text:
    MacDowell versus Ackley.
    M. was a member of the Philadelphia Stock Exchange when in 1875 it amended its constitution by providing for a gratuity fund, out of which. §2000 were to be paid to the representatives of every full member on his decease. M. paid certain assessments for the formation of this fund. In 1877 a further amendment was adopted by the Exchange, wherein it was provided “ that any suspended member who shall have failed for three months to pay in full all gratuity dues and assessments, shall forthwith cease to be a full member for the purpose of” participation in the gratuity fund. M. failed to pay his regular quarterly dues for the several quarters from March 31st L877 and ending June 30th 1878 ; also the annual sums payable to the gratuity fund December 1st 1877, and the several asssessments due from him to the gratuity fund by reason of the deaths of members which occurred on the 7th of August and 9th of September 1877, and in August 1878. On the 6th of August 1878 he was suspended for the non-payment of his regular quarterly duos. In April previous he had become insane, and in November 1878 he died. Held, that having subscribed to the constitution and by-laws, and the amendment of 1877 having been made in accordance therewith, he could not be permitted to question its validity, and was bound thereby. Held, further, that having failed to pay his dues and assessments for the benefit of the gratuity fund, he ceased to be a full member for the purposes of said fund. With his loss of full membership his right to the gratuity fund fell with it during his life, and there was nothing to transmit to his representatives.
    February 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county : Of January Term 1880, No. 146.
    Case stated for the opinion of the court wherein Blanche R. MacDowell, guardian of Caroline G. MacDowell was plaintiff, and Shreve Ackley and others, officers and members of the Philadelphia Stock Exchange, were defendants.
    The case as stated in the nature of a special verdict, with power to the court to draw the same inferences of fact as a jury might draw, was in substance as follows:
    James J. MacDowell, the deceased, father of Caroline G. MacDowell, purchased a seat in The Philadelphia Stock Exchange, and was duly elected to membership therein on the 28th of August 1865. In December 1875, sect. 17, of the constitution, relating to gratuity fund, excepting the portion thereof hereinafter set forth, was passed.
    The following are the material portions of said section :
    1. Every full member of the Philadelphia Stock Exchange, in addition to all other payments which ho is required under those by-laws to make, shall, at the time of his admission to the Philadelphia Stock Exchange, pay into the hands of the trustees thereof the sum of fifteen dollars, and the further sum of fifteen dollars, annually, upon the first day of December of each year. Upon the death of any full member of the stock exchange, he shall in addition, pay a farther assessment, or sum, of ten dollars, to said trustees.
    2. The trustees aforesaid, shall keep the fund arising from the payments and assessments made under this section of the by-laws, separate and distinct from all other funds of the Philadelphia Stock Exchange; said fund shall be styled “The Gratuity Fund,” and shall be used solely for the purposes hereinafter mentioned.
    3. All payments and assessments becoming due under this sec-. tion of the by-laws shall be charged against the membership of each member of the Philadelphia Stock Exchange, and shall be collected in the same manner, and have the same priority as all other fines, assessments and dues, due from the members of the Philadelphia Stock Exchange to the Exchange.
    5. The trustees of the Philadelphia Stock Exchange shall, within thirty days after the death of any full member thereof, pay out of the gratuity fund herein mentioned two thousand dollars to the person or persons especially designated by said deceased member to receive the same. * * * In case he has not so designated any person to receive it, then, in the discretion of said trustees, ,either to his widow or to his child or children, as they may think best; and in case no widow, or child or children, survive him, and he has not designated any person to receive said sum in the manner above specified, then to his legal representatives. The said sum of money shall, in all cases, be a gratuity only, and shall be paid at the death of such member, clear and free of any and all assessments or claims of any kind whatsoever. * * *
    6. * * * A full member for the purposes of this section shall be construed to mean a member owning a seat in the stock exchange, whether suspended or otherwise.
    After the passage of this gratuity fund clause MacDowell paid a number of assessments made under its provisions, in fact all dues and assessments so .made, except such as" fell due as hereinafter stated.
    On the 17th of November 1877 the following addition to section 17 of the constitution was duly made by the defendants. “ That any suspended member, who shall have failed for three months to pay in full all gratuity dues and assessments, shall forthwith cease to be a full member for the purposes of this section; such member 'may be restored to such full membership by a favorable report of the standing committee, upon paying in full all arrears of gratuity dues and assessments.”
    There is no evidence that MacDowell was present or voted at the meeting or meetings at which said amendment was adopted, or that he in any way assented or agreed thereto, unless assent compulsory or acquiescent is to be inferred from the fact of membership as stated herein, from the constitution of defendants, and from the fact that he never dissented upon any occasion. He could have been present at meetings and assented if he desired to do so, hav ing the same privileges as the other members of the exchange. MacDowell’s dues began to be in arrear in 1877, after which time he continued indebted to the said stock exchange until his death. During this time his attention was frequently called to the fact of this indebtedness by the secretary and treasurer of the exchange.
    On August 6th MacDovrell was duly suspended for non-payment of dues to the stock exchange, aud upon the same day a letter stating the fact was mailed to his address.
    Upon both occasions a printed copy of the addition to section 17, adopted November 17th 1877 was enclosed to him.
    On April 28th 1878 ■ MacDowell was duly confined, on certificates of two physicians, in the Pennsylvania hospital for the insane. At the time of his confinement in the hospital he was without mental power sufficient to comprehend business of any kind, and remained in that condition without lucid intervals, and without being permitted to leave said hospital until the date of his death.
    He died on the 26th of November 1878, intestate, leaving the said Caroline G. MacDowell. his only child, a minor about four years of age, his sole heir. He left no letter designating the person to whom the gratuity should be paid. At and prior to his death he was insolvent, owing to members of the Philadelphia stock exchange a larger sum than the proceeds of his seat. The proceeds of his seat have not been distributed, but are held by the treasurer of the stock exchange.
    His indebtedness to the Philadelphia Stock Exchange at the time of his death (said indebtedness being the same then as at the time of his suspension), amounted to $61.15, and was as follows: March 81st 1877 to August 6th 1878, annual dues, $16.15. Assessment due by him on death of members, $80. Annual dues, gratuity fund, $15. The said stock exchange has, since his death, in accordance with the provisions of its constitution, sold his seat or membership for the sum of §1500, and have applied §61.15 of the said sum to the payment of the dues and assessments above stated.
    All of these duos wore debts due by him prior to his suspension. During the period of his suspension, that is, between August 6th 1878 and November 26th 1878, several gratuity assessments and one regular quarterly subscription to the stock exchange, became due and payable by all non-suspended members, to the exchange. These sums would have been due and payable by MacDowell, hut for the fact of his suspension, as aforesaid; but on that account, he was not charged with nor did he pay any of them, nor has any deduction for any portion of said sum been made from the proceeds of his seat.
    If the court be of the opinion, that the plaintiff is entitled to the above-mentioned gratuity, then judgment for the plaintiff in the sum of $2000, together with whatever interest the court may hold to be due thereon. If not, then judgment to be entered for the defendant.
    The case was referred to a referee, under the provisions of this Act of May 14th 1874, who found—
    “1. That J. MacDowell, the father of the plaintiff, Caroline G. MacDowell, was, as a member of the Philadelphia stock exchange, subject to the provisions of section 17, paragraph 6, of the constitution thereof, as amended on November 17th 1877.
    “ 2. That being so subject, the said MacDowell, having been suspended from the Philadelphia stock exchange on August 6th 1878, and not having paid in full his assessments and dues to the gratuity fund for three months thereafter, ceased, ipso facto, at the expiration of that period, to be a full member of the exchange, qua this gratuity fund.
    “ 3. That the defendants, after the death of the said MacDowell, and the sale of his seat therein, deducted from the proceeds of the latter, the amount of the dues and assessments owing by MacDowell to- the gratuity fund, at the time of his suspension from the exchange, namely, $61.15, does not in the opinion of the referee, alter or affect his decision upon the question of the right of the said MaoDowell’s representatives to the benefits of the gratuity fund.
    “ The retention of these dues and assessments by the exchange, after the insolvency and death of MacDowell, from the proceeds of the sale of his seat, was 'not in the opinion of the referee a waiver, by the exchange of the provisions of its constitution above referred to; and by virtue of which, the referee has decided, that the said MacDowell ceased to be a full member for the purposes of this gratuity fund.
    “ The referee is of opinion, therefore, that judgment should be entered upon the case stated for the defendants, and enters judgment accordingly.”
    Exceptions were filed to this report, which the referee overruled, and the plaintiff took this writ and alleged, that the referee erred in entering judgment for the defendants.

