text:
    Walker et al. versus Walker.
    1. To authorize the admission of a deed as ancient, where the only circumstance relied on is possession, nothing less than proof of possession for thirty years in conformity with the deed is sufficient to raise the presumption of its authenticity.

      2. Where proof of possession cannot be had, the deed may be read, if its genuineness be satisfactorily established by other circumstances.
    3. Circumstances in this case sufficient to authorize a deed to go to the jury as an ancient deed.
    4. Children agreed without the knowledge of their father to release to one of them all their right to the father’s land at his death, if that one would maintain the father for life. Such contract was not against public policy.
    5. Two of the children were married women who did not acknowledge the deed as such. Held, that it was binding on the others.
    6. The deed was not a legal conveyance, but the agreement having been performed by the maintenance of the father; on his death it would be supported in equity as an estoppel.
    November 21st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mercer county: No. 85, to October and November Term 1870.
    This was an action of ejectment brought September 21st 1867, by Andrew Walker against William Walker for an undivided fifth part of a tract of 156 'acres of land. The plaintiff having died, Andrew J. Walker and others, his heirs at law, were, on the 14th of August 1869, substituted as plaintiffs.
    Robert Walker had been the owner of the whole tract. He died February 8th 1834, having made a will which was dated March 7th 1832, and proved June 9th 1834. He devised to his wife “ the homestead farm” (that in controversy) “ to manage and do as she thinks fit as long as she remains my widow.” If she should marry,the farm was to be sold and the proceeds divided as directed in the will. At her death “ the remainder of the property, place and thfe whole estate to be divided among my children as equal as possible.”
    The testator left his widow, Margaret, and eight children, Andrew, the plaintiff, William, the defendant, Elizabeth, Ann, Robert and Samuel Walker, Jane intermarried with William Sample, and Mary intermarried with William Gibson. The ■testator’s widow remained unmarried, and died September 26th 1846, the same children surviving her. Jane Sample and Samuel Walker afterwards died intestate and without issue. The land had been improved and cultivated ever since it had been occupied by Robert Walker, the testator, and had been assessed from 1835 to 1869, inclusive, in the name of William Walker, the defendant.
    The facts above stated appeared by the plaintiff’s evidence and by admissions on the trial, May 17th 1870, before Trunkey, P. J.
    The defendant called J. Hoagland, who testified that the defendant had lived on the farm since 1832 with his father, and with his mother until her death. The father, who was an old man at the time of his death, had failed in health a few years before that time. The defendant built a new house, to which he moved after he married; Ann, his sister, continued to live in .the old mansion-house. Jane married a few years before her father’s death, and about 1864 or 1865 lived with Ann on the farm. Witness was a witness to the signature of Samuel Walker to a deed shown him; he saw it in the possession of the defendant at the time of its date. William and Mary Gibson had not then signed the deed. They declined to sign, although urged by the witness; he saw the deed-in the defendant’s possession often after he witnessed it, a good many years before the suit was brought.
    Defendant gave evidence by other witnesses that the deed had been in his possession about a year before the trial.
    The defendant then offered the deed in evidence. It was objected to by the plaintiffs, admitted by the court and a bill of exceptions sealed.
    The deed is as follows :—
    “To all to whom these presents shall come: Robert Walker, Jr., of Allegheny county and state of Pennsylvania, Andrew Walker, Elizabeth Walker, Ann Walker, Jane intermarried with William Sample, Mary intermarried with William Gibson, all of Mercer county and state aforesaid, and Samuel Walker, of Columbiana county and state of Ohio, send greeting: Whereas, Robert Walker, of Mercer county and state of Pennsylvania, father of the aforesaid Robert, Andrew, Elizabeth, Ann, Jane, Mary and Samuel, being old and in an infirm state of health and unable to manage his property and estate — William Walker, of Mercer county aforesaid, also a son of said Robert, at our special instance and request, having agreed to remain with the said Robert during his lifetime and take care of him and manage his estate in a proper manner. Now, therefore, know ye, that the said Robert, Andrew, Elizabeth, Ann, William Sample and' Jane his wife, William Gibson and Mary his wife, and Samuel Walker, for and in consideration of the premises above set forth, and of the further sum of one dollar, * * * have remised, released and for ever quit claimed, and by these presents .do remise, release and for ever quit claim unto the said William Walker, his heirs and assigns for ever, all and all manner of right, title, interest, claim and demand -which we have, or may hereafter have as heirs of said Robert Walker, of, in, to, or out of the following described tract of land [describing the land in suit], containing one hundred and fifty-six acres and allowance, it being the same tract on which said Robert Walker now lives, with the appertenances which may accrue to them, the said Robert, Elizabeth, Andrew, Ann, William Sample and Jane his wife, in right of said Jane, William Gibson and Mary his wife, in right of said Mary, and Samuel, by the death of the,aforesaid Robert Walker, so that the said William Walker, his heirs and assigns, shall and may have, hold and enjoy the said tract of land with the appertenances and every part and parcel thereof, freely and clearly exonerated and discharged from the said right, title, interest, claim or demand of, in, or to the said tract of land or any part thereof, at any time hereafter shall or may have, claim, challenge, demand or prosecute against the said William Walker, his heirs and assigns or any of them, hut of and from the same shall he barred and for ever excluded by these presents. In witness whereof the above-named Robert Walker, Jr., Andrew Walker, Elizabeth Walker, Ann Walker, William Sample and Jane his wife, William Gibson and Mary his wife, and Samuel Walker, have hereunto set their hands and seals, this twenty-second day of May, A. d. 1832.

    The names of William Gibson and Mary Gibson were signed in pencil, but not claimed to be in their handwriting.
    The defendant gave evidence by a number of witnesses that after his mother’s death he had built a house on the premises at a cost of $600 or $700; that the plaintiff had lived a few miles from the premises until his death; that defendant had occupied them since 1832; that defendant, his mother and sister Ann had lived together in the old house until the new one was built; Ann had lived in the old house since; that Andrew was frequently there, and he and others of the heirs claimed a share in the land after the coal excitement started.
    Plaintiffs in rebuttal gave evidence that the defendant on several occasions had expressed doubts as to the validity of his title; that he had tried to purchase his brother Andrew’s interest in the land; that he had paid to several of the heirs, money as their shares of the proceeds of a coal-lease in the land; that the heirs had claimed that they had a share in the land.
    On her cross-examination, Ann, one of defendant’s sisters, who was a witness, said that she and her sister Elizabeth signed the deed together, and also that defendant always claimed the land as his own; she testified that D. Dunmire, one of the witnesses to the deed, was present when it was executed, and that the defendant was to have the land and make what he could out of it.

