author: Mr. Justice Merour

text:
    Prutzman versus Bushong et al.

    1. Under the Act of 21st May 1861 (Pamph. L. 550), relating to mechanics’ liens in Berks county, a mechanic’s lien binds the same estate in land as a judgment would if entered at the date of the lion.
    2. If the person in possession at the commencement of the building, at whose instance the Avork was done, has any estate in the land, the lien binds that estate.
    3. Though it be the rule that the possession of the person Avhose estate is to be encumbered must be actual and not constructive, yet the estate of one who has constructive possession only is not exempted from the lien unless some other person is in the actual possession.
    4. In a scire facias on a mechanic’s lien for repairs, the plaintiff’s evidence shoAved that the defendants OAvned the legal estate, that the contract Avas made with them personally, although the plaintiff knew that they Avere officers of the B. 0. Railroad Co. and that the defendants told him the Avork Avas being done to prepare a depot, &c., for the W. & R. Railroad Co. There was no evidence that a railroad company Avas in possession of the property when the work was begun. The court below ordered a nonsuit on this evidence : Held, that the case should have gone to a jury.
    February 27tb and 28th 1877.
    Before Agneav, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 158.
    Scire facias on a mechanic’s lien filed by Prutzman for repairs and alterations done to a car-house and other buildings belonging to Bushong and Craig ; the latter were named in the lien as owners or reputed owners at the time the work was done. At the trial before Sassaman, A. L. J., the plaintiff testified that he contracted for the work with Bushong and Craig personally; that although he knew at the time that they were officers of the Berks County Railroad Company, nothing was said about doing the work on account of that company, but, on the contrary, they told him that they were getting the buildings ready for the Wilmington and Reading Railroad Company; that when the work was begun the “ building was a mere shed, open all around, and no tracks were laid through it;” that while he was at work, tracks were laid in the car-house, and that there were no locomotives there at that time. One Sands, a witness for the plaintiff, then testified that there were no tracks in the building when he -was working there with Prutzman, nor any signs of a turn-table when they first commenced work on the roof; that while they were at work the car-house was being fitted up for a round-house to store engines and cars in; and that a switch had been made and tracks were being laid at the time.
    The defendants moved for a nonsuit on the ground that “ the property was used by, and in the possession of, a railroad corporation, and that at the time the work was done, the property was not in the possession of the defendants.” The court ordered a nonsuit, which it afterwards refused to take off. The plaintiff then brought this writ of error, assigning for error the refusal to take off the nonsuit.

      A. Gr- Green (with him B. H. Shearer), for the plaintiff in error.

      G. B. Baer, for the defendants in error.
   Mr. Justice Merour

delivered the opinion of the court, May 7th 1877.

This was a scire facias on a mechanics’ lien. The court ordered a nonsuit. The only question is whether the case should have been submitted to the jury.

The Act of 1836, which gave the mechanic or the materialman a lien, gave him execution of the building to which he had contributed his labor or materials, without regard to the quantum of the estate held by the contracting owner. It treated the estate bound by the lien as a fee. Hence it was held in Beckel v. James, 7 Watts 9, that a sale on a mechanic’s lien filed against a contractor, who had an equitable interest only in the land, divested not only -that equitable estate, but also the legal estate of the vendor. The Act of 1840 declared that the Act of 1836 should not be construed to extend to any other or greater estate in the ground on which any building might be erected than that of the person in possession at the time of commencing said building at Avhose instance the same was erected. The Act of May 1861, Purd. Dig. 1028, pl. 20, extended the right of lien in Berks county to debts contracted for work done, or materials furnished, in the repair, alteration or addition to any house or other building. The claim, then, if filed within the time limited by the statute, had the effect of a lien as of the date of the commencement of the building or of making the repairs, alterations or additions. In other words, it binds the same estate in the land as a judgment Avould if entered at that time. If the person in possession at the commencement of the building or of the repairs, at Avhose instance the same was done, had any estate in the land, it bound that estate. Hence it was held in Van Billiard’s Adm’rs v. Nace et al., 1 Grant 233, that the recovery in a scire facias on a mechanic’s claim does not depend -upon the quantity of the defendant’s interest in the land. The claim is a lien on that interest only, and Avhen judgment is obtained, and execution issued, no more can be sold. It is true it was said in Bremmer v. Sheik, 9 W. & S. 119, on the authority of Siner v. Moore, not reported, that the possession of the person whose title is to be encumbered must be an actual and not a constructive one. I do not, hoAvever, understand that the estate of one Avko has constructive possession only is exempted from the lien, unless some other person is in the actual possession.

Referring to the evidence given in this case, it appears that the defendants Avere the unquestioned owners of the legal estate. If they were in possession that estate Avould be bound. We think the evidence most ample on that point to submit to .the .jury. The plaintiff testifies that he made the contract Avith the defendants only; that Avhile he understood they Avere officers of the Berks County Railroad, yet they told him they wanted this building to accommodate the Wilmington and Reading Railroad. When the plaintiff commenced Avork “ the building Avas a mere shed, open all around; no tracks were laid through the house then.” Clifton Sands also testified that he Avorkod on this building for Prutzman, and that there were no tracks running through the building, and no signs of a turn-table when he began the Avork. If the testimony be correct, no railroad company was using or occupying this building, and the work AA'as done under a contract with the oAvners of the legal title. The fact of its being understood that the building was designed for the use of some railroad company, but for which one does not clearly appear, did not take the possession from the owners of the land and contractors for the work. The eAddence in support of the plaintiff’s vieAY of the case was sufficient to have been submitted to the jury, and the learned judge erred in not taking off the nonsuit.

Judgment reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Sands et al. versus Fritz.
    1. In debt upon a replevin bond an affidavit of defence was filed which set forth that after judgment in the suit in replevin the defendant had su3‘rondered all the property replevied except a part which was missing, and that in the stead of the latter other and more valuable articles of the same description had been delivered to plaintiff, who had accepted the same, retaining a part and selling the rest. Reid (reversing the court below), that this affidavit was sufficient.
    2. Per Woodward, J. There is room for grave doubt whether this action can properly be brought within the operation of any of the statutes authorizing the entering of judgment for want of an affidavit of defence, and the practice of requiring affidavits of defence in such eases as this would seem capable of producing mischief and injustice.
    February 9th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1876, No. 139.
    Debt on a replevin bond brought by Peter Fritz, assignee, against Joseph R. Sands and others.
    Fritz seized a stock of goods in the marble yard of Sands, one of the defendants, under a distress for rent. Sands- issued a replevin and gave bond conditioned for the return of the property in the event of the failure of his suit. Fritz obtained judgment and brought this action against Sands and his sureties on the bond. Sands filed an affidavit of defence which set forth “ that Joseph R. Sands, one of the defendants named in the warrant of distress replevied the property distrained upon, to wit(here followed a list of the articles); “that deponent, with one Edward Pepper, became the sureties in the replevin bond, upon which bond this suit is brought; that one of the conditions of said bond is that if the property so replevied should not be delivered up, if the plaintiff in said replevin suit did not prosecute his suit with effect, then, that said sureties should be responsible for the amount of the rent due at the time ; that the plaintiff (in said replevin) did not prosecute his said suit with effect, and after judgment had been entered in said suit in favor of the above-named plaintiff Eritz, deponent, acting under advice, sent for said Joseph E. Sass, bailiff of said landlord, and delivered up to him the possession of the said marble yard. That at the time of the said delivery, there was found by said bailiff upon said premises the following articles, to wit(here followed a list, including the greater number of the articles in the foregoing list, but containing others not comprised therein), “ as appears by the appraisement made by said bailiff, and said goods and chattels were appraised at the sum of $451. Deponent is informed and believes, and expects to be able to prove, that the property so delivered up to the said Joseph E. Sass, bailiff, was of more value than that originally distrained upon ; that most of the articles dis-trained upon were included in that delivery, and that upon some of them, additional work had been expended between the time of the original distraint, and the delivery up by deponent as aforesaid, and that a number of articles which were not upon the premises when the original distraint Avas made Avere there at the time of the delivery aforesaid, and were included in said delivery and AA’ere sold by said bailiff for the said rent. Deponent is advised and believes, and expects to be able to prove, that, on or about the 4th day of February last, said bailiff sold a large number of the articles so distrained upon, under the said landlord’s warrant, for the sum of $216.92, and that said plaintiff removed from the said place, and now has either in his actual possession or under his control, quite a number of articles which he claimed to be his individual property, or Avhich were sold and the buyers failed to come and pay for, which were included in said distraint and delivery.”
    The court entered judgment for want of a sufficient affidavit of defence which Avas the error assigned by the defendants, who took this writ.

