text:
    Graver versus Fehr.
    1. A summary proceeding given by statute is in derogation of the common law, and where advantage is taken of such, proceeding, the necessary jurisdiction must appear on the face of the record or the proceeding is coram non judice and utterly void.
    2. Where it does not affirmatively appear that a certain rent was reserved, a justice of the peace has no jurisdiction under the Landlord and Tenant Acts.
    3. The limitation of twenty days within which a certiorari must be sued out, does not apply where it is apparent the justice has no jurisdiction.
    4. The Act of 1810 does not apply to the summary process for obtaining possession of leased property under the landlord and tenant acts.
    5. Lacoek v. White, 7 Harris 495, and Rubicum v. Williams, 1 Ash. 230, followed.
    March 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 20.
    This was a proceeding by Morgan W. Eehr against Charles Graver, trustee, before a justice of the peace to recover possession of certain premises from the defendant, who, the plaintiff alleged, held them under him as his tenant by virtue of a lease in writing. During the progress of the case, both parties appeared on several occasions before the justice. On December 5th 1877, judgment was given in favor of the plaintiff and a writ of possession issued. The record of the justice, after describing the premises, set forth that the plaintiff “ did demise the said premises during the will and pleasure of Morgan W. Fehr to Charles Graver, trustee, for his wife Melinda Graver, the tenant now in possession, and that the said Charles Graver, trustee as aforesaid, entered into possession of said premises by virtue of said lease in writing and held the same, and that the said term for which the premises were demised is fully ended.” There was also a statement of denial and notice, and that the defendant had refused to deliver possession. The writ of possession was superseded on the same day it issued by a writ of certiorari taken by the defendant. ■ ■ After argument this writ was quashed by the court, and an alias writ of possession was issued by the justice on January 28th 1878. The constable then made return on Januai’y 29th that possession of the demised premises had been given to the plaintiff, and that defendant had “no goods.” A second certiorari was issued February 26th 1878, and the following, among other exceptions, were filed to the proceedings of the justice:
    1. The complaint in this action does not contain the legal requirements to authorize the justice to institute proceedings; it does not allege that there was a certain rent reserved, and a demise during the will and pleasure is not sufficient.
    2. The justice had no jurisdiction from the inception of these proceedings, for the reason that there was no rent reserved, in the alleged contract or lease at will, and upon this the finding or record of the justice is conclusive.
    3. Lapse of time will not correct the justice’s record, it being void for want of jurisdiction.
    The court dismissed the exceptions and affirmed the proceedings of the justice in an opinion, saying:
    “That the justice had .jurisdiction of the subject-matter and the parties cannot be doubted. It is claimed, however, that in this particular case, the record made by the justice shows no amount of rent reserved. This was known when the first writ of certiorari was taken, which was in time,' with full knowledge of all the facts. Can the defendant, after having failed in his first writ of certiorari lay by till nearly a month after possession has been given under the alias writ of possession, and then issue his second writ of certiorari, on the ground that the omission of the justice to specify a rent reserved ousted his jurisdiction ? If so, how often in the same case, and at what indefinite length of time may he avail himself of the privilege ? The judgment here was not obtained by trick or fraud, and is not within the cases which decide that a party may issue his certiorari where more than twenty days have elapsed, provided he takes action within twenty days after the facts have come to his knowledge. Counsel for the defendant strenuously resisted the offer made by counsel for plaintiff to submit the written agreement to the court, for the reason that the record of the justice alone must govern, and the written contract recited by the justice was therefore withheld. Our impression is that the defendant has been guilty of such laches as gives him no right to now invoke the powers of the court. He refused to appeal in the proper time, and if he can succeed in his present effort, it will lead to a very troublesome line of practice which we are not willing to inaugurate, unless in obedience to the mandate of a superior power.”
    The action of the court was assigned for error by defendant who took this writ.

      W. D. Seltzer and Benjamin Gumming, for plaintiff in error.—
    The Act of 14th of December 1863, Purd. Dig., p. 882, pi. 20, as amended by the act of 6th of March 1872, Purd. Dig., p. 883, pi. 23, is the same in its provisions as the Act of 21st of March 1772, Purd. Dig., p. 879, pi. 17, with the exception of the mode of procedure, consequently the decisions under the Act of 1772, apply to the Acts of 1863 and 1872.
    The Act of 1772 makes it unlawful to commence proceedings when there is no rent reserved.
    The Acts of 1863 and 1872, which give a summary remedy to a landlord, only apply to leases either written or parol, in which a certain rent is clearly and distinctly reserved, and not to cases where the rent reserved is so uncertain as to require the intervention of a jury to render it certain. So decides the case of McGee v. Fessler, 1 Barr 126, under the Act of 1772.
    The justice can have no jurisdiction of that which the act says shall be unlawful, and having no jurisdiction, as appears from his record, lapse of time cannot give it to him nor correct the want of it.
    Want of jurisdiction may be taken advantage of at any time, and at any stage of the proceedings: Stiles v. Jeffries, 8 Phila. 303.
    The twenty days’ limitation in regard to the writ of certiorari, does not apply where the record shows on its face that the justice had no jurisdiction: Offerman v. Downey, 2 Wh. Dig. 134, pi. 278; Lacock v. White, 7 Harris 498; 1 Leg. Reg. 6 ; Adams v. Dill, 29 Leg. Int. 126; Collins v. Collins, 1 Wright 387; Ingham v. Sickler et ux., 1 Leg. Chron. 151.

      J. W. Roseberry and F. W. Bechtel, for defendant in error.—
    No authorities can be produced to show that a party has an unlimited time to take his writ of certiorari. He has a reasonable time, and that has been determined by repeated decisions to be twenty days after notice of the proceedings: French v. Pennsylvania and Now York Canal & Railroad Co., 1 Leg. Chron. 66; Offerman v. Downey, 2 Wh. Dig. 134; Lacock v. White, 7 Iiarris 498; Daily v. Bartholomew, 1 Ash. 135; Steadman v. 'Bradford, 3 Philada. Rep. 258; Brookfield v. Hill, 1 Philada. 107; Heft v. Hammill, Id. 1 Philada. Rep. 394; Shaeffer v. Smith, 2 Leg. Chron. 52; Harrison v. Williamson, 1 Luz. Leg. Reg. 89; Jones v. Delaware'and Hudson Canal Co., 31 Leg. Int. 173.
    In Snyder v. Carfrey, 4 P. F. Smith, 90, it was said that the Act of 1863 was designed to give landlords a remedy to dispossess tenants more convenient than the Act of 1772, and it should have the same liberal interpretation and administration as has been extended to the latter act.
   Mr. Justice Gordon

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

This was a proceeding, instituted by Morgan W. Fehr, the plaintiff below, before a justice of the peace, under the Landlord and Tenant Act of December 14th 1863 (Pamph. L. 1864, 1127), to recover from the defendant certain demised premises, situated in the borough of Tremont, Schuylkill county. The record of the justice, after describing the premises, setg out, that the plaintiff did demise the said premises, during the will and pleasure of Morgan W. Fehr, to Charles Graver, trustee, for his wife, Melinda Graver, the tenant now in possession, and that the said Charles Graver, trustee, as aforesaid, entered into possession of said premises by virtue of said lease in writing, and held the same, and that the said term, for -which the- said premises were demised, is fully ended.” There is also a statement of demand and notice, and the necessary allegation that the defendant had refused to deliver up possession. In all these proceedings, however, there is nothing by which the jurisdiction of the justice can even be inferred. The supplement to the Act of 1863, approved March 6th 1872 (Pamph. L. 22), prohibits a proceeding under this act, “ unless such proceeding shall be founded on a written lease or contract in writing, or on a parol agreement in and by which’ the relation of landlord and tenant- is established between the parties, and a certain rent is therein reserved."

Now, not only does it not appear by the proceedings before the justice, that a certain rent was reserved, in the lease therein recited, but from the whole case, as we have it before us, it is manifest that there was no such rent. As, therefore, this summary proceeding, though convenient and necessary in proper cases, is in derogation of the common law, and as it is given only by statute, the necessary jurisdiction must appear affirmatively on the face of the record, or the proceeding is coram non judice and utterly void McGee v. Fessler, 1 Barr 126. We have here, however, a case in the.very teeth of the legislative-prohibition ; a lease at will without a reservation of rent of any kind, so that, so far as jurisdiction is^ concerned, it is affirmatively, by the proceedings themselves, put out of the question. Indeed, it does not seem to be seriously denied but that the justice, in taking cognisance of and giving judgment in .the case, did that which the law gave him no right to do, but the defendant was turned out of,.court..on the ground that the certiorari, not having been sued out within twenty duys from the rendition of the judgment, was too late. This was error; for, in the first place, even under the twenty-first section of the Act of 1810, this limitation does not apply where it is apparent the justice has no jurisdiction : Lacock v. White, 7 Harris 495. And, in the second place, that act does not apply to the summary process for obtaining possession of leased property under the Landlord and Tenant Acts. This was so held by Judge King in Rubicum v. Williams, 1 Ash. 230, and we are inclined to think that, in this, his conclusion was correct. The Act of 1810, known as the “ One Hundred Dollar Act,” is a uniform, symmetrical code, designed to regulate the powers and jurisdiction of justices of the peace in the collection of “ debts and demands,” and the twenty-first section, being part and parcel thereof, extends to nothing beyond its provisions.

