text:
    Commonwealth versus Allen, Huhn and Shane.
    1. An Act of Assembly provided that no councilman, &c., of any municipality, &c., should at the same time be surety for a treasurer, &c., and for violating this provision he should forfeit his membership in such municipality, be guilty of misdemeanor, and on conviction be fined. Another act provided that the councils of Philadelphia should “ in like manner as the legislature, judge and determine the qualification of their members.” Members of council were sureties for a city treasurer. Held, that this was a forfeiture of their office as counoilmen, and that the courts have jurisdiction to inquire of the forfeiture in such case.
    2. The councils are not a legislature; they do not make laws; their members are not legislators with their constitutional privileges and immunities.
    3. The forfeiture arose from the unlawful relation of surety and councilman ; not upon conviction of the misdemeanor.
    4. Quo warranto is a proceeding at law, and the fact of the defendant's right to office is triable by a jury; conviction is unnecessary to give jurisdiction.
    5. The council may refuse a seat to a member who is surety, &e., but their neglect to make the inquiry is not a bar to legal proceedings to declare a forfeiture.
    6. The offence continues as long as the defendant is surety and councilman at the same time.
    7. The power of councils to impeach, try and remove a member for the misdemeanor, is not incompatible with the judicial power to oust an usurping officer or one holding over.
    8. Act of March 21st 1806, not applicable to this case. >
    February 2d 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.

      Error to the Court of Common Pleas of Philadelphia: No. 228, to January Term 1872.
    This was an information in the nature of a quo warranto, issued November 22d 1871, upon the suggestion of F. Carroll Brewster, Attorney-General, against William S. Allen, Henry Huhn and Nicholas Shane.
    The suggestion set out:— * * * “ That Joseph F. Marcer was elected treasurer of the city of Philadelphia on the second Tuesday of October, A. D. 1869, and accepted the same, was duly qualified, and entered upon the duties of the said office on the first day of January, A. D. 1870. Prior to that date, to wit, upon the 16th day of December, A. d. 1869, he filed, in the office of the solicitor of the city of Philadelphia, a bond in the sum of $100,000, conditioned for the faithful performance of his duties as such treasurer, said bond having been executed by all whose names are therein, and the warrant of attorney attached thereto. That said warrant is of record in the District Court, &e.; and it appears by said record that the sureties for the said city treasurer, among others, are William S. Allen and Henry Huhn, who entered upon the duties of the office of councilmen of the said city on the first Monday of January, A. D. 1871; and Nicholas Shane, who entered upon the duties of councilman on the first Monday of January 1870; and that by a certain Act of Assembly, approved March 31st 1860, § 66, Pamph. L. 400, it is enacted that ‘ It shall not be lawful for any councilman, burgess, trustee, manager or director of any corporation, municipality or public institution, to be at the same time a treasurer, secretary or other officer, subordinate to the president and directors, who shall receive a salary therefrom, or be the surety of such officer ; nor shall any member of any corporation or public institution, or any officer or agent thereof, be in any wise interested in any contract for the sale or furnishing of any supplies or materials to be furnished to, or for the use of, any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale; and any person violating these provisions, or either of them, shall forfeit his membership in such corporation, municipality or institution, and his office or appointment thereunder, and shall be held guilty of a misdemeanor, and, on conviction thereof, be sentenced to pay a fine not exceeding $500.’ And the said councilmen, since the dates respectively aforesaid, have exercised, and do still exercise, the office, rights and powers of eouncilmen of the city of Philadelphia, without any lawful warrant or authority; wherefore, the said attorney-general suggests that the eourt do award a writ, directed to the sheriff of Philadelphia county, commanding him to summon the said William S. Allen, Henry Huhn and Nicholas Shane, so that they be and appear before the said court, on a day certain, to show by what warrant they claim to have, use and exercise the office, right and powers aforesaid.”
    The defendants demurred, and assigned the following causes of demurrer:—
    1. That the said court has no jurisdiction to hear and determine the complaint as contained in the information.
    2. That the alleged forfeiture of the said offices of the defendants, as couneilmen of the city of Philadelphia, as set forth in the said information, is a matter affecting the qualification of the defendants further to hold and exercise the said offices, and the franchises, rights and privileges appertaining thereto ; that by the thirty-fifth section of the act approved February 2d 1854, entitled “ A further supplement to an act entitled an act to incorporate the city of Philadelphia,” it is provided that, “the Select and Common Council, respectively, shall in like manner, as each branch of the legislature of this Commonwealth, judge and determine upon the qualifications of their members;” and that therefore the proper tribunal, designated by said act, to judge and determine the defendants’ right to hold and further exercise said offices, is the Common Council of the city of Philadelphia — being one of the legislative bodies thereof, of which the defendants were, prior to and at the time of the said alleged forfeiture, and now are, duly qualified members.
    8. That the said information charges the defendants with the commission of a misdemeanor or malfeasance in their said office as couneilmen of the said city — which charge or complaint can be heard and determined only in the manner provided by the 45th section of the said Act of February 2d 1854, wherein a distinct and specific remedy by impeachment is provided in all cases where officers of the said city are elected and hold their offices by virtue of an election by the qualified voters of the said city, namely, “ That the officers elected by the qualified voters under this act shall be subject to removal from office on impeachment for misdemeanor in office, or other sufficient cause, on charges to be preferred by the Common Council and tried by the Select Council, in manner prescribed by the constitution and laws of this Commonwealth as to the impeachment by the House of Representatives and trial thereof by the Senate. All officers shall be subject to removal for sufficient cause, in such manner as councils shall determine.”
    4. That by the terms of the forty-fifth section of the said act of 2d of February 1854, the defendants are not “ subject to removal” from their said offices until after their trial and condemnation on impeachment, duly prosecuted in the manner presented in the said statute.
    5. Because the said statutory remedy by impeachment must be pursued in all cases of elective offices where the complaint charges the commission of an official act incompatible with the right further to hold and exercise such offices sought to be forfeited; consequently the writ of quo warranto will not lie.
    The Court of Common Pleas gave judgment for the defendants on the demurrer.
    The Commonwealth removed the case to the Supreme Court, and assigned the judgment thus entered for error.

      W. H. Bawle and F. C. Brewster, Attorney-General (with whom was J. J. Bidgway, Jr.), for Commonwealth, plaintiff in error.—
    When a question is really not matter of privilege, the jurisdiction of the courts will not be ousted by the declaration of Parliament that it is matter of privilege: Stockdale v. Hansard, 11 Ad. & Ellis 253. Where a statute declares that the commission of a certain act shall wrork a forfeiture of office, the jurisdiction of the courts will not be ousted by being told that it is a mere matter of qualification: Regina v. Paty, 2 Lord Raymond 1105; Murray’s Case, 1 Wils. 299; Lord Mayor’s Case, 3 Id. 205; Burdett v. The Speaker, 14 East 1; Rex v. Hobhouse, 2 Chitty 207.
    Where a statute declares a thing to be void — an office to be forfeited, and therefore gone — there is nothing to try; the househas no privilege, and the jurisdiction of the courts attaches to carry out the law by judgment of ouster in quo warranto: Commonwealth v. Pike Beneficial Society, 8 W. & S. 247; Queen v. Bolton, 1 Queen’s Bench 66; Ex parte Amy Long, 29 Eng. Law & Eq. 194; Queen v. Grant, 14 Queen’s Bench 43; Queen v. Evans, 3 Ellis & Black. 363; Society v. Vandyke, 2 Wharton 309; Toram v. Association, 4 Barr 519; Com. v. Leech, 8 Wright 332; Lamb v. Lynd, Id. 336.
    The forfeiture occurs whenever the councilman is at the same time a surety; and it is immaterial whether he was surety before and councilman afterwards, or councilman before and. surety after-wards. The moment the two occur, the forfeiture comes in, and the court has jurisdiction to enforce the forfeiture by quo warranto: Cleaver v. The Commonwealth, 10 Casey 284.