      J. Alexander Simpson, for plaintiffs in error.

      G. B. Watson and Henry B. Freeman, for defendant in error.
    February 19th 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

On the 9th of June 1875, Peter Fritz, the plaintiff below in this suit, by his bailiff, Joseph E. Sass, seized a stock of goods in the marble yard of Joseph R. Sands, one of the defendants, under a distress for rent.' Sands issued a replevin, and gave bond conditioned for the return of the property if his suit should fail. The replevin resulted in a judgment for Fritz, who brought this action of debt against Sands and his sureties on the replevin bond. An affidavit of defence was made by William L. Sands, a surety, and one of the defendants, setting forth that after the judgment he sent for Sass, the plaintiff’s bailiff, and surrendered to him the possession of the marble yard, with all the property it contained. A schedule of the goods delivered was embodied in the affidavit, which embraced also a schedule of the goods previously distrained. The goods described in the two schedules were in large part identical, and it was averred that the articles specified in' the first which were not returned were replaced by others of greater value, when the final surrender was made and the final schedule was drawn up. The affidavit alleged that the property delivered was appraised at the sum of $451; that part of it was sold by the bailiff for the sum of $216.92 for the rent due the plaintiff; and that the plaintiff removed from the yard, and retained in his possession or under his control, a number of the surrendered articles, which he claimed to be his individual property, and other articles which had been sold and for which the purchasers had not paid. Admittedly, the proceeding here ivas out of the usual course of practice, under a judgment for defendant in replevin. But Judge Gibson said, in Kimmel v. Kint, 2 Watts 431, “we do not say that a writ de retorno habendo must be issued ; there may possibly be a valid tender without it; but the right of the surety to exonerate himself must be saved to him through the medium of the common law judgment, or the rule prescribed by the^ eleventh section of the Act of 1772.” The parties here were competent to convert their legal rights into contract relations, and to agree that the literal condition of the bond should be carried into effect. Taking the affidavit as verity, such an agreement was made. A portion of the goods distrained, and other articles of the same general description, and of greater value than those which had been originally seized and were missing, were delivered to the plaintiff, and were accepted, appraised, and sold in part by him. It is indifferent whether the arrangement was known at the outset to the plaintiff or not. He is alleged to have acquiesced. The sale was made to pay his rent, and the articles unsold were transferred to his possession. By the agreement substantially the same end was reached that a writ de retorno habendo would have produced. To some extent, certainly, the affidavit disclosed a defence. What the extent would be a trial before a jury alone could show. The legal rights of the plaintiff have been modified by the new contract, and if the amount of his claim has been paid by Joseph R. Sands’s property or its proceeds, he cannot recover it again from the defendant in a suit on the replevin bond.

The point is not one which it is necessary now to decide; but there is room for grave doubt whether this action can properly be brought within the operation of any of the statutes authorizing the entry of judgment for want of an affidavit of defence. The eleventh section of the Act of the 21st of March 1772, directs that a replevin bond shall be “ conditioned for prosecuting the suit wdth effect and without delay, and for duly returning the goods and chattels distrained in case a'return shall be awarded.” In no natural sense can this condition be regarded as an agreement for the payment of money under the Act of March 28th 1835; nor is it embraced in the second section of the Act of 12th of March 1842, requiring affidavits in actions on bonds and recognizances of bail in error, on bonds of sureties for stay of execution, on bonds or recognisances of special bail, and on bonds given by insolvent debtors and their sureties, under the sixth section of the Act of the 16th of June 1836. The record in many instances would not furnish means of liquidating the judgment that would be both just and safe. “ The defendant’s remedy is on the replevin bond, wdiere there can be no recovery beyond the value of the goods, and where it may be less than the value, for the rent may be inferior in value to the goods, because by paying the rent the debt would be satisfied Weidel v. Roseberry, 13 S. & R. 178. The practice of requiring affidavits of defence in such cases as this, if such a practice prevails, would seem capable of producing mischief and injustice.

Judgment reversed and procedendo awarded.


author: Per Curiam.

text:
    Quigley versus The Commonwealth.
    1. The evidence in this case contains the ingredients of murder in the first degree.
    2. Where a juror is identified by name and residence, both of which are correctly given in the panel, a misdescription of his occupation is not a sufficient ground to sustain a challenge for cause.
    February 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Oyer and Terminer of Philadelphia county: Of January Term 1877, No. 249.
    Indictment of Patrick Quigley for the murder of his wife Catharine Quigley.
    The facts of the case are sufficiently stated in the opinion of the court.
    The only questions passed upon by this court were first, whether the case presented a clear one of murder in the first degree, and second, whether a juror could be challenged for cause by the prisoner, the cause assigned being that the juror was named in the return to the venire as “William S. Thompson, whittier, No. 1511 Thompson street, Twenty-ninth Ward.”
    The juror being examined on his voire dire, testified that he resided and had resided for twenty years at 1511 Thompson street; that he was doing no business at the present time, but that he was a “ victualler,” and that he knew of no such business as “ whittier.” The court overruled the challenge on the ground that the Christian and surname of the juror, with the number of his house, and the name of the street and ward, being accurately given, there was a sufficient description to enable the defendant to learn who was the person to be summoned as a juror.
    The jury found a verdict of murder in the first degree, and the prisoner was sentenced to be hanged. He then took this writ, assigning for error, inter alia, the overruling of the foregoing challenge.

      A. S. L. Shields, John O'Byrne, C. M. Smith, and W. H. Ruddiman, for plaintiff in error.
    The Act of April 14th 1834, § 88, directs that the name, surname and in addition the occupation and place of abode of the persons selected to be put in the wheel, shall be placed upon strips of paper for that purpose. In this instance the proper occupation of the juror called was not given correctly, but on the contrary, the return shows an occupation of which the juror called knew nothing and in which he never was employed.

      Henry S. Hagert, Assistant District Attorney, and Furman Sheppard, District Attorney, for the Commonwealth.
    We contend that if the word “whittier” is not intended to stand for the trade of “victualler” it is not to be treated as a nullity ; for it does not appear by the testimony that this word does not represent some one of the numerous sub-divisions of old occupations or one of the many new occupations which have grown up with the advance in the arts, and with the introduction of machinery and the sub-division of labor. If, however, it is to be so treated, then we submit that this objection was properly a cause of challenge to the array, and in the case of Clark v. Commonwealth, 5 Casey 129, a similar objection was so regarded; for if the sheriff has failed to return the names, residences and occupations of eighty persons, he has made a defective return. A default in the sheriff in making his return, as 1¡he omission to return a knight in a suit by a peer, and the failure to return the statutory number of hundredors upon the panel, was ground for challenge to the array; so if the bailiff of the liberty return any one out of his franchise. These are all grounds' of principal challenge, and are in respect of the default of the officer who made the return, and not in respect of the person returned: Co. Litt. 156-156 b, *470 — 3; Commonwealth v. Salliger, 3 Penna. L. Jour. 520; and no challenge to the polls can be taken, which might have been had to the array: Co. Litt. 158 a. Under the English practice, challenges to the array must be spread in full upon the record, and should be so here, so that the opposite party may demur, plead or answer, and so that the correctness of the decision of the court upon the challenge may be examined into: King v. Edmonds, 4 B. & Ald. 471; Hesketh v. Braddock, 3 Burr. 1847.
    The challenge made in the present case was a challenge to the polls, and if the court below could inquire at all into the ground alleged in this case, it could only be for the purpose of determining whether the person who answered to the call,'was the identical person who had been selected, summoned and returned as a juror. Upon that question the court were satisfied by the examination of the juror; and their decision, if reviewable here, like the decision of any other tribunal upon any other question of fact, is to be sustained, unless clearly repugnant to the evidence. As was held in Clark v. Commonwealth, supra, there is sufficient to indicate the person as the intended juror; the provision requiring the occupation or addition is directory merely.
    Treating this objection as ground for a challenge to the array, and no such challenge having been taken in the court below, the case is within the protection of the Act of 21st of February 1814: Purd. Dig. 838, pl. 82.
    March 5th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

There is no merit whatever in the assignments of error in this case. The court properly overruled the challenge to William S. Thompson, a juror. He was identified by name and residence, both of which were correctly given in the panel. The want of accuracy as to his occupation was not sufficient to create a doubt of his identity. The addition was insensible, and not a change of his real occupation. There was nothing to mislead,' and therefore no injury arose or could arise from an addition which designated no known occupation or business. But the challenge was not to the array. A challenge to the array always arises from a cause which affects the whole panel. Such is not this case.

In regard to the ingredients of murder in the first degree there is no doubt. The case presents a clear one of murder in the first degree. Indeed the counsel did not themselves raise this question. It came as a merciful suggestion of a member of the court to afford an opportunity of investigating the facts. But this investigation satisfies us the prisoner was properly convicted. That Catharine Quigley, the wife of the prisoner, did not commit suicide but was killed by him is a fact beyond any reasonable doubt upon the evidence, and has been found by the jury. That he shot her twice, once in the eye, the ball penetrating the brain, and once in the face, half way between the eye and the lower end of the nose, is not a subject of doubt, while all the circumstances surrounding the act point to a wilful, deliberate and premeditated intention. He came i’rom the bar-room into the kitchen and told her to take his coat up stairs, she said, “Yes, if you wish it,” took the coat down from a hook, and started up stairs, and he walked up close behind her. The witness heard the door of the room above shut, and the latch click. Nothing more was heard for some time, until the witness heard two shots, one within fifteen seconds or thereabouts of the other. The pistol is identified as his; two chambers were found discharged, and an intermediate cartridge struck by the hammer but not exploded. The prisoner remained a long time in the room before he came out, and when he came down went to the hydrant and washed himself. His shirt, from which the blood had been washed, was found in the room with stains upon it. He had changed it for a clean one. After a long time he came down, went to a neighbor’s to find a woman, who occupied the upper story of his house, told her to come home, that his wife had met with an accident — had shot herself. When this woman and the man in whose ■shop she was found came to the room the prisoner’s wife was found lying on the floor, her head resting on the stove plate, and the pistol placed on the floor about three feet from her. She was still alive and sensible, and on inquiry, at once accused him of shooting her, pointing to the place where the balls entered. She lived nine days and never recalled her accusation. When in the room he sat on the bed, and refused to help his wife to get-up or to relieve her from her uncomfortable position, giving as a reason that he did not want to bloody his shirt. When accused by her of the shooting he scarcely denied it, but after sitting on the bed for a time he approached her and said, “Did I shoot you, dear Kate?” She said at once, “ Yes, you shot me twice; use no endearing words, for if I should die to-morrow, you would lie. If I ever live to get over this, I will not live another day with you.”