      The plaintiffs asked the court to charge:—
    1. That if the jury believe the evidence that Mary Gibson and Jane Sample were married women at the time of the execution of the deed in evidence, there being no acknowledgment as required by law, said deed is not binding upon the parties who signed the same, and is null and void.
    8. That as there is no evidence in the case that Robert Walker, the owner of said land, agreed or consented to or knew of said deed, it must be presumed that he did not agree or consent to or know of the same, and even if said deed is properly executed, it was not only a legal fraud upon said Robert Walker, but against public policy and justice, and consequently is null and void.
    4. That the said deed does not estop the plaintiffs from recovering in this case.
    The defendant asked the court to charge:—
    1. That although the agreement or conveyance by Andrew Walker to the defendant on the 22d day of May 1832, of all the interest he then had or might thereafter have in the real estate of his father therein described, was executory, it will be enforced in equity, if founded upon a sufficient consideration.
    2. That if the jury believe from the evidence that the defendant remained with and managed the estate of his father according to the provisions of said agreement or conveyance, that would be a sufficient consideration to support it.
    The court, after stating the original title, &c., charged:—
    “ To defeat the plaintiffs’ recovery the defendant alleges that Andrew Walker and the other children of Robert Walker, deceased, conveyed their interest in the land to defendant by deed dated May 22d 1832. Did Andrew Walker execute this conveyance, at or about the time it bears date ? Under the testimony given previous to its being offered in evidence it was admitted as an ancient deed, without actual proof of the genuineness of the signature purporting to be Andrew Walker’s. That it has been so admitted does not relieve you from determining whether or not it was duly executed. The plaintiffs are not precluded from calling it in question, and offering evidence tending to show that the signatures are not genuine, or other evidence to impeach it. Did William Walker have the custody of this writing from the time or about the time it bears date ? Were all the signatures attached about that time, and before the death of Robert Walker, and are some of them actually proven to be genuine by a subscribing witness and one of the parties ? Did the defendant perform his part of the agreement recited in the writing ? Did the parties, until some five or six years ago, so act in reference to this land as to show that the defendant had such possession as the nature of the case would admit, and acquiesced in by the other ? If you so find, and there is no sufficient evidence to rebut it, you may infer that it was executed and delivered by Andrew Walker. Should you find that it was not so executed, your verdict will be for tbe plaintiffs.
    “ If executed, then wbat is tbe effect of tbe agreement or conveyance ? On its face, as well as by other proof, it appears to have been made between the children of Robert Walker in his lifetime. It recites that [heir father was old and infirm in health, and unable to manage his property and estate, and that William, at the special instance and request of the others, had agreed to remain with their father during his life and take care of him and his estate in a proper manner. This is the real inducement and consideration, for which the other children released and for ever quit claimed unto William Walker, his heirs and assigns, their right, title and interest which they had, or might afterwards have as heirs of Robert Walker in the land described, being the same ,in suit, so that the said William Walker, his heirs and assigns shall and may have the land with the appertenances free and clear of any claim or demand of the grantor, and so as utterly to bar and exclude the grantor from the said land or any part thereof for ever. At the time of making this deed none of the parties had any interest in the land, and it did not and cannot operate as a legal conveyance thereof. Robert Walker could have disposed, of the land by deed, or devised it by will, as well as if no such conveyance had.been made. He was not bound to accept the offices of his son William to take care of him and his property. Whether or not he had other property than this land there is no evidence. His will is dated prior to the date of the deed. Did William perform his agreement as recited in the deed ? This is a material question, and you must answer it from the evidence. Without actual performance by him in good faith of his part of the agreement he ought not to have the benefit in equity of the deed. This was a valuable consideration to be performed, and if the reason set out in the recital be true, one that all the parties naturally felt an interest in. Conveyances of expectant interests in land by those who in the future may be entitled to it as heirs at law, are not to be encouraged, and will always be carefully scrutinized. If attended by any fraud or imposition, they will not in equity estop the heir from setting up his claim and holding the land. [But if all the children of an aged and infirm parent, without any fraud or imposition, make an agreement by which one of their number is to remain with and take care of him and his property during his lifetime, and for this make a conveyance of a certain piece of land owned by such parent, those conveying expressly stipulating that they shall for ever be barred and excluded from setting up any title or claim to said land as against the grantee or his heirs, it is not a legal fraud upon the parent, and if it has been performed with entire good faith without imposition on the part of the grantee upon the parent, will not be held void in equity on the ground of public policy and justice.] [The grantee undertakes to perform certain things, and if he does so, it is a valuable and sufficient consideration to support a conveyance in equity.] He runs the risk of obtaining nothing for his care and services, for the parent may dispose of the land as he chooses. His performance may exceed its actual value, the value of the land, or it may fall far short of it. As between children such an agreement may be fairly made, and be performed by one party with entire good faith, acquiesced in by all connected with it, and then after the lapse of many years, it ought not to be avoided by one of the grantors. Were the transaction of a recent date, the performance of the agreement and every other essential should be proved satisfactorily by direct evidence. After the lapse of over thirty years it is difficult to prove clearly every point by direct evidence, and the' jury may consider the acts of the respective parties and their claims to the land along with the other evidence. How has William occupied the land and claimed it ? Some five or six years ago, you may infer from the evidence, the land was- considered valuable for its coal, and then and since Andrew Walker and some of the others asserted claims to the land. Did they ever do so before ? These and other like questions you will consider. Robert Walker was in the possession of the land up to the time of his death. By the will and admitted facts, his widow, Margaret, was entitled to the possession during her life, and none of the parties had a right to enter. Upon her decease, the heirs or rather the devisees had the right to the possession in common. In the absence of evidence to show otherwise those in the actual occupancy will not be presumed to hold adversely to the others, and those in possession are presumed to hold for all. Upon the admitted facts, the Statute of Limitations does not bar the plaintiffs. The evidence falls short of showing an actual ouster as between tenants in common, and an exclusive and hostile possession on part of defendant for any length of time. But you will consider the evidence as to the actual occupancy of William Walker, and what he did, not only in the lifetime of his father, and of his mother after his decease and since her decease and prior to the commencement of this suit, as bearing upon the question of actual performance by, him of his agreement, how he held, and how the grantors in the deed treated his holding. [If from all the evidence you find that the agreement recited in the deed was fairly made without imposition, in good faith performed by William Walker in the manner hereinbefore stated, with such actual occupancy and to as full extent as was consistent with the ownership of the land by Robert Walker when living, and of Margaret Walker during her life, each of them acquiescing in his occupancy and use of the land, that he claimed to hold it under the agreement or deed, and that for about fifteen years after Margaret Walker’s death, the claim was known and acquiesced in by the grantors, the other heirs and devisees of Robert Walker, deceased, then the deed, though not a legal conveyance of the land, estops the plaintiffs from recovering in this action] the share of Andrew Walker, as one of the heirs and devisees of Robert Walker, deceased — and if you do not so find, the plaintiffs are entitled to recover.”
    The plaintiffs’ 1st point was refused. The court added, “ If you find the agreement fairly made and performed as stated in the charge, whatever its effect as to Mary Gibson and Jane Sample, it is binding on the others as if it had been duly acknowledged by them.”
    The 3d and 4th points were answered in the negative — qualified as in the charge.
    The court referred to the charge for the answers to the defendant’s points.
    The verdict was for the defendant.
    On the removal of the record to the Supreme Court by the plaintiffs, they assigned for error the admission of the deed in evidence, the answer to their 1st point, the parts of the charge in brackets as in answer to their remaining points and. to the defendant’s points.

      J. H. Robinson, for plaintiffs in error.
    Before a deed can be admitted as ancient, there must be proof of possession of the land for thirty years accompanying it: Shaller v. Brand, 6 Binn. 435; Jackson v. Blansham, 3 Johns. 292; Healy v. Moul, 5 S. & R. 181; McGennis v. Allison, 10 Id. 199; Taylor v. Dougherty, 1 W. & S. 327; Zeigler v. Houtz, Id. 538; Williams v. Hillegas, 5 Barr 493; Minston v. Gwathmey, 8 B. Mon. 19; Homer v. Cilley, 14 N. H. 85. The deed is not the deed of any of the parties unless signed and delivered by all of them. Mary Gibson and Jane Sample were married women before, at and after the time of its purported execution. And there is no acknowledgment by them of the deed. The signing of it by them was therefore null and void — it is not binding upon them, and the deed is in precisely the same condition as if it had not been signed by them ; consequently the deed is not binding upon the other parties. The deed was a legal fraud upon Robert Walker, and against public policy and justice, and consequently null and void : Boynton v. Hubbard, 7 Mass. 112; Fitch v. Fitch, 8 Pick. 480; Tooly v. Dibble, 2 Hill 641; Chesterfield v. Jansson, 2 Ves. 157; 1 Atk. 352; King v. Hamlet, 2 Myl. & K. 473; Story’s Eq. Jur. 339 note; Twisleton v. Griffith, 1 P. Wms. 310; Cole v. Gibbons, 3 Id. 290; Eichelberger v. Jameson, 2 Penna. R. 399; Jackson v. Waldron, 13 Wend. 173. There can be no estoppel by covenant of warranty, for there is no such covenant in the deed, but only a covenant of non-claim. This estoppel goes upon the principle that it would be against equity to allow the grantor to recover the land, thereby breaking his covenant and exposing himself to an action to recover its value: Shaw v. Galbraith, 7 Barr 113. In this case there is no covenant of warranty. There is a covenant of non-claim. If Robert Walker had devised or sold this land to a stranger, or if the land had been sold or disposed of in any other way, William Walker would not have had any right of action, and there can be no estoppel in this case : 4 Kent’s Com. 261 note; Dart v. Dart, 7 Conn. 250; Jackson v. Winslow, 13 Wend. 189; Right v. Bucknell, 2 B. & Ad. 278; McCracken v. Wright, 14 Johns. 193; Jackson v. Bradford, 4 Wend. 622; Jackson v. Hubble, 1 Cowen 613. The burden was on the defendant to show that a fair and adequate consideration had been paid for the land: Story’s Eq. Jur. §§ 336, 337, 338.
    October 9th 1871,

      Griffith & Mason and Stranahan & McDermitt, for defendant in error.
    As to the admission of the deed: McReynolds v. Longenberger, 7 P. F. Smith 13; Lau v. Mumma, 7 Wright 274. The deed was not against public policy: Bayler v. Commonwealth, 4 Id. 37; Hobson v. Trevor, 2 P. Wms. 191; Beckley v. Newland, Id. 182; Barick v. Edwards, 11 Paige 290; McWilliams v. Nisly, 2 S. & R. 507; Snell’s Eq. 72; Smith’s Eq. 231-232; 2 Story’s Eq. § 1040. The consideration was the mutual benefit of the chance to the land: Beckley v. Newland, 2 P. Wms. 182.
   The opinion of the court was delivered,

by Williams, J.

