text:
    Marland et al. versus The Royal Insurance Co.
    1. An insurance company had a condition in their policies, that “ no insurance proposed is to be considered in force until the premium is actually paid.” Marland employed an insurance broker to effect an insurance ; be prepared the application which was accepted by the company, who delivered him a “ binding receipt,” and afterwards the policy. Marland said to the broker it was not convenient to pay then, but if he was not safe he would get the money ; the broker said he would be. safe for thirty days ; he showed Marland the policy, who asked him to keep it: the property was burned ; the policy not having been delivered to Marland, nor the premium paid by him or the broker, Held, that the company was not liable.
    2. By giving the policy and receipt to the broker, the company gave him no authority to deliver them without payment of the premium, and his agreeing to give Marland credit, created no contract with the company.
    3. Payment was the consideration which gave life to the contract of insurance.
    February 20th 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 221, to July Term 1871.
    This was an action of covenant by Edward Marland and John Haley, trading as Marland & Co., against “ The Boyal Insurance Company of Liverpool.”
    The- declaration was that the defendants, on the 2d of July 1869, executed a policy of insurance to the plaintiffs, by which it was covenanted that the defendants, in consideration of the annual premium of $210 paid by the plaintiffs, would insure the plaintiffs to the extent of $6000 against fire on the machinery, stock, &c., on Broadbe-nt’s Mill in Haddington, Philadelphia. The declaration averred that they had sustained a loss of $6000 by the burning of the property insured, &c.
    The cause was tried April 25th 1871, before Thayer, J. The plaintiffs called G-eorge Fite, a clerk of the defendants, who, being shown an application by John Thompson, agent of plaintiffs for the insurance declared on and a receipt, testified that the application had been accepted July 2d 1869, and the company issued their receipt, dated July 1st, for $210, the premium on $6000, for one year, to Jqhn Thompson, insurance broker ; the company issued a policy dated July 2d 1869 ; the transactions were with Thompson alone until that time ; he sent the application to the company’s office and the papers were sent to him; he had dealt with the company for ten years; was allowed commission by them ; “ he would take the policies, collect the money, and bring it to the office.” The business, was cash; Thompson had no account with the company ; was not charged with the premium; the company kept no account with him ; he could return the policy at ^ny time, if the premium were not paid; it was delivered to him to be handed over if the premium were paid.
    John Thompson, Jr., a son and clerk of Thompson, the insurance broker, testified that his' father made a return to the company every month ; the receipt was given to the father when the application was accepted; but he then paid no money; when the policy came “ my father told Mr. Haley that the company had accepted the risk ; Haley said, £ When do you want the money ?’ father said, £ It will do in a couple of weeks.’ The plaintiffs never paid the premium.”
    Haley, one of the plaintiffs, testified, that Thompson said the company had accepted the risk, and offered him ££ the binding receipt.” I told him it was not convenient to pay then; afterwards he got the pocliy and showed it to me, and I read it, and asked him to keep it for me until the following week ; I asked him if I was safe if I did not pay the premium at once; he said, you are perfectly safe, if the mill should burn down this afternoon; I told him if I was not safe I would go out and get the money; he said, you are perfectly safe. * * * I told him I had no safe place to keep the policy; he offered to keep it for me, and kept it; the fire occurred three days afterwards.” He testified also, that after the-fire he went with Mr. Thompson to see Mr. Wood, the representative of the defendants, who asked Thompson if the plaintiffs had paid the premium; Thompson said they had not, and Wood said, ££I won’t acknowledge the loss;” Wood said if the plaintiffs had received the policy, even without having paid the premium, he would have acknowledged the loss.
    The deposition of John Thompson, who was dead at the time of the trial, taken by defendants, was read by plaintiffs. He testified that the plaintiffs relied on him to have the policy made right; ££ the binding receipt ” had been handed to him the day the risk was accepted; he did not pay the money to the company; he received the policy a week afterwards, but did not give either policy or receipt to plaintiffs ; they did not pay him the premium; the company did not authorize him to deliver the policy without the premium; they left it to his judgment; the policy was in his possession till after the fire; the binding receipt is never asked for after the policy is issued; the policy was returned to Wood after the fire, in the presence of Marland, one of the plaintiffs; witness had given plaintiffs the privilege of taking the policy before the fire, whether the premium was paid or not; but after the fire he did not consider he would be justified in giving them the policy; witness told plaintiffs before the fire took place that they were perfectly safe under the policy; that he had them insured.
    The binding receipt was as follows:—
    “ Received, this 1st day of July 1869, of Edward Marland & Co., the sum stated below, as a consideration for a policy of insurance for twelve months, from June 23d 1869, on machinery and stock of every description, contained in Broadbent’s mill, on Rhodes Lane, near Haddington, Twenty-fourth Ward, Philadelphia, to be issued forthwith by the Royal Insurance Company, of Liverpool, according to an order received this day.
    Premium,.......$210
    P olicy1
    $211
    One of the conditions of the policy was:—
    “ No insurance proposed to this company is to be considered in force until the premium and duty be actually paid.”
    On motion of the defendants, the court ordered a nonsuit.
    This was assigned for error by the plaintiffs, who removed the record to the Supreme Court.

      J. M. Arundel, for plaintiff in error.
    The company could waive their express condition; the waiver may be proved by circumstances: Goit v. The National Protection Insurance Company, 25 Barbour 189; Boehen v. The Williamsburg Insurance Company, 35 New York 131; Flanders on Insurance 140. If the insured be allowed to act upon the confidence of such waiver, the insurer is estopped to deny the fulfilment of the condition: Insurance Company v. Slockbower, 2 Casey 199; Buckley v. Garrett, 11 Wright 204; Mitchell v. Lycoming Insurance Company, 1 P. F. Smith 402.
    The delivery of the policy was a waiver: The Trustees of The First Baptist Church v. Brooklyn Fire Insurance Co., 19 New York 305; Sheldon v. The Atlantic Fire and Marine Insurance Co., 26 Id. 460; Wood v. Poughkeepsie Insurance Co., 32 Id. 619; Heaten v. Manhattan Insurance Co., 7 Rhode Island 502. A binding contract will not be allowed to fail, because the instrument which is the evidence of it is retained by the covenantor: Xenos v. Wickman, 13 Com. Bench N. S. 381; 1 Duer on Ins. sect. 10; Hamilton v. Insurance Co., 5 Barr 339; Flanders on Ins. 104-127. The contract was complete by the delivery of policy to the insurance broker and charging him with the premium: Dalzell v. Moor, 1 Camp. 532; Foy v. Bell, 3 Taunt. 493. A party who enables another to commit a wrong is answerable for the consequence: Blight v. Schenck, 10 Barr 293; Paschall v. Passmore, 3 Harris 307; Kentucky Ins. Co. v. Jones, 5 Porter’s Ind. R. 96.

      M. P. Henry, for defendants in error.
    There was no contract until the premium was paid: Real Estate M. F. Ins. Co. v. Roessle, 1 Gray 336. The delivery of the policy was not a waiver of the condition of prepayment: Bradley v. Potomac Ins. Co., 32 Md. 108.
    February 26th 1872,
   The opinion of the court was delivered, by

Agnew, J.

With all the desire we feel to compel a corporation such as this to keep good faith towards those with whom it deals, we have been unable to discover sufficient evidence in this case of a consummated contract of insurance. This action is in covenant, and is founded directly upon the policy, though it is clear it never was delivered. This brings us at once to the question: Had Marland & Co. entitled themselves to a delivery of the policy ? On this point the first witness of the plaintiffs testifies directly against them. He says the business of the company is a cash business. The receipt for the premium was held by Thompson. The company kept no account with him. He could return the policy at any time if the premium was not paid. It was delivered to him to be handed over if the premium was paid. The company did not charge him with the premium or keep any account with him. Thus by their own showing, the company in handing over the receipt and policy, gave Thompson no authority to deliver it to them without payment of the premium.

