author: Per Curiam.

text:
    Burton’s Appeal.
    1. "Where an owner of stock leaves his certificates with a broker, accompanied with a blank power of attorney to sell and transfer the same, and the broker pledges them for his own.debt to one without any knowledge of the aud fcbe broker, the owner of the stock is estopped from setting up his against such innocent pledgee, who has advanced money thereon.
    2. "Where one by his own act has armed another with power to act for him, and this agent or attoi’ney deals with innocent thii-d parties who, without notice or other intervening equity advance money upon the faith of the evidences of title in the possession of the agent or attorney, the owner takes every risk, and is bound by the act of the person whom he thus sees fit to hold out to the world as his agent or attorney.
    3. In an equity proceeding the examiner to take testimony had filed his report and a master was appointed. An application was made to the court to re-open the evidence, on the ground that two of the witnesses had made a mistake in their testimony before the examiner. Held, that where it clearly appeared the witnesses had made a mistake, the application, in the discretion of the court, could be granted, but such applications are not to be favored, and great care must be exercised in order to prevent abuse.
    February 18th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 19. In Equity.
    Appeal of El wood Burton from a decree of the court in a certain proceeding in equity.
    The bill was filed by appellant against Richard Peterson and Emma L. Peterson, executors of Pearson S. Peterson, deceased, and the Girard Life Insurance, Annuity and Trust Company and the Lehigh Yalley Railroad Company, praying for a re-transfer of one hundred shares of stock of the Lehigh Yalley Railroad Company, which had stood in the name of the complainant, but had been transferred into tbe name of the Girard Life Insurance Company.
    Testimony was taken before an examiner, and after he had filed bis report, a master was appointed to report the facts and the law. It subsequently appearing that a material mistake had been made in the testimony taken before the examiner, application was made to the court to allow the master to take additional testimony, which the court granted.
    From the facts, as reported by the master, it appeared that the plaintiff, who lived in Bucks county, was the owner of one hundred shares of Lehigh Valley Railroad Company stock. On February 17th 1876, he left these certificates with P. S. Peterson, a broker in Philadelphia, with instructions to sell the stock if it reached $64 y-per share. Burton at the same time left with Peterson a blank power of attorney to sell, assign or transfer the stock, such as is usually given to brokers. The stock never reached the price fixed for its sale, and having declined, and there being no prospect of a sale, Burton called several times during the summer of 1876, and requested that the certificates and the blank power of attorney should be returned to him. He was informed on these several occasions that the stock was in the firm-box in the vault of the Fidelity Trust Company. It appeared, however, that Peterson had, on February 18th 1876, pledged the stock to the Girard Life Insurance Company for an advance made to him individually. The stock was still in possession of said Girard Insurance Company when Peterson died insolvent on January 8th 1877. The evidence was conflicting as to whether the stock was pledged by Peterson for a personal advance, or as collateral security for an antecedent debt.
    The master found, as a fact, that it was pledged for a present advance, and was of the opinion “ that P. S. Peterson & Co., by the delivery to them of the certificates of the Lehigh Valley Railroad Company stock, accompanied by the blank bills of sale and power of attorney, acquired an apparent ownership, which justified the Girard Life Insurance, Annuity and Trust Company in dealing with them as the actual owners; that there was nothing to put the officers of the company upon inquiry, and that the company was an innocent purchaser for value, and is entitled to the protection of the court.” The master was, therefore, of the opinion that the bill should be dismissed as against the Girard Life Insurance, Annuity and Trust Company, with costs.
    He was also of the opinion “ that a decree should be entered against the defendants, Richard Peterson and Emma L. Peterson, executors of Pearson S. Peterson, deceased, for the sum of $6300, with interest from February 18th 1876, to be paid, together with the costs of this suit, to the plaintiff, Elwood Burton, out of the assets which now are, or may hereafter come into their hands, belonging to the estate of Pearson S. Peterson, deceased.”
    Exceptions were filed to the master’s report, which the court dismissed, Ludlow, P. J., in an opinion saying :
    “ The exceptions filed to the report of the master in this case may be condensed into a few points:
    “ 1. It is alleged that the court ought not to have referred the case back to the master for additional testimony, after the report of the examiner had been filed, and when the case was prepared for argument.
    “ 2. It is argued that the master has erred in finding the facts as reported to us, and that he admitted or rejected improperly certain evidence produced.
    “ 3. That in point of law upon the facts found, the master has erred.
    “ The first point made is directed to the action of the court, and the two last to the action of the master.
    “ When this case was first before us, a motion was made, and supported by affidavit, which at that time proved to us that a mistake had been made in the testimony taken before the examiner by two of the witnesses examined. The case seemed to be clear to us, and we directed the witnesses to appear before the master and correct the mistake. This they subsequently did, and because it affects the plaintiff’s case objection is made to the course pursued. That ah application like the present one ought not to be favored is admitted, but that the power to refer exists and can at any time be exercised by the court cannot be denied. That any one may be satisfied of the entire correctness of the principle, let him examine the standard authorities, and we think he will be satisfied. The general rule undoubtedly is, that the testimony once closed shall not be again opened; but the exception is as well defined as the rule itself, and has been frequently acted upon by courts of equity. In Denton v. Jackson, 1 Johns. -Ch. 525, Chancellor Kent after publication passed, and cause set down for hearing, permitted a witness to be examined, because the examiner had made a mistake in taking down his testimony. The chancellor said ‘Applications of this kind must rest in discretion, and great caution is requisite to prevent abuse.’
    “Adams, in his Treatise upon Equity 372, declares that ‘the rule excluding evidence after publication passed is subject to the discretion of the court.’ See also 2 Danl. Ch. Pr. 1150. In Nice v. Pruden, 8 Phila. R. 350, Allison, P. J., while affirming the general rule, as distinctly states the exception to it. In the case before us it appeared that two reputable witnesses made a clear mistake in a portion of their testimony. It was evident either that the witnesses had not understood an important question which had been propounded, or that the examiner had made a mistake in recording the evidence. We have no doubt now that the examiner did not fall into error, and we are as clear that, unless both the witnesses have sworn falsely, they could not have understood the question or questions propounded, and had the case gone on to a hearing, when first before this court, we would have been called upon to decide it upon testimony evidently untrue.
    “ The exercise of our discretion, on behalf of defendants, in this instance, was an act of wisdom ; provided, always, we are expected to determine causes according to the facts as they really are, and not according to statements accidentally made ; and if we are to believe the witnesses, absolutely untrue.
    Passing now to the next point in this case, we notice the exceptions which challenge the accuracy of the findings of the master upon questions of fact, and his determination of questions of evidence. An attentive examination of all the evidence upon the points thus presented, satisfies us that he was substantially right, and that he has condensed as clear a statement of the facts as probably could have been made in the case. We also fail to see that he erred in his disposition of the questions of evidence presented, and, whatever criticism may be made upon the admission or rejection of this testimony, his rulings in no way involve substantial injustice to the plaintiff’s case.
    “ The decisions of the master upon questions of law remain to be noticed.
    “ The master having found, as a fact, that the Girard Life Insurance, Annuity and Trust Company did not take the stock in question for an antecedent debt, the law is clear that the company had the right to hold the collaterals as security for the debt.
    “In April, 1876, the stock first came into possession of the Girard Life Insurance, Annuity and Trust Company. Then a loan of $18,000 was made upon it with other securities. It is true that the debt was reduced to $15,000, and that, on the 13th of June 1876, new due-bills were taken, and then, again on the 18th of December 1876; but the collaterals were never surrendered, and were held for what was in substance a new loan, and this new loan was never repaid until the company protected itself by a sale of the collateral security.
    “ Unless some equity intervenes, o.r some rule of law prevents, the company is entitled to protection.
    “It is contended that an equity does protect the plaintiff, for it is argued that the Girard Life Insurance, Annuity and Trust Company, or its officers, had notice prior to February 28th 1877, when plaintiff called at the office, that the stock did not belong to P. S. Peterson & Co.; that they were not the real owners.
    “ If the testimony established any such proposition, then the case must be decided in favor of the plaintiff. Upon that point the law is so clear that there can be no difference of opinion.