The deed from Andrew Walker and others to William Walker was properly received in evidence. It was admitted as an ancient deed, and the objection to its admission is, that no such accompanying possession was shown under it as would make it evidence without proof of its execution. Where possession is the only circumstance relied on, the rule undoubtedly is, that nothing less than proof of possession for thirty years, in conformity with the deed, is sufficient to raise the presumption of its authenticity. But is proof of actual possession under the deed indispensable 1 May not its absence be supplied by other satisfactory and corroborative evidence ? Whatever may be the leaning of the earlier determinations, it has never been expressly decided in Pennsylvania that nothing but proof of actual possession under the deed for thirty years is sufficient to raise a presumption in favor of its authenticity: Williams v. Hillegas, 5 Barr 492; and the weight of authority elsewhere is clearly against the establishment of so rigid a rule; and the prevailing doctrine now is, that where proof of possession cannot be had the deed may be read in evidence, if its genuineness is satisfactorily establisted by other circumstances: 1 Greenl. Ev. § 144, note 1; B Phil. Ev. 1310, note 903. In this case' proof of actual or exclusive possession under the deed for thirty years cannot be had. If genuine, it conveyed no present estate or immediate right of possession; and no actual or exclusive'possession could have been taken under it until the death of Margaret Walker in 1846, to whom a life estate was given by the will of Robert Walker. But if the defendant did not have the exclusive possession of the land, he had such possession of it for more than thirty years as the parties to the deed intended that he should have; and why should not this, in connection with the other corroborating circumstances in evidence, be sufficient to raise the presumption of its genuineness without express proof of its execution ? The deed required the defendant to remain with Robert Walker, who was living on the land and the owner of it, during his lifetime, and to take care of him and manage his estate in a proper manner. The evidence showed that he lived on the land from the date of the deed until the commencement of this action, a period of more than thirty-five years, that he remained on the land during the lifetime of his father and until the death of his mother, and that since then he has continued to reside there, making improvements and claiming the land as his own; that it was assessed in his name from 1835 to 1869, and the taxes paid by him during that time; and that Andrew Walker, who lived within two or three miles, did not set up any claim to the property until a short time before the commencement of -this action, when the land began to be considered valuable for its coal.- Besides all this, there was direct proof of the execution of the deed by Samuel Walker by the testimony of the subscribing witness to his signature, and of its execution by Elizabeth Walker and Ann Walker by the admission and testimony of the latter. There was nothing suspicious about the deed. It purported to be signed by all the parties named in it with the exception of William Gibson and Mary Gibson, and it was expressly proved that they refused to sign it. It was shown to have been in existence from the time it bears date, and to have been in the possession of the defendant — the party interested in its preservation and entitled to its custody — and there was nothing in the evidence tending to rebut or weaken the presumption arising from all these corroborating circumstances in favor of the genuineness of the deed, and of its execution by Andrew Walker. The proof given to establish its authenticity was therefore sufficient to allow it to go to the jury.

Nor was there any error in the answer of the court to the points embraced in the assignment. It does not follow that if Mary Gibson and Jane Sample, who were married women, did not so execute and acknowledge the deed as to make it binding on them, that it was not binding upon the other parties who executed it. There is nothing on the face of the deed showing that it was not intended to .operate or have any effect unless it was so executed by all the parties as to be valid and binding on all; and if the agreement contained in the deed was fairly made and fully performed by the defendant as the jury have found, it is binding on the other parties, whether Mary Gibson and Jane Sample are bound by it or not. Nor was the deed a legal fraud upon Robert Walker, if he did not actually agree or. consent to it. As it was made for his benefit, his consent, if necessary, will be presumed, and the law, instead of condemning such a contract as productive of public mischief and against sound public policy, should sanction and uphold it as not only lawful but praiseworthy. The jury were therefore rightly instructed that if the agreement recited in the deed was performed by the defendant, it was a valuable and sufficient consideration to support a conveyance in equity; and if it was fairly made without imposition and in good faith performed by the defendant, then the deed, though not a legal conveyance of the land, estops the plaintiffs from recovering in this action.

Judgment affirmed.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Orr’s Appeal.
    1. In ordinary cases the payment of money is not necessary to make a contract complete. It is only where the question is whether a future contract was not in contemplation that it becomes of significance.
    2. Evidence in this case as to a contract for. the sale of interest in a steamer, examined and held insufficient.
    3. Brown v. Finney, 3 P. F. Smith 373, compared.
    November 22d 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the District Court of Allegheny county: In Equity: No. 214, to October and November Term 1869.
    On the 10th of January 1867, Chambers Orr, administrator, &c., of Turney P. Orr, filed a bill against Hamilton Kelly, setting out:—
    1. That the Allegheny Valley Railroad Company and the defendant were, in January 1863, joint owners of the steamboat “ Le Claire,” in equal shares.
    2. That the company offered their interest in the boat for sale for $3000, and the defendant proposed to Turney P. Orr that he (defendant) should purchase the company]s interest for $3000, sell to Orr for the same amount and have it transferred to him at the custom-house, Orr to pay him $500 in hand, $1000 April 1st 1863, and the remainder in the months of May and June in the same year.