The policy, by its own terms, declares that “No insurance proposed to this company is to be considered in force until the premium and duty are actually paid, and persons desirous of continuing annual insurances must make their respective payments of the premium, and the duty thereon, on or before the commencement of each succeeding year.” Having no authority to deliver without payment of the premium, it is obvious Thompson’s willingness to do so, or to give credit, can create no contract with his principals. This is not one of those catching clauses in a policy we so often see only to condemn, but it is a demand for prompt payment of the only consideration which gives vitality to the contract of insurance. The premiums are the very bread upon which the company feeds. All its sustenance and ability to pay its losses are drawn from this source, and the payment constitutes the only consideration and just title of the insured to demand payment of the loss. What was testified, therefore, about the company’s having accepted the risk, and having delivered the receipt and policy to Thompson, as the broker and mutual agent of the parties, creates no contract. Accepting the risk meant no more than a willingness to make the insurance, but indicates no purpose to waive payment of the very consideration which moves the company to insure. It changes none of the terms of the policy to be issued. To make a different contract there must be evidence of the company’s assent to the change, of which there is not a spark in the case. There is evidence that Thompson, who, as a broker, took many policies for the company, was in the habit of making monthly settlements with the company, and then paying over the premiums he had received during the preceding period. But the delivery of the policies to him to collect the premium and hand over the policy, necessarily postponed settlement with the company to a future period, and the fact that he, for convenience, settled monthly, does not change the character of the transaction. There is no evidence that the company treated him as their debtor and charged him with the premiums. On the contrary, the proof is that no account was kept with him, and that he had a right to return all policies not paid for. The company trusted to him to hold the policies and deliver them on receiving the premiums, and when he accounted for these premiums, took no further account of the policies on which they were paid. But this mode of dealing evidently gave him no power to make contracts on different terms, or to deliver the policies without payment in direct violation of the clause in it to the contrary. Much reliance is placed upon the testimony of the plaintiffs, especially that of Mr. Haley, that Thompson offered them the binding receipt, and when asked if they were safe, provided the premiums were not paid at once, he said they were perfectly safe if the mill should burn down that afternoon; and also when told that if not safe, they would go out and get the money, he replied they were perfectly safe and could have thirty or sixty days; that he had given them credit before, and he offered to keep the policies for them. But how can all this alter the case when Haley admits that Thompson showed him the policy, and he read it, and then asked Thompson to keep it until the following week ? He knew therefore that Thompson had no authority to deliver without payment, and that the policy was worthless without it. He knew that the company required payment as a condition precedent to the insurance, and had he asked Thompson whether he had authority to waive this condition, his answer following the evidence given by themselves would have been that he had not. If deceived or lulled into security, it was not by any act of the company, but by trusting to the mere opinion of one who had no authority to bind the company by any such expression. The very question put to Thompson, whether they would be safe without payment of the premium, evinces a knowledge of the necessity of payment, and it was their folly therefore to delay making it. The true and easy explanation is, that they did not expect that a fire would take place so speedily, and thought they would have time enough to close the business. When we turn at last to Thompson’s testimony, we find that neither he nor they understood that they were entitled to the policy. He says he had given them an opportunity to take the policy before the fire, and they had not taken it, and after the fire he did not feel justified in handing it over. He also says that after the fire they did not attempt to get the policy from him, or offer any inducements, while he told them he was sorry for them, for they had no insurance, or at least he had his doubts about it. This tallies with the conduct of Wood, the actuary of the company, who, when called on by Thompson and the plaintiffs, asked Thompson if they had paid the premium, and when Thompson said “No,” said then, “I won’t acknowledge the loss.” This was a judgment of nonsuit upon the trial, and we have .been thus forced to travel through the evidence to discover any sufficient evidence of a contract to require the case to be submitted to the jury; and finding none the judgment is

Affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Arundel versus Springer.
    1. Under 28th sect, of Act of February 24th 1834, trespass for mesne profits does not abate by the death of the defendant in the ejectment, but survives against his personal representatives.
    2. Trespass for mesne profits was brought against two; one paid a certain sum in settlement, and a nol. pros was entered as to him: Held, that did not discharge the other defendant.
    3. Bard v. Nevin, 9 Watts 328 ; Ilarker v. Whitaker, 5 Id. 474; Means v. Church, 3 Barr 93, examined and distinguished.
    February 21st 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 168, to July Term 1871.
    This was an action of trespass for mesne profits commenced May 9th 1870, in which John B. Springer, trustee, &c., under the will of Margaret Ross, and Mary M. Clarke, were plaintiffs, and Eliza Arundel, executrix, legatee and devisee of Robert J. Arundel, deceased, and Eliza Bouvier and Robert E. Peterson, executors and trustees under the will of John Bouvier, deceased, were defendants.
    The declaration was that Arundel in his lifetime and the said Eliza Bouvier and Robert E. Peterson, executors, &c., of John Bouvier, deceased, on the 1st of June 1848, broke and entered a messuage, &c., and ejected the plaintiffs, and took the rents and profits until May 8th 1870, &c.; that Arundel died on the 23d of October 1868, and letters testamentary on his estate were granted to Eliza Arundel, &e.

      May 8th 1871, a non pros, was entered as to Bouvier and Peterson.
    The cause was tried before Hare, P. J., May 11th 1871, the jury being empannelled to try the issue between the plaintiffs and Eliza Arundel, executrix, &c.
    The plaintiffs gave in evidence a deed for the loeus in quo from Margaret Arundel to Margaret J. Rogers, dated November 24th 1829. Margaret J. Rogers married Samuel Ross, survived him and died October 1st 1841, having devised the premises in trust for Mary M. Rogers. On the 3d of October 1841, Mary M. Rogers married Samuel Clarke, who died March 19th 1859. On the 27th of March, John B. Springer was appointed trustee under the will of Mrs. Ross, in place of a former trustee discharged. Springer as trustee and Mrs. Clarke recovered the premises in ejectment to March Term 1868 against Robert J. Arundel; he died October 19th 1868. Since the commencement of this suit, the executors of Bouvier settled the claim against them by the payment to the plaintiffs of $325. The rent of premises yielded to Arundel $180 annually and to Bouvier $125 annually.
    The defendant having given in evidence certain agreements and a deed not affecting the questions raised in the Supreme Court, closed and asked the court to charge:—
    “ 1. The issue raised in this case by the declaration and plea, is as to the amount of mesne profits received by defendant Eliza Arundel, as executrix of Robert J. Arundel, deceased ; there can therefore be no recovery in this suit for mesne profits received by said decedent in his lifetime, nor can there be a recovery against his executrix, in her representative capacity, to charge decedent’s estate for mesne profits received by her as such executrix.
    “ 2. This action being against defendants Arundel and Bouvier, or their representatives as joint trespassers, a release of one discharges the other. If you, therefore, find that the plaintiffs have released Bouvier’s estate from liability, your verdict in this case must be for the defendant.”
    The court refused the points; and there was a verdict for the plaintiffs for $795.
    The defendants removed the record to the Supreme Court, and assigned for error the denial of their points.

      J. M. Arundel and W. L. Hirst, for plaintiff in error,
    referred,, as to 1st point, to Acts of February 24th 1834, § 28, Pamph. L. 77, 1 Br. Purd. 424, pl. 96; April 12th 1869, § 1, Pamph. L. 27, Id. 39, pl. 14; Miller v. Wilson, 12 Harris 114; Harker v. Whitaker, 5 Watts 475; Bard v. Nevin, 9 Id. 328; Means v. Church, 3 Barr 93. Releasing Bouvier’s executors in a joint action of trespass discharged the other defendants: Knox v. Work, 1 Browne 101; Cridland v. Floyd, 6 S. & R. 413; Weakly v. Royer, 3 Watts 460; Chambers v. Lapsley, 7 Barr 26.
    6r. Junhin, for defendants in error,
    referred to the same Acts of Assembly; McCallion v. Gegan, 4 Legal Gaz. 5, January 5th 1872. The objection to the release of Bouvier should have been raised by special plea: Duane v. Miercken, 4 Yeates 437.
    May 13th 1872,
   The opinion of the court was delivered, by

Williams, J.

It is- clear that under the provisions of the Act of February 24th 1834, Purd. Dig. 286, the action of trespass for mesne profits did not abate by the death of the defendant in the ejectment, but survived against his personal representative. The act provides that “ executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libels and for wrongs done to the person ; and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent if he had lived.” The language of this provision is too plain to require interpretation or to admit of doubt as to its meaning. It declares, as clearly as words can, that executors or administrators shall be liable to be sued in any action which might have been maintained against the decedent, whom they represent, if he had lived, except actions for slander, for libels and for wrongs done, to the person. If then the act is to have its plain meaning, nothing nan be more obvious than that the action of trespass for mesne profits does not abate by the death of the trespasser, but survives against his personal representatives. To give it any other construction would be a clear perversion of its meaning. But it is strenuously urged that since the passage of the act, this court has repeatedly held that the action for mesne profits abates upon the death of the defendant in ejectment, and that a plaintiff has no remedy against his personal representatives; and the cases of Harker v. Whitaker, 5 Watt’s 474, Bard v. Nevin, 9 Id. 328, and Means v. The Presbyterian Church, 3 Barr 93, are cited and relied on to sustain the position. The case of Harker v. Whitaker, decided in 1839, was an action of account render for mesne profits brought against the personal representatives of a deceased defendant in ejectment, and the court below instructed the jury that the action would not lie, and directed them to return a verdict for the defendant. This court, conceding that under special circumstances the action might be sustained for defect of remedy, as a substitute for a bill in equity, affirmed the judgment, on the ground that a bill in equity itself would not lie under the circumstances disclosed by the evidence. An examination of the opinion will show that ,the-decision is not put on the ground that the action abated by the death of the defendant in ejectment, but on the ground that an action of account render would not lie under the circumstances of the case. “ For it is certain,” to quote the language of the opinion, “that a successful plaintiff in ejectment may not turn the trespasser into a tenant for the time laid in the demise, in order to charge him in the action for use and occupationor treat him as a trustee, unless the incongruity were counterbalanced by circumstances of peculiar hardship. Where the owner has thought fit to begin with the occupant as a trespasser, he must end with him as a trespasser, unless he has lost a legal advantage by having been vexatiously impeded in the pursuit of his remedy. Such a loss, however, gives an equity, on the foot of which a chancellor will interfere; but it has not been shown here.”