      W. Ernst and J. C. Bullitt (with whom was J. I. Doran), for defendants in error.
    The councils being the sole judge of the qualifications of its members, and having in their hands the remedy to impeach and expel these defendants for this or other misdemeanors in office, or other sufficient cause, has exclusive jurisdiction of the case: Commonwealth v. Leech, 8 Wright 332; Lamb et al. v. Lynd, Id. 336; Kerr v. Trego, 11 Id. 292, 299.
    Here is the remedy by impeachment expressly provided, and that remedy must be followed in exclusion of others; but if the cause for which the offender is thus punished is a public offence, be may be also indicted, tried and punished, according to law:” Barker v. People, 3 Cowen 705.
    The forfeiture imposed by the sixty-sixth section of statute March 31st 1860, is part of the punishment for violating its provisions, and does not take place on the commission of the crime, but is the consequence of the final judgment of the tribunal having jurisdiction of that part of the punishment; 2 Blackstone’s Com. 267; Bishop’s Crim. Law, § 609, 646; Bacon’s Abridg. Forf. E.; Fire Dep’t. v. Kips, 10 Wendell 266; Regina v. Douglas, 13 Ad. & Ellis N. S. 42; Huber v. Reily, 3 P. F. Smith 112; King v. Heaven, 2 Term Rep. 782.
    Whenever the law prescribes the manner of contesting an election that course must be pursued, and a quo warranto will not lie at the instance of the Commonwealth to test the right to the office: Commonwealth v. Garrigues, 4 Casey 11; Commonwealth v. Baxter, 11 Id. 263; Commonwealth v. Leech, 8 Wright 332. Even in a case of the actual conviction of a member, for a crime declared by law a disqualification to hold office, the court could not interfere should the legislative body permit him to become or continue a member : Barker v. The People, 20 Johns. 457, and 3 Cowen 686.
    The defendants were not disqualified from being elected and holding office, although their acts whilst in office may have been a disqualification: Rex v. Chitty, 5 Ad. & El. 607; Regina v. Mayor of Leeds, 7 Ad. & El. 963.
   The opinion of the court was delivered, February 12th 1872, by

Agnew, J.

We cannot doubt'the jurisdiction of the court in this case. There is no true analogy between the state legislature and the councils of a city. Their essential relations are wholly different. The councils are in no proper sense a legislature. They do not make laws, but ordinances; nor are the members legislators, with the constitutional privileges and immunities of legislators. The councils owe their existence, their rule of action, their privileges and their immunities solely to the law, which stands behind and above them; and their ordinances have their binding force, not as laws, but as municipal regulations only by virtue of the law which infuses them with vigor. Hence all those decisions which evince the unwillingness of courts to interfere with the members of the legislature have no place in the argument. The legislature and the courts, deriving their existence from the Constitution itself, are co-ordinate, independent branches of the government, standing upon a footing of equality in the exercise of those powers which the Constitution imparts to each in its own sphere. It would ill become a court of justice to attempt to displace a member of As-\ sembly. Its desertion of its appointed orbit would be followed by such a display of incompetency to effect its purpose as would be its most signal rebuke. This distinction between a legislative body, representing the people, the primary power in the state, was directly in the mind of the chancellor who decided Barker v. The People, 20 Johns. 457, a case strongly relied on by the defence. He said : “ The disqualification pronounced by the court would then fail to produce exclusion from the legislature ; but it would, nevertheless, be effectual to exclude from all other public stations. Its effect in respect to all other public employment must be decided by the tribunals of justice.” If the councils of a city, no matter how large, may defy the law under which they exist and exercise >all their powers, so may the councils of the most humble borough, and thus the law of the land be violated with impunity, unless the courts of justice have power to curb their deviations and correct their misdeeds. The right of this court to issue the writ of quo warranto to determine questions of usurpation and forfeiture of office in a public corporation cannot be questioned. Its powers, fully established by the General Assembly, 22d May 1722, 1 Smith’s Laws 181, and repeated in the Act of 16th June 1836, Purd. 928, pi. 19, have been recognised in numerous decisions, to some of which I may refer : Commonwealth v. Arrison, 15 S. & R. 130; Commonwealth v. McCloskey, 2 Rawle 379-81; Commonwealth v. Jones, 2 Jones 365; Cleaver v. Com., 10 Casey 283; Lamb v. Lynd, 8 Wright 366; Updegraff v. Orans, 11 Wright 103; Kerr v. Trego, Id. 292. The second section of the Act of 14th June 1846, Purd. 832, pl. 2, confers upon the Courts of Common Pleas the power to issue writs of quo warranto concurrently with the Supreme Court in the cases enumerated, within which the present clearly falls. The cases cited by the defence against the exercise of the power by quo warranto, to remove one who has forfeited an office, have little weight. The Commonwealth ex rel. Duffield v. Laughlin, was an application for a mandamus to restore Duffield to a seat in council, after the common council had removed him for cause. The council had judged and determined the case, and this court refused to rejudge it, because it fell within the power of the council to determine the disqualification. This is no authority against the power of the court to remove one who has forfeited his seat by a violation of law, which the council has neglected or refused to redress. The Commonwealth v. Barger was the case of a motion for a quo warranto founded on the provision of the city charter that “ no member of the state legislature shall be eligible as a member of councils.” Says the opinion: “ This law is express that one who is a member of the legislature cannot be elected to council; but does not say that a councilman, on becoming a member of the legislature, loses his seat in council.” The latter question the court declined to decide and refused the motion. It is evident that the mind from which the opinion emanated was laboring under the impressions produced in writing the opinion in Duffield’s Case, which is referred to, but which has no possible reference to such a case as that now before us.

The question as to the quo warranto evidently received but little consideration. As to the English cases of King v. Heaven, 2 Term Rep. 772, and King v. Ponsonby, 1 Vesey, Jr. 1, all that need be said is that they are inconsistent in the application now made of them, with the practice in this state, as shown by the authorities already cited. The quo warranto is a great prerogative writ, and may be refused if demanded for light and trivial causes. Hence, in England, in questions of mere privilege, where its loss proceeds from innocent acts, as removal out of the corporation limits, the court may and does let the corporation first declare the amotion. But when a forfeiture of office occurs by an illegal act, the violation of law stands on a different footing. In such cases in this state the power of the court will not be invoked in vain by the law officer of the government, the attorney-general, whose duty it is to vindicate the broken law.

It now remains to inquire into the case before us, and to see whether there is anything in the city charter which excludes the exercise of the power of the courts. Nicholas Shane became a city councilman in January 1870, for the term of two years. William S. Allen and Henry Huhn became councilmen in January 1871, for two years. On the 16th of December 1869, these gentlemen became sureties in the official bond of Joseph F. Marcer, city treasurer. By the Act of 31st March 1860, section 66, Purd. 229, pi. 74, it is made unlawful for any councilman of any corporation or municipality to be the surety of any treasurer of the corporation, and any person violating this provision “ shall forfeit his membership in such corporation, municipality or institution and his office or appointment thereunder, and shall be guilty of misdemeanor, and on conviction thereof be sentenced to pay a fine not exceeding five hundred dollars.” The defendants fall literally within the terms of the law: — It shall not be lawful for a councilman to be the surety of the treasurer. He cannot, at one and the same time, be both. While the bond lasts the relation of principal and surety continues, and in becoming a councilman the unlawful relation begins. He is then surety and councilman at the same time, and as a consequence the law forfeits the office. It is the purpose of the law to cut off all opportunities for the councilman to aid his principal in the bond, either by doing or forbearing to do that which duty would require, yet which self-interest might forbid. The demurrer admits the fact charged in the suggestion, and, as a consequence, the forfeiture; but denies the power of the writ of quo warranto to remove the offender from the office he has forfeited. Forfeiture arises in the unlawful relation, not upon the conviction for the misdemeanor. The consequence of conviction is the fine, hut this does not enforce the forfeiture. If conviction of the misdemeanor be necessary to declare the forfeiture, it follows that neither court nor council can purge the body of the unlawful relationship. The position would pluck up by the roots the power claimed for the council to judge of the qualification of its members. Still less forcible is the argument that conviction must precede the quo warranto. It issues to inquire not into the misdemeanor, but into the rights of the member to continue in office. The proceeding itself provides for the trial of disputed facts. By the ninth section of the act, Purd. 833, pl. 9, the defendant may traverse all or any of the material facts contained in the suggestion as in other cases, and the person at whose instance the writ issues shall reply, take issue or demur, and thereupon issue shall be joined in the cause as in other causes. Quo "warranto is a proceeding at law, and the fact which determines the defendant’s right to his office, or the loss of it, is triable by a jury, as in other legal proceedings, so that conviction is entirely unnecessary, and not essential to give jurisdiction to the court. The error in applying to such a case the doctrine of Huber v. Reily, 3 P. F. Smith 112, is in failing to remember that quo warranto is a legal proceeding before a competent court of law to determine the forfeiture, where the party has his day in court, and a due jury trial according to the course of the common law.