      8 and 4. That on the 21st of January 1863, the defendant and Orr entered into a verbal agreement in accordance with proposition above stated; on the same day, the defendant bought the company’s interest in the boat, sold it to Orr upon the terms stated, and promised to have it transferred to Orr on the customhouse books. Orr paid him the $500, and from that time he was considered by both as the owner of the company’s interest.
    5. That after the payment of the $500 the parties agreed to go to Kittanning and have their contract reduced to writing by E. S. Golden, Esq., and a due-bill was given by Kelly to Orr as evidence of the payment of the $500, until the writing should be prepared, when it was to be entered on the contract as a credit.
    6. Orr went to Kittanning the same day to carry out the arrangement, was taken sick on his arrival there and died on the 8th of February, before the contract could be reduced to writing.
    7. That the defendant did not transfer Orr’s interest in the boat to him on the custom-house books, but had it transferred to himself on the 22d of January 1863.
    8. That the defendant took charge of the steamboat on the 21st of January 1863, and ran her until April 23d 1864, when he sold her for $17,000, and received the purchase-money.
    9. That whilst he ran the boat he received her earnings, which were more than sufficient to pay'the remainder of the purchase-money due by Orr, after paying the expenses; and that the plaintiff was entitled to receive the one-half of the surplus of the earnings of the boat, and also of the purchase-money; that the defendant refuses to account to the plaintiff or pay him any part of the earnings or purchase-money, alleging that nothing is due to the plaintiff.
    The prayers were, that the defendant account and pay over to the plaintiff the decedent’s share, and for general relief.
    The defendant by his answer denied categorically all the material parts of the bill, especially that there had been any contract or sale in relation to the “Le Claire.” He admitted that he had given Orr a due-bill for $500, but averred that it had been given for his services as clerk on the “Le Claire,” the defendant having been the captain.
    The plaintiff filed a replication, and B. F. Lucas, Esq., was appointed examiner and master.
    The testimony that bore directly on the question of the contract of sale was from Robert C. Orr, a brother of the decedent.
    He testified that the defendant had proposed to him that he and the decedent should buy the railroad company’s interest on the terms and in the manner mentioned in the bill; upon his declining, the defendant requested him to solicit the decedent to do so; he procured an interview between the decedent and the defendant, who were in negotiation for two or three weeks. The witness further said: — ■
    * * * “ On the morning of the 21st of January 1863, Captain Kelly came to my office; my brother was there; Kelly told him he must have an answer that day whether he would purchase the interest or not, as Mr. Black wanted Captain Kelly to give him an answer that day whether he would take their interest. He told Turney that if he did not take the company’s interest he would sell his; that there were other parties negotiating with the company for their interest, and the company might sell to some parties that would not be pleasant to him. My brother arranged with Kelly to meet him at the St'. Charles at noon, and he would then give him a definite answer; my brother and I went down to dinner, as we both boarded there, and Kelly met us there, and Turney told him he had concluded to take the interest; we all three went in and took dinner together then; after dinner Kelly said he would go down to Mr. Black’s office and close the bargain with him; he arranged with Turney to meet him at my office after he went to Mr. Black’s office. The agreement made there was, that the interest was to be bought by Hamilton Kelly, and by him transferred to Turney Orr, on the books of the office at the custom-house. Turney was to pay him $500 down; there were $1000 to be paid the 1st of April, or $1500 if he could raise it — I believe that was the understanding — and the balance during the spring run was the understanding, and that was generally from April to June; Turney P. Orr was to be the owner, and was the owner of this interest under this arrangement; the understanding was that Turney was to act as clerk on the boat when she commenced running; as my brother and I were going from the hotel to the office we stopped at the Exchange Bank and drew $500 that he had there; I saw him draw the check. After we left the bank we went to my office, and Kelly came there that afternoon' about 3 o’clock, and my brother paid him $500 for the half interest in the steamer ‘Le Claire,’ upon this contract; I saw the money paid; I counted the $1500 that Kelly was to pay, as the first payment to the company; he asked me to count it and see if it was right; the $500 paid by my brother made a part of this $1500; when Kelly came there that afternoon he said he had purchased the company’s interest in the boat from George Black, and was to take him the money that evening before he left his office.
    “ After he had paid him the money, my brother • asked him whether the transfer should not be made on the custom-house books before the boat could be taken out; Kelly told him he would go at any time now and make the transfer on the customhouse books; when my brother paid him the $500, Kelly remarked that there ought to be a contract made, but that he did not know how to write it, and he had not time, as he had promised to meet Mr. Black that evening before he left the office — I mean a contract in writing; I suggested that Kelly should give Turney a due-bill for the $500; Turney was going to Kittanning that evening ; he was sick, and when they went to Kittanning they should get Mr. Golden to draw the contract, and when it was drawn this due-bill should be credited on it; Kelly told Turney to draw a due-bill for that amount, which he did, and Kelly signed it, the due-bill was given with the understanding I have stated, that the amount was to be credited on the purchase when the contract was drawn and signed; about the 1st of December 1862, Kelly told Turney, in my presence, that whatever money the boat owed him for salary as clerk, he had better draw out of the funds of the boat and charge himself with it, that he expected the railroad company and he would have some difficulty about the boat, as he had taken it away from Kittanning; my brother did draw the amount coming to him on the 10th of December 1862, and deposited it in the Exchange Bank; I went with him and introduced him to the teller of the bank, Mr. Brown; he deposited it to his own credit, and, I think, charged himself with it on the cashbooks of the boat that day; he, as clerk, had the custody of the funds of the boat — he carried all the money and kept the books; I think there was a little coming to him after drawing out the $500 — not much, maybe there was $50; he drew out about what he thought was coming to him ; at the time the due-bill was given, there was nothing said by Kelly about its being given for unpaid services, and that was not the purpose for which it was given; I made an examination of the custom-house books, in the city of Pittsburg, to see if the transfer of this interest had been made ; I found that the transfer had been made to Hamilton Kelly individually ; it was afterward transferred to three other persons; my brother left the city the same evening the money was paid — about an hour after; he went to my sister’s or brother-in-law’s, Ephraim Buffington, and got sick; he died on the 8th day of February — ■ he died suddenly of disease of the heart; after the death of my brother, I had some conversation with Hamilton Kelly about my brother’s interest in the boat; he proposed to me to resign my position as treasurer of the railroad, and to take Turney’s interest in the boat, and go on it as clerk; I declined, as I was not able to go as clerk, or stand steamboating, on account of my health; this was only a few days after my brother’s death — a short time afterward, inside of a week; in this conversation he made no allegation that my brother had no interest in the boat; nothing was said on the subject. * * *
    “ The understanding was that the purchase and transfer was to be from the company to Mr. Kelly, and from Mr. Kelly to my brother. The transfer from Kelly to my brother was to be made after the transfer from the company to Mr. Kelly.” Witness further said that after the death of his brother, the defendant “ asked me if I would not take my brother’s interest in the boat, he would give me the same chance of paying for it he had given Turney; he wanted me to take his place.” Also that before the $500 had been paid “ the whole matter had been agreed upon and settled; I do not remember of anything being said about the contract not being complete until reduced to writing; I think if anything of that kind had been stated by either of the parties I would have remembered it.”
    There was evidence from other witnesses of occurrences and declarations by the defendant after the 21st of January for the purpose of corroboration, but not as to what took place on that day.
    Letters of administration on the decedent’s estate 'were issued April 25th 1865.
    The master in his report said, that the denials in the answer were directly responsive to the allegations of the bill charging the making of a contract, and therefore required the testimony of a witness and corroborating circumstances to countervail the denial. He further said: — ■
    “ The testimony of Robert C. Orr is as direct and positive as it is possible for the testimony of a witness to be, and, if believed, it would be sufficient to establish a contract in an action at law. It defines all the terms of the contract, and leaves no part of it in doubt.”
    And after referring to the testimony of the other witnesses and circumstances proved, he added:—
    “ The positive testimony then of Robert Orr, corroborated by the testimony of Ephraim Buffington and Hunter Orr, together with the other circumstances proved in the cause, in the opinion of the master, do establish the existence of the contract substantially as set out in plaintiff’s bill.”
    He reported that the plaintiff was entitled to the relief prayed for, and recommended that the defendant he decreed to account.
    After exceptions by the defendant, the court decreed:—
    “ That the report of the master be re-submitted to him, with instructions to state an account without prejudice to the rights of either party, upon the questions raised under the pleadings and evidence on the exceptions filed, and- thereupon, on the re-filing of the said master’s report, and the statement of account between plaintiff and defendant, as made by him, all questions of law and of fact, whether as to the right of the plaintiff to the relief prayed for by him, or to any relief whatever, or whether as to the correctness of the account as stated by the master, be submitted to and passed upon by the District Court in banc for their final decree.”

      January 16th 1871,
    The master accordingly stated an account, finding that there was due to the plaintiff, as administrator, &c., from the defendant $11,820.95.
    The defendant filed these exceptions:—
    1. That plaintiff has no right to any account, the evidence showing no contract, and if a contract, that the plaintiff has adequate remedy at law.
    2. That the account, as reported hy the master, is incorrect, and not based upon any principié warranted by the facts as proven in the case.
    After hearing, the District Court dismissed the bill.
    The plaintiff appealed to the Supreme Court, assigning the decree for error.

      J. H. Hampton and H. D. Foster, for appellant.

      W. Purviance and S. A. Purviance, for appellee.
   The opinion of the court was delivered,

by Sharswood, J.

There is but one question in this cause and that a question of fact. The bill alleged a purchase by the decedent, Turney P. Orr, of an interest of one-half in the steamboat “Le Claire,” and as such part-owner called upon the defendant to account for the earnings of the boat and the price for which he had sold it. The answer positively and responsively denied any such contract of purchase. The learned master appointed in the court below, in a very able report, admitting the established rule in equity to be that such an answer must be disproved by two witnesses or by one witness and corroborating circumstances derived aliunde, after an elaborate review of the evidence came to the conclusion that the answer was disproved by the testimony of Robert C. Orr, and that his testimony was sufficiently corroborated by other evidence. We do not purpose to go into an examination of this supposed corroboration, because it must be conceded on all hands that if the testimony of Robert C. Orr failed to establish the fact that there was a perfect and complete contract of sale and purchase, the answer has not been disproved. Throwing aside all preliminary conversations and arrangements the purchase if made as alleged was consummated at the office of Mr. Orr, in Pittsburg, on the afternoon of January 21st 1863. There had been a previous interview of the parties at the St. Charles’ Hotel on that day, of which Mr. Orr thus speaks: The agreement made there was that the interest was to be bought by Hamilton Kelly and by him to be transferred to Turney Orr on the books of the office at the custom-house. Turney was to pay him $500 down; there was $1000 to be paid the 1st of April or $1500 if he could raise it. I believe that was the understanding, and the balance during the spring run was the understanding and that was generally from April to June.”

Let us pause here a moment to inquire whether this is such positive testimony as to the terms of the contract. as ought to countervail the positive denial of the answer. Was the cash payment on April 1st to he $1000 or $1500 ? “ Fifteen hundred dollars if he could raise it — I believe that was the understanding.” He does not state what the parties said. He believed that was the understanding. Could a chancellor decree specific performance upon such evidence ? But assuming that Turney Orr was to have the option to pay in cash either $1000 or $1500, according to his ability to raise the money, let us pass to what followed. They went to the Exchange Bank and Turney Orr drew out the sum of $500, which he had there on deposit. “ After we left the hank we went to my office and Kelly came there that afternoon about 8 o’clock, I suppose, and my brother paid him $500 for the half interest in the steamer Le Claire upon this contract.” Had he stopped there, there might be some reason to say that the contract was complete though its terms were somewhat uncertain. To use a familiar phrase, the payment of the hand-money “ clinched the bargain.” Of course, the payment of money is not necessary to make a contract complete in ordinary cases. It is only where the question is whether a future contract was not in the contemplation of the parties that it becomes a most significant fact.