The case of Bard against Nevin, decided in 1840, was an action of assumpsit brought against the personal representative of a deceased defendant in ejectment, for mesne profits which accrued during the pendency of that action. The court below, on the case stated, gave judgment for the defendant; and it was affirmed by this court, in a per curiam, opinion, on the principle ruled in Harker v. Whitaker, that an action at law cannot be sustained as a substitute for a bill in equity where a bill in equity itself w'ould not lie.

The case of Means v. The Presbyterian Church, decided in 1846, was an action of trespass for mesne profits brought by a trustee against the defendant in ejectment, and it was held that the action did not abate by his death, but survived for the use of the church of which he was the trustee, and that his heir at law was-!the proper party to be substituted as plaintiff. No other question was presented by the record, and nothing else was really decided. It is true that in delivering the opinion of the court, Rogers, J., said: “ These eases,” referring to Harker v. Whitaker and Bard v. Nevin, “ are ruled on the principle that the cause of action does not survive.” But this was a mere dictum, and, unless we have misapprehended the principle, was clearly a mistake. But whether so or not, these cases, including Means against the Church, were decided without any reference to the Act of 1834, and can have no possible influence in determining its meaning. It was not cited by the counsel or the court in either of them, and as a matter of course no construction was given to its provisions. We are then left free to interpret the act according to- its plain meaning, and it is clear that under its provisions the actions did not abate, and there was no error in refusing to charge that there could be no recovery in this suit for mesne profits received by the decedent in his lifetime. The Act of April 12th 1869, Purd. Dig. 1539, which provides that no action or right of action for mesne profits * * * shall abate by reason of the death of the person liable therefor, &c., wrought no change in the existing law,. and all that need be said of it is, that it was a piece of useless legislation.

It is a sufficient answer to the matter next complained of, that there is nothing in the pleadings or evidence which made it the duty of the court to instruct the jury that there could be no recovery in this action for mesne profits received by the executors. It is not alleged in the declaration, nor shown by the evidence sent up with the bill of exceptions, that any rents or profits of the land were received by the executrix. On the contrary, it is expressly admitted on the record, that the rents were received by the decedent. Nor was there any error in refusing to instruct the jury that if they found that the plaintiff had released Bouvier’s estate from liability, their verdict must be for the defendant. The fact that the plaintiff settled with Bouvier’s executors for the rents which they received and which were properly chargeable to them, did not constitute in law or equity any defence to the rents which it is admitted that the decedent received. The settlement with Bouvier’s executors did not prejudice the defendant in any way, and cannot be regarded as satisfaction of the rents sought to be recovered in this action. Under the evidence the plaintiffs were clearly entitled to recover, and the judgment must be affirmed.

Judgment affirmed.


author: Agnew, J.

text:
    Page’s Appeal. Burd’s Estate.
    1. A bequest was “ to my god-daughter Margaret B. Page §2000, to be paid to her by my executors when she attains twenty-one years, but if she die in her minority the same is to fall into the residue of my estate. Held to be a vested legacy on which interest would not run until the time of payment.
    2. When a bequest of a sum of money is made, and time of payment fixed, that determines the precise sum to be paid at the time fixed: except where the law infers an intention to pay interest, from the relation of the testator to the legatee.
    3. This inference does not arise from the relation of god-mother and goddaughter.
    4. Where a trustee or executors are put in charge of a special fund for a legatee to manage for his benefit, his right to the product of the fund may be inferred from so setting it apart for him.
    5. Cooper v. Scott, 12 P. F. Smith 139 ; Laporte v. Bishop, 11 Harris 152, distinguished.
    February — 1872.
    Before Agnew, Sharswood and Williams, JJ. Thompson, 0. J., at Nisi Prius.
    Appeal from the Orphans’ Court of Philadelphia: No. 216, to January Term 1871. In the estate of Eliza H. Burd, deceased.
    On the 28th of May 1870, Margaret Burd Page presented her petition to the Orphans’ Court, setting forth that Eliza Howard Burd, by her will dated September 20th 1858, and codicil dated December 6th 1859, proved April 11th 1850, amongst other things bequeathed as follows : “ I give and bequeath unto my god-daughter Margaret Burd Page, daughter of Dr. William Burd Page, the sum of two thousand dollars, to be paid to her by my executors, when she attains the age of twenty-one years, but if she dies in her minority, the same is to fall into the residue of my estate.” * *
    “ I devise and bequeath to the rector, churchwardens and ves-' trymen of St. Stephen’s church in the city of Philadelphia, all the two-tenths of the residuary estate left me by my late beloved husband, and all the rest, residue and. remainder of my property and estate, real, personal and mixed, and wherever situated, not otherwise disposed of in my will and codicils, in trust, to establish an asylum,” &c.; that the petitioner had attained the age of 21 years and, as she was advised, was entitled to receive the legacy of $2000 with interest since one year from the death of the testatrix; the prayer was that after notice to the executors, residuary legatees and other persons interested, the court would make a decree for the payment of the legacy.
    The testatrix died in April 1860.
    Eli K. Price, Joseph B. Townsend and Edward Shippen, the surviving executors, &c., answered:—
    “ These respondents admitting the gift and bequest of the legacy of $2000 to the petitioner, in and by the will of said testatrix, in the terms and with the provisions in the petition recited and quoted; and admitting that they have retained adequate funds, in their hands, of the estate of said testatrix for the payment of said legacy (after deducting the collateral inheritance tax of five per cent.), and the interest thereon, if interest is by law payable to her — respectfully submit the question whether the said petitioner is entitled to any interest, and if so, how much,” &c.
    The Orphans’ Court decreed: “ That there be paid the petitioner the sum of $2000 (less the collateral inheritance tax), but that the interest since the death of the testatrix on said sum, claimed by the petitioner, be paid to the residuary legatees.”
    The petitioner appealed to the Supreme Court, and assigned the decree for error.

      S. JD. Page, for appellant.
    The legacy was separated from the bulk of the estate and payable to the trustees for the trust, and has been at interest; they were testamentary guardians of petitioner: Laporte v. Bishop, 11 Harris 152; Cooper v. Scott, 12 P. F. Smith 139; Kerr v. Bosler, Id. 183. The legacy vested in the appellant the moment the will took effect: Patterson v. Hawthorn, 12 S. & R. 112; Hawkins on Wills 226, 240, 254; Reed v. Buckley, 5 W. & S. 517; Bowman’s Appeal, 10 Casey 19; Lister v. Bradley, 1 Hare 10; Horne v. Pillows, 2 Mylne & K. 15. The gift over is of the identical sum of two thousand dollars; it does not extend to anything more than the estate existing at the death of the testatrix; for the profits which arose afterward were a different thing: Lefevre’s Appeal, 6 S. & R. 556; Mifflin v. Neal, Id. 461. The testatrix placed herself in loeo parentis, interest was therefore to be allowed during the minority of the legatee: Magoffin v. Patton, 4 R. 113; Corbin v. Wilson, 2 Ashmead 178; Seibert’s Appeal, 7 Harris 49; Clark v. Wallace, 12 Wright 80; Bitzer v. Hahn, 14 S. & R. 237; Harvey v. Harvey, 2 P. Wms. 21; Crickett v. Dolby, 3 Ves. 10; Acherly v. Vernon, cited in 1 Id. 497; Bowman’s Appeal, 10 Casey 19.

      L. 0. Qleeman, for appellees.
    A legacy payable at a future day, whether vested or contingent, does not carry interest, with one exception, viz.: that where the testator is in loeo parentis to the legatee: Wms. on Executors 1283; Roper on Legacies 1253; Tyrrell v. Tyrrell, 4 Ves. 1; Festing v. Allen, 5 Hare 577; Rouse’s Estate, 9 Id. 653; Donovan v. Needham, 9 Beavan 164, 167; Allhusen v. Whittell, 4 Equity Cases 295; Dawes v. Swan, 4 Mass. 208; Magoffin v. Patton, 4 Rawle 119; Seibert’s Appeal, 7 Harris 52; Leech’s Appeal, 8 Wright 140; Laporte v. Bishop, 11 Harris 152; Cooper v. Scott, 12 P. F. Smith 139; Kerr v. Bosler, Id. 183.
    February 26th 1872,
   The opinion of the court was delivered, by

Agnew, J.

