text:
    Guillou versus Peterson.
    1. A., B. and O. were in partnership. C., who was a special partner, by a failure to comply with the law regulating limited partnerships, became a general partner as to the public, but remained a special one as to his partners. B., who was the executor of an estate, loaned certain of its securities to the firm and they were converted to the firm use. There was evidence that O. knew of at least one loan made by B. to the firm. Held, that although there was no evidence to show that C. participated in or knew of the fraudulent conversion he was liable as a general partner to the estate.
    2. The fact that B. knew of the limited liability of C. would not bind the estate for which he was acting and prevent recovery against C. An executor can only bind his cestui que trust when acting within the scope of his authority.
    3. The knowledge of O. as to the irregular loan made by B. was sufficient to put him on inquiry as to the manner in which the business of the firm was being conducted.
    February 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1876, No. 125.
    Assumpsit by Rend Guillou, administrator c.' t. a. of the estate of Samuel L. Haven, deceased, against Edward W. Gould, Theodore R. Strong, Jesse White, Jr., and Pearson S. Peterson, late copartners as Gould, Strong & Co.
    Plaintiff filed a narr. in the common counts, and claimed to recover,
    1. The sum of $28,437.50, being the proceeds of $25,000 United States 5-20 bonds, belonging to the estate of Samuel L. Haven, deceased, which were sold, on or about December 14th 1871, by the firm of Gould, Strong & Co., of which defendant Peterson was a member, and the proceeds thereof applied by them to their own use; together with interest on the said sum of $28,437.50, from the 14th of December 1871.
    2. The sum of $45,314.09, being the proceeds of four hundred and seventy-one shares of the stock of the Pittsburgh, Fort Wayne and Chicago Railroad Company, belonging to the said estate, which were sold on or about January 22d and 25th 1872, by the said firm, and the proceeds thereof applied by them to their own use; together with interest on the said sum of $45,314.09 from the 25th January 1872.
    Defendant Peterson, who alone was served with process, pleaded non assumpsit, and a special plea as follows:
    And the said defendant saith that said plaintiff ought to be barred from prosecuting his aforesaid suit, because he saith that at the time in said declaration mentioned, he, the said defendant, was a special partner of the firm of Gould, Strong & Co., under a contract of partnership, pursuant to the provisions of title 1, chap. 4, part 2, of the Revised Statutes of New York, and of the several acts amendatory thereof, for the transaction of a banking and brokerage business within the state of New York, and that by said statute it is enacted that no special partner shall be liable for any loss beyond the amount of capital contributed by him. And the said defendant avers that he contributed in cash to said copartnership the sum of $20,000, as special capital, and before suit brought hath wholly lost the same, and of this he is ready to verify.
    To which the plaintiff filed a traverse of the special partnership, and joined issue.
    Some of the provisions of the New York statutes in reference to special partners are as follows:
    “ Such partnerships may consist of one or more persons, who shall be called general partners, and who shall be jointly and severally responsible as general partners now are by law; and of one or more persons who shall contribute, in actual cash payments, a specific sum as capital, to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the fund so contributed by him or them to the capital.”
    “ Every renewal or continuance of such partnership, beyond the time originally fixed for its duration, shall be certified, acknowledged and recorded, and an affidavit of a general partner be made and filed, and notice be given, in the manner herein required for its original formation; and every such partnership which shall be otherwise renewed or continued, shall be deemed a general partnership.”
    “ No part of the sum which any special partner shall have contributed to the capital stock shall be withdrawn by him, or paid or transferred to him, in the shape of dividends, 'profits or otherwise, at any time during the continuance of the partnership; but any partner may annually receive lawful interest on the sum so contributed by him, if the payment of such interest shall not reduce the original amount of such capital; and if, after the payment of such interest, any profit shall remain to be divided,- he may also receive his portion of such profits.”
    The firm of Grould, Strong & Co. failed on January 16th 1872, in consequence of losses incurred in stock speculations. The remaining material facts will be found stated in the opinion of this court. Upon'the facts as thus stated, the court below, Pratt, J., granted a nonsuit, and after a refusal to take it off, entered judgment for the defendant. The plaintiff then took this writ and assigned this action for error.

      Robert H. MeGrrath, Viator Gruillou, Samuel Dielcson and J. Q. Bullitt, for plaintiff in error.
    The requirements of the Act of Assembly in reference to limited partnerships were not complied with by the firm, and at the end of the first year, therefore, Peterson became a general partner. Without these omissions on the part of the firm he would have become a general partner, on the change of the articles of copartnership in 1868, as carrying on business after such an alteration converts the partnership into a general one: Lachaise v. Marks, 4 E. D. Smith 610.
    The action here is for money had and received by the defendant’s firm. The claim is based upon the receipt of the stocks and bonds by the firm; the use in their business for several years; the transfer of the stocks and the sale of the bonds by the firm, and the appropriation of the proceeds of both for the purposes of the copartnership. If these facts are proven, we submit it is not material that they originally came into the possession of the firm by a fraud. The owners thereof, the plaintiffs, have a right to waive the tort, or adopt the sale and sue for the proceeds thereof' which came into defendant’s firm; and actual knowledge of the fiduciary character of the securities, on the part of each partner, is not necessary to hold him liable for the proceeds.
    The misappropriation by Strong is not the foundation of the action; it is the appropriation of the proceeds by the firm. 'See Marsh v. Keating, 2 Cl. & Fin; 250; Stone v. Marsh, 6 B. & C. 551; Sadler v. Lee, 6 Beavan 324.
    It has been said that these cases are opposed by the decisions in Ex parte Heaton, Buck 386, Ex parte Apsey, 3 Bro. Ch. C. 265, Ex parte Watson, cited by Bindley on Partnership, page 327, but the facts of the cases are not analogous. An examination of the latter cases will show that they were appropriations by the guilty partner to partnership purposes and not loans to the firm, or funds which fraudulently came into the possession of the firm and were then appropriated by the firm to their own use.
    This was not a case of felony on the part of Strong. The assets of the estate were in his hands as trustee rather than as executor, and the loan of trust securities, though made at the risk of the trustee, is not so wrongful as to defeat even his right of recovery. It is no answer in case an executor or assignee continues a mercantile business, to an action by him for goods sold, that he is guilty of a breach of trust in dealing-with the trust funds. That is a question for his cestui que trust. His legal title is perfect, and he can assert it against any one dealing with him. Strong could, therefore, have maintained an action at law against the firm to recover these securities, if still in their hands, in his own name. But if this were not so, the fraud of Strong was committed when he delivered to the firm the coupon bonds and assigned to them the stocks. His act ceased then. He did nothing thereafter. Having committed the fraudulent act of loaning the trust assets to the firm, he did not afterward employ them in the partnership business, and this is the material distinction in the facts of nearly every case in the hooks where knowledge is held necessary.
    The ground of the action is the receipt by the firm of the proceeds of the sale of the securities. When a partner borrows money generally without saying for whom, the fact of it3 being used in the business of the partnership is prima facie evidence to sustain an action against the firm: Jacques v. Marquand, 6 Cowen 497. Where one partner in the firm name, but without the actual authority of his partners, obtains money and applies it to the use of the firm, the firm becomes liable the instant the application of the money to firm purposes is made. There is no distinction between the borrowing of money and of notes, where the note is taken for the purpose of receiving money upon it and such is actually received: Hogan v. Reynolds, 8 Ala. 60; Manufacturers’ and Mechanics’ Bank v. Gore & Co., 15 Mass. 75; Boardman v. Gore, 15 Id. 331; Harper v. Lamping, 33 Cal. 649.
    Even' if the liability of an individual partner is dependent upon his knowledge of the use of the assets of the estate by the firm, the defendant is liable to plaintiffs in this action, because—
    He had actual knowledge that the firm had borrowed from Mr. Strong as executor, and was not informed, and did not inquire, whether the loans had been returned.
    Were this not so, yet, being a general partner, notice to one is notice to all the partners, and the evidence is conclusive that defendant’s three copartners knew of the said loans, and used the assets of the estate, respectively.
    Both as a general partner and as a special partner, by the express provisions of the articles of copartnership, it was his duty to examine into the state and progress of the partnership, which would have disclosed the facts of these loans by the trustee-partner.
    Knowledge of the use of these securities by the firm is to be imputed to the defendant, because each of said transactions being entered on the day of the occurrence, on the blotters of the firm, and afterwards on the ledger, ordinary diligence and attention to the business would have given him the knowledge.
    If knowledge of fraud can be imputed to the other partners; if they knew, or ought to know, that trust moneys were being employed in the partnership business, they will be bound, &c., and will be liable for a breach of trust in case of their misapplication or loss: Bindley on Partnership, p. 249.
    It is no answer to any of these arguments against defendant that he was defrauded and deceived by his partners. This cannot affect the claim of the plaintiff here: Marsh v. Keating, supra; Sadler v. Lee, supra; Bohlen’s Estate, 25 P. E. Smith 304.