It was evidently the turning point in Brown v. Finney, 3 P. F. Smith 373. In that case there was no disagreement as to terms, and if Brown had accepted Finney’s check for $16,000, the agreement would have been complete. But Brown said, it made no difference about the check ; he-would prepare the papers next day. We will see that this case is much stronger than that was. Mr. Orr proceeds: “When my brother paid him the $500, Kelly remarked that there ought to be a contract made, but that he did not know how to write it$ and he had not time, as he had promised to meet Mr. Black that evening before he left the office: I mean a contract in writing; I suggested that Kelly should give Turney a due-bill for the $500; Turney was going to Kittanning that evening : he was sick, and when they went to Kittanning they should get Mr. Golden to draw the contract, and when it was drawn, this due-bill should be credited on it; Kelly told Turney to draw a due-bill for that amount, which he did, and Kelly signed it; the due-bill was given with the understanding I have stated that the amount was to be credited on the purchase when the contract was drawn and signed.” Is any elaborate argument necessary to prove that the money was not paid on the footing of a contract of purchase? If the understanding of the parties was, that the contract was then and there completed, why was the form of a due-bill resorted to instead of a simple receipt for the money, which, when the contract was drawn and signed, could be endorsed as a credit upon it ? Nothing was said at the time about the due-bill being a memorandum simply as evidence of the payment — • strange evidence of a payment indeed it would be. But it is clear, that as Kelly needed the money to enable him to make payment on his purchase of the interest from the Allegheny Yalley Railroad Company, Turney Orr agreed to loan him the amount on the faith of a contract about to be made, the principal terms of which had been arranged, upon which he was-to make a cash payment, but if on any account the contract fell through, he was to have the money back, and took the due-bill as evidence that Kelly owed it to him. This is the simple common-sense interpretation of the arrangement as detailed by the witness. The nature of the proposed contract confirms it. It was not merely a purchase and sale of the half interest in the boat — n'ot like the alleged contract in Brown v. Finney, the purchase and sale of 100,000 bushels of coal, in which, when the price, terms of payment and delivery were agreed upon, all was settled. It was a part of the contract as stated by Mr. Orr that they were to run the boat in partnership. “ The understanding was,” says he, “ that Turney was to act as clerk on the boat when she commenced running.” Kelly was then the master — whether he was to continue as such is not stated — or how the master was to be appointed,, if they could not agree. Whether any and if any what salary Turney was to draw before a division of the earnings, is not stated. Is it likely that prudent men would go into such an arrangement, without some stipulations as to how the business should be conducted ? This was evidently what Kelly meant when he said that there- ought to be a contract made” — not that the contract already made should be reduced to writing. There is nothing in Kelly’s subsequent declaration to contradict this view of the matter. He acknowledged, that he had agreed to sell the half of the boat, that Turney was to be part owner, and that they were to run the boat together, that he had bought the interest for Turney and that if he had lived, there would have been no trouble about it, that these were arrangements made between himself and Turney Orr by which they were to run the boat in partnership. There are other points in the case strongly confirmatory of the construction we put upon the evidence. Turney F. Orr died on February 8th 1868, shortly after the interview at which the contract was alleged to be made, yet no letters of administration were taken out upon his estate until April 25th 1865. Of course there was no offer or tender of $1000 or $1500, whichever was the cash payment to be made on April 1st 1863. It was the balance which was to be- paid during -the spring run from April to June, out of Turney’s share of the earnings, as perhaps may be fairly inferred. But this is not all. It may' be deduced from Robert C. Orr’s own testimony, that he did not suppose at the time that there was a complete contract, and that his brother had become part owner of the boat. He says that a few days after his brother’s death, Kelly “ asked me if I would not take my brother’s interest in the boat, and he would give me the same chance of paying for it that he had gave Turney ; he wanted me to take his place.” What would have been the answer of any man of common intelligence to such a proposition if he had supposed the purchase to have been complete ? Surely that he, Kelly, had no right to make such a proposition: to give or sell an interest which belonged to the estate of his deceased brother. Yet he does not tell us what answer he made to the proposition. He remarks, “ I was not attending to any business of my brother after his death, I believe not.” We conclude that the learned master committed a plain error in the inference of fact he drew from the evidence, and that the decree of the court below was right.

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


author: by Agnew, J.

text:
    The Commonwealth versus Keenan and Clark.
    1. It is sufficient in indictments that the charge be stated with so much
    certainty, that the defendant may know what he is called to answer and the court how to render proper judgment. '
    2. In criminal pleading, courts should look more to substantial justice than artificial nicety.
    3. Where no new fact is essential to the frame of an indictment for libel or to be found by the grand jury as the ground of a colloquium which cannot be dispensed with and the only object of an innuendo is to give point to the meaning of the language, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the word.
    4. It is for the jury to say whether the meaning averred in the innuendo expresses the true meaning of the word.
    5. If there be anything on the face of the libel to give color to the innuendo, it must be left to the jury.
    6. A grand jury may ignoramus a count, but cannot find less than the whole of any one count.
    ■7. A petit jury may find part of a count, if it be in itself a substantial offence within the charge in the indictment. •
    8. If some of the innuendoes in an indictment for libel extend the meaning of parts too far, but there be others sufficient to give point to it, the jury may convict under the latter alone.
    9. If all the innuendoes be defective, the prosecutor has a right to proceed, to subject the defendant to costs.
    10. A petit jury may impose costs on a defendant under a defective indictment.
    11. ' Courts refuse to quash where the indictment is for a serious offence unless on the clearest and plainest ground, but will compel the party to demur, to move in arrest of judgment or to a writ of error.
    12. Bornman v. Boyer, 3 Binn. 515, Hays v. Brierly, 4 Watts 392, Vanderlip v. Roe, 11 Harris 82, approved.

      November 22d 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to tbe Court of Quarter Sessions of Allegheny county: No. 219, to October and November Term 1869.
    At the June Term 1869, of tbe Court of Quarter Sessions of Allegheny county, a true bill was found against William W. Keenan and James II. Clark for a libel on A. M. Bowser.
    The indictment contained three counts, and after charging that tbe defendants were tbe proprietors and publishers of a newspaper published at Greensburg, in tbe county of Westmoreland, called tbe “Republican and Democrat,” and that tbe defendants intending to injure, &c., tbe prosecutor Bowser, and to cause it to be believed that be “ was frequently prosecuted for violations of tbe law,” published in tbe “ Republican and Democrat,” “ libellous words and matter of and concerning” him, viz.:—
    In tbe 1st count:—
    “ Bowser” [thereby meaning tbe said A. M. Bowser], “ again in trouble” [thereby meaning that tbe said A. M. Bowser was frequently prosecuted for violations of tbe law]. “On Monday last information was made before Justice Laird, of this place, by Patrick O’ Conner, charging A. M. Bowser, of Irwin” [thereby meaning tbe said A. M. Bowser], “ with assault and battery. The difficulty occurred at Irwin” [thereby meaning Irwin aforesaid] “on Saturday night, after the return.of the delegation from the Radical convention at this place” [thereby meaning Greensburg aforesaid] “ on that day. A most brutal attack was also made on Mr. Mulligan at the same time” [thereby meaning that tbe said A. M. Bowser did assault and was concerned in tbe assaulting of tbe said Mr. Mulligan at tbe same time that be was so falsely charged, as aforesaid, with assaulting tbe said Patrick O’Conner], “ stabbing him” [thereby meaning tbe said Mr. Mulligan] “ once in the neck and three times in the hip” [thereby meaning that the said A. M. Bowser was concerned in tbe stabbing of tbe said Mr. Mulligan] “after which he” [thereby meaning tbe said Mr. Mulligan] “was conveyed to his” [thereby meaning the said Mr. Mulligan’s] “ residence, where he” [thereby meaning tbe said Mr. Mulligan] “ now lies in a critical condition. The Radical Justices in Irwin” [thereby meaning Irwin aforesaid] refused to even hear the complaints of the persons” [thereby meaning tbe said Patrick O’Conner and tbe said Mr. Mulligan and others whose names to the said inquest are unknown] “ assaulted. Bowser” [thereby meaning tbe said A. M. Bowser] “ was held in $1000 bail by Justice Laird” [thereby meaning tbe said John M. Laird, and thereby then and there meaning that tbe said A. M. Bowser was held to bail by the said John M. Laird for assault and battery upon tbe said Patrick O’Conner, and tbe assaulting and stabbing of tbe said Mr. Mulligan].”

      The second count was substantially as the first.
    The third count was:—

      “ Bowser” [thereby meaning the said A. M. Bowser] “Again in Trouble.”

    “ On Monday last information was made before Justice Laird, of this place” [thereby meaning John M. Laird aforesaid], “ by Patrick O' Conner, charging A. M. Bowser” [thereby meaning the said A. M. Bowser] “ with assault and battery. The difficulty occurred at Irwin!’ [thereby meaning Irwin aforesaid] on Saturday night, after the return of the delegation from the Radical Convention at this place” [thereby meaning Greensburg aforesaid], “ on that day. A most brutal attack was also made on Mr. Mulligan at the same time, stabbing him” [thereby meaning the said Mr. Mulligan] “ once in the neck and three times in the hip, after which he” [thereby meaning the said Mr. Mulligan] was conveyed to his” [thereby meaning the said Mr. Mulligan’s] “residence, where he” [thereby meaning the said Mr. Mulligan] “ now lies in a critical condition. The Radical justices in Irwin!’ [thereby meaning Irwin aforesaid] “ refused to even hear the complaints of the persons” [thereby meaning the said Patrick O’Con-nor and the said Mr. Mulligan, and others whose names are to said inquest unknown] “ assaulted. Bowser” [thereby meaning the said A. M. Bowser] “ was held in $1000 bail by Justice Laird” [thereby meaning the said John M. Laird].”
    The defendants moved to quash the indictment for the following reasons:—
    “ 1 and 2. That the innuendo enlarges and extends the meaning of the alleged libellous words laid, beyond their common and natural sense and import, and that such enlargement of the sense and import is not covered by the introductory averment; and this as to the 1st count.