Mrs. Eliza II. Burd bequeathed to her goddaughter, Margaret B. Page, $2000, “ to be paid to her by my executors, when she attains the age of 21 years, but if she dies in her minority, the same is to fall into the residue of my estate.” This is a vested legacy, but the time of paymen-t-is deferred until the legatee shall arrive at age. In such a case the rule is well settled, that interest does not run upon the legacy until it falls due: Leech’s Appeal, 8 Wright 140; Kerr v. Bosler, 12 P. F. Smith 183. The 47th section of the Act of 24th February 1834, requiring the executors after one year has elapsed, to pay and deliver legacies under the direction of the Orphans’ Court, affords no countenance to the running of interest after the expiration of the year ; for it expressly says, “all such legacies as are due and payable by them.” When a testator bequeaths a sum of money- and fixes the time of payment, he determines by that act the precise sum to be paid at the time fixed by him. The only exception to this rule is where the law infers an intention to pay interest from the relation in which the testator stands to the legatee. It is contended here that Mrs. Burd was in loeo parentis to Miss Page, because she stood as god-mother to her at baptism, and calls her god-daughter in her will. But this is a spiritual relation merely, arising from a religious rite, and has no relation whatever to maintenance on one side, or destitution and dependence on the other. Mrs. Burd never stood in any sense of law or fact in loco parentis to her god-daughter. Payment of interest was not needed for support, or by reason of any cause which would bring the legacy within the exception. Nor were the executors trustees of the legacy in that peculiar sense which made them depositaries of a fund specially set apart for Miss Page, and placed in their hands for investment for her. The case, therefore, does not fall within the principles stated in Laporte v. Bishop, 11 Harris 152, and Cooper v. Scott, 12 P. F. Smith 189. Where a trustee is appointed for a special fund, or the executors are put in ‘special charge of it for the legatee, to take care of and manage it for his benefit, his right to the product of the fund is an inference, or at least it may be, from a presumed intent of the testator in thus setting it apart for him. Nothing of that kind appears in this case. The decree of the Orphans’ Court is therefore affirmed with costs to be paid by the appellant.


author: Thompson, C. J.

text:
    Commonwealth ex rel. Winpenny versus Bunn.
    1. A register cannot at discretion dispose of every matter arising in the performance of his functions, if objected to by a competent party.
    2. Under the 25th sect, of Act of March 15th 1832, where objections are made to probate of a will, and no precept directed to the Common Pleas, or to granting administration, or a question of kindred or “other disputable or difficult matter comes into controversy,” the register at the request of a person interested shall proceed no further but call a Register’s Court.
    3. Sect. 13 of same act is designed for a caveat, and where a question of fact arises, the register has a discretion as to directing a precept for an issue to the Common Pleas.

      4. The duty of the register under the 25th section is enforceable by mandamus.
    5. Where there is nothing “ disputable or difficult,” the court would not interfere upon the refusal of the register.
    6. On a question before the register as to the signature to a will, papers in the possession of the executor offering the will .were called for and refused ; the register not having power to compel the production, the party opposing the will asked him to appoint a Register's Court. Held, that this was a “disputable and difficult matter,” the register was bound to appoint a Register’s Court, and on refusal was compellable by mandamus.
    7. In such matter the act of the register was ministerial: mandamus lies to enforce ministerial acts although to be performed by a judicial officer.
    8. A register has no power to compel the attendance of witnesses other than those capable of proving the will: or to compel the production of any paper except the will itself.
    9. The acts of a register are judicial where without objections probate of a will has been made or administration granted: these cannot be impeached collaterally; the remedy is by appeal.
    10. Cozzens’s Will, 11 P. F. Smith 196, adopted.
    March — 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.

      Mandamus of January Term 1871, at the relation of Joseph Winpenny against William M. Bunn, register of wills, &c., of Philadelphia.
    The alternative writ of mandamus was as follows :—
    “ Whereas, it has been suggested to us that Joseph Winpenny, petitioner, is a brother of A. Jackson Winpenny, deceased, who died on or about the 12th day of November, A. D. 1870; the said Joseph Winpenny, upon the 17th day of November, A. D. 1870, filed a caveat in the office of the register, &c., against the admission to probate of any alleged will of the said A. Jackson Win-penny, deceased; that upon the 3d day of January, A. D. 1871, a paper writing purporting to be the last will of said decedent, was offered for probate before William M. Bunn, Esq., the said register of wills, by J. Bolton Winpenny, one of the persons named in said paper writing as executor thereof; that objections have been made before the said William M. Bunn, register of wills as aforesaid, by the said Joseph Winpenny, petitioner, against the probate of said paper writing; that thereupon proceedings took place before said register, in reference to the probate of said paper writing; that the said J. Bolton Winpenny, through his counsel, Mr. Dolman, produced before the register the three subscribing witnesses to said paper writing, and that said subscribing witnesses or any of them failed to prove the due and legal execution of said paper writing as the last will of said decedent; that failing to make said proof by the said subscribing witnesses, Mr. Dolman called the said J. Bolton Winpenny as a witness to prove the execution of said paper writing as the last will of said decedent; that witnesses were then called by Mr. Dolman to prove the genuineness of the signature of the decedent to said paper writing; that Charles W. Otto, one of said witnesses, called on behalf of the said J. Bolton Winpenny, produced, upon his examination before the register, a certain check upon which a signature was written, and by means of which the said witness testified as to the manner in which the decedent spelled his name; that Thomas R. Garsed and James E. Mitchell, the other two of said last-mentioned witnesses, testified as to the genuineness of the signature of decedent to said paper writing, and both- stated, in their testimony, that the said J. Bolton Winpenny had shown them a short time previously a check upon which the name of A. Jackson Winpenny was written, and the said Thomas R. Garsed stated in his testimony that the said J. Bolton Winpenny had asked him if he could recognise said signature ; that the said Joseph Winpenny, petitioner, had every reason to believe that the said paper writing is not the last will of said decedent, and that it was never signed by said decedent; that upon the 30th day of January, A. D. 1871, the said Joseph Win-penny, through his counsel, made a demand upon the counsel of said J. Bolton Winpenny, for the production of certain checks and an alleged deed upon which the signature of decedent was written; that the said cheeks included, inter alia, the checks referred to or used by the said witnesses on behalf of the said J. Bolton Winpenny, and are material to the determination of the said matter in controversy; that upon the 1st day of February, A. D. 1871, before the said William M. Bunn, register of wills as aforesaid, the said Joseph Winpenny, petitioner, made a further demand for the production of said checks and alleged deed, upon the said J. Bolton Winpenny and his counsel, then and there present ; that both of said demands were refused, and the said J. Bolton Winpenny, through his counsel, refused to produce the said checks and alleged deed; that the said register of wills has no power or authority by law to compel the production of said checks, or alleged deed, nor to compel the attendance of witnesses other than the subscribing witnesses, to a will; that the said Joseph Winpenny, petitioner, being aware that he had no remedy to compel the production of said checks and alleged deed before the said William M. Bunn, register of wills as aforesaid, did, immediately upon the refusal of the said J. Bolton Winpenny to produce said checks and alleged deed, make a request to the said William M. Bunn, register of wills, that he should appoint a Register’s Court for the decision of the said matter in controversy, to wit, the production of the said checks and alleged deed, &c.; that the said request was made under the 25th section of the Act of Assembly of March 15th 1832, relating to Register’s Courts, to wit:
    “ ‘ Where objections are made, or a caveatis entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid, or where objections are made to the granting of letters of administration to any person applying therefor, or where any question of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of any person interested, appoint a Register’s Court for the decision thereof, to be held at a time certain, and as soon as convenient, at the courthouse or other public place in the respective county, giving convenient notice of the time and place of holding the same, by citation or otherwise, to all concerned, as well to the persons interested as to the judges whose assistance he shall require, and in the meantime he shall do and receive all proper acts preparatory to the business of such court.’
    “That the said Joseph Winpenny, petitioner, has no legal or other remedy to compel the production before the register of said checks and alleged deed, except by the appointment of a Register’s Court in pursuance of said section of the Act of Assembly above recited; that the said William M. Bunn, register of wills, has refused the request of said Joseph Winpenny, petitioner, for the appointment of a Register’s Court for the decision of the said matter in controversy ; that the said Joseph Winpenny, petitioner, is entirely without remedy in the premises, unless it be afforded by the interposition of this court, by their writ of mandamus,” &e.
    The writ was returnable March 4th 1871.
    The answer of the register was :—
    “ This respondent, not admitting it to be true as in said petitioner’s petition is alleged, that the subscribing witnesses to the paper writing alleged to be the last will and testament of A. Jackson Winpenny, deceased, or any of them, failed to prove the due and legal execution of said paper, as the last will of said decedent, and as to which the said register has reserved his opinion ; and also averring that the said Joseph Winpenny neither produced nor offered any evidence against the said alleged will, respectfully suggests and submits to -the court that the act of this respondent complained of by the said Joseph Winpenny in his said petition, is a judicial act, and the law provides an ample remedy for any error committed by this respondent in any judicial act; to wit, an appeal to the Register’s Court.”