      “Apart from the fact that the certificate of stock was accompanied by a blank power of attorney to transfer, we see nothing in the case which inclines us to believe that the Girard Life Insurance, Annuity and Trust Company, or any of its officers, had the slightest knowledge that the stock in question belonged to any one except the firm of P. S. Peterson & Co. If the circumstances developed in this case are to be taken as evidence of constructive notice, then the business of loaning money upon such collaterals must be promptly ended, for it is fair to remark that ninety-nine out of every one hundred transactions of this nature are conducted upon precisely similar principles.
    “ It is possible, however, that the power of attorney being in blank, although irrevocable, may present a case which required additional care upon the part of the Girard Life Insurance, Annuity and Trust Company, for it may be the cause in which no legal title passed to the company, and one in which the power of attorney and assignment being in blank was of itself legal constructive notice that the stock did not belong to the firm of P. S. Peterson & Co.
    “ This is the great question in this cause, and is, moreover, a new question in Pennsylvania; it has not been directly decided, unless indeed very recently, and without our knowledge.
    “The master has very ably discussed the whole subject, and referred to the leading cases in sister states, in which the question has been raised and decided, with such copious extracts from the opinions of the courts, as to render any extended opinion of ours now unnecessary.
    “ It will be enough for us to add the following:
    “ 1. It is not pretended that a certificate of stock, accompanied by a blank irrevocable power of attorney to transfer is, per se, negotiable; indeed, Biddle v. Bayard, 1 Harris 152, looks the other way ; at best it is but a quasi negotiable instrument.
    “ 2. It is not pretended here that the plaintiff, by accident or misfortune, parted with or lost his certificate; the fact is admitted that in no such way did he suffer any injury; had it been otherwise, then, indeed, the vigorous language of Gibson, C. J., in Biddle v. Bayard, supra, would apply. ‘ The rule * * * would compel a man to lock his stable door, for the owner of paper had no more reason to think he was going to lose it than a man has to think his horse is going to be stolen.’
    “ 8. The principle upon which these transactions have been, and we think ought to be, established is this: that when the owner of stock, in the ordinary course of business, and in the method common to all mercantile communities, by his own act has armed another, his agent or attorney, with power to act for him, and when this agent or attorney deals with innocent third parties, who, without notice or other intervening equity, advance money upon the faith of the evidences of title in the possession of the attorney or agent, the owner takes every risk, and is bound by the act of the person whom he sees fit to hold out to the world as his attorney or agent. This case must be carefully distinguished from the class of cases to which Denny v. Lyon, 2 Wright 98, belongs. There the blank had been filled up, and the court say the power was exhausted. To permit a name to be erased and another inserted would open the door to forgery and other vicious practices which the court very properly condemns. The case stands upon entirely different principles, and to extend it to include this cause would be to revolutionize the well-settled usages of financial communities, which usages are adopted because of the necessities of business and to meet the wants of an advanced commercial age. The exceptions are dismissed and the report confirmed.
    From this decree this appeal was taken.

      J. A. Burton, for appellant.
    It is a rule that a witness having been once sworn, examined and cross-examined and his testimony closed, he cannot be called to alter, explain or contradict his previous testimony: 2 Danl. Ch. Pr. 970, 1180, 1181; Bright. Eq. 560: Adams’s Eq. 372; Neice v. Pruden, 8 Phila. 35; Earl v. Pickin, 1 R. & M. 547.
    _ The law in this state is, that as against the true owner the purchaser for value, of a certificate of stock, with the blank assignment and power, from a finder thereof, acquires no title, because such papers are not negotiable: Biddle v. Bayard, 1 Harris 150.
    That they are not negotiable is the law of England, as well as this and other states: Sewell v. Water Co., 4 Allen 282; Shaw v. Spencer, Withrows Am. Corp. Cas. 631 — 635; Crouch v. Credit Foucier, 8 Q. B. 874.
    If not negotiable they are liable to all the equities between the parties. The purchaser acquires only an equitable right or lien, subject to all prior equities: Stebbins v. Phœnix Ins. Co., 3 Paige 356.
    But the court and master invoke another principle, to wit, “that when one of two innocent persons must suffer from the acts of a third, the one that enables the third party to do the wrong must suffer the loss.” This case is not within the principle. The appellees are not innocent parties. The assignment was not filled in with the name of the transferee. The title was incomplete until that was done and that was notice that such transaction was in fieri, and it showed further than this, that Peterson was not the person in whose name the stocks stood in the books of the company, and from the face of the papers not the owner, and therefore had no right to pledge for his own debt. It might be said the power gave him a right to transfer to a purchaser; the appellees were not purchasers This, it was held in the case of Tayler v. Great India Railroad Co. 4, De Gex v. Jones 558, put the parties dealing upon inquiry.

      John J. Ridgway, for appellee.
    The law is well settled that, as between two innocent parties, the one must suffer whose action has brought about the loss, and admitting the complainant to be an innocent party, although it is difficult to so speak of such extraordinary negligence, it cannot be pretended that the unfortunate result has not followed from his conduct in the matter. Where one of two innocent parties must suffer by the fraud or negligence of a third, whichever of the two accredited him ought to bear the loss: Fitzherbert v. Mather, 1 T. R. 12; Mundorff v. Wickersham, 13 P. F. Smith 87: Pennsylvania Railroad Co.’s Appeal, 5 Norris 80.
    In addition to the authorities cited by the court below, to show its discretion to order a re-examination of the witnesses to correct a mistake, it is desired to add the following, and call special attention to the fact that the objection is wholly technical, for it can not be denied that the correction made is in accordance with the uncontradicted facts of the case: Trustees of Kingston v. Tappen, 1 Johns. Ch. 368 ; Kirk v. Kirk, 13 Vesey 286; Daniels’s Ch. Pr. 953; Adams’s Equity *371.
   The judgment of the Supreme Court was entered March 8th 1880,

Per Curiam.

The learned master has found the facts from the evidence before him, and he was the best judge of the credibility of the witnesses. The court below have confirmed the report of the master. The whole question was-upon the credit to be given to the witnesses in the correction they made of the testimony which they gave at first. We have no doubt that the court below,- in the exercise of a sound discretion, could open the evidence and allow witnesses to correct what they alleged to be mistakes. Looking at the probabilities of the case, it seems to us that they all tend to confirm the finding of the master and the court. Nothing but very clear error would justify us in setting aside such finding.