      P. F. Rothermel, Jr., for plaintiff in error.
    The plaintiff contends that her right to recover should be determined by the contract, as evidenced by the provisions of the constitution on the subject of the gratuity fund, as adopted in December 1875; and that, MacDowell could not be affected by the addition of 1877, to which he did not assent.
    When the Stock Exchange adopted the gratuity fund section, it converted itself into a mutual life insurance company ; and, as in all such companies, the insured were members of the company, and bound by its rules and regulations. But the right of each member, as an individual insured in the company, is not merged in his membership ; so far as the contract with the company which entitles his nominees, &c., to §2000, on his death, is concerned, he is as much a stranger to the company as if he were not a member; though bound by the amendments to the constitution and by-laws as a member of the body, collectively, his contract with them, in which he stands as a stranger, cannot be affected without his express eanscnt: Insurance Company v. Connor, 5 Harris 136; Beadle v. Chenango County Mutual Fire Ins. Co., 3 Hill 161 ; Great Falls Mutual Fire Insurance Company v. Harvey, 45 N. H. 292; N. E. Mutual Fire Ins. Co. v. Butler, 34 Me. 451 ; Angell & Ames on Corporations 242. To hold that MaeDowell forfeited his interest in the gratuity fund, is to hold, that a forfeiture will be decreed for broach of a condition, where no injury was inflicted on the other party, and the breach was not wilful. In the present case, no injury could be suffered by the exchange, as they were amply protected by their lien on MacDowell’s membership.
    As the stock exchange received the full amount claimed by them for gratuity, dues and assessments, from the proceeds of the sale of MacDowell’s membership, and applied the same to the liquidation of his indebtedness to them on that account, it is clear from the authorities, that they have waived the forfeiture : Lycoming County Mutual Ins. Co. v. Schollenberger, 8 Wright 259 ; Froehlich v. Atlas Life Ins. Co., 47 Mo. 406.

      A. Sydney Biddle, for defendants in error.
    MaeDowell was suspended from active membership on account of the non-payment of his regular (not gratuity) dues, by a rule in existence when he joined, and the validity of which is acknowledged. By the gratuity fund rule, as originally enacted, mere suspension from the exchange did not debar the suspended member from the benefit of the gratuity fund; and, if MaeDowell had continued to make the payments required by that rule, for the perpetuation of the gratuity fund, his child would undoubtedly have been entitled to have received the sum of §2000 upon his death.
    If this rule were treated as an ordinary policy of insurance, the contract by the Exchange to pay the gratuity, was dependent upon the contract by MaeDowell to pay his assessments, and to pay those assessments upon certain dates. If the law were otherwise, the legal representative of an insured, whose policy had lapsed by nonpayment of premiums, could always elect to take the benefit of the policy, by paying the accrued premiums after the death of the deceased.
    The amendment of 1877 was undoubtedly binding on MaeDowell. The amendment was passed in November 1877. MaeDowell remained an active member until August 1878, nearly nine months after the passage of the amendment, without the expression of dissent of any kind. He remained compos mentis, so far as we know, until April 28th. 1878, over five months after the resolution was passed.
    Very distinct evidence must be produced before waiver by an association of this character would be inferred. But there was no waiver. The case here is in no way analogous to that of life insurance. Ho action could have been maintained, even if there had been a balance, until the finding of the arbitration committee (Thompson v. Adams, ante, page 55), which has not taken place; and the payment of the $61.15, was a mere transfer from one account to another upon the books of the owners of the fund. If the • arbitration committee should, on the objection of one of MacDowell’s creditors, find the transfer to have been improper, that sum must be restored, but the whole would still belong to the members of the Philadelphia Stock Exchange.
   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880._

This was a case stated. It was agreed that certain facts “be stated for the opinion of the court in the nature of a special verdict with power to the court to draw the same inferences of fact as a jury might draw.” Afterwards the matter was referred to a referee under the Act of 14th May 1874. He decided in favor of the defendant, and entered judgment accordingly. It may be that the referee was rather liberal in his inferences of fact under the submission; but no exceptions were filed, nor is any error assigned by reason thereof. The complaint is to the entry of judgment in favor of the-defendant.

Looking then at all the facts agreed on and found, t'he important ones are these. The plaintiff sought to recover under a right claimed to have existed in her father James J. MacDowell at the time of his death. In 3865, he became a member of the stock exchange. An amendment to the constitution was adopted ’ in 1875, for the benefit of all full members of the stock exchange who, in addition to all other payments, which under the by-laws he was required to make, should at the time of his admission pay to the trustees a sum specified, and the like sum annually on the first day uf each December, and on the death of any full member a certain other specified sum. The fund thus to be created was styled the “ Gratuity Fund.” It was provided that -within thirty days after the death of any full member, the nominee, widow, child or children, or legal representatives of those who were full members at the time of their death should be paid a gratuity of two thousand dollars. It was also declared that a full member for this purpose should be construed to mean a member owning a seat in the stock exchange whether suspended or otherwise. A further amendment to the constitution was adopted in Hovenber 1877. It declares “ that any suspended member who shall have failed for three months to pay in full, all gratuity dues and assessments, shall forthwith cease to be a full member for the purposes of” interest in the gratuity fund, but might be restored to such full membership by a favorable report of the. standing committee “ on payment of all arrears of gratuity dues and assessments.”

MacDowell failed to pay his regular quarterly dues for the several quarters ending 31st March; 30th June; 30th September; and 31st December in 1877, and 31st March and 30th June 1878 ; also the annual sum payable to the gratuity-fund 1st December 1877, and also the several assessments due from him to the gratuity fund by reason of the death of members on the 7th August, and 9th of September 1877, and in August 1878.

On the 6th of August 1878, he was suspended for the non-payment of his regular quarterly dues. In November following he died intestate, leaving the plaintiff his only child and heir, and did not designate to whom said gratuity should bo paid. If he had a fixed interest in the fund the plaintiff is entitled to it. The question then is whether his failure to pay his dues and assessments, and his consequent suspension, worked a forfeiture of his contingent rights ? The fact is unquestioned that he was not at the time of his death a full member, and the plaintiff was not entitled to any share of the proceeds of his seat under the constitution of 1877. The plaintiff contends that it is inoperative against her father, inasmuch as it is not shown that he was present or voted at the time of its adoption, or that he in any manner assented thereto; and by reason of insanity he was duly confined in the insane hospital from the 28th of April 1878 until his death. We answer:

1. The right of MacDowell in this gratuity fund was grafted on his existing membership in the stock exchange. The same power that created it could, in the manner prescribed, modify its enjoyment. It is conceded That all the forms required by the constitution and by-laws to amend the constitution were duly observed in the adoption of the amendment in November 1877. He was not then under any mental disability. If not then present he could have been had he so desired. He in no manner dissented therefrom. Having then voluntarily refrained from participating in the amendment, and not dissenting therefrom, we do not see how he could afterwards have denied its full effect. Nor could his dissent have relieved him therefrom. Having subscribed to the constitution and by-laws, and the change having been made in accordance therewith, he could not be permitted to question its validity. He could not enjoy the benefits of the fund without performing his part towards creating it. It was a fund kept separate from all other sources of revenue, and could be supported only by the payment of the several sums and assessments especially appropriated thereto. The case stated admits that from the time his dues began to be in arrear in 1877, he continued indebted until his death, and “ during this time his attention was frequently called to the fact of his indebtedness by the secretary and treasurer of the exchange.” He was liable to suspension for failing to pay his regular quarterly dues. For this he was suspended, after repeated notice of his delinquency. Thereafter, in the words of the constitution, he “ failed for three months to pay in full all gratuity dues and assessments,” and “forthwith ceased to be a full member for purposes” of this fund, and was so found by the referee.

