author: by Shar.swood, J.

text:
    The Nippenose Manufacturing Co. versus Stadon.
    1. A commissioner appointed by Act of Assembly to receive subscriptions for stock, is an agent appointed by law with a special power of attorney. All who deal with him must look to his source of authority.
    2. When a subscription to stock is on its face unconditional, a condition at the time of subscription, not the subscription, is void.
    3. After organization the company may stipulate with subscribers to pay in any way mutually agreed on.
    4. Corporations are bound only by the acts and contracts of their officers duly authorized, within the scope of their authority.
    5. McConahy v. Turnpike Co., 1 Penna. R. 426, overruled.
    March 27th 1871. Before Thompson, C. J., Read, Ag-new and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 131, to January Term 1870. ' '
    The Nippenose Manufacturing Company, on the 7th of January 1868, commenced an action of assumpsit against Abram Stadon to recover the subscription price of 80 shares of the capital stock of the plaintiffs, at $50 per share. The subscription which the defendant signed was:—
    “We, whose names are hereto subscribed, do promise to pay to the president and directors of the Nippenose Manufacturing Company, the sum of $50 for each and every share of stock set opposite to our respective names, in such manner and in such proportions and at such times as shall he determined hy the president and managers of said company, in pursuance of an act of General Assembly, entitled, &e.
    “Abram Stadon 80 shares. $4000.”
    The plaintiffs gave in evidence the act of incorporation, loss of letters patent, the defendant’s subscription, their organization, &c., also calls for payment of the subscription; also that the defendant assisted in procuring subscriptions and had been elected a director. After having given other evidence the plaintiffs closed.
    The defendant made the following offers of evidence, which were rejected and bills of exceptions sealed.
    1. That at the time of the passage of the Act of Assembly incorporating the Nippenose Manufacturing Company, he had been for many years previous thereto engaged in the manufacture of woollen goods, and had acquired much experience in that business. That soon after the passage of said act he was solicited by G. W. Youngman, one of the commissioners named in the act, to subscribe to the capital stock of said company; that the defendant declined to subscribe, alleging as a reason therefor that he had no money to invest in that way. That said Youngman then urged him to take stock, and assured him that if he would subscribe he would not be required to pay any money, but that as soon as the company was organized and ready to commence operations, defendant would be employed as general superintendent, and could pay for his stock in that way. That defendant, relying upon said representations and promise, and believing that said Youngman had authority to receive such conditional subscription, was induced to subscribe for 80 shares of the capital stock of said company. That as soon as the company was fully organized, defendant was employed as general superintendent, in accordance with the condition upon which his subscription was made; that he superintended the location and erection of the buildings, and after the factory went into operation he had a general oversight of the establishment, and so continued until about the 4th’December 1869, when he was discharged by plaintiff without any sufficient reason. That during part of the time he was employed as superintendent he travelled from place to place, in and out of the state, making purchases of wool, &c., for tbe supply of said manufactory, expended large sums of money for travelling expenses whilst thus engaged in the service of the plaintiffs. That for these services he- became entitled to a credit upon his subscription of stock to the amount of about $1000, that being the amount of his account against the plaintiff. That plaintiff never at any time demanded from defendant the payment of his stock or any part of it in money, nor did defendant at any time demand payment of any part of his account, but that up to the time that defendant was discharged from service both parties acted in accordance with the arrangement with Mr. Youngman. That when the subscription was made, defendant suggested to Mr. Youngman that the condition had better be written on the face of the book, to which Mr. Youngman replied that there was not room to write it out, but that it was all right, and that he had authority to receive such subscriptions. Defendant, trusting to the correctness of these representations, said nothing further at that time; but a short time afterwards, taking with him another for the purpose of bearing witness of the arrangement under which the subscription was made, that defendant then proceeded to relate what had been said at the time of the subscription, to which Mr. Youngman replied, “ that is all right, and I would have admitted that at any time, and it has been my understanding from the beginning,” or words to that effect. That before taking said witness with him, defendant asked Mr. Youngman if he had any objection to- his doing so, to which Mr. Youngman replied that he was willing if defendant was not satisfied as the matter then stood.
    2. To prove in connection with the former offer that defendant, at the time he made the subscription of stock, was wholly unaware of the fact that he was a commissioner named in the act.
    Defendant requested the court to charge the jury:—
    “ That the plaintiff having failed to show any letters patent under which the company was incorporated, cannot recover in this 3 action.”
    The court (Q-amble, P. J.) charged:—
    “ The defendant having permitted the plaintiff, after proof of the loss of the charter or letters patent, to prove the organization of the company and read its official minutes, in which the defendant had participated as an officer, and having in his defence, under the plea of set-off, proven that he was employed and rendered service as superintendent and agent of the corporation plaintiff, and claimed allowance and credit for such services, it is too late now to interpose the objection that plaintiff has not shown the letters patent. We therefore decline to charge the jury as requested in the above point.”
    The verdict was for the plaintiffs for $3703.39.
    The defendant took a writ of error, and assigned the rejection of his offers and the charge of the court for error.

      R. Fleming (with whom was J. J. Metzger and S. Linn), for plaintiff in error,
    cited McConahy v. Turnpike, 1 Penna. R. 426; Kennedy v. Plank Road Co., 1 Casey 226.

      S. L. Youngman (with whom was B. W. Watson), for defendants in error,
    cited Pittsburg and Steub. Railroad v. Biggar, 10 Casey 455; Pittsburg and Con. Railroad v. Stewart, 5 Wright 54; Bedford Railroad v. Bowser, 12 Id. 34.
    May 1871,
   The opinion of the court was delivered,

by Shar.swood, J.

It was decided in McConahy v. The Centre Turnpike, 1 Penna. Rep. 426, that a promise made by a commissioner appointed to receive subscriptions for the stock of a proposed corporation to a person offering to subscribe that he might pay in work was binding on the corporation, at least so far as to prevent it from recovering from the subscriber contrary to the terms of the agreement. It appears to have been merely considered as a question whether parol evidence could be received of what had occurred at the time to vary the terms of the contract. Hill v. Ely, 5 S. & R. 363, and Miller v. Henderson, 10 Id. 290, are referred to as authorities to sustain the judgment, and these are cases on the subject of the admission of parol evidence to vary writings. McConahy v. The Turnpike has been sinee regarded as falling within that category: Kennedy v. Erie and Wattsburg Plank Road Co., 1 Casey 226. Back of this question of the admissibility of parol evidence, however, lay the more pertinent question which seems to have been overlooked, of the power of the commissioner to change the terms of the contract which he was authorized to make, or to accept in other words a conditional subscription — any other than one providing for the payment of money. He was an agent appointed by the law with a special power of attorney. All who dealt with him must look to the source of his authority. It may possibly be that if a condition in writing were attached to the subscription, the subscription itself would be void, unless perhaps it should be assumed and ratified by the corporation after organization. When, however, it is on its face absolute and unconditional, the charter is granted and the company organized on the faith of it, and in such case, therefore, not the subscription but the condition is void. This is clearly the result of the opinions and judgments in Irvin v. The Turnpike Co., 2 Penna. Rep. 466; Pittsburg and Steubenville Railroad Co. v. Biggar, 10 Casey 455; Pittsburg and Connellsville Railroad Co. v. Stewart, 5 Wright 54, and Bedford Railroad Co. v. Bowser, 12 Wright 29. McConahy v. The Turnpike Road Co., therefore, so far as the point for which it is relied on by the plaintiff in error is concerned, may be considered as an overruled case.