      Sharp if- Alleman and David W. Sellers, for defendant in error.
    —The defendant is not responsible for the use of the securities by his partners, because his liability was limited by the articles of co-partnership, and Strong knew their terms, and Haven’s estate is bound by Strong’s knowledge which would prevent a recovery. There is no implied authority in one partner to bind another where by articles of co-partnership they expressly declared against being so bound: Feigley v. Sponeberger, 5 W. & S. 664; Yeager v. Wallace, 7 P. F. Smith 866; Spooner v. Thompson, 48 Vt. 259 ; Parsons on Partnership 95; Story on Partnership 128; Alderson v. Pope, 1 Campbell 404, note a; Batty v. McCundie, 3 C. & P. 202; Gallway v. Martiens & Smithson, 10 East 264. The use of the securities was an embezzlement which Peterson never sanctioned, and he is not liable therefor: Ex parte Heaton, Buck 386; Ex parte Apsey, 3 Bro. C. C. 265; Lindley on Partnership (ed. 1878), 327; Jacques v. Marquand, 6 Cowen 497; Olay v. Cottrell, 6 Harris 408; Grubb v. Cottrell, 12 P. F. Smith 28. To entitle a cestui que trust to recover against the firm it must be shown that all the parties were implicated in the breach of trust, and knew that the money did not belong to the parties who were making use of it. The securities were not borrowed upon the credit of the firm, and the defendant neither expressly nor impliedly assented to be liable for their value. Peterson did not live where the business was conducted, and it was not his duty to examine the books, as his relation throughout was that of a special partner.
   Mr. Justice Paxson

delivered the opinion of the court, May 7th 1879.

The court below having entered a judgment of nonsuit against the plaintiffs upon the trial, we have but to consider the single question whether there was sufficient evidence to entitle the case to go to the jury.

The case of the plaintiffs as presented was this: On the seventh day of November 1866, the defendants, Edward W. Gould, Theodore R. Strong and Jesse White, Jr., of the city of New York, and Pearson S. Peterson, of the city of Philadelphia, entered into articles of copartnership, under the name of Gould, Strong & Co., for the purpose of “buying and selling stocks on commission, making loans, collecting promissory notes, drafts and bills of exchange.” The partnership was' in the form of and was intended to be a limited partnership, the three gentlemen first named being the general partners, residing in New York, where the business was to be conducted, and the said Peterson being the special partner and contributing the sum of $20,000 as cash capital. The partnership was renewed annually to 1877 inclusive, but by an admitted informality in the renewals Peterson became a general partner at the end of the first year so far as the public are concerned, and continued so until its termination. As between the partners, it remained a special partnership. The agreement further specified that the general partners should not engage in speculations of any kind; that Peterson, the special partner, should not in any event be liable for the debts or obligations of the firm beyond the amount of capital ($20,000) contributed by him, and that ,he should transact no business for the firm, nor be employed for that purpose as agent, attorney or otherwise. Mr. Peterson seldom visited New York, and appears to have taken little if any part in the business.

Theodore R. Strong, one of the partners, was one of the executors of Samuel L. Haven’s will. Mr. Haven resided in New York and died in the autumn of 1865. The other executor, Thomas S. Shepherd, took but little charge of the estate; Mr. Strong was practically the acting executor. In the month of February 1867, Gould, Strong & Co. borrowed from Mr. Strong $28,000 of the United States treasury notes, known as seven-thirties, which he held as executor and which belonged to Samuel L. Haven’s estate. These notes remained in the possession of the firm and were used by them for the purpose of raising money until June 1868, when, having been called in by the government, they were on the 19th of that month converted into other bonds known as five-twenties. Whether the conversion was by Strong or the firm is not clear. In Strong’s account as executor with the firm he is credited on July 6th 1868, with $28,000 seven-thirties at 109, less commission, $31,458.80, and on the same day he is debited with $28,000 five-twenties, new at 108-f, $30,485. Within a few days thereafter $25,000 of these five-twenties were entered on the blotters and ledger of the firm as loans from Strong. They were used for the business of the firm, as stated by Mr. Strong, “ to pay for stocks that we were carrying — stocks for our customers;” and again, “these stocks and bonds were used, during the years they were held by Gould, Strong & Co., as collaterals to raise money. This money was used in our business.” The five-twenties thus loaned to the firm and thus used by them, were never returned to Strong, but weue sold to Jay Cooke & Co. by Mr. Gould, on Dec. 14th 1871, for $28,437.50, and the proceeds used to pay a loan for which they had been pledged by Gould, Strong & Co. For the like purpose of raising money the firm borrowed from Strong, in 1869, 513 shares of the stock of the Pittsburgh, Fort Wayne and Chicago Railway Company, belonging to the said estate, which said stock was continuously used as collateral to raise money until January 8th 1872, when the' firm borrowed the sum of $45,000 from the City Bank upon these 513 shares of stock. The bank was repaid about January 22d of the same year $45,314.09 by the sale of 471 shares of said stock, and the balance thereof, forty-two shares -were delivered to Mr. Shepherd, the other executor, who appears to have then learned for the first time of Mr. Strong’s misapplication of the securities belonging to Mr. Haven’s estate.

Gould and White were cognisant of all these transactions, and were active participants therein. There was- evidence, and for the purposes of this case it must be taken as true, that Mr. Peterson knew of the transaction of the seven-thirties. Strong says: “ He (Peterson) knew of the loan of the treasury notes. He knew they belonged to me as executor. He got that information from either Mr. Gould or myself; we were both present. I don’t know which of us told him. That was in April 1868.”

No question has been made, indeed none could be made, as to the liability of Strong, Gould and White to Mr. Haven’s estate upon this state of facts. Strong, the executor, wras guilty of a fraud upon said estate, and Gould and White were participants therein. It was a misapplication of the assets of the estate, to use the polite and considerate term in general use to express a breach of trust. In the language of the law and of common honesty, it was an embezzlement. It was not the case of a loan of unemployed funds by an executor to his firm, for the purpose of gaining interest for his cesiuis que t?'ustent, but of the loan of interest-bearing securities to enable the firm to carry on its operations. Such breaches of trust have become so frequent and so startling within the last few years, that we would fail in our duty were we to omit to mark them, when they come before us, with the seal of our stern condemnation.

It remains to consider the question of Mr. Peterson’s liability. The right of the plaintiff to waive the tort and sue in assumpsit for money had and received is too well settled to need either argument or the citation of authority. It is alleged, however, that Mr. Peterson is not liable, for the reason, among others, that “by the terms of the partnership articles he was to be liable only to the extent of the capital he had contributed, and the terms of those articles were known to the executor of Haven’s will when the securities were delivered for use.” This position concedes Peterson’s liability to the extent of $20,000. It assumes, however, that the estate of Mr. Haven is in no better position than Strong, the executor, would be. Is this position sound ? I concede that if Strong had advanced his own money or his own securities to the firm, he would be bound by the limitation in the agreement between the partners. But this suit is not by Strong or for his benefit. The securities he loaned the firm were not his property. They belonged to Mr. Haven’s estate. In the ordinary legitimate dealings of an executor with the assets of an estate, the parties in interest are bound by his acts and perhaps affected with notice. In such case he may, in a qualified sense, be regarded as their agent. But surely this principle cannot apply where an executor is acting in fraud of the rights of the estate. It is opposed to every well-settled principle applicable to trust funds. Trust property squandered by a faithless trustee can be followed wherever found, and if earmarked equity will lay its strong hand upon it and restore it to its rightful owner. Such owner is not bound by what his trustee has done or omitted to .do; and may repudiate or rescind his contracts, saving of course the rights of innocent third parties. Mr. Strong was not acting for his eestuis que trustent when he loaned these securities to his firm; he was acting in direct antagonism to them; he was embezzling their securities; he was doing that which was a sufficient cause for his removal by the court having jurisdiction of his accounts. We think that the owners of the securities loaned by the executor to his firm occupy a very different position from the executor himself, and that they are not to be affected with his knowledge of the private understanding or agreement between the partners. That the acts of a trustee in excess of his powers are not binding upon his cestui que trust was decided in Bohlen’s Estate, 25 P. F. Smith 304. Much more so where the act is not a mere excess of power but a clear and fraudulent abuse of it.

It is said, however, that Mr.. Peterson is not liable for the further reason that .the power of one partner to bind the others is at most an implied power; that each partner is the agent of his co-partners only when acting in the scope of his power, and in the usual course of the business of the firm, and that when his agency is denied or forbidden by his co-partner, with notice to the party assuming to deal with him, as the agent of the firm, his act is not that of the firm, but his individual act only. As an abstract proposition this is correct: Story on Partnership, sections 123 and 138, and note 1, p. 218; Parsons on Partnership 95; Gallway v. Matthew, 10 East 264; Spooner v. Thompson, 48 Vt. 259; Feigley v. Sponeberger, 5 W. & S. 564; Yeager v. Wallace, 7 P. F. Smith 365. It does not apply to this case as it stood before the jury when the judgment of nonsuit was entered. The cause has been argued upon the theory that the securities were borrowed for the purpose of using the money in wild speculations prohibited by the agreement of partnership. The evidence is not so. The money was used in the business of the firm, carrying stocks for their customers, &c. It was true the failure of the firm was caused by speculations in stocks in 1872, but there is no evidence that they were engaged in such speculations at the time the securities were borrowed, or that the securities were used for any such purpose. The borrowing of securities may be regarded as the equivalent of borrowing money so far as the responsibility of the firm is concerned. This has always been considered as among the implied powers of a partnership, and when exercised by a partner in the name of the firm, for the business of the firm, and the proceeds so applied, it has always been held to bind the firm unless actual notice can be traced to the person loaning the money that the partner had no authority for such purpose.