2. He was in default in the payment of five separate quarterly dues; of two assessments to the gratuity fund; and of one annual dues to the same fund before he was committed to the hospital. Subsequent mental incapacity did not relieve him from the effect of previous neglect and refusal to discharge his legal and just duty. With his loss of full membership, under laws existing when he became a member, his right to the gratuity fund fell with it during his life, and there was nothing to transmit to the plaintiff.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Sullivan versus The Commonwealth.
    1. The belief of a speedy dissolution is the test by which the competency of dying declarations is to be measured.
    2. It is not error to admit evidence showing the condition of the deceased at the time such dying declarations were made.
    3. A physician was called as an expert to show the effect of powder marks where a pistol is fired at short range. Meld, that his testimony, and the cloth or m'uslin used in his experiments, were admissible in evidence on the trial of a prisoner for murder by means of a pistol. Commonwealth v. Quigley, 3 Norris 18, followed.
    4. The evidence in this case establishes the essential elements of murder in the first degree.
    February 26th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J. absent.
    Error to the Court of Oyer and Terminer of Philadelphia county: Of January Term 1880, No. 78.
    Indictment of Daniel F. Sullivan for the murder of Josephine Irwin.
    It appeared at the trial, before Elcock, J., that the defendant Sullivan and the deceased, Josephine Irwin, had been living in illicit intercourse for about four weeks prior to the date of the murder, and occupied the back third-story room of No. 218 South Eighth street, Philadelphia, which room Josephine had rented.
    On the night of the murder the prisoner had returned from his work about 5 P. m., and had eaten the supper which the deceased had prepared for him. They remained together in their room during the entire evening, with the exception of two visits paid by the deceased to the kitchen in the back building, occupied by two colored women, Ellen Freeman and Nellie Brown. At the last of these visits the deceased was noticed to be crying, and requested Ellen Freeman not to leave the house that evening as she had previously indicated an intention to do.
    Between 9.30 and 10 P. M. two reports of a pistol were heard, accompanied with the cries of “murder” and “Frank, you’ll shoot me,” in a female voice, proceeding from the back third-story room of 218 South Eighth street, followed by the ringing of a bell in the kitchen from the third-story back room, and shortly after by a knock at the door of the room in the back building occupied by Ellen Freeman and Nellie Brown. Upon this door being opened, which led to the main staircase, the prisoner was found on the stairs partly dressed. He requested Ellen Freeman to go for a doctor and a priest, and said, “ Josie has shot herself.” The deceased, who was then at the top of the stairs, made answer, “ Ellen, I didn’t — I didn’t — Frank Sullivan shot me.” The wounded woman was carried in and laid upon her bed, and the colored woman at once left the house for the purpose of procuring a physician and an officer, leaving the deceased and the prisoner in the third-story back room. The prisoner dressed himself hastily, putting his necktie and collar in his pocket and also the pistol with which the deceased had been wounded. He was on his way down the staircase when he was arrested by the police, and brought back into the room where Josephine Irwin lay. When asked by the officer who shot her, she replied, “ Frank Sullivan; that’s the man that shot me,” pointing to the prisoner. Sullivan said nothing in reply. In the presence of Officer Keegan and the prisoner, she said to the prisoner, “ Frank, you have done this; you have shot me twice.” She repeated this two or three times, the prisoner giving no denial and making no answer. In reply to inquiries by Lieut. Henderson, she said, “That’s the man that shot me twice,” pointing to the prisoner. Physicians were called, and upon examining the person of the deceased, a wound or scratch was found on the side of the head above the left ear, extending upwards and backwards, and a gunshot wound which penetrated the abdomen and the anterior wall of the stomach, and extended obliquely inwards and upwards, the latter wound being the one which caused her death. A recent bullet mark was found upon the ceiling and south wall of the room, in a line with the position occupied by the deceased, as alleged by the Commonwealth, at the time the first shot was fired, which grazed the left side of the head. From the dying declarations of the deceased, it appeared that the deceased and the prisoner had quarrelled about money, and that upon the prisoner retiring to bed he put out the light, which was usually left burning; that the deceased got up and lit the gas, which the prisoner again put out and returned to bed. The deceased got up a second time and was about to relight the gas, when the prisoner fired from the bed where he lay and shot her on the side of the head. She then turned to run towards the door, and in doing so had to pass the foot of the bed, when the prisoner leaned upon his knees across the footboard of the bed, and fired the second shot at her stomach. The pistol found upon his person showed two barrels recently discharged, and was so constructed that it required two ■movements of the hand to cock and'fire it.
    One or both of the physicians in attendance remained with the wounded woman until her death, which occurred between 9 and 10 A. m. of the next day. The only medicine administered was a few teaspoonsful of a solution of one grain of sulphate of morphia dissolved in three ounces of whiskey and one ounce of sugar and water, administered at intervals, and some champagne given early in the night to settle her stomach. Very little medicine was administered to her, the physicians relying mainly upon the application of wet cloths to the patient’s, abdomen. From the first she had a fixed belief that the injury would terminate fatally, and expressed the belief that “ nobody gets well that’s shot in the .stomach,” and asked Officer Henderson to send for a priest, that she was “going to die.” During the night she was engaged in prayer, and in the morning early directed Ellen'Freeman to bring her a box which lay on the bureau, and gave instructions how to dispose of its contents after her death. She was in great pain during the night, and in the morning, shortly before her death, made the dying declarations with reference to the shooting, which were admitted in evidence on the trial.
    The defence set up was two-fold. First, that the deceased was accidentally shot by the prisoner ; and second, that she committed suicide. It was not pretended that the shot was fired by any third person, or that any third person could have had access to the room where the shooting occurred, as it was clearly shown that the only persons in' the dwelling portion of the house, at the time of the shooting, besides the prisoner and the deceased, were the two colored women who were in the back building, and that all the doors communicating with the. outside of the house were either bolted or permanently fastened. The theory of accidental shooting was rebutted by the circumstances of the case; and to rebut the allegation of suicide, the Commonwealth showed (as was shown in Quigley’s case, 3 Norris 18) that there were no such marks of powder, burning or tattooing upon the person or clothing of the deceased as would necessarily have appeared in case the pistol had been discharged close to the person.
    From the character of the weapon, the repetition of the shots, the shifting by the prisoner of his position in order to make the second shot effectual, from the fact that both shots were aimed at vital parts of the body, and from the dying statement of the deceased as to the motive and manner of the shooting, corroborated by the position of the bullet marks on the wall and the testimony of the witnesses residing in the adjoining house, the Commonwealth claimed that the shooting was wilful, deliberate and premediated.
    At the trial the Commonwealth called Ellen Freeman to show that the deceased was conscious of her impending dissolution, for the purpose of laying the ground to admit her dying declaration as to the killing. Defendant objected, and objection overruled. (First assignment of error.)
    The Commonwealth then proposed to show witness the gown and chemise of the deceased. The defendant objected to any article being shown witness until after examination as to a description of the article. Objection overruled. (Second assignment.)
    Dr. Pennington testified, inter alia, as follows, as to the dying declarations of deceased :
    “ On night of 5th of May I was called on about twenty minutes past ten; I found Josie Irwin in the third story, lying in bed; turned down bed-clothes ; discovered wounds to right of middle line and above umbilicus ; when I first went into the room, she was throwing herself around on the bed, and breathing very heavily; pulse between 100 to 130 ; she was very much excited ; considerable blood on clothing and bed, but little external hemorrhage; during the night she became easier, pulse ranged from 98 to 140 ; in the morning much easier; perfectly conscious; pulse 98 to 100 ; respiration about 20 to a minute, during the night; from the first, she contended she was murdered; she said she knew she had been murdered, and was going to die; that anybody wounded in the stomach never recovered; she was praying frequently during the night, and in the morning, too.”
    Q. During the night, or in the morning, did she make any statement to you as to how the shooting occurred ?
    Objected to. Objection overruled.
    Ans. “ She said she was used to sleeping in the light, and that prisoner wanted the gas turned out, while she wanted it lit, and as fast as one turned it out the other lit it; I believe that’s all.” (Third assignment.)
    Ellen Freeman, as to dying declarations of deceased, was asked: When you were on the stand the other day, you said it was in the morning Josie told you how the shooting occurred. What did she say ?
    Objected to. Objection overruled.
    Ans. “I said, Josie, how did the shooting occur? she said it started about money; she said he said he gave me $25, and he only gave mo $10; we contended over it for just a few moments, when she said she got up and went to bed; after so long a time he read, and then he got ready and went to bed and put out the light, and the light always burned at night, a dim light; she said she watched until he got fixed in the bed, and then she got up and lit it again; and then he leaned over and looked to see if she was asleep, a considerable time after she got in bed; then he got up and put the light out again; she got up to light it, and he shot her in the head; then she said she turned to run toward the door, and he leaned upon his knees across the foot-board, and shot her in the stomach ; that’s all.” (Fourth assignment.)