It was held, however, in Pittsburg and Connellsville Railroad Co. v. Stewart, 5 Wright 54, that after the organization the company may stipulate with subscribers that they may pay in any manner mutually agreed upon, and then are precluded from enforcing the subscription in any other manner. But corporations like natural persons are bound only by the acts and contracts of their officers or agents within the scope of their authority : Angelí and Ames on Corp. § 297. There was no offer by the defendant to prove that any officer of the company duly authorized, did after the organization agree With him that his subscription of stock should be paid in services. The offer did not state what office Youngman held at the time, nor that he had authority from the corporation. The other offers upon the rejection of which errors are assigned were clearly immaterial.

Judgment affirmed.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Patton versus Long.
    1. Each county under the tax laws assesses and taxes all the lands found within its own boundaries.
    2. It is the duty of an assessor finding land lying partly in his own county and partly in another to ascertain its character whether seated or unseated.
    3. A tract lay in Centre county; by division of the county, part was thrown into Clearfield and was there sold as unseated for taxes. That taxes for the whole tract had been assessed and paid in Centre county, did not relieve the part in Clearfield from sale.

      4. Ellis v. Hall, 7 Harris 292, distinguished.
    March 27th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Clearfield county: No. 84, to January Term 1869.
    This was a.n ejectment commenced, December 22d 1865, by Benjamin F. Patton and Hays Hamilton against A. B. Long and others for a tract of 100 acres of land in Clearfield county, part of a survey of 406 acres surveyed in the name of William Wilson.
    After the commencement of the suit the plaintiffs. parted with their title; the case was prosecuted by Patton, one of the plaintiffs, for mesne profits, notice of the claim having been duly given to the defendants.
    The cause was tried, May 26th 1869, before Mayer, P. J.
    The plaintiff gave in evidence a survey, September 27th 1799, to William Wilson for 406 acres in Huntingdon county. On the 13th of February 1800, Centre county was erected out of Huntingdon county, putting the whole survey into Centre county. On the 26th of March 1804, Clearfield county was erected out of parts of Centre and Lycoming counties, throwing into Clearfield county the part of the 406 acres in dispute. The title of William Wilson, through a number of intermediate conveyances, became vested in the plaintiff, February 26th 1864.
    The defendants gave in evidence the assessments of Woodward township, Clearfield county, 1853, amongst others:—

      Dr. Alberti.
    “100. William Wilson. $100.”
    “ Treasurer’s land-book. 1847 to 1855.”
    “Woodward township. 1852 and 1853.
    “William Wilson. 100 acres,” &c.
    Deed, September 12th 1854, treasurer of Clearfield county, to A. K. Wright, for tract in name of William Wilson containing 100 acres.
    “ Triennial assessment 1859.
    “ 100. William Wilson. $125.”
    “ Treasurer’s land-book.”
    “ Taxes 1858 and 1859. William Wilson.”
    June 12th 1860, deed, treasurer, to Jonathan Brynton, “ 100 as William Wilson tract.”
    The titles of Wright and Brynton were vested in Long, defendant, before commencement of this suit.
    In rebuttal the plaintiff offered to prove the payment of taxes in Centre county of the whole tract for the years for which it was sold for taxes in Clearfield county; also to prove by Treziyulney, a surveyor, that at the instance of Dr. Alberti’s agent he went on to the land with the agent, and found the tract in Woodward township, and that it was not the land in dispute. Both offers were rejected, and bills of exception sealed.
    He then gave evidence by the assessor of Woodward township in 1853, that the assessment to Alberti was not in his handwriting. Goodlander, clerk of the commissioners, testified that the entry to Alberti in the duplicate of 1853 was not in the handwriting of himself nor of either of the commissioners.
    The court amongst other things said to the jury: * * * “ It is however contended by the plaintiffs that as they have shown by the assessor of Woodward township for the year 1853, that the entry of the valuation of the 100 acres of the William Wilson tract con tained in the assessment book is not in his handwriting, and was made without his knowledge and consent; and that the entry is not in the handwriting of the commissioners or their clerk; there is not sufficient evidence to support the sale, and we are asked to instruct you that the title acquired by A. K. Wright is void. We cannot so instruct you, but say to you [that assuming that the valuation contained in the assessment book of 1853 was made without authority; there is sufficient evidence contained in the unseated land-hook of the commissioners of an assessment of taxes for the year 1852 to support the sale, and pass a good title to the purchaser.”] * * * [“ Under the whole evidence in the cause we instruct you to find for the defendants.”]
    The verdict was for the defendants.
    The plaintiff took out a writ of error. He assigned his errors as follows:—

      May 8th 1871,
    1. “Rejecting the evidence of the assessment and payment of taxes on the whole tract in Centre county as set forth in the first bill of exceptions.”
    2. “Rejecting the evidence as to the identity of the land sold for the taxes as set forth in the second bill of exceptions.”
    3 and 4. The parts of the charge in brackets, which were set out in the assignments totidem verhis.

      H. B. Swope, for plaintiff in error,
    cited Gratz v. Hoover, 4 Harris 239; Ellis v. Hall, 7 Id. 297 ; Stewart v. Trevor, 6 P. F. Smith 382; Russell v. Werntz, 12 Harris 337; McReynolds v. Longenberger, 7 P. F. Smith 13.

      J. B. MeBnally, for defendants in error,
    cited Coxe v. Gibson, 3 Casey 160 ; Burd v. Patterson, 10 Harris 219; Caldwell v. Walters, Id. 378; Wells v. Smyth, 5 P. F. Smith 162; Crum v. Burke, 1 Casey 381; Miller v. Hale, 2 Id. 435; Laird v. Hiester, 12 Harris 462; Hubley v. Keyser, 2 Penna. R. 496; Fager v. Campbell, 5 Watts 287; Howard Express Co. v. Henry Wile, 14 P. F. Smith 201.
   The opinion of the court was delivered,

by Agnew, J.

