text:
    Fox’s Appeal. In re Assigned Estate of Kutztown Savings Bank.
    0f April 16th 1850, and the other statutes regulating distribution of the assets of insolvent banks and establishing an order of preference to creditors, do not embrace savings institutions, or banks so called, which are prohibited from exercising banking privileges.
    2. The charter of a bank provided that for the security of depositors, a certain capital should be raised previous to'the grant of letters of incor-' poration, “ which capital shall at all times be liable to the depositors for the amount of their deposits." The bank made an assignment for the benefit of its creditors and in the distribution of its assets, Held, that this capital was designed to constitute a fund to be employed by the trustees for any of the legitimate purposes of the association ; that it was not intended to be a special fund, separate and distinct from other funds, and for the exclusive benefit of depositors. Held, further, that said capital could not have been withdrawn by or refunded to those by whom it was subscribed.

      March 4th 1880.
    Before Sharswood. C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Appeal from the Court of Common Pleas, of Berhs county: Of January Term 1880, No. 241.
    Appeal of Reuben M. Fox and Benneville Fenstenmacher, two of the depositors in the Kutztown Savings Bank, from the decree of the court confirming the report of the auditor to distribute the assets of said bank in the hands of its assignee for the benefit of creditors.
    The facts as found by the auditor, F. R. Schell, Esq., were as follows:
    “ The Kutztown Savings Bank, located in the borough of Kutztown, Berks county, Pennsylvania, was incorporated by the General Assembly of the Commonwealth, March 12th 1869, Pamph. L. 1869, p. 865. The business of the corporation as specified in the charter was, to receive upon deposit, from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women and others. For the security of these depositors it was made by sect. 6th of this charter, the duty of the first trustees of the bank, previous to the grant of the letters patent, ‘ to raise and form a capital of not less than §5 nor more than §50,000, in shares of §20 each,’ which capital was at all times to be liable to the depositors. The capital stock of this bank was divided into twelve thousand shares of the par value of §20 per share, payable in four'equal instalments.
    “ On the 2-0th of March 1869, the commissioners named in the charter met for the first time, the subscription list was opened and all but ten shares of the capital stock was subscribed. On the same day a permanent organization was effected by the election of a president, vice-president, secretary, cashier and a board of trustees.
    “ On April 13th 1869, the first instalment due upon each share of stock subscribed was called in by resolution of the board of directors, and on the same day the bank was opened for business. The bank then continued business, although in the meantime many and serious losses had been sustained, with more or less embarrassment, until the year 1873, when to meet drafts upon deposits, certain officers of the bank gave their individual notes as an accommodation, which notes were discounted and the proceeds placed to the credit of the Kutztown Savings Bank. In the minute book of this bank on page 45, is found the following entry, to wit : 'Approved December 6th 1873, by the board. On motion resolved, that the notes signed by L. Wesley for §2500, R. J. Knerr for §1500, M. S. Richards for §100, Daniel Clader for §3300, John H. Fogel for §2200, are to be paid by the Kutztown Savings Bank. Adopted December 6th 1873. Milton S. Richards, secretary.’ Also in the same book on page 56, is found the following entry, to wit: ‘Kutztown, Pennsylvania, November 10th 1876. On motion resolved, that the notes amounting to $7000, that have been discounted by the Union National Bank of the city of New York, on October 31st 1876, last, signed by Daniel Zimmerman, president, and attested by W. C. Dietrich, cashier, and endorsed by R. J. Knerr, John H. Fogel, Daniel Dietrich and A. J. Fogel, be and (are) hereby ratified by the board of trustees, and to be paid by the Kutztown Savings Bank, when due. Said notes of $3000 and $4000 ($7000) were credited to the National Bank of Kutztown, by the Union National Bank of the city of New York, less the discount. On motion, adjourned. A. J. Fogel, secretary.’
    “On November 20th 1876, the cashier of this bank committed suicide. It was then discovered, that the institution was hopelessly insolvent, and it was determined to wind.it up as speedily as possible. On the 15th day of December 1876, at a meeting of the board of directors, a resolution was offered and unanimously adopted, “ That the president of the board of directors be instructed to execute and deliver, under the corporate seal of said bank, an assignment of all its effects and property, claims and demands, to James H. Marx, Esq., in trust for the benefit of the creditors of said corporation.’ At a meeting of the stockholders of the bank held subsequently the same day, a resolution was offered and unanimously adopted, ‘ That the president of the board of directors be directed to execute and deliver, under the corporate seal of said bank, an assignment of all its effects and property, claims and demands, to James H. Marx, Esq., in trust for the benefit of the creditors of said corporation.’ In pursuance of these resolutions, an assignment ih due form of law was made on the 19th of December 1876, by the Kutztown Savings Bank to said James II. Marx, in trust for the benefit of its creditors. At the date of the assignment, although the four instalments due upon the capital stock had been regularly called in, but a little more than the amount of the first instalment of $5 per share had been paid. This amount was exhausted soon after the inception of the institution.
    Upon these facts the auditor reported, inter alia, as follows':—
    “We now come to the question of distribution. It was claimed before the auditor that the depositors were entitled to the entire fund for distribution, to the exclusion of all other creditors; because,
    “ 1. The charter of the Kutztown Savings Bank was subject to the provisions of the G-eneral Banking Act of the state, approved April 16th 1850, Pamph. L. 1850, 447, in which act certain preferences are created by law.
    “2. That even if the charter of this bank were not subject to the provisions of that act, yet the depositors were entitled to a preferenoe in the distribution of the fund, by virtue of the sixth section of tho charter of the bank.
    “ A careful examination of the charter of the Kutztown Savings Bank will show that the first point made in behalf of the depositors cannot' be sustained. To arrive at a satisfactory conclusion on this point, the general banking laws of the state, as well as tho charters of many savings banks, have been examined with great care by the auditor. The 89th section of the Act of 16th April 1850, which specifies the order in which the assignees shall pay the debts and liabilities out of the assets of a bank in case of an assignment, is a transcript of the 9th section of the Act of April 27th 1844, entitled ‘An act to extend the charter of the Commercial Bank of Pennsylvania,’ Pamph. L. 1844, pl. 420. Both the Acts of 1844 and 1850 contemplated a bank of issue or circulation, as contradistinguished from a bank of discount or deposit. Every section of the Act of 1850 shows clearly that a bank of issue was in the legislative mind at tho time of the adoption of the act. So we see that the main purpose of the 9th section of the Act of 1844 and of the 89th section of the Act of 1850 was to secure the noteholders of any bank of issue against loss, for it has always been the policy of the law to protect this class of creditors. Their interests have always been zealously guarded by the legislature. It is also clear that tho words, ‘every banking corporation,’ and ‘ the said bank,’ as used in the Act of 1850, refer simply to a bank of issue. Now observe the peculiar language of the second proviso of the first section of the Kutztown Savings Bank charter. It reads, ‘ That nothing in this act contained shall be so construed as to confer upon the said corporation banking privileges.’ Such a corporation as this — a corporation clothed simply with the power of receiving deposits, but by the express terms of its charter denied banking privileges — cannot, in any just sense, be said to be within the proviso of the Act of 1850. ‘ It may well be doubted whether raising money on deposit is exclusively a banking privilege,’ said Judge Shakswood, in Building Association v. Seemiller, 11 Casey 227 n. Attention may here be called to some of the points in which the charter differs radically from the Act of 1850. In the latter, the par value of the shares is fixed at $50; in the charter at $20 per share ; in the latter letters patent are to issue after acceptance filed; the charter does not require this to be done; by the latter all charters expire in fifteen years from date; the charter is not to expire until twenty years after its enactment; by the act real estate may be owned to an amount not exceeding the whole capital stock; by the charter only such as is necessary for the business or such as may be necessary to secure debts can be held ; by the act, thirteen directors are to be chosen annually; the charter provides for nine trustees who hold their offices until death, resignation or removal; by the act elections are provided for annually ; by the charter only when vacancies occur; by the act dividends are to be made twice a year; by the charter when the trustees ‘ deem it properby the act bills of credit are to be issued; by the charter such bills aré prohibited ; by the act demand must be made in gold and silver and payment refused; by the charter only $25 can be demanded on any one day unless written notice be given ten judicial days before ; by the act the stockholders are individually liable to pay certain creditors ; by the charter there is no individual liability imposed; by the act the-officers are to report to the auditor-general ; by the charter the trustees report to the legislature; by the act the directors give no security; by the charter the trustees are required to give it. Again, if the Act of 1850 was meant to apply to a corporation of this kind, then the Act of April 22d 1854 sect. 4, Pamph. L. 468, which declared that ' all general laws relative to cashiers of banks shall be deemed and held applicable to the cashiers or treasurers of savings institutions,’ was unnecessary and absurd. Equally useless also then was the first section of the Act of 1856, Pamph. L. 468, extending the third section of the Act of April 16th 1850, ‘ to all incorporated banking, saving fund, trust and insurance companies.’ Reference may also be made here to the charter of the ' Coopersburg Savings Institution,’ Pamph. L. 1867, pl. 1194, of which the charter of the Kutztown Savings Bank granted two years subsequently is almost a literal transcript. An additional, though wholly immaterial section (the tenth) so far as this question goes, was added to the charter of the Kutztown Savings Bank. With this slight difference the two charters are precisely alike, with the exception of the second proviso in- the first section of the Kutztown Savings Bank charter. That proviso, which declares that nothing contained in the charter ' shall be so construed as to confer upon the said corporation banking privileges,’ does not appear in the charter of the ' Coopersburg Savings Institution.’ The insertion, therefore, of that proviso in the charter of the Kutztown Savings Bank shows clearly that it was the intention of the legislature to incorporate an institution somewhat exceptional in its character. Again, section eighth of our charter says: ' The said corporation shall be subject to the supervision and control of the Court of Common Pleas of Berks county and the Supreme Court of Pennsylvania, according to the provisions of the Constitution of this Commonwealth conferring equity jurisdiction upon the said courts.’ It will be observed that this section is silent as to the Act of 1850 and all other general laws relating to banks. Not so, however, with the charters of some other banks which have been examined. Thus the Farmers’ and Mechanics’ Bank of Shippensburg, was incorporated as a bank of discount and deposit by the Act of April 11th 1862, Pamph. L. 1863, p. 661. In section eighth of that charter it is provided, ' that the said bank shall be subject to the provisions and restrictions of the several acts regulating banks as far as they are applicable thereto.’ The construction of this section of that charter came before the Supreme Court in Means’s Appeal, 4 Norris 75. In that case Mr. Justice Mercur, after stating that the Act of 15th April 1850, prescribes a general system for the creation, government and liquidation of banks, says óf the eighth section just cited: ‘ Thus it appears the special act did not profess to furnish by itself a complete system for the bank thereby created. It provided for the organization, but when established it declared the corporation subject to previous legislation relating to banks. This special act was thus blended with the general acts. They became a part of its charter. They are in pari materia with the special act.’ May we not argue from this case that a similar provision to the eighth section should have been inserted in our charter to make it subject to the General Act of 1850 ?
    “ The second point advanced by the depositors may next be considered. As stated before, at the date of the assignment, an amount exceeding $5000 had been paid in on account of the stock subscribed. Since the assignment the assignee has received from stock subscriptions (exclusive of the Knerr instalments, paid by certificates on deposit), the sum of $1152. From the other assets of the bank, such as notes, he has received some $4000, which with the Knerr certificate excluded, would make in all some $5200. After deducting all expenses, including the cost of holding the audit, a balance of $4000.38 remains in the hands of the assignee for distribution among creditors who shall be found to be legally entitled to the same. This entire balance was claimed by the depositors, to the exclusion of all other creditors, by virtue of the sixth section of the charter of this bank. Objection was made to such claim by other creditors, who contended that the fund should be distributed pro rata among all the creditors. And that, if this last point were considered unsound, the most the auditor could do would be to report two schedules of distribution, to wit: the one giving the $1152 (less share of costs) to the depositors only, and the other distributing the balance pro rata among all the creditors. The question thus raised may be examined by discussing
    “ First. The deed of assignment.
    “ Second. The charter of the bank.
    “ 1. The deed of assignment consists of two principal points: A transfer to the assignee which vests in him the property, and an express trust which directs how to dispose of it: Burrell on Assignments 156, sect. 127. The clause in the deed defining the trust is as follows : ‘ In trust, however, and to the intent and purpose that the said James H. Marx shall and do, as soon as convenient sell and dispose of the goods and chattels of it, the Kutztown Savings Bank, and collect and recover all the outstanding claims and debts, instalments and assessments to it, the said Kutztown Savings Bank due, and with the moneys arising therefrom after deducting the reasonable costs and charges of him, the said James H. Marx, shall and do pay the creditors of the Kutztown Savings Bank their respective just demands in full; if there shall be sufficient the whole, and if there shall not be sufficient assets to satisfy the whole of the just demands of the creditors in full, then to pay the same according to the law in such case made and provided.’ This assignment divests the bank of its entire interest and estate in the property assigned, and at once creates the relation of trustee and cestui que trustent between the assignee and the creditors. In this state an assignment duly recorded is regarded as a transfer by law of the property assigned. The Act of 1836 gives to the creditors the right to have the trust expressed in the deed executed for their benefit. Every part of the assignment must be considered in construing it, and the intent of the parties as found expressed in its terms must be carried out by the courts, unless such intent is inconsistent with recognised rules of law: Darling v. Rogers, 22 Wend. 483-488.
    “ The deed of assignment contains no clause giving a preference to any particular creditor or class of creditors. And had such a clause been inserted it would have been a nullity, for the Act of 17th April 1843, Pamph. L. 273, declares that ‘all assignments of property in trust hereafter made to prefer one or more creditors shall be held and construed to enure to the benefit of all the creditors in proportion to their respective demands.’ Under this act, which virtually becomes part of every assignment, it has been held that the deed containing preferences is not void but is construed according to the provisions of the act: Law v. Mills, 6 Harris 185; Wiener v. Davis, Id. 331. Did the trustees, then, of this bank exceed their powers in making this deed of assignment, or did they comply strictly with the law in declaring this trust ? A citation of a few authorities will show clearly that they acted within the scope of the power vested in them. In Burton’s Appeal, 7 P. F. Smith 218, it is said: ‘ The right of alienation is an incident of ownership and belongs to a corporation as well as to an individual when no restraint is imposed in the charter. This right is not restrained by any state policy. On the other hand, free and unrestrained commerce in property, real and personal, has always been regarded as a favorite doctrine.’ Again, in Ardesco Oil Co. v. North American Oil and Mining Co., 16 P. F. Smith 375, Judge Shakswood says: ‘ Corporations, unless expressly restrained by the act which establishes them or some other Act of Assembly, have and always have had an unlimited power over their respective properties, and may alienate and dispose of the same as fully as any individual may do in respect to his own property. Hence an insolvent corporation may make a general assignment for the benefit of its creditors, and this power may be exercised by the directors unless special provision to the contrary is made in the charter.’ A corporation like an individual has power to assign its effects in trust to pay its debts. This is a common-law right: Dana v. United States Bank, 5 W. & S. 223. The trustees of the Kutztown Savings Bank have exercised a common-law right in alienating the property of the corporation in trust for all its creditors without preference. It has exercised that right in strict compliance with the Act of 17th April 1843. There is no other act bearing on the construction to be given to deeds of assignment.
    “No act can be found providing that deeds of general assignment shall be construed ‘ to enure to the benefit ’ of any particular class of creditors of a corporation such as this. This deed of assignment is, therefore, good and valid, and its terms must be observed in distributing the fund in the hands of the assignee, unless some limitation or restriction upon the power of alienation is contained in the charter. This brings us to the second point, the consideration of the charter itself.
    “ 2. Does the charter of the Kutztown Savings Bank impose any limitation or restriction upon the right of the trustees to alienate its property in trust for the benefit of all its creditors ? Does that charter anywhere expressly declare that in the event of a voluntary assignment the depositors shall be preferred in the distribution of the assets ? The section of the charter upon which the claim of the depositors was based is the 6th section, which reads as follows: ‘ That for the security of the depositors of the said institution, it shall be the duty of the persons named in the 1st section, and such others as may become members of the institution previous to the granting letters of incorporation, to raise and form a capital of not less than $5 nor more than $50,000, in shares of $20 each, which capital shall at all times bo Hable to the depositors for the amount of their deposit and the interest accruing thereon, the shares to be transferable on the books of the institution in such manner as may be designated by the bylaws of the institution.’ There is nothing in that section expressly imposing any limitation upon the right of the trustees to alienate the corporate property in trust for the benefit of all the creditors. Neither is there anything which expressly declares that in the event of such alienation in trust depositors shall be first paid to tbo exclusion of other creditors. It is true the soGtion says that this capital shall be raised for the security of the depositors and shall at all times be liable to them. It does not say, however, that it shall be liable to no other creditors. It is at best an additional but not exclusive security for depositors. Preferences are not favored in the case of voluntary assignments, and any one claiming such preference must show clearly that he falls within some exception to the general rule. In this case the claim of the depositors rests solely upon an implication.