    Dr. Butcher testified, inter alia, as follows :
    “ I am a physician in the county prison; have been there for about twelve years; was assistant surgeon in the army for three years; am familiar with gun-shot wounds; I made experiments with the revolver and cartridges in evidence in this case; I took a piece of muslin and put it on a pillow so as to bold it up, and put it on the wall about four and a half feet high ; fired at it with the revolver brought me by Officer Yanzant, and cartridges out of the box he brought me.”
    Witness here exhibited a white muslin cloth, showing bullet holes and marks numbered respectively from 1 to 11, inclusive, and says :
    ‘ ‘ No. 1 shows a glance shot fired at' the distance of seven feet between the muzzle and the material; it shows only the black mark where the bullet struck, and no marks of powder burning and tatooing ; No. 2 was fired at the distance of six inches, and shows blacking at the bullet-hole and tatooing ; No. 8 was fired at seven inches, pretty well blackened and tatooing; No. 4 was fired at seven feet, left black around the hole, and no tatooing or powder-mark ; No. 5 was fired at five feet, same result as No. 4; Nos. 6 and 7 were fired at seven inches, made black around the hole, tatooing and powder marking; No. 8 was folded; fired at ten feet, made black mark around the holes; No. 9 fired at nine inches, made blacking around hole, tatooing and powder marking; No. 10 was fired at ten inches, made black around the hole, tatooing and powder marking; No. 11 was fired at ten feet, making blacking around the hole. Was surgeon of 99th Pennsylvania regiment; part of the time in field, and part in hospital; was at second Bull Run, Fredericksburg, and • other affairs; was surgeon in the hospital; have had gun-shot wounds in my practice, and many of them in prison.”
    The defendant submitted, inter alia, the following points, to which are appended the answers of the court.
    1. Where murder has been committed, and the killing has been done with malice, and not in the perpetration or attempt to perpetrate, any of the crimes enumerated in the Act of Assembly of March 1860, to constitute murder in the first degree, there must have been a deliberate, settled purpose; a disposition of mind leading its victim into murder, aware of its wicked pursuit and intent, upon tho result; and this purpose must he proved according to law, beyond the probability of a doubt; otherwise, the killing is deemed to be murder in the second degree.
    Ans. " Affirmed. But the purpose to kill may be inferred from the character of the weapon, the nature and number of the wounds, and from all the circumstances in the case. It is not necessary that the defendant should have avowed a purpose to kill. The law does not require positive proof of an intent. Such intent may be inferred from the act.” (Seventh assignment.)
    3. If the jury believe the killing was done without malice aforethought, either expressed or implied, upon sudden heat or quarrel, or in any angry altercation, or in consequence of reasonable provocation ; or grew out of an assult under circumstances which do not, nor would excuse on the grounds of self-defence, the offence would be manslaughter.
    Ans. “ Affirmed. But sudden heat or quarrel alone, angry altercation alone, provocation merely, or an assault merely, not excusable on the ground of self-defence, is not sufficient to reduce the offence to manslaughter. To reduce to manslaughter the passion which prompted the killing, must have been aroused by a sudden quarrel upon sufficient provocation, and the parties must contend upon equal terms. No mere words are a sufficient provocation to reduce the offence to manslaughter. There is no evidence in the case of any assault by the deceased upon the prisoner, prior to the shooting.” (Eighth assignment.)
    6. If the jury believe that the crime was committed by the prisoner without premeditation and deliberation, then he would be guilty of murder in the second degree.
    Ans. “ Affirmed. But, as I have before stated, the law requires no particular length of time as necessary to form the intention to kill, but leaves the existence of a fully-formed intent, and the consciousness thereof, as a fact for your determination, from all the facts and circumstances of the case.” (Ninth assignment.)
    7. Whenever death ensues from wounds inflicted in sudden transport of passion or heat of blood; or if, upon reasonable provocation, and without malice, or upon sudden combat, the killing would bo manslaughter.
    Ans. “Affirmed. There must be not only sudden passion and hot blood, but also sufficient provocation, which must be more than mere words, to reduce the offence, and the parties must contend on something like equal terms.” (Tenth assignment.)
    8. Under the Pennsylvania statute, a killing with malice, express or implied, the law implies murder in the second degree only; the Commonwealth must show enough malice and wilful deliberation and premeditation, to raise the grade of offence; a failure on the part of the Commonwealth to establish any of these points, reduces the offence to murder in the second degree or voluntary manslaughter. (Eleventh assignment.)
    Ans. “ I have already defined this. The Commonwealth must show a wilful, deliberate and premeditated killing, to convict of murder in the first degree, and this may be proved by circumstantial evidence.”
    10. The true distinction in all cases like this is, that if death was evidently occasioned by gross, erroneous medical treatment, the original author would not be answerable beyond a verdict of manslaughter.
    Ans. “ Affirmed. But there is no evidence of gross erroneous medical treatment, and to relieve a defendant on such grounds, the death must be due to that alone. If the alleged shot in any degree contributed to her decease, the defendant is responsible.” (Twelfth assignment.)
    11. If the jury entertain a reasonable doubt as to the prisoner’s guilt, such doubt ought to produce a verdict of not guilty or an acquittal; and this principle is applicable to the different grades of homicide.
    Ans. “ Affirmed. But it must be a doubt created by the evidence. not one created to avoid responsibility or for fear or favor.” (Thirteenth assignment.)
    12. If the jury believe that death was the result of an accident, to which the deceased contributed through no fault of the prisoner, then their verdict should be not guilty.
    Ans. “ That is so, but you must say, if from the evidence in the case, she could have shot herself.” (Fourteenth assignment.)
    13. If the jury believe that death was the result of an accident through the gross carelessness of the prisoner, then their verdict should be involuntary manslaughter.
    Ans. “ That is so if there was no intention to shoot; but if the prisoner, knowing the pistol to be loaded, fired two shots at the deceased, the law will, presume malice, and the offence would be murder at common law.” (Fifteenth assignment.)
    None of these assignments were properly made. The points were set forth in one portion of the paper-book, and the answers of the court in another, instead of the answers following the points, as prescribed by this court.
    In the general charge the court, Elcock, J., said:
    “ The prisoner at the bar — so young, yet he, too, so unfortunate — stands indicted for murdering his companion, Josie Irvin, on the night of May 5th last. The Commonwealth’s theory briefly is, that these two people, in the evening, had a dispute about a sum of money, and that after going to bed he extinguished the light, when she wished it to burn; that he again extinguished it, and upon arising a second or third time to relight it, he shot her in the head, and as she attempted to escape, or get out of the room, he loaned over the foot-bo.ard of the bed and shot her in the stomach; that after firing the fatal shot he threw her roughly four times upon the bed, and attempted to escape.
    “ From this state of facts the Commonwealth’s officers ask you to say that there was an intention to take life, and therefore wilful, and that there was a consciousness on the part of the prisoner of the nature and character of the injury inflicted, and of the purpose and design intended, which amounts to deliberation, and as there was sufficient time to enable the mind fully to frame the design to kill, and select the instrument to carry the design into execution, it is premeditation, and murder in the first degree.
    “ At common law murder is described to be when a person of sound memory and discretion unlawfully kills any reasonable creature in being, and under the peace of the Commonwealth, with malice aforethought, expressed or implied.
    “ The statute defines murder in the first degree to be any wilful, deliberate and premeditated killing of any human being. And all other murders are murders in the second degree. As these offences have been defined by high authority, there is no use of framing new sentences or language to explain them. Chief Justice Agmw, who gave the clearest and most conciso definition of these crimes, says : ‘ Murder in the second degree includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty; hut where no intention to kill exists, or can be reasonably and fully inferred. Therefore, in all cases of murder, if no intention to kill can be inferred or collected from the circumstances, the verdict must ho murder in the second degree.’
    “ Manslaughter is defined to he the unlawful killing of another, without malice expressed or implied, which may be voluntary in a sudden heat, or involuntary, but in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder, it is necessary to distinguish it clearly. The difference is this: Manslaughter is never attended by legal malice or depravity of heart — that condition or frame of mind exhibiting wickedness of disposition, recklessness of consequences or cruelty. Being sometimes a wilful act (as the term voluntary denotes), it is necessary that the circumstances should take away every evidence of cool depravity of heart, or wanton cruelty.
    “ Therefore to reduce an intentional blow, stroke or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause or provocation, and a state of rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these he wanting, if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.