      J. II. Campbell (with whom were C. T. Bonsall and J. J. Lewis), for the relator.
    There was no question of fact before the register so as to give him discretion under Act of March 15th 1832, sect. 13, Pamph. L. 138; 1 Br. Purd. 406, pl. 8; Cozzens’s Will, 11 P. F. Smith 196; Wikoff’s Appeal, 3 Harris 289; Baxter’s Appeal, 1 Brewster’s R. 459; Graham's Appeal, 11 P. F. Smith 43. The refusal of the respondent to appoint a Register’s Court is not z, judicial act but a ministerial one: Hood on Executors 38; Sect. 5, Act of March 15th 1832, sect. 25, Pamph. L. 136; 2 Br. Purd. 1255, pl. 20; Cozzens’s Will, 11 P. F. Smith 196. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions: Minor v. Mechanics’ Bank, 1 Peters (S. C.) 64; Dwarris on Statutes 712; Davison v. Gill, 1 East 64; Supervisors v. United States, 4 Wall. (S. C.) 447; City of Galena v. Amy, 5 Id. (S. C.) 709. A writ of mandamus will lie to compel the performance of a ministerial act by a public officer: Tapping on Mandamus 64; Moses on Mandamus 49; Commonwealth v. Commissioners of Allegheny, 1 Wright 279. When there is a right, and the law has established no specific remedy, this writ should not be denied: St. Lukè’s Church v. Slack, 7 Cushing 226; Moses on Mandamus 18, 42, 48, 49; Tapping on Mandamus 71; Griffith v. Cochran, 5 Binn. 103; Delaney v. Goddin, 12 Gratt. 266; Illinois Central Railroad, 44 Ill. 353; Commonwealth v. Justices of Hampden, 2 Pick. 414.

      J. Dolman and (x. L. Crawford (with whom was B. II. Brewster), for respondent,
    cited Heron’s Estate, 6 Phila. R. 86.

      March 17th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

Every register has, within his county, jurisdiction of the probate of wills, and of granting letters testamentary and of administration, but he has not the power at discretion of disposing of every matter which may arise in the performance of his functions, if objected to by a competent party. The 25th section of the Act of March 15th 1832 plainly shows this. It says: “ Where objections are made, or a caveat is entered against the probate of any last will and testament, and no precept for an issue is directed by the register into the Common Pleas as aforesaid (sect. 13), or where objections are made to the granting of letters of administration to any person applying therefor, or where any question of kindred or other disputable and difficult matter comes into controversy before any register, he shall, at the request of-any person interested, appoint a Register’s Court for the decision thereof, to be held at a time certain, and as soon as convenient,” &c.

These are plain words, and are imperative beyond a doubt, in any of the contingencies mentioned in the section, that the register shall proceed no farther himself but call a Register’s. Court. The only serious argument against this construction, it was thought, arose out of the 13th section of the same act, which provides that “ whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof, any matter of fact touching the validity of such writing, it shall be lawful for the register, at the request of any person interested, to issue a precept to the Court of Common Pleas of the respective county, directing an issue to be formed upon the said facts, and also upon such others as may be lawfully objected to. the said writing,” &c. In several cases in this court the action of the register has, under this section, been held to be discretionary as to issuing the precept to the Common Pleas for the trial of facts alleged in the caveat as objections to the probate of a will: Wikoff’s Appeal, 3 Harris 281; Cozzens’s Will, 11 P. F. Smith 196. The words in the section “ that it shall be lawful for the register, at the request of any person interested, to issue” the precept to the Common Pleas, clearly imply a discretion. Not so the 25th section. The words there used are as clearly imperative. They are, the register “ shall, at the request of any person interested, appoint a Register’s Court,” on the happening of any of the contingencies mentioned in it. That one of these sections should imply a discretion in the register, and the other not, is to be ascribed to the widely different purposes of the sections. A careful reading of them will very plainly show this. The 13th section has no reference to the Register’s Court at all. It enables the register to ignore it, and apply directly to the Common Pleas for the determination of the disputed facts alleged as the grounds of the caveat; and thus have the facts established by the trial had there, says the section, “and when certified to the register as aforesaid, shall not be re-examined by the said register, nor upon any appeal from his decision.” The 13th section is alone designed for a proceeding under a caveat, and request for an issue to the Common Pleas. This the register may grant or not, at his discretion. But if he refuses, what then ? Is he to go on and try questions of law and fact himself, if objected to by the parties in interest ? By no means. As he is not required to be learned in the law, the act wisely provides that any party interested shall, “ where any question of kindred or other disputable and difficult matter comes into controversy,” either on a caveat to the probate of a will where no issue has been directed by the register as provided in the 13th section to the probate of a will, or in granting letters of administration, have the advantage of law-judges to determine such “ disputable and difficult matters” by making a request for the same. In which case the section says, “ the register shall appoint a Register’s Court to be held at a time certain, and as soon as convenient.” The court thus constituted of the register and any two of the judges of the Common Pleas, may dispose of all disputed facts, or at their discretion direct issues of fact necessary to the determination of the controversy to the Court of Common Pleas; and thus the party will have the advantage of law-judges to hear his case.

This is simple, and need not occasion delay, a remark that has been made with force of the 13th section, and against the idea that its directions were imperative. But under the 25th section a delay of over three or four weeks at most need not occur, as incident to the call of a Register’s Court. This delay is altogether easier to be endured than the grant of letters by the register to objectionable parties, or the probate of a will in the face of “disputable or difficult matters,” only to be reversed on appeal to the Register’s Court. It seems to me the line of action under these two sections is so distinct that the necessary interpretation of either is no precedent for a like construction of the other.

Now, it is not at all intended to be asserted that the register must call a Register’s Court without being presented with a statement of disputed facts, “ disputable and difficult matters,” as the act says. Where that is done, the register is bound to send the case to the Register’s Court: Cozzens’s Will, 11 P. F. Smith, 196. This is the only clause in the 25th section which can be said to imply a discretion on bis part; but where the matter is plainly disputable, his discretion ceases and his ministerial duty begins; that duty is enforceable by mandamus. Where there is nothing disputable and difficult we would not interfere on account of the refusal of the register to call a Register’s Court.

In the case in hand, the suggestion copied into the alternative mandamus, shows that a caveat had been filed at the instance of the relator against the probate of the will of A. Jackson Winpenny. No issue was directed upon it, as might have been done under the 13th section of the Act of 1832. The caveat itself is not on the paper-books, and what were its grounds, we do not know. But the register proceeded to take probate of the will, and the relator sets forth that neither of the subscribing witnesses proved its execution by the testator ; whereupon counsel for the will called other witnesses to prove the genuineness of the testator’s signature. Among them was Charles W. Otto, who, on his examination, producedibefore the register a certain check upon which was a signature of the testator, and “by means of which,” says the suggestion, “ the witness testified as to the manner in which the decedent. spelled his name.” Two other witnesses testified to the genuineness of the signature of the decedent to the writing purporting to be his will, but stated that J. Bolton Winpenny, who offered the will for probate, had exhibited to each of them a check upon which the testator’s name purported to have been written, and asked them if they could recognise the testator’s signature to the will; that the contestant of the will of the testator demanded of the counsel of J. Bolton Winpenny, the production of the check or checks used by his witnesses, and which he alleges was material to him in the matter in controversy; and also for the production of an alleged deed of the testator, in his, the said J. Bolton Winpenny’s, possession, which he through his counsel refused to produce, as well as said checks, and which also he alleges to be material in the determination of his case. Upon this refusal, the relator avers that inasmuch as the register has no general power to enforce the' attendance of witnesses, or the production of papers, excepting wills, and the subscribing witnesses thereto, he applied to the register to convene a Register’s Court for the determination of the matters in dispute arising on the question of the probate of the said will. This request, it seems, the register declined to comply with.

The answer of the respondent, the register, to the alternative mandamus, is simply that whether he is to call a Register’s Court or not, is a judicial duty and act, and cannot be coerced by mandamus ; and that the only remedy of the relator is by appeal when he shall have decided the question before him, which he still reserves for a future opinion upon.

We have decided the point already against this position on what has been said above on the 25th section of the act. When a sufficient case has been shown, we have said that the register is bound to call a Register’s Court, and so says the case of Cozzens’s Will, supra. Of course, at that point, the acts of the register are no longer judicial, they necessarily become ministerial. Mandamus lies not to enforce judicial action, it is admitted, but does to enforce ministerial duties, even when they are to he performed by judicial officers: Commonwealth ex rel. Griffith v. Cochran, Sec’y of the Land Office, 5 Binn. 87; Commonwealth v. The Commissioners of Allegheny County, 1 Wright 279. This writ lies to compel the performance of a ministerial act by a public officer: Tap. on Man., Am. ed. 1858, pp. 65, 67; Moses on Mand. p. 49. This point need not be further discussed, the principle is elementary.