      “ That is not sufficient, for where a statute confers exclusive privileges upon any class of persons, it is in derogation of common right, and should receive a strict construction. In the light of a strict construction, the claim of the depositors could not stand for a single moment. Had it been the intention of the legislature to place this class of creditors before all others, some such provision as that found in the 39th section of the Act of 1850 would have been inserted in this charter, for it cannot be doubted that in the legislative mind an express provision was required to effect that result. This is shown by the 9th section of the Act of 1850. The law-making powers in granting this charter were presumed to know that it did not come within the purview of the Act of 16th April 1850. They were also presumed to be familiar with all general laws relating to voluntary assignments. With such knowledge upon their part, the absence from this charter of a provision which had been previously inserted in all general laws creating preferences in favor of depositors, is a fact of some significance.
    “Again, it cannot be urged that this assignment was inequitable. It has been well said by Chief Justice Buchanan in the case of State of Maryland v. Bank of Maryland, 6 Gill & Johns. 216, ‘Equality is equity; and when a debtor makes a transfer of his property for the purpose of equal distribution among his creditors, he does an honest act and discharges a moral duty which none can reasonably complain of.’ ”
    The auditor then made distribution among all the creditors pro rata.
    Exceptions were filed to this report, which the court dismissed in a brief opinion by Sassaman, A. L. J., adopting the reasons of the auditor.
    • From this decree this appeal was taken, the appellants alleging that the court erred in not distributing the entire fund to the depositors of the bank, to the exclusion of the other creditors who are not depositors, and in not distributing to the depositors exclusively that,portion of the fund raised from‘sales of the stock of the bank.

      Jeff Snyder and George F. Baer, for appellants.
    The Acts of April 16th 1850, March 31st 1860, the supplement to the latter act, passed in 1861, and the Act of May 18th 1876, all make depositors preferred creditors.
    These acts unmistakably fix the degree of care which the legislature conceives to be due to the several classes of creditors, which our banking institutions may have. In the light of these statutes, and the 6th section of the Kutztown Savings Bank charter, which provides, that for the security of the depositors a capital shall be raised, which capital shall at all times be liable to the depositors for the amount of their deposits, is not the conclusion irresistible, that the legislature meant by this provision, to secure the depositors before all other creditors ?
    But we maintain, that the legislature has established a general rule for the distribution of assets of insolvent banks in the Act of the 26th of April 1844, Pamph. L. 1844, p. 419, which is applicable to this case: Pennsylvania Bank’s Assignee’s Account, 3 Wright 103; Parkesburg’s Bank’s Appeal, 6 W. N. C. 394.
    If, however, we are in error, and our depositors are not preferred by virtue of the general legislation on the subject, we claim that the 6th section of the charter makes the capital liable to us primarily.

      Edward Harvey and H. H. Schwartz, for appellees.
    The Kutztown Savings Bank was incorporated by the special Act of March 12th 1869, Pamph. L. 365. Although it is in that act styled a “ Savings Bank,’ it is expressly prohibited from exercising “ banking privileges.”
    The Act of 1850 provided a system of banking. All its provisions are referribie either to the organization or winding up of banks of issue: First National Bank of Clarion v. Gruber, 6 Norris 468. The 6th section is no more than a provision, that the capital stock is a fund for the payment of debts : Wood v. Dummer, 3 Mason 308 ; Mann v. Pentz, 3 Comst. 422. The unpaid subscriptions to its stock are a part of the assets of the corporation, and pass by a general assignment for the benefit of creditors: Germantown Passenger Railway Co. v. Fitler, 10 P. F. Smith 124; West Chester and Philadelphia Railroad Co. v. Thomas, 2 Phila. 344. Those that were paid before the assignment, were paid, not as a loan that the stockholders could reclaim, but as a part of the funds of the bank, and while there, were liable to be drawn by depositors. Again, the section provides for the payment of the whole subscription “previous to the granting of letters of incorporation.” Nowhere in the act is it specified, that unpaid instalments shall be collectible by depositors.
    The Act of April 17th 1843, Pamph. L. 273, provided, that all preferences in assignments should be void, and the funds distributed equally among the creditors, as if no such preference had been expressed. Just such an assignment the savings bank made, and in the absence of statutory prohibition, the auditor felt bound by it and observed its conditions in making the distribution.
   Mr. Justice Sterrett

delivered the opinion of the court, March 30th 1880.

The charter of the Kutztown Savings Bank, granted by the legislature in 1869, declares, “ That the business of the corporation shall be, to receive on deposit, from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women and others, and to invest the same in the stocks of this Commonwealth or of the United States, or in the stocks or bonds of any city authorized to be issued by any Act of this Commonwealth, or in other stocks, or in bonds and mortgages, and other improved and valid securities; the said corporation shall receive all sums of current money offered as aforesaid, and shall invest the same in the manner aforesaid.” Although styled a bank in the charter, it is expressly provided that nothing therein contained “shall be so construed as to confer upon the said corporation banking privileges :” Pamph. L. 365.

After being in operation for about seven years, the institution became insolvent, and pursuant to resolutions of its stockholders and board of trustees a voluntary assignment, in the usual form, was executed, in trust for the benefit of its creditors. The fund for distribution represents part of the assigned estate, including a portion of the capital which had been subscribed, but not paid at the time of the assignment, and the whole fund is insufficient to pay depositors in full.

The assignments of error involve only two propositions: 1. That the appellants and other depositors constitute- a preferred class, and as such are entitled to the whole fund, to the exclusion of all other creditors; 2. If not entitled to the entire fund, they have an exclusive right to that portion of it which represents capital collected by the assignee. In support of the first, it is contended, that the corporation was subject to the provisions of the Act of April 16th 1850, Pamph. L. 477, and other statutes regulating distribution of the assets of insolvent banks and establishing an order of preference; first, to note holders, second to depositors, and third, to all other creditors except stockholders. The learned auditor examined with great care the several Acts of Assembly on this subject, and came to the conclusion that they do not embrace savings institutions or banks, so called, which are prohibited from exercising banking privileges. In this we think he was clearly right. The Act of 1850, entitled an act regulating banks, established a complete system for the organization and winding up the affairs of banks in this Commonwealth. It provides, among other things, for division of the capital stock, the manner of taking subscriptions, the issuing of letters patent, acceptance of charter, election of directors, issuing notes, assignment for the benefit of creditors, individual liability of stockholders, keeping notes at par in Philadelphia and Pittsburgh, and other matters peculiar to banks of issue and discount, and not applicable to banks of deposit only. The Act of April 26th 1844 also relates to the same class of banks. Indeed, it is evident from the first preference given to note holders as a class that the legislation relied on by the appellants, relates exclusively to banks of issue and discount, and was not intended to embrace such institutions as the Kutztown Savings Bank.