Our own books are meagre in authority upon the question of the responsibility of a firm under such circumstances. It h^s been largely discussed in England, however, in a series of cases growing out of the forgeries of one Fauntleroy, who was convicted and executed for his offence. Marsh v. Keating, 2 Cl. & Fin. 250, is the leading one of those cases. There the stock, the proceeds of which went into the firm, was sold upon a forged power of attorney. The firm of Marsh & Co. had certain certificates of stock belonging to Keating, one of their customers; Fauntleroy, a partner in the banking house of Marsh & Co., forged a power of attorney and caused •the stock to be sold. The receipt of the proceeds of the sale of the stock was not entered in any of the ordinary books of the defendant’s firm, nor did the sum ever come into the yearly balances of the firm. It was entered only to the credit of the bank, in a pass-book kept between them and their agents, Martin & Co., and it was the duty of Fauntleroy, as between himself and co-partners, to have entered the said sum in the books of Marsh & Co., if he intended it for their account. Fauntleroy also continued to make regular entries of credit to Keating for dividends collected on the stock, as if these dividends had been regularly received from time to time. The partners of Fauntleroy were ignorant of the fraud, but the court said they might with common diligence have known it, and held them responsible, though in point of fact the money had not been received by them,' but was embezzled by Fauntleroy. Stone v. Marsh, 6 B. & C. 551, was another case growing out of the same series of forgeries. Here Fauntleroy was one of the trustees of the stock sold, as well as a partner in the house of Marsh & Co. He executed á power of attorney to transfer the stock, and forged the names of his co-trustees. The stock was sold under this forged power and the proceeds received by Marsh & Co. in the same manner as has been described in Marsh and Keating. Lord Tenterden, C. J., 'held that it was tfye duty of the banking house to place the money to the credit of the trustees, and that no ignorance on the part of any of them, nor any neglect on the part of the house arising from a misplaced confidence reposed by them in one of themselves, to which the plaintiffs were no parties, can deprive the plaintiffs of their money. In Sadler v. Lee, 6 Beavan 324, the facts were similar except that there was no forgery. The stock was clandestinely sold upon a genuine power of attorney by one of the partners, and a credit given to the firm for the proceeds. The sale was concealed from the other partners, and the dividends accounted for as if actually received. The plaintiffs’ trustees were not regular customers of the firm, but Lord Langdale held that the difference was immaterial. The partners were held liable, on the ground that the bankers received the proceeds of the sale. It was attempted to distinguish these cases from the one in hand by the fact that in each of them the stocks were received by the firm in the regular course of business. I am unable to see the distinction.

The wrong done here on the part of- the firm was in converting the securities. It is manifest they had the custody of them for Strong, and collected the interest and dividends for him. The account shows this. Afterwards they borrowed the securities from Strong. This did not authorize their conversion. It imposed an obligation to return them in specie. If sold it was the duty of the firm to have carried the proceeds to Strong’s credit as executor. Instead of doing so Gould sold the five-twenties and with the proceeds paid a debt of the firm, while the railway stock went to pay the $45,000 due to the bank. For both these debts Mr. Peterson as a general partner was individually liable. It is entirely in the course of the regular business of the firm to pay its own debts. I regard the case in hand as stronger than those cited, for the reason that the firm got the benefit of every dollar realized from the securities, while in Marsh v. Keating and Stone v. Marsh, Fauntleroy cheated his firm as well as the owner of the stock, by appropriating to his own use the money received from the sale of said stock.

It is not meant to advance the broad proposition, that where one abuses his trust, and thereby obtains the means to advance money to a partnership, he thereby raises a contract between the partnership and the -person whose money has been so used. The rule is thus laid down in Bindley on Partnership, at page 327: “If a partner, being a trustee, improperly employs the money of his cestui que trust in the partnership business, or in payment of the partnership debts, this alone is not sufficient to entitle the cestui que trust to obtain repayment of his money from the firm.” To the same point are Ex parte Heaton, Buck 386; Ex parte Apsey, 3 Bro. Ch. C. 265; Jacques v. Marquand, 6 Cowen 497. If Mr. Strong had sold the securities belonging to Haven’s estate, and placed the proceeds in the firm as his sh&re of the capital, or had loaned it to the firm as his own money, and without knowledge on their part that it was trust money, they would not have been liable to an action by the representatives of Haven’s estate. Here the securities belonging to the estate were sold by the firm, with knowledge of the true ownership, and the proceeds used to pay its debts. This, under the authorities, treating Mr. Peterson as a general partner, which we think he is, would make him liable without notice or knowledge on his part of the borrowing of the securities or their conversion by his partners.

But even if we treat Mr. Peterson as a special partner, so far as Haven’s estate is concerned, this judgment must be reversed. As before observed, the right to recover against the general partners is undoubted. It is equally clear as to Mr. Peterson, if he had notice of these transactions, or might or ought to have known them. There was evidence that he did not know; not as to all, perhaps, or to the full extent of their operations. But he knew in April 1868 that his firm had borrowed $28,000 of the securities of the Haven estate from the executor. Then was the time for Mr. Peterson to speak. Had he spoken then, as he should have done, Mr. Haven’s estate might have been saved from ruin, his firm from its subsequent insolvency, and his own estate from the peril of this litigation. A man who is brought face to face with such an irregularity as this on the part of his firm, cannot shut his eyes and refuse to see it. Whether we regard the transaction as a wrong to the estate, or a violation of the partnership agreement in regard to speculation, it was ample to put Mr. Peterson upon inquiry as to the nature of the transactions of his firm, and if he chose to sleep upon such a disclosure, he has no one to blame but himself. It is no answer to this to say that the seven-thirties were returned, and that he had no subsequent notice. It was for the jury to say whether the alleged return was anything more than a matter of book-keeping, and for any other purpose than that of exchanging the form of the securities. In any event he had a right to examine the books, and after the irregularity referred to it was his duty to have done so. Such examination would have disclosed the conversion of the securities belonging to the Haven estate, and the application of the proceeds to the payment of the debts of his firm. He must now be charged with the knowledge he might and ought to have acquired.

We are of opinion that the case should have gone to the jury, and that it was error to enter a judgment of nonsuit.

The judgment is reversed and a procedendo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Sowers’s Appeal.
    A divorce á mensá thoro will not be granted at the suit of the wife, on the ground that she was turned out of doors, where it is not shown that she was ejected by force, or was compelled to leave, because of a threat to employ it, and a reasonable apprehension that 'it would be used against her; or a refusal to receive her upon demand that she should be taken into her husband’s house as a wife ; or an emphatic refusal to allow her to remain after she had returned, accompanied by the declaration that she wished rto remain, and conduct herself as a wife should do ; or lastly, where the facts do not show a justification on the part of the wife, in withdrawing from the house of her husband.
    February 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1877, No. 69J.
    Libel in divorce á mensá et thoro filed by Josephine Gordon Sowers, by her next friend, William A. Gordon, against William H. Sowers.
    The substance of the libel and the answer of respondent, together with the material facts, are stated in the following opinion of Allison, P. J.

      “ This is a proceeding for divorce d mensa et thoro j it is instituted by the wife, Josephine G. Sowers, by her next friend, against her husband, William H. Sowers, to whom she was married at Georgetown, in the District of Columbia, on the 19th of May 1870, and who immediately after her marriage removed to Germantown, the residence of her husband, where, as man and wife, Mr. and Mrs. Sowers continued to reside until the 24th day of December 1873. Mrs. Sowers testifies that on that day she went from Germantown to Georgetown to make a visit to her friends, and that she has never returned to her home in Germantown.