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


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    In re Plan No. 166. Appeal of the City of Philadelphia.
    1. The 1st section of the Act of June Oth 1871, provides that the Board of Surveyors of the City of Philadelphia shall be invested with full authority to examine and finally confirm or reject all plans of survey or revisions of plans of the city where the same have been made by the direction of councils of said city; and the 2d section of said act directs that no plan for survey or regulation, or a revision of either or both, shall be finally acted upon by the board until public advertisement shall have been made, and that the confirmation by the board should be final and conclusive, without appeal. An appeal was taken from the board to the Court of Quarter Sessions. Held, that it would not lie.
    2. The 3d section of said Act of 1871 provides that no street should thereafter be added to any confirmed plan until the same has been approved by the Board of Surveyors ; provided that an appeal may be taken from their decision to the Court of Quarter Sessions. Held, that this provision for an appeal in said sections referred solely to the action of the board in confirming the addition of a street to a confirmed plan, and does not apply to the whole act.
    February 19th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Philadelphia comity: Of January Term 1879, No. 6.
    Certiorari by the city of Philadelphia to the decision of the court in the matter of the appeal of A. R. Govett and the Insurance Company of Pennsylvania from the decree of the Board of Surveyors, made February 4th 1878, confirming plan No. 166.
    On February 14th 1810, William Hamilton recorded in the office of the Recorder of Deeds of the county of Philadelphia, a plan of streets dedicated by him to public use in the village of Hamiltonville, of which he was then the proprietor. Upon this plan, one of the streets named William street, beginning at the northwesterly side of another street named Woodlands street, which was the old Darby road or Baltimore pike, ran for a short distance northwesterly at right angles thereto, and then turning an angle to the right hand, ran nearly due north for the remainder of its length.
    On April 17th 1862, an Act of Assembly was passed confirming plans of the first and second sections of the survey of West Philadelphia, as approved by the board of surveys of the city of Philadelphia. Upon these plans, Thirty-ninth street was laid down over and corresponding to the lines of William street aforesaid, with this difference only, that the west line of Thirty-ninth street was made straight throughout its entire length, so that the lines of the street diverged as it approached Woodlands street, leaving a large open triangular space at the point of intersection of those streets.
    On May 16th 1871, a resolution of councils passed to open Thirty-ninth street. Under this resolution, proceedings to obtain an assessment of damages were taken, and await a final decision of this court, in the matter of the appeal.
    On December 31st 1875, an ordinance of councils directed a revision of lines and grades upon plan 166, Twenty-seventh ward.
    On February 4th 1878, a decree of the board of surveyors confirmed plan 166, so far as the west line of Thirty-ninth street, from Talbot place to Woodlands street, was parallel with the east line thereof and sixty feet therefrom.
    On May 1st 1878, Govet.t and others appealed to the eourt below, and on July 11th 1878, an order of the court recommitted the plan with instructions to establish the west line of Thirty-ninth street in conformity with the plan as it existed prior to February 4th 1878. No opinion was delivered or filed by the court. The city took this writ, alleging that the court erred as follows:—
    1. The confirmation of plan 166 by the board of surveyors is final and conclusive, without appeal, and the court below erred in sustaining the appeal.
    2. In instructing the board of surveyors to establish the west line of Thirty-ninth street, in conformity with the plan as it existed prior to February 4th 1878, whereas the authority of the court is, at the utmost, limited to remanding the plan for reconsideration and revision.
    3. In sustaining the appeal, it not appearing that the appellants have or had any sufficient interest in the subject-matter to entitle them to appeal.
    The sections of the Act of June 6th 1871, entitled, “An act relative to plans of survey and regulation in the city of Philadelphia,,” provide : Sect. 1. Be it enacted, &c., that the Board of Surveyors of the city of Philadelphia, as elected and constituted under Acts-of Assembly, be and the same are hereby invested with full authority to examine and finally confirm or reject all plans of survey or revisions of plans of the city of Philadelphia, when the same have been made by the direction of the Select and Common Councils of the said city ; and for the purpose of enabling the said boards to carry out the intent of this act they are hereby authorized, through their presiding officer, to administer oaths and affirmations, and hear testimony, and shall use a seal for all official papers.
    Sect. 2. No plan for survey or regulation, or a revision óf either or both, shall be finally acted upon by the said board of surveyors until public advertisement shall have, been made in three of the public newspapers in the city of Philadelphia, six times in each during the thirty days immediately preceding the proposed action, and that hand-bills be posted upon and throughout the area covered by the plan to be considered, giving notice of a hearing thereof for at least thirty days prior to said hearing; and that upon the confirmation of any plan of surveys and regulations by the said board of surveyors, the seal of the board shall be affixed thereto and attested by the presiding officer ; said confirmation to be final and conclusive without appeal.
    Sect. 3. No street shall hereafter be added to any confirmed plan of the city of Philadelphia, and called a public street, until the same shall have been approved by the board of surveyors as to location, width and grades, and shall extend from street to street as a thoroughfare: Provided, That an appeal may be taken to the Court of Quarter Sessions of the city and county of Philadelphia, at any time within three months after said board of surveyors shall have finally confirmed any plan as aforesaid, when said court may, after a hearing, confirm said plan as submitted, or remand it back to the board of surveyors for reconsideration and revision.

      Theo. P. Matthews, and Wm. Nelson West, City Solicitor, for the City.
    The confirmation of the plan by the board of surveyors was final and conclusive without appeal. The action of the board was not the more addition of a new street to an old plan under the third section of the Act of June 6th 1871, but a complete revision of the plan under the, second section of said act. And in the words of that section the “said confirmation” should be “final and conclusive without appeal.” The proviso to the third section does not apply to the whole act, for if it does, it destroys the whole purpose of the act as expressed in the first section, and repeals by implication the declaration at the close of section second. The purpose of the act was to withdraw the consideration of plans, which is purely a matter of engineering, from lawyers unskilled in that science, and to give it to surveyors, skilful in their profession. One section of an act will not repeal another unless they are plainly inconsistent. Implied repeals are not favored. Applying these principles of construction to the Act of 1871, we need only consider the clause giving the appeal to be what it purports, a proviso to the third section only, and not to the second and third sections; thus the whole act will stand. Not a word need be rejected as surplusage; still less need we reject a whole clause as repugnant to the rest of the act. The authority of the court was limited to remanding the plan for reconsideration and revision.
    The parties who appealed from the board, had no sufficient interest in the subject-matter to entitle them to appeal. They are in no way concerned in the planning of the city. No private person is a proper party to an action involving the public interests, unless he has an interest which differs in kind as well as in degree from that of the rest of the public: Flanagan v. City of Philadelphia, 8 Phila. R. 110; Heffner v. The Commonwealth, 4 Casey 108.

      David W. Sellers, for the appellees.
    An appeal lies from the decree of the board: Duhring’s Appeal, 10 Phila. R. 181. Govett was an owner of a block of houses on Pine street, which had been built on the faith that Thirty-ninth street should be opened according to the plan which existed at the time he acquired title; and it may be remarked of his investments as was remarked in Paynter v. Young, 4 Phila. R. 154, “ The landmarks of a street of a city, upon the faith of which the citizen invests his money in the improvement of his property should not be changed for light and trifling causes.” This cour.t has no power of review over the action of the court below. The proceeding is statutory, and no appeal is given to this court. Without such legislation the action of the Quarter Sessions is subject to no judicial inquiry: Hughes v. Kline, 6 Casey 227; Hulseman v. Rems, 5 Wright 396; Richardson’s Appeal, 6 Casey 510.
   Mr. Justice Trunkey

delivered the opinion of the court, March 1st 1880.

Prior to the Act of June 6th 1871, the plans of survey were subject to the approval and alteration of the Court of Quarter Sessions. In this respect, it is claimed on the part of the city, that the Act of 1871 made a radical change in the law, and that such was a principal object. The first assignment of error is to the decision of the court, that an appeal could be taken from the confirmation of a plan of surveys made by the board of surveyors.

By the first section of the act the board'of surveyors are “invested with full authority to examine, and finally confirm or reject all plans of surveys or revision of the plans of the city of Philadelphia, when the same have been made by the direction of the select and common councils of the said city and the second section provides for notice and hearing, “ and that upon the confirmation of any plan of surveys and regulations by the said board of surveyors, the seal of the board shall be affixed thereto and attested by the presiding officer; said confirmation to be final and conclusive without appeal.” Stopping here the act is too plain for interpretation — it means but one thing, and that is expressed in direct and simple terms — there can be no appeal from the" confirmation by the board.

To overthrow this enactment it is urged, that the proviso in the following section is repugnant, and, therefore, the investiture of “authority to examine and finally confirm or reject,” “said confirmation to be final and conclusive without appeal,” is repealed by another part of the same act. Unless this be very clear it cannot be admitted. The third section enacts, that no street shall he added to a confirmed plan until it shall have been approved hv the hoard of surveyors as to location, width and grades; Provided, that an appeal may he taken to the Court of Quarter Sessions within three months after said board shall have finally confirmed any plan as aforesaid. If there be a subject to which this proviso giving the right of appeal may properly refer, it cannot be extended to one expressly declared to bo without that right: City of Erie v. Bootz, 22 P. F. Smith 196. The proviso is immediately related to the enactment for adding a new street to a confirmed plan, and its application to that subject requires no forced construction. The words “ shall have finally confirmed any plan as aforesaid,” may not be the most apt for designation of a plan, as affected by the addition óf a street, yet they can be so understood, while if referred to the “plans of survey or revision of plans,” the subject of the first and second section, an important part, which is evidently a main object of the statute, is abrogated. Every rule of interpretation demands that the statute be so construed that the whole may, if possible, stand. We are of opinion that there is no insuperable obstacle in the way of giving effect to every part of this act, and that one of its clearly expressed intendments is, that the confirmation of a plan of survey, under the provisions of the first and second sections, shall be final.