The second proposition is based on the 5th section of the charter, which provides that for the security of depositors a capital of not less than $5 nor more than $50,000, in shares of $20 each, shall be raised previous to granting letters of incorporation; “ which capital shall at all times be liable to the depositors for the amount of their deposits and the interest accruing thereon.” The capital, small as is the minimum thus required to be raised aa a condition precedent to the issuance of letters patent, was evidently intended as a security for depositors, but not for them exclusively. It was designed to constitute a fund to be employed by the trustees for any of the legitimate purposes of the corporation. It might be loaned, or invested in property required for the use of the institution in conducting its business, or used in paying its creditors. There is nothing in the charter to indicate that it was intended to be a special fund, separate and distinct from other funds of the institution and for the exclusive benefit of depositors ; but it could not be withdrawn by or refunded to those by whom it was subscribed. The capital stock of a corporation is a trust-fund for the payment of its debts: Wood v. Dummer, 3 Mason 308; Mann v. Pentz, 8 Coms. 422; and unpaid subscriptions to its stock are a part of its assets, which pass to the assignee under a general assignment for the benefit of creditors: Railroad Co. v. Thomas, 2 Phila. Rep. 344. They are unlike' those shares of stock which, for the special benefit of depositors, are sometimes made assessable to double the amount of the capital. We think that the depositors, as a class, had no exclusive right to the whole or any particular portion of the fund. All the property and effects of the corporation passed, under the assignment, to the trustee, subject to the ordinary rules of distribution pertaining to general assignments for the benefit of creditors. The distribution was correctly made on this basis.

Decree affirmed, and appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Krause versus Commonwealth.
    1. A delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase-money at a future day is something more than a bailment; it gives the buyer a conditioned title.
    2. In general terms a bailment is the delivering of goods or any other species of personal estate for use, keeping, or on some other trust, where the general property does not pass.
    3. To bring a case of larceny by bailee within the 108th section of the Crimes Act of 1860, in addition to the fraudulent disposal of the property, it must be proved that there was such a delivery of the property as to divest the owner of possession, and vest it in the prisoner for some time, and that at the expiration of that time the identical property was to be restored to the owner.
    4. The word “ bailee” is a legal term, to be understood in its generally accepted sense among jurists, and if it be doubtful whether a case be included, it shall be excluded in the construction of a criminal statute.
    5. The owner of horses placed them in possession of defendant, under an agreement for sale to defendant, he to pay the purchase-price of the same, the horses to remain the property of the owner until paid for, and to be returned at a specified time if not paid for. The defendant refused to pay for the horses, and did not pay for them. Held, that he was not guilty of larceny as bailee.
    6. In favor of the liberty of the citizen the court may, and in a proper case should, declare the evidence insufficient to convict. Pauli v. Commonwealth, 8 Norris 432, followed.
    March 4th 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Quarter Sessions of Lehigh county: Of January Term 1880, No. 233. ,
    Indictment of Frederick P. Krause for larceny as bailee.
    The facts will be found stated in the opinion of this court.
    The first point of defendant, with the answer of the court, Albright, P. J., were as follows:
    1. There can be no conviction in this case because the defendant is no bailee of the property in controversy within the meaning of section 108 of the Criminal Code of March 31st 1860, and upon which the count in the bill of indictment upon which he is being tried is found.
    Ans. “ Refused. Whether defendant was a bailee is one of the questions which must be determined by the jury. If you find that defendant was no bailee, of course there can be n'o conviction.”
    The verdict was “guilty,” and after judgment thereon the defendant took this writ, and alleged that the court erred in refusing to instruct the jury that under the evidence there could be no conviction of larceny by bailee.

      Butz & Schwartz and William H. Sowden, for plaintiff in error.
    Where there is a bailment a re-delivery of the thing bailed is contemplated by the parties. • No re-delivery was here intended. The transfer was a conditional sale not a bailment: Hilliard on Sales 1; Mallory v. Willis, 4 Comst. 85; Foster v. Pettibone, 7 N. Y. 435; Commonwealth v. Chathams, 14 Wright 188; Haak v. Linderman et al., 14 P. F. Smith 499 ; Chamberlain v. Smith, 8 Wright 431; Commonwealth v. Cart, 2 Pitts. 495.

      Milton C. Henninger, District-Attorney, for the Commonwealth.
    By an examination of the specifications of error it appears there are none assigning as error the rejection or admission of any evidence by the court below. The question raised is as to the sufficiency of the evidence upon which a conviction was had. We are aware that, by virtue of the Act of 1874, exceptions can now be taken to the admission or rejection of evidence by the court below in criminal cases such as the one at bar. But the fact still remains that this court can not take cognisance of such errors, if any there be, unless the same are properly brought to its notice by bills of exception.
   Mr. Justice Trunkey

delivered the opinion of the court, March 15th 1880.

The indictment contained two counts : 1. Larceny ; 2. Larceny by bailee; the alleged stolen property was the same in both. To the first count Krause pleaded a former acquittal, on which plea verdict and judgment were rendered in his favor. lie was then tried and convicted on the second.

In the charge of the court, the Commonwealth’s case, as proved, was fairly stated thus: On December 13th 1878, the prosecutor sold and the defendant agreed to purchase the two horses; that the price agreed upon was $150, to be paid on delivery, the prosecutor to take the horses to the defendant’s stable, at Allentown, the next day and receive the money; that he took them to said stable and left them; that other interviews and negotiations followed continuing up to the Thursday of the next week, when the horses disappeared from the stable, and were sold or converted by the defendant to his own use. That when the horses were taken to the stable the defendant had only $25, and it was then agreed that the horses should continue to be the property of Deemer, who would not sell them except for cash ; that he would wait till the following Tuesday evening, when, if the defendant should not have the money to buy the horses, they were to be taken to Deemer, at Schoenersville, and with this understanding Deemer accepted the $25; that on Tuesday evening the defendant took one of the horses to Schoenersville, and the next evening went again, taking the other horse, on each occasion taking the horse back with him; that on Thursday Deemer went to Allentown for his horses, and offered to return the $25 to the defendant, but he refused to give them ; and that the original contract was never changed, the horses were sold only for cash, and the extension of time was given to enable the defendant to buy and pay for them. Such were the alleged facts which now must be taken as true.

Having acquitted the defendant of larceny of the horses, the Commonwealth put him to another trial and convicted him of larceny, in stealing the same horses, under section 108 of the Crimes Act of 1860. Yillanous as his conduct was, this conviction ought not to stand, unless he was a bailee within the intendment of the act. The word bailee is a legal term, to be understood in its generally accepted sense among jurists, and if it be doubtful whether a case be included it shall be excluded, in the construction of a criminal statute. Blackstone defines bailment as “ a delivery of goods in trust upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee;” Story, “a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust;” Jones, “a delivery of goods in trust on a contract, express or implied, that the trust shall be duly executed, and the goods re-delivered as soon as the time or use for which they were bailed shall have elapsed or be performed;” and Kent, “ a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.” Mr. Edwards, in his work on Bailment, sect. 2, remarks : These definitions agree in nearly all essential particulars, and disagree in two or three respects. Jones and Kent assume the property is to be returned, while Blackstone and Story include contracts under which no such return is contemplated. Story intends to include among contracts of bailment a delivery of goods for sale; and Kent intentionally limits his definition so as to exclude that species of contract. In general terms, it may be said that the delivery of goods or any other species of personal estate for use, keeping or on some other trust, where the general property does not pass, creates a bailment. A delivery of chattels upon a sale made on condition that the title shall pass on the payment of the purchase-money at a future day, is something more than a bailment; it gives the buyer a conditional title.- If the contract give the buyer a definite creditor a reasonable time within which to pay, it gives him a transferable interest in the chattels until the credit expires, and the property in them as soon as he pays the price.”

