, 1 W. & S. 190; McMahan v. McMahan, 1 Harris 376. [See succeeding case, Long’s Appeal, post, p. 171. — Rep.]
   The judgment of the Supreme Court was entered November 28th 1879,

Per Curiam.

We agree entirely in the opinion of Judge Bredin that, “the case presented on bill and answer is simply the ordinary case of property claimed by one party, plaintiff, in the possession of another party, defendant.” It is a mere ejectment bill, and there is nothing to give a court of equity jurisdiction.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Gordon

text:
    Mary Ann Long's Appeal.
    1. A bill in equity prayed “ that the ownership, possession, care and control of said leaseholds, the profits therefrom and the products thereof, be decreed to plaintiff, to the extent of his purchase of the interest of L. therein, and that the possession thereof be surrendered to plaintiff, and the defendants be restrained and enjoined from in any way interfering with or disturbing the same.” Held, that this was an ejectment bill, and should be dismissed.
    2. The parties to said controversy agreed that in the equity case between the parties and two ejectment suits between the same parties, by consent of counsel, the court should decree an issue to supersede and take the place of the ejectment cases, the determination of said issue to decide the issues of fact, raised in the bill of equity, as to the title of said leaseholds, the costs of the bill in equity to follow the verdict in the issue ordered. Held, that this submission was binding on the parties, and the verdict of the jury was conclusive.
    November 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1877, No. 237. In Equity.
    Bill in equity, filed by R. L. Brown against George S. Long, Mary Ann Long, his wife, F. Prentice, J. B. Barbour and S. M. Wheeler, associates, as the Relief Pipe Line.
    The bill was filed on the 13th of January 1875.
    The subjects of the bill were two leasehold estates or oil rights in Fairview township, Butler county, one of two and a half acres, known as “ the Jamison lease,” and the other of five acres, known as “the McDermott lease;” two wells (one on each lot), and the fixtures, machinery and tools of or with them, and the oil from them.
    Brown, the plaintiff, with Martin, “Brown & Martin,” had a judgment against George S. Long, in the Common Pleas of Armstrong ; and, upon a testatum fieri facias from it, supposed interests of Long in these subjects were sold to him, on 'the 27th of August 1874. And he alleged, in his bill, that, at that time, Long owned, and he had acquired by this sale, an undivided half of such of these subjects as were of and o'n the Jamison leasehold, and the same interest in such of them as were of and on the McDermott leasehold : and that the other half interests were owned by the other defendants, Prentice, Barbour and Wheeler, as the Relief Pipe Line Company.
    The plaintiff further alleged in his bill, that Long and Mrs. Long had conspired to defraud him of the interests so acquired by him, and that, in the furtherance of this conspiracy, Mrs. Long had claimed, and was claiming them, as her separate property: and had denied that Long had any interest in any of these subjects at the time of the sales to the plaintiff; and that, in consequence of her claim and denial, the other defendants refused to recognise his claim.-
    The bill had nine prayers. The 7th was for a preliminary injunction to restrain the other defendants from recognising the claims of Mrs. Long, and her and Long from enjoying the subjects. And the 3d was that all the defendants be restrained from setting up Mrs. Long’s claims. The 8th was the general one — for further relief; and the 9th was for costs. The substance of all the other prayers was, that the interests claimed by the plaintiff be decreed to him. The prayer for a prelimitary injunction was refused.
    Mrs. Long’s answers were filed the 25th of February 1875. The material substance of them was, that Long never had any estate or interest in any of the subjects of the bill, except as her husband; that the plaintiff acquired nothing by the sheriff sales referred to, and that she and Long had not conspired as alleged. That she obtained the Jamison lease from the administrators of the estate of Jamison, for herself, some time before the first day of May 1874; and had on that day assigned a half interest in it to S. M. Wheeler, and that he had assigned interests to Prentice and Barbour, who, with him, constituted the Relief Pipe Lino Company, or were members of it. And that she and they had obtained the McDermott lease in the spring of 1874, for herself and themselves.