It is true the Act of 1863, as well as that of 1830, provides that “ nothing therein contained shall prevent the issuing of a certiorari with the usual form and effect, but the usual form and effect of this writ is found rather in. its general judicial character than in any description of it as found in the Act of 1810. .Besides this, it has an effect in that act which it has not in the summary proceedings under consideration. When properly sued out, under the statute above named, it becomes 'a supersedeas to further proceedings, but such is not the case under the Landlord and Tenant Acts. This was so held, under the Act of 1772, in the cases of Grubb v. Fox, 6 Binn. 460, and Stewart v. Martin, 1 Yeates 49, and we can find nothing in the later acts which would alter this rule. We think, therefore, that the court below erred in the disposition of the defendant’s writ.

The judgment of the court below is reversed, and the judgment and proceedings before the justice of the peace are reversed and set aside.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Eilenberger versus Protective Mutual Fire Insurance Company.
    1. If there was a mutual mistake between the contracting parties to an insurance policy, parol evidence is admissible to reform the policy.
    2. The fraud or mistake of a knavish or blundering agent, done within the scope of the powers given him by an insurance company, will not enable the latter to avoid a policy to the injury of the insured, who innocently became a party to the contract.
    3. Where an agent of the insurer has cheated the insured into signing the warranty and paying the premium, and the policy was issued upon the false statements of the agent himself, the insured may prove the fact and hold the principal to the contract as if he had committed the wrong.
    4. In a mutual insurance company membership dates from the consummation of a contract and not before. During negotiations for insurance, a mutual company occupies no other or better position than one organized on the stock plan., and cannot profit by the fraud of its agent; for the membership arises from but does not precede the contract. As to all preliminary negotiations, the agent acts only on behalf of the company.

      5. A company cannot escape the consequences of the fraud or mistake of its agent, by inserting a stipulation in the policy, that such agent shall be deemed the agent of the insured, who, at the time of applying for the policy, was ignorant of the insurer's intention to so stipulate.
    March 19th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1879, No. 176.
    Debt by R. E. J. Eilenberger against the Protective Mutual Fire Insurance Company, for a loss occasioned by the burning of plaintiff’s store and contents, which were insured in the defendant company. The defendant pleaded nil debet, payment, set-off with leave, &c., and afterwards, by permission of the court, filed an amended plea, assigning breaches in the warranty. The application was to form a part of the policy of insurance, and all statements therein made were to constitute warranties on the part of the insured.
    The application closed in these words: “ The following questions must be answered fully and definitely by ,the agent, and when this is not done, the application will be declined : Have you personally examined this risk ? Do you think it advisable to take it ? Yes. Are stoves, pipes and chimneys all secure ? Yes. Are you personally acquainted with the applicant and risk and do you fully approve it? Yes. Has he ever met with loss by fire? No.”
    The policy contained the following condition :
    “ It is agreed that the person or persons, if any, other than tne assured, who have procured this insurance to be taken by this company, shall be deemed to be the agent or agents of the assured and not of this company, in any transactions relating to this insurance. * * *
    One Soellner, was the agent of the company, and in writing down the answers of the insured when seeking the application he falsely misstated them. They will be found set forth substantially in the opinion of this court. Upon-motion' of defendant, the court, Ingham, P. J., withdrew from the consideration of the jury the testimony of Soellner as to his writing these answers, as well as the testimony of the plaintiff in regard to "the same, and then entered a compulsory nonsuit, on the ground that the plaintiff had given no sufficient evidence to entitle him to recover a verdict as is in law sufficient to maintain the action. The withdrawal of this evidence and the entry of the nonsuit were assigned for error by the plaintiff, who took this writ.

      Wm. M. Piatt Sons and Sittser $ Harding, for plaintiff in error.
    As the application precedes the policy, the insured could not be presumed to know what its conditions were, and he cannot assuredly, on such a ground, be deprived of- the benefits of his contract: Wood’s Ins. 278, 401, and cases cited noté 6; Ins. Co. v.
      Wilkinson, 13 Wallace 222; Roth v. City Ins. Co., 6 McLean 364. In order to be efficacious, such notice must be given before the negotiations are completed: Wood’s Ins. 644; Commercial Ins. Co. v. Ives, 56 111. 402; Bebee v. Hartford Ins. Co., 25 Conn. 51. Notice to the agent was notice to the company and under such circumstances the company is estopped: Wood’s Ins. 276 and 632, and cases there cited: Howard’s Ins. Co. v. Bniner, 11 Harris 50; Ins. Co. v. Cooper, 14 Wright 381; Rowley v. Empire Ins. Co., 36 N. Y. 550 ; ¿Etna Ins. Co. v. Olmstead, 21 Mich. 246. The agent in this case had sufficient power to receive notice: Flanders’s Ins., 2d 'ed. 115; Bebee v. Hartford Ins. Co., 25 Conn. 51; Lycoming Ins. Co. v. Woodworth, 2 Norris 223. The question is not only what powers the agent had, but more particularly what power did the company hold him out as possessing: Wood’s Ins. 640, 661, 662; Eclectic Life Ins. Co. v. Fahrenkrug, 68 111. 463 ; Haughton v. Embank, 4 Camp. 88; Neal v. Erving, 1 Esp. 61; Perkins v. Washington Ins. Co., 4 Cowen (N. Y.) 645; Beal v. Park Fire Ins. Co., 16 Wis. 241; New York Insurance Co. v. National Ins. Co., 20 Barb. (N. Y.) 476; 85; Nicoll v. American Ins. Co., 3 Wood. & M. (U. S.) 529; Gloucester Manf. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.) 497 ; Lungstrass v. German Ins. Co., 57 Mo. 107 ; Palm v. Medina Ins. Co., 20 Ohio 529 ; Dayton Ins. Co. v. Kelly, 24 Ohio 345 ; Flanders’s Ins. 2d ed., p. 112 and cases cited; Hough v. City Fire Ins. Co., 29 Conn. 10.
    _P. M. Osterhout, for defendant in error.
    Soellner’s authority was only that of a solicitor of risks. The acts of a mere agent authorized to represent the company, beyond the specific powers committed to him cannot be the ground of estoppel in a matter unconnected with the exercise of his powers. This can take place only when the knowledge lying at the foundation of the estoppel comes home to those officers wdio exercise the corporate powers of the company, or to an agent whose powers relate to the very subject out of which the estoppel arises : Mitchell v. Ins. Co., 1 P. F. Smith 402 ; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348; Cooper v. Ins. Co., 14 Wright 299 ; Ins. Co. v. Johnson, 11 Harris 72; Smith v. Ins. Co., 12 Id. 320. If Soellner made the mistake in the answers it was negligence in the insured not to read them over to see if they were correct: Greenleaf’s Est., 2 Harris 496 : Penn. Railroad Co. v. Shay, 1 Norris 198. The warranty by plaintiff was a condition precedent to defendant’s liability : Cooper v. Ins. Co., supra; Phillips on Insurance 346 ; Ins. Go. v. Arthur, 6 Casey 815.
   Mr. Justice Trunkey

delivered the opinion of the court, April 4th 1879.

Soellner was defendant’s agent and as such solicited insurance, made out applications, sent them to the home office, and the company issued the policies and forwarded them, for delivery, to the agent who received and remitted the premiums. The plaintiff’s application, thus solicited, prepared and transmitted, contained a stipulation that it should form a part of the policy, and all statements therein constitute warranties by the insured. Among the statements are these : “ Chimneys are constructed from the ground; the title is in name of the insured, in fee-simple; and the building has never been on fire, nor has the applicant suffered loss by fire.” In fact, the chimney was built from the loft, the title of the premises was in name of applicant’s wife, and the building had been on fire and the plaintiff burned out once before. He showed Soellner through the house, correctly answered all questions asked, did not read or hear the answers read, and thought everything was down in the application, as "he had stated, when he signed it. Soellner examined the chimney and wrote the answer respecting it from his own knowledge. In response to the applicant’s answer that his wife owned the building, he said, that would make no difference, he could insure it with his stock. He noticed there had been a fire, and asked the applicant if he had suffered loss by fire, and was answered he had been burned out once before. The written falsehoods were Soellner’s mistakes. Thus stood the facts, shown by the oral testimony of the plaintiff and Soellner, the truth of which was admitted by the motion for nonsuit. Whatever credit the jury might have given them, had the cause been submitted, the court, in disposing of the motion, was bound to treat their testimony as true and draw every reasonable inference therefrom in favor of the plaintiff. In considering whether there was error in ordering nonsuit, it matters not that a portion of the evidence was ruled out before the motion, for if competent it should not have been withdrawn, and if incompetent there was no error in the judgment.