What obstacle, then, does the city charter oppose to the authority of the court ? It is said that councils have power in like manner as each branch of the legislature to judge and determine the qualification of their members. Granting that, it does not follow that the authority of the court is taken away to inquire-into a forfeiture, which does not take place until the member has been admitted to his seat. It is only then it becomes necessary to enforce the law by giving judgment of ouster. If councils had not admitted the member to his seat there would have been no violation of law, and consequently no forfeiture. Conceding that the power to inquire into the qualification of a member implies a power to declare his disqualification, the omission of the council to make the inquiry is not a bar to the legal proceedings to enforce a salutary law. The offence, beginning only when the member unites in himself the double relation of councilman and surety, is continuing in its nature so long as he continues to be surety and councilman at the same time. If then the council suffer the oath to be administered sub silentio, or fail afterwards to inquire into and declare the disqualification, how can it be argued that the forfeiture which took effect eo instanti when the member was sworn in, and continues while the prohibited relation continues, cannot be judicially .ascertained and declared? This would set the council above the court, for it is the court which commands the inquiry. The error is in confounding disqualification with forfeiture, so far as to suppose they are equivalent expressions. The fact that a man is surety for a corporation officer is a cause of disqualification to take the seat, but when the seat is taken it becomes a cause of forfeiture. As a disqualification the councils may refuse the seat, and even after he has taken it they may remove him by reason of continuing disqualification. But when actual forfeiture takes place by the union of the relations of surety and councilman, if the council fail to inquire into what they may consider the continuing disqualification, what clause of the charter or what principle of law robs the court of its'necessary jurisdiction to inquire into the violation of the law, and oust the sitting member from a seat which he no longer rightfully holds?The whole argument' against the power of the court is in effect to declare the councils superior to the law. But the law which declares the forfeiture is the true superior, and no omission or device of councils can retain a member in his seat who has forfeited it by his illegal act. The demand of the law cannot be set aside by the non-action or wrong action of a body wholly subordinate to it.

The argument founded on the 45th section of the Consolidation Act is even less conclusive. The power of the common council to impeach and of the select council to try the impeachment for misdemeanor in office, and thereupon to remove ‘‘ officers elected by the qualified voters,” is not incompatible with the exercise of the judicial power to oust an usurping officer, or one holding over unlawfully. It is not a specific proceeding for the case before us, and does not fall within the Act of 21st March 1806, Purd. 41, requiring when a remedy is provided or duty enjoined by any act, the directions of the act shall be strictly pursued. Whatever may be the effect of the 45th section in a case of forfeiture, in its application to officers elected under the charter by the qualified voters, to whom it more strictly applies, and as to which we give no opinion, the argument is contradictory which assumes for council the exclusive power to try the disqualification of its own members, and yet insists on impeachment as the only remedy under the 45th section. It would be a new phase of the case to find the common council calling on the select to try its members. Upon the whole casé we are of opinion that the court below erred in giving judgment for the defendants on the demurrer.

The judgment is therefore reversed, and the court do now adjudge and determine that the said William S. Allen and Henry Huhn have forfeited their offices as members of the common council of the city of Philadelphia, by reason of the matters suggested to us by the attorney-general of this Commonwealth, and by them admitted in their demurrer; and do now consider and adjudge that they and each of them be ousted, and altogether excluded from their offices as councilmen as aforesaid, arid that they and each of them pay the costs of this proceeding; and we do order and adjudge that Nicholas Shane, whose term of office hath expired, shall also pay the costs ; and it is ordered that a certified copy of this judgment be served by the high sheriff of this county upon each of said defendants, William S. Allen and Henry Huhn, forthwith, and a certified copy of the decree also delivered by him to the clerk of the said common council, of all which the said sheriff is required to make immediate return.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Champion versus Gordon.
    1. No days of grace are allowed on a post-dated check drawn on a hank or hanker. The same rule applies to such a check payable at a future day.
    2. An order drawn in the ordinary form of a bill of exchange, whether on a banker or other person, is a bill with all the liabilities and privileges incident by the law merchant to a bill of exchange.
    3. The same is the rule where an order is upon a person not a banker, with whom the drawer keeps his money on deposit.
    4. By a check on a bank payable at a future day the drawer undertakes only that he will have the money there at that day.
    5. Lawson v. Richards, 6 Phila. Reports 179, adopted.
    February 2d 1872.
    ¿.'Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: of January Term 1871, No. 287.
    On the 5th of March 1870, Alonzo Gordon brought an action of assumpsit against John B. Champion on the following check, of which the plaintiff was endorsee and holder.
    “ Philadelphia, November 22d 1869.
    “The Commonwealth National Bank pay to H. Yerkes, or-order, one hundred and fifty (December 3d 1869) dollars.
    “ John B. Champion.”
    The check was protested December 3d 1869.
    On the trial, October 19th 1870, the plaintiff offered the cheek and protest in evidence. The offer was objected to by the defendant, on the ground that the paper was an inland bill of exchange, had not been presented at maturity, and had been prematurely protested. The offer was admitted, and the court instructed the jury to find for the plaintiff; reserving the question whether the paper was a bill entitled to grace.

      The jury found for the plaintiff for $160.62.
    The court afterwards entered judgment on the verdict for the plaintiff on the reserved question.
    This was assigned for error by the defendant, who removed the record to the Supreme Court

      J. E. Carpenter and W. W. Wiltbank, for plaintiff in error.

      J. W. Patton, for defendant in error
   The opinion of the court was delivered, May 18th 1872, by

Sharswood, J.

The law merchant recognises clearly a distinction in many respects between checks on banks and ordinary bills of exchange. One difference is, that when the former are payable on demand or at sight no days of grace are allowed. The same rule holds when they are post-dated: Byles on Bills 14, note; 3 Kent’s Com. 104, note; In re Brown, 2 Story’s Reports 502; Daniel v. Kyle, 1 Kelly 304; Mohawk Bank v. Broderick, 10 Wend. 405; Salter v. Burt, 20 Wend. 205; Andrew v. Blackly, 11 Ohio (N. S.) 89; Westminster Bank v. Wheaton, 4 Rhode Island 30. Whether it applies also to checks payable at a future day named, is a question upon which there is a contrariety of opinion and decision. Mr. Justice Story says: “ The argument pressed is that checks are always and properly payable on demand, and that when payable at a future time, they become to all intents and purposes inland bills of exchange. But I am not, by any means, prepared to admit the validity or force of this distinction ; and no case has been cited which in my judgment satisfactorily establishes it. A check is not less a check, because it is post-dated, and thereby becomes in effect payable at a future and different time from that on which it is drawn or issued. This is sufficiently apparent from the case of Allen v. Reeves, 1 East 435.” That was the determination of a question arising under the Stamp Acts, and it was there held that a post-dated check was not a draft payable on demand but at a future day, and therefore liable to the duty. Judge Story adds: “ It (a check) is usually also made payable on demand; although I am not aware that this is an essential requisite. The distinguishing characteristics of checks, as contradistinguished from bills of exchange, are (as it seems to me) that they are always drawn upon a bank or banker ; that, they are payable immediately on presentment, without the allowance of any days of grace, and that they are never presentable for mere acceptance, but only for payment:” 2 Story’s Rep. 512. He quotes Chancellor Kent as concurring in these views: 3 Kent 104, n.

The ordinary commercial form of a bill of exchange payable at a future day is at so many days’ or months’ notice after date or sight. An order so drawn, whether upon a hanker or any other person, ought to be regarded as a bill with all the privileges and liabilities which by the law merchant are incident to a bill. The drawer by adopting this usual form must be held so to intend. So if an order be drawn on a merchant or other person not a hanker, with whom the drawer keeps money on deposit subject to draft, payable at a future day named, there exists no reason why the same rule should not apply. But there is a good reason why there should be a difference between an order so drawn upon a banker, which certainly must be presumed to be by a person who keeps money on deposit with such banker, subject to draft, and an order on a merchant or other person. If such an order drawn upon a bank payable at a future day named in it, must be considered as an inland bill of exchange, and not a check, then the payee or holder has the right to present it at once for acceptance, protest it at once for non-acceptance, and sue the drawer immediately. Should it be accepted, however, the funds of the drawer in the bank would necessarily be thereby tied up, until the day of payment. All the objects of directing payment at a future day would thus be frustrated. What the drawer undertakes is, that on a day named he will have the amount of the check to his credit in the bank. In the mean time he wants the full and free use of his entire deposit. It is not denied that a post-dated check cannot be presented for acceptance. That is by implication payable on a future day. Why then is a check expressly so made payable to stand on different ground ? In the ease before us an ordinary printed form of a bank check was evidently used, and the day of presentment written in one of the blanks. This is the most convenient form, for it calls the attention of the cashier or paying-teller to the fact, which he would be likely to overlook if it were expressed only by the date. Nothing, I am told, is more common than such mistakes in the payment of post-dated checks, and depositors often thus find their account overdrawn, very much to their embarrassment. If we determine that an order like that before us is not presentable for acceptance before maturity, we settle the question. It is a check and not a bill of exchange. More than twenty years ago the banks of Philadelphia under the advice of their counsel adopted this rule,- and it has been their uniform practice ever since. The usage of the banks in the commercial metropolis of the state ought to have great weight in determining a question of this character. It is perhaps quite as important that such usage should not be disturbed, as that the point should be decided abstractly or theoretically right. It was so held in 1866 in the District Court of Philadelphia, in Lawson v. Richards, 6 Philadelphia Rep. 179, a case in which the most eminent counsel at the bar were concerned for the defendant, and that determination was-acquiesced in.