The first assignment being sustained, the points presented in the others are not in the ease.

Order of July 11th 1878 reversed, and the record remitted.


author: Mr. Justice Mercur

text:
    O’Byrne versus City of Philadelphia.
    1. Where the proceedings under the provisions of a statute are designed to divest the title of the owner of property, every essential requirement of the statute should he observed. The necessity is the same whether the object be to sell for the non-paymamt of taxes or for a municipal claim.
    2. A scire facias sur municipal claim for taxes was made returnable to tho first Monday of February. The return of the sheriff was “ made known January 28th 1878, by posting a true and attested copy of the within writ on a conspicuous part of the premises herein described, and by advertising * * * agreeably to the Act of Assembly in such case made and provided.’ Held, that this return was radically defective, as it was apparent therefrom that the copy of the writ could not have been posted on the premises for two weeks, as required by thc'30th section of the Act of March 11th 1846.
    3. Land cannot be taken from the owner under said act without an observance of all its substantial requirements, and this service was clearly insufficient.
    February 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1878, No. 76.

      Claim for taxes by the City of Philadelphia against J. O’Byrne, owner, and Emeline O’Byrne, registered owner.
    The facts are sufficiently stated in the opinion of this court.

      John A. Owens, for plaintiff in error.
    This is a proceeding in rem. It may be carried to the extent of judgment, execution and sale, without actual notice to the real owner. It is, therefore, more important that every essential requisite of the Act of Assembly prescribing the mode of service should be complied with. The return of the sheriff must show such compliance. The return in this case is fatally defective; it does not show that a true and attested copy of the writ was posted on a conspicuous part of the premises for two weeks before the return day, and it does not show publication as required in a daily paper for two weeks before the return day; nor are these omissions aided by the additional averment of the return that it was agreeable, to the Act of Assembly. It is the duty of the sheriff to return the mode of service: Wistar v. The City, 5 Norris 215. Every positive legislative enactment, commanding that a specific form of procedure shall be adopted to accomplish a given purpose, by implication, prohibits the adoption of any other form, or the use of that form in an imperfect or different manner than as directed. The omission to name a return-day in the writ is also fatal.

      Louis L. Pfeiffer and J. L. Powell, for defendant'in error.
    The sheriff has in all particulars complied with the 30th section of the Act of 11th March 1846, Pamph. L. 115. Even if the sheriff had not posted an attested copy of the writ on the premises for two weeks, the service would be a valid one, provided that a copy of such writ was posted any time prior to the return-day, and the writ advertised twice a week for two weeks prior to said return-day
   Mr. Justice Mercur

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

This was a scire facias on a municipal lien filed for taxes due the-city. The Act of 11th March 1846, requires such writs to be served “by posting a true and attested copy of the writ on a conspicuous part of the premises therein described, and by publishing a brief notice thereof in a daily newspaper in said county twice a week for two weeks before the return-day.” The writ issued 19th of January 1878. The entry on the docket shows it was returnable on the first Monday of February; but there was an omission to insert any return-day in the writ. The sheriff made return to the writ.: “Made known January 28th 1878, by posting a true and attested copy of the within writ on a conspicuous part of the premises herein described, and by advertising notice thereof twice a week for two weeks in the Philadelphia Chronicle-Herald, a daily-paper published in this city, “ agreeably' to the Act of Assembly in such case made and provided, and nil habet as to J. O’Byrne owner, &c., and Emeline O’Byrne, registered owner.”

This is a proceeding in rern. It is designed to effect a sale and divest the title of the real owner without any notice to him. Every essential requirement of the act should be observed. The necessity is the same whether the object he to sell for the nonpayment of taxes or for a municipal claim. By no possibility could a service made on the 28th of January he two weeks before the first Monday of February. The latter day could not be later than the seventh, and counting the day of service there were four days only in January. At most then the service was not more than ten days “ before the return-day.” The words “ agreeably to the Act of Assembly” does not help the service. The sufficiency of the service must be determined by the acts set forth in the return. It must state the acts which the sheriff did, and the court, and not the officer, will determine whether those acts constitute a service according to the Act of Assembly. This service is radically defective. The title of the owmer of the lot cannot thereby be divested. Without notice to the owner land cannot be taken from him under this act without an observance of all its substantial requirements. This service is clearly insufficient: Wistar v. City of Philadelphia, 5 Norris 215.

Judgment reversed.


text:
    Dougherty Bros. & Co. versus Central National Bank.
    Where a lender before he pays over money on a borrower’s note discovers that the borrower is insolvent, he has a right of a similar nature to that of stoppage in transitu, lie may tender hack the discounted note and refuse payment to the borrower, and the latter’s assignees have no superior rights to him in the matter.
    February 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 82.
    Assumpsit by Dougherty Bros. & Co., against the Central National Bank of Philadelphia.
    The declaration contained the common counts only — money lent, money paid .for the use of defendants, money had and received, account stated and interest. The pleas were non assumpsit, payment and set-off, with leave, &c.