During the whole affair he exhibited no feeling, smoked his cigar and behaved with the utmost coolness, as well as with entire want of natural feeling. For about an hour and a half he was engaged in the room, and coming down stairs and returning, making no disclosure of the fact, and evidently reflecting and preparing as well as he could to ward off suspicion from himself. They had lived unhappily together and had had difficulties about property belonging to her. They had separated and then come together. Perhaps the fault may have been mutual, but this does not detract from the influence of this unhappy life upon his motives and intentions. The fact is still there that love had ceased, and unholy feelings had taken its place. Under these telling circumstances attending the homicide, there'is no room to raise a defence to his horrid and unnatural act, none to palliate or excuse, none to detract from- the intention which the law draws from the act of one who aims a deadly weapon at a vital part, who twice discharges it against this part, and who would have discharged it a third time, but on the failure of the cartridge to ignite. Much of the language in McCue v. Commonwealth, 28 P. F. Smith 185, might be applied to this case. Clearly the act was wilful and intentional, and death was the probable and natural consequence of the act. What other intention than an intention to kill can rationally be inferred from the conduct of the prisoner ? As said in Cathcart v. The Commonwealth, 1 Wright 112, Human reason will not tolerate the denial that a man who intentionally, not accidentally, fires a musket ball through the body of his wife, and thus inflicts a mortal wound, has a heart-fatally bent upon mischief and intent to kill.” Much less can human reason deny this wickedness of heart, when a husband not only fires one ball into the brain of his wife, but fires a second time at her head and attempts to fire a third time. There are many minor circumstances in this case lending additional weight to the conclusion, but the main body of the facts is suflicient to support the verdict without their aid.

The sentence of the court below is affirmed, and the record is ordered to be remitted to the Court of Oyer and Terminer for the purpose of carrying the sentence into execution.


author: Mr. Justice Gordon

text:
    Gilkyson versus County of Bucks.
    Where vagrants are committed to the county jail by a justice of the peace, the county is not liable for the costs if the vagrants are discharged by the sheriff at the expiration of the time for which they were sentenced, without the payment of costs.
    February 28th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Bucks county: Of January Term 1877, No. 9.
    This was an amicable action brought by James Gilkyson, Esq., against the county of Bucks wherein a case was stated for the opinion of the court below, which was substantially as follows:—
    The plaintiff is, and has been, a justice of the peace in Doylestown. In that capacity, on the 11th of March 1876, on his own view and at the request and upon the confession of the parties, he convicted as vagrants two poor', houseless strangers and travellers, having no settlement in the county, wandering about and begging, and belonging to that class of persons familiarly known as “ tramps,” and committed them, under the Acts of 21st February 1767, 1 Sm. Laws 269 § 1, Purd. Dig. 1463-4, and of 13th June 1836, Pamph. L. 548, Purd. Dig. 1453, to the common jail of the county at hard labor for the period of fifteen hours, at the .expiration of which time they were discharged from jail without payment of costs. During their imprisonment they performed no hard labor, no opportunity being afforded in the jail or elsewhere in the county for the fulfilment of such a sentence. Both the persons thus sentenced were included in the one charge and commitment, as was the practice with the justice in cases where two or more vagrants were before him at the same time. This was only one of many commitments made by similar magistrates of Doylestown borough. * The plaintiff claimed as costs forty cents for commitment and twenty cents for docket entry and sought to obtain the same from the county, which the commissioners refused to pay, contending that the county was not liable for the payment of these costs.
    The court below, Watson, P. J., sustained this contention of the commissioners in an opinion, which, after a discussion of the evils of vagrancy, continued, “The punishment of vagrants is provided for by the Acts of 1767 and 1836. The former act makes it lawful for any justice of the peace to commit such offenders (being thereof legally convicted before him, on his own view, or by the confession of such offenders, or by the oath or affirmation of one or more credible witnesses), to the workhouse of said county, if such there be, otherwise to the common jail of the county, there to be kept at hard labor by the keeper of such workhouse or jail, for any time not exceeding one month.
    “ In this county we have no workhouse. The commitment is therefore necessarily to the common jail. No employment is provided in the jail for such offenders, so that they may be kept at hard labor, as sentenced.
    “ The Act of 1836 describes and defines the several classes of persons who are liable to be punished as vagrants. Among them are ‘all persons going about from door to door,-or placing themselves in streets, highways or other roads, to beg or gather alms, and all other persons wandering abroad and begging.’ ‘ All persons who shall come from any place without this Commonwealth to any place within it, and shall be found loitering or residing therein, and shall follow no labor, trade, occupation or business, and have no visible means of subsistence, and can give no reasonable account of themselves, or their business in such place.’
    “ The persons mentioned in the case stated are clearly within one or the other of the above-described classes of vagrants. Besides, the judgment of the justice determines the fact of vagrancy, and where the proceeding is regular on its face, as this is, we cannot inquire into the propriety of his judgment in this collateral proceeding. We must, therefore, regard the commitments as regular and valid.
    Costs are entirely by virtue of statute law. If there is no enactment by legislative authority imposing them, then the payment of them cannot be enforced. The liability of the county for them can only be created by an Act of Assembly. The Act of 1767, to which we have referred, makes no provision for costs in such cases, and if this were the only act upon the subject no costs could be collected from any body.
    “ By the Act 31st March 1860, Pamph. L. 445, sect. 64, in all cases of conviction of any crime, all costs are to be paid by the party convicted, but where such party shall have been discharged according to' law, without payment of costs, the costs of prosecution shall be paid by the county.

      “ That vagrancy is to be considered a crime within the meaning of this section there can'be no doubt. It has been so held by the Supreme Court under similar acts in several cases : Northampton Co. v. West, 4 Casey 173; Lancaster Co. v. Brinthall, 5 Id. 38; Cumberland Co. v. Holcomb, 12 Id. 349. It is to be observed that these cases afrose before the Act of 1860, and were decided upon the law as it then was.
    “ The 15th section of the Act of 1791, 3 Sm. Laws 44, provided that where any person should be convicted of any offence punishable capitally, or by imprisonment at hard labor, the county where the crime hath been committed shall pay the costs of the prosecution if the defendant hath not property sufficient to discharge the same. This section was in force until 1860. Under it, the Supreme Court held, the county was liable in such cases for costs immediately upon the conviction of the offender, without waiting for his discharge according to law: Commonwealth ex rel. Freytag v. The Commissioners of Philadelphia County, 6 Binn. 397; Commonwealth ex rel. Barnes v. Commissioners, 2 S. & R. 290. The case of Northampton County v. West, puts the liability of the county expressly upon the ground that the defendant had been sentenced to imprisonment at hard labor. In Cumberland Co. v. Holcomb, the county was held not liable, because the justice had not included the hard labor in his sentence as part of the punishment.
    “ This section of the Act of 1791 was expressly repealed by the Act of 1860.
    “ The Act of 11th May 1874, Pamph. L. 132, provides for the immediate payment by the county of costs in cases of conviction of any felony, but it does not extend to convictions for misdemeanors.

      “ The Act of 1860, therefore, forms the standard of liability in. the present case and the question before us must be ruled according to its provisions.
    ‘ ‘ The party convicted is, as we have seen, liable to payment of the costs. . The county becomes liable only upon his discharge, according to law without payment of them.. How may he be thus discharged so as to fix the liability of the county ?
    “ To answer this we turn to the Insolvent Law of 10th June 1836, Pamph. L. 740. By the 48th section of that Act, if his imprison ment is for any debt, sum of money, fine or forfeiture not exceeding fifteen dollars in amount, exclusive of costs, he shall be discharged after being in confinement for the space of thirty days. By the 47th section of the same Act, in other cases not falling within those mentioned in the 48th section, he shall be discharged on making application and conforming to the provisions directed in the case of insolvent debtors. In the one or the other of these ways only can he be discharged according to law.
    “ The district attorney cannot enter a nolle prosequi by consent of the court and charge the county with the costs of prosecution: Agnew v. Commissioners, 12 S. & R. 94. The county commissioners in such case have no power to bind the county by their agreement to pay the costs of prosecution made before the nolle prosequi was entered: Berks County v. Pile, 6 Harris 493. Nor have they any right to discharge from prison a convict sentenced to pay a fine upon his giving security for its payment. If they assume to do so the prisoner maybe lawfully re-taken by the sheriff: Schwamble v. The Sheriff, 10 Harris 18.
    “ It was said by Judge Black, in delivering the opinion of the court in the last-cited case, that where a prisoner is detained merely for the non-payment of costs, even in a criminal case, the commissioners may advance the sum necessary to discharge him, if they are satisfied that by so doing, money can be saved to the treasury; but the point was not involved in the case then before the court, and what was said upon it was therefore merely a dictum of the judge who delivered the opinion. If the commissioners have such power they may withhold its exercise and a discharge without their authority would not make the county liable for the costs. The sheriff clearly has no power to discharge without payment. If he ■undertakes to do so he may perhaps make himself liable to an action for escape, or to a prosecution for a misdemeanor in office, but he cannot thus impose upon the county the costs accrued against his prisoner.
    “ Here the prisoners were discharged at the expiration of the time for which they were sentenced, without payment of costs and without, so far as appears, any authority from the county commissioners. This was not a discharge according to law and it does not fasten upon the county any such liability as is sought to be enforced in this case. We direct judgment to be entered in favor of the defendant.”
    The plaintiff took this writ and assigned for error this entry of judgment.