      “ 3. That the innuendo goes beyond the natural meaning of the alleged libellous words; and that as to part of the said count, relating to Mr. Mulligan, the innuendo is wholly unsupported by any averment whatever; and that as to the 3d count, there is no libellous matter alleged therein.”
    The court, September 22d 1869, quashed the indictment.
    The Commonwealth removed the proceedings to the Supreme Court, and assigned the order quashing the indictment for error.

      H. H. McCormick and L. B. Duff (with whom was A. L. Pearson, District Attorney), for the Commonwealth.
    An indictment will not be quashed unless defective on its face: Commonwealth v. Church, 1 Barr 105. The innuendo is to explain by averment words of a double or doubtful meaning: Bornman v. Boyer, 3 Binn. 515; Thompson v. Lusk, 2 Watts 17; McKennon v. Greer, Id. 353; Hays v. Brierly, 4 Id. 392; Vanderlip v. Roe, 11 Harris 82. The definition of libel under the Revised Criminal Code (Act of March 31st 1860, § 24, Purd. 221, pl. 26) is the same as at common law: Steele v. Southwick, 9 John. R. 214; Southwick v. Stevens, 10 Id. 443; Root v. King, 7 Cow. 613; Cooper v. Greeley, 1 Denio 347.
    January 3d 1871,

      W. D. Moore, for the defendants.
   The opinion of the court was delivered,

by Agnew, J.

The strictness of criminal pleading has found its

greatest rigor and its highest reason in a country where, in the time when Sir William Blackstone wrote, one hundred and sixty offences were punishable with death. Humane judges would catch at any slip when a life was to be saved. But in this state, where but a single crime is capital, and where the whole criminal code is administered in mildness and mercy, there is no such reason for strictness of pleading. Therefore it was said by Justice Sergeant, in Sherban v. Commonwealth, 8 Watts 213, that it is sufficient in indictments that the charge be stated with so much certainty that the defendant may know what he is called on to answer, and that the court may know how to render the proper judgment thereon. Over-nice exceptions, he says, are not to be encouraged, especially in cases which do not touch the life of the defendant. Following out this view, the revisers of the late criminal code gave it form and body in the 11th section of the Criminal Procedure Act of 31st March 1860, by providing that every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the Act of 'Assembly prohibiting the crime, or, if at common law, so plainly that the nature of the offence charged may be easily understood by the jury. The act then proceeds to direct when a motion to quash for formal defects shall be made, it shall be before the jury shall be sworn; and to provide for amendments of such defects by the court. Thus it is evident from the current both of decision and legislation, that criminal pleading is no longer the technical thing -it was, and that courts should look more to substantial justice than artificial nicety. It may not be very important, and yet it is not amiss to say, that a libel is now a statutory offence under the 24th section of the Act of 31st March 1860. .

With these principles in view it is very clear that the court below committed a grave error in quashing the indictment in this case for the reasons filed- The indictment sets forth a libel in proper form, and with sufficient averments. Where no new fact is essential to the frame of the indictment and necessary to be found by a grand jury as the ground of a colloquium which cannot be dispensed with, and the only object of introducing an innuendo is to give point to the meaning of the language of the libel, it is not proper to quash the indictment on the ground that the innuendo may be supposed to carry the meaning of the language beyond the customary meaning of the words used. It belongs to the jury to say whether the meaning averred in the innuendo expresses the true meaning of the words. The intent of the author in writing the words is a question of fact and not of law, and may be drawn from intrinsic evidence. If, therefore, there be anything on the face of the libel to give color to the innuendo, it must be left to the jury to pass upon the meaning averred. It is immaterial, says Archbold, in his Criminal Pleading 463, whether the libel impute crime, &c., to the prosecutor in a direct manner, or indirectly by such hints or modes of expression as are likely to convey the intended meaning to the person to whom the libel was published ; taking the words in the same sense in which the rest of mankind would ordinarily understand them, it is for the jury to say whether, in their minds, they convey the idea imputed. Therefore, where one man said of another that “ his character was infamous, that delicacy forbade him from bringing a direct charge, but it was a male child who complained to him,” such words were understood to mean a charge of unnatural practices, and to be sufficiently certain in themselves without the aid of an innuendo. It will be found, on an examination of the authorities, that this is even more emphatically the rule in this state, because the office of the innuendo has been extended beyond the limits assigned to it elsewhere. Hence, in view of the use of the innuendo as understood here, it was the right of the prosecutor in this case to have gone to the jury and asked for a conviction on this indictment, or on so much of it as under the instruction of the court they might find sufficient to support the charge of libel. In this respect the power of the petit jury is larger than that of the grand jury. Though a grand jury may ignore a count, they cannot find less than the whole of any one count;'but the petit jury may find part of a count, provided the part found be in itself a substantial offence within the charge of the indictment: 1 Chitty’s Crim. Law, ed. 1836, page *296. Thus, in an indictment for the larceny of a horse, saddle and bridle, the petit jury may convict of the larceny of the horse alone. So in an indictment for both an assault and battery, they may acquit of the battery and convict of the assault. A verdict of felonious manslaughter also may be rendered upon an indictment for murder. If, therefore, some of the innuendoes in this case extended the meaning of certain parts of the libel too far, but others remained sufficient to give point to it, the petit jury would have a right to convict under the latter alone. And even if all the innuendoes be defective, yet the prosecutor has a right to proceed in order to subject the defendant to costs; for even under a defective indictment the petit jury may impose the costs upon him: Commonwealth v. Tilghman, 4 S. & R. 127; Commonwealth v. Harkness, 4 Binn. 194; Baldwin v. Commonwealth, 2 Casey 171. Besides, it is one of the consequences of quashing the indictment that the recognisances of the bail are discharged: 1 Chitty’s C. L., ed. 1836, p. *300. And when the application comes from the defendant, says Mr. Chitty, the courts usually refuse to quash when the indictment is for a serious offence, unless upon the clearest and plainest ground, but will drive the 'party to a demurrer, or motion in arrest of judgment or writ of error : Chit. C. L., 1836, *300.

It remains now only to inquire as to the office of the innuendo in this state, and how far it will be permitted to be used to give point to the meaning of the words without resorting to a colloquium and a special averment of facts. After Rice v. Mitchell, 2 Dall. 68, the leading case is Bornman v. Boyer, 3 Binn. 515, in which it was held that the charge made by the defendant orally, that the plaintiff took his calfskin, could, by means of the innuendo, be declared that he stole it; and Chief Justice Tilghman, one of the most cautious of judges, held that when words will bear several meanings, the plaintiff has a right to aver by innuendo the meaning with which he conceives the words were spoken, and it is for the jury to decide whether he is right. This is a sensible doctrine, and much to be preferred to that nicety of description which wanders out into a maze of circumstances in order to give hue to the expression, and charge the intent with a formality more nice than wise, whose only effect will be to perplex and confound the jury. This doctrine was approved in Thompson v. Lusk, 2 Watts 17, in which Gibson, C. J., speaking of Bornman v. Boyer, and Rice v. Mitchell, says he would prefer to relax still further the strictness of averment formerly required, rather than to shake their authority. It was held, therefore, in that case, that the words I have made the charge against him, and I will go on with it,” spoken of the oath and testimony of the plaintiff before a justice of the peace, would support the innuendo of perjury. A charge, says the Chief Justice, imports an accusation of criminality, and the expression of a determination to go on with it, the subject of prosecution. The same question arose in McKennon v. Greer, 2 Watts 352. Chief Justice Gibson again delivering the opinion of the court says: The principle deducible from the decision in Bornman v. Boyer, 3 Binn. 515, was attempted to be ascertained in Thompson v. Lusk at the last term of the Sunbury District; according to which it would seem, that where the words, when considered in connection with facts and circumstances alleged by the words themselves to be known by the hearers and understood by them, impute the existence of guilt, which can arise but from a specific offence, the charge supposed to result from thém may be laid by an innuendo without recourse to a colloquium. The innuendo of larceny there, was supported by words which would supply the charge only by an inference to be drawn by the jury. The subject again arose in Hays v. Brierly, 4 Watts 392, wherein the principles of Bornman v. Boyer and Thompson and Lusk were reasserted. The case goes even further, for it supports a charge of libel against Brierly, the plaintiff, in a writing in which the name used was Brilery, without an innuendo and nothing to give identity to the name, but the usual charging averment of the declaration, that the libel was “ of and concerning the said plaintiff.” It is said there, also, that the jury may be left to judge on the intrinsic evidence of the paper. The last case I need notice is Vanderlip and Wife v. Roe, 11 Harris 82, in which it was held that a charge of fornication was sufficiently supported by an innuendo of this meaning averred of the words “she is a bad character — a loose character” — without a colloquium. The former cases are approved, and Justice Lowrie, referring to the “ low slanderers” of that class, remarks “ they have a norma loquendi that is peculiar to the class, and the meaning of such expressions may be properly averred in the innuendo, and the jury must decide whether the averment is true.”