Bid the relator present to the register on requesting a Register’s Court to be called in relation to the probate of the will in question, such a case as entitled him to have his request granted ? We are of opinion1 he did. We discover no power in the register to subpoena and compel the attendance of witnesses other than the subscribing witnesses to, or witnesses alleged to be capable of proving a will, or to enforce the production of any paper, saving and excepting the testamentary writing itself. That power is expressly given by the 8th section of the Act of 1832, and by the 9th section of the act, the register is also authorized to issue commissions to take the depositions of witnesses on interrogatories filed in his office, in other counties or states, or in foreign countries. This is all the power on the'subject of testimony given to the register by the act. This being so, the register could not compel the production of the checks used by the witnesses for the will, and from which it would seem, comparisons were drawn, with the signatures to the will, and which J. Bolton Winpenny refused to produce, to be used by the relator. It is, therefore, very probable, that he could not meet the evidence of these witnesses without the production of these papers, and their production could only be certainly secured in a Register’s Court.

In nothing said herein do we mean to say that the acts of the register are in no case judicial. They are always so, where, without any objections probate has been made of a will, or upon granting letters of administration. There the redress is by appeal. These acts cannot be impeached collaterally.

There is a decision of the Register’s Court, in 6th Philadelphia Reports, p. 86, Alex. Herron’s Estate, which refers to the 25th and 41st sections of the Act of 1832, and seems to hold it discretionary under both sections with the register, under the former section, and the Register’s Court under the latter, whether in the one case the register shall call a Register’s Court when requested, or the Register’s Court shall direct all issues when requested. There is no parity in reason between the two acts. The Register’s Court, with judges learned in the law and with all the powers of a court, ought in r'eason unless expressly limited, to be allowed the discretion of a court in determining upon the necessity of employing auxiliary powers to determine upon ultimate results, especially where both delay and expense are sure to follow its exercise; but it is a different case when deficient powers, as well as inadequate qualifications exist; the reason for a different rule is thus apparent, and marks the distinction between the terms used by the legislature in these different categories. It is enough to say here, of the case referred to of Herron’s Estate, 6 Phila. Rep. sup., that it arose under a different section of the Act of 1832, (viz. the 41st) from that which gave rise to the application here. That was for an issue from the Register’s Court to the Common Pleas; this for a call of the Register’s Court only. The Act of 1832 is not of very easy consistent interpretation, but every section was undoubtedly designed to have its peculiar operation in the system provided by it, and must be so construed. The revisers say that it was “compiled from nearly twenty different Acts of Assembly and Statutes,” it was therefore doubtless very carefully considered by them, and all its provisions must be construed to give effect to the whole if possible. We are of opinion, after a careful study of the act, that it was the duty of the register in this case to have called a Register’s Court for the reasons set forth in the request for it in the case, and in the suggestion filed, and that the answer of the respondent is altogether insufficient in law to answer the suggestion of the relator.

Now, March 11th 1872, after argument by counsel, and consideration of the premises by the court, we are of opinion that judgment be entered herein for the Commonwealth, and that a peremptory mandamus do issue against the said William M. Bunn, register, to proceed forthwith to do the matters and things in the alternative mandamus mentioned, namely, to call a . Register’s Court for the hearing and determining upon the probate of the will of A. Jackson Winpenny, now pending before him, and he is ordered to pay the costs of this suit.


text:
    Keller versus Commonwealth.
    1. The local act (Lancaster and other counties) of February 27th 1867, was repealed by the general Act of April 13th 1867 (Desertion), so far at least as the provisions are inconsistent. 1
    2. The Act of April 15th 1869 was intended as a supplement to the Act of April 13th 1867, although entitled a supplement to the Act of February ; it did not revive the latter act.
    3. A resident of one county is amenable to the Quarter Sessions of another in which the charge of desertion is made.
    4. Complaints of desertion and decrees in favor of defendant in the Lancaster county sessions in 1867 were not a bar to a complaint in Berks county in 1871.
    5. A grandfather sued a father in Lancaster county for maintenance' of his children, and obtained an award which was appealed from. This was no bar to proceedings against the father on complaint of the grandfather in the Sessions of Berks, for desertion and maintenance of the children.
    6. On complaint by a grandfather against the father for desertion and maintenance, a decree could not be made against the defendant in favor of the complainant for a sum of money for past maintenance: the complainant’s remedy for that was by action.
    7. A defendant willing to take his children and maintain them is entitled to their custody, and should not be compelled to pay another for their support.
    8. Demott». Commonwealth, 14 P. B. Smith 305, adopted.
    March — 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the of Quarter Sessions of Berks county: No. 56, to January Term 1872.
    On the 2d of March 1871, Jacob Good made complaint before an alderman of the city of Reading against Frederick Keller, that he had deserted Mary Ann his wife, who was the daughter of the complainant, and that Keller left two children, whom he neglected to maintain. The defendant was brought before a justice of the peace of Lancaster county, who bound him over to appear at the Court of Quarter Sessions of Berks county, on the 7th of August then next.
    The defendant then appeared, and protesting that “he is not guilty,” pleaded:—
    1. That the said court ought not to take cognisance of the complaint, because the alleged desertion,. the offence charged, took place, if at all, in Lancaster county, where the parents of the children resided, whence they were taken by this complainant, and where the defendant ever since resides.
    2. That the offence charged wras heretofore disposed of by the Court of Quarter Sessions of Lancaster county, brought before said court by two complaints made by the mother of said children. The one. made March 12th 1867, returned to April court 1867, and dismissed by said court; the other made June 21st 1867, returned to August Sessions 1867, and on August 21st 1867, settled by the parties by leave of court, all of which the defendant will verify.
    3. That defendant is now and at all times has been willing to take charge of his said minor children, of whom he has been wrongfully deprived by this present complainant, and will support, maintain and educate them well and sufficiently, such as becomes a parent.
    4. The defendant, being a resident of Lancaster county, and always has been so, he can only be tried in the Court of Quarter Sessions of that county, which has exclusive jurisdiction by virtue of an Act of Assembly, passed February 27th 1867, entitled “ An act for the relief of wives and children deserted by their husbands and fathers in certain counties of this Commonwealth,” to hear and determine the offence with which he is charged.
    5. The complainant, Jacob Good, instituted, on the 19th day of October 1869, in the Court of Common Pleas of Lancaster county, a suit to November Term 1869, No. 20, in assumpsit to recover from the defendant damages for the support and maintenance of defendant’s minor children, with the desertion of whom the defendant is now charged by the complainant, and which suit was pressed by the plaintiff to an arbitration, which awarded $300 in favor of plaintiff, from which award defendant appealed, and which suit is still pending and undetermined.
    The court (Hageman, J.), after hearing the evidence, decreed, 23d September 1871, “ That Frederick Keller, the defendant, father of the children, viz., Adaline Keller and Franklin Keller, pay to Jacob Good $250 for the support and maintenance of the aforesaid children, from the 1st day of November, A. D. 1869, to the 23d day of September A. D. 1871. That he pay to Jacob Good $1.25 per week for each, viz., Adaline Keller and Franklin Keller, making $2.50 per week for both children; the aforesaid $250, as also the weekly allowances to be paid to Jacob Good, the said weekly allowance to be paid in quarter-yearly instalments to Jacob Good, commencing this day; to enter recognisance, with at least one good and sufficient surety, in the sum of $600, conditioned for the payment of the aforesaid $250, as also for the payment of the said $1.25 per week to the said Jacob Good; to pay the costs,” &c.
    The defendant appealed to the Supreme Court, and assigned the decree of the Quarter Sessions for error.
    The Act of February 27 th 1867, Pamph. L. 271, entitled “An act for the relief of wives and children deserted by their husbands and fathers in certain counties in this Commonwealth,” provides that if any father within the limits of Lancaster county (and other counties named) shall neglect to maintain his wife and children, &c., a magistrate within those counties shall issue his warrant for arrest and bind the defendant over to the next Court of Quarter Sessions of the county.
    The 2d section of this act is substantially the same as the next following act.
    The Act of April 13th 1867, Pamph. L. 78, entitled “ An act for the relief of wives and children deserted by their husbands and fathers within this Commonwealth,” provides that any justice of the peace, &c., of the Commonwealth, upon information by the wife, children or other person, that the husband or father has separated himself from his wife and children and neglected to maintain them, &e., shall issue a warrant and bind him over to the next Court of Quarter Sessions for desertion.
    Section 2d provides that upon hearing the court may order the defendant “ to pay such sum as the court shall think reasonable and proper for the comfortable support and maintenance of said wife and children,” and commit such person to prison until he comply with the order or give security, &c.
    The Act of April 15th 1869 is entitled “ A supplement to the act for the relief of wives deserted by their husbands in the county of Lancaster and other counties, approved 27th day of February 1867.”
    This provides that when the court “ of any county in this Commonwealth shall under the 2d section of the act of which this is a supplement commit the person complained of to prison,” the court, after three months, if satisfied of his inability to give security, may discharge him from imprisonment.

      J. Shatter and W. JR. Wilson, for appellant.

      D. if* J. N. JErmentrout, for Commonwealth.
    October 23d 1872,
   The opinion of the court was delivered, by

Williams, J.