Authors of received authority generally specify five sorts of bailment, namely, depositum, mandatum, commodatum, pledge and hiring; and, as severally defined, in each the entire property of the thing bailed remains in the bailor, the possession only is given to the bailee, who is to return or deliver the thing itself as soon as the purpose of the bailment shall be answered. In this state it is settled that the bailee of goods, who uses and enjoys them as if his own, cannot divest the title of the bailor by a sale to an innocent person; nor can a creditor of the bailee seize them in execution of his debt. When delivered under a contract of bailment, the owner will be entitled to them against everybody. But a delivery on a conditional sale, the property to remain in the vendor until the goods are paid for, with right to reclaim them, is void as respects the vendee’s creditors, or an innocent purchaser from him. The delivery being on the foot of a purchase, the vendor’s right, as against the vendee’s creditors, is regarded as a lien for the purchase-money: Chamberlain v. Smith, 8 Wright 431; Haak v. Linderman, 14 P. F. Smith 499. By the terms of the contract the seller may retain the right of property in the goods till paid for, as against the purchaser, and, in default of payment, he may reclaim them, or use civil remedies for recovery of possession ; but the contract does not make him a bailor, as respects other persons, nor the purchaser a bailee in the sense of the word as used in the statute.

Our statute, as shown by Read, J., in Commonwealth v. Chathams, 14 Wright 181, is taken from the English statute; and in that case the interpretation of the words bailee arid bailment, as fixed by the English decisions, was adopted, which decisions were cited, showing that the words must bo interpreted according to their ordinary legal acceptation, that “ bailment relates to something in the hands of the bailee, which is to be returned in specie, and does not apply to the case of money in the hands of a party who is not under any obligation to return it in precisely the identical coins which he originally received;” that “ to bring a case within this clause, in addition to the fraudulent disposal of the property, it must be proved; First. That there was such a delivery of the property as to divest the owner of the possession, and vest it in the prisoner for some timo; Secondly. That at the expiration or determination of that time the same identical property was to be restored to the owner.”

The term bailee is one to be used, not in its large but in its limited sense, as including simply those bailees who are authorized to keep, to transfer, or to deliver, and who receive the goods bona fide, and then fraudulently convert. Where it does not appear that a fiduciary duty is imposed on the defendant to return the specific goods of which the alleged bailment is composed, a bailment under the statutes is not constituted: Whart. Crim. L., sect. 1855 (8th ed.).

The bargain was struck for a sale of the horses for $150, payable on delivery. At the time stipulated Deemer delivered the horses, Krause paid §25, they agreed that the property should continue in Deemer, and on the next Tuesday Krause would pay the balance or return the horses. He refused to do either. The original contract was not changed — time was extended to Krause to enable him to pay the money. If there was a delivery at all, it was on the footing of the sale. There was no agreement to sell at a future time — a mere contract that the buyer would pay the balance of the price or return the property, in the meantime, the title to be in the seller. Payment would have been a complete performance. Krause was not bound to return the identical property. He had a transferable interest until the credit expired, and he or his transferee would have had clear title the instant of payment. This, was something more than a bailment,- and Krause was not a bailee in the statutory sense.

In favor of the liberty of the citizen, the court may, and in a proper case, should declare the evidence insufficient to convict: Pauli v. Commonwealth, 8 Norris 432. We are of opinion that the defendants first point should have been affirmed.

Judgment reversed, and the record, with this opinion setting forth the causes of reversal, is remanded to the Court of Quarter Sessions of Lehigh county for further proceeding.


author: Per Curiam.

text:
    Kline’s Appeal.
    1. A tract of land was divided by its owner into ten building lots fronting on a street. On these lots ten houses wei’e built, two houses adjoining each other, making five blocks of two houses, each house having a side yard. Between two of these blocks an additional space of sixty feet was left, intended for a street. Mechanics’ liens were filed against the whole row, which were apportioned among the ten houses. It was objected’ that the liens' could not be so apportioned because of their separation by this sixty feet space. Held, that the rights of the mechanics, with reference to apportionment, were to be determined by the time when the work was commenced, and as the space had not then been dedicated as a public street, the liens were properly apportioned.
    2. Fitzpatrick v. Allen, 30 P. F. Smith 292, followed.
    March 4th 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur, and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1880, No. 201.
    Appeal of Charles G. Kline from the decree of the court in the distribution of the proceeds of the sheriff’s sale of the property of John T. Noble.
    Noble was the owner of two acres and sixty perches of land situate in the village of Lyons, which was laid out in ten building lots, fronting on a street to .be opened and to be called Hunter or Noble street, and so described in the several liens filed. The lots are .30 feet front, and running back 140 feet to an alley to be opened 18 feet wide. On these ten lots ten houses were built, two houses adjoining each other, 16 feet front by 28 feet deep, thus making, as it were, five blocks, each house having a side yard of 14 feet or 28 feet between each block of two houses. Between houses 4 and 5, or blocks 2 and 3 with their side lots, an additional space or piece of ground of 60 feet was left, intended for a street, at right angles to and leading from and into the proposed Hunter or Noble street, as appears by the draft attached to the commissioner’s report. These ten houses, or five blocks, are in one row, were built at one time, and all are fronting on the proposed Hunter or Noble street.
    A number of mechanics’ liens were filed against said houses for work done and materials furnished, some of which were apportioned on each of the ten houses, others were apportioned on each house of several blocks, and others were apportioned upon blocks. The houses in question were sold at sheriff’s sale some time in February 1877, under a judgment of Charles G. Kline, bearing date the 19th of October 1875.
    A reference was made to an auditor to report distribution of the fund arising from the sale. Before the auditor Kline contended that the mechanics’ liens of Herzog and others, who had filed apportioned liens against the ten houses, were not properly apportioned on the blocks separated by the 60 feet space, and that these claimants were not therefore entitled to share in the proceeds. The' auditor, B. Frank Dettra, Esq., however, allowed their claims, and the court, Hagenman, P. J., afterwards dismissed the exceptions to his report, and confirmed the same in an opinion, inter alia, saying:
    “ It is insisted by the exceptants that these liens having been apportioned among the ten houses are not such as fall under the class of apportioned liens, and are therefore defective, and cannot participate in the distribution. The objection consists in the fact that between houses 4 and 5, or blocks 2 and 3, there is a space of ground of 60 feet which was intended for a street. This forms the only ground of objection. That apportioned liens could have been filed against houses 1, 2, 3 and 4, composing blocks 1 and 2, and against houses 5, 6, 7, 8, 9 and 10, composing blocks 3, 4 and 5, cannot be successfully questioned. Is the objection sufficient to invalidate these lions ?
    “ The commissioner finds in his report that these several houses were erected at one time on one tract of land, forming a legal whole or unit, of which the intervening space is a part and parcel, and the materials were furnished and the work was done upon their joint credit. The evidence fully supports this finding. At the time the tract or piece of land was laid out the 60 feet were intended for a street, but when the buildings were begun, and up to the time when they were finished and liens filed, no street was laid out and opened, and none has been to this day.