      George Boss and L. L. James, for plaintiff in error.

      B. F. Gilkeson and Louis H. James, for defendant in error.
    May 7th 1877.
   Mr. Justice Gordon

delivered the opinion of the court

We have-but little to add to what has been so well said by the learned judge of the court below, in the opinion now before us for review. Whilst it has been held, in the cases of the County of Lancaster v. Brinthall, 5 Casey 38, and the County of Northampton v. West, 4 Id. 173, that the county may become liable for the fees of officers in convictions and commitments for vagrancy, yet this can only happen when the conditions prescribed by statute have been complied with. The Act of 31st March 1860, reads in this manner : “ And in all cases of conviction for any crime, all costs shall be paid by the party convicted; but, when such party shall have been discharged, according to law, without payment of costs, the costs of prosecution shall be paid by the county.” That vagrancy is a crime has been often ruled; such being the case, we may see, by the statute above recited, that the party convicted is the one who is primarily liable for costs, and it is only after the convict has been lawfully discharged, without payment of such costs, that this duty can be cast upon the county treasury. If, indeed, as is intimated by the learned judge, the commitments, in these cases, were intended, not for the punishment of the vagrants, but rather for their accommodation, the officers deserved no costs. As was said by Mr. Justice Lowrie, in the case of Cumberland Co. v. Holcomb, 12 Casey 349, “If such things be done for charity let it not be for the benefit of the magistrate. The jail is not an almshouse, nor jailers the administrators of poor funds.”

The judgment is affirmed.


author: Mr. Justice Mercur

text:
    Schrack versus McKnight.
    1. S. authorized M. in writing to subscribe for five shares of a railroad company, and to pay the first instalment for him, and at the same time directed him verbally to enter the subscription in his (S.’s) name on the books. He also gave M. $25 for the first instalment on the stock. M. subscribed for the shares in his own name and paid all but the first call on them with his own money. When the stock was full paid, M. obtained a certificate for these and other shares in his own name, and soon after transferred five shares to S.’s name and tendered him a certificate for them, which S. refused to accept. There was no direct evidence of either a repudiation or ratification of M.’s conduct by S., though S. knew of M.’s action in the matter. S. received notices of calls from time to time, but refused to pay any instalments on stock which was not in his name. In an action by M. to recover the amount of the 'stalments paid by him, Held, that M. was bound, both by the letter of at^ney and by his verbal instructions, to make the subscription in S.’s name, 'hat M. could not recover.

      2. Held, that the question of whether S. ratified the subscription should have been left to the jury under the facts, and that there was no evidence in the case to warrant the court in holding, as a matter of law, that there had been a ratification.
    3. Held, that it was error to charge that S., as soon as he heard that the subscription had been made in M.’s name, was bound to demand a cancellation of the letter of attorney or a transfer of the stock to his own name.
    February 28th 1877.
    Before Agnew, c. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 95.
    Assumpsit by McKnight against Schrack to recover the subscription price of five shares of the Berks County Railroad Company.
    At the trial these facts appeared:—
    When the subscription- books of the company were opened, Schrack authorized McKnight, by a letter of attorney, “ to subscribe five shares of stock in the Berks County Railroad and to pay the sum of $25 as the first instalment” for him, and “ to vote said shares of stock, so subscribed, as fully and as effectually” as he, Schrack, “ could do if personally present,” &c. Before McKnight subscribed for the shares under this letter of attorney, Schrack told him that he wanted his stock on the subscription book in his own (Schrack's) name, and McKnight told Schrack he would attend to it and put the shares down in Schrack’s name. This evidence was corroborated by one Kissinger and was uneontradicted. Schrack gave McKnight $25 to pay the first instalment on the stock with.
    McKnight subscribed for a hundred and forty-nine shares in his own name; among these were included five shares for Schrack. He paid the first instalment upon the five shares with the $25, and the succeeding instalments with his own money. After the stock was full paid he obtained a certificate for a hundred and forty-nine shares in his own name. Three days afterwards he transferred five of these shares to Schrack’s name and tendered the certificate to him. Upon Schrack’s refusal to accept it, he brought suit against him fo.r the amount he -had paid on the stock.
    There was no evidence of any direct act of either repudiation or ratification of McKnight’s action by Schrack. It appeared that notice of calls was regularly sent to Schrack from time to time by the company.
    One Fisher testified that when he called on Schrack for the company to collect one of the instalments due, Schrack refused to pay it until he got a certificate of stock in his own name. Schrack, however, gave a different version of the interview, testifying substantially that he had refused to pay for the stock, as the subscription was not in his name.
    The defendant offered the following points, among others: — -

      I. That the letter of attorney from defendant to plaintiff limited plaintiff’s agency simply to the act of subscription and the payment of the first instalment of $25.
    6. That if the jury believe the evidence of John Kissinger and defendant with reference to notice by defendant to plaintiff that he wanted the stock in his own name, he was bound to subscribe for it in the name of the defendant, and anything beyond that is a violation of the letter of attorney, and not binding on defendant Avithout positive proof of subsequent ratification.
    II. That the payment of said five shares of stock by plaintiff Avas a voluntary, unauthorized payment, and therefore, even if the subscription made had been binding on defendant, plaintiff cannot recover.
    The court, Hagenman, P. J., answered them as folloAvs: “ * * * if the jury find that the subscription, being in, the name of plaintiff, Avas so made by him in good faith and for the mere purpose of carrying out the trust, and although defendant told jDlaintiff-that he wanted the stock in his OAvn name, it was not such a violation of the letter of attorney as will excuse him from liability, even without proof of subsequent ratification. And all payments of future instalments which Avere made by plaintiff, if made to secure the stock so subscribed for the benefit of the defendant, the plaintiff is entitled to recover such moneys as he has paid, provided he has tendered to defendant a. certificate for the said five shares of stock and further charged as folloAvs : “ whether the subscription Avas in his OAvn name or that of Schrack, if McKnight acted in good faith and it Avas made as a mere matter of form to carry out the trust, it is binding on defendant. When Schrack discovered that his stock Avas in McKnight’s name, if he was not satisfied with the manner of McKnight’s subscription, he should have demanded a cancellation of letter of attorney, or transfer of the shares of stock in his own name.”
    There was a verdict for the plaintiff for the full amount in suit. After judgment, the defendant took a writ of error. The substantial errors assigned all raised the question of the plaintiff’s agency.

      James N. Ermentrout (with him Daniel Ermentrout), for the plaintiff in error.
    McKnight’s power Avas special, and should have been strictly pursued: Devinney v. Reynolds, 1 W. & S. 333; Baring v. Pierce, 5 Id. 548; Geiger v. Bolles, 1 Thomp. & C. 129. Besides, the verbal instructions were imperative; the agent was bound to act upon them : Wilson v. Wilson, 2 Casey 393; Whart. on Agency, § 247. The whole charge ignored this question and put the case upon a question of “ good faith” on McKnight’s part; even the question of ratification was Avithdrawn from the jury.
    Schrack was not bound to demand a cancellation of the letter of attorney; the subscription had been made, and as principal he was either bound by it or not; cancellation then -could not have affected his liability. Besides, McKnight never notified Schrack of what he had done, or called upon him for instalments.

      C. H. Shaeffer, for the defendant in error.
    Schrack never repudiated the subscription, though he knew it had been made in McKnight’s name and that the latter was paying the calls on it; he is therefore bound: Bredin v. Dubarry, 14 S. & R. 30; Kentucky Bank v. Coombs, 7 Barr 543; Whart. on Agency, § 125; Watts’s Appeal, 28 P. F. Smith 370.
    There was actual ratification by Schrack when he told the collector he would pay when he got his certificate.
    May 7th 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

We discover no substantial error in the fifth, sixth and ninth assignments. All the other assignments relate to question of agency, and will be considered together.

Three rules, in regard to the liability of a principal for the acts of one professing to be his agent, are pretty well established :

1. An agent constituted for a particular purpose, and under a limited power, cannot bind his principal if he exceeds that power.

2. A subsequent ratification by a principal of the unauthorized act of his agent, may have the same effect as previous authority.

3. The principal is bound to disavow the unauthorized act of his agent as soon as that fact comes to his knowledge, otherwise, as to third persons, he makes the act his own: Bredin v. Dubarry, 14 S. & R. 27 ; Valentine v. Packer, 5 Barr 333. But as between him and his agent the rule is not so stringent. In the latter case, he is not bound to disavow the act until he has such information of the facts and circumstances as will enable him to act understandingly: Porter v. Patterson, 3 Harris 229.

case attorney was specific a ited power. It authorized the agent to subscribe for five shares of stock for the principal; to pay a specific sum as the first instalment for him, and to vote the stock so subscribed as fully as the principal could do it if personally present. These three specific acts were all the letter of attorney authorized the agent to do. The language clearly implied that the stock should be subscribed for in the name of his principal. The sum to be paid as the first instalment was advanced to the agent, at the time he was authorized to subscribe. Under this specific and restricted agency it is clear that the agent could not subscribe in his own name for a much greater number of shares and long afterwards compel his principal to take five shares off his hands.

It further appears by the testimony of witnesses that at the very time the agent was authorized to make this subscription, the principal said to him that he wanted the stock put in his own name, and that the agent replied he would put it down in his, Schraek’s, name.