The entire tract surveyed in the name of William Wilson lay in Centre county until the erection of Clearfield county in the year 1804, when about 80 or 90 acres were cut off by the county line. This part was sold for taxes in Clearfield county in the years 1854, 1860 and 1864, and deeds were made by the treasurer, under which the defendants claim title. The plaintiff, in order to avoid these sales, offered to show the assessment and payment of taxes for the entire tract in the county of Centre down to the bringing of this suit. The rejection of this offer is the principal error complained of. It is contended that the chief part of the land being in Centre county, the plaintiff was justified in returning and paying taxes fór the whole tract in that county. It is not pretended that there was an arrangement between the commissioners of these counties for the assessment and taxation of border lands by entire tracts. The question is therefore simply one of jurisdiction, and the proposition of the plaintiff really was, that Clearfield county had no jurisdiction to assess and tax this land. We know of no law for the taxation of unseated border lands by entireties in adjoining counties, and certainly there is no such general custom having the force of law. Each county in the Commonwealth has assumed, under the tax laws, to assess and tax all the lands found within its own boundaries. It required an Act of Assembly to cause seated lands to be assessed in the township in which the mansion-house is situate, where the land is divided by a township line: Act 11th July 1842, § 59, Pamph. L. 331. But the plaintiff in error refers to the case of Ellis v. Hall, 7 Harris 292, as containing a principle which should govern this case. It was there held that the character of a tract as seated was not changed by the running of a new county line which threw a portion of the woodland into the new county, and that the woodland thus cut off could not be assessed as unseated. A tract of land, it was said, is a term well understood, and a law to create a new county cannot be construed to effect a different purpose, and therefore will not change the character of the land for the purpose of taxation. But it was not decided, and not even said in that case, that the entire tract must continue to be assessed in the old county. The rights of the owner of the land will not be affected by the running of the new county line, and his land converted into separate tracts, one seated and the other unseated. But certainly each county may assess and tax so much of his land as lies within its own boundary, but in that case as seated land. It is the duty of the assessor, finding land lying partly in his own and partly in another county, to ascertain its true character before he assesses it. In the present case there was no evidence showing that the land was seated, and consequently the several parts of it would be assessed as unseated. We see no error in the rejection of the offer.

Neither the 1st nor the 2d error has been assigned in conformity to rule, and we need not to have noticed the 1st: Burkholder v. Stahl, 8 P. F. Smith 375. But as it contained the vital point of the case we have discussed it. We discover no injurious error in the 3d and 4th assignments. The error of the court in mistaking the treasurer’s hook for the commissioners’ of 1852 was harmless ; for there is quite enough in the sales of 1860 and 1864 to support the defendant’s title.

The judgment is therefore affirmed.


author: by Shauswood, J.

text:
    Hays et al. versus Quay.
    1. “Whereas I have purchased from Richards 100 acres which was intended for my sister Elizabeth, therefore I do acknowledge the receipt of $100 from my father to be paid to Richards on account of said land.” This created no trust for Elizabeth.
    2. Neither the intention of the brother when he bought the land, nor the receipt of money from his father for the purchase, raised a trust.
    3. The brother made a declaration of trust that his father had given him $300 to lay out in land from Richards for the use of Elizabeth, and promised in it to convey 50 acres, describing them, for her separate use; there was proof that he did not claim any of the land till after his father’s death, with other evidence to show a trust in the whole. It was competent for the brother to rebut the presumption of a trust in the whole by his own testimony that the receipt was a mistake in stating that all the land was for his sister, and by other testimony of an understanding in the family that hut 50 acres was to he in trust.