      “ The 4th section of the Act of 30th May 1831 gave to the material-man the right to file an apportioned lien when the materials were furnished for two or more adjoining houses. The Acts of 1836 and of 1850, referred to in a former part of this opinion, in which the right to file apportioned liens is given against two or more buildings owned by the same person, the word adjoining is omitted. The purpose of these acts is manifest. When a contractor is erecting two or more houses under a joint contract, it is impossible for the material-man to specify in his claim filed the particular house or building for which the several items were furnished, especially so in this age of improved machinery, when the lumber and materials generally are taken to the mill and prepared before taken to the buildings. The same reason applies to the mechanic and laboring man. The work is mainly done in the mill and shop. The flooring, frames, doors, shutters, sash, &e., are prepared promiscuously for all the houses; and it is utterly impossible to tell how many days’ work was expended on any particular part that was put into any one of the buildings.
    “ Numerous supplements have been passed to the Act of 1836, all with the obvious intent of securing to the mechanic and material-man a lien for the work and materials furnished. Two were passed in 1879. The one of 11th June authorizes and requires the court to permit amendments in any stage of the proceedings, conducive to-justice and a fair trial upon the merits, including the changing, adding and striking out the names of claimants, and by adding the names of owners and contractors respectively ; and the one of 28th June extends the provisions of the Act of 1836 for work done and materials furnished for or about the repair, alteration or addition to any house or other building, with other important provisions and extensions, all with the like intent.
    “ Mechanics’ liens have become an important part of our system of jurisprudence. The Supreme Court has moulded the law from time to time, and has given it such a construction as to perfect the system and carry out the object and intention of the legislature. The Acts of 1836 and 1850, which gave, the right to file an apportioned lien against two or more buildings owned by the same person, were held to include adjoining houses belonging to different owners, when the lien filed was against the same contractor, although not being within the words was considered as being within the spirit and object of the act. So, too, an apportioned claim was held good where two houses belonging to different owners, were erected under a joint contract on opposite sides of a private alley, the use of which belonged to both properties. The contract is the main ground upon which the right to claim is founded. In Taylor v. Montgomery, 8 Harris 443, Montgomery was the owner of a- lot between Broad and Thirteenth streets, in the city of Philadelphia, fronting on Wood street and Bloom alley. Sixteen houses were erected on Wood street in one block, and sixteen on Bloom alley in one block. Taylor filed one lien, and .apportioned his claim against the thirty-two houses. The court below held the lien bad, on the authority of Chambers, v. Yarnall, 3 Harris 268, where the circumstances and situation of the premises-were precisely the same. The Supreme Court reversed the judgment. Judge Lowrie, in ruling the case, says, ‘ The mechanics’ lien laws recognise the filing one lien against several houses, and the apportionment of the amount among them, but they do not define the cases in which such joint lien is proper. In order to obtain such a definition we must resort to the analogy of other cases; and the case of joint contracts requiring joint remedies is an obvious one.’ Hero all the buildings were put up by the owner at one time and on one lot, and the materials were furnished for them all jointly, and it was entirely proper to make them the subject of one apportioned lien. The case of Fitzpatrick v. Allen, 30 P. F. Smith 294, is a further step in advance. Leslie being the owner of the whole ground, from the south side of Christian street to the north side of Montrose street, between Twenty-third and Twenty-fourth streets, in the city of Philadelphia, conveyed it by two deeds — one describing a lot on Montrose street running to a three-feet ten-inch wide alley, leading from Twenty-third to Twenty-fourth streets, with the free and common use, &c., of said alley ; the other deed for a lot on south side of Christian street running back to the said alley, with the same privileges. Fitzpatrick, the owner of" these two lots, erected ten houses in one block on the south side of Christian street, and ton houses in one block on the north side of Montrose street. Allen did the roofing on the whole twenty houses, under a verbal contract at a certain price per foot, and filed one lien and apportioned his claim among the twenty houses.
    “ Fitzpatrick said in his examination that he did not own the alley between these two properties. The court below sustained the lien and this judgment was affirmed in the Supremo Court. Chief Justice Agnew, in a Per Curiam opinion, referring to the several Acts of Assembly and a number of decisions in regard to apportioned liens, says : ‘ It is evident from the current of legislation and judicial decisions that the chief criterion, in these casos of apportioned liens, is the contract under which the claim arises, while the characteristic of the adjoinder of the buildings is not so prominent.’ Indeed, its omission both in the Act of 1886 and I860 shows a decided want of attention to it in the legislative mind. Yet we do not hold that this characteristic is absolutely repealed; but under the spirit of legislation and decision we may hold with perfect confidence, that when two blocks of houses built under the same contract aro not divided by a public street or alley, but merely by a private way, the right of which belongs to both blocks, there is not such a severance as will prevent an apportionment of the claim among the several houses.
    “ On the authority of these cases, and the great reluctance on the part of the court to set aside mechanics’ liens on technical grounds, the liens of Gr. Herzog & Co. should be sustained. The ten houses were erected at one time, on one lot of ground, and the work and materials were furnished for them all jointly. The lot was cut out of a field of farm land with no public roads leading to or from it. Noble street, when opened, was only a private way running in from these houses. The supervisor was not obliged to open and make it, or keep it in repair. Had the sixty feet between houses four and five, been opened, it would be a private way for the common use of the several lot owners to pass from Noble street to the alley, which runs along the rear of these lots. It began at Noble street and ended in the alley. In no way is the objection to these liens,- a parallel case to Goepp v. Gartiser, 11 Casey 132. * * * The exceptions are dismissed and the report is confirmed.”
    From this decree this appeal was taken.

      H. H. Schwartz and Horace Roland, for appellant.
    It has been held, that if the claimant can specify the particular work done to each house, he must file separate claims. Such specifications can be readily made in such a case as the one at hand, where not only there is an intervening space, but even the houses on either side of said space are built in separate and distinct blocks, with open yards between them: Chambers v. Yarnall, 3 Harris 268; Thorn v. Shaw, 5 Leg. and Ins. R. 19; Boyd v. Mole, 9 Phila. 118.
    It is only where the materials are provided and work done, jointly and indiscriminately, upon several adjoining houses, that one apportioned lien is sufficient: Pennock v. Hoover, 5 Rawle 291; Davis v. Farr, 1 Harris 167 ; Harper v. Keely, 15 Id. 234; Thomas v. James, 7 W. & S. 381.
    No community of rights or property or privileges exists. The intervening lot is a separate and distinct property, and in no sense of the word can the ten houses or five blocks, be said to be adjoining. The lot of sixty feet is not necessary to the enjoyment of any of these properties, and would not pass by a judicial sale of any of them. The position of these properties is the same as though they stood on opposite sides of'a street, and the invalidity of these liens is ruled by Goepp v. Gartiser, 11 Casey 132; Campbell v. Pharo, cited in Taylor v. Montgomery, 8 Harris 444; Campbell v. Furness, 1 Phila. 372; Millet v. Allen, 3 W. N. C. 374 : Fitzpatrick v. Allen, 30 P. F. Smith 292.

      Daniel H. Wingerd, Amos B. Wanner, Beshler Bros., and Butz & Schwartz, for appellees.
    A'll the houses being owned by one person, the work and materials having been furnished by the lien creditors under a joint contract, and without reference to any particular house, but for all indiscriminately, it would have been impossible to specify how much work and material belonged to any specific one: Davis v. Farr, 1 Harris 167 ; Young v. Lyman, 9 Barr 449; Donahoo v. Scott, 2 Jones 45.
    If it were the intention to convert the intervening space into a street, it was not done before the liens were filed, nor indeed at anytime, for it was sold to another party after the liens were filed; and no notice either of the intention as to the street, nor of the subsequent sale, having come to the parties claiming under these liens, brings this case exactly within the ruling of Fitzpatrick v. Allen, 30 P. F. Smith. 294, and Taylor v. Montgomery, 8 Harris 443.
   The judgment of the Supreme Court was entered March 22d 1880,

Per Curiam.