The defendant relies on the authority of Susquehanna Insurance Co. v. Perrine, 7 W. & S. 348; Smith v. Insurance Co., 12 Harris 320; State Mutual Fire Insurance Co. v. Arthur, 6 Casey 315, and Cooper v. Farmers’ Mutual Fire Insurance Co., 14 Wright 299, to preclude oral testimony of its agent’s fraud or mistake in preparing the application. In the first, the by-laws were specific in the requirements of the application, and that, if made by a surveyor, he should be deemed the applicant’s agent.' It was said that knowing he would become a member of the company, on acceptance of the policy, the presumption is that he made himself acquainted with its charter and regulations, and that he was bound to know that the surveyor was acting as his instrument and not as the instrument of the company; and consequently a material fault in the application vitiated the policy. Smith’s case rests upon a doctrine that ought to prevail everywhere, to wit: “ The principal is bound by the acts of his agent whilst he acts within the scope of the deputed authority; but if, departing from that sphere, or continuing in it, he commits a fraud on his principal, a particeps criminis shall not profit by the fraud.” In 'the Arthur case the facts in issue were “ nothing more than knowledge by the defendants of the manner in which the buildings were used at the time the policy was made.” The warranty and its breaches were considered as admitted by the pleadings. Upon the single fact that the assurer knew that the buildings were not occupied as warranted by the assured, it was decided that knowledge by the underwriter, or by him and the assured, is no basis for reforming the policy ; though it is conceded that equity will reform it where there was a mutual mistake of facts. It was ruled in Cooper’s case that what is a warranty in a policy, by its terms, con-not be shown by parol evidence to have been a mistake. There the agency of Mr. Herr, who filled the application, was defined in writing “ to make surveys, receive applications, premium notes and cash premiums for said company agreeably to the by-laws.” It is said in the opinion that the agent had no authority to make the contract or arrange any of its conditions; that if he and Cooper were both mistaken, his mistake was not that of a party to the contract; that the plaintiff’s offer was not to show’ a mutual mistake; that it was a fatal objection to the offer that if admitted it would not show a mistake by both parties, and, so far as appeared, the defendants had not been informed of any representation other than in the written application upon which they issued the policy. The offers themselves 'show that Cooper neither read nor heard read the answers, but they also show that he and the agent talked over and agreed that the judgments were not encumbrances and the answer was written accordingly. The insured knew what was in the warranty he had signed.

An.examination of the facts in those cases will aid in understanding the scope of the opinions. In each there was no question but that the warranty was made, and it was conceded that if there were a mutual mistake between the contracting parties, parol evidence is admissible to reform the policy. None declares that the fraud or mistake of a knavish or blundering agent, done within the scope of the powers given him by the company, will enable the latter to avoid a policy to the injury of the insured, who innocently became a party to the contract. The authorities go far, very likely not too far, in holding the assured responsible for his warranty, and in excluding oral evidence to contradict or vary it; but they do not establish that where an agent of the assurer has cheated the assured into signing the warranty and paying the premium, and the policy was issued upon the false statements of the agent himself, the assured shall not prove the fact and hold the principal to the contract, as if he had committed the wrong.'

The defendant is a mutual company, and holders of its policies are members. Membership dates from consummation of the contract, and not before. During negotiations-for insurance, a mutual company occupies no other or better position than one organized on the stock plan, and cannot profit by a contract induced by the fraud of its agent; for the membership arises from, but does not precede, the contract: Lycoming Fire Ins. Co. v. Woodworth, 2 Norris 223. As to all preliminary negotiations, the agent acts only on behalf of the company. A stipulation in a policy that if the agent of the company, in the transaction of their business, should violate the conditions, the violation shall be construed to be the act of the insured, and shall avoid the policy; will not render the insured responsible for the mistakes of the agent: Columbia Ins. Co. v. Cooper, 14 Wright 331. This was said where the mistake was of representations, and does not qualify the rule which holds the assured upon his covenants or warranties. But it shows that a’ company contracting by its agent will not always escape the consequences of the fraud or mistake of its agent, by inserting a stipulation in the policy that such agent shall be deemed the agent of the insured, who, at the time of applying for the policy, was ignorant of the insurer’s intention to so stipulate.

Upon the verity of the plaintiff’s testimony, he had no knowledge of the fraud or mistake of the defendant’s agent previous to the fire. The agent falsely induced him to sign a statement he had not made and did not intend to make. Moreover, appended to the application is the following, signed by the agent: “ The following questions must be answered fully and definitely by the agent, and when this is not done, the application will be declined: Have you personally examined this risk ? Do you think it advisable to take it? Yes. Are stoves, pipes and chimneys all secure? Yes. Are you personally acquainted with the applicant and risk, and do you fully approve it ? Yes. Has he ever met with loss by fire ? No.” Thus answered the insurer’s agent, without which the policy would not have been issued. The application and agent’s certificate agree. Oral and written evidence shows that the agent was acting within the scope of his employment, but in bad faith to his principal. He was not only to solicit and make out applications, but his own answers, from personal examination, were relied upon by the insurer in making the contract. By what rule shall that contract be void, as respects an innocent party, who first discovered the fraud after his loss ? The assurer believed- both statements; the assured knew nothing of the contents of either. Which party shall suffer ? By elementary principles, the one who employed and gave character to the agent, and issued the policy upon his act, and not he who innocently paid his money.

It is not alleged the case was defective for any cause other than breach of warranty.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Paxson

text:
    Hartley versus Decker.
    1. In a written agreement D. stipulated that he was to peel all the hemlock timber from eight inches up to the largest on the farm of B. by the middle of March 1874, and start the bark on good roads convenient to the teams. When it was so started and measured D. was to have one-half of the bark in payment for his labor. Held, that this was an entire contract, and that until D. had. fully complied with his agreement he had no title to any portion of the bark.
    2. Undecided whether this was a case in which the doctrine of recoupment would apply iu case the jury should find that the defendant had substantially complied with the contract.
    March 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Susquehanna county: Of January Term 1879, No. 83.
    Trover by E. C. Decker, against Silas Hartley, to recover damages for the conversion of a quantity of bark, which had been cut on the land of plaintiff.
    The plaintiff was the owner of a farm and entered into a written agreement with B. E. Decker, by which it was agreed that said “ B. E. Decker is to peel all the hemlock timber, from eight inches up to the largest, and start all the bark on said farm, and is to have one-half the bai'k after it is started to pay him for his labor. The bark is to be divided when started, and to be started as soon as the middle of March 1874, in good order and shape — to be measured in rack, and on good roads to the tannery.”
    B. F. Decker being indebted to the defendant sold his interest in the bark to Hartley and assigned his interest in the contract to him. Hartley was to get out the bark, and after disposing of his half, was to allow B. E. Decker the amount received for it over the debt and expenses. Hartley afterwards obtained a confession of judgment from B. E. Decker, upon which. B. E. Decker’s interest in the bark was sold at constable’s sale, and bid in by Hartley. The latter it appeared had hauled out and started the bark in accordance with the terms of the contract before the middle of March 1874.
    At the trial before Jessup, P. J., the plaintiff claimed, that Hartley had acquired no interest in any of the bark, because some trees had been left standing which should have been peeled, and the bark was not gathered up cleanly, and, therefore, the contract had not been fully complied with; and further, that being a sale of an unascertained quantity of bark Hartley could claim no title to or interest in it until measured and divided.
    The evidence upon the question of full performance of the contract was conflicting. Defendant claimed, that, as soon as there was a severance of the timber by B. E. Decker so as to make it personal property, and especially as soon as E. C. Decker’s material (hemlock trees) and B. F. Decker’s labor were blended together, under the contract, in a new product, an article of merchandise and traffic called bark, that commodity was at once joint property, each party having an equal interest in it; and, although by the terms of the agreement not to be divided until, a future time (when the work was completed), it was still owned by the parties as tenants in common, and that the only question for the jury, was whether Hartley took more than his own part, one-half of the bark.
    In the general charge, the court, inter alia, said : “ [We construe this contract to mean what it says, that B. F. Decker was to peel all the hemlock timber from eight inches up to the largest, and start all the bark on the farm of plaintiff by the middle of March 1874. When this was fully done B. F. Decker or his assignee had the right to call upon the plaintiff to divide the bark, and not until this was done would the title to the bark pass to the defendant.
    “If you find from the evidence that this contract was fully performed by B. F. Decker or his assignee, that the bark was measured as claimed by the plaintiff, and that the defendant only took away one-half of the bark, then the plaintiff is not entitled to recover. But if on the other hand you find that B. F. Decker did not fully perform the contract, then no title passed to defendant and the plaintiff would be entitled to recover], or if you find that the con-, tract was fully performed and the defendant took away more than one-half the bark, then for such excess the plaintiff would be entitled to recover.
    “ [If the defendant had complied substantially with the contract, and the plaintiff had refused to divide th'e bark and allow him to take any of it, I do not say that he would be without remedy upon the contract; but that is not the question we are trying.]”
    Verdict for plaintiff. The defendant took this writ, his first and second assignments of error being respectively the foregoing portions of the charge in brackets.