Now from these authorities there cannot be a doubt that the use of the innuendoes in this indictment was proper, arid the meaning of the words averred by them should have gone to the jury. The only remaining question is, whether sufficient appears upon the face of this libel to be submitted to their finding, in support of any of the innuendoes; which if found would sustain a conviction of libel, and of this there is no doubt whatever. The publication opens with the announcement “ Bowser again in trouble.” What trouble ? The publication proceeds to say, “ On Monday last, information was made before Justice Laird, of this place', by Patrick O’Conner, charging A. M. Bowser, of Irwin, with assault and battery.” No one can doubt that this indicates, with transparent clearness, the kind of trouble Bowser was in. But the assertion is, “ again in trouble.” Clearly this means that he had a similar trouble before. He had therefore been informed against before. No one can doubt this inference, and it was for the jury and not the court to verify it. So far it is but the assertion of a fact, but now comes the part which characterizes the fact and gives it the libellous hue. The writing proceeds to characterize the trouble Bowser was in, thus: “The difficulty occurred at Irwin, on Saturday night after the return of the delegation from the radical convention, at this place on that day.” The difficulty thus stated is clearly that for which information was made against Bowser before Justice Laird. Now follows the imputation, í‘ a most brutal attack was also made on Mr. Mulligan at the same time, stabbing him once in the neck, and three times in the hip, after which he was conveyed to his residence, w'here he now lies in a critical condition.” Who can doubt that both the epithet brutal, characterizing the attack on Mulligan, and the description of that attack, import a most disgraceful act, one that degrades the person making the attack to the level of a brute ? It is “ brutal.” Now when the author of the publication followed the trouble Bowser was again in, by saying, a most brutal attack was also made on Mr. Mulligan at the same time, did he not clearly and by a plain inference which all mankind would draw from the language, also characterize the attack of Bowser on O’Conner? The ordinary signification pf “also” is “in the likemanner,” “likewise:” Webster’s Unabridged Dictionary. Now if the attack on Mulligan was in like manner, or likewise, brutal, what was the other thing it was likened to ?' Clearly there is nothing else than the attack by Bowser on O’Conner. That was the only other attack mentioned". Then it was beyond all doubt the province of the jury to say whether, according to the general sense and understanding of the words of this publication, the author did not intend to impute to Bowser a brutal assault and battery. If he did, then the libel is established; for he imputed a disgraceful and degrading offence to Bowser. Now suppose the petit jury should not find, as possibly they might not, the innuendo following the wrords, “ a most brutal attack,” &c., to wit, “ thereby meaning that the said A. M. Bowser did assault, and was concerned in the assaulting of the said Mr. Mulligan at the same time, that he was so falsely charged as aforesaid, with assaulting the said Patrick O’Conner.” Still there would be enough left to constitute a libel upon Bowser, inasmuch as the libel, by plain inference, charges him with a “brutal” assault and battery on O’Conner, and this, by the preceding part of the indictment, is averred to have been a false, scandalous, malicious, defamatory and libellous charge. The same remarks may be made upon the innuendo of the holding of Bowser to bail, to wit, that he was held to bail for the assault and battery upon O’Conner, and also for assaulting and stabbing Mr. Mulligan. If the latter part of the innuendo be disbelieved by the jury, yet enough would remain as to O’Conner. Besides, the district attorney had inserted three counts in the indictment varying the innuendoes, so that the jury could select a count and base their finding on it. In the last count there are clearly no doubtful innuendoes. The court was, therefore, in error, in quashing the indictment, on the ground that the innuendoes enlarged the meaning and intent of the alleged libel. The order of the Court of Quarter Sessions is reversed, the indictment restored, and a procedendo awarded.


author: by Thompson, C. J.

text:
    Colton versus The Cleveland and Pittsburg Railroad Co.
    1. A bill of lading by a railroad company contained “the dangers incident to railroad transportation, fire, and all other unavoidable accidents excepted;” the exception of loss by fire was a limitation on the common-law liability of carriers.
    2. The exception was of fire, whether unavoidabld or not, unless it was by negligence of the carrier, which cannot he provided against.
    3. The goods having been burned, the onus of proof as to fault was on the transporter.
    4. The exceptions restricted the liability of the carrier to that of a private carrier or bailee for hire, and he was liable only for want of ordinary care and skill. Per Stebrett, P. J. ■
    5. Farnham v. Camden and Amboy Railroad, 5 P. F. Smith 55, recognised.
    November 22d 1870.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Allegheny county: Of October and November Term 1869, No. 226.
    This was an action of assumpsit, brought August 81st 1866, by John Colton against The Cleveland and Pittsburg Bailroad Com-' pany, for not delivering goods received by the plaintiff for transportation, under the following bill of lading :—
    “ Cleveland and Pittsburg Bailroad Company,
    Lima, June 2d 1866.
    Beceived of John Colton, Esq., by the Cleveland and Pittsburg Bailroad Company, the following packages (contents unknown), in apparent good order, which they agree to deliver in like good order (the dangers incident to railroad transportation, fire and all other unavoidable accidents excepted) unto the consignee named in the margin, or his or their assignee, at the company’s depot in Pittsburg, upon the payment of freight and charges.
    The Cleveland and Pittsburg Bailroad Company further agree to forward the goods named in this bill of lading, to the place of destination, as per margin, upon the express condition that they shall be released from all liability for the loss or damage to goods, or deficiency in packages, after the same shall have been receipted, in apparent good order, at Pittsburg.

    The plaintiff gave in evidence the foregoing bill of lading, and also proved that the flour mentioned in it “ was not shipped, it was burned up.”

      The defendants gave evidence that the warehouse at Lima, in which the flour was, was burned about midnight of June 2d 1866, and that when discovered nothing could be done to save the building; and that after the flour had been received no freight-train had passed, so that it could be sent, also that the locomotives of the company, including those which passed Lima Station on the night of the fire, were provided with the best spark-arresters known to railroad men.
    The plaintiff’s points and the answers of the court (Sterrett, P. J.), were •
    4. “ The exception in the contract in this case is against unavoidable fire, and the defendant therefore cannot be excused without showing that the fire, of which evidence has been given, happened from a cause which no human skill or foresight could have guarded against.

      5. “ The presumption of law is that the fire happened through the negligence of the defendant, and this presumption can only be rebutted by direct evidence on their part, showing that the fire happened without any fault whatever .on their part, despite the 'exercise by them of the highest degree of.skill and foresight.” These points were unqualifiedly refused.
    7. “ If the jury believe the fire to have been occasioned by sparks thrown from the defendant’s locomotives passing the depot, such fact is evidence of negligence on the part of the defendant, and plaintiff is entitled to recover.”
    Answer: “ This point is refused, unless the jury find also that the sparks were thrown by reason of careless or negligent management of the locomotives, or their defective construction. If the defendant exercised ordinary care and skill in providing good and safe spark-arresters, approved by skilful and experienced mechanics, and the locomotives thus provided were carefully and skilfully operated at the time and place in question, the defendant would not be liable, even if the jury should be of the opinion that the fire was occasioned by sparks from defendant’s locomotives passing the depot. On the other hand, if you find that the sparks were thrown and the building fired in consequence either of the defective construction or careless management of the locomotives, the defendant would be liable.”
    9. “ The neglect of the defendant to employ a watchman, or to provide water or other means of extinguishing a fire, is negligence, per se, and a loss having happened, the plaintiff is entitled to recover.
    10. “ In order to relieve the defendant from liability in this case, he ought to have shown that diligent efforts were made to rescue the property of the plaintiff and other shippers from the flames, and to check the fire.
    12. “If the jury are unsatisfied by the evidence as to the cause of the fire, the presumption of law remains that the fire happened through defendant’s negligence.”
    January 3d 1871,
    These points were unqualifiedly refused.
    Defendant’s points and the answers were :—
    I. “ The exceptions contained in the plaintiff’s hill of lading, or receipt of defendant.for said flour, limited and restricted the liability of the defendant as carrier to that of a private carrier, or of an ordinary bailee for hire, and that the defendant is answerable only under said bill of lading or receipt for want of ordinary care and skill.
    3. “ The burden of proof of negligence is, under this contract, upon the plaintiff.”
    These points were affirmed.
    The verdict was for the defendant.
    The plaintiff took out a writ of error, and assigned the answers of the court to the points for error.