Subsequently, the agent caused a certificate for the whole stock purchased by him, to be issued to himself. Neither the mode of subscription nor the form of the certificate appears to have been authorized by the principal. They were contrary to both the written and the verbal authority given. The principal had the right to require a strict execution of the power given: Story on Agency, § 192; Wilson v. Wilson, 2 Casey 393. He may have had a very substantial reason for desiring the stock to be subscribed in his own name. Be that as it may, he had the right so to direct it, and his agent had no power to disregard those instructions and hold the principal liable for his action: Story on Contracts, § 359.

The plaintiff in error then could only be made liable for the unauthorized acts of his agent, by a failure to repudiate the acts after information or by subsequent ratification. The evidence would not justify the court in saying as a conclusion of law that the plaintiff had ratified the acts of his agent either by omission or commission. Those were questions of fact which should have been submitted to the jury to find under a proper review of the evidence.

The fact that a jury might find that the defendant acted in good faith does not enlarge his power. Neither does it absolve him from his obligation to obey his instructions; nor does it dispense with the necessity of his procuring a subsequent ratification. We see no evidence of any prior agreement, that the defendant in error should subscribe for the stock in his own name, and hold it in trust for the plaintiff in error. Without some evidence, it was error to submit that fact to the jury. So it was error to say to the jury in the imperative manner the court did, that when the plaintiff in error discovered the stock- was in the name of his agent, if he was not satisfied with the manner of subscription, he should have demanded a cancellation of the letter of attorney, or a transfer of the stock to his own name.

He was not bound to do either. A cancellation of the letter of attorney would not affect the action already taken under it; nor was he obliged then to accept the stock. The conduct and action of the plaintiff in error when he discovered the fact referred to, and subsequently, were evidence pertinent for the jury to consider, as bearing on the, question of ratification.

In so far as the court refused to affirm the sixth point, submitted by the plaintiff in error, that he was not liable without “positive proof” of subsequent ratification, we see no error. The word “ positive” is too strong. It is defined by Webster to mean “ direct,” “ express,” opposed to “ circumstantial.” The proof should be “satisfactory,” but it may be such without being “positive.” In that portion of the charge covered by the second assignment, the jury were told that the plaintiff in error might be liable “ even without proof of subsequent ratification,” if the agent acted in good faith, although the plaintiff in error told him he wanted the stock in his own name. It is true the judge added if the agent made the subscription in his own name “ for the same purpose of carrying out the trust.” He thereby assumed the existence of the trust, which is denied by the plaintiff in error. The fact of there being such a trust as to bind the principal, was a question to be first found by the jury, before he could be held responsible on it. The tendency of the charge was calculated to mislead the jury from a proper consideration of the controlling questions in the case.

It therefore follows that in so far as we have not qualified the language in the written points, the assignments are substantially sustained.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Rhoads versus Blatt et al.

    1. Beal estate does not pass by an assignment of “ all the goods, chattels and effects, and property of every kind, personal and mixed,” the words “ personal and mixed” limiting the assignment to the personal estate; nor could the assignee make any claim upon the proceeds after the sale and conversion of the realty by the assignor.
    2. Where the assignor is insolvent an assignment of a claim of $1200, a first lien upon a farm worth $13,000, the consideration for the assignment being $400, is evidence of fraud on the ground of inadequacy of price, and the question of fraud under such circumstances should be submitted to the
    February 28th 1877.
    Before Ag-new, C. J., Sharswood, Mercur, Gordon, Paxson and Woodwarí», JJ.
    Error to the Court of Common Pleas, of Berks county: Of January Term 1877, No. 143.
    This was an attachment execution issued by Samuel L. Rhoads to the use of John Wilhelm against Reuben Blatt, wherein Aaron Blatt was summoned as garnishee. The garnishee pleaded nulla bona, with leave, &c., and issue.
    The case was this:—
    On the 21st- of January 1871, Rhoads obtained a judgment against Reuben Blatt, which, on the 16th of June 1874, was marked to the use of Wilhelm.
    On the 26th day of April 1871, Reuben Blatt, being seised of an undivided interest in a farm which had descended to him and his brothers and sisters from their father, Benjamin K. Blatt, under the intestate laws, executed an assignment for the benefit of creditors to John K. Derr, of “ all the goods, chattels, and effects and property of every kind, .personal and mixed, of the said Reuben Blatt;” which assignment was duly recorded on the day of its date.
    The 12th day of May, following, the assignee filed an inventory, wherein said interest was appraised at $2000.
    The assigned estate of Reuben Blatt was settled, and proved insolvent, paying the creditors a pro rata dividend of only 23J- per centum.
    On the 7th day of August 1871, proceedings in partition were commenced, which terminated in Aaron Blatt, the brother of Reuben, accepting the above-mentioned farm at the valuation thereof, to wit: $12,920, and entering into a recognizance to secure the shares of his brothers and sisters.
    The widow died; and the interest of Reuben Blatt in the recognizance aforesaid was $2583.99. Reuben Blatt made assignments of portions of his interest in said recognizance to divers persons, some dated before and some after his assignment for the benefit of creditors, aggregating $1423.31, with a small amount of interest. This left a balance of $1159,98 with interest, due Reuben from Aaron. This attachment execution was issued and served upon Aaron Blatt, who was summoned as garnishee. Upon being ruled to reply to interrogatories, he filed answers, admitting that he had in his possession the above balance, but alleging that Reuben had on the 31st day of July 1872, assigned it to J. Warren Tryon, Esq., the consideration mentioned in this assignment being $400, the receipt whereof was acknowledged therein.
    The cause was then put at issue and at the trial before Sassaman, A. L. J., the plaintiff contended that this assignment to Tryon was made with the intent to defraud creditors, but the court ruled that there was no evidence of fraud.
    In their general charge they also held that the real estate of Blatt passed to the assignee for the benefit of creditors, and if it did not at the time of the assignment it subsequently did when converted into personalty after the proceedings in partition, and therefore the remedy of plaintiff must be against said assignee; and the jury were instructed to find for defendants.
    The plaintiff took this writ, assigning these rulings of the court for error.

      Cyrus G. Derr, for plaintiff in error.
    The real estate did not pass to the assignee for creditors, as no apt words were used in the assignment, and the use of the words “personal and mixed,” excluded the realty. If the land did not pass the money arising from a sale thereof did not pass.
    The inadequacy of the consideration named in the assignment to Tryon was evidence of fraud, the assignor being largely indebted: Davidson v. Little, 10 Harris 252.

      Henry Q. Gr. Deber, for defendants in error.

      March 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

It is manifest that the real estate of Reuben Blatt did not pass by his assignment for the benefit of creditors. By that instrument he assigned “ all the goods, chattels, and effects and property of every kind, personal and mixed, of the said Reuben Blatt.” Whatever might have been the effect of the words “ goods, chattels, effects and property of every kind,” had they stood alone, the addition of the words “ personal and mixed” certainly limited them to the personal estate. It is equally clear that if the real estate did not pass by the assignment, the assignee could have no claim upon the proceeds thereof, after a sale and conversion by the assignor.

The question of fraud should have been submitted to the jury. The learned judge refused the plaintiff’s first point upon the ground that there was no evidence of fraud. This was error.- The record shows that Blatt was insolvent. He had made an assignment for the benefit of his creditors. It appears from the report of the auditor that his estate yielded but a small dividend. The assignment to Mr. Tryon was of a •claim of $1200, charged as a first lien upon a farm said to be worth $13,000. The consideration for the transfer of this claim was $400. In a sale by an insolvent vendor, inadequacy of price is evidence of fraud. It was said in Davidson v. Little, 10 Harris 252, that the sale of lands or goods by an indebted person for less than their value is ipso facto a fraud in both vendor and vendee.”

The judgment is reversed, and a venire facias de novo awarded.