      “ The reasons for remaining separate from her husband are, that the respondent turned her out of doors, and that he offered such indignities to her person as to render her condition intolerable and life burdensome; thereby forcing her to withdraw from his house and family.
    “ The answer of the respondent expressly denies both allegations. A large amount of testimony has been taken in support on one hand, and in denial on the other, upon the vital questions which are presented by the libel and the answer.
    “ Under the second head of legal justification in separating herself from her husband, the libellant charges against him, that he insulted her by false, slanderous and approbrious epithets. That he, at various times, and for long periods of time, refused to speak to her; that when absent from him he neglected to write to her. That he neglected to meet her at the depot on one occasion, on her return from a visit to Georgetown. That he addressed insulting letters to her; and that he has neglected her since she has become a mother, in refusing to receive her into his house, and in not contributing means for the support of herself and her child. The child was born at Georgetown, after the libellant last left the home of her husband, on the 24th of December 1874, and has never been seen by the respondent.
    “ The .first two of these allegations can not be regarded-as established by the proofs. They are supported mainly by the testimony of the libellant and are contradicted by the testimony of the respondent. The credibility of these parties standing in the relation of witnesses to their own cause has not been impeached. They are both esteemed by their friends and acquaintances as worthy of confidence and regard, and each of them holds now, as they have always held, a respectable position in society. They have each testified, as we are bound to presume, according to an honest belief; but they have seen and heard, as well as acted their several parts, from different standpoints; real or supposed causes of complaint have given tone and color to the transactions of which they have testified, and this, we doubt not, is substantially a correct explanation of that which would otherwise seem to be wilfully false in statement. The occurrences which followed, when remai-ks which had been made to the husband were repeated to the wife, touching the frequent and protracted absence of Mrs. Sowers at Georgetown, are an illustration of how differently they are stated and explained by the parties. Mrs. Sowers regarded them as an imputation upon her honor as a wife, causing her at the time to withdraw from the society of her husband, and to pass the night alone in great distress of mind, in a room adjoining that in which he slept. Mr. Sowers’s account of what passed is, that his statement to his wife was intended to inform her that her visits to Georgetown were made the occasion of unpleasant suggestion and remark by his acquaintances; that he had no intention of conveying to her any other impression than that this was the case, and that it was done to protect himself from future annoyance, and because he felt it to be a duty which he owed to his wife, to state to her the remarks to which her absence gave rise; he asserts the full confidence which he has now, and ever has had, in the purity and integrity of his wife, and that he so assured her.
    “That Mr. Sowers’s treatment of his wife in the presence of strangers was always kind and respectful, and even affectionate, according to the testimony of several of the witnesses, is established by the proofs. This, indeed, is admitted by the libellant, and whatever of truth there may be in the charge that respondent was in the habit of applying profane and opprobrious epithets to his wife when they were alone or when none but the family were present, must be regarded as supported almost wholly by the testimony of the libellant. The single exception, as we are able to recall the testimony, is the occasion at dinner, testified to by the servant, Winnie Price, upon whose evidence considerable doubt is cast, contradicted as it is by the statements of the mother of the respondent and by the respondent himself; considered also, as it should be, in connection with the motive of the witness, and that it was not heard by the servant who waited on the table, and the testimony of a number of witnesses that it was not the habit of the respondent to use profane language. Aside, therefore, from the single occasion sworn to by the witness Price, the allegation of the use by the husband of profane and opprobrious language addressed to his wife must be regarded as resting upon her testimony alone, and in view of the fact that it is met by the positive denial of the respondent, it cannot be regarded as a fact proved in the cause.
    “ It cannot be questioned, that there was at times contention, ill feeling, and the expression of mutual dissatisfaction with the situation and conduct of both husband and wife, each toward the other, and that the. respondent, on various occasions, for a longer or shorter period of time, when these feelings were in the ascendant, refused to speak to the libellant; the testimony is, however, contradictory as to the period of time for which this treatment on his part would continue; that it was a grievance which weighed heavily on the libellant cannot be doubted. But unfortunate and improper as this conduct on the part of the husband may have been, it is not entitled to much consideration in making up a judgment upon the question, whether or not the respondent offered such indignities to the person of the wife as to render her condition intolerable and her life burdensome. This conduct of the husband was, according to the testimony of the libellant, but occasional; she says, after the cloud came forth the sun, and if the home of the husband and the wife was at times disturbed by disagreement and anger, it resulted from the fact that each had cause for real or supposed complaint against the other. The husband, soon after his marriage, came to the conclusion that he held but a secondary place in the affections of his wife. That her father’s home and family, and the enjoyment of the society of her friends in Georgetown, were set above all proper consideration for him and his relatives and friends, and that this was evinced by the several protracted visits which she made to Georgetown in each year, and as he says in his testimony, by her declarations of contempt for him, as well as for the members of his family; to this latter allegation, it should be here stated, Mrs. Sowers has given an emphatic contradiction, so far at least as her husband is concerned, and in turn asserts, that she found her situation in the home of the mother of the respondent one of discomfort to her. To this she adds the unkind treatment of her husband, to which we have referred; that he refused to supply her with sufficient amount of spending money for her personal use ; that he used intoxicating liquors immoderately; that he neglected many personal attentions, which had been accorded to her, and which she thought.was due to her. These things, she says, rendered her condition intolerable, and were injurious to her health.
    “ The fact; however, is clearly established by the testimony, and by the admissions of the libellant, that her home was one in which every necessary want was supplied, and many luxuries furnished to her. She was always treated with respect by the subordinates of the household; horses and carriages were at her command; her time was her own; nor was task or restraint imposed upon her. She was frequently accompanied by her husband in her visits and in her drives, and also in her attendance at church. To the world, at least, her home was a happy one. The disagreement between herself and her husband was carefully concealed from public view; nor does it appear that any one thing requisite to her comfort was denied her, if we except her limited supply of spending or pocket money, and the refusal of the respondent to gratify, on one occasion, her. desire for an expensive winter wrap, and withholding his consent to her having a pony phaeton, furnished or proposed to be given to her by her brother. These are luxuries with which the law does not require a husband, situate as was the respondent, to supply his wife. It does not appear from the testimony that Mr. Sowers is possessed of great wealth; and though he is engaged in varied and active business, from which he receives a considerable income, it is not such as to require him to respond to every demand which may be made upon him. To his wife’s request for spending money, and for a fixed allowance, he testifies that his reply to her was that he gave her all that he could afford to bestow upon her for her private expenditures.
    “We put out of the libellant’s statement of grievances her allegation that her husband neglected to meet her at the Germantown Junction, several miles from her home, on her return from a visit to Georgetown. Mrs. Sowers might wéll have omitted this from her complaint. Smarting under the irritation of the seeming neglect, instead of going to her home after so long an absence from it, and seeking an explanation from her husband, if one was required, for this omission of an accustomed attention on his part, she turned away from her home, when almost at its door, and sought the protection of acquaintances in the city, sending no word until the next morning where she was, though she knew her return was expected that evening, the testimony showing that preparation had been made for her reception. This is aside from the explanation given by Mr. Sowers, which, if correctly stated, accounts satisfactorily for his failure to meet Mrs. Sowers in accordance with his usual habit on such occasions.
    “ The most serious and important of all the charges under this head, which are made by the wife against her husband, grew out of his letter to her of February 8d 1874, and his refusal to contribute means of support to his wife and child. Mrs. Sowers had been absent from her home from the 24th of December 1873, on a visit to Georgetown. On January 1st 1874, she informed her husband by letter of her intention to return to him on the fifth of that month. The material portions of respondent’s letter begins with the third paragraph, in which he writes : ‘ I shall not receive you. You left my bed' and board without my permission. You have daily and hourly insulted me and treated me with the utmost contempt. By the laws of my state I cannot refuse you admittance. * * * Your family have played an infamous part in this business, and I suppose they are satisfied,.when they are able to keep you six weeks in the hands of your old lovers.’
    “ To this letter Mrs. Sowers did not reply, but her brother wrote to the respondent immediately on the receipt of it, saying: ‘ She will now remain with those who know how to appreciate her,’ and asking that her individual property, clothing, &c., should be sent to her. The decision of Mrs. Sowers to remain in Georgetown is placed by her brother on the ground of a refusal of Mr. Sow'ers to receive his wife into his house. From that time all direct communication between the libellant and the respondent ceased. She' did not write to him informing him of the birth of their child, though her physician did; and the respondent asserts, and makes it one of his causes of complaint, that when she left him, oh the 24th of December, he did not know that she expected to become a mother, asserting that she had kept from him all knowledge of her situation. This assertion of the respondent is denied by the libellant, and in connection with this denial she charges against her husband, as an act of cruelty, that he has made no inquiries about her or her child. In her testimony.she says: ‘He has never contributed one penny towards the .support of either of us; he has never visited either of us.’
    “ This letter and the subsequent conduct of the respondent, in so far at least as his neglect of his child is concerned, is indefensible. No one, and more especially one occupying the position which the respondent occupies, can justify the writing of such a letter to his wife, however great his real or his fancied provocation. It. indicates a violence of spirit and contains a harshness of expression that must have deeply grieved and wounded the sensibilities of Mrs. Sowers; and however the respondent may have felt himself justified in'withholding support from his wifé while absent from him, as he asserts, without his permission, the innocent ought not to have been made to suffer with the guilty. His child has a just claim upon him for the manifestation of a father’s love for his offspring, as well as for protection and the supply of its material wants. The law of nature and the law of the land alike demand the fulfilment of these obligations. That they were withheld gives to libellant a just cause of complaint, aside from the question whether this grievance alone, or considered in connection with her other grounds of objection to the conduct of her husband, gives to her a legal right to the divorce from bed and board which she prays may be awarded to her.
    “But, conceding the full force of this fact, it yet remains to be considered in its legal aspect, whether it can, in any proper sense, be regarded as such cruel and barbarous treatment as constitutes an indignity to her person, which rendered her condition intolerable and her life burdensome, so that she was forced to withdraw herself or to remain away from the house and family of her husband. That it cannot be regarded in this light must, we think, be admitted, if the letter of February 13th 1874 can properly be interpreted in the sense in which the respondent claims it ought to be interpreted, and which, he asserts, it was intended to express. The proper answer to this question will furnish an answer as well to the other material point on which the libellant rests her case, namely, whether she was, in a true legal sense, turned out of doors by the respondent ; for if this is established, then the husband has, in law, constructively deserted his wife, and having persisted in such desertion for two years, a divorce must be decreed. McDermott’s Appeal, 8 W. & S. 257, is the leading case in Pennsylvania, establishing the doctrine that the refusal of a husband to receive his wife into his home is, a virtual turning her out of doors. Gibson, O. J., places the decision of the Supreme Court on the ground that our statute is a municipal regulation for the protection of the community as well as the wife. That it was sufficient to show that a wife who had followed her husband from Ireland was 'refused maintenance and admission to his house. The decree of the court below was affirmed on this ground alone. McDermott’s Appeal has ever since been regarded as a correct interpretation of the statute on which these proceedings are based.
    “ The authority of this case is recognised in Grove’s Appeal, 1 Wright 443. The original libel in that case set up an actual turning out of doors, which was subsequently allowed to be amended, by asserting that the wife, while living separate and apart from her husband, being desirous of returning to him, repeatedly offered and was -willing to return and live with him as a true and dutiful wife, but that her husband refused to permit her so to do. The testimony of one witness showed that on a cold and snowy night in January, with her two small children, she went to her husband’s house; she had difficulty in obtaining admittance, and was allowed to remain ten minutes to warm herself, when her husband told her to go. She begged to be allowed to stay, when_ he took her by the arm and pushed her out. Several witnesses proved that on different occasions she expressed a desire to go back and live with her husband, but that he steadily refused to receive her. This was held to be an actual turning out of doors, according to the testimony of two of the witnesses, or, at all events, constructively and substantially, as proved by other witnesses.
    “So, also, in Gordon v. Gordon, 12 Wright 226, the court instructed the jury that the refusal of the husband to permit his wife to remain in his house was a sufficient turning out of doors to entitle her to a verdict. This instruction was affirmed by the Supreme Court, as they say, with reluctance; the evidence showing conduct on the part of the wife the most reprehensible, insults and gross personal indignities to her husband, yet it was not sufficient to justify him in turning her out of doors, because it fell short of proving conduct on her part which amounted to cruel and barbarous treatment, which rendered his condition intolerable and life burdensome. Under the authority of these cases does the letter upon which the libellant rests this issue in the cause constitute a turning out of doors ? It falls very far short of the facts upon which Mc-Dermott’s Appeal was decided. Grove’s Appeal is a still greater remove from it. In Gordon v. Gordon the questions of actual and constructive turning out of doors was left to the jury, the testimony sustaining the entire charge, if believed by the jury. Under the latter allegation it was proved that the wife returned to her husband’s house and requested permission to remain and live with him, which was refused, accompanied by an order that she should leave the house and a threat to call in an officer to eject her.'
    “ In May v. May, 12 P. F. Smith 206, cited in support of the demand of the libellant in this case, the question of actual turning out of doors was not raised. The husband’s proposition to allow his wife to return to his house and occupy a small sleeping-room, have care of her children, and eat at his table, but on the condition that she was denied all control of the house; was required to take a position in the family subordinate to a servant who had treated her unkindly; this, in connection with the proof that he whipped her with a cowhide, treated her with cruelty and neglect in her confinement, inflicted personal violence, which was evidenced by her screams and the marks upon her person, was all submitted to the jury upon the question of infliction of indignities to the person, which justified the wife in withdrawing from the family of her husband. These facts make out a case widely different from that of the libellant, who has never manifested a desire to return to hep husband, nor has she asked an explanation of the letter upon which libellant and respondent have placed such opposing interpretations. If the conduct of the respondent is to be judged by the letter of the fifth day of February it falls very far below the facts proved in the ease of May v. May. We have the oath of the respondent in support of the allegation, that no more was meant by the expression than that he would not meet her at the junction, as he had done on all prior occasions, except the one to which we have referred, and that all her accustomed privileges in the home of his mother, which was his home also, were reserved for his wife; that her room was prepared for her reception and has been kept awaiting her return ever since. Whether this is a correct explanation of the declaration that he would not receive his wife, we have no means of' determining, except the oath of the respondent, and the qualifying statement in the letter, that “ by the laws of my state I cannot refuse you admittance.” The libellant, placing her own construction on this letter, has thought proper to rest upon that construction and remain in Georgetown separate and apart from the respondent.
    “We have no case in Pennsylvania in which the suit of the wife was maintained on the ground that she was turned out of doors, where it was not shown that the wife was ejected by force,'or was compelled to leave because of a threat to employ it, and a reasonable apprehension that it would be used against her; or a refusal to receive her upon demand that she should be taken into her husband's home as wife; or an emphatic refusal to allow her to remain after she had returned, accompanied by the declaration of a wish to remain and ‘ behave herself as a good wife ought to do.’ Or lastly, where the facts did not show a justification on the part of the wife in withdrawing from the home of her husband — facts which would entitle her to a divorce in her suit against an offending husband.’