      J. S. Ferguson, for plaintiff in error.

    “ Inevitable accidents” are such as no human foresight can .prevent: Beach v. Parmeter, 11 Harris 197. This is implied by law in favor of common carriers when it is not expressed in the bill of lading: Morrison v. Davis, 8 Id. 171.
    An exception in the bill of lading by a common carrier by land of “ unavoidable dangers and accidents of the road” is no restriction of his general liability: Story on Bailments 457; Walpole v. Bridges, 5 Black. 222. If the contract will bear two constructions it is ambiguous, and therefore will not avail the defendant anything: Beckman v. Shouse, 5 Rawle 189. Accidental fire, happening without default on the part of the carrier, furnish him no excuse: Story on Bailments 459; Graff v. Bloomer, 9 Barr 114.

      S. Schoyer, for defendants in error.
    The exception in the bill of lading reduced the defendant to a private carrier or bailee: Farnham v. Camden and Amboy Railroad, 5 P. F. Smith 55; Graff v. Bloomer, supra; Atwood v. Reliance Transp. Co., 4 Watts 87; Angell on Carriers, §§ 220, 225, 276.
   The opinion of the court was delivered,

by Thompson, C. J.

We think the learned judge below was entirely right in construing the exception in the bill of lading in this case as restrictive of the law of liability of common carriers. It is as follows: The dangers incident to railroad transportation, fire, and all other unavoidable accidents excepted.” Without doubt, the exception of loss by “ fire” was a limitation upon the common-law responsibility, and brings the case within the case of Farnham v. The Camden and Amboy Railroad Company, 5 P. F. Smith 55. The learned judge refused to hold, as the plaintiff below insisted upon, that the word “unavoidable” qualified the word fire” in the exception. This was right. To have held otherwise would have been to regard the enumeration of the peril as utterly inefficient and useless, as the words, “ other unavoidable accidents,” would cover it. The exception in this bill was of “fire,” whether unavoidable or not, provided it was not by the negligence of the company, which cannot be provided against. The common-law liability, being thus changed, the onus of proof of where the fault lay was changed, as is shown in Farnham v. The Camden and Amboy Railroad Company, supra. The case was well decided below, and as we see no error in the record, the judgment must be affirmed.


author: by Williams, J.

text:
    Brown versus Finney.
    1. The question in the case was whether an alleged contract had been consummated. It was proposed to ask the defendant “ whether he and plaintiff at any time made and concluded a contract, complete in all its terms, in reference to the delivery of the coal in question.” Held, that the offer was properly rejected.
    2. Whether the contract had been made was a question for the jury under the instruction of the court, upon all the evidence of what was said and done at the time of the transaction.
    3. It was not competent for the defendant to state whether the facts testified did or did not constitute a contract.

      4. A witness for plaintiff testified what he said was all that had occurred at the making of the alleged contract. The defendant testified that he had required security before he would close the contract. Held, that it was proper to examine the witness in rebuttal to contradict the defendant as to the security.
    5. If what was testified by the defendant did not take place, that it did not, could not have been given in chief.
    6. It is not assignable for error that evidence admissible in chief and cumulative was received in rebuttal.
    November 22d 1870.
    Before Thompson, G. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the .Court of Common Pleas of Allegheny county: Of October and November Term 1870, No. 168.
    This was an action of assumpsit to December Term 1864, by Robert Finney against William H. Brown.
    The plaintiff declared that the defendant had bargained and sold to him 100,000 bushels of coal, to be delivered to him at Cincinnati forthwith, at 16 cents per bushel, &c., and that he did not deliver, &c.
    The case had been once tried, and the judgment was reversed by the Supreme Court (8 P. F. Smith 378).
    It was again tried April 20th 1870, before Collier, J.

      The plaintiff testified that lie had, on the 22d of November 1864, contracted with the defendant to deliver to him 100,000 bushels of coal at Cincinnati, at 16 cents per bushel, and to pay him $10 per day for the detention of the defendant’s barges. That he offered the defendant his check for $16,000 for the coal; the defendant said it made no difference, he would take the money when he delivered the coal, &c. He-testified in detail as to the circumstances attending the contract; of the failure of the defendant to deliver the coal, the loss he sustained, &c.
    H. B. Wilkins testified for the plaintiff very fully as to the circumstances of the bargain, much the same as stated by the plaintiff.
    The defendant was examined, and gave his version of the transaction, not materially different from that testified to on the part of the plaintiff. Also that he had sent some coal-barges to a point below Cincinnati, and they had not been returned. He further testified, that whilst they were writing the check, he said, there was more than that yet; plaintiff asked him what he said; defendant replied, for the delivery of the barges back he wanted security; plaintiff said he would give defendant that, and asked him if he would take John Shoneberger, or William Bagley; the defendant assented: and the plaintiff agreed to meet him at his office next day; the plaintiff never brought Shoneberger or Bagley, nor any paper signed by them as security.
    It was then proposed by his counsel to ask defendant whether he and the plaintiff at any time made and concluded a contract, complete in all its parts, in reference to the delivery of the coal in question.
    This was objected to by the plaintiff, because it would be but the expression of the defendant’s opinion upon the law and facts of the case.
    The court refused the offer, and sealed a bill of exceptions.
    In rebuttal, the plaintiff called H. B. Wilkins, and proposed to prove by him:—
    “ That on the occasion of the meeting of the parties at George’s, when the contract was entered into, nothing was said about security for the return of the barges; that the names of John H. Shoneberger and William Bagley were not mentioned; that nothing was said about barges going below Cincinnati as a reason for any security.”
    The defendant objected to the offer, because it was not in rebuttal; and because the alleged contract being the result of a conversation between the parties, and the witness having been in chief examined as to what that conversation was, and having stated that he had testified to all that he recollected of it, should not now be called to testify either as to what did or did not take place.

      January 5th 1871,
    The evidence was admitted, and a bill of exceptions sealed.
    The verdict was for the plaintiff for $2647.50.
    The defendant took a writ of error, and assigned the rulings on the offers of evidence for error.

      R. Woods (with whom was H. Burgwin), for plaintiff in
    error, cited, as to the admission of Wilkins’ testimony, Jessup v. Loucks, 5 P. F. Smith 363.

      M. W. Acheson, for defendant in error.
    The order of proof is a matter within the discretion of the court: Quinn v. Crowell, 4 Whart. 334; Koenig v. Bauer, 7 P. F. Smith 168; Wilson v. Jamieson, 7 Barr 126. If evidence is admissible at any stage of a trial, the fact that it was received in rebuttal is not assignable for error: Finlay v. Stewart, 6 P. F. Smith 183.
   The opinion of the court was delivered,

by Williams, J.

All the assignments of error in this case relate to the rejection or admission of evidence. The controversy between the parties in the court below was whether the defendant had agreed to sell and deliver to the plaintiff at Cincinnati 100,000 bushels of coal, at 16 cents per bushel, payable on delivery. Both parties were examined as witnesses in relation to the alleged contract; and, after the defendant had given a full and detailed statement of all the facts and circumstances touching the transaction, he was asked by his counsel whether he and the .plaintiff at any time .made and concluded a contract, complete in all its parts, in reference to the delivery of the coal in question. The plaintiff’s counsel objected to the question because it sought to elicit from the defendant an expression of his opinion upop.the law and facts of the case. The court sustained the objection, and this constitutes the first assignment of error.

We are of the opinion that the objection was well taken, and that the question was properly overruled. Whether or not the plaintiff and defendant had made a contract, complete in all its parts, in reference to the sale and delivery of the coal, was a question for the determination of the jury, under the instruction of the court, upon all the evidence as to what was said and done by them at the time of the alleged transaction. The defendant had the unquestioned right, and he was permitted without objection, to state all that took place between himself and the plaintiff in relation to the sale of the coal; but it was not competent for him to state whether the facts to which he had testified did, or did not, constitute a contract complete in all its parts; and this in effect was what he was asked to do. It is doubtless true that whether the defendant did, or did not, make a contract with the plaintiff complete in all its parts, was a question of fact; but the fact, whether he did, or did not, make such a contract, depended upon what was said and done by the parties at the time of the transaction. It is obvious, then, that the statement of anything beyond what actually took place between them, if the defendant had been permitted to make it, must have been mere matter of inference or opinion.

Nor was there any error in the admission of the testimony of Wilkins in rebuttal of that given by the defendant, as complained of in the second assignment. It was not cumulative, but contradictory of the defendant’s testimony as to material matters touching the alleged contract. The fact that the witness had been examined in chief, and had stated all he recollected of the transaction, constituted no valid objection to the admission of his rebutting testimony, because if the facts testified to by the defendant did not take place, it could not have been given in chief. The defendant had stated that one of the provisions of the proposed contract was that security should be given for the return of the barges in which the coal was to be shipped; and it was certainly competent for the plaintiff to’ show that nothing was said on the subject by either party at the time of the transaction. Even if the evidence was cumulative and admissible in chief, as contended, the fact that it was received in rebuttal is not assignable for error: Finlay v. Stewart, 6 P. F. Smith 183.

Judgment affirmed.

Agnew, J., dissented.