author: Mr. Justice Sharswood

text:
    Miller versus Henry.
    1. In an action for mesne profits the judgment in ejectment is conclusive that the defendant was in possession on the day of- the service of the writ, but not as to the length of time he thereafter continued in possession; and to relieve himself, therefore, of liability, he may show that he was not in possession after the service of the writ.
    2. In an action for mesne profits after a judgment in ejectment the defendant testified that she was not in possession of the premises after the service of the writ, but remained there simply as the housekeeper or guest of her son, the other defendant. Held, that the question of fact as to the possession of this defendant was properly submitted to the jury.
    February 28th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 170.
    Trespass for mesne profits by Daniel Miller against Benneville M. Henry and Mary Henry.
    On the 28th of April 1871, Miller brought an action of ejectment against the defendants to recover possession of a property on North Sixth street in the city of Reading. A verdict was obtained on the 4th of December 1873, and possession given on the 1st of April 1874.
    Miller then brought this action to recover the mesne profits or rental of the property from April 1st 1871 to April 1st 1874.
    B. M. Henry died on the 4th of June 1875, and his death having been suggested on the record, the action proceeded against Mary Henry alone.
    At the trial, before Hagenman, P. J., the court allowed the defendant, as a witness in her own behalf, to prove that the possession of the property in question was not in her, but in her son, with whom she had lived as a housekeeper, and that she did not defend in the ejectment suit. The plaintiff objected to this evidence, because it contradicted the record in the ejectment, but the court overruled the objection.
    In their charge, the court, after some observations upon the case of Sopp v. Winpenny, 18 P. F. Smith 80, continued:—
    “ [It follows that if one who had no possession Avould be included in an ejectment with others, and there was service of the writ upon him, in an action for mesne'profits he may show that he never was in or had possession. So, too, if a female servant or daughter of the defendant would be included in the writ, although they were living upon the premises, but in the family of the defendant, they may show the servitude and relationship to the defendant, and no principle of law would hold them liable for mesne profits. Likewise, where a son would invite his aged and widowed mother to make her home with him, and while she was thus in his family would be included in an ejectment with her son, no one would pretend to hold that she would be liable in an action of trespass for profits.]
    “ The plaintiff’s present action is not one for costs incurred in the action of ejectment, but for damages for having had the possession withheld from him, and therefore those only who have been guilty of withholding that possession are liable. The action was originally against Benneville M. Henry and Mary Henry, and if Benneville M. Henry was still alive he could not make a defence, for he held possession until he was ousted under the habere. [But, while Benneville M. Henry could have made- no defence, there is no principle of law that would preclude Mary Henry from making one, if she had sufficient grounds to defend. The fact that Benneville M. Henry died since the bringing of this action does not lessen or take away any rights which she previously had.]
    “ Joseph Henry, the husband of Mary and father of Benneville Henry, died in possession of this property, and at the time of his death, Benneville Henry, with his wife, - was living in the same house. It is alleged by the defendant that Benneville Henry, at his father’s death, claimed the ownership of the property, as the son and heir-at-law, and assumed and exercised exclusive possession of it; She alleges further, that she made no claim to the possession of the property, but lived with her son Benneville all the time and in his family. [If the jury find that she was in possession alone, or jointly with her son Benneville, then the verdict must be for the plaintiff. But if the jury find that she made no claim or pretence to possession, that she was simply an inmate in the family of her son, the verdict must be for the defendant.]”
    The verdict was for the defendant, and the plaintiff took this writ, assigning for error 1st and 2d (but irregularly, the assignments not containing the substance of the exceptions, as required by the rules of the Supreme Court), the admission of the evidence of Mrs. Henry, and 3d, the portions of the charge in brackets.

      A. G. Green, for plaintiff in error.
    The defendant was concluded by the judgment in the ejectment: Aslin v. Parkin, 1 Sm. Lead. Cas. 826; Man v. Drexel, 2 Barr 202; Blight’s Executors v. Ewing, 2 Casey 137.
    The liability for mesne profits extends to parties who were privy to the trespass: Storch et al. v. Carr, 4 Casey 135; Boyer v. Smith, 3 Watts 451. Here one of the defendants seeks to escape liability by the assertion that she was the housekeeper of the other defendant.

      Samuel L. Young and Cyrus G. Derr, for defendant in error.
    could not be precluded from showing that she was not in possession or had left it after the service of the writ: Sopp v. Winpenny, 18 P. F. Smith 80.
    The fact that Mrs. Henry remained on the premises, in the family of her son, after the death of her husband, would not make the possession her possession.
    May 7th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

The first two errors are not assigned according to rule, and may therefore be disregarded. The remaining assignments are to the charge, and really bring up for review all that is material in the cause.

It was settled in this state in Bailey v. Fairplay, 6 Binn. 450, that in an action for mesne profits the judgment in ejectment is not conclusive as to the length of time that the defendant was in possession. The reason assigned by Chief Justice Tilghman is clear and unanswerable. In the action of ejectment “ as to the possession, it is enough if the plaintiff proves the defendant to have had it at the time the suit was commenced. So that no . inference can be drawn from the recovery in the ejectment as to the length of time for which the defendant has been in possession.” To the same effect are Mitchell v. Freedley, 10 Barr 198, and Sopp v. Winpenny, 18 P. F. Smith 80. Says the present chief justice, in the case last cited-“neither on principle nor authority will the defendant be prevented from showing that he had left the possession or was not in it after service.” There is nothing in any of these cases which countenances the idea that if the defendant Avas not actually in possession at the service of the writ or at any time aftenvards, he cannot prove that fact in order to relieve himself from liability for mesne profits. It is true the judgment in ejectment is conclusive that on the day of the service of the Avrit he was in possession. If any question should arise in Avhich that exact point Avas material, he would not be heard to contradict it. He could not be alloAved to do so in order to controvert the effect of the judgment as to the title at that time. It is also true that wherever a state of things is shoAvn to exist it ayíII he presumed to continue. But that is a mere presumption Avhich can be rebutted. If a man is concluded in laAV by a judgment that a certain fact existed on a particular day, he is not concluded from shoAving that it did not exist on the day after, even though such evidence might also tend to shoAV that it did not exist the day before. If this Avere not so, a defendant not in possession in point of fact on the day of the service of the Avrit of ejectment, would be concluded for the whole time between the service and the execution of the writ of habere facias possessionem. It is very evident that it Avould be impossible for him to prove that he had openly abandoned a possession Avhich he never had. It is enough then for him to shoAV that from the day of the commencement of the ejectment, down to the execution of the habere, he Avas not in possession. This reasoning, of cours'e, leaves untouched the case of one in actual possession when the writ was served, but who has afterAvards clandestinely removed.

The question of fact as to the possession of the defendant in this case Avas fairly submitted to the jury. Whether the verdict Avas right or wrong upon the evidence is a matter with Avhich ave have no right to intermeddle. It surely is not susceptible of a doubt that a hired laborer, a menial servant or a guest is not in possession. Whether Mary Henry, the defendant, fell Avithin the category of a servant or guest, or Avas in the house under a claim to the possession was therefore properly submitted to the jury.

Judgment affirmed.


text:
    Directors of Poor of Berks County versus Shingle.
    A constable who executes an order of relief by conveying a pauper from a certain township to the county poor-house, is not entitled to the mileage allowed in conveying a pauper from the district where he has become chargeable to the district of his settlement under an order of removal.
    February 28th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1877, No. 130.
    This was an amicable action by Philip Shingle, against the directors of the poor of Berks county, wherein a case was stated which will be found, in effect, in the opinion of this court.

      Frank B. Schell, for plaintiffs in error.

      John F. Smith and O. S. Buhl, for defendant in error.
    May 7th 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

Philip Shingle, the plaintiff below, was constable of Union township in the year 1874. On the 7th of April in that year, an order was issued ‘to him by two justices of the peace to convey Jacob Carver, of Amity township, a pauper, to the Berks County Poor House. In executing the order he charged mileage at the rate of fifteen cents per mile circular for the distance he was required to travel. The defendants below apparently admitted their liability for mileage at the rate of ten cents, for the case stipulated for a judgment of $5.40 if the claim for the larger rate was sustained, and for a judgment of $3.60 if the court should be of opinion that the plaintiff was not entitled to more than the lesser rate. The judgment below was entered for the whole amount of the plaintiff’s claim.

While the sum in dispute is trifling, the question has some interest, as involving an inquiry into the general practice under the poor laws of the state, and, in the existing and prospective business condition of the community in which the duties of the defendants are performed, is of appreciable consequence to their treasury. The course of legislation on the general subject has been examined, therefore, as well as the deluge of feerbill statutes that afflicted the Commonwealth from 1861 to 1873.

Both the townships of Union and Amity are in the county of Berks. The settlement of the pauper Carver was in Amity, and he was entitled to claim relief from the defendants. The order of the two justices was in the form prescribed, and under the'jurisdiction conferred by the 16th section of the revised Act of the 13th of June 1836. As the Berks County Poor House Act of 29th of March 1824 had been passed in the interval, it may be stated here that the entire substance of that section of the revised act was adapted from the 22d section of the Act of the 9th of March 1771. The provisions of the section were not intended to apply to the case of a pauper becoming chargeable within the district ’of his legal settlement, and having a claim on the authorities of that district for relief. The order of removal “ to the city, district or place where he was last legally settled,” was confined to the case of a person who had become or was likely to become “ chargeable to the district into which he had come.” There is no embarrassment in ascertaining the scope and purpose of this provision. By the express terms of the statute, as well as by common usage and settled professional interpretation, an order of removal is made the means by which a pauper is removed to the district of his settlement from the district where he has become chargeable, and on which he has no legal claim.

An order of relief to a settled pauper is a different thing. By the 9th section of the Act of 1771, it was directed that no person should be entered in the poor book of any borough or township, or receive relief, until an order from two magistrates or justices of the peace should be procured. This order was to be directed to the overseers, and the duty was imposed on them of taking charge of the pauper and providing for his wants. No service was required at the hands of a constable. The overseers were at liberty to exercise their discretion as to the place where, and the manner in which, relief should be afforded. Action under their direction was to be taken by agents of their selection, and not by ministerial officers of the law. The sixth section of the Act of 1886 contained substantially the same provision as the 9th section of the Act of 1771. Indeed, so far as any question involved in this inquiry is concerned, the systems established by the two statutes are essentially identical. As to the county of Berks, the general system under the Act of 1771, was changed by the Act of 9th of March 1824. By the 9th section of the last act the poor of the several townships wyere required to be transferred by the overseers to the directors as soon as proper buildings should be completed. The overseers were “ to bring the poor of their respective townships to the house of employment,” unless any poor person, from sickness or other sufficient cause, could not be removed. In that case, a certificate of a justice of the peace to the directors, and an order by him to the overseers, authorized maintenance in the township until the pauper should be in a situation to be removed, when the overseers were to convey and deliver him to the steward or keeper of the house of employment. The 14th section made it the duty of the directors to “ receive, provide for, and employ all such poor and indigent persons as shall be entitled to relief, or shall have gained a legal settlement in the county of Berksand any such poor and indigent person, the section added, “ shall be admitted into the house of employment on an order for that purpose granted by any one of the directors or by a justice of the peace of the county, or upon a legal order of removal from any other county within this Commonwealth.” With the exception of a supplement passed the 27th of March 1827, empowering the directors “ to administer the necessary oaths and affirmations to paupers or other persons in the examination after the place of the last legal settlement of a pauper, and to issue the necessary orders for removal,” no legislation has been found to modify the method of providing for the poor of the county of Berks prescribed by the Act of 1824. From the review of the statutes that has been made, it is manifest that the order of the two justices in this case was irregular and unauthorized, and that, except by virtue of his employment by the directors as their agent, the constable could assert no claim for compensation. It is manifest also that no law or usage, applicable to an order of removal, can be legitimately applied to an order of relief. The two proceedings have inherently different purposes to subserve. The unsettled pauper, in the ordinary case, is transferred se invito. The order for the relief of the settled pauper, in the ordinary case, is obtained on his own application, or on that of some one acting on his behalf. Even, therefore, if the view of the court below was accurate, that the law warranted, in executing an,order of removal, the rate charged, the judgment was still erroneous, for fees allowed for services under such an order cannot be made by construction the measure of compensation for services under an order of relief.