      4. The land was purchased at $6 per aere, the presumption was that the trust was for so much as the money, $300, advanced by the father would pay for, and the burthen was on the sister to prove that it was more thau 50 acres.
    5. The character and extent of the trust was to be ascertained by the jury, not only from the writings but from all the evidence written and parol.
    March 28th 1870. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Qlinton county: No. 66, to January Term 1871.
    This was an action of ejectment, commenced April 28th 1857, by Sarah Hayes and others against Joseph F. Quay, for a tract of about 50 acres of land.
    The legal title of the land was in the defendant; the plaintiffs claimed as heirs of their mother, Elizabeth Hays, a sister of the defendant, and they alleged that he had purchased it with money advanced by his father, Robert Quay, to be held in trust for Mrs. Hays.
    On the 17th of February 1834, William Richards by articles agreed to sell to the defendant a tract of land- of which that in controversy was a part, describing it somewhat minutely by ad-joiners and courses, supposed to contain 110 acres, for which the defendant was to pay $6 per acre, $300 to be paid May 15th 1835, and the remainder May 15th 1837.
    The defendant afterwards delivered the following paper to his father:—
    “Whereas, I have purchased from William Richards about one hundred acres of land, which was intended for my sister Elizabeth Hays, therefore I do this day acknowledge the receipt of one hundred dollars from my father, Robert Quay, to be paid to said Richards, on account of said land. Witness my hand, June 8th 1835. “ Jos. F. Quay.”
    On the 20th of December 1844, Richards, for the consideration of $750, conveyed the land to the defendant, describing it in the deed by metes and bounds, and stating that the tract contained 125 acres. After this conveyance the defendant executed the following declaration of trust:—
    “ Whereas, Robert Quay, in his lifetime, placed in my hands obligations against Samuel Graham for $800, and directed me to lay out the same in the purchase of land from William Richards, for the use of my sister, Elizabeth Hays, and I having purchased from said Richards 125 acres joining the Thomas Burck survey, it is my intention that the 50 acres shall be stricken off joining the Burck line, as follows: Beginning at a post-corner of the Alice Monroe survey (describing the 50 acres by metes and bounds), and to contain 50 acres, neat measure, and which lot or piece of land I promise to convey, by a regular deed of conveyance, to Thomas Brown, of Lamar township, Clinton county, in trust for the sole use and benefit of the said Elizabeth Hays, her heirs and assigns for ever; and should anything occur to prevent me from executing said deed of conveyance before the 1st of June next, I do hereby authorize and fully empower my executors or administrators to execute the same agreeable to the above courses and distances: Provided always, That before any such release is executed the said Elizabeth, her heirs or assigns, shall and do produce from John S. Furst a full discharge from being in any manner liable to pay him $150, for which amount I signed written obligations jointly with said Elizabeth, in the summer of 1844, that being the only obstacle to the immediate execution of said release.
    “Witness my hand and seal, this 4th day of January, A. D. 1845.”
    The defendant afterwards made another deed as follows: — ■
    “ This indenture, made the seventeenth day of December, A. D. eighteen hundred and fifty-three, between Joseph F. Quay, &c., of the first part, and Joseph F. Q. Hays, &c., of the other part, whereas my father, Robert Quay, did in his lifetime put into the hands of the said Joseph F. Quay the sum of $800, for the purpose of purchasing from and paying William Richards for 50 acres of land for the sole use and benefit of Elizabeth Hays, a daughter of the said Robert and Sarah his wife, and the said Joseph did accordingly purchase the land as aforesaid for the use of his sister the said Elizabeth, and at the same time he also purchased for his own use an adjoining lot of land from said Richards, and in making the title from said Richards to the said Joseph the whole of the purchase was included within the deed, and afterwards the said 50 acres of land were surveyed off for said Elizabeth, but she having died before any deed or release was executed to her for said land, therefore the same descended to her lawful heirs, to wit, &c., and it being agreed upon by and between the heirs aforesaid that the title shall be made to Joseph F. Q. Hays aforesaid in trust for the use of his brothers and sisters, therefore this indenture witnesseth that the said Joseph F. Quay, for and in consideration of one dollar, &c., * * * has granted, &c., untó the said Joseph F. Q. Hays, in trust for the sole use, benefit and behoof of his brothers and sisters within named, all that certain lot or piece of land, &c., * * * containing 52 acres and 100 perches, neat, and which is a part of a tract of land which William Richards by deed dated December 20th, A. d. 1844, &c., granted and confirmed to said Joseph F. Quay,” &c. * * *
    The cause was tried May 19th 1869, before Elwell, P. J., of the Twenty-sixth District, when the foregoing instruments were given in evidence. The plaintiffs called their father, Gilbert Hays, the husband of Elizabeth Hays, who testified that he took possession of the 100 acres, and occupied the tract till the death of Robert Quay the father, in 1836, without claim by the defendant till then; cut logs on the part (10 or 12 acres), which the defendant afterwards took; subsequently a line was run between the two parcels, leaving the 10 or 12 acres on defendant’s side ; the line was marked in 1847, and both parties have farmed up to that line since.
    H. Snyder testified that the defendant said the 100 acres were for his sister, and he had to give his sister $600, or half of it; witness cleared 10 acres of land on it for ITays. There was also evidence that the defendant had acknowledged that the land had been bought for the sole use of his sister and her heirs.
    There was other evidence by plaintiffs to sustain their case.
    The defendant read the testimony of John Quay, a son of Robert Quay, taken upon commission. Amongst other things he said—
    “I don’t recollect being present at any agreement touching the land in question, but I heard much family conversation about the purchase from my father, brother Joseph, sister Elizabeth Hays, and her husband Gilbert Hays, and from those conversations I always understood that my sister Elizabeth was to have 50 acres only of the purchase from Richards, which was to adjoin the place she lived on; and as to paying for the 50 acres, Robert Quay had an agreement with Samuel Grimes, Jr., to sell him a claim to some land up the river for $300, which was to be applied to paying for the 50 acres for Elizabeth Hayes. From the time of the purchase of the lands from Richards up to the death of Robert Quay, he had not any means to apply to the payment of the 50 acres of land except the money from Grimes, for he had very little money in hand, and no means of making any.”
    This part of the deposition was objected to by the plaintiffs, admitted by the court and bills of exception sealed.
    The defendant testified that after some wrangling with his father about the sum for which the receipt of June 5th 1835 was given, father “ went and got the $100 and threw it down on the table and said, ‘now give me a receipt;’ I took up a piece of paper and' wrote that receipt of 8th June 1835, which has been exhibited here; being agitated and angry I wrote one hundred acres instead of fifty, as I intended to do ; we were both angry; this was more than a year after I bought the land; right away after buying I went on and took possession of the northern part of the 100 acres, and told Hays to go to work on the southern part next to where he lived; we worked on in that way; the land that Hays had was harder to clear, and he worked on that; it went on so for two years, till I put Snyder on; I leased to Snyder 50 acres for eight or ten years on an improving lease; he was on from spring of 1838 to spring of 1849 ; after Snyder had been on a year or two,. either one, or both, suggested there ought to be a line or boundary to clear to; Hays cleared to that line and over, and Snyder cleared a good deal on Hays’s part; went on in that way till 1847; in 1847 laid off Hays’s part, 53 acres- and some perches; Hays was along when we laid it off; no kind of objection was made; Hays carried chain or blazed the line; we run round the whole 50 acres; Henry Snyder carried one end of the chain; I made one half of the division fence and Hays the other, and we farmed on until 1857; did not know of any difficulty at all till the sheriff came with the ejectment; the line of 1847 was the one Platt found; we found the line established for clearing to was 10 or 12 rods down, and Hays had cleared to it; Hays said, ‘ here is land that I cleared and I have not got three crops off from it;’ and I did not care and he done so; he had had one crop; after he abandoned it I went and moved the fence on to the line; in January 1845, I was about going to Harrisburg; my sister came to my house early in the morning and said, ‘ you are going to Harrisburg and I have nothing to show for that 50 acres of land;’ she wanted something under my hand to show that she should get the land, and I sat down and wrote that paper (paper dated 4th January 1845), and gave it to her; that paper stipulated about the debt to Mr. Furst. In 1853 Abraham Best was pressing Hays for a debt, and he levied on the whole 100 acres; Joseph Hays said Best was going to sell them out, and he wanted me to make deed of the 50 acres, and he said the rest were willing he should take the deed in trust; I made the deed, but would not make it till I had been released from the obligation I had signed with my sister Elizabeth to Mr. Furst.” * * *
    John S. Furst testified: “I had a paper from Judge Quay, sent from Harrisburg; when he came home we went to see his sister Elizabeth; it was there stated what the judge had done in giving security to me for her benefit; she was sick in bed; he wrote on that paper or another, in which she approved his doing it; think she signed the paper, at least she approved it. In the first place, Judge Quay wrote me that he had the title to 50 acres; that he could make the title to his sister or not if he chose, but that he would not convey to her or any one else, if I would advance $> 150 for the benefit of Mrs. Hays’s family, until I was secured; this was the letter from Harrisburg; when we went out to her house he wrote, as stated, on that letter, or another paper, and she approved or signed it; she was informed what was written.”
    The plaintiffs’ points were:—
    1. “ The article of agreement between William Richards and the defendant, dated February 17th 1834, and the receipt or acknowledgment of defendant, dated June 8th 1835, stating that the land bought by him from William Richards was intended for his sister Elizabeth Hays, and that he received $ 100 from his father to pay on account of the land, are together a valid declaration of trust in writing unaffected by the Statute of Frauds; and if the receipt was made without mistake, the subsequent deed from William Richards to the defendant, dated 20th December 1844, vested the legal title to the land in dispute in the defendant in trust for Elizabeth Hays, the mother of the plaintiffs.”
    2. “ In this action the testimony of Joseph F. Quay that ‘ one hundred’ acres was written in his acknowledgment of the 8th of June 1835, by mistake, instead of ‘ fifty’ acres, is, alone, insufficient to prove that any mistake was made.”
    The court charged: * * *
    “ We also refer you to the testimony of Mr. Furst as to the writing in regard to the land, as 50 acres given to him by defendant, with the approbation of Mrs. Hays; and also the evidence in regard to" the possession, occupying and improvement of portions of the land purchased of Richards,'separately, by the parties. It is contended by the counsel of the plaintiffs that the purchase of Richards by defendants in 1834, with the receipt of 1835, constitute a valid declaration of trust for the whole 125 acres contained in the Richards deed, and that the legal title was held by defendant in trust for Mrs. Hays, their mother, while she lived, and since her death, for the plaintiffs, her heirs. On the part of the defendant it is denied that such is the legal effect of these instruments. It is alleged that the word one hundred acres was inserted in the receipt by mistake, instead of fifty acres; it is alleged that defendant received for Mrs. Hays but $300, the price of 50 acres, and that in her lifetime the whole matter was settled and the 50 acres set aside to Mrs. Hays, and taken possession of by her. [In my opinion, the rights of the parties do not depend wholly upon the articles of agreement with William Richards and the receipt of the defendant to his father. The real character and extent of the trust is to be ascertained from those writings in connection with the declaration of trust produced here by the plaintiffs, dated January 4th 1845, the writing before mentioned, testified to by Mr. Furst, the admissions of the parties, their separate possession of parts of the land, the alleged division lines run between them, and all facts tending to show the amount of money belonging to Mr. Hays and inserted in the purchase of the land.] [Mrs. Hays was entitled to no more land than her money would purchase at the price agreed upon; her equitable right or title to or in the land was proportioned to the amount of money furnished by or for her to the defendant, with which to make the purchase. The defendant was not bound to advance $450, with interest upon it till paid, for the benefit of his sister; but he was bound in equity to give her an equivalent in land for the Graham debt, or other money received from her father or from her to be invested in land.] Having acknowledged in writing that the land which he had purchased was intended for his sister, he was bound to carry out the arrangement in good faith; but he was not bound, either legally or equitably, to advance money for her benefit beyond the assets placed in his hands. [If the arrangement was that the Graham debt of $300, due to old Mr. Quay, should be invested by the defendant in land for Mrs. Hays at the price paid Richards per acre, and the number of acres was by mistake inserted in the receipt of defendant as one hundred, when it should have been fifty; if the sum of $300 was all the money invested for her in the purchase, and if she received the stipulated number of acres, and with her husband occupied the same till her death, and her heirs have continued in possession until this time, the plaintiffs have no title nor equitable interest in the residue of the land purchased of Richards.] [In determining the question whether there was or not a mistake in the receipt, you will not be governed alone by the testimony of the defendants, but you will consider all the evidence in the case bearing upon that point — the receipt itself, the other writings before referred to, the acts and admissions of the parties, and every other fact which may tend to corroborate or impeach the direct evidence of mistake, will be remembered and carefully considered by the jury.] [The acceptance of the deed of 1853 by Joseph F. Q. Hays, one of the plaintiffs, for the 50 acres (set apart to Mrs. Hays) in trust for himself and the other plaintiffs, is not conclusive upon the subject of the extent of trust. It is, however, evidence against the party accepting the deed, and all the other heirs of Mrs. Hays who were at the time of age, and who had knowledge of and assented to the lines made.] In conclusion we submit the case as follows: [If the jury believe there was no mistake in the receipt of the defendant, then Elizabeth Hays had an equitable interest in the land equivalent to the money furnished' by her or her father to the defendant to be invested in it. The burden of proof is upon the plaintiffs to satisfy the jury as to the amount. The plaintiff set up an equitable title against the legal title of the defendants; it is, therefore, incumbent upon them to establish the facts which create that equity and fix its value.] If such equivalent has not been already received in the land, in possession of plaintiffs, they are entitled to receive such proportions of the residue of the Richards purchase as, at the price paid, will give to them their full share of the land. If, however, the jury believe that the receipt was by mistake made to read one hundred acres instead of fifty, and that the latter quantity was fairly set off to Mrs. Hays, she furnishing but $300 of the purchase-money to Richards, their verdict should be for the defendant. [If the parties, with a full knowledge of their rights, settled and adjusted this matter between themselves, and land was set apart to Mrs. Hays as her share of the Richards purchase, although she was a married woman at the time, she would be bound by such adjustment, and her heirs cannot annul her agreement.] Several points have been presented by the counsel for the plaintiffs, but as they are fully answered in the charge just given, we will not repeat the answer to each point separately.”
    The verdict was for the defendant.
    The plaintiffs removed the record to the Supreme Court by writ of error, and assigned for error:—
    1, 2. Not affirming plaintiffs’ points.
    3-9. The parts of the charge in brackets.
    10-12. Admitting the testimony of John Quay contained in the bills of exception.