      A. O. Warren and W. M. Post, for plaintiff in error.
    The court treats the written agreement between E. C. and B. F. Decker, as if it were an executory contract, for the sale of bark, under which no title could pass, until there was measurement and delivery, and as if the parties occupied the relations of employer and employee, instead of construing it to be, what it palpably is, a contract for work to be done “ on shares,” a peculiar kind of an agreement, by which one party is to furnish materials and the other by his labor, to work them into some kind of a product, which is to be the joint property of both, in such proportions as they shall agree upon.
    This case is precisely analogous to that of a cropper who raises a field of corn upon the land of another “on shares.” Although not to be divided until harvested, still from its inception until the division is made, the cropper and owner of the land are tenants in common of the crop : Stafford v. Ames, 9 Barr 843; Creel v. Kirkharn, 47 111. 344; Bernal v. Hovins, 17 Cal. 541; Carr v. Dodge, 40 N. H. 403; Williams v. Nolen, 34 Ala. 167; Tripp v. Riley, 15 Barb. 333; 1 Schoaler Per. Prof. 194; White v. Brooks, 43 N. H. 402. The value of the labor over and above the damage the plaintiff might have sustained, because there was not a full performance of the contract, should at least be allowed as an equitable set off or in mitigation of the damages claimed: 2 Parsons on Contracts 136; Hyde v. Cookson, 21 Barb. 92; Tr. & H. Pract, vol. 1, part 1, 114; Romig v. Romig, 2 Rawle 241; Peterson v. Haight, 1 Miles 250; Saam v. Saam, 4 Watts 432. See also upon the doctrine of recoupment applied to cases of tort, Sedgwick on Measure of Damages, 549 to 551 and notes.

      McCollum Watson, for defendant in error.
    This contract was executory and no title to the bark could pass to B. E. Decker, or his assignee, until it was all peeled and all started and measured, &c.: Clemens v. Davis, 7 Barr 263; Dennis et al. v. Alexander, 3 Barr 50; Lestor v. McDowell, 6 Harris 91.
    There was no question of set-off or equitable defence raised in the court below, and no such defence having been offered on the trial it cannot be made here.
   Mr. Justice Paxson

delivered the opinion of the court, March 31st 1879.

We find no error in that portion of the charge embraced in the first assignment. The construction placed upon the contract by the learned judge was entirely correct. So far as it related to the hemlock bark, it was an entire contract. It was expressly stipulated therein that B. E. Decker was to .peel all the hemlock timber from eight inches up to the. largest on the farm of the plaintiff below by the middle of March 1874, and start the bark on good roads convenient to the teams. When it was so started and measured in rank, the said Decker was to have one-half of the bark to pay him for his labor. Until he had fully complied with his agreement, he had no title to the bark. It is conceded the title was in the plaintiff when the agreement was made. Decker acquired title, if at all, by virtue of said agreoment. That only gave him title upon compliance with its terms. There is no obscurity in the language, and there is nothing in it to lead us' to the conclusion that Decker was to have title to each cord' of bark as it was peeled. That would enable him to peel only so much as was most convenient, and could be got out to the best advantage. They might have so contracted, but did not. The case of the cropper in Stafford v. Ames, 9 Barr 343, is not in point. There the agent of the cropper was prevented from cutting and threshing the wheat; he was illegally kept out of possession ; the owner of the land cut the grain and refused to deliver any portion of it to the cropper. It was Feld that the latter could maintain trover for his share. There was no such agreement there as we have here. I apprehend that it is competent for- a cropper to agree that the title to the grain shall remain in the owner of the land until it is divided. Where the parties to a contract make their own law, it is binding upon them, unless it is in violation of the law of the land, or offends against public policy.

The second assignment raises'a question that was not made in the court below. The learned judge-charged: “If the defendant had complied substantially with the contract, and the plaintiff had refused to divide the bark and allows him to take any of it, I do not say that he would be without remedy upon the contract, but that is not the question we are trying.” If there is any error here it must be in the words I have italicised. It was contended they excluded from the jury the consideration of any question of equitable defence; that this was a case in.which the doctrine of recoupment would apply in case the jury should find that the defendant had substantially complied with the' contract. There are many cases in actions of tort, in which this equitable principle has been applied to avoid circuity of action. Whether the case in hand comes within the rule, we are not called upon to decide, as an examination of this record clearly shows that the cause was not tried below upon any such theory. On. the contrary, it is manifest the contention there was whether the plaintiff had the title and right of possession to this bark at the time Hartley took it and converted it to his own use. The defendant went to the jury upon that issue, and so far as this record shows, upon no other. No points were put to the court, nor was any instruction asked for in regard to the defendant’s right to recoup. Hence, the learned judge was not inaccurate when he told the jury that the defendant’s remedy upon the contract was “not the question we are trying.” He was merely stating a fact as to which he is amply sustained by the record. A judge who submits a case to a jury in the manner in which it is presented by counsel, ought not to be convicted of error for not presenting it in some other way to which his attention had not been called.

Judgment affirmed.


author: Per Curiam.