It may be of no special importance here, but the item of fifteen cents for each mile circular, for travelling expenses in the removal of a pauper, allowed in the Act of 3d of April 1866, amending the fee bill as to constables in Philadelphia, was not embraced amongst the provisions of that act, which were extended to Berks by the Act of the 8th of April 1867. There was a.special exception of all provisions relating “ to the serving of subpoena, to sales on commission of goods levied or distrained,.and to mileage.” The reason operating on the mind of the judge which produced his decision, was not stated in the opinion, but the plaintiff’s counsel in their argument insisted that the exclusion of “mileage” in the Act of 1867, did not refer to the “travelling expenses” on orders of removal allowed by the Act of 1866. In view of the terms of the statutes which have been almost invariably used in defining the rights of constables to fees, the ground thus taken has the peculiarity at least of novelty. In the fee bills’ established by the Act of the 22d of February 1821, by the Act of the 18th of April 1857, and by the Act of the 2d of April 1868, payment for “ travelling expenses” and not for mileage in the execution of all kinds of process was allowed. “Mileage,” eo nomine, was authorized only in the Act of 1857, and it was given there only for making returns to ■ the Court of Quarter Sessions. In the very Act of 1866 itself, “ travelling expenses” at different rates per mile were allowed in the performance of the different services prescribed. The exception of “ mileage” out of the Act of 1867, if it did not refer to the “travelling expenses” specified in the Act of 1866, was senseless and absurd. The judgment of the court on this branch of the case, may have been right, nevertheless. From the flood of loose and shifting special legislation, during the twelve years preceding the adoption of the Constitution of 1878, there is hazard in attempting to deduce a definite conclusion as to the state of any branch of local law; but the act fixing the travelling allowance of constables in Berks county appears to be that of the 1st of April 3 864. That gives them fifteen cents a mile circular in executing an order of removal, and six cents in all other cases. If the simple question were presented as to the plaintiff’s right to recover, as constable, under the fee bill, it may be that the defendants would be entitled to a general judgment. At the utmost, it is probable that the rate fixed for ordinary process by the Act of 1864 would be the limit of his claim. But the defendants have indicated their own estimate of the value of his services. The case stated has provided for the alternative contingencies contemplated by the parties, and under its terms the plaintiff is entitled to be paid ten cents a mile.

The judgment is reversed, and judgment in favor of plaintiff below is entered for the sum of three dollars and sixty cents, in accordance with the terms of the case stated.


author: Chief Justice Agnew

text:
    Hoff’s Appeal.
    Where a mortgage creditor who had a lien upon one property of a debtor was subrogated to the rights of a prior judgment creditor, whose lien was upon two properties of the same debtor, the mortgage creditor could not levy his debt-out of one of these properties conveyed by the debtor to a bona fide purchaser, for value, without notice of the lien of the judgment.
    March 2d 1877.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Common Pleas of Berks county: Of January Term 1877, No. 173.
    The facts briefly were these. In 1874 James M. Phillips owned a property in the city of Reading, which was encumbered by the lien of a judgment of Henrietta C. Addams, which judgment was entered originally April 11th 1870, and a mortgage of Henry A. Hoff, dated October 29th 1873. In 1874 Phillips purchased additional property and the Addams judgment having been revived in 1875, become a lien also upon this property. In July 1875 Phillips sold the last acquired property to George E. Reiff for a valuable consideration. Reiff had no knowledge of the lien of the judgment. In April 1876 the sheriff sold the property of Phillips, which, after paying some other prior liens, left only sufficient to pay the Addams judgment. Hoff then obtained. a decree without notice to Reiff, which subrogated him to the rights under the Addams judgment, and then levied on the property which had been conveyed by Phillips to Reiff. The latter asked the court, Sassanian, A. L. J., to vacate this decree, in so far as it applied to his property, which decree was made and was the error assigned.

      Cyrus G. Derr, for appellant.
    Hoff was entitled to be subrogated to the rights under the Addams judgment as against Phillips, theiy common debtor: Delaware & Hudson Canal Co.’s Appeal, 2 Wright 512, and if entitled to this equity against their debtor he was entitled thereto against his vendee who purchased after the rights of lien creditors had become fixed. Reiff acquired no greater rights than Phillips had, and if Phillips could not ask to be relieved from the lien of the Addams judgment, how could Reiff do so ? To the contention that Avlien a judgment debtor sells one of his properties those retained are primarily liable for the payment of the judgment, the answer is, that Hoff’s equity was Superior to Reiff’s, as, at the time of the conveyance to Reiff, it already existed and was upon record, and the latter, therefore, took the property Avith all its imperfections on its head. Reiff’s rights, as held by the court below, were not intervening rights; they supervened, not intervened, and were not prejudiced by the subrogation.

      William P. Bard, for appellee.
    The acknowledged principle, that when a creditor has a lien upon two funds in the hands of the same debtor, and another creditor has a lien upon only one of the funds, the first may in equity be compelled to levy his debt out of the fund to which the other cannot resort, has never prevailed except in cases where both funds were in the hands of the common debtor of both creditors..
    In this case the debtor, Mr. Phillips, has aliened one property to Reiff, on Avhich the Addams judgment, by reason of said revival, became a lien, and hence it did not remain a fund or property in the hands of a common debtor. Subrogation is founded upon principles of equity and benevolence, and is npt to be allowed except in clear cases, where it Avorks no injustice to others: Wallace’s Estate, 9 P. F. Smith 405.
    March 12th 1877.
   Chief Justice Agnew

delivered the opinion of the court,

The liens against Phillips, the owner of the estate in question, stood in this order, viz.: Two mortgages to Nichols, a judgment of Henrietta Addams, and a judgment of Rufus Addams, these all in 1870. Then two judgments in 1872, and lastly, Hoff’s mortgage in 1873. In December 1874 Phillips acquired title to the property in question. In March 1875 Henrietta Addams revived her judgment against Phillips, and it then became a lien against this after-acquired property. In July 1875 Phillips conveyed this property to Reiff bona fide and for a full consideration. In April 1876 the property bound by the Nichols mortgages, the judgment of Henrietta Addams and'the-Hoff mortgage was sold at sheriff’s sale and the proceeds applied to the Nichols mortgages, the judgment of Henrietta Addams and part of the judgment of Rufus Addams. Hoff then got an order subrogating his mortgage to the judgment of Henrietta Addams. This was done without notice to Reiff, the purchaser of the after-acquired property. Hoff was proceeding to sell this ^property on the H. Addams judgment, when Reiff asserted his process, and the court revoked the .former decree of subrogation. The simple question is, whose equity is superior, Reiff’s or Hoff’s. It is contended that Hoff’s is, because H. Addams’s revived judgment was a prior lien when Reiff purchased. If Phillips, the defendant, were the party contesting Hoff’s equity, there is no doubt that he must give way. But this is not a mere question of lien, but of equity in the administration of a matter of pure benevolence; and benevolence to Hoff, which is not of right, cannot be administered by ruining others. ' Gibson, C. J., said in Miller v. Jacobs, 3 Watts 477, “ The rule which gives a separate creditor the exclusive enjoyment of his own peculiar fund is founded in benevolence, and regulated in its application by the nicest principles of justice, for which reason it will not be enforced to east the debt on one who is but surety, or is not otherwise bound to bear it.” This principle has been frequently recognised: McGinries’s Appeal, 4 Harris 448. Now when Phillips sold to Reiff he had a perfect right to sell and Reiff to buy so far as Hoff was concerned. Hoff had no right at law to interfere. He had no lien on the after-acquired property sold to Reiff and his mortgage was not taken in view of this property, as bound to others. The only risk Reiff took upon himself was of the judgment of Henrietta Addams. When she was satisfied his property was cleared of her lien. Her judgment was extinguished by the sale of Phillips’s other property. Phillips then stood in the relation of principal to Reiff, for by the covenant in his deed contained in the words “ grant, bargain and sell,” he was bound to Reiff to remove the encumbrance from his property. We have, therefore, the case of one who, in fact, stands ..superior to a surety, who was a bona fide purchaser of the property for a full consideration, who had no knowledge in fact of the lien of Henrietta Addams’s judgment, who owed no duty to Hoff, upon whose land Hoff had no legal claim, and from which the burthen of Henrietta Addams’s judgment was removed by a legal extinguishment of her debt. It is clear, therefore, that Hoff has no equity which he can work out, except by displacing a bona fide purchaser, who is prior in time, superior in claim on Phillips, the common debtor, and who must losé all his money in case he is displaced. When he purchased Hoff had no lien on his land, and no equity to look to property not owned by Phillips when Hoff took his mortgage, and which then was n.ot bound to others as a security for their liens. It would not be pure benevolence to substitute him to the injury of Reiff.