      S. R. Peale and J. W. Comly, for plaintiffs in error.
    The Statute of Frauds does not require that a trust shall b’e created by writing, but it shall bq proved by writing, which may be subsequent to its commencement: Forster v. Hale, 3 Ves. 696, also note a; 4 Kent’s Com. 343. The testimony of the defendant alone is not made by the Act of 1869 equivalent to the chancery proof; this must be two witnesses: Gressly’s Eq. Ev. 4. Equity will not reform an instrument on the ground of mistake unless the evidence of the mistake is satisfactory and clear, precise and indubitable: Irwin v. Shoemaker, 8 W. & S. 75; Rearich v. Swinehart, 1 Jones 233; Moser v. Libenguth, 2 Rawle 428; 1 Story’s Eq. §§ 152, 153; Gressly’s Eq. Ev. 205. The nature of the trust can be ascertained only by the papers, and cannot be changed by the admissions or declarations of either trustee or cestui que trust, or by their acts : Hamilton v. Neel, 7 Watts 517; Edwards v. Edwards, 3 Wright 369. A trustee cannot so act in relation to the trust as to make any benefit for himself against the cestui que trust: Note to Keech v. Sandford, and the authorities referred to, 1 Lead. Cas. Eq. 91. If the proof was insufficient the court should have withdrawn the question of mistake from the jury: Stine v. Sherk, 1 W. & S. 195; Miller v. Smith, 9 Casey 386. Under the circumstances, equity would have set aside the arrangement with Furst: Schoch’s Appeal, 9 Casey 351; Delameter’s Estate, 1 Whart. 375.

      S. Linn, for defendant in error.
    The plaintiffs’ rights would be in proportion to the amount of money received from Robert Quay: Kissler v. Kissler, 2 Watts 324; Peebles v. Reading, 8 S. & R. 484; Halsey v. Tate, 2 P. F. Smith 314; Bottsford v. Burr, 2 Johns. Ch. R. 405; 4 Kent’s Com. 306; Gillespie v. Moon, 2 Johns. Ch. R. 585. The division line having been defined in the instrument of January 4th 1845, having been run and marked upon the ground in 1847, and ever after acquiesced in by the parties by building thereon a line fence, and clearing up to it on either side, Mrs. Hays, although a married woman, would be bound by it: Brown v. Caldwell, 10 S. & R. 114; Beeson v. Beeson, 9 Barr 299; McMahan v. McMahan, 1 Harris 380; Williard v. Williard, 6 P. F. Smith 119.
    May 8th 1871,
   The opinion of the court was delivered,

by

Shauswood, J.