    The other defendants answered, that they had contracted with Mrs. Long as stated by her in her answers: and that, so far as they knew, she owned the interests in the subjects claimed by her. The court appointed an examiner and master, and much oral and documentary evidence was taken and laid before him. He heard the counsel of the parties upon the question whether the case was within the equitable jurisdiction of the court as well as upon the facts, and on the 13th of October 1876, presented a report to the court wherein, upon the subject of jurisdiction, he, inter alia, said:
    “By his own bill the plaintiff admits that the question of title is to be solved before any of the relief prayed for can be granted, and aided as it is by the answer of Prentice, Barbour & Co., if that question were solved for him there would be no other relief needed. In his prayer fora decree of the court vesting-in him the “ownership, possession, care and control” of the property in dispute, he certainly asked for something that a court of equity. in this case, conld not give. To establish his own title to this property, to break down and overthrow the title of Mary A. Long, and to compel the other owners of the property, Prentice, Barbour & Co., or the Relief Pipe Line, to acknorvledge his title, and admit him to a joint possession and control, his appropriate remedy is by ejectment at law : Gloninger et al. v. Hazard, 6 Wright 391; North Pennsylvania Coal Co. v. Snowden, Id. 448. And where, as in this case, it is purely a question of title, it is his only remedy, for it is to be observed that there is no complication of accounts here. The defendants, Prentice, Barbour & Co., or the Relief Pipe Line, are ready and willing to account for the full production, and pay over half the profits of the wells, subject to the agreement, for the payment of debts for labor and drilling, whenever it is legally determined to whom and with whom they should so account. Neither does the plaintiff, in his bill, allege that either Prentice, Barbour & Co., or the Relief Pipe Line Co.', who are the recipients of the whole production, are, or are likely to become, insolvent; nor does the testimony disclose any cause for alarm on this ground. All these inquiries have been stripped from the case, and there is purely the question of ownership in it. It was long ago held that ejectment at law was almost the only form to try title in this state (Morris’s Lessee v. Vanderen, 1 Dali. 67), and whatever the exception in the mind of the court, at the time, may have been, it is certain that a bill in equity for that purpose alone was never sustained. It may be otherwise -where the question of title is interwoven with other important questions purely equitable, on the solution of which a court of equity only could render adequate relief. It has also been held that a simple denial by one tenant in common of a co-tenant’s title or right to participate in the profits after demand made, is sufficient to enable the latter to maintain an action of ejectment: Law v. Patterson, 1 W. & S. 184; McMahan v. McMahan, 1 Harris 376. And this, as shown in the cases above cited, is a plain and adequate remedy for one tenant in common against his co-tenant. In this case, had the plaintiff’s bill been demurred to on this ground alone, it would certainly have been dismissed by the court, as the plaintiff not only admits such denial but makes that the gravamen of his complaint. On his own statement of facts he defeats the remedy he has chosen.”
    The master recommended that the costs should be decreed against Mrs. Long, because, in his opinion, she had been remiss in objecting to the exercise of the equitable jurisdiction of the court. Mrs. Long excepted as to these costs, and the plaintiff as to the jurisdiction. The court, Bredin, P. J., sustained this latter exception in an opinion, inter alia, saying:
    “ If the claim set up by G-eorge S. Long and his wife, is a fraudulent claim, and her title void as to the creditors of George S. Long, then equity has jurisdiction to ferret out and expose the fraud, and set aside the fraudulent conveyance, agreement or' other act whatever, which gives Mrs. Long the apparent ownership in the property. There is perhaps no mode of fraudulent concealment of a debtor’s property so often resorted to as to hold the title to property in the wife’s name. It would be strange, indeed, if the jurisdiction of equity in case of fraud, could not be invoked in such cases.
    “ The plaintiff’s bill may be defective in not setting these matter’s out plainly and specifically, as they ought to have been set out, but after an examiner and master has been appointed, by consent, and the real facts at issue freely gone into, by both parties, it is too late to ask to have the bill dismissed, where the defect is not in the case itself, but in the statement of it merely.