text:
    Philadelphia and Reading Railroad Company versus Ramsey.
    When a common carrier receives express goods, the question whether the carrier contracts to carry said goods to their destination, or only to deliver them safely to the next carrier at the point nearest or most convenient to the destination, is one of fact for the jury, dependent upon the circumstances.
    March 19th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkby and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county; Of January Term 1879, No. 80i
    Assumpsit by William Ramsey against the Philadelphia and Reading Railroad Company, to recover damages for the loss of a package of clothing, alleged to have occurred through the failure of the defendants to safely carry to and deliver the said package at the place mentioned in the address thereon.
    It appeared that on July 16th 1873, the plaintiff took a package of clothing to the express office of the defendants’ company at Mahanoy City, Pennsylvania. The package was made up in a paper and addressed to the plaintiff’s wife at Rehoboth, Delaware. The address was on the package when brought to the office and delivered to the express agent.
    The plaintiff testified: “In the month of July 1873, I took a package of clothing, addressed to my wife at Rehoboth, Delaware, to the Philadelphia and Reading Railroad Company’s office. That was the only address there was on it. I handed it to Mr. Hess, and asked him to please send it to Mrs. Ramsey, at Rehoboth; and I wanted to pay the express charges, but he said he did not know what they would be. I said I wished he would find out, as I did not know how Mrs. Ramsey would' be off for money, and I did not know as she would be there when the package arrived. I asked if there was any w7ay he could get it down, and he said ‘ Yes, we can send it on and collect back to this office, and I will do that, if you will pay me promptly the express charges when I get the return,’ and I said ‘Yes, I would do that.’ Then I left the package there. Thomas Hess was the name of the express agent.”
    The original waybill was produced, whereby it appeared that sometime after the delivery of the package, Ramsey had paid forty cents charges, which were the rates only to Birdsboro, at which place the defendant delivered the package to the Wilmington and Reading Railroad, which was the usual connecting route to Rehoboth.
    In the general charge, the court, Pershing, P. J., inter alia, said:—
    “ The question for you is, what was the contract ? It is a question of contract entirely. Did the Reading Railroad Company receive these goods and undertake to convey them to Rehoboth ? And did they fail to deliver them at that place ? If they did, then the company would be liable. If the contract was simply to deliver them at Birdsboro, and there transfer them to a connecting route, and they were lost afterwards upon the connecting route, then the company would not be liable. In some of the cases it is held that the amount of charges paid is evidence for the consideration of the jury. Thus, in the case of a company whose route does not extend to the point of destination of the goods, but it is necessary to forward them by a connecting route or routes, and it receives the goods for transportation, and takes pay for the whole distance, it is evidence that they undertook to convey them over the connecting-route, and of liability for any loss that occurred after they left their own route. The evidence here is that Mr. Ramsey offered to pay at the time, but the agent could not tell him what the express charges would be. It was some time after this that the forty cents were paid, to w-hich your attention has been called by the testimony.”
    The defendant submitted the following points, to which are appended the answers of the court:
    1. If the jury believe the evidence of the defendants’ witnesses, the acceptance and undertaking of defendants to deliver the package safely to plaintiff at the end of the route has been fully complied with.
    Ans. “We think that it is a question of fact entirely for your consideration what the contract was. You will determine by your verdict whether the contract extended to Rehoboth, or to the point on the Reading road at Birdsboro, where the goods were transferred.”
    2. If the jury believe the evidence that the defendants carried the package to the terminus of their route at Birdsboro, and there delivered it in a safe condition to-the next connecting carrier in the usual course of business, the defendants’ responsibility there ended, and the verdict of* the jury should be for the defendants.
    Ans. “ That is just as you determine from the evidence what the contract was; if it was a contract to carry to Birdsboro, then there could be no liability here; but if you find the contract was to deliver the package at Rehoboth, then the defendants would be responsible for the loss.”
    3. The defendants’ responsibility can only be for injury or loss occurring by their own negligence or that of their employees, and the defendants are not responsible for the loss of the package while in the hands of another carrier.
    Ans. “We give the same answer to that; it depends upon whether they made a contract which wrould include a connecting i-oute.”
    4. If the jury are satisfied from the evidence that the loss of the package occurred after it oassed from the hands of the defendants, then the verdict of the jury should be for the defendants.
    Ans. “Not unless you find that their contract terminated at Birdsboro.”
    5. The defendants were common carriers to the end of their own route only, and beyond that held the relation to the plaintiff of forwarders only, and as such, having forwarded the package beyond their lines at the point nearest and most convenient to destination, in the usual course of business, being in good condition when so forwarded, the plaintiff cannot recover in this action.
    Ans. “We affirm this point if you find that the contract between the company and Mr. Ramsey was that the Reading Railroad Company was simply to forward them; that is, that the contract did not extend beyond Birdsboro or the terminus of their own road, and that from that point they were simply forwarders of the goods through the agency of the other road. If you find that the contract was to convey the goods to Rehoboth then this point would not apply.”
    Verdict for plaintiff for $178.20. After judgment defendant took this writ and assigned for error the answers to the foregoing noints.

      James Ellis, for plaintiff in error.
    The proof must be clear that a carrier has bound himself to transport goods beyond the terminus of his own route: Pennsylvania Railroad Co. v. Berry, 18 P. F. Smith 277 ; Baltimore & Philadelphia Steamship Co. v. Brown, 4 P. F. Smith 77. The mere acceptance of goods prepaid to a certain point, does not imply that the carrier assumes any duty to transport beyond the end of its own route and delivery' to the next carrier: 2 Redfield American Railway Cases 321; Pennsylvania Railroad Co. v. Berry, supra ; American Express Co. v. Bank, 19 P. F. Smith 394; Mullarkey v. Railroad Co., 9 Phila. R. 114; Union Express Co. v. S'hoop, 4 Norris 325; Camden and Amboy Railroad Co. v. Forsyth, 11 P. F. Smith 81.

      Hughes $ Farquhar, for defendant in error.
    The courts of this country have frequently held the carrier liable beyond the limits of his own route upon the ground of a special undertaking, either expressed or implied, but whether any such contract exists, is regarded as a matter to be determined from all the facts and attending circumstances of the case, and will more generally be an inference for the jury, than the court, unless it depends upon the effect of written stipulations, and even then will often be affected, more or less, by attending facts and circumstances : 2 Redfield on Railways 116 ; Chouteaux v. Leech & Co., 6 Harris 224; Baltimore .and Philadelphia Steamship Co. v. Brown, 4 P. F. Smith 77. And there was sufficient evidence here on the question of the contract to iustify the submission: American Steamship Co. v. Bryan, 2 Norris 448.
   The judgment of the Supreme Court was entered, May 5th 1879. ■ S

Per Curiam.

We think there was evidence sufficiently clear tc submit to the jury that the plaintiffs in error undertook to carry the package intrusted to them beyond the terminus of their own line, and so became responsible for its safe delivery at Rehoboth. The agent of the company told the defendant that “ they could send it on and collect back.to this office, and I will do that if you will pay me promptly the express charges when I get the return”: Chouteaux v. Leech, 6, Harris 224; Baltimore and Philadelphia Steamboat Co. v. Brown, 4 P. F. Smith 77. There was no error then, in the answers of the learned court to the points presented to. him which have been assigned for error.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Rice versus Constein.
    1. One of the conditions precedent to a valid appeal from an award of arbitrators, is the actual payment of the costs within the twenty days allowed by the Act of Assembly.
    2. A record was in these words: 11 March 18th 1878, defendant appeared, made oath, paid costs to prothonotary, to wit, $43.23, and entered into recognisance. Same day affidavit and recognisance filed with prothonotary.” Held, that it could not be shown by extraneous evidence that the payment was by check. Held further', that the check having been paid within the twenty days, the appeal was valid.
    3. Bichter v. Cummings, 1 Leg. Chron. 52; Walker v. Graham, 24 P. P. Smith 35; Carr v. McGovern, 16 Id. 457 ; Ellison v. Buckley, 6 Wright 281, distinguished.
    March 19th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Commnn- Pleas of Schuylkill county: Of - January Term 1879, No. 85.
    This was a capias sur slander by H. J. Constein against Moses Rice. A rule to arbitrate was taken by plaintiff, and on February 28th 1878, an award ivas filed finding for plaintiff in the sum of $100.
    The record showed that on the “ 18th of March 1878, defendant appealed, made oath, paid costs to prothonotary Kerns, to wit, $43.23, and entered into recognisance. Same day' affidavit and recognisance Sled with prothonotary.”'
    On March 26th 1878, William A. Marr filed an affidavit, setting-forth that the costs, to wit, $43.23, had not been paid in money, but by the check of the defendant, drawn upon the Ashland National Bank. A rule was granted to show cause why the appeal should not be stricken off. It was agreed that the check given by defendant to the prothonotary was deposited in bank in Pottsville, and presented by the Philadelphia and Reading Express, at the counter of the Citizens’ National Bank of Ashland, on the 20th day of March 1878, and on that day was paid by the bank to the agent of the express company. That the prothonotary gave the check to one Moses Hirshler, and told said Hirshler to give the prothonotary credit for it, but the prothonotary received no money for said check. That the prothonotary had no knowledge of the payment of said check by the bank upon which it was given. It was further agreed that the check was given to said express company by the bank in Pottsville for collection, and that the same was collected by the express company on the day aforesaid.
    The court, Walker, A. L. J., made the rule absolute, in an opinion, saying:
    “ The depositions in this case show that the costs of the appeal were paid on the 18th March 1878, by a check and not in cash. Such payment by all the authorities is held to be invalid: Richter v. Cummings, 1 Leg. Ohron. 49; Ellison v. Buckley, 6 Wright 283; Carr v. McGovern, 16 P. P. Smith 457; Walker v. Graham, 24 P. F. Smith 35. This is also in accordance with the decision made by this court in Iloopes & Co. v. Broisch, Hale & Co., No. 1286, June Term 1875, and filed on the 3d July 1876.”
    On the 29th April 1878, the affidavit of the defendant was presented and filed, setting forth that the chock which had been given to prothonotary Kerns, for the costs, had been paid by the defendant on the 20th day of March 1878, and within the twenty days allowed by law to enter an appeal. The court ordered a re-argument of the case. No depositions were taken, but the facts as above were agreed upon in writing, signed by both parties, and filed. The case was re-argued, and the rule to strike off the appeal was again made-absolute, Bechtel, A. L. J., dissenting. The defendant assigned this action of the court for error.

      M. M. L’ Velle and B. B. Green, for plaintiff in error.
    The check was paid within twenty days, and the requirements of the statutes were complied with : Richter v. Cummings, 1 Leg. Chron. 52. The record showed payment, and it could not be contradicted by parol evidence: Selin v. Snyder, 7 S. & R. 172; Clark v. McOommon, 7 W. & S. 470; Yanhorn v. Frick, 3 S. & R. 278; Harvey v. Thomas, 10 Watts 67.