      “ This case does not, in our judgment, come up to the requirements of the law on either ground on which the libellant rests her suit; we therefore refuse to grant the divorce from bed and board for which she prays.”
    The court then dismissed the libel, when Mrs. Sowers took this appeal, alleging that the court erred in holding that the facts proved in this case did not amount to a turning of the libellant out of doors by the respondent; in holding that the facts, as proved, did not show cruel and barbarous treatment of the libellant by the respondent ; and in dismissing the libel.

      George Tucker Bispham and Wayne Mac Veagh, for the appellant.
    A refusal by a husband to receive his wife into his house is a “turning out of doors” within the meaning of the Act of February 26th 1817 : McDermott’s Appeal, 8 W. & S. 251; Grove’s Appeal, 1 Wright 443. There has been a literal refusal by the respondent to receive the libellant. Of course, it is the intention with which language is used which is to be looked at, and if it could be shown that it was not the intention of the respondent that the words were to be taken in their literal sense and that that intention was communicated to the libellant, the presumption that a turning-out of doors was designed would be rebutted. But in point of fact, when the ease comes to be investigated it is found that all the circumstances indicate that the literal meaning of these words is the sense in which the respondent used them and intended that they should be understood. This is apparent from the context, from the action of the respondent immediately after writing the letter, and from his conduct before and since that date. The letter of Feb. 3d 1874, is full of reproaches, of insulting phrases, and still more insulting insinuations and charges. It is not the letter of a man who wants his wife to come back. It is consistent with the literal meaning of the words “I shall not receive you.” It is inconsistent with any other or different meaning. Again, when the libellant’s brother wrote to the respondent, informing him that in consequence of his refusal to receive his wife she would thenceforth remain at his (the brother’s) house, it was a notification to the husband that the literal meaning of his words had been taken as the correct exposition of his intention. If the husband then knew that this impression was erroneous and that it was not his intention to refuse his wife admittance, surely it was his duty to have said so and to have removed the erroneous impression. But he did nothing to disabuse the-mind of the libellant of the impression which had been conveyed to it; on the contrary, he confirmed and acquiesced in the interpretation which had been put upon his letter by sending the libellant’s clothes and articles of jewelry to Georgetown. After sending this letter the respondent made no inquiries about the libellant or his child.

      The court seemed to think that, under the Pennsylvania author^ ties, something more was required than a mere refusal to receive— that is to say, that the refusal must be supplemented either by actual turning out of doors, or by some formal demand for admittance on the part of the wife, or by some cruel and barbarous treatment. In McDermott’s Appeal there was no actual turning out of doors; there was no violence; there was no cruel and barbarous treatment; nor was there even a formal demand upon the part of the wife to be admitted.
    It is not necessary, to entitle the libellant to a divorce, that there should be blows, or any other form of actual violence. A course of humiliating insults and annoyances, calculated to destroy the life or health of the wife, although unaccompanied by actual violence, is sufficient cause-for a divorce: Butler v. Butler, 1 Pars. 329. Whenever the course of treatment is such as to render her condition intolerable and life burdensome, there is ground for a divorce. “ What acts or course of conduct will amount to such indignities seems to be nowhere defined, and perhaps they are incapable of specification or exact definition:” May v. May, 12 P. F. Smith 210. See McClurg’s Appeal, 16 P. F. Smith 366. Each case, therefore, must stand on its own ground; and the question for the court to consider is whether an analysis of the evidence in the present case shows such a course of treatment as fairly falls within the meaning of the Act of Assembly.

      W. Wynne Wister, Jr., and F. Carroll Brewster, for appellee.
    —To bring this case within the terms of the act, the husband must have actually closed the doors of his house to his wife — must have intentionally have denied her admittance. In McDermott’s Appeal, supra, there was a positive refusal by the husband to admit the wife to his house. So in Grove’s Appeal, the husband persistently refused to receive the wife. No wish or intention to return to her husband’s house is made in the case at bar, and distinguishes it from Gordon v. Gordon, 12 Wright 226. The respondent offered no such indignities to the person of libellant as to render her condition intolerable and life burdensome: May v. May, supra; Butler v. Butler, supra; Cheatham v. Cheatham, 10 Mo. 296. The indignities contemplated by the act are a persistent course of treatment such as renders the wife’s life intolerable: Elmes v. Elmes, 9 Barr 166; Richards v. Richards, 1 Wright 225, and' a manifest design to injure or annoy: May v. May, supra; McOlurg’s Appeal, 16 P. F. Smith 366. Here the quarrels were only occasional, while she had every necessary want and many luxuries supplied her. Courts will consider whether the conduct of the wife drew from the, husband the conduct of which she complains: Bishop on Divorce, vol. 1, § 797. Indignities, if provoked by the complaining party, are no ground for divorce : Mayhugh v. Mayhugh, 7 B. Monr. 424; Johnson v. Johnson, 14 Oal. 459. The respondent never refused to contribute to the support of his child. His wife was designedly absent from home, and the fact that under such circumstances he did not volunteer to support the child- can hardly be charged against him as an indignity to his wife: It is questionable whether, when
    a husband furnishes his wife with a comfortable home, it is his duty to tender her pecuniary assistance' when she voluntarily absents herself therefrom.
   The judgment of the Supreme Court was entered March 17th Í879,

Per Curiam.