The court below was, therefore, right in revoking the improvident order of subrogation made without notice to Reiff, and leaving. the parties as they were when the proceeds of the sheriff’s sale extinguished the Henrietta Addams judgment.

Decree affirmed at the cost of the appellant and the appeal dismissed.


text:
    The Mutual Protection Life Insurance Co. versus Laury.
    L. took out a policy of insurance on his life in a mutual insurance company ; the policy provided that a failure to pay any assessment within forty days after noticfe of the death of a member, should work a forfeiture of the policy; a rule of the company provided that members whose policies had lapsed might be reinstated upon presenting a certificate of good health and paying all unpaid dues. Notices of the death of four members, and the consequent assessments, were sent successively, at intervals, to L., but he never paid the assessments. Afterwards, notice of the death of a fifth member of the company was sent to him; he was then on his death bed. His brother-in-law, not knowing that the other assessments were unpaid, sent this assessment to the company in L.’s name, but without his authority. The secretary did not enter the money on the books, but held it, and wrote to L. for information in regard to his unpaid assessments. L. died two days before this letter was written. Hearing that he was dead, the company tendered back the money to his representatives, who refused to receive it. In an action on the policy, brought by L.’s widow, in whose favor it was written, Held (reversing the court below), that there was no evidence to go to the jury to find a waiver of the forfeiture of the policy caused by the failure of L. to pay the assessments levied upon him.
    March 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1876, No. 177.
    Debt by Elizabeth Laury against the Mutual Protection Life Insurance Company, upon a policy of insurance on the life of her husband, Lewis Laury, issued by the defendant company, in her favor; plea, nil debet. The only question decided was whether the company had waived the forfeiture of the policy, which had taken place from Laury’s failure to pay the assessments on it according to its terms.

      The policy contained this provision:—
    “ The above-named member or members hereby agree to forward to the company $2.60, within forty days after notification of the death of any member of General Class B., Series 1, and it is further agreed that if the said amount is not received by the company within forty days from the date of such notice, then this policy shall be null and void, and the privileges therein conferred forfeited.”
    A resolution of the board of directors of the company provided that “ the secretary notify all those whose policies have lapsed from non-payment of assessments or dues, that they may be reinstated in the company by producing to the secretary a certificate of good health from any regularly graduated physician, obtained at their own expense, and the payment of all dues and assessments.”
    Laury took out his policy in August 1872; between October 21st 1872 and February 11th 1873, four members of the company died, and notices of their death and the consequent assessments were duly served upon Laury, in accordance with the provisions of the policy. He made no reply to these notices, and'never paid the assessments. On April 15th 1873 Laury died, after an illness of about two weeks. On the day before he died, one Laubach, a brother-in-law of Laury and the postmaster at his usual post office, opened a letter in the post office addressed to Laury, and finding that it was a notice of the death of a member of the company (the fifth death), and of an assessment upon Laury, enclosed the amount of the assessment, together with an assessment on another policy, in a letter to the company in Laury’s name. Two days after his death, the secretary of the company wrote the following letter:—
    “Philadelphia, April 17th 1873.
    Lewis Laury, Esq.
    Dear Sir: — Tour letter of the 14th inst., containing $5.20, is received. In examining your account I notice you have no credit for Gries, Moody, Fagundus and Cyphers. Will you please inform me how this is ? Possibly you have not received the notices, or you may not have credit because the payment has not been reported to the office by the agent. An early answer is respectfully requested.
    Very truly yours, v O. C. Baugiiman.”
    As soon as the company was informed of Laury’s death, the amount sent to it by Laubach was sent to its agent at Allentown, and tendered by him to the representatives of Laury. This amount was never credited to Laury on the company’s books, it appearing by them at that time that he had not paid his assessments, and his policy was never reinstated under the rules.
    It did not appear that any special notice had been sent to Laury under the above resolution of the company, though there was evidence that'the secretary usually acted upon it in other cases; the secretary however testified that he sent the notices of death to the members, even, after the lapse of a policy (as he had done in this case), that they might be reminded of their previous membership and reinstate themselves if possible.
    The case was tried before Walker, A. L. J., as Judge Longaker was a member of the defendant corporation.
    After testimony was given tending to prove the above facts, the learned judge refused to charge as requested in the defendant’s fourth point, that there was no evidence upon which the jury could find a waiver of the forfeiture of the policy, and left it to the jury to decide whether the company had collected from Laury assessments made after the alleged lapse of the policy. The jury found for the plaintiff. After judgment on the verdict, the defendant took this writ of error, assigning for error, "among other things the answer to the defendant’s fourth point.

      R. E. Wright $ Son, for the plaintiff in error.
    There was but a scintilla of evidence to go to the jury and that is not enough: Express Co. v. Wile, 14 P. F. Smith, 204; Baisch v. Oakeley, 18 Id. 99. Sending notices of death did not tend to prove a waiver and was not inconsistent with a forfeiture; it would not therefore create an estoppel, which alone is the ground of waiver in such cases: Elliott v. Lycoming County Mutual Ins. Co., 16 P. F. Smith 26; Ins. Co. v. Slockbower, 2 Casey 199.
    The assessment sent to the'company by Laubach, in Laury’s name, was never accepted, and the action of the company in regard to it affords no evidence of a waiver.

      Edward Harvey and William H. Sowden, for the defendant in error.
    Where there is any evidence which alone would support a verdict,.it must go to the jury, no matter how strong the countervailing proof is: Express Co. v. Wile, supra ; Baisch v. Oakeley, supra. The sending of notices of assessments to Laury after the alleged forfeiture shows that the company still considered the policy in force, and proof of this was enough to warrant the jury in finding a waiver.
    March 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The principal question upon the trial of this cause in the court below, as well as upon the argument here, was whether the company had waived a forfeiture under the third clause of the conditions of the policy. All of the assignments of error, from the fourth to the thirteenth, bear upon this question, and may be considered together.

The contention of the plaintiffs in error was that the learned-judge submitted the question of waiver to the jury upon insufficient evidence. His answers to the plaintiff’s fifth, sixth, seventh and eighth points, left the jury at liberty to pass upon the question of fact, whether the company had collected from Laury assessments made after the alleged lapse of the policy. Upon this point there was not sufficient evidence to submit to the jury. A scintilla is not enough: Express Co. v. Wile, 14 P. F. Smith 204. The only evidence was that the notice of assessments intended for Laury was received by Adam Laubach, his brother-in-law, who, of his own motion, enclosed the amount, $5.20, to the company. The letter containing the money was received by the company, and under the impression that it came from Laury, the secretary addressed a letter to him under date of April 17th 1873, in which he said: “Your letter of the 14th inst., containing $5.20, is received. In examining your account I notice you have no credit for Gries, Moody, Eagundus and Cyphers. Will you please inform us how this is ? Possibly you have not received the notices, or you may not have credit because the payment has not been reported to the office by the agent. An early answer is respectfully requested.” This letter was written two days after Laury’s death. Immediately, upon learning the facts, the company sent the money to their agent at Allentown, who tendered it to the personal representatives of the deceased. The above facts furnish no evidence of the receipt of the money by the company in the sense of payment. It is true the letter containing the money was received. But the money was not accepted. It was held until inquiry could be made and then returned. Upon this state of facts it was error to submit to the jury the question whether the company had collected and received from Laury the money upon the assessments. There was no evidence to warrant a finding that it had been collected.

The tenth assignment raises the broad question whether there was sufficient evidence in the case to entitle the jury to find a waiver of the forfeiture on the part of the company. The court below held that there was, and refused the defendants’ fourth point. We have already shown that there was no evidence that the company collected or received, in the sense of payment, the money upon the assessments made against Laury after his default. Were the assessment notices in themselves sufficient evidence of a waiver ? If not, the company were entitled to an affirmance of their fourth point, for there is nothing else in the case. In considering this question regard must be had to the resolution of the company passed in 1872, providing that “the secretary notify all those whose policies have lapsed from non-payment of assessments or dues, that they may be reinstated in the company by producing to the company a certificate of good health from any regularly graduated physician, obtained at their own expense, and the payment of all dues and assessments.” It appears by the testimony that the company acted under this resolution. The secretary says: “I sent the notices to members that they might be reminded of their previous membership and might reinstate themselves, if possible.” This evidence was uncontradicted. This company appears, as its name implies, to have been organized upon the principle of mutual protection. A large amount of indulgence seems to have been extended to the members, and a liberal provision made by which defaulting members might be reinstated. It would be unjust to the company if this liberality should be turned against itself, and assessment notices which were intended for a different purpose should be held to be a waiver of a forfeiture in favor of a policy holder who never paid nor offered to pay his "dues. We fail to see sufficient evidence of a waiver to justify the submission of that question to the jury. The defendant’s fourth point ought to have been affirmed.

Under the view which we take of the case, the refusal, of the court below to permit the withdrawal of the plea of nil debet becomes immaterial. So also as to the evidence referred to in the second and third assignments. It was improperly received, as it did not contradict Mr. Baughman, and was irrelevant. A discussion of these questions would be fruitless.

Judgment reversed, and a venire facias de novo awarded.