Judgment affirmed.


author: Williams, J.

text:
    Baird versus Pettit.
    1. The plaintiff was employed as draftsman in the defendant’s locomotive works; a carpenter employed in “jobbing” for defendant in any part of the works was, by the direction of the defendant, superintending the excavation of a cellar under the building, employing and paying hands, &e. He had a large pile of dirt thrown on the public foot-walk; the plaintiff in leaving the house in the dark, after ceasing his day’s work, fell over the dirt and was injured. Held, that the plaintiff and carpenters were not fellow-servants in the same common employment, so as to relieve the defendants from liability from the carpenter’s negligence.
    2. Servants are engaged in a common employment when each by ordinary sagacity might foresee that the employment.may expose him to risk from the other’s negligence.
    3. The plaintiff having ceased work for the day and left the shop, the relation of master and servant had ceased when the injury occurred; he was as any other citizen.
    February 2d 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Philadelphia: No. 58, to July Term 1871.
    This was an action on the case brought February 29th 1868, by William Pettit against Matthew Baird, Charles T. Parry and George Burnham; a number of others were originally named as defendants, all whose names were stricken from the record.
    The declaration alleged that the defendants were owners and possessors of a building in Broad street, Philadelphia; that being so possessed of the same, they negligently allowed dirt and rubbish to be thrown out of it upon the street in front thereof; that plaintiff was passing along said highway and slipped on said pile of dirt, whereby he was damaged to the extent of $15,000.
    The accident occurred in November 1865. The undisputed facts seemed to be .these :
    At that time Matthias W. Baldwin and Matthew Baird were engaged as locomotive-engine builders, under the firm-name of M. W. Baldwin & Co., and occupied the large manufactory on Broad street, between Buttonwood and Hamilton streets. The plaintiff was then, and had been for thirty-five or forty years previously, engaged in making drawings for tools, and seeing that the work was done in accordance with the drafts. About the time of the accident, an excavation was'being made of a cellar of the manufactory in carrying on their business. The dirt from excavation was thrown out on the side-walk. In leaving the building, after having quitted his work in the evening, the plaintiff in going along the pavement fell over the heap of dirt thus thrown out. He alleged that he was thereby seriously injured in his back, so as to be prevented from performing his usual work, besides enduring much pain. Baldwin died after the accident.

      The plaintiff testified that he occupied a room in the front of the building on Broad street; he went out of the building shortly after six o’clock in the evening, went up Broad street on his way home, for a short distance, when he “ pitched into a pile of dirt,” fell on his hands and knees and was badly hurt. He further testified as to the character and continuance of his injury and suffering.
    There was other evidence corroborative of the plaintiff on these points.
    David Kramer testified that he was a carpenter, and had been in the habit of doing jobbing-work about Baldwin’s shop. He was “employed to lay a new floor and excavate the cellar, to superintend the job. Dirt was excavated from that cellar, thrown from there on the foot-walk. By my orders this excavation was done. I was directed to have it done by the firm of Baldwin & Baird. There was an agreement between us for me to receive a certain amount of profits on the labor. Alterations were explained to me how they wanted them done, and placed in my hands to have the work done. I employed the workmen and I paid them. They were to look to me for orders, and not to the firm.
    “ I had a shop outside, and I worked at the business generally. The bills were presented to me; there was a sub-agreement with Wilt & McClellan to do the excavation and the removing the dirt. They were men specially employed in that business; I employed them and paid them ; they were to do it by the day, and to furnish the necessary men and carts; the men were of their own employment, so were the carts ; * * * I did all their work; don’t know that we made an agreement for any job ; I was to employ the labor and be responsible for it — to be responsible that they used care and saw the work properly done; when I wanted money I would get it from them ; the bills were brought to me by Wilt & McClellan; the firm were customers of mine, and I did their work generally ; there was no special agreement about this job ; they told me they wanted the cellar dug out and laid. I employed the hands necesary for the work I had. If they wanted anything different from the original plan they informed me of it; if I didn’t do exactly what was wanted they would tell me what was to be done, sometimes Mr. Baird, sometimes Mr. Parry, sometimes Mr. Baldwin. No particular agreement as to this particular work; they pointed out what was to be done; I went on in the usual way; Parry was the superintendent; when anything of the sort was pointed out, I obeyed their instructions; wasn’t independent of their orders in doing the job ; I was subject to their orders ; saw Baird and Parry during progress of business; sometimes they’d come in and sometimes I’d go to them ; if I wanted any instructions I’d go to them; they’d give me my instructions; I don’t say they gave me any instructions about this particular business; they always gave instructions first; I was looked on to carry them out; I acted under their orders throughout; don’t know I did or did not get any instructions during this particular job; can’t draw any distinction between this and any other; in this and every other acted under their orders; charged so much advance on the bills; men from day to day, worked under my superintendence; no round contract to do anything ; I acted as superintendent over them ; my business was to see that the work was properly done. If the work was improperly done I was responsible. By instructions I mean when they wanted anything done they would give me the plan and tell me to do it; if not properly done I was responsible; the bills I presented were not the bills of the workmen, but my own, which included the price I paid; they were responsible to me, and I to Baldwin & Co.; by responsible, I mean it was my business to see that the work was well done; the workmen took instructions from me, and did not get them from Baldwin & Co.; in relation to taking out the dirt, that was the business of the cellar-diggers to haul it away — part of their contract with me; I engaged them by the day to do the work; I don’t know anything about the regulations of the shop.”
    The defendants gave evidence as to the character of the employment of Kramer and Pettit; also evidence that Pettit had been in very feeble health from rheumatic affections, principally in his back, and had been no more unable to attend to his duties after the accident than before, together with evidence as to other particulars tending to sustain their defence.
    The court amongst other things charged: * * *
    “ A master or employer is not responsible for an accident to one servant or employee through the negligence of a fellow-servant or employee in the course of the business or employment in which they are engaged. But there is an obvious distinction between that case and the ease of an accident said to have arisen from negligence in a matter which did not constitute part of the regular business of locomotive building, and which was only an improvement or repair of the premises. Now if defendants were making repairs in the premises, and either they or the agents whom they employed were guilty of negligence in making repairs, or in not properly protecting people against the obstructions created in making repairs, they are as much responsible to one of the workmen in the establishment as they would be responsible to anybody else.”
    The court refused to charge as requested in defendants’ 2d and 3d points, which were:—
    “ If Kramer was not employed to do the work of excavation as an independent employment, but, under the control and supervision of defendants, and he, or the workmen under him, performed it negligently, whereby the plaintiff was injured, he cannot recover against defendants if he was also, as he states, in their employ at the time.
    “ If Kramer was not employed to do the work of excavation as an independent employment, but, under the control and supervision of defendants, and he, or his workmen, performed it so negligently that plaintiff was thereby injured, be cannot recover against defendants, if he also was in their employ at the time, under an agreement to be paid for his services, a percentage of the profits of the business.”
    The defendants’ 4th point was:—
    “ Where servants are engaged in a common employment and with a common object, an injury sustained by one servant, in consequence of the negligence of a fellow-servant, gives no right of action against the master, although the servants are not engaged in effecting the same common immediate object, but are occupied in different departments of duty.”
    In answer the court charged:—
    “ It is a rule of law where several persons are employed in the same business by one master or proprietor, and one is injured by an accident in the course of prosecution of the business arising out of negligence of a fellow-servant or employee, he cannot have an action against the master or proprietor, because, on entering into the employment, he assumed all the ordinary risks attendant upon it. But this does not apply to an injury resulting from negligence in matters not immediately connected with the prosecution of the business and not a part of it.”
    The defendants’ 5th point was:—
    “ If the defendants used the building in front of which this accident occurred, in the business of locomotive building, as a manufactory, and employed therein men (not exercising an independent employment) to build locomotives, and others to clean out rubbish accumulated in their business, or to make alterations necessary to adapt it to their business, such workmen were engaged in a common employment such as exonerated the defendants from liability to the former for injuries occasioned by the negligence of the latter in work done whilst both were thus employed.”
    This point was refused.
    The defendants’ 6th point was : — ■
    “If the persons who excavated and threw out the dirt were employed by Kramer, and were under his direction, plaintiff cannot recover.”
    The court answered:—
    “ This would be so, if the facts were that Kramer’s employment was an independent employment, and defendant had no control over him, or over the work in its progress, or ov'er those who had the work in hand. The testimony of Kramer himself is, that he superintended the work for the firm, and received compensation for doing so, being a percentage upon the cost of it.”
    The court instructed the jury to find a verdict for Parry and Burnham and the jury found accordingly. They found a verdict for tbe plaintiffs against Baird for $12,000.
    The court discharged a rule obtained by the defendant for a new trial, on the plaintiff entering a remittitur of the verdict for all the damages found above $5000.
    The defendant Baird took a writ of error and assigned for error the part of the charge above given and the answers to his points.