It will be entirely unnecessary to examine separately the twelve assignments of error. They all depend upon a single proposition. The corner-stone of the case of the plaintiffs is the assumption that the receipt or acknowledgment of the defendant, dated June 8th 1835, was a valid declaration of trust in writing for the land described in the agreement of February 17th 1834 between him and William Richards. If tljis corner-stone crumbles, with it falls the whole superstructure built upon it. This receipt or acknowledgment is in these words: “ Whereas I have purchased from William Richards about 100 acres, which was intended for my sister Elizabeth Hays, therefore I do this day acknowledge the receipt of $100 from my father Robert Quay, to be paid to said Richards on account of said land.” Had the plaintiffs rested their case after giving in evidence this paper, it is too plain for argument that they would have made out no title. That Joseph F. Quay intended when he bought the land to give it to his sister Elizabeth, would have raised no trust for her, and that he had received from his father, Robert Quay, $100 to pay on account of his purchase, without further explanation, would not help the matter. The learned counsel for the plaintiffs saw this, and therefore went on to give other evidence. They produced an instrument executed by Joseph F. Quay, dated January 4th 1845, which was indeed a declaration of trust, reciting that “ Whereas Robert Quay, in his lifetime, had placed in my hands obligations against Samuel Graham for $300, and directed me to lay out the same in the purchase of land from William Richards for the use of my sister Elizabeth Hays,” and proceeding to promise a conveyance to a trustee for her separate use of 50 acres, describing them. The plaintiffs then produced Gilbert Hays, the surviving husband of Elizabeth Hays, who testified that the defendant made no claim to any part of the land until after his father’» death; and also Mary Snyder, who testified that the defendant had-told him that “ he had bought 100 acres of Bill Richards, and that he had to give his sister $600 or half of it.” After some other evidence, not material to the points now in dispute, they closed. Now if this parol testimony meant anything it was an attempt to disprove the recital contained in the declaration of January 4th 1845, which they had themselves given in evidence, and to explain the receipt of June 8th 1835, which, without all this, would have been of no avail to them. It was surely then competent for the defendant to rebut it not merely by his own testimony as to the facts, and that the receipt of June 8th 1835, in stating that the whole land was intended for his sister, was a mistake, and to corroborate that by the deposition of John Quay — that he had heard “ much family conversation about the purchase from (his) my father, brother Joseph and sister Elizabeth Hays, and from those conversations I always understood that (his) my sister Elizabeth Hays was to have 50 acres only of this purchase from Richards, which was to adjoin the place she lived on,” and as to paying for the 50 acres, Robert Quay had an agreement with Samuel Grimes, Jr., to sell him a claim to some land up the river for $300, which was to be applied to paying for the 50 acres for Elizabeth Hays.” After a very long lapse of time a witness could scarcely be expected to testify to a conversation or conversations more particularly, and it was open to the plaintiffs to cross-examine him in regard to the same.

Upon this state of the evidence we think that the law was accurately and properly laid down by the learned judge below in his charge to the jury, and that the points of the plaintiffs were in substance truly answered. That this may be done has been more than once held in this court: Patterson v. Kountz, 13 P. E. Smith 250, and cases there cited. Certainly upon this evidence there could be no trust for Elizabeth beyond the quantity of land which her father had paid for her, and the burden of proving that it was greater than was admitted in the declaration by the defendant of January 4th 1845 was upon the plaintiffs. The real character and extent of the trust was to be ascertained by the jury, not from the article of agreement with William Richards and the defendant’s receipt alone, but from all the evidence in the cause, written and parol, the greater part of which had been admitted without objection to its competency. We are of the opinion, therefore, that none of the assignments of error have been sustained.

Judgment affirmed.


author: by A&new, J.

text:
    The Pennsylvania Railroad Co. versus Berry.
    1. A carrier may bind himself to transport goods beyond his own route and thus become responsible for the default of those he employs to carry the remainder of the distance; but the proof of the contract should be clear, especially when it would contradict the papers accompanying the transaction.
    2. Where the charge as a whole tends to mislead the jury it is error.
    3. A charge which misleads differs from a mere omission to instruct.
    4. Wheeler v. Winn, 3 P. P. Smith 122, approved.
    March 28th 1871. Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Warren county: Of January Term 1871.