    “ Whether we can give plaintiff all the relief he asks, is not maintained. The court can give him substantially what he asks. If it holds the title of Mrs. Long to be fraudulent against the creditors, and compels Barbour & Co. to account to her, the possession of the house on the leasehold is but a small matter comparatively, and the decision of the questions at issue here would certainly conclude Mrs. Long from setting up title thereto.
    “We think, since the new constitution authorizing parties to waive trial by jury, a greater effect should be given to parties consenting to appointment of a master than heretofore. For these reasons exceptions to the master’s report sustained, and the report re-committed to the master to proceed according to law.”
    The master’s report was filed on October 3d 1876, and the above opinion filed on January 15th 1877. On September 26th 1876, Brown brought two actions of ejectment against all the defendants named in the bill, one for the McDermott leasehold and the other for the Jamison.
    To each of these actions there was an appearance for Mrs. Long, and the plea of “ not guilty” entered. They were at issue, and were set down for trial at January Term 1877, by the plaintiff, and were on the trial list for that term.
    These three cases — this bill in equity and the two ejectments mentioned, were consolidated, in open court, by the parties, on the 15th of January 1877, upon the reversal of the master’s report. The record of their consolidation is in these words:
    “ R. L. Brown v. George S. Long and wife, and others.
    “In the equity case between these parties, and the two ejectment cases, between same parties, by consent of counsel, the court direct an issue between R. L. Brown, as plaintiff, and G. S. Long and wife; defendants, to supersede and take the place of the ejectment cases for trial next week, and to be for trial next week : in which issue plaintiff shall allege that the undivided one-half of the leaseholds described in said bill, and writs of ejectment was at the time of his purchase thereof at sheriff’s sale as the property of George S. Long, owned by said George S. Long, and not by his wife, Mary Ann Long ; and that the title thereto, held in the name of Mary Ann Long, was fraudulent and void as to the creditors of George S. Long, being held in her name with intent to delay, defraud and hinder the creditors of George S. Long. And defendants shall deny said allegations of plaintiff, and aver that said property was owned by her as her separate estate, and that said George S. Long, her husband, had no interest therein. The determination of said issue to decide the issues of fact raised in the bill of equity as to the title of said leaseholds; and the costs of the bill to follow the verdict in the issue now ordered.
    By the Court.
    January 15th 1877.”
    The cases thus consolidated were tried at April term 1877. The testimony taken before the master was read as depositions, and some of the same witnesses and others were examined before the jury.
    On April 28th 1877, the jury rendered a verdict for defendants. On July 11th 1877, the plaintiff moved the court “to set aside and strike out the verdict of the jury, and if necessary to the merits of the cause to reform the order for the issue nunc fro tunc, so that the final decree may be upon the merits of the cause.” In September 1877, the court, after argument, filed an opinion, wherein they, inter alia, said:
    “ In this case the master and examiner reported (without passing on the testimony) that the case was not within the equity jurisdiction of the court, and that George S. Long and wife should pay the costs. The court reversed the master’s decision as to the jurisdiction, and discharged a rule taken by him on the Longs to pay his fee. The argument and proceeding under the rule, led to some ill feeling. When, therefore, defendants objected to a reference back to the same master, we felt it would be indelicate to act under the circumstances. To refer the case to a master who had not heard or seen the witnesses examined, was objectionable; while to retake the testimony, would be very expensive and the cause of considerable delay. Under these circumstances, we suggested an issue to a jury, proposing that issue to be substituted for and take the place on the trial list of an action of ejectment for the leaseholds in dispute, then pending, and for trial in a few days. All parties represented to us, that owing to the manner in which the production of the wells was disposed of, a speedy decision was very important to all concerned. The suggestion of the court was agreed to, and the order for the issue drawn up by the court. We had no intimation that any other or greater effect would be given to the verdict of the jury, than in any other issue directed from the equity side of the court, until after the motion for a new trial was disposed of; and on the argument on the bill itself, when it was, for the first time, contended that the verdict was conclusive on us.