      J. G. Johnson and C. Griblons, for plaintiff in error'.
    Where one man enters into the service of another, in consideration of the pay for which he bargains, he assumes all its risks, including, that of the negligence of those co-workers with whom he will be brought in contact: 3 Fisher’s Digest 5757-60.
    A fellow-servant is any one serving the same master and under his control, whether equal, inferior or superior to the injured person, in his grade or standing: Shearman & Redfield on Negligence, sections 100, 109; Barton’s Hill Coal Co. v. Reid, 3 Macq. H. L. Cas. 266; Ryan v. Cumberland Valley Railroad, 11 Harris 386; Morgan v. Vale of Neath Railway Co., 5 Best and Smith 570, s. c. 1 Q. B. L. R. 152; Lovegrove v. London Railroad Co., 16 C. B. N. S. 669; Hard v. Vermont Railroad, 32 Vermont 473; Caldwell v. Brown, 3 P. F. Smith 456; Gilman v. Eastern Railroad Co., 10 Allen 233; Coon v. Utica Railroad Co., 7 N. Y. 489; Boldt v. New York Central Railroad, 18 Id. 443; Wright v. New York Central Railroad Co., 25 Id. 564; Waller v. South Eastern Railroad, 2 Hurl. & Colt. 101; Hutchinson v. Railway Co., 5 Exch. 349; Wiggett v. Fox, 11 Id. 332; O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 241; Brown v. Acrington Co., 34 L. J. Ex. 208.

      R. P. White and Gr. AT. Parle, for defendant in error.
    A person employed cannot take into account a risk which he has no reason to .anticipate, and he does take into account the risks which the average experience of his fellows has led them, as a class, to anticipate: Farwell v. Boston and W. R. R., 4 Metcalf 49.
    They cited and commented on the cases referred to by the plaintiff in error. Catawissa Railroad v. Armstrong, 13 Wright 186, Hunt v. Penna. Railroad, 1 P. F. Smith 475, Cumberland Valley Railroad v. Myers, 5 Id. 288, show that the rule exempting the master from suit is not to be extended, and that if O’Donnell’s case was not within the rule this cannot be.
   The opinion of the court was delivered, November 4th 1872, by

Williams, J.

The plaintiff below was employed as draftsman in the works carried on by the defendant for the manufacture of locomotive engines. On the evening of the 15th of November 1865, after the hands had quit work, he left the building where he was employed, and was on his way home, when he fell over a pile of dirt and rubbish on the sidewalk in front of the premises, a few feet from the steps of the building, which had been thrown out in deepening a cellar, and left on the pavement, and in falling received the injury for which this action was brought. The work of excavating the cellar was done under the superintendence of the carpenter employed to do the jobbing work about the premises, but the men who did the excavation, as the jury have found, were subject to the defendant’s direction and control.

Is the defendant, then, liable for the injury occasioned the plaintiff by their negligence ? If they were engaged in the same common employment with the plaintiff, the defendant is not responsible for the injury, becanise the plaintiff in entering into the defendant’s service assumed all the risks usually and necessarily incident to the employment. One of these risks, as is well settled, is the liability to injury from the negligence of fellow-workmen. But if they were not in the same common employment, the defendant is liable for the injury occasioned by their negligence, for the plaintiff did not take upon himself any risks except such as are ordinarily incident to the business in which he was engaged. The defendant’s business was the manufacture of locomotive engines, for which the plaintiff was employed to make the drawings. In accepting the employment he took upon himself all the risks necessarily incident to the business. But the workmen by whose [negligence he was injured were not engaged in the manufacture ¡of engines, nor in the performance of any service connected with the business. There is not a particle of evidence that the cellar they were excavating had been or was intended to be used for any purpose connected with the business carried on by the defendant. If, in order to exempt the master from responsibility, it is not necessary that “ the servant causing, and the servant sustaining the injury should both be engaged in precisely the same or even similar acts,” it is essential that they should be engaged in the same common employment, and that they should be working for the same common end. As it was the plaintiff’s business to make drawings for tools and engines, all persons engaged in their manufacture, or in carrying on the works, however employed, must undoubtedly be regarded as his fellow-workmen and engaged in the same common employment. But with what propriety can it be said that the workmen who excavated the cellar were engaged in the same common employment as the plaintiff? Servants, it is said, are engaged in a common employment when each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity ought to be able to foresee, when accepting their employment, that it may probably expose them to the risk of injury in case he is negligent. That this is the proper test is evident from the reason assigned for the exemption of masters from liability to their servants, viz.: that the servant takes the risk into account when fixing his wages. He cannot take into]', account a risk which he has no reason to anticipate, and he doe^1 take into account the risks which the average experience of his fellows has led him, as a class, to anticipate: Showman & Red-field on Negligence 109. If this is the rule — and wc we not disposed to question its soundness — how could the plaintirt, in the exercise of ordinary sagacity, foresee, when accepting the employment of draughtsman, that it would probably expose him to the risk of injury from the negligence of the workmen employed by the defendant to excavate the cellar ? What reason had he to anticipate the risk so as to take it into account in fixing his wages ? Manifestly the negligence which occasioned the plaintiff’s injury was not one of the risks which he assumed in entering into the defendant’s employment.

But there is another reason for holding that the rule which exempts a master from liability for an injury occasioned by the negligence of a servant does not apply in this case. The relation of master and servant did not exist between the parties when the plaintiff received the injury. He was not then in the service of the defendant; he had quit work and was on his way home. He was no longer subject to the defendant’s control, or bound to obey his orders. As soon as he left the building he was his own master. He was then no more in the defendant’s service than any other citizen passing along the street, and he was entitled to the same rights and immunities. If the relation of master and servant did not cease when he left the building, after his day’s work was done, when did it ? It cannot be pretended that it followed the plaintiff home and remained with him while there. And if not, it must have ceased when he left the building, and he had the same right to an unobstructed sidewalk in front of the defendant’s premises as any other citizen; and, if injured by a dangerous obstruction, the same remedy for an injury. It will scarcely be contended that if, while on his way home, he had been run down by the defendant’s carriage, through the carelessness of the driver, the defendant would not have been responsible for the injury, because the negligence of the driver was one of the risks which the plaintiff assumed when he entered into his service. But in principle what difference is there between the two cases ? Why is not the driver of defendant’s carriage as much the plaintiff’s fellow-servant as the digger of the cellar ? And why should the plaintiff be required to foresee and take into account the risk arising from the negligence of the one and not of the other ? There is no real difference between the cases, and neither case is within the rule which exempts masters from liability for injuries occasioned by the negligence of tbeir servants. It is clear that this case is not within the rule, not only for the reason that the injury did not happen to the plaintiff while he was engaged in the defendant’s service, but because it was not occasioned by any of the risks he assumed when he entered into his employment. The risk which occasioned the injury was not one incident to the business, and to which only the workmen engaged in carrying it on were exposed; but one unconnected with the business, and to which all citizens having occasion to pass along the street were as much exposed as the plaintiff and his fellow-workmen.

It follows from what we have said that there was no error in the instructions given by the learned judge of the District Court to the jury, or in his refusal to affirm the points submitted by the defendant.

Judgment affirmed.