      E. H. Berry brought an action of assumpsit against The Pennsylvania Railroad Company (which is lessee of the Philadelphia and Erie Railroad), for the loss of household goods stolen from a car in which they had been placed for transportation from the town of Warren to Tidioute.
    The writ was issued November 20th 1868, and the case was tried, September 13th 1870, before Johnson, P. J.
    The goods lost, with their value, as testified to by plaintiff’s wit-
    nesses, were as follows: — ■
    Cask of China ..... $125.00
    .Box of Books and Pictures . . . 100.00
    Table, $5; 5 Cane Chairs, $1.50 each . 12.50
    3 Hair Cloth Chairs, $6 each . . . 18.00
    1 Green reps. Greenland serges . . 10.00
    3 Kitchen Chairs, $1 each ... 3.00
    The goods had to be transported on the Philadelphia and Erie Railroad to Irvineton, thence on Oil Creek and Allegheny Valley Railroad to Tidioute.
    The plaintiff testified that on April 1st 1868, he made a contract with Gemmil, the agent of the defendants, to transport his goods to Tidioute without change of cars, and selected a car of proper gauge to go on the other road; the goods to be charged more on that account. On the 3d of April the car was at Irvine-ton ; on the 4th, Saturday noon, it was at Tidioute; he paid charges there, but could not unload that day; the clerk and plaintiff looked into the ear, all was dry and right. On Monday he again deferred unloading. On Tuesday he unloaded, and worked till night without taking out all the goods; locked the car and left. On Wednesday he missed the articles mentioned in the list: on that morning nothing appeared to be disturbed. On Saturday he saw the box of books, dining-table and box of bedding in the car, but did not see the cask of china. He gave other evidence of the loading of the goods and their value. Gemmil, the agent of defendants, testified that the plaintiff wanted a car to go through and not require the goods to be transferred; witness got him one loaded. On cross-examination he said he gave a receipt to Waid, whom the plaintiff had employed to haul the goods to the car, and took a release from Waid. The defendants had business arrangements with the other company, to run to and over their road, and collect track freights; the arrangement was, if there was one car only used, the freighter was to pay car service; the plaintiff wanted a car that would save the transfer of the goods. Witness made no arrangement that the defendants should carry the goods to Tidioute.
    The defendants gave in evidence Waid’s release to defendants for a “lot of H. H. goods from Warren station to Irvineton, consigned to E. H. Berry, Tidioute,” and to all other companies over whose line the goods should pass, from damage from leakage, decay, chafing, breakage, damage by fire or from any other cause not the result of the collision of trains or of the cars being thrown off the track. This contract to be executed by shippers of light furniture, household or miscellaneous goods.
    The manifest was dated April 3d 1868, viz.:
    “ Merchandise forwarded from Warren to Irvineton“ Marks; Tidioute, Pa.” — “Consignee; E. H. Berry” — “Description; lot of H. H. goods (released)” — “Amount of freight $7” — Expenses $1” — “ To be collected $8.”
    The manifest went with the goods and car.
    The receipt stated that “as/part of the consideration of the contract,” the defendant should not be responsible (amongst other things), for theft nor in any event for more than $50; when goods are intrusted to any other company, that company shall be regarded exclusively as the agent of the owner and alone liable. The responsibility of the company to commence with the shipment and terminate with unloading the car. The receipt attached was as follows:—
    “ Received of E. H. Berry the following, contents and conditions unknown, to be carried and delivered upon the terms, and according to the agreement above specified, at the Irvineton station of the above railroad.
    Marks. No. and Alleged Contents.
    E. H. Berry, Lot H. H. Goods.
    Tidioute. Released.”
    The defendant further- gave evidence that the car and goods arrived at Irvineton between 10 and 11 o’clock A. M., of April 3d, and the car was transferred to the other road about 2 p. m. of the same day. Also, that when the plaintiff came to see about the goods he was told they would have to be rehandled and transferred unless he was willing to pay car service, and to that he agreed; the car was loaded nearly full between the doors, the chairs being on top. Plaintiff looked at the car at Tidioute on Monday, there was no reason why he might not have taken them that day.
    The plaintiffs points were:—
    1. Whether the defendant did or did not contract to deliver the goods in suit at Tidioute, they are responsible for any loss occurring while the goods were in their custody, and the goods having been received by defendants and lost, they can only exempt themselves from liability by showing to the satisfaction of the jury that the loss occurred after their custody had ceased.
    2. The defendants having received the plaintiff’s goods and the same being lost, the presumption of law, in the absence of proof to the contrary, is that they were lost through the default of the defendants.
    The court after referring to the facts said: * * *
    “ Now, from this state of facts, the plaintiff asks you to say that the defendant entered into a special contract with him to transport these goods to Tidioute and is therefore liable to him for the larceny committed upon them during their transit.
    “ In addition to the evidence mentioned, it was also shown and not denied that these two roads were connecting roads and had business arrangements by which freight was received at any point on the one to be transported to any point on the other, with and without change of cars, and that in such cases, as in this one, the charges are not to be paid to the several roads over which the goods pass in their transit, but paid in gross at either end of the route to either, each road charging the other for the amounts so received.
    “ Inasmuch as this transaction was not put in writing, it is for you to say whether the Pennsylvania Railroad Company did undertake by contract, express or implied, to transport the plaintiff’s goods to Tidioute or only to Irvineton. The agent here distinctly disavows the intention of making any contract that would bind his principal, the defendant, further than Irvineton for the safety of the goods.
    “If the transaction was such as to create an obligation on the defendant to carry the goods to their destination, either by its own motive power or that of another, then it would be liable for losses occurring as this one did.
    “ It is not questioned but that the agent here had power so to contract and bind the company, and we say he had the power.
    “ Did he, by contract express or implied in the peculiar character of this transaction, so engage ? It was out of the usual course of business. The usual bill of lading itemizing the goods received, specifying Irvineton as the end of their liability therefor and the usual precautionary conditions and exemptions from liability, was omitted in this instance, and it was agreed for a consideration, that the defendants’ car should carry the goods to their destination without transhipment.

      “ Does all this contain an express contract, or the legal implication of one, that the defendant would transport the goods to Tidioute and deliver them safely to the consignee, who was the plaintiff himself? If so, of course it would be bound to do so, or be liable for not doing so, unless excused by some sufficient reason.
    “Just here come in the points to which the plaintiff’s counsel has invited our attention: * * *
    “ I think the doctrine presented in these points is essentially correct. The plaintiff put the goods into the custody of the defendant — an admitted common carrier — and fails to receive them again. Pie.has no knowledge or means of acquiring knowledge of how they were lost.
    [“' I think the burden of proof is on the defendant to show by what means they were lost, or at least to show affirmatively that it was not through any default or negligence of its agents, or while the goods were in its possession or custody.]
    “This is independently of the fact whether the defendant was bound by contract to carry them itself to Tidioute or see that it was done. If this be correct, then it becomes your duty, in case you are not satisfied there was a contract, to inquire, whether the defendant has shown satisfactorily that the larceny of the goods was not committed until after they passed out of its possession and control, that is, not until after they were received and taken into custody by the O. C. & A. R. R. Oo. If not, then the defendant would be responsible for the deficiency. Having charged and collected pay for the faithful and full performance of duty at the end of the route, no less should be required of it than to show affirmatively where and how the loss did occur, to exempt itself from the legal presumption of negligence, and afford the plaintiff the means of redress.
    [“ A formal receipt of another party, taken in the usual course of business, upon the transfer of goods, is not sufficient, especially when the evidence does show affirmatively that no itemized bill of lading accompanied them and no examination of them was made to discover the fact of loss. The receipt of the receiving company, given under such circumstances, would not be conclusive.]
    “ The question of the liability of a railroad company for goods billed and shipped to a point beyond the terminus of its line of road, is not fairly raised in this case, because there was no bill of lading or receipt given. Where there is a business connection between the different companies throughout the route and the consignor has reason to believe that the company to whom he delivered the goods held themselves out as responsible for the entire route, he will be entitled so to hold them. The rule is well settled in the English courts that where a railroad company receipts property destined and directed to a point beyond the termination of their own road, they are bound to deliver it at the place of destination, without a stipulation to that effect. * * * [Such a rule is the only one consistent with the safety of the citizen and consignor, with common honesty and fair dealing, and the demands of this progressive age.]
    “ In this case, if you believe these goods were shipped under a special contract to be transported to Tidioute, [or with the reasonable and fair understanding by plaintiff that the-Penna. R. R. Co. was to be responsible for their delivery there, then the defendant would be and is responsible for their non-delivery, unless they have shown affirmatively and clearly how the goods were lost, and that it was without any fault or negligence on their part.”]
    May 8th 1871,
    The verdict was for the plaintiff for $309.15. The defendants took a writ of error and assigned for error, the parts of the charge in brackets, and the affirmance of the plaintiff’s first point.