      The defendant filed a special plea, averring that at the time of bringing suit the plaintiffs (Dougherty Bros. & Co) were indebted to the defendant (the bank) in the sum of $15,000 loaned before suit brought (April 24th 1877), and payable May 5th 1877, being a renewal of a loan of that amount, which had been credited in the account, for the balance of which the suit was brought, and that at the time of bringing suit the plaintiffs were insolvent; that after the bringing of the suit, the said sum of $15,000 became payable by the plaintiffs to the defendant, but that it had not been paid, whereby a cause of action had accrued to the defendant; that the sum so due by plaintiffs exceeded the sum claimed in the present suit, and which said sum defendant claimed to set off against the claim of the plaintiffs in the present suit. The plea concluded with a verification and prayer for judgment.
    The replication to the special plea set out that, before the note referred to in the said plea became payable, the said plaintiffs, for a valuable consideration, drew three separate drafts against the balance due them in the hands of the said defendant, one for the sum of $7500, in favor of George W. Hunter ; one for the sum of $5000; and the other for the sum of $800, in favor of' J. W. Weir, cashier of the First National Bank of Harrisburg, which were duly delivered to the payees thereof, and were duly presented for payment to the defendant, but payment thereof was refused. And afterwards, and before the maturity of the said note, and before the bringing of this suit, the plaintiffs assigned to the said George W. Hunter and J. W. Weir (for whose use this suit was brought) the entire balance in the hands of the said defendant due to the plaintiffs, and authorized them to sue for the same in the names of the said plaintiffs, but to the absolute use and for the exclusive benefit of the said George W. Hunter and J. W. Weir, cashier, as aforesaid. Defendant demurred to the replication, and assigned the following as a cause of demurrer: That the transfer of the plaintiffs’ claim to the balance of the account sued on does not vary the right of the defendant to set off the debt due by the plaintiffs to the defendant, in an action brought by the plaintiffs against the defendant for the said balance of account.
    Upon the trial of the first three issues, plaintiffs offered in evidence an account stated, received by the plaintiffs from the defendant, showing a balance due March 81st 1877, by the defendant to the plaintiffs, of $17,538.18, and credited the defendant with payments since made amounting to $3138.55, leaving a balance due of $14,399.63.
    They also offered in evidence three drafts, drawn by the plaintiffs upon the deféndant, all dated April 2d 1877, as follows.: No. 7609, J. W. Weir, cashier, or order, for $5000; No. 7610, J. W. Weir, cashier, or order, for $800 ; No. 7612, G. W. Hunter, or order, for $7500, all duly endorsed and protested for non-payment; also assignment by plaintiffs to the said Gr. W. Hunter and J. W. Weir, cashier, dated April 23d 1877, of the said sum of $14,399.63, which was, on the 2d day of April 1877, on deposit with the defendant to the credit of the plaintiffs.
    The defendant objected to the admission of the said drafts and assignment, which objection was sustained by the court, and the offer overruled. The plaintiffs then closed.
    The defendant then proved by their cashier that they had discounted fbr the plaintiffs a note for $15,000 — the proceeds of which had gone into the account which resulted in the balance above stated — -which note became due April 2d 1877 ; that on the written application of the plaintiffs, dated March 27th 1877, the hank, by letter dated March 28th 1877, consented to renew this note for thirty days from its maturity; that the new note, with the amount of the discount and the collaterals, was sent to the bank March 31st 1877, and the former note returned to the plaintiffs, by mail, on April 2d 1877, after bank hours; that the plaintiffs, who were bankers at Harrisburg, did not open their doors for business on the 3d of April 1877 ; that the defendant having heard on the morning of this day that the plaintiffs had suspended payment, immediately charged the plaintiffs’ account with the note due April 2d 1877, and credited it with the eighty-five dollars discount received on his new note, thus resulting in a balance due the defendant.
    They also proved that the defendant tendered to the plaintiffs the return of the new note, with the amount of the discount and the collaterals which accompanied it, and demanded a return of the former note; also that they tendered the same unconditionally. They also offered in evidence assignments for the benefit of creditors, executed by two of the plaintiffs, dated April 3d 1877.
    Defendant also offered in evidence a certified copy of judgment for $25,000, confessed by W. E. Dougherty, one of the plaintiffs, to John J. Fitzpatrick, and entered by him in Court of Common Pleas of Dauphin county, as of April Term 1877, No. 904, on April 2d 1877, and proved that the said W. E. Dougherty had admitted that he had a short time previously written to the party holding the said judgment, stating that he had better come to Harrisburg to look after his interests, and that he came, and without consulting plaintiffs or W. E. Dougherty, entered up the said judgment.
    In the general charge the court, Finletter, J., charged the jury : “ If you find from the evidence that the plaintiffs were insolvent on the 3d day of April 1877, then you will give the defendant credit for the amount of the note due May 5th 1877, $15,000.”
    The verdict was for the defendant, and after judgment thereon, plaintiffs took this writ and alleged that the court erred in sustaining the objection to plaintiffs’ offer of evidence, and in the above charge.

      A. D. Campbell and James E. Gowen, for plaintiffs in error.
    By the discount of the note in question, the relation established between the parties was simply that of debtor and creditor. In its legal aspects it was similar to the deposit of so much cash with the bank: Foley v. Hill, 2 H. of L, Cas. 28; Bank v. Jones & Cole, 6 Wright 536.
    There was an implied undertaking upon the part of the bank that it would honor its customer’s drafts to the extent of the deposits, and for a failure to comply with this undertaking it was liable in an action for damages by the depositors: Rolin v. Steward, 14 C. B. Rep. (78 Eng. Com. Law Rep.) 595. It is evident that if this be the true, relation of the parties, the bank had no implied lien upon the deposit for the amount of the note discounted: Bower v. The Foreign and Colonial Gas Co., defendant, and the Metropolitan Bank, garnishee, 22 Weekly Rep. 740 ; Beckwith v. Union Bank, 4 Sandf. S. C. 604; Jordan v. National Shoe and Leather Bank, 74 N. Y. 467; Fourth National Bank of Chicago v. City National Bank of Grand Rapids, 68 Ill. 398.
    A bank, in a suit brought against it by a depositor, to recover the amount of his deposit, cannot set off a note of such depositor held by it, not due at the time suit was brought, on the ground of the insolvency of the depositor. The Defalcation Act of this state has been construed by the courts in a number of cases to authorize a set-off only in cases where the demand sought to be sét off was acquired and due before suit brought: Pennell v. Grubb, 1 Harris 552; Duncan v. Lyon, 3 Johns. Ch. 351; Howe v. Sheppard, 2 Sumn. 409; Green v. Darling, 5 Mason 201; Bradley v. Angel, 3 N. Y. 475; Rawson v. Samuel, 1 Cr. & Ph. 161; In re Com. Bank Corporation, Law Rep., 1 Ch. App. 538.
    The assignment of Dougherty Bros. & Co. of the amount of their deposit before the maturity of their note in the possession of the bank, defeated any right of set-off of the latter: Northampton Bank v. Balliet, 8 W. & S. 311; Phillips v. Bank of Lewiston, 6 Harris 394; Watson v. Mid Wales Railroad Co., Law Rep., 2 C. P. 593; Jeffryes v. Agra & Masterman’s Bank, Law Rep., 2 Eq. 674; Martin v. Kunsmuller, 37 N. Y. 396; Spaulding v. Backus et al., 122 Mass. 553.

      Edward E. Perkins and Richard C. McMurtrie, for defendant in error.
    If a bank has agreed to make a loan by discounting the plaintiff’s note, the plaintiff cannot compel the loan to be made when he has become insolvent, and the note has become valueless before the money was actually paid.
    It is precisely, in principle and origin, the same rule which, when applied to contracts for property other than money, is called stoppage in transitu. If the goods have not been actually delivered, the seller may rescind on insolvency. So, if a borrower is ascertained to have become insolvent, though the security on which the loan was made is not yet due, he cannot compel the lender to pay: Agra Bank v. Hoffman, 34 Law Jour., ch. 285.
    The origin of set-off is in equity. It was unknown to the law till the statute introduced it to save cross actions and injustice. The statute confines the set-off' to debts due and payable at the issuing of the writ. Equity recognises that when insolvency has intervened, it is most unjust that the real creditor should bo compelled to pay the real debtor because the debt to the insolvent happens to mature before his debt to the real creditor, on a balance struck: Chapman v. Derby, 2 Vern. 117; Ex parte Wagstaff, 13 Ves. Jr. 65; Atkinson v. Elliott, 7 Term R. 378; James v. Kynnier, 5 Ves. 108; Pond v. Smith, 4 Conn. 302; Demmon v. Boylston Bank, 5 Cush. 195; Aldrich v. Campbell, 4 Gray 284; Receivers v. The Patterson Gas. Co., 3 Zabr. 283; Morrow v. Blight, 20 Mo. 298; Clarke v. Hawkins, 5 R. I. 219; Graves v. Hull, 27 Miss. 419; Mann v. Dungan, 11 S. & R. 75.
    It is true, that in New York and Michigan, in the case of Wells v. Stewart, 3 Barb. 40 ; Keep v. Lord, 2 Duer 84, and Lockwood v. Beckwith, 6 Mich. 168, it has been determined that a claim not due could not be set-off against insolvent assigned estates, but those cases were determined under the construction of the particular statute of set off in these states, and the claims being upon independent and disconnected demands which forbid their admission.
    In the present case, the claim is to enforce a contract to loan, after it is ascertained the borrower has become-insolvent; that is, after the consideration has failed, and there has been no assignment for value.
   Mr. Justice Trunkey

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

Whatever may be the rights of a party whose debt is due and payable, to compel an insolvent debtor to set off’ a claim against him not due, a party whose debt is not duo, has no equitable claim to have it set off against a debt of his own already due, in the hands of a party who is insolvent: Spaulding v. Backus, 122 Mass. 553; Bradley v. Angel, 3 N. Y. 475; In re Commercial Bank Corporation of India and the East, Law Rep., 1 Ch. App. 538. In the latter case it was said that where there is on one side a debt presently due, and on the other a liability which will accrue due at a future day, the debt cannot be set off at law against the liability, nor can it be so set off in equity. This is at variance with Lindsay v. Jackson, 2 Paige 581, where the defendants, who held notes of the plaintiffs not due, wore restrained from negotiating them, to the end that they might be applied as a set off against a debt then due by the defendants to the plaintiffs. But it is ruled in Bradley v. Angel, supra, that one whose debt is not due has no equitable right to set off against a debt due to him from an insolvent estate, and the decision in Lindsay v. Jackson is confined in its operation to such facts as constituted its base.