text:
    Work et al. versus Bennett.
    1. The plaintiff directed defendant, a broker, to buy stock for him and “ carry it." The defendant bought the stock and afterwards received from the plaintiff other stock, &e., as collateral for margin. The defendant pledged the collateral for his own debt; it was sold by his creditor, the plaintiff still being in defendant’s debt for a balance for the first stock. In an action of trover for the collateral, the defendant might recoup’the balance due him from the damages for the conversion of plaintiff’s stock.
    2. Had the collateral been in possession of the defendant the plaintiff eould not have recovered it without paying the amount due by him.-
    3. The defendant having wrongfully pledged the collateral, a tender of plaintiff’s debt before suit was dispensed with.
    4. The interest of the plaintiff in the collaterals was their market value at the time of the conversion, subject to the debt for which they were pledged.
    5. Neiler v. Kelley, 19 P. P. Smith 403, adopted.
    February 5th and 6th 1872.
    Before A&new, Shakswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 264, to January Term 1871.
    This was an action of trover, brought September 16th 1868, by Henry K. Bennett against George F. Work and Charles H. Graham, trading as Work, Graham & Co.
    The declaration was for the conversion of “ Six bonds of the Fairmount Park and Delaware River Passenger Railway Company, for $500 each, and 550 shares of the capital stock of the German-town Passenger Railway Company, of great value, to wit, of the value of $100,000.” Upon the trial of the case, after the testimony was closed, the plaintiff, by leave of the court, amended his narr., by adding after the figures “$100,000,” the words “and a certificate therefor.” The defendants pleaded “Not guilty.”
    The case arose upon transactions between the defendants, who were brokers, and the plaintiff, in which, as was alleged, the defendants bought for the plaintiff a number of shares of stock in the Hestonville Passenger Railway, and the stock and bonds for which this suit was brought were taken by the defendants from the plaintiffs as collateral security for its payment. The defendants pledged the securities for their' own notes, and afterwards failed, the plaintiff being largely indebted to them. When the defendants’ notes matured the stock and bonds were sold by those holding them to pay the notes, and the plaintiff, after demanding them, brought this suit. The principal question in the case was, whether in this action of trover the debt of the plaintiff could be recouped from the damages; there was also a question as to the measure of damages.
    The plaintiff testified that about the closeupf the year 1865, the defendants, by his direction, bought for him 500 shares of the Hestonville Railway stock, at $38 per share, which the defendants agreed “to carry” for him. About the same time, at the defendants’ suggestion, he purchased an interest in the Girard Avenue Railway Company, in anticipation that it would be consolidated with the Germantown Passenger Railway Company. Shortly afterwards, in consummating this arrangement (the details need not be stated), the plaintiff became entitled to an interest to the extent of one-seventeenth in the Fairmount Park and Delaware River Passenger Railway; as part of this he was entitled to 550 shares in the Germantown Passenger Railway, and $5500 in bonds of the Girard Avenue Passenger Railway. In the transaction he got eleven bonds of $500 each of the Fairmount Park and Delaware River Railway Company; he loaned ten of these bonds to Work, Graham & Co., and received four of them back. In January 1866, the defendants purchased for him 500 shares more of the Hestonville Railway Company; the price he did not then ascertain.
    He gave to the defendants the following agreement:—
    “ I agree to transfer to G. F. Work my interest in Fairmount and Girard Avenue and Germantown Passenger Railway Company to hold as collateral for margin on Hestonville Railroad stock, which he is carrying for me. H. K. Bennett.
    “Philadelphia, January 2d 1866.”
    Witness further said he loaned the bonds to the defendants as he would loan anything else.
    For the defendants, Work testified that the Hestonville Railway stock had been purchased by an association, of which plaintiff was one, in expectation of its rise; that they bought 500 shares for plaintiff under his direction; they paid for them in January 1866; defendants agreed to carry plaintiff’s stock; he agreed to take 500 shares more; the object of the first purchase was to keep the stock off the market; as to the other 500 he was to have an interest, not to exceed 500 shares, in “the pool;” they gave him notice that he would have to get some one to carry his stock, as those from whom they had borrowed money on the stock would sell it.
    On the 2d of January -defendants asked plaintiff for more margin, and he then assigned the bonds; the defendants failed about May 14th 1866; the defendants’ firm would not have failed if the plaintiff had taken his stock. After their failure, “the board of brokers fixed the amounts of settlements of Hestonville at $21.50;” they credited the plaintiff with his stock at that rate; the plaintiff still owed them about $8000; the stock was in the name of the defendants on the books of the company; the bonds also were pledged, and the money realized used by the firm. The defendants were treasurers, and were carrying the association stock and used their own funds; the association was all the time indebted to them.
    There was a good deal of evidence as to the transactions, the price of stock and bonds at different times before the suit.
    The defendants points were:—
    1. By the transfer of plaintiff to G. E. Work, dated January 2d 1866, plaintiff assigned the bonds of the Eairmount and Delaware River Passenger Railway Company and the 550 shares of the Germantown Passenger Railway Company to G. E. Work.
    2. Under said transfer G. F. Work was authorized to have the 550 shares issued to him and the bonds delivered to him.
    3. Under said transfer G. E. Work had authority to sell at private sale the interests assigned to him as collateral security after demand by Work of the amount due by plaintiff, for which the interests had been pledged and his refusal to pay the money.
    4. The plaintiff cannot recover in this action for the conversion of 550 shares of stock in the Germantown Passenger Railway Company described in the plaintiff’s narr.

    The court (Thayer, J.) charged: * * * “ The general outlines of the facts of the case seem to be these:—
    “ The defendants, as brokers, purchased for the plaintiff 500 shares of stock of the Hestonville Passenger Railway Company. They paid for the stock; they agreed that they would carry it for him — that is, trust him to repay them. The defendants became indebted to plaintiff for the price-
    “ Afterward, the Girard Avenue Passenger Railroad consolidated with the Germantown Passenger Railroad Company. The plaintiff agreed to purchase an interest of one-fourteenth, afterwards reduced to one-seventeenth, in the Girard Avenue Passenger Railroad Company.
    “ The plaintiff became entitled, by his purchase, to 550shares of stock of the Germantown Passenger Railroad Company, and also to $5500 of bonds. Six of these bonds, amounting to $3000, were put into the hands of the defendants, and, with the 550 shares of stock, constitute the property for which suit is brought. For the unlawful appropriation, by the defendants, of this property, this suit is brought. * * *
    “ How the stocks came is clear. It is plain, that the stock was received as collateral security against loss, by the defendants, in their purchase of Hestonville stock for the plaintiff.
    “ How the bonds came is not so clear. Plaintiff says he loaned them to the defendants. Work says that when Hestonville stock declined, being apprehensive of loss, and regarding the transfer by Bennett of his interest to include these bonds, he called on plaintiff to deliver them to him, and that the plaintiff, acquiescing in the justice of his demand, delivered them to him. The assignment undoubtedly carried the stock; it was indisputably transferred by plaintiff to defendant.

      “ Whether the bonds were also, I leave as a question of fact. I instruct you that the stock passed, and leave the other to you as a question of fact.

      “ I am bound to instruct you that, by the assignment, the defendants acquired a special property in the property mentioned in it.
    “ The nature of this special property was this. They had the right to hold the property so assigned, until the debt arising out of the Hestonville transaction was paid. If the debt was not paid, they had the right to give notice to Bennett, that, if the debt was not paid by a certain day, they would sell the property pledged, at public sale. The property pledged could not be sold without notice to the plaintiff. * * * [I am bound to say, as matter of law, that there is no evidence of any such notice. * * * In fact, the securities were not sold. Work says thatthey were pledged by him with their creditors, to secure their own debts, 'and were sold by their creditors. This was an unlawful conversion of the securities.] * * * [I do not see how they may escape responsibility in this action. If Bennett still owes them money, on account of the Hestonville transaction, they may bring suit for the amount. But it is no answer to this action for their unlawful appropriation of the property of the plaintiff, to say that he is indebted to them in another transaction.]”
    He answered the points as follows:—
    “ 2. Affirmed ; but, if they were issued to him in his own name, he was a trustee for the real owner who had paid for them, and the defendants had only the right to retain them as a security; he could not pledge them to another.”
    4. Refused.
    “ [Finally, in determining the amount of damages, I instruct you to take the highest value which the stocks and bonds attained between the time of the conversion and the bringing of this suit.]” The verdict was for the plaintiff for $20,850.
    On a writ of error to the Supreme Court by the defendants, they assigned for error :
    1, 2, 6. The parts of the charge in brackets.
    4, 5. The answers to their 2d and 4th points.

      W. J. Budd (with whom were P. Archer and J. P. O’Niell), for plaintiffs in error.
    As to the measure of damages they cited Neiler v. Kelley, 19 P. F. Smith 403; Johnson v. Stears, 109 E. C. L. R. 330; Balt. Marine Ins. Co. v. Dalrymple, 25 Md. 271.

      G. L. Crawford and B. Harris Brewster, for defendant in error.
   The opinion of the court was delivered, February 15th 1872, by

Sharswood, J.