We think this ease is ruled by Fitzpatrick v. Allen, 30 P. F. Smith 292. The space between these blocks of houses of sixty feet was not a public street; it had not been dedicated as such before the buildings were commenced, whatever may have boon the intention of the parties. That time is the period to be looked to as to the right of the mechanic, but it is admitted that the intention to dedicate it as a public street was abandoned. Here then the houses were adjoining, if that was necessary to make the joint and apportioned lien valid.

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


text:
    Pennsylvania Railroad Company versus Bock.
    1. In an action by a father to recover damages for the death of his son by the alleged negligence of a railroad company, the defendant requested the court to charge that the plaintiff, being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse, over which he (the father) had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of the life of his son or his horse killed by the passing train ; which the court answered: “ This point, assumes a fact, the existence or non-existence of which is a question for your determination, to wit: That the plaintiff placed his son on a horse over which he had no control. This is for you, and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find, under all the evidence in the case, whether there was negligence either on the part of the plaintiff or of his son, who was killed, which contributed to the'production of the accident. If there was such contributing negligence, the plaintiff cannot recover.” Held, that the assumption in the point forbade its affirmance, and that it could have been well refused without any qualifying remarks. Held, further, that there was error in the remark that if the assumed facts were true, it would be strong evidence of negligence, for on the verity of the facts as assumed, without reference to other proofs, the plaintiff was guilty of negligence, and as it was not certain that this error did the defendant no harm, the judgment must be reversed.
    2. Defendant moved in arrest of judgment on the ground that there had been a misjoinder of rights of parties. The declaration discovered no inconsistency in the rights sued upon, nor any misjoinder of the claimants thereunder. Held, that there was nothing on the face of the record to arrest the judgment, and if there was actual misjoinder, it should have been taken advantage of on the trial.
    3. A common-law and sfcatutox-y claim for damages may he joined in the same action when they admit of the same pleas and are followed by the same judgment.
    4. A father brought an action against a railway company for the death of his minor son by the alleged negligence of the company. In the same suit he also joined a claim for damages for a horse killed at the same time. At the trial it was agreed that the case should be tried as if the mother of the boy were a party, and that she should be concluded by the verdict. The verdict was for the plaintiff. A motion was made in arrest of judgment. Held, that there was nothing on the record which could be taken advantage of by this motion.
    March 6th 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Common Pleas of Sucks county: Of July Term 1878, No. 67.
    Case by Anthony Bock against the Pennsylvania Bailroad Company to recover damages for the death of his son and also for the loss of a horse, killed at the same time, by one of defendant’s trains.
    At the trial, it was agreed that the action should be tried with the same effect as if the plaintiff’s wife had been a party plaintiff', and that she should be concluded by the verdict.
    It appeared from the evidence that on the morning of the 81st of May 1875, the plaintiff was hauling manure from a stable in the town of Bristol, Bucks county. His team consisted of a hay wagon, two mules and a horse on the lead. In going to the stable, he had to cross the track of the defendant’s railroad, which at this point runs through a well-built up portion of the town. He had crossed the track along this road driving the two mules, and bad sent his son with the horse by another road which passes under the railroad track, but which at that time was impassable for wagons. The son was a strong and very intelligent lad about seven years old, and who was accustomed to assist his father in various ways. While the plaintiff was loading the manure at the stable, the lad brought the horse up and geared him to the wagon, and when his father was ready to start, he jumped on the horse’s back and the team started off. There was no line attached to the horse, the boy on his back controlling him by the bridle, while the father walked by the side of the near mule, and taking him by the bridle thus directed the movements of the team. There is an incline on either side of the railroad track at the point of the crossing, and at the foot of this, about sixty feet from the track, the plaintiff stopped the team. Erom this point the track is only visible a few feet in a westerly direction, the view being obstructed by the houses, but at about ten to twelve feet from the track the view in the same direction is unobstructed for about four hundred and sixty-eight foot, and from the middle of the track the view is clear for 1500 feet. The crossing is made of planks laid down between the rails and making an even surface. When plaintiff stopped his team, he proceeded alone to the middle of the track, and stood there looking in both directions and listening for about a half minute, and not seeing or hearing a train, he called to the boy to come on, and plaintiff • walked back to his usual place and took the near mule by the bridle.» At the moment when the horse reached the first rail of the track, the plaintiff heard a train approaching. He shouted and jerked the mule back, but the horse had gotten on the track, was struck by the east-bound train, and instantly killed. The boy was thrown on the truck of' the engine in front of the boiler, and died a few hours after the accident from his injuries. There was a conflict of evidence as to the speed of the train. One witness testified that both he and the plaintiff shouted, but that within three seconds from the time the train was in sight the accident occurred. It was alleged on the part of the plaintiff, that the speed of the train was in excess of that allowed by the ordinance of the borough. The evidence as to the rate of speed varied from eight to twenty-five miles an hour. The testimony was equally conflicting as to whether the whistle of the engine was blown or its bell rung.
    The fifth point of the defendants, with the answer of the court, Watson, P. J., were as follows:
    5. That the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse, over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of the life of his son or his horse, killed by the passing train.
    Ans. “ This point assumes a fact, the existence or non-existence of which, is a question for your determination, to wit: That the plaintiff placed his son on a horse over which he had no control. This is for you and we cannot assume it. If it were true, it would be strong evidence of negligence. It is for you to find under all the evidence in -the case, whether there was negligence either on the part of the plaintiff or of his son, who was killed, which contributed to the production of the accident. If there was such contributing negligence, the plaintiff cannot recover.”
    The verdict was in favor of plaintiff for the sum of $2176 for horse and funeral expenses included, and six cents costs.
    The defendant moved, in arrest of judgment, for the following reasons : 1. The action was brought for damages to the plaintiff and wife, for the loss of their son, and the declaration joined a claim for a large sum, to wit: $500 in and about the taking care of the body of said Anthony Bock, Jr., and in and about his funeral expenses, which claims were not in the same right, and could not be joined in the same suit and averred in the same declaration. 2. The declaration in the action, sets forth as the cause of action, an injury causing death, the result of negligence by the defendant; that the person killed was a minor child of plaintiff, and at the. commencement of the trial, it was agreed, “ that this action shall be tried in the same manner and with the same effect, as if Linda Bock, wife of plaintiff, had been a party plaintiff thereto ; and that the recovery, if any is had, shall include all her demands against the defendant, and that she shall be concluded by the verdict should it be in favor of the defendant,” stating a cause of action in favor of the parents for the loss of the life of si child under the statute; and in the same declaration, a claim for taking care of the body of said child, and in and about his funeral expenses; and a separate count for the loss of a horse caused by the negligence of the defendant, which said funeral expenses and the damages for the loss of the horse, belonged to the said Anthony Bock; and the damages for the injury Causing the death of the child, belonged to the husband and wife jointly, and could not be joined in the same action; and the verdict is for a gross sum for plaintiff for horse and funeral expenses included, which claims cannot be joined. 3. The declaration joins a claim for damages under the statute for an injury causing death, the damages for which belong to two persons, with a cause of action at common law, for the loss of a horse and funeral expenses of a child belonging to one person ; and the verdict is for a gross sum, and is expressly found by the jury to be for “$2176, for horse and funeral expenses included,” without designating the proportions for each, upon which no judgment can be entered. 4. There is a misjoinder of parties and causes of action, and a verdict for a gross sum upon which no judgment can be-entered. 5. There is a judgment for a gross sum for causes of action, which as stated in the declaration, belong to different parties, without designating which part belongs to each, upon which no judgment can be entered.
    The court overruled the motion in an opinion, saying:
    . “ It is almost unnecessary to say we can arrest the judgment only for error apparent on the face of the record. Is there such error here ? The wrong complained of in the narr. is negligence resulting in, 1. The killing of the plaintiff’s minor son, whereby he lost his services and was put to expense in taking care of and burying his body ; 2. The killing of his horse. When the jury was about to be empanelled it was agreed by the parties ‘ that this action shall.be tried in the same manner and with the same effect as if Linda Bock, wife of plaintiff, had been a party plaintiff thereto, and that the recovery, if any is had, shall include all her demands against the defendant, and that she shall be concluded by the verdiet should it be in favor of the defendant.’ We do not regard this as making the wife a party to the suit. We look upon it rather as an agreement that the entire damages should be determined and recovered in the suit by the husband, and that in consideration thereof the defendant should not thereafter be molested by any claim by or for the wife. But suppose we consider the agreement as placing her as a party plaintiff on the record? How does this render an error apparent on its face ? The effect would be to j oin her as a plaintiff on every count and upon every statement of ownership or claim. Instead of a separate cause of action in the husband for separate injuries to him, we should have a statement of a joint cause of action for injury to joint property in the horse, joint expenses in the burial of the son, and joint loss by reason of his death. The declaration would still be a consistent whole. There would be nothing there to show the several items if the demand were in different rights. The error, if any, in this respect, would be on the trial and not on the face of the record. We see nr reason why the common-law claim for the loss of the horse, and the statutory claim for the loss of the son, may not be joined in the same declaration. They are of the same nature, admit of the same pleas and are followed by the same judgment: 1 Ch. Pl. 197 ; Martin v. Stille, 3 Whart. 337. These views apply to all the reasons in support of the motion for arrest of judgment.”
    Judgment was then entered on the verdict, when defendant took this writ, and alleged that the court erred, inter alia, in the answer to defendant’s fifth point, in overruling the motion in arrest of judgment, and in entering judgment on the verdict.