      “ Therefore, if an intention to take life exists, it is wilful. If this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate, and if sufficient time be afforded to enable the mind fully to frame the design to kill and select the instrument, or frame the plan to carry the design into execution, it is premeditated, and is thus murder in the first degree. All unlawful killing, under circumstances of depravity of heart, and a disposition of mind regardless of social duty, but where no intention to kill exists, or can be reasonably and fully inferred, is murder in the second degree.
    “ Connected with these definitions I may also state that malice, which is one of the essentials of murder, is not a particular ill will, or spite or grudge, but it is a legal term, which comprehends every case where there is wickedness of disposition, badness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.
    “ The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully-formed intent as a fact to be determined by you from all the facts and circumstances in evidence.

      “ It is true that such is the swiftness of human thought, that no time is so short in which a wicked man may not form a design to kill, and frame the means of executing his purpose; yet this suddenness is opposed to premeditation, and you roust be well convinced upon the evidence that there was time to deliberate and premeditate. The law regards, and the jury must find, the actual intent; that is to say, the fully-formed purpose to kill, with so much time for deliberation and premeditation as to convince them that the purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has been fully conscious of its own design. If there be time to frame in the mind, fully and consciously, the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and to premeditate.
    “ The burden of proof necessary to constitute murder in the first degree, lies on the Commonwealth. But the proof need not be express or positive. It may be inferred from the circumstances, or by circumstantial evidence.
    “ It may be also stated as a general rule that homicide is presumed to be malicious; that is, murder of some degree, until the contrary appears in evidence. Therefore, the burden of reducing the crime from murder to manslaughter, where it is proved that the person committed the deed, lies on him. He must show all the circumstances of alleviation or excuse upon which he relies to reduce his offence from murder to a milder kind of homicide, unless, indeed, where the facts already in evidence show it. But though the homicide, without the circumstances of alleviation or excuse, is presumed to be murder, it is not presumed to be murder in the first degree. The presumption against him rises no higher than murder in the second degree. It therefore lies upon the Commonwealth to satisfy the jury of those facts and circumstances which indicate the deliberate intention to kill, and the cool depravity of heart and conscious purpose which constitute, as before stated, murder in the first degree. When death ensues from the use of a deadly weapon in a quarrel or affray, the jury must scan closely the conduct of both parties, their relation, and behavior, and the current of events, the character of the weapon, the manner of its use, and the circumstances attending it; and by a careful survey of the evidence endeavor to arrive at the true motive and cause which prompted the fatal shot.
    “ Was there provocation, or a cause of provocation ? Insulting words are not sufficient cause of provocation, nor are actual indignities to the person of a slight and trivial kind, nor disputes about money or about turning out the light.
    “ To these definitions of the law you must apply the evidence.
    “ 1. Was the mortal wound inflicted by the pistol in the hands of the prisoner ? If it was not, that ends the case, and the prisoner should be acquitted.
    “ 2. If it was, under which of the classifications I have just stated does the evidence constitute the offence; murder in the first or second degree, or manslaughter ?
    “ Now, as to the evidence. No human being saw the shot fired save the poor unfortunate creature who suffered its wound, and the evidence on this point, therefore, is her dying declaration, her declarations in the presence of the prisoner, charging him with her murder, undisputed and unanswered by him at the time.
    “ The declarations of a person dying from injuries received are admissible in evidence against the prisoner charged with inflicting the injuries, to identify the prisoner and establish the circumstances of the alleged shooting. The law permits this as a necessity, and because, where a person is conscious of impending immediate death, all temptation to falsehood, either of interest, hope or fear, will be removed, and the awful nature of the situation will be presumed to impress as strongly with the necessity of a strict adherence to truth as the most solemn obligation of an oath administered in a court of justice.
    “ This dying declaration is, therefore, if properly stated, or repeated by the witnesses on the stand, solemn evidence. It is, of-course, subject to the same rules of criticism or analysis as other evidence.
    “ The dying declaration is testified to by Ellen Freeman, as follows: [The court hero set forth the evidence of said witness included in the 4th assignment of error.]

      “ This is the offence; is it proved to your satisfaction ?
    “ Ellen Freeman, it is said, is corroborated by Dr. Pennington, and that the theory is also corroborated by the cry heard by Mr. Hughes and his son, next door, and the scenes witnessed by Mrs. Belisle and Miss Ricourd and Nellie Brown.
    “ Remember, you are the sole judges of the evidence, its truth or falsity, its weight and connection, and whether it satisfies you of the correctness of the alleged theory as to the cause of death, as well as to all the circumstances of the case, is for you.
    “ Circumstantial evidence, under which head this evidence is comprised, is, if the links or incidents going to make a complete chain of circumstances be coupled or connected with accuracy, as strong as other evidence, if not stronger. All that the law requires in evidence is, the conviction of the mind as to the existence of a certain state of facts. The only difference between positive and circumstantial evidence is, that the former is more immediate and has fewer links in the chain of connection between the premises and conclusion. One is as liable to perjury as the other. Therefore, if you believe the evidence, and if the chain of circumstances points to a certain conclusion, you have a right to presume the existence of a fact therefrom, as if the circumstances point with unerring accuracy to the conclusion that the prisoner fired the fatal shot you have a right to so presume.
    “ The prisoner’s counsel ask you to infer two theories :
    “ 1. That the deceased woman caused her own death, either by accident or design. Well, if that is so, of course, there is no murder; but can you say so, and if so, which theory do you adopt ? Is there any evidence from which you can fairly infer such a state of facts ?

      “ 2. That the woman died from the effects of maltreatment by the medical attendants. If the shot was fired by the prisoner, and was fatal, it makes no difference as to the treatment. To establish such a defence, the evidence should disclose a state of facts showing the wound was not fatal, but that the treatment alone killed her. But is there any evidence to show that there was maltreatment ? I do not see it.
    “ In circumstantial evidence, as indeed in positive, the prisoner’s guilt must be made out by evidence sufficiently eon-elusive to exclude any reasonable supposition of his innocence.

      “ The importance of your duty in determining this evidence cannot be too highly estimated. For the life which has been taken the •law requires vindication. If the person be guilty, say so, but if you have a reasonable doubt upon the testimony, an honest, manly one, which appeals to your conscience, not created by fear or favor, the prisoner is entitled to the benefit of it.
    “ Give the evidence a fair and calm consideration, and let your verdict be such as will satisfy your conscience and the law.”

      The whole of the above charge was assigned for error, and constituted the sixth assignment.
    The verdict was murder in the first degree. A motion for a new trial was, after argument, overruled and defendant sentenced to be hanged. He then took this writ, and alleged that the court erred as set forth in the above assignments of error.

      W. H. and J. C. Redheffer and I. Newton Brown, for plaintiff in error.
    There was no evidence of either a quarrel or previous threats, or anything but the most friendly relations between the parties. The court erred in admitting the testimony of Ellen Freeman as to the dying declarations, when there were two physicians in attendance all the time, and in the absence of the prisoner. The question whether dying declarations are admissible in evidence is exclusively for the consideration of the court.
    They should be submitted only on the sole ground that they were made in extremis. It was not right that the jury should hear the preliminary grounds for the admission of such declarations. In regard to the articles of clothing admitted in evidence, the defendant should have had the benefit of the witness’ knowledge of the articles by her description of them and cross-examination on that knowledge. We do not press the fifth assignment, as we believe the question is set at rest by the ruling in Quigley’s Case, 3 Norris 18. As the judge’s charge goes up with the record as part of it, and as the court review the record and evidence under the Act of 1870 (Grant v. Commonwealth, 21 P. F. Smith 495; Staup v. Commonwealth, 24 Id. 458), the defendant will receive the benefit of the court’s review. Under the cases of Grant v. Commonwealth, supra, and Staup v. Commonwealth, supra, the plaintiff in error assigns in his specifications of error that the verdict of murder in the first degree is against the law and the evidence.

      John R. Read, Assistant District Attorney, and Henry S. Hagert, District Attorney, for the Commonwealth.
    The evidence of Ellen Freeman and Dr. Pennington was to show the condition of the wounded woman and her consciousness of impending death, with a view, subsequently, to offer evidence of her dying declarations. It has never been considered essential to the admissibility of such evidence that the prisoner should be present, or that the expressions used by the injured person in relation to his condition or consciousness of death should be made so soon after the transaction as to form a part of the res gestee. Such testimony is introduced to enable the court to form an opinion of the state of mind of the person speaking, and of the view which the speaker entertains of his or her condition. When the court is satisfied, from the testimony of one or more witnesses, that the proper preliminary proof above indicated has been made, then, and not before, the dying declaration becomes admissible: Rex v. John, 1 East P. C. 357; Rex v. Welburn, Id. 358; Rex v. Hucks, 1 Stark. 424; Rex v. Spilsbury, 7 C. & P. 187; Rex v. Mosely, 1 M. C. C. 97; Reg. v. Peel, 2 F. & F. 21.
    It has never been the practice to withdraw the jury when preliminary evidence was being received, and no good reason can be assigned therefor. The Commonwealth was not required to ask the witness to describe the garment referred to by her as worn by the deceased at the time of the shooting, other than as it was described by the term “ chemise,” before submitting it to her for her inspection and identification. No objection was taken upon the trial to the testimony of Dr. Butcher, the admissibility of such evidence being established by this court in the case of Commonwealth v. Quigley, 3 Norris 18, where a similar defence was made upon the trial and a like objection assigned for error. See Rex v. St. John Long, 4 C. & P. 398; Paytel’s Case, cited in Whart. & Stille’s Med. Jur., vol. 2, p. 707. No exception was taken on the trial to the charge of the court, but on the disposition of the rule for a new trial on November 1st 1879, the prisoner’s counsel requested the judge to file his charge of record. The charge of the court followed closely the opinion delivered by the late Chief Justice Agnew in the case of Commonwealth v. Drum, 8 P. F. Smith 9, and put the respective theories of the Commonwealth and of the defence fully before the jury for their consideration.
   Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

Beyond the fact that a human life is at stake, this record presents no question of importance. The principles of law applicable to it are familiar, and do not need elaboration.

The first, third and fourth assignments refer to the admission of the dying declarations of the deceased. We perceive no error in their admission. There was abundant evidence to show that the deceased regarded her wound as mortal from the first, and believed she was going to die. The belief of a speedy dissolution is the. test by which the competency of dying declarations is to be: measured. Nor was there error in the admission of the evidence showing the deceased’s condition at the time the declarations were made.