After a very careful examination of the evidence in this case, we are of opinion that the facts and principles of law upon which it ought to be decided are so well, accurately and impartially stated in the opinion of"the learned president of the court below, that nothing need be added to enforce and confirm the conclusion at which he arrived.

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


text:
    Simpson versus Neill.
    1. All the property on the river front of the city of Philadelphia on the river Delaware, below low-water mark, is held merely by license from the Commonwealth, and subject to such laws as the legislature may see fit to enact.
    2. The Act of April 8th 1851, which confers upon the Board of Port Wardens a jurisdiction over controversies in regard to wharfage between adjoining wharf-owners, is not in derogation of the right of trial by jury.
    3. Where land from which two piers extend into the river is owned by adjoining owners, although the dock which separates the piers is sixty-four feet in width, these piers are adjoining wharves, within the Act of 1851. .
    February 18th 1879.
    Before Sharswoód, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1877, No. 153.
    Debt by John L. Neill against Adam M. Simpson, on an award of the Board of Port Wardens of the port of Philadelphia.
    In 1867 Neill and Simpson were tenants in common of certain land which extended from Swanson street to the line fixed by the Board' of Port Wardens in the Delaware river. On this land was a wharf, from which extended two piers into the river at a distance of about sixty-four feet from each other. Neill and Simpson agreed to make partition of the land, and deeds were mutually executed by the parties for their respective portions, that of Neill being made to Simpson’s sons. At the time of the conveyance, defendant’s pier was used by Neill and Simpson as tenants in common, and had for years been almost entirely used for vessels lying in the dock and moored to its north side. In the deed from Neill to the two Simpsons, defendant’s pier was conveyed to the latter with “ all passages, waters, watercourses, wharves, docks, landings, landing-places and other appurtenances thereto belonging.” . After the deed the grantees continued to use the water north of the pier for vessels moored to the pier as fully and in the same manner as Neill and James Simpson had used it before the partition. In the year 1871, Neill set up a claim, as against the two Simpsons, for a portion of the wharfage of vessels lying in the dock against the north side of defendant’s pier, and requested the port wardens to adjust the proportion, under the provisions of the Act of April 8th 1851, Pamph. L. 354, which provides as follows:
    “That in all cases when the owner or owners of adjoining wharves, docks, landings or river front, or any part or portion thereof in the port of Philadelphia shall disagree as to the proper apportionment of the wharfage or dockage payable to them in accordance with their titles by persons making use of the same or by vessels lying in front thereof, it shall the the duty of the master warden and board of wardens of said port, upon the written application of one or more of such owners, and the said wardens are hereby authorized and required,1 after notice to the parties interested and in accordance with the established custom, and usages of the port, or where there is no such usage, then as justice and equity may require, to determine the relative proportions of such wharfage and dockage belonging to the several proprietors of such adjoining wharves, docks, landings, or river front, or any parts thereof: Provided, that nothing herein contained shall be construed to authorize the said wardens to take cognisance of any questions involving the title to such property ; but such jurisdiction and the power to enforce the rights of the owners of said wharves, docks, landings or river front to wharfage and dockage from persons or vessels heretofore or hereafter using or .lying opposite to the same shall exist and remain in the proper courts of law.”
    The division line after the partition was close to the north side of the defendant’s pier and gave Neill nearly the whole of the dock or slip. It was in evidence that there was a slip on t]ie south side, but it was narrow and stopped up by a marine railway and was seldom used for mooring vessels. The Board of Port Wardens decided that the Simpsons should pay Neill the one-third of all the wharfage from vessels moored at the north side of their pier, and fixed the amount of wharfage, as between certain dates, at $579.25. The foregoing facts having been shown at the trial, the court, Mitchell, J., directed a verdict for plaintiff for one-third the above amount, and judgment having been entered thereon the defendants took this writ alleging that this direction was error.

      F. Spencer Miller, for plaintiff in error.
    The act applies to owners of “adjoining wharves.” Piers extending into the river opposite to each other are in no sense adjoining wharves. The wharfage to he divided or apportioned between owners is wharfage for vessels lying “in front” of such wharves. Vessels lying at the side of a pier cannot be said to lie in front of a wharf.
    The object of the act evidently is to prevent differences between owners in cases in which one has a bulkhead of say twenty feet, and another a bulkhead of the like front, and no vessel can lie at either without overlapping the other. In such cases neither would be of any use without the privilege of using the water in front of the other, and to utilize both, without discord, the act was passed. The reason for its application does not arise between owners of opposite piers.
    If the right to moor a vessel to a pier is a common-law right, a statute depriving the owner of it or making him pay another for it would be clearly unconstitutional. . But if it were not the ascertainment of the fact that he was not entitled to this common-law right without paying for it, and of how much he is to pay could not be settled without a jury. See North Penna. Coal Co. v. Snowden, 6 Wright 488; Rhines v. Clark, 1 P. F. Smith 96; Tillmes v. Marsh, 17 Id. 508; Haines’s Appeal, 23 Id. 169; Williams v. Pittsburgh, 2 Norris 71; Pusey’s Appeal, Id. 67.
    If, then, the wardens have no right to compel the owner of a pier to pay the owner of an opposite pier for the use of the water in front of it, a fortiori have they not the right to do so when the opposite owner has by a solemn grant given to the other owner the use of the water proper for his pier.
    The act expressly forbids the wardens from taking “cognisance of any questions involving the title to said property.” How can they decide as to the force of the words in the defendant’s deed without disregarding this proviso.

      Henry Flanders and David W. Sellers, for defendant in error.
    —It had always been held that the riparian owner, against every one but the Commonwealth, had a property control in and over the dock in front of his land, but this has now been put at definite rest by sect. 4 of an act approved April 8th 1868, Pamph. L. 755, in these words, “ the breadth of water front, appertaining to each owner of land on the river bank, shall be determined by protracting the lines of the land to the line established as the limit to which wharves may be built.”
    In every case in which a vessel moored to a wharf or a pier has a width of beam more than the breadth of water appertaining to the owner of the pier, the liability to pay a portion of the wharfage or dockage is the right of the riparian owner whose waters or dock is thus used. Usually this is apportioned by agreement.

      The wardens had jurisdiction and no appeal was taken from their award. The proviso does not apply. There was no question about the title, but simply one of apportionment in accordance with the titles as settled.
   The judgment of the Supreme Court was entered, March 17th 1879,

Per Curiam.

We think there is nothing in the points made on the conveyances so much relied on by the learned and zealous counsel for the plaintiff in error. If the deed Neill to Simpson contained the general words “ waters, docks, &c.,” so did the deed Simpson to Neill of the same date, and the one was a fair set-off against the other. But in truth neither party had any right to convey the waters and docks, being as they wore part of the river Delaware. These words could have no more effect on the rights of the respective parties than would a conveyance of a lot on a public street “ with all the streets and highways thereunto appertaining.” All the property on the river front of the city below low-water mark of the river Delaware is held merely by license from the Commonwealth, under and subject to such laws and restrictions as the legislature has seen fit to enact. It cannot, we think, be doubted that these wharves were adjoining, within the letter and spirit of the Act of 1851, and would be so though the piers were one hundred feet apart, provided there was no intervening wharf or pier. That the claim of the defendant below was derived from and altogether depended upon statutory enactment is a sufficient answer to the argument that the Act of Assembly vesting jurisdiction in the wardens is unconstitutional as depriving the defendant of his right to a trial by jury.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    American Steamship Co. versus Young.
    1. A public officer who by virtue of his office demands and takes unauthorized or illegal fees may be compelled to make restitution, and where such fees are paid to such officer, without protest or notice of intention to reclaim, it is not a voluntary payment.
    2. Where a United States shipping commissioner charges a seaman who has paid the shipping fee an additional fee every time he re-ships on the same vessel, for successive subsequent voyages, such charge is unauthorized by the Acts of Congress, and the fees thus named may be recovered back in an action of assumpsit.
    3. State courts can entertain suits against federal officers for acts done by virtue of their office.
    February 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett,
    Error to the Court of Common Pleas, No. 1, of Philadelphia county : Of January Term 1877, No. 223.