      William A. Marr, for defendant in error.
    The appeal was not valid because the costs were not actually paid in cash: Ellison et al. v. Bucldey, 6 Wright 281; Dimes Savings Institution v. Allentown Bank, 15 P. F. Smith 125. It does not contradict the record to show how the costs were paid : Carr v. McGovern, 16 P. F. Smith 458; Walker et al. v. Graham, 24 Id. 35; Richter v. Cummings, 1 Leg. Ohron. 52.
   Mr. Justice Sterrett

delivered the opinion of the court March 31st 1879.

One of the conditions precedent to a valid appeal from an award of arbitrators is the payment of costs within the twenty days allowed by the act; and it has been repeatedly held that actual payment is required. Payment by check, as in Richter v. Cummings, 1 Leg. Chron. 52, or by draft, as in Walker v. Graham, 24 P. F. Smith 35, or by charging them to appellant’s attorney, as in Carr v. McGovern, 16 P. F. Smith 457, is not payment within the meaning of the act. In these cases, it was shown by the record that the costs were not actually paid in money; and, in Ellison v. Buckley, 6 Wright 281, the record failed to show payment in any manner. It was unnecessary therefore to resort to evidence dehors the record to 'show non-compliance with the act. The fact was apparent on its face. In the present case, however, it appears by the record that the provisions of the act were fully complied with. . The entry is: “ March 18th 1878, defendant appealed, made oath, paid costs to Prothonotary Kerns, to wit, $43.23, and entered into recognisance. Same day affidavit and recognisance filed with prothonotary.” In the deposition presented to the court below, it is stated that the word check appears in connection with the entry of the amount paid on the docket. It was conceded that the witness referred to the prothonotary’s private cash-book, and not to the "court docket or record. The entry on the latter reads as above quoted. It thus appeared affirmatively that the costs had been actually paid to the prothonotary, and all other requirements of the act complied with. It was only by going outside of the reeord that the court could be informed that a check had been given to the prothonotary, in lieu of money, on the day the oath and recognisance were filed. In theory, the record imports absolute verity, and, as a general rule, it should be so regarded in practice. It is not on every .occasion that resort should be permitted to affidavits and depositions to contradict the record or explain it away. When it is lost, or destroyed or error has intervened, and the due. administration of justice requires that it should be supplied, amended or reformed, it can and should be done in the appropriate and orderly*way.. In this case there was no necessity for resorting to extraneous evidence, the only effect of which could be to relieve the prothonotary and deprive the appellant of a trial by jury. There was clear record evidence of compliance with the requirements of the act, and this should have been considered conclusive of the fact. There was nothing in the circumstances of the case to call for any other course of action. The prothonotavy, by his own entry,- was fixed for the costs and had no just claim to relief; nor was he asking any. He was bound to pay them, on demand, to the party entitled thereto: and the rights of the appellee could not, in any manner, be prejudiced.

But, aside from this view of the case, there is another ground on which the appeal should have been sustained. While it appears from the testimony that a'check was given to the prothonotary for the costs, it was also shown that they were actually paid in cash within the twenty days. In this respect also, the case is distinguishable from those above cited.

The order of court, striking off the appeal, is reversed and set aside, and the appeal reinstated.

Justices Gordon, Paxson and Woodward, dissented.


author: Mr. Justice Woodward

text:
    Kilrow versus The Commonwealth.
    1. The store of IT. was broken open, and a number of cigars stolen therefrom. The defendant was indicted on the charge that he had received the cigars knowing them to have been stolen. P. swore that he, E. and 0., committed the larceny. At the trial, to show guilty knowledge, O. testified : “ I knew of defendant receiving stolen goods from what I hoard him say before the larceny; was at his hotel; was talking with him about receiving stolen goods ; we were talking about securing the goods; don’t know as I can tell what he did say; he acknowledged that he took them.” Held, that this testimony was too vague and should not have been received.
    2. To establish the fact of guilty knowledge, evidence was admitted tending to show that defendant was personally implicated in three instances where larceny was attempted or committed, and that he took immediate action to conceal certain goods upon information conveyed to him in relation to a fourth : that P. aided in the perpetration of each crime and there was proof that between him and defendant the intercourse was constant and confidential. Held, that these transactions were not so remote from each other as to be totally distinct, and it was not error for thp court to admit evidence of them as tending to show guilty knowledge in defendant.
    3. At the close of the trial defendant proposed to prove by a witness that he purchased a cigar of one of the brands stolen, from the father of P., nearly a year after the larceny: that the father was not in the cigar business, and that the balance of the cigars of P. were kept with his father. The Commonwealth had objected, on the ground that the offer was not rebutting, and the court rejected it. Held, that under the facts of the case it should have been received.
    4. The court instructed the jury that a conviction on the unsupported testimony of accomplices “would be very unsafe and dangerous,” and that they were to inquire whether the Commonwealth had “ satisfied them upon the point of the truth of the accomplice’s statement," and whether he was “ so corroborated upon material parts of his testimony as to give credit to his whole statement,” and further that it was “ not necessary that an accomplice should be corroborated upon every material part of his testimony, for if this was required a conviction could be had without his testimony at all.” Held, that these instructions were not erroneous.

      5. The bill as returned by the grand jury, charged the offence of receiving two thousand cigars of II. and one thousand of-E., in a single count. The defendant demurred to the bill on the ground'of duplicity, and the court overruled the demurrer and directed the defendant to plead. After the jury was sworn, during the progress of the trial, the indictment was amended by striking out the name of E., and substituting that of II., wherever it occurred. Held, that the indictment was bad, and instead of joining in the demurrer, the district attorney should have applied for an order to quash, or for leave to enter a nolle prosequi.

    Per 'Woodward, J. — The defect, however, is- beyond any present reach. The rule seems to be that while duplicity in criminal cases may be objected to by special demurrer or perhaps general demurrer, or be ground for an application to quash the indictment, yet the better view is that it cannot be made the subject of a motion-in arrest of judgment, or of a writ of error; and it is cured by a verdict of guilty asrto one of the offences, and not guilty as to the other, and by a nolle prosequi as to one member of the count. After a verdict of guilty at the trial of the defendant on the amended indictment, it would be hazardous to depart from what is supposed to be the prevailing general rule.
    March 20th 1879.
    Before Sharsavood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkby and Sterrett, JJ.
    Error and certiorari to the Court of Quartér Sessions of Susquehanna county: Of January Term 1879, Nos. 72 and 73.
    Indictment of Thomas KilroAv for receiving stolen goods.
    On the night of December 5th 1876, the store of Roscoe T. Ilandrick, at Lawsville Centre, Susquehanna county, Avhs broken open, and about $40 in money, $15 in postage stamps, and cigars of the value of $78 Avere stolen. Kilrow was indicted for receiving the cigars knowing them to have been stolen. The only direct evidence against the defendant was the testimony of John Preston, who swore that he, with Frederick Gill and William Chichester, had committed the larceny.
    At the trial, before Jessup, P. J., the defendant offered to prove, on cross-examination, by Preston, that while in Canada he Avas told if he remained there he would get ten years for the offence; if he came back to the United States they Avould let him off easier; that he came back in part because of this inducement; being offered to shoAV motive and a strong desire to do anything to make his sentence light, and to affect his testimony. Rejected, fist assignment of error.)
    Under objection, Chichester was permitted to testify that “Kilrow had received stolen goods before the burglary on the 5th of December, to show guilty knoAyledge, purpose and practice.” (2d assignment.) .
    T. D. Estabrook, under objection, testified “ that his store was robbed in September 1876; that he tracked the two thieves to Kilrow’s; to show guilty knoAvledge and to corroborate Preston’s statement that KilroAY kneAv there ayus going to be a search for stolen goods.” (3d assignment.)
    The court refused to permit defendant to ask this same Avitness:

      “ If Edward Stack was one of the men he suspected of breaking into his store, and if he did not bring a prosecution against him for this crime, and that Stack came into court, but that he, Estabrook, dropped the prosecution and had a nolle prosequi entered.” (4th assignment.)
    Preston testified, under objection, “that before he, the witness, went to Liberty, in - November 1876, with Jewell’s horse, he saw Thomas Kilrow; had a talk with him ; that Kilrow knew that the witness and Fred. Gill were then going to rob Handrick’s store, and that Kilrow agreed to pay the expenses of the trip, if they, Preston and Gill, made anything by the trip ; for the purpose of showing guilty knowledge on the part of" defendant.” (5th assignment.)
    Jewell testified, under objection, that he let Preston and Gill have his horse December 1st, to go to Snake Creek, near Handrick’s store; for the purpose of corroborating Preston. (6th assignment.)
    J. H. Dusenberry testified, under objection, that he “informed Kilrow of the robbery of T. D. Estabrook’s store; that the goods had beén traced to his house, and that a search-warrant was or would be out; for the purpose of corroborating Preston as to the removal of the Stephens goods from Kilrow’s house.” (7th assignment.)
    The court rejected defendant’s offer to-prove by Lewis Frink, in rebuttal, “that he purchased of Preston’s father a Blue Jay cigar, one of the stolen brands, in October 1877; to be followed by proof that the father was not dealing in cigars, and to be followed by proof that the balance of Preston’s cigars were left with his father.” (8th assignment.)
    In the general charge, the court, inter alia, said:
    “ An accomplice who comes upon the stand to testify against a receiver of the goods he has stolen, necessarily occupies a position of disrepute, and yet the law makes him a competent witness, and did formerly, before defendants could testify for themselves in criminal cases, as a matter of necessity, for otherwise many guilty persons would escape the just penalty of their crimes, there being, oftentimes, no other sufficient evidence to insure their proper conviction, while their guilty companions are willing, through penitence, or some hope of benefit, to divulge the truth in reference to their secret crime. But from the very character of such witnesses, the law and the courts look with caution upon their testimony ; yet, being competent to testify, their credibility is entirely for the jury, and to be judged of as that of any other witness, taking into account their disreputable character and position, and while the jury would be warranted in finding any fact in the cause upon their unsupported testimony if fully credited and believed, yet we must say to you that it would be very unsafe and dangerous for the jury so to do — and this is the ooinion of almost all the courts. Is the evidence of Preston and Chichester upon this point of the robbery corroborated by the other uncontradicted testimony in the cause ? This has been fully argued before you, and upon their testimony and all the other evidence bearing on this point of the case under our instruction you will pass upon this second point.” (9th assignment.)
    “ If the evidence satisfies you of this, then you will pass to the third point. Did the defendant receive these cigars knowing them to have been stolen ? The main question on this point is, did he receive them at all ? The only evidence, given by the Commonwealth, of receiving, is coupled with a guilty knowledge, and as the counsel for the defendant conceded in their argument before you if you find the defendant received the cigars as testified to by Preston, you will have no difiiculty under the same evidence, and the other evidence, in finding guilty knowledge, on his part.” (10th assignment.)
    “ Have the Commonwealth then satisfied you upon this point of the truthfulness of Preston’s statement, and is he so corroborated upon material parts of his testimony as to give credit to his whole statement. It is not necessary that an accomplice should be corroborated upon every material part of his testimony, for if this was required a conviction could be had without his testimony at all; but before a conviction should be had upon his evidence in any particular, he should be so corroborated in other material parts of his testimony by uncontradicted evidence as to impress the jury beyond a reasonable doubt of the truthfulness of his entire story.
    “ When this is the case the law permits the jury to base a conviction upon such testimony. Taking then all the evidence of the Commonwealth which is claimed as corroborating Preston and Chichester, and all the evidence on the part of the defendant which is claimed to contradict and impeach them, are you satisfied with the truthfulness of Preston’s entire statement about Kilrow’s receiving the stolen cigars and beyond a reasonable doubt arising out of the evidence; if so, then you must also find whether he received them knowing them to have been stolen; but of this, as we said before, you will have but little difficulty.” (11th assignment.)
    “And if upon such careful and diligent consideration of the evidence you are satisfied of the guilt of the defendant beyond a reasonable doubt, then you should return a verdict of guilty.” (12th assignment.)
    “ The law now permits the defendant to testify in his own behalf, but by reason of his great interest in the event of the case his testimony should be received with great caution and scrutinized very carefully, for it is almost never the case that a defendant voluntarily goes upon the witness stand to admit his own guilt in the case where he is defending upon a plea of not guilty.” (13th assignment.)

      The defendant submitted the following points, to which are appended the answers of the court:
    1. That it is always dangerous to convict a defendant on the uncorroborated testimony of an accomplice, and it is the duty of the jury to acquit the defendant in such case.
    Ans. “We cannot give you any binding direction as-requested in the point. We have already given you the law on this point.” (14th assignment.)
    3. That the corroboration required in this case must be evidence that goes to show that Thomas Kilrow committed the crime of receiving stolen goods.
    Ans. “ To this we say that if the evidence of corroboration is such as to impress you with the truthfulness of Preston’s entire statement, then it is not absolutely necessary that he should be corroborated as to the connection of the defendant with the receiving.” (15th assignment.)
    6. The jury should not convict the defendant unless the evidence of the accomplice or accomplices be confirmed, not only as to the circumstances of- the crime, but also as to the defendant’s connection with the crime charged in the indictment.
    Ans. “ We decline to give you any binding instructions, as requested in this point.” (16th assignment.)
    The bill of indictment as returned by the grand jury charged the offences, of receiving two thousand cigars belonging to Roscoe T. Iiandrick, and one thousand cigars belonging to- Thaddeus D. Ester-brook in a single count. The defendant demurred to the’ bill on the ground of duplicitiy, but the court overruled the demurrer and directed the defendant to plead. (17th assignment of error.)

    During the progress of the trial the indictment was amended by striking out the words “ Thaddeus D. Estabrook & Son,” where-i ever they occurred and inserting “ R. T. Handrick” in their stead. (18th assignment.)
    The defendant was convicted, when he took these writs of error and certiorari, assigning the errors heretofore noted.

      Littles Blaheslee, for plaintiff in error.
    We should have been permitted to cross-examine the accomplice to show his motive. Great latitude in such cases is always allowed: 1 Whart. Crim. L. 791. It would have disclosed strong desire to lighten his sentence. It was error to admit evidence of other crimes of receiving from other owners and persons. Worse still, to prove the declaration of Kilrow that he had received other stolen property without alleging when or where, or what the goods were, or to whom they belonged: Coleman v. People, 55 N. Y. 81; 2 Archibald’s Crim. Pract. & Plead. 1436 ; 2 Bennett & Heard’s Lead. Crim. Cas. 32: Regina-v. Oddy, 2 Dennison C. C. 264; Roscoe Crim. Ev. 91; 1 Taylor Ev. 355 ; Shindley v. State, 23 Ohio 130. There must be distinct proof of the prior receiving else it is not admissible to show guilty knowledge. It was also shown that Gill and Preston attempted to commit a distinct crime, and that Kilrow was accessory to it in order to convict him of the crime of receiving.
    Preston was not corroborated in any particular as to the act of receiving. The court erred in saying that accomplices are to be judged of,as other witnesses, taking into consideration their disrepute, and if you are satisfied beyond a reasonable doubt it is your duty to convict. On this point see: U. S. v. Smith, 2 Bond 323; U. S. v. Harris, 2 Id. 311; Lee v. State, 21 Ohio St. 151; State v. Litchfield, 58 Maine 267; Childers v. State, 52 Ga. 106 ; Middletown v. State, Id. 527 ; 1 Whart. Crim. L. 791, 7 ed.
    It was material to show that Preston, who claimed that he sold all the stolen cigars to Kilrow, had some of them in his possession by .identifying them in the hands of his father. Two offences were charged in one count. It was bad for duplicity: Commonwealth v. Dibbins, 2 Pars. 380; 1 Bish. Crim. Pract.; Hutchinson v. Commonwealth, 1 Norris 472.
    No argument for the Commonwealth.
   Mr. Justice Woodward

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

On the night of the 5th of December 1876, the store of Roscoe T. Handrick at Lawsville Centre, in the county of Susquehanna, was broken open, and about $40 in money, $15 in postage stamps, and cigars of the value of $78, belonging to him were stolen. Kilrow, the defendant below, was indicted, tried and convicted on the charge that he had received the cigars, knowing them to be stolen goods. The only direct and distinct evidence of the defendant’s guilt was the testimony of John Preston, who swore that he, with Frederick Gill and William Chichester, had committed the larceny.

Various errors have been assigned to the rulings of the court on questions of evidence, to the answers to the defendant’s points, and to portions of the general charge. The first assignment alleges error in the refusal of the offer to prove by Preston, on cross-examination, that while he was in Canada, he was told “ that if he remained there, he would get ten years for the offence; that if he came back they would let him off easier; and that he came back in part because of this inducemént.” While great latitude is allowed in the cross-examination of an accomplice, and the most searching questions are permitted, in order to test his veracity (Lee v. State, 21 Ohio 151), still this testimony was not important enough to warrant a reversal on the ground of its rejection. Preston’s position was defined with sufficient..clearness. He had been guilty of the original crime. He was in jail. And his motive in appearing as a witness against the defendant, in order to secure leniency to himself to himself, was already obvious.