The general Act of the 13th of April 1867, for the relief of wives and children deserted by their husbands and fathers, Pamph. L. 78, repealed the local Act of the 27th of February 1867, Pamph. L. 271, so far as the latter is inconsistent with its provisions, if it did not wholly supersede it: Nusser t>. The Commonwealth, 1 Casey 126. Nor was it revived by the Act of the 15th of April 1869, Pamph. L. 75, which, though entitled a supplement to the Act of the 27th of February 1867, was intended as a supplement to the general Act of the 13th of April 1867, as its provisions clearly show. The recital of the title of the act which it was intended to supplement, is so clearly a mistake, that we have no hesitation in treating it as such, and regarding the supplement as a part of the general act. Under the provisions of this act the defendant, though a resident of Lancaster county, was amenable to the Court of Quarter' Sessions of Berks county, in which the information for desertion was made, and the warrant for his arrest was issued. There is nothing in its provisions, as said by our brother Sharswood, in Demott v. The Commonwealth, 14 P. F. Smith 302, to confine the jurisdiction of the offence to the court of the county where the defendant has his residence or settlement. The whole scope and purview of the statute is inconsistent with such an intention. The defendant then, having been arrested in Lancaster county, where he resided, was properly bound over to appear at the next Court of Quarter Sessions of Berks county, there to answer the said charge of desertion.

Nor were the proceedings in the Court of Quarter Sessions of Lancaster county, on the complaints previously made by the mother of the children, as set out in the defendant’s second plea, a bar to the proceedings in this case. If, upon the complaints made by the wife in 1867, the Quarter Sessions of Lancaster county refused to make an order requiring the defendant to pay any sum for the support of herself and children, on the ground of his alleged desertion, dismissing the complaint in the one case and granting leave to the parties to settle it in the other, it does not follow that in 1871, when the complaint in this case was made by the grandfather of the children, the defendant was not liable to an order to pay a reasonable sum for the support and maintenance of his children, if it were shown that he had deserted them. It is equally clear that the pendency of the action of assumpsit instituted by the complainant in the Common Pleas of Lancaster county, at November Term 1869, No. 20, to recover compensation of the defendant for the support and maintenance of the children, as averred in the second amended plea, is no bar to this proceeding. That action was brought to recover the amount alleged to be due and owing for their support and maintenance at its institution. The complaint in this case was made for the purpose of obtaining an order of the court requiring the defendant to pay for their future support and maintenance. But there is more substance in the assignment of error in the decree as made by the court. It is clear, from all the provisions of the act, that it was not intended to provide a remedy for the recovery of the expense previously incurred in the support of minor children whose father had deserted or neglected to maintain them, but to provide a mode of compelling him to pay a reasonable sum for their future support and maintenance. So far, then, as the complainant has any claim for the past support and maintenance of the defendant’s children, his remedy is by an action at common law in which the defendant will be entitled to have the question and extent of his liability determined by a jury, and he cannot be deprived of this right under the summary proceedings authorized by the statute. So much of the decree, therefore, as orders the payment of a specific sum for the previous support and maintenance of the children, is clearly erroneous and must be set aside.

If the defendant is now and at all times has been willing to take charge of his children, and to support, maintain and educate them well and sufficiently as becomes a parent, as averred in his third plea, he is clearly entitled to their custody, and ought not to be compelled to pay the complainant for their support and maintenance. But we must presume that he failed to satisfy the court below of'the truth of this plea by any sufficient evidence, otherwise the court would have refused to make the order for their support. If he is really willing to support and maintain his children, the way to obtain their custody and a vacation of the decree for their support, is clearly indicated in the opinion of Mr. Justice Agnew, in the case of The Demott v. Commonwealth, 14 P. F. Smith 805, in which he says : “ Maintenance is the sole object of the act, and when the father is really willing to maintain his child at home, and makes a boná fide claim for this purpose, I see no reason why he shall not recover its custody, perform his duty, and go into the Quarter Sessions to obtain a suspension of the order, and in the end a vacation of the decree, on satisfying the court that he is maintaining it properly.” The way is therefore open for the defendant to show his willingness to maintain his children, and to obtain a vacation of the decree for their support.

And now, October 17th 1872, it is ordered, adjudged and decreed, that so much of the decree of the Court of Quarter Sessions as requires the plaintiff in error, the defendant below, to pay to Jacob Good, $250 for the support and maintenance of the aforesaid children (Adaline Keller and Franklin Keller), from the 1st of November 1869 to the 23d of September, A. D. 1871, he and the same is hereby reversed and'set aside; and that the residue of the said decree (except so much thereof as provides that one of the conditions of the recognisance into which the defendant is required to enter, shall be for the payment of the aforesaid $250), be and the same is hereby affirmed. The costs of this appeal to be paid by the appellant.


text:
    The Delaware & Hudson Canal Co. versus Loftus.
    1. A party waives his right to quash,by acquiescence in an appeal from a justice, and this may be inferred from delay as well as other acts.
    2. Appearing to an appeal and receiving pleas without objection till the third term, was a waiver to an objection to the form of the appeal.
    3. The justice’s transcript showed “summons in debt,” and “plaintiff claimed in a plea of debt for work and labor done for defendants,” judgment for plaintiff, and appeal by defendants under the general law: nothing appearing on the docket to show that the labor was under the Act of March 12th 1859, for securing compensation for labor in Luzerne. The court, on the affidavit of plaintiff that the labor was of the kind mentioned in the act, struck off the appeal because not taken in accordance with it. Held to be error, the justice’s transcript could not be aided by the affidavit.
    4. That the claim was under the Act of 1859, should appear by the justice’s record.
    March 11th 1871.
    Before Thompson, O. J., SHARSWOOD and Williams, JJ. Agnew, J., at Nisi Prius.
    Writs of error to the Mayor’s Court of Scranton: No. 408 and 409, to January Term 1871.
    The causes of action in both the cases brought up by these writs of error were precisely similar. They were suits brought by James Loftus against The Managers and Company of the Delaware and Hudson Canal Company, before M. W. Loftus, a justice of the peace.
    The first was a “ Summons Debt,” issued May 31st 1869. * * *
    “ Now, June 7th 1869, parties appear and plaintiff claims $26 in a plea of debt for work and labor done for defendants, and adjourned by request of defendants until June 14th 1869, at 1 P. M. * * *
    “Now, June 15th 1869, at 4 p. M. Judgment publicly in favor of plaintiff for $26, against the defendants, with costs.
    “ Now, June 25th 1869, defendants appeal. I am held in the sum of $75 as bail absolute, conditioned for the payment of all costs accrued or that may be legally recovered against the appellants on final adjudication in this case, according to the Acts of Assembly in such cases made and provided. James Jordbn.”
    The appeals were filed in the Common Pleas, August 31st 1869. December 22d 1869, defendants pleaded “non assumpsit,” ha".

    On the 19th of January 1870, the plaintiff filed the following afiidavit:—
    “ James Loftus, the plaintiff above named, being duly sworn according to law, deposeth and saith, that the action in this case was brought against’ the above-named defendants, being a company engaged in the mining of coal in the county of Luzerne, for the recovery of wages and moneys due to the said plaintiff from the said defendants for labor and service performed for the said defendants by the said plaintiff during the year 1869, said plaintiff then being a laborer employed in and about the coal business of said defendants at their coal-mines in the township of Blakely, county of Luzerne, Pennyslvania.”
    And on the 16th of February the court granted a rule on the defendants to show cause why the appeal should not be stricken off.
    The plaintiff took depositions to prove that the cause of action was within the Act of March 30th 1859, hereafter stated.
    “7th November, 1870, ‘ Court permit defendants to file an affidavit under Act of Assembly, and otherwise perfect his appeal by the first day of next term, and thereupon rules in these cases to be discharged, otherwise rules to be made absolute.’
    “ 29th December, 1870, on motion of W. H. Stanton, attorney for plaintiff, the court order the rules in these cases to be made absolute.”
    The Act of March 30th 1859, § 7, Pamph. L. 305, provides that in appeals from judgments of justices of the peace for wages, &c., for labor from any person or chartered company engaged in mining coal in the county of Luzerne, the appellant shall make oath that it is not for the purpose of delay, but because he firmly believes injustice has been done, and the bail on appeal shall be absolute in double the amount of the judgment and costs.
    The defendants took a writ of error, and assigned for error the proceedings to strike off the appeal, and making the rule absolute.

      Sand Post, for plaintiffs in error.
    It was too late to make the motion after defendants below had entered their pleas, and at the third term of court after the appeals had been entered: Weidner v. Matthews, 1 Jones 339; Zeigler v. Fowler, 3 S. & R. 238; Cameron v. Montgomery, 13 Id. 128; Clark v. McNulty, 3 Id. 364.
    The record did not show that the judgment was for the labor provided for in the act, and the defendants were required only to notice what appeared on the record of the alderman. This deposition should not have been received.
    The docket of a justice is the best evidence of what transpired before the justice: Coffman v. Hampton, 2 W. & S. 377; Seibert v. Kline, 1 Barr 43.
    There was no argument or paper-book by defendant in error.
    May 13th 1873,
   The opinion of the court was delivered, by

Thompson, C. J.