2. This assignment alleges error in the admission of certain articles of clothing, upon the ground that they were not properly identified. It is wholly unsustained and need not be discussed.

5. There was no error in the admission of Dr. Butcher’s testimony, or of the cloth or muslin used in his experiments. He was called as an expert to show the eifect of powder marks where a pistol is fired at short range. The testimony may not have been very important. I do not think it was. But it was clearly competent. This assignment was not pressed. The competency of such evidence was settled in Quigley v. Commonwealth, 3 Norris 18.

6. This assignment alleges error in the charge, which is set forth in extenso. There is not a word in the paper-book pointing out what portion of it is objectionable, and as it does not appear to have been excepted to, we may well assume that it contains no serious error. The only reference to it in the printed argument on behalf of the plaintiff is this: “As the judge’s charge goes up with the record as part of it, and as the court review the record and evidence under the Act of 1870, the defendants will receive the benefit of the court’s review.” We find no serious error in the charge.

7th to loth. These assignments all allege error in the answer to points, and are all improperly assigned. We are not bound to notice them, but in favorem vitas will treat them as if they were in proper form. A careful examination of the respective points and the answers of the learned judge thereto, discloses no serious error. The general charge, taken in connection with the answers to points, was a fair presentation of the law of the case to the jury, and furnishes the prisoner no just cause of complaint.

16. This is the general assignment that the verdict was against the law and the evidence. As, however, it was evidently intended to call upon the court to pass upon the evidence, under the Schoeppe Act, we will review it so far as to say that there is abundant testimony to establish the elements of murder in the first degree. When a strong man assaults a defenceless woman in her bed-room with a deadly weapon such as a loaded revolver, and fires not one, but two balls into her body, with deliberate aim, each time at a vital part, the first ball entering her head and the second her stomach, it is idle to say that the case lacks the essential elements of murder of the first degree. The jury may have made a mistake in the degree, but we cannot say so. The evidence was properly before them; it was their duty to W'eigh it, and they have performed that duty.

The judgment is affirmed, and it is ordered that the record be remitted to the Oyer and Terminer for the purpose of execution.


author: Mr. Justice Paxson Paxson, J.,

text:
    Wheelock versus Wood et al. Wood et al. versus Wheelock.
    1. A subsequent judgment-creditor cannot attack a judgment on the ground that it contains usurious interest, without proof of an intent to defraud him thereby.
    2. The mere fact that a debtor has paid or agreed to pay more than six per cent, interest is not enough to establish a fraud upon creditors, and the mere refusal of the debtor to contest the claim does not of itself amount to such fraud. It is only where an usurious contract is entered into collusively as a scheme to hinder and delay creditors that the latter have any standing to contest a judgment entered upon such usurious contract.
    3. Appeal of the Second National Bank of Titusville, 4 Norris 529, followed.
    March 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, of Bradford county: Of January Term 1878, No. 216.
    Feigned - issue, wherein J. Wood and others were plaintiffs, and M. W. Wheelock, defendant, to try the validity of a revived judgment for §3700, entered in favor of said Wheelock against G. P. Cash and H. L. Scott, the assignee of said Cash.
    Certain real estate of Cash having been sold, an auditor was appointed to distribute the proceeds, before whom the above revived judgment was presented for payment. Wood and others, who were judgment-creditors, objected on the ground, that said judgment contained usurious interest, but the auditor ordered it to be paid. Wood et ah, then filed an affidavit which set forth, that on the 6th of August 1870, M. W. Wheelock loaned to Cash, the defendant, §3000, and took the latter’s note therefor, which was entered up August 9th 1870 ; that Cash made payments to Whee-lock on said judgment up to August 6th 1873; that on the 10th of May 1875, Cash and H. L. Scott (who was a creditor and trustee of said Cash’s estate under a voluntary assignment for benefit of creditors) entered into an amicable revival of the above judgment with Wheelock for the sum of §3700, without any notice to petitioners ; the said note was not paid, but the amount of it was included in the above revived judgment. And petitioners aver, that on the said 10th of May 1875, there was but §2881.15 legally due upon said judgment; and that the same was revived for the sum of §818.85, more than it ought to have been; and that said revival is a fraud upon the rights of your petitioners, and that said revived judgment is void as to them. That at the time said Cash and Wheelock revived said judgment, they both well knew that the said Cash was insolvent; and that the revival of said judgment for more than was due, would hinder, delay and prevent your petitioners from the collection of their judgment against said Cash. That petitioners were purchasers of the real estate which raised the fund for distribution, and claim, that said fund should be distributed to the payment of their several judgments, in preference to that of Wheelock; and, therefore, prayed that an issue should be directed to try the disputed facts.
    The issue was granted. When Cash gave tlie note, it appeared he was undoubtedly solvent, but became embarrassed in 1874. In a deposition, Wheelock testified, that he believed Cash solvent at the time the judgment was revived.
    The plaintiff presented, inter alia, the following point, to which is appended the answer of the court:
    1. A judgment tainted with fraud in whole or in part, is absolutely void, and cannot be used for any purpose where it would come into conflict with the rights of other creditors.
    Ans. “ The first point as a general proposition is correct, but as to this case, we are unwilling to say that because Wheeloek’s judgment contains usurious interest that the whole judgment is void or postponed, even if it comes in conflict with the rights of these plaintiffs.”
    The second point of the defendant with the answer of the court were as follows:
    “ To enable the plaintiff to recover in this case the jury must believe that there was collusion between Cash and the defendant in the revival of the Wheelock judgment to defraud subsequent lien creditors, or that Wheelock had such a knowledge of Cash’s indebtedness and the value of his property that he knew that subsequent lien creditors would be injured thereby.
    Ans. ’‘Affirmed, provided the jury find, in addition to what is here stated, that Wheelock had not such knowledge of Cash’s circumstances as that he could reasonably presume that his act in taking the agreement to revive his judgment would defraud Cash’s creditors.
    In the general charge the court, Morrow, P. J., inter alia, said:
    “ If you believe the usurious contract to revive Wheelock’s judgment was intended to defraud Cash’s creditors, or if you find Cash’s circumstances were known to Wheelock to be such that it could be reasonably presumed that this would be the natural effect of it, then these plaintiffs can postpone Wheelock’s judgment as to the excess of interest, and your verdict should be for the plaintiff’ for the amount of such excess. * * * At the time the judgment was revived Cash had the right to retain or deduct the amount of usury already paid from the debt. In refusing to do that it was as much a fraud on his creditors as to include usury accruing after their rights had attached.”
    Verdict for plaintiff for $818.85. After judgment thereon defendant took this writ, and alleged that the court erred (7th assignment) in the answer to defendant’s point, and (4th and 5th assignments) in the portions of the charge noted.
    The plaintiff also alleged that the court erred in the answer to his point, which assignment will be found passed upon in the second opinion of this court in Wood v. Wheelock, post, page 301.

      Patrick & Foyle, for plaintiff in error.
    To obtain an issue under the Acts of Assembly, relating to the distribution of the proceeds of sheriff’s sales, it-is not enough for a junior incumbrancer to make affidavit that a prior judgment was confessed by collusion between the parties thereto, for the purpose of hindering and delaying certain other creditors, but he must set forth that there are material facts in dispute and also the nature and character of such facts: Miller’s Appeal, 11 Casey 581; Knight’s Appeal, 7 Harris 493. One cannot take his chance for a favorable finding of facts by an auditor, and when the report is adverse demand as a matter of right an issue to try the same facts before a jury: Bradford’s Appeal, 5 Casey 518; Seip’s Appeal, 2. Id. 176.
    Judgment creditors may attack a judgment collaterally when it is a fraud on them, but not merely because it is a fraud on the debtor: Thompson’s Appeal, 7 P. F. Smith 175.

      James Wood, for Wood et al.
    The charge is sustained by Greene v. Tyler, 3 Wr. 361, and Bank v. Roseberry, 3 W. N. C. 13.
   Mr. Justice Paxson

delivered the opinion of the court May 7th 1879.

This case is ruled by the appeal of the Second National Bank of Titusville, 4 Norris 529. It was there held that the mere fact that a debtor has paid or agreed to pay in good faith, and in the usual course of business, more than six per cent, interest, is not enough to establish a fraud upon' creditors, and that the mere refusal of the debtor to contest the claim against him does not of itself amount to such fraud; and that it is only where an usurious contract is entered into collusively as a scheme to hinder and delay creditors that the latter have any standing to contest a judgment entered upon such usurious contract. The case referred to had not been decided when the case in hand was tried in the court below. Had it been the rulings of the learned judge would have been different, as the application of the principles announced in 4 Norris, makes an end of this case. There is nothing in it to show fraud and collusion in fact. No such fraud is even averred in the affidavit upon which the feigned issue was granted. It is not denied that when Cash gave the judgment-note of $3000 to Wheelock in 1870, and agreed to pay thereon interest at the rate of ten per centum, he was perfectly solvent. His insolvency occurred about the time of the revival of the judgment in 1875. And even then there is no evidence that Wheelock knew of his insolvency. On the contrary, he swears that he believed he had abundant means to pay his debts at the time. The including of the §700 of extra interest, was in pursuance of the contract of the parties made in good faith years before. It contained no element of a collusive fraud, a fraud in fact to hinder and delay the creditors of Cash. There was error in awarding the feigned issue. The affidavit did not set out such facts as to justify it. There was also error in the portions of the charge contained in the fourth and fifth specifications. The defendant’s second point (seventh specification), should have been affirmed without qualification.