A bank - has no lien on money standing to the credit of one of its depositors for the amount of a note of such depositor discounted by the bank but which has not matured. The purpose is that the customer may draw out at his pleasure the avails of his discount. A debtor in one sum has no lien upon money in his hands for the payment of an unmatured debt owing to him, and a bank is debtor for the discount which is placed to its depositor’s credit. If it could retain the money against the note, the discount would be useless to the borrower: Jordan v. Shoe & Leather Bank, 74 N. Y. 467 ; Fourth National Bank of Chicago v. City National Bank of Grand Rapids, 68 Ill. 398.

The owner of a debt may assign it for value, and give title as against the debtor, though he holds liabilities of the creditor not yet matured at the time he received notice of the assignment: Jeffryes v. Agra & Masterman’s Bank, Law Rep., 2 Eq. 673.

On the foregoing principles, the plaintiffs claim that the judgment must be reversed, and so it must if they apply to the facts of this case. The facts conceded and established by the verdict are as follows : The plaintiffs were bankers at Harrisburg, and had an account with defendant, a bank in Philadelphia. On April 2d 1877, the balance due plaintiffs on that account was $14,399.63, and they owed to defendant $15,000 on anote, the proceeds of which had gone into the-account. Prior to said date, the parties had agreed to a renewal of the note, and the plaintiffs sent a new one for same sum, payable May 5th 1877, which defendant received, and on the 2d of April sent the original note by mail to the plaintiffs. April 3d the plaintiffs did not open their bank for business and were insolvent. The defendant hearing of this, immediately charged the plaintiffs with the original note, credited them with $85, the discount on the new one, resulting in a balance due defendant, and tendered to the plaintiffs the new note, discount and collaterals. April 2d the plaintiffs gave to Weir and Hunter three checks amounting to $13,300, which were presented to defendant and payment refused; but it does not appear they were presented or that defendant had notice of them, till after the said tender and withdrawal of the credit.

The question is, shall the defendant, having discounted the plaintiffs’ note and extended their credit for its amount, and, upon learning of their insolvency before payment to or notice of any checks or assignments by them, having withdrawn the credit and tendered back the consideration, be compelled to pay the money ? If so, it would be against everybody’s sense of right. The point is not merely one of set off, whether legal or equitable.

Justice and equity forbid that one man’s money shall be applied to the payment of another man’s debts. On this is based the right of a vendor to stoppage in transitu, which arises solely upon the insolvency of the buyer. Where a vendor has delivered goods out of his possession into the hands of a carrier for delivery to the buyer, if ho discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer’s possession, and thus avoid having his property applied to paying debts due by the buyer to other people. It was long a mooted question whether the effect of this remedy of the vendor is a rescission of the sale, or a restoration of possession of the goods with the rights of an unpaid vendor ; but now it seems the better opinion that the contract is not rescinded. Although this remedy of a vendor which exists only before actual delivery of the goods into the buyer’s possession, cannot bo exercised in precisely the same mode by a lender of money or credit, yet, for similar cause, the lender ought to have as efficient remedy until the money is paid to or the credit is used by the borrower. The lender’s remedy may have the effect of a rescission of the bargain. Goods can be held subject to a lien for the price agreed upon, and, if disposed of for more or less than that, the buyer may have the gain or suffer the loss ; hut when a borrower has as little right to the money as a buyer has to the goods, it is impracticable to hold and dispose of the money with like result. Nor is there reason for so holding — the value of the goods may increase or diminish, whereby the buyer may be gainer or loser by his contract — -the value of money i's fixed. Insolvency takes the pith out of the borrower’s promise to pay, and if he has not yet received the money, he should not take it. He did not get the credit in view of his bankruptcy.

The consideration so failed that the defendant was warranted in tendering it hack, and an equity arises against the legal plaintiffs which prevents their enforcement of the contract. To permit them to recover after their note, the foundation of their claim, is proved worthless, would be the grossest injustice. The defendants agreement to take the renewal note was not wittingly made for an empty promise.

Plaintiffs contend that Hunter and Weir are innocent purchasers for value. In what sense? They asked no information before taking the checks. No paper of any kind was given by defendant showing that the plaintiff's had right to draw or assign. Before presentment or notice of the checks, the plaintiffs’ insolvency was shown by a notorious act, and their right to draw was immediately denied by defendant. A vendor’s right of stoppage in transitu is defeasible in one way only, and that is where the goods are represented by a bill of lading, which is in the vendee’s possession with the vendor’s assent, and is transferred to a third person who in good faith gives value for it. Here, the defendant did nothing to mislead third persons, arid the plaintiffs had no writing to assign. The facts reveal no superior equity in the persons for whose use the action is brought.

We are impelled to the conclusion, 1. That the defendant had right to tender back the discounted note and refuse payment to the legal plaintiffs, and 2. That the assignees have no equities superior to the defendant, and there cannot be a recovery for their use.

Judgment affirmed..

Justices Mercur and Sterrett dissented.