There is more substance in the second error charged to have been committed in permitting William Chichester to testify that Kilrow had received stolen goods before the 5 th of December, to show guilty knowledge, purpose and practice.” Chichester’s statement on the stand was this : “ I know of Kilrow’s receiving stolen goods from what I heard defendant say before December 5th 1876. Was at his hotel; was talking with him about receiving of stolen goods ; we were talking about the securing the goods ; don’t know as I can tell what he did say ; he acknowledged that he took them.” This testimony was too vague to be safe. It contained no detail of time, place or circumstance, and in an issue in which the liberty of a citizen was at stake, it ought not to have been received.

All the points raised by the third, fifth, sixth and seventh assignments are of the same general character. The third is a complaint that T. D. Estabrook was allowed to swear that his store was robbed in September 1876, and that he tracked the two thieves to Kilrow’s, the purpose being “ to show guilty knowledge, and to corroborate Preston’s statement that Kilrow knew there was going to be a search for stolen goods.” Standing alone, the admissibility of this witness would have been more than doubtful. Kilrow frankly admitted that the men had been at his house. But the real relation which Estabrook’s testimony bore to the cause is discovered by turning to the statements of Preston and Stephens in regard to the robbery of Stephens’s goods, and by considering the seventh error in the same connection. The Commonwealth was permitted to show by John H. Dusenberry “ that he informed Kilrow of the robbery of Estabrook’s store; that the goods had been traced to his house ; and that a search-warrant was or would be out,” for the purpose of “ corroborating John Preston as to the removal of the Stephens goods from Kilrow’s house.” Stephens was postmaster at Great Bend, and his office was broken open and robbed of some paper, pencils, stamps and money about the 1st of September 1876. Preston swore that the stolen paper was first deposited under a board-pile for a week or two; that it tvas then taken to Kilrow’s; that it was there when Estabrook’s store was robbed; that Kilrow said there was a search-warrant out, and the witness and Stack must remove the paper ; and that it was taken away by them about twelve o’clock at night. The fifth and sixth assignments are founded on the admission of witnesses to show a previous attempt in November 1876, to rob Handrick’s store, the expense of which Kilrow agreed to pay, and to show, in order to corroborate Preston, that Lewis Jewell let Preston and Gill have a horse to go to Snake creek, near the store, and that the horse was taken about half-past six, and brought back between ten and eleven o’clock on the night of the 29th of November. Preston swore that Kilrow furnished the money to pay for the use of the horse. It was not asserted at the trial that the defendant ever received the goods of Estabrook, but the fact of the robbery of his store became material Avhen it was interwoven with the facts relating to the robbery of the Stephens property, and the deposit of that in the defendant’s house. The Commonwealth was bound to prove guilty knowledge to secure a conviction. It was said in Commonwealth v. Charles, 8 Leg. Gaz. 336, that on the trial of an indictment for receiving stolen goods, other ants of receiving, not so far removed in point of time or circumstances from the specific act. charged as to constitute a totally distinct transaction, may be given in evidence to establish the fact of guilty knowledge. The text-book rule is somewhat broader. In Whart. Crim. Law, sect. 1889, that rule is stated on the authority of the cases cited to be this: “ To show a guilty knowledge, other instances of receiving may be proved, even though they be the subject of other indictments antecedent to the receiving-in question.” Possibly this statement may be too general, and should perhaps be qualified by the application of the terms of the general rule of the criminal law, that “ evidence of some other felony or transaction than that on trial, committed upon or against a different person at a different time, in which the defendant participated, cannot be admitted until proof has been given establishing, or tending to establish, the offence with which he is charged, and .showing some connection between the different transactions, or such facts and circumstances as will warrant a presumption that the latter grew out of, and was, to some extent, induced by some circumstances connected with the former2 Puss, on Crimes 777. About the 1st of September 1876, Preston and Edward Stack robbed Stephens’s office, and took the goods to Kilrow’s house. Later in the same month, they robbed Estabrook’s store. When Kilrow ■was Avarned that a search-warrant was issued or threatened by Estabrook, he required Preston and Stack to remove Stephens’s paper. On the 29th of November, the first attempt to rob Handrick’s store Avas made by Preston and Gill with the knoAvledge of and at the expense of conveyance by Kilrow. The robbery was accomplished by Preston, Gill and Chichester on the 5th of December 1876. There was an interval of about three months between the first and the final crime. The evidence'tended to shoAV that KilroAV was personally implicated in three instances, and that he took immediate action upon information conveyed to him in relation to the fourth. Preston aided in the perpetration of each crime, and there Avas some proof that the intercourse between him and Kilrow was constant and confidential. It cannot be said that these transactions were so remote from each other as to be totally distinct. The rulings on this branch of the case were right.

In the fourth error complaint is made of the rejection of the -sffer to prove by Estabrook that he had prosecuted Stack for breaking into his store, and then entered a nolle prosequi. The testimony was inconsequent and irrelevant, and was properly rejected.

At the close of the trial, the defendant proposed to prove by Lewis Frink that he purchased a Blue Jay cigar of Mr. Preston, the father of John Preston, in October 1877, to be followed by proof that the father was not in the cigar business, and by proof that the balance of the cigars of John Preston were kept with his father. The offer was rejected on the ground that it was not rebutting, and for this the eighth error was assigned. Courts of original jurisdiction have necessarily large discretion in regulating the order of the admission of evidence, and in permitting or refusing to permit witnesses to be called out of the ordinary course. But it seems that it was hardly a fair exercise of that discretion to refuse to receive this testimony on the ground on which the refusal was based. Of course the facts of a case are not presented in their due perspective in this court, as they are presented to the judge who tries it, Yet this offer was of proof that would appear to be vital and material. And besides, unless the facts are greatly misapprehended, it was technically admissible in the defendant’s rebutting case. The Commonwealth had called George Preston as a rebutting witness. He swore that he w'as in the cigar business in Binghamton ; that he never had any cigars with a bird on them; that, in his own words, “in 1876, fall, we sold cigars up to November;” and that he did not know that his father sold cigars in October. 1877. There may be some mistake in the record, and it is probable that the view of this court is mistaken, but from all they can gather from the offer, the testimony of Lewis Frink should have been received.

After a consideration of the whole charge, including the answers to the defendant’s points, it is believed that the errors specified in the assignments, from the ninth to the sixteenth inclusive, are unfounded. The substance of the instruction to the jury was, that a conviction on the unsupported testimony of accomplices “ would be very unsafe and dangerous ;” and that they were to inquire -whether the Commonwealth had “satisfied them upon the point of the truthfulness of Preston’s statement,” and whether he was “so corroborated upon material parts of his testimony as to give credit to his whole statement.” The court said very properly that it was “not necessary that an accomplice should be corroborated upon every material part of his’testimony, foj if this were required, a conviction could be had without his testimony at all.”

A single inquiry remains. The seventeenth and eighteenth assignments of error relate to the form of the indictment and the' judgment of the court on the defendant’s demurrer. The bill, as returned by the grand jury, charged the offences of receiving two thousand cigars belonging to Roscoe T. Handrick, and one thousand cigars belonging to Thaddeus D. Estabrook & Son, in a single count. On the 17th of April 1878 the cause was reached. The defendant demurred to the bill on the ground of duplicity. The demurrer was overruled, and the defendant directed to plead. The jury were then sworn. On the following day, while the trial was in progress, the indictment was amended by striking out the words “ Thaddeus D. Estabrook & Son,” wherever they occurred, and inserting the name of R. T. Handrick in their place. The indictment was undoubtedly bad. When the objection to it was made, it could not be known that the bill would not have been found by the grand jury, if the receiving of Handrick’s goods only had been charged. Instead of joining in the demurrer, the district-attorney should have applied for an order to quash, or for leave to enter a nolle prosequi. The defect, however, is beyond any present reach. The rule seems to be that while duplicity in criminal cases may be objected to by special demurrer, or perhaps general demurrer, or be ground for an application to quash the indictment, yet the better view is that it cannot be made the subject of a motion in arrest of judgment, or of a writ of error; and it is cured by a verdict of guilty as to one of the offences, and not guilty as to the other, and by a nolle prosequi as to one member of the count: Wh. Or. Law, sec. 395. Numerous cases are cited in support of the doctrine in the text of the treatise. After a verdict of guilty at the trial of the defendant on the amended indictment, it would be hazardous to depart from-what is supposed to be the prevailing general rule.

The judgment is reversed upon the writ of error, and it is ordered that the record be remitted, with the opinion of this court, setting forth the causes of reversal, to the Court of Quarter Sessions of the county of Susquehanna, for further proceeding. The certiorari is dismissed.