    “ We can not so consider it, but hold it to be our duty to examine the testimony submitted to the jury; and while giving due weight to the verdict on all disputed facts, to decide whether the verdict is fairly supported by the evidence, and to decree accordingly.”
    The court then proceeded to review the testimony, and being of the opinion, that the evidence did not support the verdict, made the following decree:
    And now, to wit: September — 1877. After hearing and argument we do order and decree :
    1st. That E. M. Prentice, J. Barbour and S. M. Wheeler, partners, as the Relief Pipe Line, be, and are hereby restrained and enjoined from accounting with or paying to George S. Long or Mary A. Long, the products or profits heretofore or hereafter realized from the wells and leaseholds referred to in plaintiff’s bill, or any part thereof.
    2d. That said P. Prentice. J. Barbour and S. M. Wheeler, partners as Prentice, Barbour & Co., and the Relief Pipe Line Company, be, and are hereby ordered and required to account for and to pay over to the plaintiff, the one-half of the net profits or products of the wells and leaseholds referred to in plaintiff’s bill.
    3d. That George S. Long and Mary Ann Long, his wife, be, and are hereby restrained and enjoined from receiving any part of the products or profits of, or property on, the leasehold referred to in plaintiff’s bill, and from interfering with the plaintiff, R. L. Brown, in the use and possession thereof.
    4th. That George S. Long and Mary Ann, his wife, pay the costs of this proceeding.”
    The defendants took this writ and alleged, that the court erred:
    1. In sustaining the plaintiff’s fourth exception to the report of the master, which exception was :
    That “ the master erred in his conclusion of law — that the plaintiff had an adequate remedy at law, and that equity had no jurisdiction.”
    2. In sustaining the plaintiff’s fifth exception to the report of the master, which exception was:
    That “ the master erred in recommending a decree dismissing the bill.”
    3. In reversing the report of the master, and holding the complaints of the bill proper subjects of his equitable jurisdiction.
    4. In not confirming the report of the master, except as regards costs and dismissing the bill, and decreeing all the costs against the plaintiff.

      5. In not sustaining the defendants’ first exception to the report of the master, which exception was:
    That “the learned master erred in recommending that these defendants should be decreed to pay the costs, or any costs in this proceeding; because such a decree would be an exercise of jurisdiction, and, as the learned master has rightly found, this court has no jurisdiction in equity of the case presented by the bill and answers.”
    6. In not sustaining the defendants’ second exception to the report of the master, which exception was:
    “And the master erred in recommending that any costs be imposed upon George S. Long, he not being a party, except by the form of the plaintiff’s bill.”
    7. In not dismissing the bill upon the verdict of the jury, and decreeing the costs against the plaintiff
    And in making the foregoing decree

      Edw. M. Bredin, McClandless Greer and Kennedy Marshall, for appellants.
    The object of the submission was not the loose opinion of a jury, but a conclusive verdict. It was the act of the parties; they consented to the submission. The true reading of the record of the submission is, that although it was entered in equity, that case was not the principal but the ejectments were; and that they were to be tried, -and the equity case was to depend on the verdict.
    The bill was an ejectment bill. The plaintiff alleged that the defendants were in possession of lands, and things connected with them, in all which he owned interests, through Long; and from which they excluded him. He admitted himself out of possession and enjoyment; and that his title or right to either was denied by the defendants. And he prayed to be decreed possession and enjoyment; and that Long and Mrs. Long should be debarred from both. These allegations were proper subjects of ejectment; and these ends were attainable by that remedy, and its incidents, a declaration for mesne profits, and a writ of estrepement. And the decrees are for what he could have so recovered and secured.
    Why does the allegation of fraud bring his case within the equitable jurisdiction of the court ? The ultimate question is, whether the title was in Long when the plaintiff purchased ? Presumptively that is a question for a court of law; and it is not seen why the nature of the evidence or facts upon which it depends, renders it a question for a court of equity. Fraud, except by trustees, partners, and the like, is not peculiarly cognisable in equity. Mrs. Long stood in no such relation to the plaintiff.