author: Mr. Justice Sterrett

text:
    Drew versus Peer.
    1. Where injuries are inflicted by.a servant in the course of his employment, but without-the command or assent of his master, case and not trespass is the proper form of action to recover damages from the master.
    2. Where damages are claimed by a husband for the loss of his wife’s services, and for medical attendance resulting from a personal injury to her, case is the proper form of action.
    3. P. and his wife, who were colored persons, purchased two tickets of admission to reserved seats in the theatre of defendant. They entered the street door, but were refused further admission, and forcibly ejected from the theatre by the employees. P. brought an action of trespass on the case to recover damages. Held, that this was the proper form of action to recover the price of the tickets and for the loss occasioned to the plaintiff by his wife’s illness, as the damages thus claimed were consequential and not direct.
    4. In the absence of any regulation in a theatre in regard to color, where a colored person is refused admission on a ticket the proprietor is liable therefor.
    5. Per Sterrett, J. — “We incline to the opinion that as purchasers and holders of tickets for particular seats, the plaintiff’ and his wife had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.”
    6. It is not error to permit counsel, after the charge of the court, to state to the jury the specific items for which he claims damages.
    February 20th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunket and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1879, No. 88.
    Case by Pusey Anthony Peer against Louisa Drew.
    The summons issued December 2d 1876. The narr. averred that on April 16th 1874, the plaintiff purchased two reserved seats and tickets of admission to the Arch Street Theatre, of which defendant was the lessee and proprietress; that as the holders of said tickets, plaintiff and his wife were entitled to enter and occupy said seats; that in pursuance of such right plaintiff and his wife had presented said tickets at the door of said theatre on the evening of April 16th 1874, and attempted to enter, but the defendant refused them admission and ejected, expelled, thrust out, evicted, pushed and shoved the said plaintiff and his said wife from the theatre into the street in front of the theatre, and with great force and violence, shook and pulled about him the said plaintiff and his said wife, whereby the plaintiff has been greatly injured and prevented from having the right of admission to the said Arch Street Theatre, and the right to be present at and see the said performances and exhibitions, and to use and enjoy the said two seats, and the said Ra'chaol Allandesa Peer, his wife, by means of the several premises, was then and there greatly hurt, bruised and wounded, and became, and was, sick, sore, lame and disordered, and so remained and continued for a long space of, time, to wit, for the space of two weeks then next following, whereby he, the said plaintiff, during all that time, lost and was deprived of- all the comfort, benefit and assistance of his said wife, in his domestic affairs, which he might, and otherwise would have had, and whereby also, he, the said plaintiff, was forced and obliged to, and did necessarily pay, lay out and expend a large sum of money, to wit, the sum of $500, in and about endeavoring to have her, his said wife, cured, &c.
    The counsel for defendant believing that the joinder of an averment of the breach of the promise to the plaintiff contained in the ticket, with a complaint of physical force and violence to his wife was a misjoinder, and that he had a right to disregard the latter and treat it as surplusage, pleaded non assumpsit. The court, however, on motion of plaintiff to set aside this plea, expressing the opinion that it was badly pleaded, defendant withdrew it, and pleaded “not guilty.” The suit was not brought till more than two years after the event occurred, and defendant also pleaded not guilty within two years.
    At the trial, it appeared that the plaintiff, who was a colored man, on April 10th 1874, purchased two tickets to the theatre from a policeman, who had been authorized to make sale of tickets for the benefit of the police fund, which was being raised in aid of the Centennial Exhibition. On the 13th of April 1874, the wife of the plaintiff went to the box-office of the theatre and had the two tickets, thus purchased, exchanged for two reserved seats in the orchestra, for the performance on April 16th. The agent at the office inquired for whom she was purchasing the tickets, and she replied for “ Mr. Peer and family.” On the evening of the 16th, plaintiff and his wife passed through the street-door of the theatre, and were within a few feet of the ticket-taker, at the entrance to the orchestra circle, when the man who was taking the tickets cried out, “Clear them niggers out;” and an usher came up and said “they didn’t admit niggers there.” It also appeared that he placed his back against Mrs. Peer and pushed her backwards towards the door through the crowd who were entering the theatre. There was evidence that he used some violence in thus ejecting her. And also evidence of the nature and extent of the injuries received by her in consequence. There was no evidence to show that there was a place in the theatre assigned to-colored people, or that there were any regulations in regard to people of color.
    The court, Thayer, P. J., inter alia, charged:
    “ If the injuries complained of were caused by defendant’s agents, in the course of the employment committed to them, she was liable, in so far as they had occasioned loss and damage to the plaintiff, but as the action was by the husband alone, only such loss as he had experienced could enter into the verdict. * * * That there was no evidence of any regulation excluding colored persons from the theatre. * * * That the question of color did not arise in the case, and had nothing to do with it, there not being a scintilla of proof that there was any regulation of defendant as to colored persons. * * * The defendant’s counsel having argued to the jury from the case of Miles v. West Chester Railroad Co., 5 P. F. Smith 209, the court further charges the jury, that if a regulation had been shown, setting apart a particular place in the theatre for colored persons, the defendant might have cited with some plausibility the case of Miles v. West Chester Railroad Company; but that the law of that case did not authorize defendant to exclude colored people from the house. * * * That the plaintiff might recover in this case, not only for any injury to himself, but also for the loss of service to himself of his wife, and any expenses to which he had been put on her account. * * * That if the ticket-agent had called upon any one in the crowd ‘ to put that nigger out,’ and some ruffian had done so, the defendant would be liable.” * * *
    The defendant submitted, inter alia, the following points, to which are appended the answers of the court :
    1. The plaintiff cannot, in the same suit, sue for and recover damages for an assault upon or violence done to himself, and also damages for an assault upon or violence done to his wife, and the jury must, therefore, find for the defendant.
    Ans. “ The plaintiff may recover for any consequential injuries caused to himself by the misconduct of the defendant’s agents, and in that may be included any loss or damage which he individually had sustained in consequence of the injury to his wife.”
    2. The plaintiff cannot, in one and the same suit, sue for and recover damages for an assault upon or violence done to himself, and for the loss of services of his wife and moneys paid or expended for her, and the jury must, therefore, find for the defendant.
    Ans. “ This is not an action for an assault and battery, but an action on the cas'e for consequential injuries alleged to have been suffered by plaintiff in consequence of the misconduct of the defendant’s agents, and for such injuries he may recover, including any loss or damage which lie had individually sustained in consequence of the injury of his wife.”
    8. The plaintiff cannot, in this action, recover more than the price of the tickets which he purchased, and interest thereon. He cannot recover damages for assaults upon or violence done to the plaintiff or his wife, or for losses or injuries resulting therefrom.
    Ans. “ There is no proof of any injury to the plaintiff’s person, and the injury to the wife can bo taken into account only so far as it shows a loss suffered by the plaintiff in consequence of it. The plaintiff cannot recover in this action for an assault and battery, but he may recover for any loss he sustained in consequence of injuries to his wife, resulting from the misconduct of the defendant’s agents, as well as the price of the tickets.”
    4. The defendant had a right to exclude persons of color from her theatre, and if, upon finding that they were not permitted to enter, they refused to retire, she was authorized to compel them so to do, using no more force than was necessary for that purpose.
    Ans. “Refused.”
    5. There is no evidence to show that, if any violence was done to the plaintiff or his wife, it was expressly or impliedly authorized by the defendant, and she cannot, therefore, be made liable for the same.
    Ans. “Refused.”
    6. The defendant is not liable for any violence done by any person not authorized by her to do it, and if the jury believe that the violence, if any, to the plaintiff and his wife, sued for in this case, was done by the crowd, or by persons not authorized by her, she cannot be made liable.
    Ans. “ The defendant is responsible for any loss or damage suffered by himself in consequence of the misconduct of the defendant’s agents. It did not require an express direction to her agents to commit this injury to make her responsible. Of course she is not responsible for injuries committed by strangers which were not caused by the direction or misconduct of her own agents.
    7. If the jury believe that the violence, if any, to the plaintiff and his wife, done in this case, was done by or at the command of a person who, .though in the employment of the defendant, had no power or authority from her to do or command it, the plaintifi cannot recover.
    Ans. “ The principal is responsible for the misconduct of the agent in the discharge of the functions committed to him by the principal.”
    8. If the jury find that the violence, if any, to the plaintiff and his wife, done in this case, was done by an employee of the defendant, but done without her order, direction or knowledge, and out of the usual course of the employment of such employee, the plaintiff cannot recover.
    Ans. “ If the injury was committed by an agent out of the usual course of employment, the defendant was not responsible; but, if the injury was committed by the defendant’s doorkeeper or ticket-taker, then it was in the course of their employment.”
    9. The action in this case is barred by the Statute of Limitations, and the plaintiff cannot therefore recover.
    Ans. “Refused.”
    After the court had concluded their charge, the plaintiff proposed to send out with the jury a written statement of the items of pecuniary loss, which he alleged he had sustained in consequence of the misconduct of the defendant’s agents. This was objected to by defendant, and thereupon the court permitted the plaintiff’s counsel to state to the jury, without comment, the several items of pecuniary loss which he claimed, and to this the defendant excepted. The defendant also excepted to all the above portions of the charge, and to the answers to the points.
    The verdict was for plaintiff for $900.25, on the issue found on the first plea, and for the defendant on the issue found on the second plea. Defendant then took this writ and alleged that the court erred in the portions of the charge noted, in the answers to the points, in permitting the plaintiff’s counsel to state the items of his claim.; in striking off the plea of non assumpsit, and in leaving the case to the jury on the plea of “ not guilty,” while they directed a verdict for defendant on the plea of “ not guilty within two years.”