      J. R. Thompson, for plaintiffs in error,
    cited Horne v. N. Y. & N. H. Railroad Co. 23 Conn. 502.

      W. JD. Brown (with whom was J. A. Neill), for defendant in error,
    cited Britnal v. Saratoga Railroad, 32 Verm. 665; Beckman and Johnson v. Shouse, 5 Rawle 189; American Express Co. v. Sands, 5 P. F. Smith 140; Hawkes v. Smith, 1 Car. & M. 72; Morse v. Brainard, 8 Am. L. Reg. (N. S.) 604.
   The opinion of the court was delivered,

by A&new, J.

In view of the evidence certified to us by the judge who tried this cause, his charge was not entirely free from error. A carrier may bind himself to transport goods beyond the terminus of his own route and thus become responsible for the default of those he employs to carry the remainder of the distance, as we decided in Balt. & Philad. Railroad Co. v. Brown, 4 P. F. Smith 77; but the proof of the contract should be clear. Especially should this be the rule when the alleged contract would contradict the papers accompanying the transaction. The testimony of the plaintiff in this case was not clear on this point. He desired his furniture to be carried from Warren to Tidioute without transhipment, and spoke to the agent of the defendants for a special car to run through. The agent agreed to furnish the car, but denies any contract to carry the goods beyond Irvineton, the point of connection between the Philadelphia and Erie Railroad and the Oil Creek and Allegheny Valley Railroad. The plaintiff testifies that the contract was that the goods should go through to Tidioute without a change of cars, and that they should be charged -a heavier rate for this advantage. The agent of the defendants explains this to be for oar service. Now there is nothing absolutely inconsistent between this statement of plaintiff and that of Gremmil the agent. The ear might be readily furnished to go through at a higher rate for car service, and yet without a contract to carry the goods beyond Irvineton. The manifest accompanying the goods is expressly from Warren to Irvineton. The sum charged in the manifest is but $8, which is proved to be the rate to Irvineton only, the residue of the freight being the charge from Irvineton to Tidioute. The release signed by Waid, who hauled the goods for the plaintiff, expressly states, “ a lot of goods from Warren station to Irvineton.” The copy of the receipt which G-emmil says he thinks he handed to Waid for the plaintiff when he gave the release, is express in its terms, “ to be carried and delivered upon the terms and according to the agreement above specified at Irvineton station on the above railroad.” Waid does not remember having taken the receipt, yet is not certain. Now, while the learned judge did not err in submitting to the jury the question of the contract on the plaintiff’s testimony, as its purpose was to be determined by them, yet it is clear he did not present the case so as to enable them to understand the true character and effect of the evidence. In this respect his charge was insufficient and tended to mislead.

We think he erred also in charging upon the receipt given by the Oil Creek and Allegheny Valley Railroad Co., upon the transfer of the goods at Irvineton. While, as he stated, the receipt alone would be insufficient to account for the loss of the goods, yet he coupled this statement with an allegation that the evidence showed affirmatively that no examination of the goods had been made to disprove the fact of loss. This and other portions of the charge were calculated to leave the impression upon the minds of the jurors that the case was really barren of evidence tending to show when and where the goods were lost, and thus to cast the responsibility upon the defendants. But there were circumstances strongly favoring the defendants, if their contract for carriage ended at Irvineton. The goods left Warren at 9 o’clock A. M. of the 3d of April 1868, reached Irvineton between 10 and 11 o’clock of that day, and were transferred to the custody of the Oil Creek and Allegheny Valley Railroad Co., at 2 o’clock p. m. That all the goods were placed in the car at Warren, appears tobe pretty certain. It is not probable that the articles lost were taken out in the daytime before the transfer of the car to the custody of the Oil Creek and Allegheny Valley Railroad Co. The car reached Tidioute the next day, which was Saturday, the 4th of April. The plaintiff himself admits in his testimony'that he looked into the car on Saturday to see whether the goods were dry, and then saw the box of books, dining-table and box of bedding. Now the box of books and table were among the missing articles on the following Wednesday. It is evident, therefore, that these goods were taken out or stolen from the car after its arrival at Tidioute, rendering it probable that the others were also taken there. The plaintiff recovered for the books and table as well as all the other articles lost. Had the question upon the contract for carriage been properly submitted to the jury and found by them -to end at Irvineton, it is obvious there was ample evidence to go .to the jury tending to show that the loss occurred .after the goods came into the hands of the Oil Creek and Allegheny Valley Railroad Co.; yet the tendency of the charge was to impress the jury with the belief that the loss was unaccounted for and that the responsibility for them lay upon the defendants. Taking the charge as a whole it tended to mislead the jury, and this, as has been repeatedly said, is error: Gregg v. Jamison, 5 P. F. Smith 468; Phil. & Read. R. R. Co. v. Spearen, 11 Wright 303; Garrett v. Gonter, 6 Wright 146; Bailey v. Fairplay, 6 Binney 455, 466 ; Reeves v. Del., Lack. & West. Railroad Co., 6 Casey 454; Harrisburg Bank v. Forster, 8 Watts 304; Relf v. Rapp, 3 W. & S. 21; Hersheaur v. Hocker, 9 Watts 455; Parker v. Donaldson, 6 W. & S. 132; Bovard v. Christy, 2 Harris 267; Nieman v. Ward, 1 W. & S. 68; Keyser v. Evans, 6 Casey 507. I have collected these cases to show that the rule in recent decisions to reverse, when the effect of the whole charge is to mislead the jury, is not a novel one. It grows out of the Pennsylvania mode of bringing up the charge of the judge under the Act of 24th February 1806, reinforced by the Acts of 15th and 17th April 1856. It is ignorance of this mode which misleads those whose experience has never travelled out of the bill of exceptions given by the statute of 13 Edward II., chap. 31. The practice in this state, which under the Act of 1806 incorporates the charge into the record itself and enables an assignment of error to be made to it without any bill of exception whatever, is so well stated by Woodward, C. J., in Wheeler v. Winn, 3 P. F. Smith 122, no further comment is necessary. I may add, however, the following references to show the difference between the practice under the English statute and the Pennsylvania acts : Downing v. Baldwin, 1 S. & R. 298; Brown v. Caldwell, 10 Id. 114; Bailey v. Fairplay, 6 Binney 455, 466; Reigart v. Ellmaker, 14 S. & R. 121; Munderbach v. Lutz, 14 Id. 125. Under the Act of 1806, the evidence comes up under the certificate of the judge, the counsel being bound to make it up and present it for signature, the judge deciding what the evidence was when the counsel differ as to it. Thus the whole case is really before this court in the evidence and charge (as in the present instance), and the effect of the charge brought into view; and when it clearly tends to mislead by drawing the minds of the jury away from the true point of inquiry, or by putting aside a material aspect of the case, judicial notice will be taken of it. A charge which misleads differs from a mere omission to instruct: 6 Wright 146; 6 Casey 460. Justice demands this, and that it is the true purpose of every trial to reach.

Judgment reversed, and a venire facias de novo awarded.