The learned judge below,,in his charge to the jury, as specified in the second assignment, fell into an error, we think, in saying “ Bennett (the plaintiff) still owes them (the defendants) money on account of the Hestonville transactions ; they may bring suit for the amount. But it is no answer to this action for the unlawful appropriation of the property of the plaintiff, to say that he is indebted to them in another transaction.” There was evidence in the testimony of the plaintiff himself, that he had authorized the defendants to purchase the Hestonville shares. He transferred by writing, signed by himself, to one of the defendants, his interest in Fairmount and Girard Avenue and German-town Passenger Railway Company, “ to hold as collateral for margin on Hestonville Railroad stock which he is carrying for me.” Afterwards he delivered to Work the bonds of the Fairmount Park and Delaware River Passenger Railway Company as part of the same collateral; so Work testified, although Bennett asserted that it was a loan merely; but it was evidently a question for the jury. There was evidence, then, that both the stock and bonds were delivered to the defendants as collateral security for the indebtedness of the plaintiff to them on account of the Hestonville transactions. Had the stock and bonds, which were the subject of this action of trover, remained unconverted in the hands of the defendants, the plaintiff could not have recovered without a tender of the amount of the debt for which they were then pledged, or proof of payment of such debt. But they had wrongfully converted them by pledging them for their own debt, and a sale afterwards by their pledgees, without notice to the plaintiff. This dispensed with any tender before suit brought; but as in trover, not the chattels themselves, but the actual damage to the plaintiff from the conversion is to be recovered, the interest of the pawnee is to be taken into account, in settling the amount. The interest of the plaintiff was the market value of the stocks and bonds, subject to the debt for which they wore pledged. It was held in Satton v. Overett, 20 Wend. 267, that a tender must be made before suit brought, where a lien exists, unless the goods have been parted with; in which latter case all that can he claimed by the defendant is a mitigation of damages by way of recoupment. “It appears,” says Chancellor Walworth, “that the plaintiff in error had actually converted the goods by selling them on the day of their purchase ; and if they once had a lien which would have rebutted the presumption of a conversion, from the mere fact of refusing to deliver on demand when the amount of the lien was not tendered or offered to be paid, a tender, after they had put it out of their power to raise the money and deliver the goods by an actual sale, would have been a useless ceremony, and was not necessary to enable the owner of the goods to recover in an action of trover. In such a case, if there was a valid lien in favor of the defendants, before the conversion, they would be entitled to be recouped in the damages to the extent of such lien, but they would not defeat the plaintiff’s action altogether.” So in Johnston v. Stear, 15 Common Bench Rep. N. S. 330. “ There is authority,” says Erie, C. J., “ for holding that in measuring the damages to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into account.” He cites Cherlery v. Wall, 5 Hurlst. & N. 255; and Brierly v. Kendall, 17 Queen’s Bench 937; with Story on Bailment 315; and Jarvis v. Rogers, 15 Mass. 389. To which may be added, Baltimore Company v. Dalrymple, 25 Md. 271; and Neiler v. Kelley, in this court, 19 P. F. Smith 403. Whether any and what amount was due by the plaintiff to the defendants upon the pledge should have been submitted as a question of fact, and if any amount was found, to be recouped from the damages. The learned judge erred likewise as specified in the sixth assignment of error in charging the jury. “ Finally, in determining the amount of damages, I instruct you to take the highest value which the stock and bonds attained between the time of conversion and the bringing of the suit.” It was decided by this court in Neiler v. Kelley, just cited, that this rule for the'measure of damages only applied where there is a duty or obligation devolved upon a defendant to deliver stocks or securities at a particular time, and that obligation has not been fulfilled. Thus, if in the case before us there had been a demand with the tender of the debt, or a demand after payment of the debt, the rule laid down would have been applicable. But unless such a state of circumstances exists, the measure of damages is the market value of the stocks or securities at the time of the conversion, with interest.

There are no other errors which would call for a reversal of the judgment. The question whether there ever was a certificate for the 550 shares of stock included in the action was not properly-presented to the judge, and - an instruction prayed for on that supposed state of facts. It is clear that it is not in the fourth point, for as to the 550 shares of stock described in the plaintiff’s narr. the declaration was amended by adding the words, “ and a certificate therefor.”

Judgment reversed, and a venire facias de novo awarded.


author: Agnew, J.

text:
    Ladley versus Creighton.
    1. Under Act of April 27th 1855, g 8 (mortgage of leaseholds), recording such mortgage with a copy of lease and referring to the lease recorded with a former mortgage, held to be a substantial compliance with the act.
    2. The mortgage was by the lessee of his term of years under a lease of a mill and the machinery mentioned in a schedule attached; after the execution of the mortgage more machinery was put into the mill. Held, that the latter machinery passed by a sale under the mortgage.
    3. After the recording of the mortgage, the lease and machinery were sold under fi. fa.’s against the lessee, the purchaser took possession, and assigned them; subsequently the lease and machinery were sold under the mortgage, the assignee of the first purchaser not being made a party to the scire facias or having notice of the judgment on it. In replevin by the purchaser under the mortgage against the assignee of the first purchaser, Held, that the latter having notice of the mortgage by the record, and being precluded from no defence against its validity in this suit, want of notice of the scire facias, &c., was immaterial.
    4. The defendant’s title being adverse to the mortgage, its validity depended on the validity of the mortgage.
    5. As between judgments entered on the same day there is no priority; but as between a judgment and deed priority depends on proof.
    6. The record in the mortgage-book is evidence of a mortgage.
    February 6th and 7th 1872.
    Before Agnew, Sharswoód and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 263, to January Term 1871.
    On the 21st of July 1866, James Creighton issued a replevin against Joseph Ladley for certain machinery. The defendant gave a claim-property bond and retained the goods.
    The cause was tried November 23d 1870, before Thayer, J.
    Sarah Hirst being owner of the “ White Mill ” in Philadelphia, on the 25th of January 1858, leased the premises to William Divine and William Tomlinson for ten years; the lease was acknowledged October 14th 1859. William Divine afterwards sold his interest in the lease and the machinery to Tomlinson. Tomlinson then mortgaged the term. On the 1st of March 1862, Mrs. Hirst and Tomlinson acknowledged a copy of the lease and assignment before an alderman, and the whole, mortgage, lease, &c., were recorded March 19th 1862. On the 25th of Jan. 1864, Tomlinson mortgaged the term and the machinery (a schedule of which was attached), to Hugh Creighton and Joshua Peirce to secure the payment of $>10,000, and with the mortgage the lease of the “ White Mill” was delivered to Peirce, one of the mortgagees. At the execution of the mortgage there was annexed to it a copy of the lease and Divine’s assignment to Tomlinson; both the lease and the assignment were recited in the mortgage; and it was also recited that the lea-se had been recorded with the former mortgage, referring to the record; also that a copy of the lease and the assignment were attached to the mortgage; — this mortgage with the copy of the lease and assignment attached were recorded under the Act of April 27th 1865, section 8, Pamph. L. 869, 1 Br. Purd. 486, pi. 140.
    After making the mortgage, new machinery was put into the mill by Tomlinson.
    To December Term, 1865, writs of fieri facias were issued against Tomlinson, under which the lease and all the machinery were sold by the sheriff, and the purchasers afterwards assigned their right to Joseph Ladley the defendant, who took possession. On the day of the assignment Creighton and Peirce issued a scire facias on their mortgage on which they obtained judgment, and under it, on June 26th 1866, Tomlinson’s interest was sold to the plaintiff; for the recovery of the machinery this action of replevin was brought.
    On the trial the plaintiff offered in evidence the record of the proceedings under the mortgage of Creighton and Peirce and their purchase. The offer was objected to," admitted, and a bill of exceptions sealed. He offered in evidence the record of the mortgage, copy of lease, &c., it was objected to by the defendant, because the lease itself was not recorded, and because the mortgage-book containing the record was not the best evidence.
    The evidence was admitted and a bill of exceptions sealed.
    The plaintiff then gave evidence of the value of the goods, including certain machinery not mentioned in the indenture of mortgage, nor in the schedule thereunto annexed, but mentioned in the execution as having been added to or substituted for other machinery.
    The following were points of the defendant with their answers:
    “ 2. The said Act of Assembly (April 27th 1855) being a particular law, and in derogation of the common law of the state, such particular law will not prevail against the common law (where the interest of third parties are affected by it), unless the provisions thereof be strictly complied with.”
    Answer: “ I affirm this point, but instruct you that the recording of the lease with the mortgage, and as a part of it, the lease being recorded in full as a schedule annexed thereto, was a compliance with the law.”
    “ 3. The said Act of Assembly requires, as one of the essential conditions of the validity of such mortgage, that the lease of the premises of which the said mortgage is predicated, shall be recorded with the mortgage; otherwise such mortgage will be void, as against execution-creditors (purchasers at a former sheriff’s sale of the mortgaged chattels); and a subsequent sheriff’s sale of the said chattels (under proceedings had upon such mortgage) will not affect the title of the sheriff’s vendees under the first sale (or their assigns), in and to the said chattels, said assignees not being a party to said proceeding. Nor does the subsequent sheriff’s sale, under the proceedings had upon such mortgage, vest any title to the same chattels in the purchaser at such sale; and the recording of a copy of the lease with the mortgage, is not a sufficient compliance with the law.”
    Answer: “ I reply that this lease has been well recorded with the mortgage.”
    “ 4. The lease of the White Mill not having been recorded with the indenture of mortgage, under which the plaintiff claims, especially as the same was in the possession of the mortgagees, the said mortgage was invalid as against the defendant, and therefore the plaintiff cannot recover.”
    “ 6. The paper pretended to have been recorded with the mortgage, under which the plaintiff claims, not having been the lease of the White Mill, made by Sarah Hirst, nor even the copy pretended (by the plaintiff) to have been acknowledged before Aider-man McCahen, but a copy of a transcript of the said paper, pretended to have been acknowledged as aforesaid, made from the books of the recorder of deeds, is not the recording of the lease of the White Mill, required by the aforesaid Act of Assembly; and therefore in law the plaintiff cannot recover.”
    The court refused the 4th and 6th points.
    “ 7. The lien of a chattel mortgage binds only the chattels therein mentioned, or the chattels mentioned in the schedule thereunto annexed, and does not bind any other chattels that may be afterwards brought upon the property; and in no case could the plaintiff recover other or more property than the property actually mortgaged; nor does the judgment bind property not described in the mortgage.”
    Answer: “ I refuse so to charge the jury, but I reserve the point, whether the plaintiff acquired, by his purchase at the sheriff’s sale under the mortgage, a good title to the articles brought into the mill after the execution of the mortgage, and sold under the levari facias.”
    The jury returned the following verdict: — “We find for the plaintiff, for the sum of $8711.22, subject to the opinion on the point reserved — That if the plaintiff acquired no title by his purchase at the sheriff’s sale, to the articles brought into the mill after the execution and delivery of the mortgage, then we find for the plaintiff for the sum of $5807.48 only.”
    The court afterwards entered judgment for the plaintiff on the reserved point for $8711.22.
    The defendant took a writ of error, and assigned for error:—
    The admission of the record of the scire facias on Creighton and Peirce’s mortgage; the admission of the record in the mortgage-book of the mortgage, lease, &c.; the answers to the defendant’s points, and entering judgment for the plaintiff on the reserved point.