      Case by the American Steamship Company against John H. Young, in which a case was stated, in substance, as follows: Young is the United States Shipping Commissioner at Philadelphia. The plaintiff is a corporation and the owner of a line of steamships sailing between Philadelphia and Liverpool. The men constituting the crews of the steamships of said corporation were shipped before said Young as shipping commissioner. For each round voyage, said commissioner has charged for each man shipped at Philadelphia the sum of $2, renewing said charge of $2 upon each reshipment on the same vessel. The payment of said fees was claimed by color of his office as shipping commissioner. The total number of men shipped before defendant was 6136. Of this number 2439 were seamen who reshipped, and sailed from Philadelphia, on the next succeeding voyage of the same steamship in which they had returned to Philadelphia, from a voyage for which they had previously shipped before said commissioner, and for which men defendant had demanded and received $4878, being a fee of $2 for each man so reshipped. These payments were made from time to time on bills rendered by defendant and in which said charge was made for every man reshipped. A demand had been made for the return of said $4878, which had been refused. If upon these facts the court were of opinion that under the statutes of the United States, the commissioner was not entitled to the fee of $2 for the reshipping members of a crew, then judgment to be entered for plaintiff, if not then for defendant.
    The court, Biddle, J., in an opinion said:—
    “We do not think it necessary for the decision of this case to construe the laws of the United States relative to the shipment of merchant seamen. As it is not necessary, we prefer to leave them to the tribunal of the United States, with whom they are a subject of constant study and adjudication.
    The case stated admits that the fees were claimed in good faith, under a clause in the Shipping Act, and that they were paid without protest or remonstrance. The question,' therefore, which is raised for our adjudication is, can these fees be reclaimed in a suit instituted in our court under the laws of Pennsylvania.
    “ The general principle that a voluntary payment, made with a full knowledge of the facts but in ignorance of the'law, cannot be recovered by the party making it is not controverted, but it is contended that fees paid in consequence of a demand by a public officer, virtute officii, are not to be treated as voluntary payments.
    “ In regard to this there seems to be a well-marked distinction between exactions by a public officer, as in Ogden v. Maxwell, 3 Blatchf. 319, which are wilful wrongs, and demands under a mistaken view of the law — between money corruptly obtained under color of office, and that improperly levied under color of law. To the first class of cases the one now submitted does not belong. It is not alleged that the money was obtained by deceit or unfair practices. In regard to the latter, the two cases of the Borough of Allentown v. Saeger, 8 Harris 421, and Taylor v. The Board of Health, 7 Casey 73, seem very much in point. In the Borough of Allentown v. Saeger, a borough tax, part of which was legal and part illegal, was paid by the person assessed to the tax collector without protest or notice at the time that he would reclaim the part illegally assessed, and it was held he could not recover it. Here, it will be observed, the suit was against the borough, who actually held the money and not against the tax collector, who might or might not have paid it over. Judge Lowrib says, in delivering the judgment of the court: ‘ The taxing officers performed their duty as well as they knew how, and the tax was submitted to by one who was interested in the purpose for which it 'was raised, though it might have been resisted in legal form.’ In Taylor v. The Board of Health, the action was against the board of health, the executive officer of the state, who collected the tax and expended it for purposes designated by law, as in the present case; the court there decided: ‘ That the plaintiff paid without dispute, and thus assented to the collection of the tax for public purposes and, of course, to the application of it, and he has no shadow of equity against the collecting functionary.’ And they further say expressly : ‘We state the case as one of a voluntary payment of taxes because there is no pretence that the defendant’s officers did any more than demand the tax under a supposed authority of the law, and this is no more a compulsion than where an individual demands a supposed right. The threat that is supposed to underlie such a demand is a legally harmless one — that in ease of refusal the appropriate legal remedy will be resorted to.
    “ In the case submitted to us, the plaintiffs from the nature of their business would be quite as likely to understand the provisions of the law as the defendant, and their paying for three years without objection, what they now allege to be illegal charges, was calculated to induce the defendant to persist in the construction of the law which they acquiesced in and to collect the same tax from others.
    “We think, .therefore, that the payments made in this case were ‘voluntary payments,’ which, under the Pennsylvania decisions, cannot be recovered. Judgment is therefore entered for the defendant on the case stated, with costs.”
    The plaintiff took this writ and assigned this action for error.

      Morton P. Henry, for plaintiff in error.
    There is a distinction between the fees of public officers and taxes or public dues, and the right to recover the latter, when paid without protest, is denied upon the ground that the officer pays them into the public treasury for public purposes: Taylor v. Board of Health, 7 Casey 73. The fees charged by public officers are never paid voluntarily, but can be recovered if illegal: American Fire Ins. Co. v. Britton, 8 Bosw. 148; Ogden v. Maxwell, 3 Blatch. C. O. 319 ; Steele v. ‘Williams, 20 Law & Eq. R. 319; Morgan v. Palmer, 2 B. & C. 729; Baker v. City of Cincinnati, 11 Ohio 534; Drew v. Parsons, 2 B. & Aid. 562; Walker v. Ham, 2 N. II. 238; Lasalle County v. Simons, 5 Oilman 513.
    A penalty in Pennsylvania may be recovered for taking illegal fees, although the officer thought they were legally demandable, and acted without corrupt intent: Coates v. Wallace, 17 S. &.R. 75. It is only in an indictment that the act must be shown to be wilful, fraudulent and corrupt: Miller v. Lockwood, 5 Harris 248. State courts have jurisdiction to recover excessive fees or charges exacted by officers of United States by color of office: Ripley v. G-elston, 9 Johns. 201; Claiton v. Strong, Id. 248; Slocum v. Mayberry, 2 Wheat. 1.

      Henry Flanders, for defendant in error.
    It was obviously the purpose of the act to allow a vessel, on her return to a port of the United States, to reship her crew and proceed on one other voyage, without the payment of additional fees to the shipping commissioner, and this to be the end and fulfilment of the privilege accorded to her by the law. Does not the act find its application in that numerous class of cases where a vessel is chartered for two successive voyages,' and where the two voyages are regarded as an entirety, and where for the second voyage the shipowner may well be relieved from the payment of additional fees to the shipping commissioner ?
    It is admitted that an officer is liable if he takes money mala fide; but where there is no fraud or imposition, actual or legal, there is no ground either in law or equity to reclaim money paid voluntarily under a claim of right. This is the well settled law of Pennsylvania: Good v. Herr, 7 W. & S. 253; Ege v. Koontz, 3 Barr 109; Taylor v. Board of Health, 7 Casey 73; Finnel v. Brew, 31 P. F. Smith 362 ; Federal Ins. Co. v. Robinson, 1 Norris 357. In all the cases cited by the plaintiff in error the money was paid under protest, and they were cases of fraudulent exaction. Here there was no protest nor exaction. For three years the parties agreed in their construction of the law, and the defendant in error confidently submits that that construction was the true one; that he was entitled to demand these fees; that the plaintiff in error was right in supposing them to be due, and paying them; and that it was not and could not be the intention of the Act of Congress to make the shipping commissioner perform the same duties in respect to every voyage of a ship, and allow him compensation in respect to only one voyage.
   Mr. Justice Sterrett

delivered the opinion of the court, May 5th 1879.

The case stated in the nature of a special verdict fully presents the facts upon which the judgment of the court below was based. The questions submitted for determination were, whether, upon the admitted facts, the defendant, as shipping commissioner under the Act of Congress, was entitled to demand and receive from the company plaintiff a fee of $2 for reshipping members of the crew of its vessel for the next voyage, after the return of the same vessel to the port of Philadelphia; and, if not, whether the plaintiff was entitled to recover, in this suit, the fees so demanded and paid ?

The learned judge deemed it unnecessary to express any opinion as to the first, for the reason that the law of the case, as he viewed it, was conclusively against the plaintiff on the second question. It was his opinion that the payments in question were voluntary, made with a full knowledge of the facts, and, therefore, assuming that they were made in ignorance of the law, there could be no recovery.

The United States Shipping Act of June 7th 1872, passed for the protection and benefit of merchant seamen, provides for the appointment of a shipping commissioner, who, before entering on the duties of his office, is required to give bond with sureties in not less than $5000, take and subscribe an oath to support 'the constitution, and discharge his duties to the best of his ability and according to law. The powers with which he is clothed are commensurate with the important duties he is required to perform. Section 4511, Revised Statutes, provides that “ the master of every vessel, bound from a port in the United States to any foreign port, other than vessels engaged in trade between the West India Islands or the Republic of Mexico, or any vessel of the burthen of seventy-five tons or upwards, bound from a port on the Atlantic to a port on the Pacific, or vice versa, shall, before he proceeds on such voyage, make an agreement in writing or print, with every seamanAvhom he carries to sea as one of the crew,” in the form specifically prescribed by the statute. The next section requires every such agreemeut to be signed in duplicate by each seaman in the presence of the commissioner, who shall retain one part, and the other shall be delivered to the master of the vessel. The next section declares that section 4511, above quoted, “shall not apply where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to the masters of coastwise, nor to the masters of lake-going vessels that touch, at foreign ports; but seamen may, by agreement, serve on board such vessels a definite, time, or, on the return of a vessel to a port in the United States, may reship and sail in the same vessel on another voyage, without the payment of additional fees to the shipping commissioner by either the seamen or the master.” The statute also provides that the commissioner shall be entitled to receive a fee of $2 each for engaging, and fifty cents each for discharging the crerv, to be paid by the OAvner, consignee, agent or master of the vessel who is authorized to reimburse himself in part by afterwards deducting from the voyage of each seaman twenty-five cents for each fee so paid. It is also required that the commissioner “shall cause a scale of the fees payable to be prepaid, and to be conspicuously placed in the shipping office, and may refuse to proceed with any engagement or discharge, unless the fees payable thereon are first paid.” If the fees and emoluments exceed $5000 per annum, such excess is required to be paid into the treasury of the United States.