      James H. Shakespeare and James H. Heverin, for plaintiff in error.
    The plaintiff had a right to bring an action on the case, for a breach of the contract contained in the ticket. If he had done so, and limited himself to that as a cause of-action, his recovery would have been the price of the tickets, $2, with interest. It has been repeatedly held, that such a ticket is a mere revocable license. Where a consideration is paid for the license, the licensee can sue for damages, and in case of revocation, the damages are measured by those ordinarily applied to a broken contract: Wood v. Leadbitter, 13 Mees. & W. 837 ; McCrea v. Marsh, 12 Gray 211.
    The declaration alleges actual force of the defendant. The damages claimed are for the results of actual force. The evidence shows that the injury was caused by actual force, and though it was the force of an employee, the charge of the court makes defendant responsible. for it. For such force, whether that of defendant directly or by or through an agent’s, trespass vi et armis is the only remedy : Gregory v. Piper, 9 B. & C. 591; Sharrod v. Railway Co., 4 Exch. 580; Dolph v. Ferns, 7 W. & S. 367; 1 Chit. Pl. 181. If, therefore, Mrs. Drew was liable at all, she was liable only in that form of action. The fact that it is a per quod action makes no difference. It is well settled, that when the injury to the wife, child or servant, arises from force, the proper action is trespass vi et armis : Legaux v. Feesor, 1 Yelv. 589 ; Jones v. Tevis, 4 Litt. 25; 1 Sm. Lead. Cas. 561, 769; 1 Chit. Pl. 134. To ^attempt to recover on both grounds is a misjoinder, and advantage'may be taken of it on error: 1 Chit. PI. 205. There was no evidence of any regulation requiring the exclusion of colored people from the theatre. The act of the defendant’s agent was, therefore, voluntary and outside his functions, and the master is not liable therefor.
    The Statute of Limitations is not to bo allowed to depend on the mere form of the action. De Haven v. Bartholomew, 7 P. F. Smith 126. Here, if the plaintiff desires to recover $2, the price of the tickets with interest, he has his action on the case and six years. If his real cause of action is, as here, an assault, he has but two years.

      Rudolph M. Schick and Benjamin Harris Brewster, for defendant in error.
    The form of action is properly in case, because the damages of the plaintiff are consequential. The injuries are to the person of the wife, in consequonee of which the plaintiff lost, and was deprived of the assistance of his wife in his domestic affairs; and was put to the expense of hiring persons to do the service formerly performed by her, and to the expense of medical attendance and medicines for her cure: Wilt v. Vickers, 8 Watts 227; Whitcomb v. Barre, 37 Vt. 148; Ream v. Rank, 3 S. & R. 215 ; Bennett v. Allcott, 2 Term Rep. 166. Case is the proper remedy against the master for any injury inflicted by his servant: 1 Ch. Pl. 149. If there was a misjoinder, it should have been taken advantage of by demurrer : Martin v. Stille, 3 Whart. 337 ; Burkholder v. Beetem, 15 P. F. Smith 496.
    There is no misjoinder of causes of action in the declaration. The tickets are set out merely by way of inducement. They show the plaintiff’s right to be where he was when the injuries were inflicted, which is in all cases necessary, where the law does not give or imply the right: 1 Ch. Pl. 412. Tayler v. Waters, 7 Taunt. 374, is an action on the case for being deprived of admission to a theatre, and the ticket is set out as an inducement.
    The tickets were more than a revocable license. By reason of the expenditure on the faith thereof, they became an agreement on valuable consideration, which it would be a fraud on the part of the licensor not to carry out: Huff v. McCauley, 3 P. F. Smith 206; LeFevre v. LeFevrc, 4 S. & R. 241; Rerick v. Kern, 14 Id. 267; Swartz v. Swartz, 4 Barr 353; Thompson v. McElarney, 1 Norris 177.
   Mr. Justice Sterrett

delivered the opinion of court, May 3d 1880.

The main contention of the plaintiff in error, to which several of the assignments relate, is that the action should have been trespass vi et armis and not case. A brief consideration of the facts upon which the action was grounded, and the nature of the damages for which compensation was claimed, will enable us to determine this question. The declaration, after setting out, by way of inducement, the purchase by the plaintiff of two tickets of admission to defendant’s theatre, entitling the holders thereof to occupy two designated seats therein, and witness the performances and exhibitions there given on the evening of April 16th 1874, averred in substance that he in company with his wife presented the tickets to the proper person to receive the same and admit them to said seats; that his demand for admission was refused, and both he and his wife were so rudely ejected from the theatre that she was greatly injured, and her health was for a long time much impaired ; whereby the plaintiff was deprived of her assistance in his domestic affairs, and was obliged to expend large sums of money in endeavoring to have her injuries cured and health restored, and thereby sustained damage, &c.

The- loss of his wife’s services in his domestic affairs, by reason of the injuries she received, and the consequent outlay necessarily incurred in hiring others to do what she w’ould have done, and in procuring medical attendance, &e., evidently constitute the gravamen or gist of his complaint; and it was to these matters that the testimony was mainly directed. It was not claimed that the plaintiff in error personally inflicted the injuries from which the alleged damages resulted. On the contrary the testimony tended to prove that they were inflicted by her agents in the course of their employment in the theatre, and the court instructed the jury that if they so found, the plaintiff in error was liable in so far as her agents “ had occasioned loss and damage to the plaintiff; but, as the action was by the husband alone, only such loss as he had experienced could' enter into the verdict.” The facts then as claimed by the plaintiff below, and supported by his testimony were found by the jury. Upon the facts so found we think there can be no doubt that the form of action was properly case; because the injuries to Mrs. Peer, from which the damages to her husband resulted, were not inflicted personally by the plaintiff in error, or by her command or with her assent, but by her agents in the course of their employment. The criterion is not whether the master has given the authority to do the particular act, but whether the servant has done it in the ordinary course of his employment. In 1 Chitty Pleading 149, it is said : “ Eor some torts which may prima facie appear to be forcible and immediate * * * an action on the case is the proper remedy. So, though a master may be liable under the circumstances to compensate an immediate injury committed by his servant, in the course of his employment, with force, yet the action against the master must in general be case, though against the servant it might for the same act be trespass.” To maintain trespass vi et arm-is against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent: The Railroad Co v. Wilt, 4 Whart. 142 ; Yerger v. Warren, 7 Casey 319 ; The Allegheny Valley Railroad Co. v. McLain, 10 Norris 442.

The action was properly in case for the further reason that the damages claimed by the plaintiff were consequential. In treating of actions of trespass by husband and wife, for battery of the wife, Blackstono says, if the beating be so severe that the husband is thereby “ deprived for any time of the company and assistance of his wife, the law gives him a separate remedy, by action of trespass- in the nature of an action upon the ease for this ill usage, per quod consortium amisit, in which he may recover a satisfaction in damages: 3 Bl. Com. 140. Mr. Stephen, in his treatise on the principles of pleadings, says : “ The action of trespass lies where a party claims damages for a trespass committed against him. A trespass is an injury committed with violence, either actual or implied; and the law will imply violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff.” It follows from this that where damages are claimed by the husband for loss of his wife’s services, and for medical attendance resulting from a personal injury to her, that case is the proper form of action. The right to the services is an intangible right, and therefore not the subject of immediate forcible injury, such as may he inflicted on tangible or corporeal property. The principle is also recognised in Ream v. Rank, 3 S. & R. 214, which was an action on the case for debauching the plaintiff’s daughter, by which he lost her services and was put to great expense, &c. After reviewing the “authorities, it is there said that “ the injury complained of does not follow directly from the act of the defendant, but consequentially, and that is the criterion between trespass and case. The injury is the loss of services occasioned by consequences flowing from the act itself.” While it is conceded by the court that trespass has often been resorted to in similar cases, it is said, in sustaining the action in that case, that “ on principle the .action of case would seem to he the more appropriate remedy.” This case was followed by Wilt v. Vickers, 8 Watts 227, in which the distinction between trespass and case was elaborately considered, and the principle, contended for by the learned counsel for the defendant in error, recognised.

There was no error in holding that the action was in proper form, or m submitting the case to the jury, as was done.

If there had been an improper joinder of distinct causes of action in the declaration, this should have been taken advantage of by demurrer; but there was no such misjoinder. The tickets were set out merely by way of inducement to show that the plaintiff and his wife had a right to be where they were at the time the injuries to her person were inflicted, and that as patrons of defendant’s theatre they were entitled to protection from injury at the hands of her employees.

Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theatre and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did, and summarily eject Peer and his wife from the building in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.

It is unnecessary to notice specially the remaining assignments of error, further than to say that they are not .sustained. The verdict was fully justified by the evidence, and the judgment thereon should not be disturbed.

Judgment affirmed.