      T. J. Clayton and J. Blackburn, for plaintiff in error.

      P. McCall and W. E. Whitman, for defendant in error.
   The opinion of the court was delivered, May 13th 1872, by

'

Agnew, J.

The principal question in this ease is upon the validity of the mortgage given by William Tomlinson to Hugh Creighton and Joshua Peirce, upon the lease and fixtures of a property known as the White Mills. The objection is, that the lease from Sarah Hirst to William Tonllinson was not recorded with the mortgage. A copy of the lease was appended to the mortgage as a schedule and recorded with it. It is contended that this was not a compliance with the first proviso to the Act of April 27th 1855, § 8, Pamph. L. 368, Purd. 330, pi. 128, requiring the mortgage to be acknowledged and placed on record in the proper county, together with the lease. In Sturtevant’s Appeal, 10 Casey 149, it was held that this provision is mandatory, and the mortgage is void as against execution-creditors, unless the lease be so recorded. But the true question here is, whether there has been a substantial compliance with the law. The purpose of the law is to give authentic information of the nature and extent of the mortgagor’s title under the lease. It cannot be doubted when the lease is once actually recorded along with a mortgage, that a copy annexed to a subsequent mortgage, with a reference therein to the former record of it, in the manner usual to identify the time and place of its record, would be fairly within the meaning of the act. It is the fact of the record of the lease, and the connection of that fact with the mortgage, to enable the public to ascertain the nature and extent of the mortgagor’s title, which was contemplated. Now this is done as well by the first record as by any subsequent entry of the lease, provided the mortgage makes such specific reference to it as will place the record before the view of any one searching the record of the mortgage. Any other interpretation of law would seriously impair its purpose. In the case of a lease lost or destroyed by accident after its first record, or a delivery of it to a former mortgagee who refuses to part with its possession, the lessee would he prevented from making any further mortgage of his title. In the case before us, the lease was executed on the 25th of January 1858, and acknowledged on the 14th of October 1859. On the 18th of March 1862, Mrs. Hirst, the lessor, and Tomlinson, the lessee, in whom the whole interest was then vested, took a copy of the entire paper, and went before another alderman and acknowledged it to be their act and deed, and desired it to be recorded as such. This paper was duly recorded with a former mortgage on, the 19th of March 1862. A copy of this entire document, including the last acknowledgment and the certificate of recording it, was attached to the mortgage before us; and the whole instrument was then duly recorded. Certainly this was a substantial compliance with the act. The document reacknowledged by the proper parties to the lease in 1862, and recorded as'a.n original, is not a mere copy. It is rather in the nature of a duplicate original. It was adopted by the parties, and being duly acknowledged by Mrs. Hirst and William Tomlinson as their act and deed, it stands upon higher grounds than a mere unauthorized transcript. After such an act, Mrs. Hirst would clearly be estopped as against the mortgage-creditors from denying the force of the paper as evidence of the nature and extent of the lease; and this is all that is necessary to make the mortgage effective. We think the learned judge committed no error in his instruction that the lease was sufficiently recorded with the mortgage to make it valid.

The next material question is as to the machinery alleged to be brought into the mill after the execution and recording of the mortgage. That this was new machinery may be safely inferred, but that it was independent and falling outside of the description in the mortgage is not clearly shown in the evidence. All we find in the bill of exceptions is that the plaintiff then gave evidence of the value of the goods, including certain machinery not mentioned in the indenture of mortgage, nor in the schedule thereunto annexed, but mentioned in the executions as having been added to or substituted for other machinery. The question as to the independent character of this new machinery is not clearly presented, and we cannot therefore affirm that the court erred in holding that the new machinery fell within the grasp of the mortgage. It certainly is not excluded, because it is not specifically enumerated or mentioned in the mortgage, or in the annexed schedule. The mortgage is general and comprehensive in its terms, while it does not appear that the schedule was intended to exclude everything that was not enumerated in it. The purpose of this schedule was evidently to secure the mortgagee in the title to all the machinery enumerated in it, that in the great variety and number of parcels, the mortgagor continuing in possession, should not be able to dispose of them to the prejudice of the mortgagee. The language of the mortgage is sufficiently comprehensive to include new machinery, for after conveying the lease and the machinery described in schedule A, it proceeds further to say: “ And all and singular the building, fixtures and machinery therein to said Tomlinson belonging, and thereunto appertaining.” It would be a narrow and illiberal interpretation of the Act of 27th April 1855, to say that it means to confine the lien of the mortgage to the precise machinery in a building at the time of its execution. Very few manufactories of any kind can run a year or even months, without the substitution of new parts for those worn out, broken or otherwise rendered useless. A woollen-mill, cotton-mill, rolling-mill or other factory must be looked upon as a whole, and all its parts as contributing to the success of its business. It must therefore be constantly kept in operating condition by the renewal of those parts which become worn out or useless, extending frequently to entirely new machines. Now to say that the mortgage bears upon the old parts only, and not the renewed, would deprive it of much of its value. There would be both the want of value in the remaining parts, and the uncertainty of the purchaser as to what he would get, to deter bidders at the judicial sale. Now all that this bill of exceptions informs us is, that the executions mentioned this machinery as having been added to or substituted. We find nothing the court below could safely rest upon, to charge that the machinery was so entirely independent as to fall outside of the description in the mortgage. The executions referred to were those of the opposing creditors.

The record of the scire facias and judgment upon the mortgage was proper evidence. The plaintiff claimed title through this proceeding, and the defendant’s case was not then before the court. It would have been error to exclude the record. After its admission the defendant claims, however, that as a purchaser of the machinery, lease, &c., under adverse executions, without notice of the scire facias and judgment on the mortgage, or being made a terre-tenant, he cannot be affected by the proceeding on the mortgage, which vested title in the plaintiff. But he had notice of the mortgage itself by the record of it, and he sets up no defence under it. He has been precluded from no defence he can make. It is not the conclusive effect of the judgment he disputes, but the validity of the mortgage itself, and failing in this he is not entitled to intervene in the proceeding under the mortgage. Whether the assignment under which he claims antedated the issuing of the sci. fa. on the mortgage is an immaterial question, for this assignment was of an adverse title, depending for its validity on tbe validity of the mortgage, and not upon the proceeding under it. And if it were material, he has laid no ground in the evidence to raise the question fairly. The sci. fa. was issued on the same day the assignment bears date, but whether before or after its delivery does not appear. As between judgments entered on the same day, there is no priority, the day being without fractions; but as between a judgment and a deed, priority depends on the proof: Mechanics’ Bank v. Gorman, 8 W. & S. 304. Without proof of the actual prior delivery of the assignment, it is impossible to say that the sci. fa. was not lis pendens when the defendant took the transfer. In no point of view, therefore, can we say that the sale under the mortgage failed to vest a good title to the lease and machinery in the plaintiff. It certainly was not error to admit the record itself of the mortgage in evidence. The Act of Assembly makes an exemplification from the record as good evidence as the original deed or mortgage. It would be singular, indeed, if the record from which the exemplification is taken would not be as good, if nq,t better evidence than the exemplification, which is but a copy bf a copy. It is the universal practice throughout the state to''-admit the books of record, whenever the exemplifications from them would be evidence. We discover no error in this record, and the

Judgment is therefore affirmed.