Judgment reversed, and a venire facias de novo awarded.

Wood v. Wheelock.

The following opinion was delivered by

Paxson, J.,

May 7th 1879:

What has been said in Wheelock v. Wood, just decided, is, for the most part, applicable to this case. This writ of error, however, was taken out by the plaintiff's below, who obtained a verdict in their favor to the extent of the usurious interest included in the revival of the judgment in Wheelock v. Cash. The effect of the verdict is to postpone said judgment in favor of the plaintiffs for the excess of interest only. The plaintiff’s contended and asked the court to instruct the jury that if the Wheelock judgment was tainted with fraud at all, it affected the entire judgment, and that the whole of it must be postponed. As the charge of the court was more favorable to the plaintiffs than they were entitled to, the judgment upon this writ of error must bo affirmed.


author: Mr. Justice Trunkey

text:
    Lennig’s Appeal.
    1. "Where a property has been sold under a judgment upon a mortgage, and an auditor appointed to make distribution of the purchase-money, a second mortgage-creditor, where there has been no fraud, cannot defeat distribution to so much of the judgment obtained on the prior judgment as might have been prevented against the mortgagor, had he set np a defence of usury in the consideration.
    2. In the absence of proof that a fraud was intended upon him, a second mortgagee cannot thus collaterally attack the first mortgage for usury.
    3. The mere fact that a debtor has paid or agreed to pay in good faith, and in the usual course of business, more than six per cent, interest, is not enough to establish a fraud upon creditors, and the mere refusal of a debtor to contest the claim against him does not of itself amount to such fraud. It is only where an usurious contract is entered into collusivoly as a scheme to hinder and delay creditors, that the latter have any standing to contest a judgment entered upon such usurious contract.
    4. Greene v. Tyler & Co., 3 Wright 361, distinguished.

      February 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county : Of January Term 1880, No. 196.
    This was originally a writ of scire facias on a mortgage executed by Christian Mayers to the appellants, as trustees under the will of Frederick Lennig, deceased, of Mrs. Ellen D. Lennig’s three children, dated May 3d 1875, and recorded May 27th 1875, to secure the sum of $7000. On this writ judgment was entered for want of an appearance on two returns of nihil, and the property sold, being bought by the appellants for a sum a little exceeding the amount of their judgment and costs. The sheriff’ made a special return under the Act of 1846, setting forth that, the appellants being first lien-creditors, as appeared by the certificates of search, he had taken their receipt to the extent of the amount of their judgment.
    To the return exceptions were filed by the second lien-creditor, the “Twentieth Ward Building Association,” on a mortgage executed to them by Mayers, the defendant, dated May 1st 1875, but not recorded till June 3d 1875, a week after that of the appellants. These exceptions were to the allowance of a sum of $280, included in the mortgage-debt, which it was asserted was the amount of an usurious discount, deducted or withheld at the time of the loan. This loan was paid into court by agreement, and the sheriff allowed to acknowledge the deed to the appellants. The case was then referred to an auditor to make distribution.
    The auditor, E. Greenough Platt, Esq., inter alia, reported:
    “ It was contended, however, that a second mortgage stood on a different footing from a judgment-creditor. Two grounds were suggested for this : 1. That he was a purchaser ; and 2. That he was mortgagee of the equity of redemption, and therefore had the same right to redeem that the debtor had.
    “ The answer to the first objection is the decision of Verner v. Carson, 26 P. F. Smith 440, and Miners’ Bank v. Roseberry, 31 Id. 309, where it was substantially held that a purchaser could not object to the lien of a judgment, because it made no difference to him whether in purchasing the property he paid the money to the lien-creditor or to the debtor .as a part of the purchase-money for the property.
    “ As to the second objection, your auditor is of opinion that, whatever might be the rule, if the second mortgage should seek to redeem before judgment, under the cases, he is concluded by the judgment, as is conclusively shown in Titusville Bank’s Appeal, 4 Norris 528, unless he can show such fraud or collusion as would bring it within stat. 13 Eliz. c. 5. * * * The auditor can therefore see no reason why a second mortgagee can attack a. prior lien, if a judgment-creditor could not. That a judgment-creditor could not, in this case, is conclusively settled by Titusville Bank’s Appeal, supra.”

    The auditor then awarded the amount in controversy to the plaintiffs.
    To this report the Twentieth Ward Building Association excepted, and the court, Pierce, J., sustained the exceptions in the following opinion:
    “ The question raised by these exceptions is, whether it is competent for a second mortgagee to question the validity of the first mortgage on the ground of usury. The facts in this case are not in dispute. It was admitted before the auditor that the first mortgage, which is for $7000, was taken from the mortgagor at a discount of four per cent., or $280 less than the face of the mortgage. It was also shown that the second mortgage was recorded and became a lien on the property before judgment was obtained on the first mortgage. The auditor says in his report: ‘ There can be no doubt that the case of Greene v. Tyler, 3 Wright 361, expressly rules this question, unless it is overruled by subsequent decisions.’ In this we agree with him; but differ from him in thinking that it is overruled by any of the subsequent cases. That it has not been expressly overruled, is clear from the fact that none of the subsequent cases proceeded on the same state of facts, and our duty to the Supreme Court and the value of the doctrine stare decisis, alike require that we shall adhere to what has been authoritatively decided.
    “ The principles of Greene v. Tyler were adopted in Bachdell’s Appeal, 6 P. F. Smith 386, which was a contest between judgment-creditors.
    “ In Verner v. Carson, 16 P. F. Smith 440, it was held that a purchaser of real estate bound by a judgment which was usurious, had no such equity as entitled him to go behind it, in order to contest the amount of the plaintiff’s claim, as it was immaterial to him whether the purchase-money was paid to the vendor, or went in satisfaction of a judgment against him.
    “ Bank v. Roseberry, 31 P. F. Smith 309, which vras principally relied on by the auditor, was the case of a purchaser questioning an usurious judgment. Mercur, J., expressly distinguishes that case from Greene v. Tyler, by saying that the lien of the second mortgage in Greene v. Tyler, attached before judgment was confessed on the first mortgage. In that respect Greene v. Tyler, and this case, are alike, with this difference, that in Greene v. Tyler judgment was confessed, and in this case judgment was upon two nihils for want of an appearance. Whatever rights the second mortgage-creditor had, had attached before the judgment on the first mortgage. Besides, an action on a mortgage is a proceeding in rem; and any one interested in the mortgaged premises, has a right to intervene pro interesse suo, with the same effect, and, in some instances, with greater effect than the mortgagor, because he might be estopped by previous acts or declarations. We rest our decision of this case, however; on the authority of Greene v. Tyler, supra, which we do not recognise as having been overruled by any of the subsequent cases. It has simply been distinguished as having been decided on transactions prior to 1858, the date of our present usury law, although it is manifest fróm reading the opinion of Woodward, Justice, in that case, that he decided it in view- of the Act of 1858. In the Appeal of the Second National Bank of Titusville, 4 Norris 528, Paxson, J., said it is not essentia] to question the soundness of Greene v. Tyler, and conceded that it was rightly decided to the extent of its own facts.
    “Exceptions sustained, and report referred back.”
    The auditor made a second report, to which the plaintiff excepted. The court however overruled the exceptions, and made a decree of distribution in accordance with the report of the auditor. Plaintiffs then took this appeal and assigned this decree for error.

      Henry Wharton, for appellants.
    The doctrine of this court in the cases of Miner’s Bank v. Roseberry, 31 P. F. Smith 309 ; Appeal of Second National Bank of Titusville, 4 Norris 528; Wheelock v. Wood, ante, page 298, is clear, that since the change in the usury law by the Act of 1858, a subsequent creditor cannot dispute a judgment before an auditor on the ground of usury.
    The right to complain or defend on the ground of usury, is thereby exclusively vested in the debtor. Where it does not appear that there was a fraud intended against him, a subsequent judgment creditor cannot set up this defence. In this state, ■ Greene v. Tyler, 3 Weight 361, undoubtedly adopted the New York authorities, but since the Act of 1858, the security for an usurious loan is not void, per se, as to principal or interest. Under the Act of 1723, the taking of usury was expressly forbidden, and the penalty imposed was recoverable in a qui tam action. Under the Act of 1858, it is lawful for the debtor, at his option, to retain the usurious interest from the amount of his debt, but he alone can exercise this option.
    Judgment was obtained on a scire facias on the mortgage, and the mortgaged property sold under it. Such a judgment cannot be attacked collaterally, except for fraud; not even before an auditor appointed to distribute the very fund produced by a sale under it: Dyott’s Estate, 2 W. & S. 557; Thompson’s Appeal, 7 P. F. Smith 175; and the Appeal of the Second National Bank of Titusville, supra.