The defendant in error in these cases has not furnished an argument written or oral to this court; we have, however, given to the assignments of error all due consideration, but without being able to coincide with the learned recorder in opinion, that it was proper to quash these appeals of the plaintiff in error, from the judgment of the alderman.

In the first place the plaintiff^below was too late in making his motion to quash. The appeals were taken and entered to the September Term of the court, and the plaintiff appeared to them by counsel. At December Term the defendant pleaded to the action non assumpsit, payment with leave, and set-off. On the 16th of February 1870, at the third term, says the paper-book of the plaintiffs in error, on motion of the plaintiff’s attorney and affidavit filed, the court grant a rule on defendants to show cause why the appeals should not be stricken off. A rule to take depositions to be read on this rule was entered by plaintiff, and depositions were taken and filed on the 14th May 1870. Under this testimony a rule was entered against defendants to file an affidavit under the Act of Assembly, and otherwise perfect the appeals by the next term, or in default, the rule to strike off to be made absolute. Accordingly, on default of the defendants to comply with the rules, the appeals, or rather the two appeals, were stricken off.

The cases are too numerous to require citation, that a party waives his right to quash by acquiescence in an appeal; and this may be inferred from delay as well as other acts. Now was not the act of appearing to the appeals by the plaintiff in this case, and receiving pleas by the defendants without objection, until the third term of the court, a waiver of objection to the form of the appeals, even if objectionable for the reasons on which they were struck off? Undoubtedly the defendant must have expected and was preparing all this time to try its cases on the appeals. This is shown by its attention to the cases, as the pleas entered evidently show. In Weidner v. Matthews, 1 Jones 336, it was iheld as it had been before, in the cases cited in the opinion of the learned judge, that “ objections to the recognisance, &c., on appeal, must be taken in a reasonable .time, and before other steps are taken to prepare the case for trial, or they will be considered as waived Clark v. McNulty, 3 S. & R. 364, and Cameron v. Montgomery, 13 Id. 128, fully sustain this doctrine. The same principle is to be found in Carothers v. Cummings, 13 P. F. Smith 199. We think the laches of plaintiff in moving to quash the appeals, he being in court by appearance on the record all the while, and having notice of defendant’s preparation for defence, were too great at the third term, to entitle him to success, and that the court erred in striking them off.

But on the face of the justice’s transcripts there were really no grounds for objection to the appeals. They were taken and entered in time; the recognisances were in the usual form, and the bail sufficient. The justice’s transcripts did not show that the_ action was brought under the Act “ For the better securing the compensation of labor in the county of Luzerne,” passed the 12th of March 1859. Nor did it appear that the defendant was engaged in mining coal, and that in this business the plaintiff had performed the labor and services for which he sued. Had all this appeared by the justice’s transcript, it would have been apparent that the recognisances were insufficient, and the appeals incomplete for want of the affidavit required by that Act; but this appears not otherwise than by the affidavit of the plaintiff made after the appeals taken. But it was not thus that the justice’s transcript could be supplemented, when the effect would be to deprive the defendant of trial by jury. The cases on the transcript were the ordinary cases for work and labor, and the appeals were in proper form in such cases, and we think the learned recorder erred in going outside the record for a reason for striking them off.

The judgments of the Mayor’s Court striking off the appeals are reversed, and the cases are ordered to be reinstated, to. be* proceeded in according to law.


author: Sharswood, J.

text:
    Burger versus The Farmers’ Mutual Insurance Co.
    1. The rules of an insurance company required that notice of the transfer of a policy should be given to the company ; in an action by a transferee, who had not given notice, to recover for loss by fire, evidence that the company had “ always permitted and do now permit such transfers to be made, Hela to be inadmissible.
    2. Evidence of a usage of trade is competent in construing the terms of a contract.
    3. A policy in a mutual insurance company was assignable by its terms; its charter provided in case of alienation of the property insured, the policy should be void. Held, that an alienee of the property to whom the policy had been assigned, could not recover on the ground of want of knowledge of the provision.
    4. The original party insured was bound to know the provision, and his assignee had no higher right.
    May 6th 1872.
    Before Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 1, to May Term 1872.
    This was an action of debt brought December 9th 186?, by Philip A. Burger against The Farmers’ Mutual Insurance Company of Lancaster County; to recover for loss by fire of the property of plaintiff insured by defendants.
    The policy on which the plaintiff claimed was issued to Henry Diegle, April 20th 1864, and was on a frame dwelling-house, kitchen and bake-house, frame stable and frame tobacco-shed, altogether valued at $1880. The policy covenanted “to make good, &c., unto the said insured, his heirs, executors, administrators and assigns,” the loss, &c.
    The company were incorporated under an Act of Assembly approved January 31st 1844, the 7th section of which provided: “ When any property insured vpth this company shall be aliened by sale, or otherwise, the policy shall therefrom be void, and shall be surrendered to the directors to be cancelled.”
    On the 1st of April 1868, Diegle conveyed the property insured to Burger the plaintiff.
    Afterwards Diegle endorsed on the policy the following: “ For a valuable consideration to me in hand paid by the said P. A. Burger I do hereby assign, transfer and set over all my right, title, claim and interest to and in the within policy to the said P. A. Burger, his heirs and assigns; he agreeing to pay all the taxes that may henceforth be assessed on the said property by the Farmers’ Mutual Insurance Company.
    “ Witness my hand and seal this 28th day of December, A. D. 1868.”
    The plaintiff gave in evidence the foregoing facts, and after evidence by defendants, offered in rebuttal, “ to prove by witnesses, that notwithstanding the Act of Assembly, the company (defendants) always have permitted, and do now permit such transfers to be made, and proposed to show to the court and jury a number of such transfers then in his possession.” The offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    After evidence on both sides, the case being closed, the plaintiff submitted this point:—
    The plaintiff having received for a valuable consideration a policy issued by defendants, which on its face is assignable, and which has no reference to any conditions, precedent or otherwise, or any other stipulation, and having no knowledge of the provisions of the Act of Assembly incorporating the defendants, regulating assignments and transfers, and not being bound to know the provisions of the charter of defendants, which is. a private act passed in 1844, is entitled to recover in this case notwithstanding said act.
    The court (Hayes, J.) said: “ I answer that he is not entitled to recover, and that the verdict of the jury should be in favor of the defendants.”
    The verdict was for the defendants.
    The plaintiff took a writ of error and assigned for error the rejection of his offer of evidence and the answer to his point.

      B. Gr. Bshelman and A. Herr Smith, for plaintiff in error.
    The company could waive a compliance with their rules: Helme v. Phila. Life Ins. Co., 11 P. F. Smith 111; Carroll v. Charter Oak Ins. Co., 38 Barbour 402. As to tbe answer to tbe point they cited Lycoming Ins. Co. v. Mitchell, 12 Wright 367. The act being private the defendants were not bound to know its provisions : 1 Blackstone’s Com. 86.

      A. M. Frantz and N. MllmaTcer, for defendants in error.
    Each person insured in a mutual company is a member and bound to know its rules, &c.: Mitchell v. Lycoming Mut. Ins. Co., 1 P. F. Smith 402; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348; Angell on Ins., sect. 10, p. 47. The alienation avoided the insurance: Eerree v. Oxford Ins. Co., 17 P. F. Smith 373.
    May 16th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The offer of the plaintiff below, the rejection of which, by the court, forms the subject of the first assignment of error, was not an offer to prove a usage, to give a construction to the contract. But it was an offer to show that the defendants, the insurance company, had in other instances, and as to other parties, waived a compliance with the condition or regulation requiring that, in case of a transfer, notice should be given to them, and the policy surrendered to be cancelled. Of what avail is it to cite cases to prove that an insurance company may waive a compliance with its own rules, or the conditions of the contract? There was no offer to prove a waiver in this case, but it was to prove that notwithstanding the charter of the company, which provided that “ when any property insured in this company shall be aliened by sale or otherwise, the policy shall therefrom be void, and shall be surrendered to the directors to be cancelled,” the company always have permitted, and do now permit such transfers to be made, and that they have great numbers of these transfers in possession. The case of Helme v. The Philadelphia Life Ins. Co., 11 P. F. Smith 107, does not support the contention of plaintiff in error. There, the offer was not to show that the insurance company sued, had, in other instances, allowed thirty days grace for the payment of premiums due, when a clause for forfeiture for non-payment on the day existed; but that such was the custom of all life insurance companies. In other words, the offer was to prove a usage of trade — which has always been held competent to give a construction to the terms of a contract.

The second assignment of error is to the answer of the court to the point of the plaintiff below, which was, in effect, that inasmuch as the policy of insurance on its face was assignable, and the plaintiff had no knowledge of the provisions of the charter, he was, nevertheless, entitled to recover. 'But it is very clear that this being a mutual insurance company, all persons insured become members; and Henry Diegle, the party originally insured, must be held to have known the provisions of the charter. A policy may be an assignable but it is not a negotiable instrument. Burger, therefore, could have no better right than his assignor, Diegle, who was bound to know the terms of the charter, which, upon an alienation of the property, required the policy to be surrendered.

Judgment affirmed.