      G. & H. Lear, for plaintiff in error.
    When a child is placed in danger by the positive act of its guardian, it is contributory negligence: Kay v. Pennsylvania Railroad Co., 15 P. F. Smith 269. If parents permit a child of tender years to wander on a street, it is negligence : Phila. and Reading Railroad Co. v. Long and Wife, 25 P. F. Smith 257. It is the duty of the parent at all times to shield his child from danger,, and this duty is the greater when the risk is imminent; the degree of protection is in proportion to the helplessness and indiscretion of the child: Glassy v. Hestonville, Mantua & Fairmount Passenger Railway Co., 7. P. F. Smith 172. See Smith v. O’Conner, 12 Wright 218; P. A. & M. Railway Co. v. Pearson and Wife, 22 P. F. Smith 169. See also the recent caso of Smith v. The Hestonville Railway Co., 11 Norris 450.
    The action for death by negligence is statutory, while that for the loss of the horse is a common-law remedy, and the two cannot be.joined : Pennsylvania Railroad Co. v. Zebe, 9 Casey 328 ; North Pennsylvania Railroad Co. v. Robinson, 8 Wright 178 ; 1 Chitty, sect. 200. The wife had no cause of action for the horse, and there was therefore a misjoinder of her and her husband’s right, with his alone: 1 Chitty 205, sect. 75.

      B. F. Gilkeson, George Ross and L. L. James, for defendant in error.
    Observation of the practice of teamsters, having a team of four or three horses, will demonstrate that the position of the driver is upon the back, or at the bridle of the near-side tongue horse. Whether the position of the father gave him the opportunities of control which it is claimed it did, was a question of fact for the jury, and for them alone; as such, it was submitted, and their verdict determines that they — whether from their ow;n experience as farmers or otherwise — found the fact to be true. Whether the situation of the boy upon the horse contributed to the accident, is a question for the jury : Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282. The question of contributory negligence is to be determined by a reference to the age, intelligence and physical strength of the person injured, and the circumstances under which the injury was sustained : Oakland Railroad Co. v. Fielding, 12 Wright 320 ; Philadelphia Passenger Railroad Co. v. Hassard, 25 P. F. Smith 367.
    The defendant having taken his chances before a jury, without objection, should not now be permitted to unravel the whole case upon a question such as here raised. Upon the trial, the plaintiff below could have entered a non. pros, as to the counts for the horse and funeral expenses; and what might have been permitted below, in the nature of an amendment, is not ground for reversal after a trial on the merits: Shoenberger v. Zook, 10 Casey 24; Roop v. Roop, 11 Id. 59; Loew v. Stocker, 11 P. F. Smith 347; Kelsey v. Bank of Crawford County, 19 Id. 426.
   Mr. Justice Trunkey

delivered the opinion of the court March 29th 1880.

The defendant’s fifth point was, “ that the plaintiff being about to drive a team, with two mules and a horse on the lead, across a railroad track, with a loaded wagon, where trains were running propelled by steam, having placed his son, seven years of age, on the lead horse over which he, the father, had no control, was guilty of negligence in placing his son in such a dangerous position, and cannot recover for the loss of his son or his horse killed by the passing train.” Ans.: “This point assumes a fact, the existence or non existence of which is a question for your consideration, to wit, whether the plaintiff placed his son on a horse over which he had no control. This is for you, and we cannot assume it. If it were true it would be strong evidence of negligence. It is for you to find under all the evidence in the cause whether there was negligence of the plaintiff or his son who was killed, which contributed to the production of the accident. If there was such contributing negligence, the plaintiff cannot recover.”

The point must be considered with reference to the facts which the testimony would have warranted the jury in finding. Prom that they could have found that the train was running through the borough at the rate of twenty miles an hour, and no boll was rung nor whistle blown till after the accident; that the deceased was a remarkably stout and intelligent hoy for his age, and was in the habit of vrorking with his father ; that he had often ridden the lead horse in the team, had, on the day he was killed, taken the horse by a way under the railroad to the place of loading, and geared him to the wagon while his father put on the load; that he got on the horse, and the team was driven near to the railroad and stopped ; that the plaintiff went upon the track, looked both ways, listened, and neither seeing nor hearing an approaching train, started back, telling the hoy to come ahead; that the team was started before the plaintiff reached it, he took the mule by the head, the horse got his forefeet on the track, and was struck within three seconds from the time a witness, who was standing by, saw the cars; that as soon as said witness heard the train he hallooed, the plaintiff hallooed, but the train was too fast — not a witness saw anything that could have been done to save the horse or boy, between the time of hearing the train and the accident. It cannot he pretended that any evidence shows the horse could have been got out of the way had a man sat in the place of the boy, or if the plaintiff had had a line on the horse.

The assumption in the point forbade its affirmance. It was earnestly argued that the testimony authorized the co.urt to assume the fact. Perhaps, in all the farming and mining portions of the state, there i's not a judge or juror who would say a man could have no control of the lead horse unless he has a line on him. Be this as it may, it is not a question of law for the court to say. Where there is no line there is no control. The point could have been well refused without qualifying remark, and had it been there would have been no cause for complaint. Its assumed facts are but a fraction of the story, and the part omitted shows the plaintiff’s care before his attempt to cross the track, and that he was caught too suddenly for escape. In the light of the evidence, the court could not say the plaintiff was negligent, unless it is negligence in itself for a teamster to cross a railway track with his little son riding the lead horse — a proposition which has not been advanced. Excepting one remark, the instructions to the jury were accurate, adequate and applicable to the proofs, enabling them to intelligently dispose of the questions submitted. That remark was in the answer to the fifth point, the court saying, if the assumed facts were true it would be strong evidence of negligence. As an abstraction, we think that was error; for, on the verity of the facts as assumed, without reference to the other proofs, the plaintiff was guilty of negligence. Had the point been differently framed, submitting its isolated facts to the jury, it should have been affirmed; but the court would have reminded them, as it did, that they were to consider all the facts established by the testimony.

Unless it be certain that the error did the defendant no harm, the judgment must be reversed and the cause sent back for another trial. This is doubtful. The jury judge of the credibility of witnesses, and possibly they may have found the facts as contended for by the defendant; and, if so, the error was hurtful.

The opinion of the learned judge of the Common Pleas, on the motion in arrest of judgment, comprises all that need be said respecting the fourth and fifth assignments.

Judgment reversed, and venire facias de novo awarded.