    The fact that there is a controversy about a thing, a res, does not make a suit between two persons a proceeding in rem. Therefore, to speak of a mortgagee having any special right to intervene for such a reason, involves a false analogy. If he had that right, it would extend only to and be limited by his admission to defend in the suit itself; not to contest the judgment collaterally. But in truth, the distinction is purely imaginary; and for such purposes, he is neither better nor worse off than any other lien creditor.

      William Gorman, for appellees.
    Since the Act of 16th of June 1886, Purd. Dig. 656, sect. 108, feigned issues have been granted in questions of distribution at the instance of any person interested, to try any fact in connection with such distribution which shall be in dispute. The statutory words, “any person interested,” mean judgment or other lien creditor: Smith v. Rieff, 8 Harris 365.
    In Reigart’s Appeal, 7 W. & S. 267, such a creditor was said to have a right to an issue and trial by jury, of which the court could not deprive him. The right was not questioned in Schultze’s Appeal, 1 Barr 251, nor in Johns v. Erb, 5 Id. 232, and has been granted in a multitude of more recent cases. If a judgment creditor’s right is thus absolute, much more a second mortgagee’s, for he has a specific lien on the very thing sold by the sheriff’ — a lien which is not subject to statutory limitation, but rests on contract. If a mortgagee may have an issue, what fact is more fit for him to allege, than, that the prior mortgage was usurious. Usurious contracts are not absolutely void; they are voidable only for the excess as between the immediate parties ; that is, for the excess over the principal and six por cent, interest. But if the debtor will not insist on his rights, or will combine with his creditors to give him a judgment for more than his just dues, it cannot he said that a subsequent mortgagee, whose lien attached before the judgment was confessed, is concluded by the debtor’s act: Greene v. Tyler, 3 Wright 361 ; Bachdell’s Appeal, 6 P. F. Smith 386. This case is still stronger, for here the debtor is dead, and the judgment was obtained for want of an appearance on two returns of ñihil habet.

    This is a judgment in ram ; it is no personal judgment. The object of the judgment is merely to turn the land into money for distribution, and after it has dono so, it has accomplished its object; you show cause why execution should not be had of the land. The money is brought in for distribution, and is claimed upon the mortgage itself; it does not bind the person of the debtor, nor any other of his lands.
   Mr. Justice Trunkey

delivered the opinion of the court, March 8th 1880.

Among the facts reported as admitted are these: 1. That the mortgage for $7000 was given to Lennig et al. for $6720, which was the sum actually paid to the mortgagor; 2. That the building association make no objection to the amount of the judgment on the mortgage, except for usurious interest; and 3. That there is no allegation of fraud, and the only objection to Lennig’s judgment is, “ that there had been what is known as a bonus mortgage at the rate of four per cent, discount.” Hence, the sole question is, Can a second mortgage-creditor, where there has been no fraud, defeat distribution to so much of the judgment obtained on the prior mortgage as might have been prevented against the mortgagee, had he set up a defence of usury in the consideration ? This the auditor denied, and was overruled by the court on the authority of Greene v. Tyler & Co., 3 Wright 361. That case originated prior to the repeal of the Act of March 2d 1723, was a feigned issue, awarded for what was deemed good cause, for trial of facts in dispute, and it was decided that a subsequent mortgage-creditor could attack a judgment founded on a prior mortgage, on the ground of usury. The meagre report furnishes no facts except what are stated in the opinion, and that reveals that the mere fact that usurious interest was included in the mortgage and judgment was held a fraud as to creditors. It is said, If a mortgagee may have an issue, what fact is more fit for him to allege than that the prior mortgage was usurious — that all the money is not legally demand-able upon it which is nominated in the bond ?” “ When creditors claim equities through their debtors, they are usually estopped by what the debtors do; but fraud never estops creditors. What Greene alleges is a fraudulent setting up of the prior mortgage for more than is due upon it. Call it usury or what you will, it is an attempt, in his view of the case, to take away from his lien, by virtue of the prior mortgage, more money than the mortgagees in that mortgage have a right to take.” Treating such fact as a fraudulent collusion against subsequent lien creditors, by all authority, they could attack the judgment collaterally. But the law of usury is not the same now as then.

The Act of 1723 enacted that no person should, directly or indirectly, on any bond or contract, take for the loan or use of money, or any other commodities, above six per centum per annum ; and that if any person should receive or take more than six per centum per annum, on any bond or contract, he should forfeit the money and other things lent, one-half to the governor for use of the government, and the other half to the person who should sue for the same. Under that statute, the receipt of money on account of an usurious contract was a consummation of the offence, from the consequences of which the party could not relieve himself by a subsequent release of the excess which was usurious: Kirkpatrick v. Houston, 4 W. & S. 115. Immediately on commission of the offence, any person could sue for the penalty in a qui tam action. The taking of usurious interest was unlawful — sometimes considered fraudulent, as already seen.

The Act of May 28th 1858, Pamph. L. 622, made a radical change in the law, but the adjudications under the former statute were not quickly effaced from the judicial mind. In distributions it often occurred that judgments were reduced because of usury, and, in some instances, with the apparent, if not real, sanction of this court, as in Bachdell’s Appeal, 6 P. F. Smith 386, where it was done before an auditor. The real ground of such procedure was the same as the footing of the decision in Greene v. Tyler & Co., namely, the giving and receiving of usury is a fraud upon subsequent lien creditors, said taking being unlawful. As recent as Duquesne Bank’s Appeal, 24 P. F. Smith 426, the plaintiff in a judgment was enjoined from collecting any part thereof, until he entered credit for the amount of usury therein, this court saying: “ The defence is one under a statute which lays its hands upon the usury as an illegal act; contrary therefore to equity also; and it becomes the duty of all courts to maintain the law.” Still later decisions, however, have settled “ that the more fact that a debtor has paid or agreed to pay in good faith, and in the usual course of business, more than six per cent, interest, is not enough to establish a fraud upon creditors, and that the mere refusal' of a debtor to contest the claim against him does not of itself amount to such fraud; and that it is only when an usurious contract is entered into collusively as a scheme to hinder and delay creditors, that the latter have any standing to contest a judgment entered upon such usurious contract:” Wheelock v. Wood, ante, p. 298. Referring to Greene v. Tyler & Co. and Bachdell’s Appeal, the court say: “At that time the taking of more than six per cent, interest was unlawful, and subjected the lender to a penalty. It is not so now. The Act of 28th May 1858 has made a radical change in this respect.” “ It is not, therefore, now unlawful for a debtor to pay and a creditor to receive more than six per cent.” “ A man who has, in good faith, contracted to pay more than six per cent., has committed no violation of any law, and is not bound to repudiate his contract:” Appeal of Second Nat. Bank of Titusville, 4 Norris 528; see Miners’ Bank v. Roseberry, 31 P. F. Smith 309.

An auditor appointed to distribute moneys cannot inquire into a judgment rendered in court, but must take it as conclusive: Dyott’s Appeal, 2 W. & S. 557. This has been the unbending rule in all judgments wherein there was no fraudulent collusion against creditors. There is no difference in legal effect between a judgment confessed, or for want of appearance or plea, and a judgment on the verdict of a jury. One is as conclusive as the other until reversed or set aside. A judgment by collusion between the parties to it, for the purpose of defrauding creditors, may be attacked collaterally by the creditors intended to bo defrauded, whether the judgment was by confession, or in default, or on a verdict. Creditors may show it is a nullity as to themselves : Clark v. Douglass, 12 P. F. Smith 408; Thompson’s Appeal, 7 Id. 175.

A judgment on a mortgage is a conclusive adjudication of the amount due from the mortgagor to the mortgagee, at the time of its rendition: Carlisle v. Bindley, 10 Norris 229. A subsequent mortgage or other lien creditor is bound by it till he shows fraud against himself. By reason of the change in the law respecting usury, Greene v. Tyler & Co. is not applicable to the case in hand; and we but follow the decisions directly in point in ruling that the admitted facts do not entitle the building association to the money.

Decree reversed, and now it is considered and decreed that the money in dispute, $280, be appropriated to the judgment of Lennig et al. The appellees to pay the costs of this appeal and costs below which accrued subsequent to July 7th 1879.