    But the plaintiff alleges, in his bill, that Long stood in such relation to Prentice, Barbour and Wheeler, as regards the property in dispute, at the time he purchased; that he has succeeded to Long’s rights; and that Long, through the fraudulent agency of Mrs. Long, was still enjoying them. Suppose the fraudulent agency of Mrs. Long had not been alleged, and the allegation was merely that Long was still enjoying, and that was admitted — the question would then be, whether Long’s interest had passed to the plaintiff ; abstractly, whether the interest of one of two common owners remained in him, or had become a stranger’s. Would the stranger’3 remedy be at law, or in equity ? We see no reason to doubt-that it would be at law; and the presumption is, that it would; and, if it would, why is it in equity because of the alleged fraud of Long and Mrs. Long? That allegation does not change the question. It still is, whether Long owned as the plaintiff alleges. The allegation of fraud is but collateral.

      Thompson Scott, Creorge. W. Fleeger and F. S. Grolden, for appellees.
    Equity has jurisdiction. The plaintiff alleges that the claim of Mary A. Long and George S. Long, that the property was the property of Mary A. Long, was fraudulent and intended to cheat and defraud the creditors of said George S. Long. The bill prays an account. R. L. Brown having succeeded to the rights of George S. Long, was entitled to an account. George S. Long, being the owner of one-half, and Prentice, Barbour & Co. of the other, there was a quasi-partnership, and equity would have jurisdiction. The defendants answered on the merits, raised no question as to jurisdiction, agreed to the appointment of a master, and took their testimony before him. They are, therefore, too late in raising the question of jurisdiction: Bank of Kentucky v. Schuylkill Bank, 1 Parsons 181; Brightly’s Eq., sect. 723.
    So also a court of equity has power to try all questions of fact arising in a cause, without granting an issue or reference to a jury: McCallum v. Germantown Water Co., 4 P. F. Smith 40. Although there may be a remedy at law, this of itself does not oust the control of chancery: Wesley Church v. Moore, 10 Barr 274; Kirkpatrick v. McDonald, 1 Jones 387 ; Finlay v. Aiken, 1 Grant 83 ; Skelton v. Wester, Brightly’s Rep. 234; Bank v. Adams, 1 Parsons 541; Watson v. Sutherland, 5 Wall. 78; Wilhelm’s Appeal, 29 P. F. Smith 121; Porterfield & Treat’s Appeal, 27 Id. 221.
    Moreover, the leases to Mrs. Long in the present ease, were not for the land itself, but for the exclusive privilege of boring and mining for oil; in other words, a license not applying to the surface, but to the minerals; very much like the lease in Funk v. Haldeman, 3 P. F. Smith 229, and in Union Petroleum’ Co. v. Blivens Petroleum Co., 22 Id. 173, in both of which cases it was held, ejectment would not lie; and hence the present case, we think, is upon that ground peculiarly within the province of equity. And again, it is worthy of note, that Brown, the plaintiff, became the purchaser of an undivided interest with Prentice, Barbour & Co., whether a partnership or a tenancy in common, it is not necessary to determine, for in either event the remedj' would be in equity and not at law.
    In drawing the issue the court mentioned these two ejectment suits, but only for the purpose of showing, that the issue was to take their place on the trial list. It was understood to be only an issue from the equity case. The ejectment suits had nothing to do with the trial of this issue.
    The verdict of the jury is merely advisory, and may be, indeed should be, disregarded by the chancellor, whenever it fails to satisfy his conscience that he can make that as his own declaration of fact, which the jury have made theirs: Baker v. Williamson, 2 Barr 116 ; Commonwealth v. The Judges, 4 Id. 303; Johns v. Erb, 5 Id. 237; Brawdy v. Brawdy, 7 Id. 159; Moore v. Small, 7 Harris 467; Scheetz’s Appeal, 11 Casey 94; Dale v. Roosevelt, 6 Johns. 256. [See Messimer’s Appeal, ante, p. 168. — Rep.]