As to the rights of the commissioner to the shipping fees in dispute, the question arises under the last clause of section 4511, above quoted and italicised. There appears to be little if any room for doubt as to the meaning of the statute. It provides in express terms that a seaman who, on the return of any vessel to a port in the United States, reships and sails in the same vessel on another voyage, may do so “ without the payment of additional fees to the shipping commissioner by either the seaman or the master; and we have no doubt this provision applies as often as he may rest ip on successive subsequent voyages. It appears that the right of the commissioner to demand the shipping fee is thus limited to new members of a crew who are procured through the agency of his office, thus exempting those who voluntarily continue in the ship’s service. This discrimination, in favor of the latter class, may have been made for the purpose of encouraging a more steady and continuous service, and at the same time making it to be the interest of masters to so treat their crews as to induce them to remain in the service of the vessel; but if the language of the statute, fairly construed, means what we think it does, it is not necessary that a satisfactory motive for the distinction should appear. Nor is it any objection to this construction that it deprives the commissioner of compensation for reshipping the favored class. He is clearly entitled to the fee for the first shipment and every reshipment that does not come within the exemption of the act; and to the discharge fee in every case. Congress doubtless considered that this would afford ample remuneration for all services required. Without pausing to notice the construction contended for by the defendant, we are of opinion that, on the first question, the law is with the plaintiff; that no warrant can be found for demanding the fees in question, and, therefore, they were illegally demanded.

As to the second question, the right of the plaintiff to recover in this action for the fees so improperly demanded and paid, it is, perhaps, not quite so clear; but, we think, that sound public policy requires us to hold that a public officer who, virtute officii, demands and takes as fees for his services, what is not authorized or more than is’ allowed by law, should be compelled to make restitution. He and the public who have business to transact with him do not stand upon an equal footing. It is his special business to be conversant with the law under which he acts, and to know precisely how much he is authorized to demand for his services; but with them it is different. They have neither the time nor the opportunity of acquiring the information necessary to enable them to know whether he is claiming too much or not; and, as a general rule, relying on his honesty and integrity, they acquiesce in his demands. Hence it is that for the official wrong of taking illegal fees, a statutory penalty is provided in favor of the party aggrieved. Nearly all the precedents we have in this state are cases of this nature, and while much that has been said, in deciding cases of this class, must be regarded as mere dicta, it still indicates the personal views of distinguished judges on the subject.

In Prior v. Craig, 5 S. & R. 44, Justice Gibson says: “ It is true an action of assumpsit to recover back fees illegally taken may be sustained against a justice of the peace, without giving him notice, for the plaintiff thereby waives the official tort, as he may well do, and goes only for the money extorted.” To the same effect is Walker v. Ham, 2 N. H. 238. Again, in Reed’s Adm’r v. Cist, 7 S. & R. 183, in which the action was by the personal representative. of the injured party for the statutory penalty, the court remarked, “The plaintiff could recover back anything beyond the legal fees, but not for the forfeiture or penalty.” In a,n action by a sheriff for fees, the defendant ivas allowed to set off former fees illegally demanded and paid to the plaintiff; and, in so ruling, the court said, that if the defendant paid more money to the sheriff than he was entitled to demand, he cannot, upon any grounds of either law or equity, retain it: Dew v. Parsons, 2 B. & Ald. 562.

In Steel v. Williams, 8 Exch. Rep. 625, it is said by one of the ' judges that “ any person who illegally takes money under color of an Act of Parliament, is liable to be sued for it, though the money is not to go into his own pocket.” The language of Judge Wood-ruff in The Eire Ins. Co. v. Button, 8 Bosw. 148, is in point. He says, in sustaining an action against a public officer for money illegally demanded and paid, “ It should be deemed sufficient that the officer takes advantage of his official position to make the exaction; due protection to those whose necessities require them to deal with persons exercising official powers, or discharging duties in their nature official, requires that moneys so paid should be the subject of reclamation.” The case of Ogden v. Maxwell, 3 Blatch. 319, is perhaps more nearly in point than any to which we have been referred. It was a suit, against the collector of the port of New York, to recov¿r excessive fees charged by him for issuing landing permits for passengers’ baggage. One ground of defence set up was that the collector was required to pay the government any excess of fees over a certain sum, and it was held that this was no defence, even if such excess had been paid over. The following extract from the opinion of Judge Betts, indicates the principle on which the action was sustained. “ The high character of the collector takes away every color of suspicion that in these cases he was actuated by any wrongful motives. He administered his office as he found his predecessor had done. * * * And, it is not necessary to the maintenance of a civil action for the recovery of money wrongfully collected, that any turpitude should be proved against the officer. The suit rests on no illegal purpose of the defendant in exacting the payment. It is well sustained if his official power was exercised in the collection without warrant of law.”

There is nothing in the suggestion that the state courts have no right to entertain suits against officers of the general government for acts done by virtue of their office. This right has been repeatedly recognised. It is scarcely necessary to add that our own cases in which taxes voluntarily paid to the public collector havé not been permitted to be recovered stand on a different basis.

Judgment reversed and judgment is now entered in favor of the plaintiff and against the defendant, for $4878 with interest, to be ascertained as provided for in the case stated.


author: Mr. Justice Gordon

text:
    Ricard versus North Pennsylvania Railroad Co.
    The Act of April 4th 1868 provides that when any person shall sustain personal injury or loss of life, while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, his right of action against said company shall be such only as belongs to an employee in like cases. Held, that the act applied to one who was injured while unloading his own goods from the cars of the company, permission to do which had been granted by the agent of the company,
    February 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1877, No. 224.
    Case by Henry Ricard against the North Pennsylvania Railroad Company, to recover damages for injuries alleged to have been caused by the negligence of defendant.
    Plaintiff and one Fretts went to Sellersville station, on the North Pennsylvania Railroad, to receive and take away wood piping which had been sent to that place for them on the cars of the defendant. The agent of the company showed them where the pipe was in a box car standing on the siding off the main track. By permission of the defendants plaintiff entered into the car, and was handing out the pipe to Fretts, who was loading it in a wagon backed up against the car. While they were so engaged removing their goods, a number of cars which had been detached from a locomotive were shunted on the siding, violently striking the ear from which plaintiff was removing his goods, knocking him over and inflicting the injuries of which complaint was made.
    The defendant offered no testimony, and there was a verdict for the plaintiff, subject to the opinion of the court, liare, P. J., upon the question reserved whether the plaintiff could recover under the Act of April 4th 1868, Pamph. L. 58. The section of the act referred to will be found in the opinion of this court. The court in banc entered judgment for the defendant on the point reserved, when plaintiff took this writ, and assigned this action for error.

      Lewis D. Vail and R. Q. MeMurtrie, for plaintiff in’ error.—
    The act was intended to meet the case that arises when one railroad makes use of the railroad and premises of another. It wa-s intended to apply to those who were engaged or employed on the work of the road or roads. Where there is a common-law liability, and an Act of Assembly releases that liability unless certain circumstances are set up, it is incumbent upon the party who thus sets up the act to show that the plaintiff is within the circumstances, otherwise the railroad here would be released from all liability except to passengers. If plaintiff was a wrongdoer, no liability was on the company. If he was there lawfully, and no liability accrued, then our contention is right'. The act meant'to put all persons engaged in the management of trains, no matter by whom engaged, on' a common plane as fellow servants. To give the act any other construction would be to say -that persons obliged to go to a railway depot would be in the position of fellow servants or of employees.

      J. McGregor Gibb and William Roteh Wister, for defendant in error.
    The act applies to a class of persons lawfully engaged or employed. There is no reference to other companies’ employees in the act. The act has received judicial construction : Mulherrin v. Railroad Co., 31 P. F. Smith 356; Kirby v. Railroad Co., 26 Id. 506; Gerard v. Pennsylvania Railroad Co., 5 W. N. C. 251. See' also Wyatt v. Great Western Railroad Co., 6 B. & S. 709; Crutey v. Railway Oo., 3 Thomp. & Cook 244.
   Mr. Justice Gordon

delivered the opinion of the court, March 10th 1879.

Whatever else may be said of the Act of April 4th 1868, Pamph. L. 58, the charge of obscurity cannot be brought against it, neither can it be said that the legislative intent is not expressed with sufficient force. “ When any perso'n shall sustain personal injury or loss of life while lawfully engaged or employed-on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the light of action and recovery in such cases against the company shall be such only as would exist if such person were an employee.”

Nothing can be more clear than the intent herein expressed; this act includes “ any person,” old or young, male or female, yet care is, at the same time, taken, by the use of the words “ lawfully engaged,” to exclude any possible presumption which otherwise might arise in favor of a trespasser. Then again, the comprehensive words “ engaged or employed” are used in order to embrace every imaginable manner by which any one may or might be brought in, upon or about the roadway, cars or works of a railroad company. Nor is the proviso itself without significance as to the intent' of the body of the act, for the sweeping character of the preceding provisions is recognised in that a specific exemption in favor of passengers ■ was regarded as necessary.

There is no room for doubt, therefore, but that this act does take up the plaintiff’s case. He was “lawfully engaged” on the car of' the company defendant in unloading his own goods.' He might have waited until they were deposited, by the company’s servants, upon the platform or in the warehouse, when he might have received them without risk; he, however, voluntarily preferred to' put himself in' the position, and assume the duties of an employee, and so has brought himself directly within the provisions of the statute. In the language used in the case of Kirby v. Pennsylvania Railroad Co., 26 P. E. Smith 506, he knowingly assumed the relation regulated by law, and thus placed himself under the operation of the law which governs that relation.

The judgment is affirmed.

Justices Mercur, Woodward and Trunkey dissented.