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

The master was undoubtedly right when he pronounced this an ejectment bill and recommended its dismissal. The principal prayer, the one on which all the rest depend, is the fourth, which is as follows: “That the ownership, possession, care and control of said leaseholds, the profits therefrom and the products thereof, be decreed to the plaintiff, to the extent of his purchase of the interest of the said G-eorge S. Long therein, and that the possession thereof be surrendered to him, and that the defendants be restrained and enjoined from in any way interfering with or disturbing the same.” The plaintiff thus requires the court to determine the title to these leaseholds in his favor, and to put him in possession thereof. This, however, is what is ordinarily accomplished by an action of ejectment followed by a writ of habere facias possessionem. This, then, as is said in the case of the North Pennsylvania Coal Co. v. Snowden, 6 Wright 488, is “what is sometimes called an ejectment bill, and is demurrable, and would be, even though it had charged that the defendants had got the title deeds, and had mixed boundaries as well as prayed for a discovery, possession and account.” But the account prayed for in the bill under consideration, is but incidental to, and dependent upon the determination of title; the title must first be settled in favor of the plaintiff, or he can have no account. There is no doubt, as was held in Wilhelm’s Appeal, 29 P. F. Smith 120, but that, where an account is the primary subject of the bill (as between tenants in common), title, incidentally occurring, may b.e disposed of. But even in such case, a chancellor will not interfere if the complainant’s title be denied until he has established it at law: Coal Co. v. Snowden, supra. It is true, the complaint is that Mrs. Long obtained her title by fraud upon the creditors of her husband; but what of that ? The plaintiff is seeking to establish his own title, which is disputed and denied; her title may be worthless, but she has possession, and until he proves, by an action at law, that he has the right to that possesion, by virtue of a good title, she cannot be disturbed.

But the plaintiff himself does not seem to have relied altogether upon his bill, for he brought two actions of ejectment; one for the McDermott and the other for the Jamison lease. So, by the submission, it would appear that the determination of these suits was regarded as of importance. But upon this branch of the case it is unnecessary for us to dwell, for the submission itself is the material point of this controversy, and, though the court held differently, the contention was in fact settled by the verdict. The terms of that submission are as follows : “ In the equity case between these parties, and the two ejectment cases between the same parties, by consent of counsel, the court direct an issue between R. L. Brown, as plaintiff, and George S. Long and wife, defendants, to supersede and take the place of the ejectment cases, for trial next week, and to be for trial next week; in which issue plaintiff shall allege that the undivided half of the leaseholds, described in said bill, and writs of ejectment, was at the time of his purchase thereof, at sheriff’s sale as the property of George S. Long, owned by said George S. Long and not by his wife, Mary Ann Long; and that the title thereto, held in the name of Mary Ann Long, was fraudulent and void as to the creditors of George S. Long, being held in her name with intent to delay, defraud and hinder the creditors of George S. Long. And defendants shall deny said allegations, and aver that said George S. Long, her husband, had no interest thereon. The determination of said issue to decide the issues of fact, raised in the bill in equity, as to the title of said leaseholds ; and the costs of the bill to follow the verdict in the issue now ordered.” It will be observed, that this issue was to take the place of the actions of ejectment, and that its determination was to decide the question of title raised in the bill. In other words, it was to do precisely what the trial of the actions at law would have done ; settle the preliminary question of title, without which the bill could not proceed. It follows, that this was a submission at common law, and not a mere issue for the information of a chancellor. This becomes all the more obvious when we reflect that, without the consent of the parties, the judge could not have ordered an issue embracing the actions of ejectment. This was a matter for the parties themselves; it was their submission and it was binding upon them. They thereby agreed that the verdict should settle the title to the leaseholds, and the rendition of that verdict was a determination of the actions of ejectments in favor of the defendant, and it required no intervention of the chancellor to give it effect.

It is now ordered and decreed that the decree of the court below be reversed and set aside; that the plaintiff’s bill be dismissed with costs.